In the
Missouri Court of Appeals
Western District
JILLIAN JOHNSON,
WD78179
Appellant, OPINION FILED:
v.
SEPTEMBER 22, 2015
NATIONSTAR MORTGAGE, LLC., et al.
Repondents.
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable James Dale Youngs, Judge
Before Division Three: Karen King Mitchell, P.J., Lisa White Hardwick, and Anthony Rex
Gabbert, JJ.
Jillian Johnson appeals the trial court’s grant of summary judgment in favor of Nationstar
Mortgage, LLC (“Nationstar”) and U.S. Bank, National Association, as Trustee for the holders of
the CSFB Mortgage Securities Corp., Adjustable Rate Mortgage Trust 2005-8, Adjustable Rate
Mortgage-Backed Pass-Through Certificates, Series 2005-8 (“U.S. Bank”) (collectively,
“Respondents”). Johnson’s amended petition sought declaratory judgment quieting title to the
property legally described as 3217 Charlotte Street in Kansas City, Missouri. Respondents filed
a motion for summary judgment and the trial court granted their motion.
On appeal, Johnson asserts that the trial court erred in sustaining Respondents’ summary
judgment motion because there were substantial disputes of material fact on the issue of the
1
proper party to the Note and Deed of Trust signed by Johnson and the security interest in her
home. Johnson maintains that a trial on the merits is necessary to determine those disputed facts
and the actual party in interest to the security in her home. We affirm.
Factual Background
On May 23, 2005, Jillian Johnson obtained a mortgage loan in the amount of $140,400.00
from America’s Wholesale Lender, as evidenced by a promissory note (“Note”). The Note was
executed in favor of “America’s Wholesale Lender” and was subsequently endorsed in blank by
“Countrywide Home Loans, Inc., a New York Corporation Doing Business as America’s
Wholesale Lender, by David A. Spector, Managing Director” (“Countrywide” or “Countrywide
d/b/a America’s Wholesale Lender”). The Note was secured by a Deed of Trust (“Deed”) on the
property, which Johnson executed in favor of America’s Wholesale Lender on the same day. In
1996 and 2010, Countrywide registered “America’s Wholesale Lender” as its fictitious trade
name with the Missouri Secretary of State.
Possession of the Note and Deed was transferred to various parties through a series of
transactions occurring between 2005 and 2013. The instruments—originally held by
Countrywide d/b/a America’s Wholesale Lender—eventually came into the possession of
Respondents. Similarly, the servicing rights to the loan were transferred between several parties
over this time period, ultimately coming into Respondents’ possession.1 Johnson defaulted on
her loan in late 2012 and Respondent Nationstar instituted foreclosure proceedings against her.
1
The beneficial interest in Johnson’s mortgage loan was transferred from Countrywide to DLJ Mortgage
Capital, Inc. to CSFB Mortgage Securities Corp., Adjustable Rate Mortgage Trust 2005-8, Adjustable Rate
Mortgage-Backed Pass-Through Certificates, Series 2005-8, with U.S. Bank as trustee. Pursuant to the various
servicing agreements, the servicer is to hold the notes and is tasked with the enforcement thereof. Bank of America
was the holder of the Note when it appointed Millsap & Singer, P.C. as successor trustee, and Nationstar was the
holder of the Note at the time of foreclosure.
2
On October 21, 2013, Nationstar sold the property secured by the Deed for $97,859.03, leaving
an amount due and owing of $49,434.95.
On November 20, 2013, Johnson filed suit for declaratory judgment quieting title to the
property against a number of other parties, including Respondents. Johnson argued that
Respondents did not have the authority to foreclose upon her home because they did not take
lawful possession of the Note and Deed from the purported lender, an entity named “America’s
Wholesale Lender, Inc.” Johnson’s argument was premised upon the fact that the “Lender”
designated in the security instruments was identified by varying names, which Johnson argued
created an ambiguity as to the identity of the original holder of the Note. Accordingly, she
argued that Countrywide d/b/a America’s Wholesale Lender was not the original holder of the
security interest in her home and it could not legally transfer possession of a security interest to
Respondents. Instead, Johnson argued that another company, America’s Wholesale Lender, Inc.,
was the actual party to the Note and Deed and only this entity could legally assign a security
interest to Respondents.
Respondents filed a motion for summary judgment, arguing that they were entitled to
foreclose upon Johnson’s property because they took lawful possession of the Note and Deed
through a valid chain of transfers originating with the unambiguous “Lender” identified therein:
Countrywide d/b/a America’s Wholesale Lender. The trial court granted Respondents’ motion,
finding there to be no ambiguity regarding the identity of the original “Lender” in the Note and
Deed. The court determined that the language used within the four corners of the Note, as
viewed in conjunction with all non-disputed material facts, expressed no doubt that Countrywide
was the actual party to the Note and not America’s Wholesale Lender, Inc. Thus, the trial court
held that Respondents took lawful possession of the Note and Deed and had the authority to
3
foreclose upon Johnson’s home under the terms of the Note. The trial court also found that
Nationstar was entitled to its fair and reasonable attorney’s fees in the amount of $12,973.50
incurred in pursuit of the action.
Standard of Review
We review the trial court's grant of summary judgment de novo. ITT Commercial Fin.
Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We affirm a
grant of summary judgment only if the movant is entitled to judgment as a matter of law and no
genuine issues of material fact exist. Id. at 377. Where the movant is a defending party, the
movant may establish a right to summary judgment by showing
(1) facts that negate any one of the claimant's elements facts, (2) that the non-movant,
after an adequate period of discovery, has not been able to produce, and will not be able
to produce, evidence sufficient to allow the trier of fact to find the existence of any one of
the claimant's elements, or (3) that there is no genuine dispute as to the existence of each
of the facts necessary to support the movant's properly-pleaded affirmative defense.
Id. at 381. We review the record in the light most favorable to the party against whom judgment
was entered, according her the benefit of all reasonable inferences that may be drawn from the
record. Id. at 376.
Analysis
In her sole point on appeal, Johnson argues that the trial court erred in finding there to be
no ambiguity regarding the identity of the actual party to her Note. Specifically, she contends
that the Note’s reference to “America’s Wholesale Lender, a Corporation organized and existing
under the laws of New York” identifies the “Lender” (and, therefore, the original holder of the
Note) as an entity named “America’s Wholesale Lender, Inc.” and not “America’s Wholesale
Lender” (or, more precisely, not “Countrywide Home Loans, Inc.,” an entity using the fictitious
trade name of “America’s Wholesale Lender”). We disagree and find the trial court’s
conclusions to be correct in light of all non-disputed material facts.
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The main question in this case is whether the 2005 Note and Deed executed by Johnson
conveyed a valid security interest in the Charlotte Street property to Countrywide d/b/a
America’s Wholesale Lender, thereby making Countrywide the original holder of these
instruments. If Countrywide was the original, valid holder of these instruments, it had legal
authority to pass lawful title to subsequent holders, including Respondents.
To answer this question, we must first determine who the original parties intended to be
the holder of the instruments “by looking at the words of the contract and giving those words
their plain, ordinary, and usual meaning.” Ethridge v. TierOne Bank, 226 S.W.3d 127, 131 (Mo.
banc 2007). We determine this intent based upon the contract language alone unless its terms are
ambiguous. Id. We must also construe the Note and Deed together because, under Missouri law,
“the note and deed of trust are inseparable[.]” Fed. Nat. Mortg. Ass'n v. Conover, 428 S.W.3d
661, 669 (Mo. App. W.D. 2014). Thus, where the parties to a note “contemporaneously execute
another written contract, such as a deed of trust, which is connected with the note by direct
reference or by necessary implication, the two instruments should be considered together as the
entire contract.” Id. at 667 (internal quotation omitted).
Here, the Note executed by Johnson on May 23, 2005 explicitly defines “Lender” as
America’s Wholesale Lender. “America’s Wholesale Lender” is a fictitious trade name of
Countrywide, as evidenced by its 1996 and 2010 filings with the Missouri Secretary of State.
The Note was subsequently endorsed in blank by “Countrywide Home Loans, Inc., a New York
Corporation Doing Business as America’s Wholesale Lender.” The Deed executed by Johnson
on the same day explicitly defines “Lender” as “America’s Wholesale Lender . . . a corporation
organized and existing under the laws of New York,” and the Deed’s record of filing defines
“Grantee” as America’s Wholesale Lender. Although the titles used to denote the holders of
5
these instruments are not identical, we do not find that this creates an ambiguity when we
construe the Note and Deed together, along with all undisputed material facts.
I. The Note is Not Ambiguous
First, we find that the plain language of the Note and accompanying endorsement-in-
blank unambiguously identifies America’s Wholesale Lender (or, alternatively, Countrywide
d/b/a America’s Wholesale Lender) as the valid and authorized original holder of the Note.
Accordingly, Countrywide was lawfully entitled to negotiate the Note to Respondents by transfer
of possession.
Under Missouri law, Respondents are entitled to enforce the Note as a negotiable
instrument if they are the holders of the instrument. See RSMo § 400.3–301 (defining “person
entitled to enforce”); RSMo § 400.3-104(a)-(b) (defining “negotiable instrument” and
“instrument”).2 A “holder” means the person in possession of the instrument if the instrument is
payable to bearer. RSMo § 400.1–201(20). An instrument is “payable to bearer” if it does not
state a payee. RSMo § 400.3-109(a)(2). The holder of an instrument may be identified in any
way and their identity is determined by the intent of the issuer of the instrument. RSMo § 400.3-
110(a), (c).
Negotiation of an instrument “requires transfer of possession of the instrument and its
endorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer
of possession alone.” RSMo § 400.3–201(b). An “endorsement” is a signature made on an
instrument for the purpose of negotiating it. RSMo § 400.3–204(a)(i). “If the holder of an
instrument endorses it ‘in blank,’ that is, does not specially endorse it to an identified person,
2
“To be a negotiable instrument, the writing must: (1) be signed by the obligor; (2) contain an
unconditional promise to pay a fixed amount of money; (3) contain no other promise, order, or obligation; (4) be
payable on demand or at a definite time; and (5) be payable to order or bearer.” Fed. Nat. Mortg. Ass'n v. Conover,
428 S.W.3d 661, 668 (Mo. App. W.D. 2014) (citing RSMo §§ 400.3–401; 400.3–104(a)(1)–(3)).
6
then the instrument ‘becomes payable to bearer and may be negotiated by transfer of possession
alone until specially endorsed.’” Fed. Nat. Mortg. Ass'n v. Conover, 428 S.W.3d 661, 668 (Mo.
App. W.D. 2014) (citing RSMo § 400.3-205(b)). An instrument may be endorsed (i.e., signed)
by its holder or an authorized agent or representative of the holder. See generally RSMo §
400.3-402 (signature by representative). A signature may be made “by the use of any name,
including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a
person with present intention to authenticate a writing.” RSMo § 400.3-401(b)(ii). The holder
of the instrument is entitled to enforce the instrument. RSMo § 400.3–301(i).
The Note signed by Johnson in 2005 unambiguously identifies the initial holder as
“America’s Wholesale Lender,” which Respondents have shown to be a registered trade name of
Countrywide Home Loans, Inc. Nothing in the Note indicates that Johnson intended “America’s
Wholesale Lender, Inc.” to be the holder rather than “America’s Wholesale Lender” when she
issued it in 2005. An authorized representative of Countryside subsequently endorsed the Note
in blank as “Countrywide Home Loans, Inc., doing business as America’s Wholesale Lender.”
Even assuming, arguendo, that the plain language of the Note expressed some ambiguity as to
the identity of the initial holder, it would be impossible for us to find that Johnson intended
“America’s Wholesale Lender, Inc.” to be its original holder given that no such entity existed
when the Note was issued in 2005. The record before us shows that an entity bearing that name
was not registered with the New York Secretary of State until December 16, 2008, and no such
fictitious name has ever been registered with the Missouri Secretary of State. Because the record
before us reflects no indication that Johnson intended the original holder of her Note to be
someone other than Countrywide d/b/a America’s Wholesale Lender, and because it reflects no
indication that the Note was invalidly endorsed by its holder, we find that Countrywide was
7
lawfully entitled to negotiate the Note by transfer of possession and no disputed material facts
remain regarding this issue.3
It is undisputed that Nationstar took possession of the Note via a series of valid transfers
from preceding holders beginning with Countrywide. Johnson offers no evidence to support her
contention that there are remaining issues of material fact concerning the proper party to the
Note, either when it was issued in 2005 or when Respondent Nationstar foreclosed upon her loan
in 2013. Because there is no genuine issue of material fact as to the original holder of the Note,
nor as to the authenticity of its endorsement-in-blank or its subsequent negotiation, we affirm the
trial court’s grant of summary judgment in favor of Respondents.
II. The Deed is Not Ambiguous
As in the Note, we find no ambiguity in the Deed that would invalidate Countrywide’s
original possession and subsequent transfer to Respondents. The plain language of the Deed
leaves no genuine issue of material fact in dispute as to the identity of the “Lender” referenced in
the Deed, despite Johnson’s repeated contention that there is some ambiguity as to the original
deed holder’s identity. Further, even if we were to find some possible ambiguity in the Deed
regarding the original holder’s identity, we find that any such ambiguity is clarified when we
construe the Deed and Note together.
3
We also note that, in light of our conclusion that Countrywide Home Loans, Inc. d/b/a America’s
Wholesale Lender was the valid holder of the Note, we must also conclude that Countrywide was the valid holder of
the Deed securing it. Under Missouri law, “[a] deed of trust securing a negotiable note passes with it,” and a “party
entitled to enforce a note is also entitled to enforce the deed of trust securing that note.” U.S. Bank Nat. Ass'n v.
Burns, 406 S.W.3d 495, 497 (Mo. App. E.D. 2013) (internal citations omitted) (internal quotations omitted). See
also Fed. Nat. Mortg. Ass'n v. Conover, 428 S.W.3d 661, 669 (Mo. App. W.D. 2014) (“Under Missouri law, because
the note and deed of trust are inseparable, the holder of a note is entitled to enforce the deed of trust securing that
note.”). As our Supreme Court has noted, it therefore follows that “the assignee of a secured promissory note
becomes, by that fact alone, the beneficiary of the deed of trust.” Wells Fargo Bank, N.A. v. Smith, 392 S.W.3d 446,
463 n. 12 (Mo. banc 2013). Thus, because Respondents have demonstrated they were the valid assignees of the
Note, by operation of law, Respondents also proved that they were the assignees of the accompanying Deed.
8
“Generally, a mortgage loan consists of a promissory note and security instrument,
usually a mortgage or a deed of trust, which secures payment on the note by giving the lender the
ability to foreclose on the property.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619,
623 (Mo. App. E.D. 2009). “A deed of trust pledges land to secure a debt and entitles its holder
to foreclose on property under certain circumstances.” Richard v. Wells Fargo Bank, N.A., 418
S.W.3d 468, 473 (Mo. App. E.D. 2013) (internal citations omitted) (internal quotations omitted).
“[W]here the parties to a note contemporaneously execute another written contract, such as a
deed of trust, which is connected with the note by direct reference or by necessary implication,
the two instruments should be considered together as the entire contract.” Fed. Nat. Mortg. Ass'n
v. Conover, 428 S.W.3d 661, 667 (Mo. App. W.D. 2014) (internal citations omitted) (internal
quotations omitted).4 A contract such as a deed of trust “is not ambiguous merely because the
parties disagree as to its construction.” Ethridge v. TierOne Bank, 226 S.W.3d 127, 131 (Mo.
banc 2007) (internal citations omitted) (internal quotations omitted). Instead, it is only
ambiguous if its terms “are susceptible to honest and fair differences[,]” such as “when there is
duplicity, indistinctness, or uncertainty in the meaning of the language.” Id.
Here, the record indicates that Johnson executed the Deed and Note on the same day.
The first page of the Deed directs that it be returned to “Countrywide Home Loans, Inc. MS SV-
79 Document Processing” after being recorded, while the second page defines “Lender” as
“America’s Wholesale Lender . . . a Corporation organized and existing under the laws of New
York.” The first two pages and each page thereafter were initialed by Johnson. The Deed’s
certification of filing with the Jackson County Recorder of Deeds (filed on May 31, 2005)
4
See also Richard v. Wells Fargo Bank, N.A., 418 S.W.3d 468, 473 (Mo. App. E.D. 2013) (“A note and
mortgage, or deed of trust, given to secure it, both executed at one time, . . . must be construed together. . . . By
construing these documents together, courts can ascertain the parties' intentions.”) (internal quotations omitted)
(internal citations omitted).
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defines “Grantee” as America’s Wholesale Lender and “Grantor” as Jillian Johnson. Nowhere
does the Deed or its certification of filing refer to “America’s Wholesale Lender, Inc.” or
otherwise indicate that some other entity is also a lender or grantee. Johnson contends that the
Deed is ambiguous because it identifies the lender/grantee by a marginally different name than is
used in the endorsement-in-blank on the Note. Johnson’s contention is unavailing because when
the Note and the Deed are construed together, the Deed is clear and unambiguous.
First, both the Note and Deed clearly define “Lender” as America’s Wholesale Lender.
Second, both instruments reference Countrywide as a party to the agreement: in the Note, via the
endorsement-in-blank to Countrywide d/b/a America’s Wholesale Lender; in the Deed, via
reference to Countrywide’s Document Processing address. Third, the mailing addresses used for
America’s Wholesale Lender in the Note and in the Deed are identical.5 Finally, the
Registrations of Fictitious Name that Countrywide made with the Missouri Secretary of State in
1996 and 2010 clearly demonstrate public notice of the relationship between America’s
Wholesale Lender and Countrywide, thereby minimizing any latent ambiguity regarding the
legal status of “America’s Wholesale Lender.”6 Based upon the foregoing facts, we conclude
that the Deed and Note clearly and unambiguously identify Countrywide d/b/a America’s
Wholesale Lender as a party to the security instruments. The Deed’s explicit definitions of
“Grantee” and “Lender” are not open to different constructions and cannot reasonably be
5
America’s Wholesale Lender’s address is listed in the Note as “P.O. Box 660694, Dallas, TX 75266-
0694”; America’s Wholesale Lender’s address is listed in the Deed as “P.O. Box 660694, Dallas, TX 75266-0694.”
Countrywide’s address in 2010 Registration of Fictitious Name is listed as “4500 Park Granada, Calabasas, CA
91302”; America’s Wholesale Lender’s address in certification of filing Deed is listed as “4500 Park Granada,
Calabasas, CA 91302”).
6
Both the 1996 and 2010 Registrations state that the name registered is “America’s Wholesale Lender” and
clearly list Countrywide as the fictitious name owner.
10
construed to mean that “America’s Wholesale Lender, Inc.” was a lender or grantee under the
Deed.7
Even upon viewing the record in the light most favorable to Johnson and according her
the benefit of all reasonable inferences from the record, ITT Commercial Fin. Corp. v. Mid-Am.
Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993), we find her contention—that the
inclusion of the lender’s legal status (“a Corporation organized and existing under the laws of
New York”) converts “America’s Wholesale Lender” into “America’s Wholesale Lender,
Inc.”—to be simply without merit and she has provided no evidence or compelling authority that
would allow us to find otherwise. Point denied.
Conclusion
On the record before us viewed in the light most favorable to Johnson, we find that
Johnson has failed to prove the existence of material facts in dispute on the issue of the proper
party to the Note and Deed of Trust signed by Johnson and the security interest in her home. The
circuit court did not err in granting summary judgment to Respondents. We affirm the circuit
court’s judgment.
Anthony Rex Gabbert, Judge
All concur.
7
As we also note above, such a construction would be doubly unreasonable given that no entity named
“America’s Wholesale Lender, Inc.” appears to have existed when the Deed was prepared and executed in 2005. An
entity bearing that name was not registered with the New York Secretary of State until December 16, 2008 and has
never been registered with the Missouri Secretary of State.
11