Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the Audrain County 16AU-AC00046-01
Honorable Linda R. Hamlett
M. GAERTNER, JR., PRESIDING JUDGE.
Mosely (Mosely) appeals the trial court's dismissal and
entry of judgment in favor of Show-Me Credit Union (SMCU) on
Mosely's counterclaim that SMCU failed to give proper
notices required by the Uniform Commercial Code (UCC) before
repossessing his vehicles and seeking a deficiency judgment.
Because Mosely's factual allegations show that the
presale notice SMCU sent to Mosely failed to meet UCC
requirements, the trial court erred. We reverse and remand.
February of 2016, SMCU filed a petition alleging that SMCU
and Mosely had entered into a contract to finance two
vehicles, with the vehicles as collateral, and that Mosely
had ceased making the contracted payments. SMCU alleged that
it issued a right to cure letter to Mosely containing the
required statutory notices, and that Mosely voluntarily
surrendered the two cars. SMCU also alleged it later sent
Mosely a statutory notice of intent to sell the cars. SMCU
further alleged that after selling the cars and applying the
payments and credits due to Mosely, there was still a
deficiency of $12, 535.96 on Mosely's account. SMCU
sought judgment in that amount, as well as attorney's
fees, costs, and expenses.
filed a counterclaim on behalf of himself and all other
similarly situated consumers, alleging that SMCU did not
obtain Mosely's written consent to repossess the two
cars, failed to send various notices that complied with UCC
requirements, and wrongfully charged interest. SMCU filed a
motion to dismiss Mosely's counterclaim, arguing that
Mosely's counterclaim failed to state a claim upon which
relief could be granted and that SMCU complied with all
applicable statutory notice requirements. The trial court
granted SMCU's motion to dismiss Mosely's
counterclaim and entered judgment in favor of
SMCU. This appeal follows.
we note that the trial court's judgment purports to both
dismiss Mosely's counterclaim and enter judgment in favor
of SMCU on the counterclaim. From the record it is clear the
trial court determined a substantive element of Mosely's
counterclaim; namely, that SMCU's notices were
sufficient. Cf. Boulevard Bank v. Malott, 397 S.W.3d
458, 462 n.2 (Mo. App. W.D. 2013) (noting trial court's
dismissal determined substantive element of counterclaim and
was tantamount to judgment on pleadings).
SMCU filed a motion to dismiss for failure to state a claim
upon which relief could be granted, which is also a basis for
a judgment on the pleadings. Mo. R. Civ. P. 55.27(a)(6)
(2017). Both require the trial court to assume the facts
pleaded by the non-moving party are true and determine
whether those facts sufficiently allege a legal cause of
action. Mo. Mun. League v. State, 489 S.W.3d 765,
767-68 (Mo. banc 2016) (quoting State ex rel. Nixon v.
Am. Tobacco Co., 34 S.W.3d 122, 134 (Mo. banc 2000))
("The position of a party moving for judgment on the
pleadings is similar to that of a movant on a motion to
dismiss; i.e., assuming the facts pleaded by the opposite
party to be true, these facts are, nevertheless, insufficient
as a matter of law."); see also Schwartz v.
Lawson, 797 S.W.2d 828, 833 (Mo. App. W.D. 1990) (noting
courts accord "functional equivalence" to summary
judgment, motion to dismiss, and motion for judgment on
pleadings). The trial court's judgment includes the
substantive determination that SMCU's notices were
sufficient as a basis for its determination that Mosely could
not prevail as a matter of law. Thus, regardless of the
wording of the trial court's judgment, we review whether
the allegations in Mosely's petition that the notices
were deficient would entitle him to legal relief.
sole point on appeal, Mosely argues that the facts alleged in
his counterclaim sufficiently pled a violation of the
UCC's notice requirements, which would entitle him to
relief if proven. Mosely pled two counts in his counterclaim,
both of which contained an allegation that SMCU's presale
notice violated the UCC. Specifically, Mosely alleged the
presale notice stated that SMCU intended to dispose of the
collateral at issue "at a private or public sale."
Mosely argues this notice lacked the specificity required by
the UCC. We agree.
applicable section of the UCC is Section 9-611(b), which is
codified in Missouri Section 400.9-611(b). This section
requires "a secured party that disposes of
collateral" to send the debtor "a reasonable
authenticated notification of disposition." The contents
of such notice are specified in Section 400.9-614, regarding
consumer-goods transactions. As relevant here, a sufficient
notice "[s]tates the method of intended
disposition" Section 400.9-613(1)(C).
Section 400.9-614(2) specifies that "[a] particular
phrasing of the notification is not required, " Comment
2 to Section 400.9-614 cautions, "[a] notification that
lacks any of the [required contents] is insufficient as a
matter of law." "A creditor is held to the
requirement of strict compliance with these notice
provisions. Any doubt about what constitutes strict