Court of Appeals of Missouri, Western District, Second Division
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI. THE HONORABLE ROBERT M. SCHIEBER, JUDGE.
Traci L. Fann, for Appellant.
David S. Ladwig, for Respondent.
Before Division Two:
Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge and Cynthia L.
VICTOR C. HOWARD, JUDGE
Mark Geran appeals from the summary judgment in favor of Xerox Education Services, Inc. (XES), a loan servicer, in his suit for damages for violations of the Missouri Merchandising Practices Act and for intentional infliction of emotional distress. The judgment is affirmed.
Factual and Procedural Background
Mr. Geran took out various student loans with Norwest Bank for his law school education between 1997 and 2000, and Wells Fargo Education Financial Services became the holder of the promissory notes relating to those loans. In 2005, Mr. Geran applied for and entered into an agreement with Wells Fargo to consolidate all of his student loans and executed a Promissory Note in favor of Wells Fargo promising to repay that consolidated loan. Mr. Geran applied for an income sensitive repayment plan but was placed on a graduated repayment plan that provided for interest only payments for one-third of the repayment period and a level monthly payment for the remaining two-thirds of the repayment period. On March 18, 2005, Wells Fargo mailed Mr. Geran a Disclosure Statement and Repayment Schedule for the consolidated loan. It showed that the consolidated loan consisted of two accounts for subsidized and unsubsidized portions and set out the specific repayment plan--100 payments of $160.41/month total for both accounts beginning April 2005 and then the remaining 200 payments of $345.55/month beginning in August 2013. The Promissory Note provided that terms of the Disclosure Statement and Repayment Schedule were made part of the loan:
At or about the time my Federal Consolidated Loan is disbursed, a disclosure statement and repayment schedule (" disclosure" ) will be provided to me. This disclosure will identify my Federal Consolidated Loan amount and additional terms of the loan....If the information in this Note conflicts with information in the disclosure, the specific terms and information in the disclosure apply to my loan.
Similarly, the Disclosure Statement and Repayment Schedule provided, " This document will become an attachment to, and a part of, your Consolidated Loan Application/Promissory Note. Mr. Geran had the ability at any time under the Promissory Note and the Disclosure Statement and Repayment Schedule to request a change in his repayment plan, but Wells Fargo was not obligated to grant such request. Specifically, the Disclosure Statement and Repayment Schedule provided, " You must repay your loan according to the scheduled payments described below, unless the lender of your Consolidated Loan agrees to other terms." Additionally, the Promissory Note provided that the lender " may allow" a forbearance (temporary delayed or reduced loan payments) if the borrower is unable to make scheduled loan payments.
In 2011, Wells Fargo contracted with ACS Education Services, Inc. (ACS), which was later acquired by XES in 2012, to service Mr. Geran's consolidated loan. On March 23, 2011, ACS sent Mr. Geran a letter informing him that it could not accommodate the graduated payment plan that he was on with Wells Fargo and gave
him an option to request a graduated plan offered by ACS or be placed on level payments. Specifically, the letter provided:
ACS has determined that your account(s) was approved for a graduated repayment plan while being serviced by Wells Fargo Education Financial Services. While ACS offers graduated repayment plans, we cannot accommodate the identical plan you previously selected at Wells Fargo Education Financial Services. We do offer a similar plan with a tiered repayment schedule where the payment amount gradually increases every 24 months. If you would like to choose this repayment plan, please complete the bottom portion of this letter and send the entire letter to the following address by 5/22/2011....
It was undisputed that Mr. Geran called ACS on May 23, 2011, regarding the repayment plan change. Mr. Geran alleged that the customer service representative estimated that his monthly payment amount under the new tiered repayment schedule would be $154.81 within plus/minus ten percent. ACS admitted that the customer service representative provided Mr. Geran with an estimate but denied the amount. It also presented documents showing that Mr. Geran requested information on his debt and interest rate, requested to be placed on ACS's tiered repayment schedule, and was told to put his request in writing during the phone call. That day, Mr. ...