dissenting.
I respectfully dissent. In doing so, I agree with that portion of the majority opinion which concludes that under the standard of review required by ITT Commercial Finance Corp. v. MidAmerica Marine Supply Corp., 854 S.W.2d 371 (Mo.1993), a genuine issue of fact was presented concerning whether there existed a “customary time” for foreclosure sales in Dunklin County. As I understand the majority opinion, however, it concludes that when no specific time is contained in the notice, a sale conducted at a time different than the “customary time” is not invalid unless the owner pleads and proves that the trustee did so to limit the number of potential bidders or for some other ulterior purpose, that the property would have brought a higher price had the sale been conducted at the “customary time,” or that other bidders were excluded by reason of the timing of the sale. Proof of those matters, however, may not be available. For instance, a debtor may not be able to determine the identity or existence of those who would have participated had the sale been conducted at the customary time or how much the property would have brought if other bidders had been present.
Section 443.327.1 authorizes a foreclosure sale between the hours of 9:00 a.m. and 5:00 p.m., and in doing so recognizes that any time within those limits would be “commercially reasonable.” It then provides that “[i]f no time is stated in a notice of sale, then the sale shall be held at the time customary for such sales in the county.” I construe this statute to mean that where, as here, no specific hour for the sale is contained in the notice, it must be conducted at the customary time.
In the instant ease, it is undisputed that the sale commenced before what may have been the customary time. The majority opinion emphasizes that the variance between the timing of the actual sale and what may have been the customary time was slight. In my opinion it is significant, however, that the sale was both commenced and completed prior to 10:00 a.m.
As noted by the majority, it is the duty of the trustee to conduct the sale in a manner which is most beneficial to the debtor, which includes obtaining the best possible price. In keeping with that, one of the purposes of a foreclosure sale notice is to apprise the public of the time of the sale. Graham v. Oliver, 659 S.W.2d 601, 604 (Mo.App.S.D.1983). Permitting a sale at some time other than the customary time, where no time is speci*360fied in the notice, does little to foster that purpose but instead would invite suggestions of collusion in the timing of a sale and would detract from, rather than promote, confidence in the handling of foreclosure sales.
Judah v. Pitts, 62 S.W.2d 716, cited by the majority opinion, also seems to indicate that if there is a customary hour for such sales, the sale should be conducted at that time. In approving a sale where the notice listed only the date of the sale without specifying any time, the court acknowledged that there was no evidence indicating either that potential bidders were misled or prevented from being present at the sale “or that the sale was not made at the usual hour for such sales as established by custom in that county.” Id. at 719.
In the instant case, this court has concluded that there is a genuine issue of fact as to whether the customary time for foreclosure sales in Dunklin County was 10:00 a.m. Based on my interpretation of § 443.327.1 and Judah, I disagree with the conclusion of the majority that, even if that were true, Defendants would not be entitled to relief.
Based on the above, I believe the trial court erred in sustaining Plaintiffs’ motion for summary judgment.