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Wivell v. Wells Fargo Bank, N.A.

United States Court of Appeals, Eighth Circuit

November 19, 2014

Kenneth D. Wivell; Tina M. Wivell, Plaintiffs - Appellants
Wells Fargo Bank, N.A., doing business as Wells Fargo Home Mortgage; Kozeny & McCubbin, L.C., Defendants - Appellees

Submitted October 3, 2014

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Appeal from United States District Court for the Western District of Missouri - Springfield.

For Kenneth D. Wivell, Tina M. Wivell, Plaintiffs - Appellants: Gregory Warren Aleshire, Aleshire & Robb, Springfield, MO; Alicia Anne Campbell, John E. Campbell, Erich Vieth, Campbell Law, Llc, Saint Louis, MO.

For Wells Fargo Bank, N.A., doing business as: Wells Fargo Home Mortgage, Defendant - Appellee: Jennifer A. Donnelli, Bryan & Cave, Kansas City, MO; Eric D. Martin, Jonathan Barton Potts, Litigation Counsel, Bryan & Cave, Saint Louis, MO.

For Kozeny & McCubbin, L.C., Defendant - Appellee: Garry McCubbin, Kozeny & Mccubbin, Saint Louis, MO; Patrick Murphy, Eric B. Wetzel, Kozeny & Mccubbin, Fairway, KS.

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.


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GRUENDER, Circuit Judge.

Kenneth and Tina Wivell (" the Wivells" ) appeal from the district court's denial of their motion to remand and its dismissal on the merits of their claims against Wells Fargo Bank, N.A. (" Wells Fargo" ) and Kozeny & McCubbin, L.C. (" Kozeny" ). After we initially affirmed the district court's judgment, Wivell v. Wells Fargo Bank, N.A., 756 F.3d 609, 620 (8th Cir. 2014), the Wivells moved for rehearing bye the panel and rehearing en banc. The panel granted rehearing, holding in abeyance further proceedings pending the Supreme Court of Missouri's disposition of two appeals that now have been decided. Having received supplemental briefing on these decisions, we now affirm in part and vacate and remand in part. We also vacate our original opinion and substitute this amended opinion in its place.

I. Background

The Wivells purchased a residential property in February 2006 using funds borrowed from Wells Fargo. As part of the borrowing process, the Wivells signed a promissory note secured by a deed of

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trust. The deed of trust contains a no-oral-modifications clause that provides:

Oral agreements or commitments to loan money, extend credit or to forebear from enforcing repayment of debt including promises to extend or renew such debt are not enforceable. To protect you (Borrower(s)) and us (Creditor) from misunderstanding or disappointment, any agreement we reach covering such matters are contained in this writing, which is the complete and exclusive statement of the agreement between us, except as we may later agree in writing to modify it.

Both of the Wivells' signatures appear on the page bearing this notice.

The Wivells allege that the following events occurred after the loan was in place. In January 2009, the Wivells called Wells Fargo to discuss the possibility of a loan modification. A Wells Fargo representative explained that a loan moratorium, distinct from a loan modification, was possible in the event of a default. The Wivells called back in March 2009 regarding the moratorium program and were informed that they must be ninety days past due to obtain a moratorium. A Wells Fargo representative instructed them to stop making payments, and the Wivells followed this advice. After missing payments, the Wivells called Wells Fargo again. A representative now explained that a moratorium program did not exist and suggested that the Wivells instead should seek a loan modification. From April 2009 until June 2010, the Wivells attempted unsuccessfully to reach a loan-modification agreement with Wells Fargo, during which time the Wivells rejected two modification proposals offered by Wells Fargo--one to pay $1,500 per month until the past-due amount was paid in-full and another to pay a one-time $14,000 payment.

On June 12, 2010, Kozeny, the trustee under the deed of trust, notified the Wivells that their property was scheduled for a foreclosure sale on June 30. The Wivells faxed another modification packet to Wells Fargo on June 17, and they called Wells Fargo on June 23 to inquire into the status of this latest modification request. They asked whether this latest modification request " would stop all foreclosure processes and were informed by Wells Fargo that it would." At " various points between April 2010 and June 30, 2010," the Wivells contacted Kozeny and reported " their frustrations and concerns relating to Wells Fargo." Kozeny sold the Wivells' property at a foreclosure sale on June 30, as scheduled. ...

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