United States Court of Appeals

For the Eighth Circuit

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No. 13-2217

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Gary R. Lackey, Jr.

lllllllllllllllllllll Plaintiff - Appellant

v.

Wells Fargo Bank, N.A.; Federal Home Loan Mortgage Corporation, also known

as Freddie Mac

lllllllllllllllllllll Defendants - Appellees

Kozeny & McCubbin, L.C.

lllllllllllllllllllll Defendant

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: January 14, 2014

 Filed: April 4, 2014

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Before RILEY, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge. 

Gary Lackey, Jr. executed a note and deed of trust covering residential real

estate but eventually defaulted. A foreclosure proceeding was initiated, and Lackey
brought this action, asserting several deficiencies with the foreclosure and seeking to

quiet title to the property in himself.1

 The defendants Wells Fargo Bank and the

Federal Home Loan Mortgage Corporation (Freddie Mac)2

 moved for summary

judgment. The district court3

 granted the motion for summary judgment, and we

affirm.

I.

Lackey purchased a home in Kansas City, Clay County, Missouri on August 7,

2007, executing a note payable to Bank of Blue Valley and a deed of trust, which

granted Mortgage Electronic Registration Systems, Inc. (MERS) a security interest in

the property as nominee for the bank. The deed of trust named SMF Registered

1

On appeal Lackey asserts that this is both a wrongful foreclosure and quiet title

action. Lackey’s second amended complaint, however, does not explicitly mention

that he is seeking wrongful foreclosure redress. The second amended complaint

alleges that certain irregularities associated with the foreclosure sale caused title not

to transfer to Freddie Mac, and thus title should be quieted in Lackey. We therefore

interpret Lackey’s complaint as asserting both an equitable wrongful foreclosure

action that seeks to set aside the foreclosure sale and a quiet title action in which

Lackey claims that due to the deficiencies in the sale, title to the property should be

quieted in himself. See Barnes v. Fed. Home Loan Mortg. Corp., No. 13-2033, 2014

WL 67894, at *1 (8th Cir. Jan. 9, 2014) (unpublished per curiam) (acknowledging that

the plaintiff’s quiet title claim was based on the viability of his wrongful foreclosure

claim). 

2

Because Freddie Mac is a party to this case, the district court had original

jurisdiction pursuant to 12 U.S.C. § 1452(f). Lackey’s claims, nonetheless, are

governed by Missouri law. See Peterson v. CitiMortgage, Inc., 704 F.3d 548, 550 (8th

Cir. 2013). 

3

The Honorable Greg Kays, United States District Judge for the Western

District of Missouri.

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Services, Inc. trustee and was recorded with the Clay County, Missouri Recorder of

Deeds on August 20, 2007. 

On August 11, 2010, Wells Fargo recorded an Appointment of Successor

Trustee with the Clay County Recorder of Deeds, naming itself as trustee and Kozeny

& McCubbin, L.C. (Kozeny) as successor trustee. A notarized statement from Wells

Fargo acknowledged that at the time of the appointment, Wells Fargo was the lawful

holder of Lackey’s 2007 note. Almost one year later, on August 1, 2011, MERS

assigned its interest in the property as nominee to Wells Fargo via a Corporate

Assignment of Deed of Trust, recorded on August 11, 2011. The next day, Wells

Fargo recorded a second Appointment of Successor Trustee, naming Kozeny

successor trustee. Wells Fargo attached another notarized statement acknowledging

that it was the lawful holder of the note at the time of the second appointment. By this

time, Lackey had already defaulted under the terms of the note and deed of trust by

failing to make the required payments on February 15, 2011. Under the terms of the

deed of trust, a default in payment was grounds for a non-judicial, trustee foreclosure

sale of the property. 

On September 19, 2011, Kozeny, as successor trustee, sold Lackey’s property

at a foreclosure sale to Freddie Mac and executed a Successor Trustee’s Deed to

Freddie Mac on October 7, 2011, which was recorded four days later. After becoming

aware that the wrong certified mailing receipts were attached to the original Successor

Trustee’s Deed, Kozeny recorded a Corrective Successor Trustee’s Deed on January

24, 2012, attaching the proper certified mailings receipts. 

Lackey filed a pro se action in Clay County Circuit Court, and the case was

removed to federal court, pursuant to 12 U.S.C. § 1452(f). Lackey then obtained

counsel and filed a second amended complaint, seeking quiet title relief based on

certain deficiencies in the foreclosure of the property. The defendants subsequently

moved for summary judgment. The district court granted the motion, finding no

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genuine issue of material fact regarding Lackey’s claim. Specifically, the district

court found that MERS’s assignment of its interest in the deed of trust and the second

successor trustee appointment established as a matter of law that a proper foreclosure

sale occurred and no cloud on the title to the property existed. The district court found

that MERS’s assignment was sufficient to establish Wells Fargo’s interest in the

property and its right to appoint a successor trustee and that any discrepancy with the

first successor trustee appointment was irrelevant. The district court also found that

Lackey’s quiet title action failed because he could not show that he possessed superior

title to the property. Finally, the district court found that, while the original Successor

Trustee’s Deed attached the wrong certified mail receipts, the Corrective Successor

Trustee’s Deed attached the proper certified mail receipts, which provided sufficient

proof that notice of the foreclosure sale was mailed to Lackey in compliance with

Missouri’s foreclosure statute. 

After the district court’s order was filed, Lackey moved to vacate the order. 

The district court denied the motion due to Lackey’s failure to provide any newly

discovered evidence or identify any errors of law or fact that would justify vacating

the order. Lackey now appeals the district court’s order granting summary judgment

to the defendants. 

II.

We review the grant of summary judgment de novo, “viewing the record most

favorably to the nonmoving party and drawing all reasonable inferences in its favor.”

M & I Marshall & Ilsley Bank v. Sunrise Farms Dev., LLC, 737 F.3d 1198, 1199 (8th

Cir. 2013). Upon careful review, we affirm the district court’s grant of summary

judgment.

“‘[W]hat constitutes a wrongful foreclosure sufficient to set aside a sale and

what constitutes a wrongful foreclosure sufficient to recover damages in tort are not

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the same.’” Fields v. Millsap & Singer, P.C., 295 S.W.3d 567, 571-72 (Mo. Ct. App.

2009) (quoting Dobson v. Mortg. Elec. Registration Sys., Inc./GMAC Mortg. Corp.,

259 S.W.3d 19, 22 (Mo. Ct. App. 2008)). A wrongful foreclosure action seeking

damages requires plaintiff to prove that he was not in default and, thus, there was no

right to foreclose on the property. Id. at 572. A wrongful foreclosure action seeking

to quiet title or set aside a sale may proceed, however, whenever plaintiff alleges

certain wrongful acts that are sufficient to render the sale void. Id.; see also Reliance

Bank v. Musselman, 403 S.W.3d 147, 150 (Mo. Ct. App. 2013); Dobson, 259 S.W.3d

at 22. Here, Lackey does not allege that he was not in default at the time of the

foreclosure proceedings. He argues instead that the foreclosure sale should be set

aside and title quieted in himself due to irregularities in the foreclosure proceeding. 

First, Lackey contends it is unclear who held title to the note at the time of

Wells Fargo’s first and second successor trustee appointment and, thus, Wells Fargo

may not have been authorized to appoint Kozeny as successor trustee. Lackey argues,

accordingly, that if the successor trustee appointments were not valid, then Kozeny

did not have a legal right to foreclose on the property and title to the property did not

transfer to Freddie Mac. Second, Lackey contends that Wells Fargo was required to

produce the original note prior to the commencement of foreclosure on the property. 

Finally, Lackey argues that he was not provided notice of the non-judicial foreclosure

as required by statute. 

Lackey claims that these defects are substantial enough to void the foreclosure

sale and that he therefore possesses superior title to the property. We disagree. 

Certainly, there are some irregularities or defects in a non-judicial foreclosure that

could render the foreclosure sale void, such as “where the foreclosing party does not

hold title to the secured note” or the “[f]ailure to provide notice of a foreclosure sale

to owners of the foreclosed property.” See Williams v. Kimes, 996 S.W.2d 43, 45

(Mo. 1999). We find, however, nothing in the record that creates a genuine issue of

material fact regarding Wells Fargo’s status as lawful holder of the note and the power

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to appoint Kozeny as successor trustee. Nor are there any factual disputes sufficient

to preclude summary judgment on the issue of whether the statutory notice

requirements for non-judicial foreclosure were satisfied.

We first conclude that Wells Fargo was holder of the note and, thus, was

entitled to appoint Kozeny as successor trustee to the deed of trust. “[T]he note and

the deed of trust are inseparable, and when the promissory note is transferred, it vests

in the transferee ‘all the interest, rights, powers and security conferred by the deed of

trust upon the beneficiary therein and the payee in the notes.’” Bellistri v. Ocwen

Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. Ct. App. 2009) (quoting St. Louis

Mut. Life Ins. Co. v. Walter, 46 S.W.2d 166, 170 (Mo. 1931)); see also U.S. Bank

Nat’l Ass’n v. Burns, 406 S.W.3d 495, 497 (Mo. Ct. App. 2013). Under Missouri

law, a holder of a note is entitled to enforce the note. U.S. Bank Nat’l Ass’n, 406

S.W.3d at 497. A “holder” is a “person in possession if the instrument is payable to

bearer or, in the case of an instrument payable to an identified person, if the identified

person is in possession.” Mo. Ann. Stat. § 400.1–201(20).4

 

Here, Wells Fargo has provided a copy of Lackey’s 2007 promissory note that

reflects a special endorsement by Bank of Blue Valley to Wells Fargo. Furthermore,

we find in the record two notarized Appointment of Successor Trustee documents

recorded by Wells Fargo that state Wells Fargo was the lawful holder of Lackey’s

4

In his brief, Lackey focuses on the difference between a special endorsement

and an endorsement in blank in relation to Wells Fargo’s endorsement stamp. 

However, this distinction is of no consequence in this case. Wells Fargo is only

required to show a proper chain of negotiation with regard to the note. See Fed. Nat’l

Mortg. Ass’n v. Bostwick, 414 S.W.3d 521, 525 (Mo. Ct. App. 2013), reh’g and/or

transfer denied (Oct. 29, 2013), transfer denied (Dec. 24, 2013). Here, only two

entities were involved in the negotiation of this note—Bank of Blue Valley and Wells

Fargo. Whether Wells Fargo endorsed in blank is irrelevant because nothing in the

record indicates that the note was negotiated to another entity prior to the successor

trustee appointments. 

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2007 note at the time of both appointments. See App. 55, 59. We find these

documents sufficient to show that Wells Fargo was indeed the lawful holder of the

note for summary judgment purposes as Lackey has provided no evidence to the

contrary. Fields v. Millsap & Singer, P.C., 295 S.W.3d 567, 571 (Mo. Ct. App. 2009);

Millon v. JPMorgan Chase Bank, N.A., 518 F. App’x 491, 496 (8th Cir. 2013) (“‘A

party opposing a motion for summary judgment must show that admissible evidence

will be available at trial to establish a genuine issue of material fact.’” (quoting

Churchill Bus. Credit, Inc. v. Pac. Mut. Door Co., 49 F.3d 1334, 1337 (8th Cir.

1995))). Accordingly, as holder of the note, Wells Fargo was entitled to appoint

Kozeny as successor trustee, Bremen Bank & Trust Co. of St. Louis v. Muskopf, 817

S.W.2d 602, 607-08 (Mo. Ct. App. 1991), and Kozeny had the right to foreclose on

the property. Green v. Commerce Bank of St. Louis, N.A., 53 S.W.3d 229, 232 (Mo.

Ct. App. 2001). 

Next, we reject Lackey’s argument that Missouri law required Wells Fargo to

produce the original note at the time of the foreclosure proceeding. This argument is

often referred to as the “show me the note theory,” a theory consistently rejected by

the United States District Courts in Missouri interpreting Missouri law5

 and several

other courts nationally, including this court, deciding foreclosure actions brought

under the governing state foreclosure laws.6

 Non-judicial foreclosures are generally

5

See, e.g., Barnes v. Fed. Home Loan Mortg. Corp., No. 5:12-CV-06062-DGK,

2013 WL 1314200, at *4 (W.D. Mo. Mar. 28, 2013), aff’d, No. 13-2033, 2014 WL

67894 (8th Cir. Jan. 9, 2014); Hobson v. Wells Fargo Home Mortg., No.

2:11CV00010 AGF, 2011 WL 3704815, at *2 (E.D. Mo. Aug. 24, 2011)

6

See, e.g., Welk v. GMAC Mortg., LLC, 720 F.3d 736, 738 (8th Cir. 2013);

Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 254-55 (5th Cir. 2013)

(interpreting Texas law as not requiring the production of the original note prior to

foreclosure); Gallant v. Deutsche Bank Nat’l Trust Co., 766 F. Supp. 2d 714, 720-21

(W.D. Va. 2011); Hogan v. Wash. Mut. Bank, N.A., 277 P.3d 781, 783 (Ariz. 2012);

JPMorgan Chase Bank, N.A. v. Erlandson, 821 N.W.2d 600, 604 n.3 (Minn. Ct. App.

2012).

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governed by the terms of the deed of trust, see Mildfelt v. Circuit Court of Jackson

Cnty., Mo., 827 F.2d 343, 346 (8th Cir. 1987) (per curiam), and we find nothing in

Lackey’s deed of trust requiring the trustee or the successor trustee to show the

original note to the borrower at any time prior to the foreclosure sale. Neither can we

find any Missouri law that demands such action.7

Finally, we conclude that Lackey failed to provide “clear and satisfactory”

evidence that the foreclosure sale was conducted improperly, more particularly that

the statutory notice requirements were not met. See Petring v. Kuhs, 171 S.W.2d 635,

638 (Mo. 1943) (acknowledging that evidence must be “clear and satisfactory” to

rebut the recitals in a trustee’s deed concerning the foreclosure sale). “[T]he recitals

in the trustee or mortgagee’s deed concerning the default, advertisement, sale or

receipt of the purchase money, and all other facts pertinent thereto, shall be received

as prima facie evidence in all courts of the truth thereof.” Mo. Ann. Stat. § 443.380;

Fed. Nat’l Mortg. Ass’n v. Howlett, 521 S.W.2d 428, 432 (Mo. 1975). To rebut the

recitals in the Trustee’s Deed, Lackey points to Kozeny’s initial attachment of

certified mailing receipts representing that notice was mailed on August 24, 2010 and

the subsequent attachment of certified mailing receipts representing that notice was

mailed on August 19, 2011. Appellees explained in their motion for summary

judgment that the initial attached mail receipts were attached by mistake as the

receipts related to a prior non-judicial foreclosure action that was cancelled. A

corrective deed was subsequently filed with the proper mailing receipts attached. 

We are not persuaded that the attachment of two different certified mailing

receipts creates a genuine issue of material fact as to whether Lackey received proper

notice of the foreclosure sale. As the district court noted, the correct certified mailing

receipts show that notice was sent to Lackey on August 19, 2011, after Wells Fargo’s

7

The one Missouri case that Lackey cites as support discusses a suit brought on

the note itself not a non-judicial foreclosure. See Union Sav. Bank v. Cassing, 691

S.W.2d 513, 514 (Mo. Ct. App. 1985). Thus, that case is inapplicable.

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second successor trustee appointment and “not less than twenty days prior to” the

scheduled sale date of September 12, 2011. See Mo. Ann. Stat. § 443.325.3 (requiring

that the foreclosing trustee “not less than twenty days prior to the scheduled date of

the sale, cause to be deposited in the United States mail an envelope certified or

registered, and with postage prepaid, enclosing a notice containing the information

required in the published notice of sale . . . ” addressed to the owner of the property). 

Kozeny mistakenly attached the wrong receipts to the initial Successor Trustee’s

Deed. The correct certified mailing receipts have since been attached and “constitute

proof of compliance with notice requirements.” Mo. Ann. Stat. § 443.325.3(4). 

Lackey has provided no evidence leading us to question the authenticity of the correct

certified mailing receipts. Simply asserting that he has not received notice is

insufficient to preclude summary judgment, as the statute makes it clear that actual

receipt of notice is not required. See id. We therefore conclude that because the

original Trustee’s Deed and the Corrective Deed state that the foreclosure sale was

conducted in compliance with governing statutes, and Lackey has failed to provide

any “clear and satisfactory” evidence rebutting the recitals that notice was mailed, no

genuine issue of material fact exists.8

 

Having determined that Lackey’s wrongful foreclosure action fails, Lackey

cannot show that he has superior title to the property and, therefore, cannot succeed

on his quiet title action. See Ollison v. Vill. of Climax Springs, 916 S.W.2d 198, 203

8

We note that Lackey makes a final attempt to rebut the prima facie evidence

of the valid foreclosure sale by claiming that Appellees provided no explanation for

its filing of the Corrective Deed. A notation, however, was written on the cover page

of the deed stating that “Corrective STD is being re-recorded to attach the property

Certified Mailing Receipts.” App. 42. Moreover, there were no changes made to the

language of the Successor Trustee’s deed itself. The only change that occurred was

the attachment of the correct certified mailing receipts, which is not enough to create

a genuine issue of material fact as to whether notice was properly mailed.

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(Mo. 1996) (per curiam) (“A plaintiff in an action to quiet title has the burden to prove

title superior to the other party . . . .”).

III.

For the reasons stated above, we affirm the district court’s grant of summary

judgment. 

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