John Calon v. Bank of America Corporation , 915 F.3d 528 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3263
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John Calon
lllllllllllllllllllllPlaintiff - Appellant
v.
Bank of America, N.A., et al.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 2, 2018
Filed: February 7, 2019
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Before LOKEN, BOWMAN, and SHEPHERD, Circuit Judges.
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LOKEN, Circuit Judge.
John Calon obtained a $20,001 home equity loan from Countrywide Home
Loans in November 2000. Bank of America acquired or took over Countrywide in
early 2008. In December 2014, Calon filed a pro se complaint asserting five causes
of action against Bank of America, N.A. and affiliates (collectively, “Bank of
America”). At the district court’s direction, Calon filed a forty-two page First
Amended Complaint in July 2015, asserting twenty causes of action. The district
court dismissed five counts for failure to state a claim in May 2016. Under the
court’s Amended Scheduling Order, discovery closed October 24, 2016, and Bank of
America filed a timely motion for summary judgment on the remaining fifteen claims
on November 21, 2016. Rather than respond, Calon filed various unsupported
motions. The district court denied those motions, deemed admitted Bank of
America’s Statement of Uncontroverted Material Facts, and granted summary
judgment dismissing all claims. Calon appeals, including in his appeal briefs
numerous fact assertions that are not supported in the summary judgment record
because of his inexcusable disregard of the applicable rules of civil procedure. We
do not consider those assertions, nor do we take as true the fact assertions in Calon’s
unverified First Amended Complaint.1 However, in reviewing de novo the grant of
Bank of America’s unopposed motion for summary judgment, we “must still
determine that the moving party is entitled to judgment as a matter of law on [each]
claim.” Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 807
(8th Cir. 1993). Applying that standard, we conclude that summary judgment was
improperly granted on three claims and otherwise affirm.
Bank of America’s motion for summary judgment, and the district court’s
analysis, divided the fifteen claims into three categories. Most of the claims related
to Bank of America’s practice of imposing lender preferred insurance (“LPI”) on
mortgage borrowers who fail to maintain voluntary insurance on the mortgaged
homes. This practice was the subject of a class action lawsuit filed in the Southern
District of Florida in July 2012 in which Bank of America was a named defendant.
That Court entered final approval of a global settlement that included a broad release
of claims by all class members. Hall v. Bank of America, N.A. et al., No. 1:12-cv-
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Calon’s appeal briefs also allege several injuries that, based on our review of
the record, were neither pleaded, argued, nor factually supported with evidence that
would preclude summary judgment in the district court. Those allegations and
arguments are waived. See, e.g., Menz v. Procter & Gamble Health Care Plan, 520
F.3d 865, 868 (8th Cir. 2008).
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22700, 2014 WL 7184039 (S.D. FL Dec. 17, 2014). Bank of America’s unopposed
statement of material facts established that Calon was a member of the class; he was
mailed a notice of the settlement by the settlement administrator that included a claim
form; the settlement notice was not returned as undeliverable; and Calon did not
object to or request exclusion from the settlement class. Bank of America also noted
that, in his reply to a prior court order, Calon admitted that he used “essentially the
same form, format and information” used in the class action. “The only real
difference,” he stated, “is that Plaintiff changed the Class nature and identification of
the Hall class action [to] an individual’s private action.” Based on these facts, the
district court concluded that the LPI claims in eleven Counts of the First Amended
Complaint predated the effective date of the settlement agreement, July 6, 2015, and
are therefore barred by the doctrine of res judicata.
“[U]nder elementary principles of prior adjudication a judgment in a properly
entertained class action is binding on class members in any subsequent litigation.”
Cooper v. Fed. Res. Bank of Richmond, 467 U.S. 867, 874 (1984). When a class
action ends in a settlement with benefits to the class, a class member with actual
notice is barred from later asserting individual claims that class members released in
the settlement agreement. In re Gen. Am. Life Ins. Sales Prac. Lit., 357 F.3d 800,
802-03 (8th Cir. 2004). A class member to be bound must receive due process; “[t]he
most important element of due process is adequate notice.” Id. at 804. Here, the
record contains ample evidence that Calon received actual notice of the settlement in
Hall. We affirm the dismissal of these eleven claims. We also affirm the dismissal
of two claims based on Bank of America’s failure to honor Calon’s alleged early
payoff rights (Counts XIV and XIX) for the reasons stated by the district court.
The most difficult issue is the grant of summary judgment dismissing three
claims based on allegations in the First Amended Complaint that Calon’s mortgage
loan agreement with Countrywide included an “eEasy Rate Reduction Plan” that gave
Calon as borrower the option to reduce the loan interest rate “from 7.625% to
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approximately 5.25%” in exchange for a $350 fee. The First Amended Complaint
alleged that Calon applied to Countrywide in December 2007 to reduce his interest
rate under this Plan; that Countrywide advised him in early January 2008 that the new
payment arrangement would begin in February; but that Bank of America took over
Countrywide later that month, wrongfully “nullified” this contractual right in August,
refused to arbitrate the issue, and threatened to accelerate the loan to foreclosure if
Calon took the issue to court.
In the motion for summary judgment, Bank of America attached a copy of the
three-page “eEasy Rate Reduction Plan” document. Relying solely on the face of the
document, and Calon’s deposition testimony that the document was not signed by
anyone and was not referenced in the Note or Deed of Trust, Bank of America argued
that these three claims fail as a matter of law because “the alleged contract was not
a signed writing, as required by the Statute of Frauds,” Mo. Rev. Stat. § 432.010.1.
The district court agreed. We do not.
In the district court, Bank of America argued that the “eEasy Rate Reduction
Plan” is an “alleged contract [that] was not a signed writing.” It is true that the Plan
document itself was not signed by Countrywide, the party to be charged. But
Calon’s First Amended Complaint, fairly construed, alleged that the Plan was an
integral part of a financial arrangement that included one or more documents signed
by Countrywide. This brings into play a well-established principle of Missouri law
the district court did not address: “When separate documents are relied on to
establish the existence of an agreement, they must be connected by express reference
to one another or by clear implication established through their respective contents.”
Mayer v. King Cola Mid-Am., Inc., 660 S.W.2d 746, 748 (Mo. App. 1983) (emphasis
added, citation omitted); see Vess Beverages, Inc. v. Paddington Corp., 941 F.2d 651,
654 (8th Cir. 1991) (“Even if only one of the documents is signed, the requirement
is satisfied as long as one document refers to the other, or their contents clearly show
they are related.”).
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Here, the three-page Plan document -- which counsel for Bank of America
dismissively refers to as a “Flier” -- looks like a contract document. The header lists
the date (the same date as the Note and Deed of Trust), “John C. Calon” as the
borrower, the loan number, the property address, and contact information for the
issuing Countrywide branch. The following eight sections explain in detail how
Calon “can reduce the interest rate quickly and easily,” with “no loan closing, no
third-party closing costs or prepaid expenses, no hassle, and no stress.” On their face,
regardless of the absence of express cross references, we think the financing
documents, “by clear implication established through their respective contents,”
reflect an agreement including any obligations created by the eEasy Rate Reduction
Plan that satisfies the statute of frauds. At a minimum, we conclude that Bank of
America, a successor-in-interest which introduced no evidence supporting its
assertion that the Countrywide document was a mere “Flier,” failed to establish that
the statute of frauds bars these three claims as a matter of law on this record. Of
course, we express no view as to the merits of those claims, which are not before us.
This lawsuit has dragged on far too long, through no fault of the district court.
The Amended Scheduling Order deadlines for amending the pleadings, completing
discovery, submitting expert reports, and filing motions for summary judgment are
long passed. Without in any way limiting the district court’s case management
discretion on remand, we conclude the court would not abuse its discretion by
promptly setting the remaining three claims for trial.
The judgment of the district court is reversed in part and the case is remanded
for further proceedings not inconsistent with this opinion.
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