On June 21, 1994, Plaintiff purchased the property located at 1701 Church Road, Pacific, Missouri, (“Subject Property”). The property is located in both Franklin and St. Louis Counties. Both counties are first class counties. Plaintiff executed a Deed of Trust against the Subject Property (“Deed”) and gave the Deed to her lender, Countrywide Mortgage (“Countrywide”). The Deed gave Countrywide the right to invoke the “power of sale” in the event of a default by Plaintiff.
Plaintiff did not pay the mortgage payments for the months of May 2010 through and including September 2010, putting her in default under the Deed. On December 1, 2010, Countrywide filed its Notice of Default. The Trustee ran an advertisement that described the property and the date, book and page of the record of the deed as well as the grantors listed in the deed. It stated the property would be sold on January 12, 2011 at 1:30 pm to the “highest bidder for cash” at public vendue. The ad ran for 21 days in the St. Louis Post Dispatch, in the real estate section.
Plaintiff filed an action for wrongful foreclosure alleging the following as the basis of her action: 1) the initial notice of sale was improperly advertised; 2) postponement of the sale required republication of notice; and 3) it was error for the trustee to accept payment by cashier’s check. Would she be able to have the sale set aside? Would she be able to recover damages? Could she do both?
On November 6, 2006, Plaintiffs purchased the property located at 431 Augustine, O’Fallon, Missouri, in St. Charles County (“Subject Property”). Plaintiffs executed a deed of trust and promissory note entitling Wells Fargo to foreclose on the Subject Property if Plaintiffs defaulted on the loan. Plaintiffs. Wells Fargo subsequently sold Plaintiffs’ loan to MERS.
Plaintiffs fell on hard times and were unable to make their mortgage payments for the months of January 2009 through and including April 2009. MERS initiated foreclosure proceedings and appointed Quality Loan Service Corporation (“Quality Loan”) as trustee to conduct a trustee’s sale on the property. Plaintiffs mailed MERS a letter seeking information and documents, including evidence of “the original unaltered uncertificated or certificated security” regarding their account. MERS did not respond to the letter. Quality Loan sold the Subject Property in a non-judicial foreclosure sale on October 26, 2011.
Plaintiffs filed suit against MERS. Count one of the complaint seeks to void the sale because MERS was not the original holder of the note and therefore “was not entitled to enforce the underlying promissory note deed” as evidenced by its failure to produce the note. Count two alleges that MERS violated the Federal Fair Debt Collection Practices Act. Are they likely to prevail on either count? How would the result be different if the property were located in O’Fallon, Illinois?