IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT KANSAS CITY WELLS FARGO BANK NA, Plaintiff, v. DENISE M.

OATES, et al., Defendants.

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Case No. 09!6-CV21439 Division 6

) ORDER

Before the Court is plaintiffs motion for summary judgment in the above matter. After reviewing the submissions of the parties, hearing oral argument from counsel, and being in all other respects duly advised in the premises, the Court orders as follows. This case comes to the Comt in the context of an unlawful detainer action originally filed by plaintiff against defendants in the Associate Division of this Court. Section 534.050, RSMo provides that a person is liable for unlawful detainer if he or she willfully remains in possession of property "after a mmtgage or deed of trust has been foreclosed and the person has received written notice of a foreclosure." In order to prevail in an unlawful detainer action, the party claiming a right to possession must show that it has a "legal right to possession." The Court determines that there are genuine issues of material fact that preclude the granting of summary judgment in plaintiffs favor, specifically, whether plaintiff received the statutorily-required notices prior to the foreclosure sale at which plaintiff purchased the property. The Court believes this disposition is compelled by the Missouri Supreme Comt's recent decision in

Schlereth v. Hardy, 280 S.W.3d 47

(Mo. bane 2009). In that case, the

purchaser of the former owner's property at a tax sale obtained a collector's deed to the

property and recorded it. The buyer subsequently filed an action to quiet title. The circuit court ruled that the collector's deed on the property was void because the owner was not given constitutionally-sufficient notice of her redemption rights. In affirming the circuit court's decision, the Supreme Court noted that, as here, the operative statute (section 140.405) provided that notices of redemption be sent by certified mail. !d. at 50. In that case, as here, the purchaser attempted such notice on

two occasions, and the owner ignored the delivery notifications. !d. at 49. Citing the United States Supreme Court's decision in Jones
v.

Flowers,

547 U.S. 220, 126 S.Ct.

1708, 164 L.Ed.2d 415 (2006), the court held that, notwithstanding the provisions of the statute, vvhen certified mail is returned unclaimed, due process requires that additional reasonable steps be taken to notify a property owner that his or her property rights are about to be adversely affected. !d. at 53. 1

The Court acknowledges plaintiffs argument that unlawful detainer actions are summary proceedings, and that the "merits of title" are not generally a subject of inquiry; however, plaintiff must nevertheless establish a legal right to possession in order to prevail. Evaluating this requirement in light of the record before the Court, and the Supreme Court's holding in

Schlereth,

causes the Court to determine that plaintiff's

motion for summary judgment should be, and the same is hereby, DENIED. IT IS SO ORDERED.

Date

Zo tu

Plaintiff argues that

Schlereth does not compel this result because there is no "state action" 6-7. This argument fails to recognize that in Schlereth, the

involved here that would implicate due process concems. Plaintiffs Supplemental Reply in Support of Plaintiffs Motion for Summary Judgment, pp. was likewise not a government entity. buyer of the property at issue and the party obligated to provide notice of the owner's redemption rights

Copies faxed/mailed/e-mailed this Eric Lemp Mark Willins

i:J.

day of June, 2010 to:

e,

Division 6