US Bank, N.A., As Trustee for the Structured Asset Securities Corporation Mortgage Loan Trust 2006-BC1 v. Roderick E. Smith ( 2015 )


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  •                                          In the
                             Missouri Court of Appeals
                                      Western District
    US BANK, N.A., AS TRUSTEE FOR                 )
    THE STRUCTURED ASSET                          )
    SECURITIES CORPORATION                        )   WD77576
    MORTGAGE LOAN TRUST 2006-                     )
    BC1,                                          )   OPINION FILED: August 11, 2015
                                                  )
                    Respondent,                   )
                                                  )
    v.                                            )
                                                  )
    RODERICK E. SMITH, ET AL.,                    )
                                                  )
                     Appellant.                   )
    
                  Appeal from the Circuit Court of Jackson County, Missouri
                           The Honorable Justine E. Del Muro, Judge
    
         Before Division Four: Alok Ahuja, Chief Judge, Presiding, Gary D. Witt, Judge and
                                Kathleen A. Forsyth, Special Judge
    
    
             Roderick E. Smith ("Smith") appeals the judgment entered by the Circuit Court of
    
    Jackson County in favor of US Bank, N.A., as trustee for the Structured Asset Securities
    
    Corporation Mortgage Loan Trust 2006-BCI ("US Bank"), reforming a deed of trust to
    
    reflect a different legal description of the real property encumbered. Smith brings two
    
    points on appeal. First, Smith argues that the court erred in finding that the attachment of
    an incorrect legal description to the deed of trust was a mutual mistake and that his
    
    refinanced loan encumbered Smith's lot where his home was located. Second, Smith
    
    contends that the court erred in finding that US Bank has standing to bring this action
    
    against him. We affirm the judgment of the trial court, as modified by this opinion.
    
                           FACTS AND PROCEDURAL HISTORY
    
           On August 28, 2003, Smith purchased a lot with a house on it, as well as the
    
    adjoining vacant lot. The lot with the house had a street address of 808 W. 99th Street,
    
    Kansas City, Missouri; the vacant lot had no assigned street address. The full legal
    
    descriptions of each piece of property are as follows:
    
    [Vacant lot]:
          Lot 5, MOUNTAIN SPRINGS, a subdivision in Kansas City, Jackson
          County, Missouri, according to the recorded plat thereof.
    
    [Property on which home is located]:
          ALL that part of Lot 6, MOUNTAIN SPRINGS, a subdivision in Kansas
          City, Jackson County, Missouri, according to the recorded plat thereof,
          described as follows: Beginning at the Southeast corner of Lot 6; thence
          West along the South line thereof, a distance of 180 feet; thence North and
          parallel to the West line of said Lot 6, a distance of 138.5 feet; thence East
          and parallel to the South line of Lot 6, to a point on the Easterly line
          thereof; thence Southeasterly and Southerly along said Easterly line to the
          point of beginning.
    (Brackets and identifying information added for ease of analysis)
    
           Smith financed this purchase with a loan that was secured by both lots. On
    
    December 5, 2005, Smith sought to refinance the loan in the amount of $312,000.
    
           In connection with the refinanced loan, Smith signed a promissory note (the
    
    "Note") payable to the Lender, Finance America LLC ("Finance America"). Smith also
    
    executed a deed of trust ("Deed of Trust") securing repayment of the Note. The Deed of
    
    
                                                 2
    Trust listed the legal description of the property used to secure the Note as "Lot 5,
    
    Mountain Springs, a subdivision in Kansas City, Jackson County, Missouri." This legal
    
    description was the legal description for the vacant lot and did not include the legal
    
    description for the adjoining property, also owned by Smith, where the house was
    
    located. However, the property to be encumbered was listed with the street address of
    
    Smith's house. The Note provided that "the Lender may transfer the Note and that
    
    anyone who takes the Note by transfer and who is entitled to receive payments under the
    
    Note is called the Note Holder."
    
             Finance America endorsed the Note in blank. Two weeks later, it was delivered to
    
    US Bank's custodian, Deutsche Bank National Trust Company ("Deutsche Bank") for
    
    eventual placement into a trust for which US Bank was the trustee.
    
             Seven days after the refinanced loan was closed, a final judgment in the amount of
    
    $76,311.62 was entered by the Circuit Court of Jackson County against Smith in favor of
    
    Southwestern Bell Yellow Pages, which became a judgment lien on all real property
    
    owned by Smith in Jackson County, Missouri. On August 31, 2009, a federal tax lien in
    
    the amount of $52,638.91 was recorded in Jackson County against Smith personally and
    
    also became a lien on all real property owned by Smith in Jackson County. On May 4,
    
    2010, the Missouri Department of Revenue recorded a state tax lien against Smith in the
    
    amount of $7,876.88, resulting in an additional lien against all real property owned by
    
    Smith.
    
             At some point, US Bank discovered that the Deed of Trust contained the legal
    
    description of the vacant parcel of land rather than the lot with the house on it. On
    
                                                 3
    August 2, 2010, US Bank1 filed a petition seeking reformation of the Deed of Trust to
    
    reflect the proper legal description of the lot being encumbered by the loan (Count I),
    
    declaratory judgment regarding the priority of lien-holders (Count II), and quiet title in
    
    Smith's name and a finding that the title to the lot with the house on it was subject to the
    
    Deed of Trust (Count III). The petition named Smith, Southwestern Bell, the IRS and
    
    any other person or entity that claimed an interest in the real estate.2 On April 25, 2012,
    
    the trial court filed a Judgment and Order by Consent finding that the federal tax lien was
    
    subordinate to US Bank's Deed of Trust. On May 1, 2012, it filed a second Judgment and
    
    Order by Consent finding that the Yellow Pages judgment was subordinate to US Bank's
    
    Deed of Trust.
    
             In his answer to the petition, Smith alleged that US Bank was not the holder of the
    
    note and, therefore, had no standing to bring this action. On October 25, 2012, US Bank
    
    filed a motion for partial summary judgment on the sole issue of its standing to bring this
    
             1
               US Bank filed the petition as trustee for the Structured Asset Securities Corporation Mortgage Loan Trust
    # 2006-BC1. This trust holds multiple mortgage loan asset securities that are bundled in groups.
             2
               The John Doe defendants identified in the caption of US Bank's petition were never served by publication
    or otherwise, and no attorney ever entered an appearance on behalf of the John Doe defendants. On April 20, 2012,
    US Bank filed a renewed motion to file a first amended petition to add the Missouri Department of Revenue as a
    defendant lien-holder. The civil docket sheet reflects that the motion was granted on the same date, and that a first
    amended petition was filed on the same date. The first amended judgment deleted reference to the John Doe
    defendants.
             The judgment from which appeal is taken in this case was entered on US Bank's first amended petition.
    Counsel for US Bank confirmed at oral argument that although its motion for leave to file a first amended petition
    had been granted, US Bank thereafter elected not to pursue relief against the Missouri Department of Revenue.
    Consistent with this representation, the record does not indicate that the Missouri Department of Revenue was ever
    served with process, or that an attorney ever entered an appearance on its behalf.
             Technically, the judgment's failure to address a party purportedly added by the first amended petition calls
    into question the finality of the judgment. However, because the newly added party was never served or otherwise
    before the court by way of an attorney's entry of appearance, we exercise our discretion to conclude that the
    judgment resolved all issues as to all parties before the court. Cf. KAS Enterprises, Inc. v. City of St. Louis, 
    121 S.W.3d 262
    , 263-64 (Mo. App. E.D. 2003) (holding that judgment that did not resolve issues in case as to John Doe
    defendants was not final for purposes of appeal where summons had been issued to, and an attorney had entered an
    appearance for, the John Doe defendants.) The better practice to avoid any question of finality would be to reflect in
    an intended final judgment the dismissal without prejudice of pending claims reflected on the record against named
    parties over whom the court has not secured personal jurisdiction.
    
                                                              4
    action. Smith responded to the summary judgment motion by alleging, inter alia, that US
    
    Bank had no standing to file the action because "the deed of trust was assigned to MERS
    
    and the note was assigned to Finance America LLC . . . at no point at the original
    
    execution of the documents related to this contractual transaction were [both] the note
    
    and the deed of trust assigned to either Finance America LLC or to MERS."
    
           The court granted partial summary judgment to US Bank finding that it was, in
    
    fact, the proper holder of the Note and, therefore, had standing to enforce the Note. Once
    
    standing was resolved, the remaining issue was whether the legal description recorded on
    
    the Deed of Trust was the result of a mutual mistake, such that reformation was
    
    appropriate.
    
           On May 4, 2014, a one-day bench trial took place. On May 14, 2014, the court
    
    issued a judgment in which it found a mutuality of mistake as to the legal description
    
    contained in the Deed of Trust. It then ordered that the Deed of Trust be reformed to
    
    reflect that the parcel upon which the house was located was intended by the parties to
    
    secure the Deed of Trust and that US Bank has the first-priority lien against this parcel.
    
    Smith timely appeals. US Bank has a pending motion to dismiss Smith's appeal that we
    
    have taken with the case.
    
                                           ANALYSIS
    
           In Point I, Smith argues that the court's judgment finding a mutuality of mistake
    
    was against the weight of the evidence. In Point II, Smith contends that the court erred in
    
    finding that US Bank had standing to enforce the Note. Because we must first address
    
    the issue of standing, we take the points in reverse order. See Farmer v. Kinder, 89
    
                                                
    5 S.W.3d 447
    , 451 (Mo. banc 2002) (where a party's standing is raised, "courts have a duty
    
    to determine the question of their jurisdiction before reaching substantive issues.")
    
    (citations omitted).
    
                                           POINT II
    
           In Point II, Smith argues that the court erred in finding that US Bank had standing
    
    to bring the initial reformation action against him because there was insufficient proof
    
    that US Bank was the holder of the Note. Smith asserts that the proper note-holder is
    
    Deutsche Bank.
    
                                      Standard of Review
    
           "Because standing is a question of law, review of the issue on appeal is de novo."
    
    CACH, LLC v. Askew, 
    358 S.W.3d 58
    , 61 (Mo. banc 2012) (citation omitted). The trial
    
    court's grant of partial summary judgment finding that US Bank had standing is also
    
    reviewed de novo because the propriety of summary judgment is purely an issue of law.
    
    ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Co., 
    854 S.W.2d 371
    , 376 (Mo.
    
    banc 1993).
    
                                           Discussion
    
           Smith argues that the court erred in finding that US Bank was the holder of the
    
    Note and had standing to bring this cause of action. We disagree.
    
           The trial court found that US Bank had "established that it was the holder of the
    
    Note and Deed of Trust executed by Defendant, and, therefore, Plaintiff has standing to
    
    bring this action and to enforce the Note and Deed of Trust, and therefore, may proceed
    
    with its claims against Defendant."
    
                                                6
           "A party has standing to sue when it has 'a justiciable interest in the subject matter
    
    of the action.'" CACH, 358 S.W.3d at 61 (citations omitted). Standing "requires that a
    
    party seeking relief have a legally cognizable interest in the subject matter and that he has
    
    a threatened or actual injury." Bellistri v. Ocwen Loan Servicing, LLC, 
    284 S.W.3d 619
    ,
    
    622 (Mo. App. E.D. 2009) (citation omitted). In other words, US Bank must have an
    
    "interest" in the property at issue. Id. at 623. To make this determination, we look to the
    
    applicable law regarding which entity has the right to enforce the Note. Since the Note is
    
    a negotiable instrument, Article 3 of the Uniform Commercial Code ("UCC") is invoked.
    
    38 MOPRAC § 6:17 (2014 ed.). "Missouri has adopted the Uniform Commercial Code,
    
    which governs commercial transactions." U.S. Bank Nat'l Assoc. v. Burns, 
    406 S.W.3d 495
    , 497 (Mo. App. E.D. 2013) (citing §§ 400 et seq.).
    
    I. Standing: Ownership and Possession of the Note
    
           "Application of the UCC is straightforward regarding [the] question of who is
    
    entitled to enforce the Note." Id. Section 400.03-301 governs who is entitled to enforce
    
    an instrument:
    
           "Person entitled to enforce" an instrument means (i) the holder of the
           instrument, (ii) a nonholder in possession of the instrument who has the
           rights of a holder, or (iii) a person not in possession of the instrument who
           is entitled to enforce the instrument pursuant to Section 400.3-309 or 400.3-
           418(d). A person may be a person entitled to enforce the instrument even
           though the person is not the owner of the instrument or is in wrongful
           possession of the instrument.
    
           The UCC Comment on this section states that this "definition recognizes that
    
    enforcement is not limited to holders." See MO. ANN. STAT. § 400.3-301 (2015). "It also
    
    includes a person in possession of an instrument that is not a holder . . . [and] any other
    
                                                 7
    person who under applicable law is a successor to the holder or otherwise acquires the
    
    holder's rights." Id.
    
             Here, Smith obtained a loan from Finance America and signed the Note in which
    
    the lender was identified as Finance America. Smith signed loan documents whereby he
    
    agreed that the note could be assigned and he was indebted to the lender and its
    
    successors. Finance America endorsed the Note in blank, making it enforceable by the
    
    bearer or holder of the Note. Because the Note was endorsed in blank, it could be
    
    transferred by delivery and possession.3 § 400.3-205(b). Following the closing of the
    
    loan on December 5, 2005, Deutsche Bank, a trust holding company, received the Note
    
    and the Deed of Trust.
    
    II. US Bank's Standing
    
             In April, 2006, however, Deutsche Bank conveyed the Note to US Bank as the
    
    trustee for deposit into the Structured Asset Securities Corporation Mortgage Loan Trust
    
    2006-BCI (the "Trust").4 Smith's Note was one of many notes that were combined to
    
    create the corpus of the trust. At that point, Deutsche Bank became an agent for the
    
    trustee, US Bank, after Deutsche Bank entered into a custodial agreement whereby it
    
    
    
    
             3
               A special endorsement identifies a person to whom the instrument is payable. § 400.3-205(a). An
    endorsement that is not a special endorsement is a blank endorsement. § 400.3-205(b). A note endorsed in blank is
    "bearer paper." Cons. Pub. Water Supply Dist. No. C-1 v. Farmers Bank, 
    686 S.W.2d 844
    , 855 (Mo. App. E.D.
    1985). "When endorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of
    possession alone until specially endorsed." § 400.3-205(b).
             4
               A trust is not a legal entity capable of suing or being sued. Pauli v. Spicer, 
    445 S.W.3d 667
    , 673 n.4 (Mo.
    App. E.D. 2014). Because the trust is not a legal entity, "[t]he trustee is the legal owner of the trust property, in
    which the beneficiaries have equitable ownership." Thompson v. Koenen, 
    396 S.W.3d 429
    , 435 (Mo. App. W.D.
    2013). Therefore, US Bank as the trustee of the Trust, was the holder of the Note and entitled to enforce it.
    
                                                              8
    agreed to hold the Note for US Bank, who was trustee of the Trust.5 Deutsche Bank
    
    became "a nonholder in possession of the instrument who has the rights of a holder."
    
    § 400.3-301. Through the principles of agency, US Bank became the holder of the Note
    
    because the Note was placed into a trust for which US Bank was the trustee. Deutsche
    
    Bank possessed the Note, now assigned to the Trust, as an agent for US Bank. US Bank
    
    was the legal holder of the Note (on behalf of the trust) even though the Note was still
    
    physically possessed by Deutsche Bank, its agent.
    
             Smith further argues that the Note and the Deed of Trust were not both held by the
    
    same entity and therefore US Bank had to also establish that it held the Deed of Trust.
    
    However, when the holder of a note assigns or transfers the note, the deed of trust is also
    
    transferred. Fed. Nat. Mortg. Ass'n v. Conover, 
    428 S.W.3d 661
    , 669 (App. W.D. 2014)
    
    (citation omitted). "Under Missouri law, because the note and the deed of trust are
    
    inseparable, the holder of a note is entitled to enforce the deed of trust securing that
    
    note." Id. (emphasis added). Here, both the Note and the Deed of Trust were possessed
    
    by Deutsche Bank as of late January, 2006. Both were held by US Bank once the Note
    
    was deposited into the Trust because the Deed of Trust follows the Note. Therefore, US
    
    Bank is the holder of the Deed of Trust as the right to enforce the Deed of Trust securing
    
    the Note passes with the Note. Burns, 406 S.W.3d at 497.
    
    
    
             5
                 Missouri law recognizes that the rules of agency apply to commercial transactions. Section 400.1-103
    states that "[u]nless displaced by the particular provisions of this chapter, the principles of law and equity, including
    . . . principal and agent . . . shall supplement its provisions." As a result, "[e]nforcement can only be by the owner of
    the indebtedness, or by the agent of the owner, in the owner's name." 38 MO PRAC § 6:17 (emphasis added).
    However, "[a]n agent for the holder must prove the agency relationship and that its principal is the lawful holder of
    the note." Id. Here, US Bank produced its agreement with Deutsche Bank whereby Deutsche Bank agreed to
    physically possess the Note on behalf of the note holder, US Bank, acting as trustee for the Trust.
    
                                                               9
           We agree with the trial court that, as a matter of law, US Bank, as trustee of the
    
    Trust, is the holder of the Note and, as holder, it has a legally cognizable interest in the
    
    Note and is able to enforce the Note under the terms of the Deed of Trust. Therefore, US
    
    Bank has standing to bring this reformation action. Point II is denied.
    
                                             POINT I
    
           In Point I, Smith contends that the trial court erred in finding that the legal
    
    description set forth in the Deed of Trust was a mutual mistake and that the loan was to
    
    encumber Smith's lot where his house was located.
    
                                       Standard of Review
    
           "An action for the reformation of a written contract is an equity action."
    
    Lunceford v. Houghtlin, 
    326 S.W.3d 53
    , 61 (Mo. App. W.D. 2010) (citation omitted). As
    
    such, it is an action tried by the court. Id. (citing State ex rel. Leonardi v. Sherry, 
    137 S.W.3d 462
    , 465 (Mo. banc 2004)). We will affirm the judgment of the trial court unless
    
    there is no substantial evidence to support it, it is against the weight of the evidence, or
    
    the trial court erroneously declares or applies the law. Murphy v. Carron, 
    536 S.W.2d 30
    , 32 (Mo. banc 1976). "When determining the sufficiency of the evidence, an appellate
    
    court will accept as true the evidence and inferences from the evidence that are favorable
    
    to the trial court's decree and disregard all contrary evidence." Lunceford, 326 S.W.3d at
    
    61 (citation omitted). "Where, as here, 'a contract is sought to be reformed on the ground
    
    of mutual mistake, such a mistake must appear by clear and convincing evidence.'" Id.
    
    (citation omitted).
    
    
    
                                                10
                                                         Discussion
    
           US Bank argues that the Note, Deed of Trust and accompanying documents signed
    
    by Smith in applying for and closing the loan clearly stated that the loan was to be
    
    secured by the real estate upon which his residence was located. It contends that all of
    
    the documentation reflects this intent and reflects the mutual agreement of the parties.
    
    Smith, however, maintains that he never intended the loan to encumber the real property
    
    upon which his residence is located. His position now and before the trial court was that
    
    he intended the refinanced loan to encumber only the vacant lot and not the lot where his
    
    home is located.
    
           The "accepted rule" is that "[c]ourts of equity will reform written instruments so as
    
    to make them speak the real agreements of the parties in cases in which by mistake or
    
    misprision of the scrivener the writing failed to do so, and it will exercise such power not
    
    only as between the original parties, but as to those claiming under them in privity, such
    
    as personal representatives, heirs, assigns, grantees, judgment creditors, or purchasers
    
    from them with notice of the facts." King v. Riley, 
    498 S.W.2d 564
    , 566 (Mo. 1973)
    
    (citation omitted).          "While reformation is an 'extraordinary equitable remedy,' it is
    
    nevertheless available upon a showing that, due to either fraud6 or mutual mistake, 'the
    
    writing fails to accurately set forth the terms of the actual agreement or fails to
    
    incorporate the true prior intention of the parties.'" Lunceford, 326 S.W.3d at 63 (citing
    
    Elton v. Davis, 
    123 S.W.3d 205
    , 212 (Mo. App. W.D. 2003)). "In seeking reformation, it
    
    must be established that a mistake occurred that caused the contract language to differ
    
           6
               There is no allegation of fraud in this matter.
    
                                                                 11
    from what the parties intended in their agreement."         Lunceford, 326 S.W.3d at 63
    
    (quoting RESTATEMENT (SECOND) OF CONTRACTS § 155 (1981)). "The burden of
    
    proof is upon the party seeking reformation to show by clear, cogent and convincing
    
    evidence: 1) a preexisting agreement between the parties to describe the tract in
    
    accordance with the proposed reformation; 2) the mistake; and 3) the mutuality of the
    
    mistake." Engelland v. LeBeau, 
    680 S.W.2d 435
    , 437 (Mo. App. E.D. 1984) (citation
    
    omitted). The only element in dispute in this action is the third element as to the
    
    mutuality of the mistake.
    
          In order to show a mistake in an instrument, "it is sufficient that the parties agreed
    
    to accomplish a particular object by the instrument to be executed, and that the
    
    instrument as executed is insufficient to effectuate their intention." King, 498 S.W.2d at
    
    566 (citation omitted). "Reformation may be established by circumstantial evidence
    
    provided that the natural and reasonable inferences drawn from it clearly and decidedly
    
    prove the alleged mistake." Everhart v. Westmoreland, 
    898 S.W.2d 634
    , 638 (Mo. App.
    
    W.D. 1995) (citation omitted). "It is enough to show that both parties, at the time of the
    
    contract, shared a misconception about a basic assumption upon which they based their
    
    bargain." Lunceford, 326 S.W.3d at 64 (citation omitted).
    
          Here, the trial court enumerated ten paragraphs of factual findings identifying
    
    multiple documents that Smith signed acknowledging that he was refinancing the
    
    property located at 808 W. 99th Street and that he intended to "occupy the property as his
    
    primary residence." All of the paperwork for the refinance reflects that the loan was
    
    granting a security interest in the property located at 808 W. 99th Street, Kansas City,
    
                                                12
    Missouri. The documents listed the street address of the home as well as the Jackson
    
    County Assessor's Office parcel ID number for the home's lot, Lot 6. Documentation
    
    included: 1) Smith's loan application, 2) the Missouri Collateral Protection Insurance
    
    Disclosure, 3) an Advance Disclosure Cover Letter, 4) an Occupancy Agreement, 5) a
    
    Truth-in-Lending Disclosure Statement, 6) a Notice of Right to Cancel, 7) an Adjustable
    
    Rate Rider, 8) the Deed of Trust, 9) the Lender's Closing Instructions, and 10) the HUD
    
    Settlement Statement. And although the legal description attached to the Deed of Trust
    
    was incorrect, the Deed of Trust itself stated that the property to be encumbered was 808
    
    W. 99th Street, the Assessor's parcel ID number 484401414, which corresponds to Lot 6,
    
    the lot with the home on it. It is undisputed that Smith signed or initialed all of these
    
    documents. Throughout the documents that Smith signed were provisions wherein he
    
    agreed that the real property securing the loan included his primary residence and that he
    
    would continue to maintain his primary residence on the real property secured by the
    
    loan.7 Further, the loan that was being refinanced had previously been secured by Lot 6,
    
    as well as Lot 5.
    
             The trial court noted that Smith "presented no evidence at trial that the vacant lot,
    
    which is what was legally described in a separate attachment to the closing documents,
    
    
             7
                The documents used in the closing of this loan are a textbook case of how NOT to handle any matter
    involving real property. Most of the documents 1) provide a street address for the property in place of a proper legal
    description, 2) state "Legal description sent under separate cover," and 3) use the Jackson County Assessor's parcel
    ID number in place of a legal description. The lack of a full and proper legal description is obvious on the face of
    the documents and should have raised red flags for any lawyer, banker, title company representative, realtor or a
    person with even a modicum of knowledge of real estate transactions. A street address does not amount to a legal
    description of real property, just as the county assessor's parcel ID number has little, if any, meaning as to the proper
    legal description of a parcel of land. Smith is correct in his portrayal of the sloppiness of the title company involved
    in this transaction. However, that sloppiness does not support the conclusion that the deed of trust properly reflected
    the agreement of the parties in this matter.
    
                                                               13
    was in fact the property that was the subject of the loan contemplated by him as borrower
    
    and the lender at the time." Smith did not testify as to what his intentions were when he
    
    signed the Note. Indeed, in a quiet title action, the burden of proof is on the party seeking
    
    quiet title "to prove better title than that of its adversary." McCord v. Gates, 
    159 S.W.3d 369
    , 374 (Mo. App. W.D. 2004) (party claiming title has burden of proof and "must rely
    
    on strength of his own title and not upon the weaknesses in the title of his opponent").
    
           When determining whether a deed of trust should be reformed due to a mutual
    
    mistake, the court is free to weigh evidence from both sides as to the parties' intentions.
    
    "In seeking reformation, it must be established that a mistake occurred that caused the
    
    contract language to differ from what the parties intended in their agreement."
    
    Lunceford, 326 S.W.3d at 63 (emphasis added).
    
           The trial court specifically cited Smith's comments at trial relating to Parkway
    
    Title's fault in creating the situation as "tacit evidence" that Smith considered the
    
    exclusion of the lot on which his home is located from the legal description to be a
    
    mistake.   The trial court found that, "at a minimum, [Smith] is acknowledging the
    
    existence of a mistake and wants Parkway Title to be held responsible for that mistake."
    
    Indeed, in Smith's closing argument to the court, he stated that "there was a mistake
    
    made" but then said that it was not a mutual mistake because the creation of the
    
    documents fell to one entity -- the title company that prepared the closing documents.
    
    "Statements and conduct of the parties that occur after the making of the written
    
    instrument may be admissible to establish the facts concerning the issue of a mutual
    
    
    
                                                 14
    mistake." Id. at 67 (citing Sperrer v. Sperrer, 
    573 S.W.2d 693
    , 695 (Mo. App. E.D.
    
    1978)).
    
             With regard to Smith's argument that it was not a "mutual mistake" but a
    
    "unilateral" one because the drafting error fell to one entity and he had no role in it,
    
    Missouri law is clear that where the parties to the instrument have reached a meeting of
    
    the minds and the instrument intended to express such agreement fails to do so by reason
    
    of the mistake of the draftsman, it is immaterial who employed him.8 Zahner v. Klump,
    
    
    292 S.W.2d 585
    , 588 (Mo. 1956). Further, "[w]here the scrivener acts for both parties
    
    and makes the mistake, then proof of his mistake establishes the mutual mistake, for he
    
    was the agent of both parties." Hoffman v. Kaplan, 
    875 S.W.2d 948
    , 953 (Mo. App. E.D.
    
    1984) (citation omitted) (in preparing deed, scrivener acted as agent for both parties even
    
    though he was grantor's attorney and acted under grantor's directions). In other words,
    
    the error does not become "unilateral," as opposed to "mutual," just because only one
    
    entity drafted the documents and made the drafting error. The requirement for mutuality
    
    of mistake is a "preexisting agreement" between the parties. Engelland, 680 S.W.2d at
    
    437.     Indeed, there was no evidence presented that when Smith entered into this
    
    agreement or when he signed the Note, it was his understanding or intent that the Deed of
    
    Trust would only be secured by the vacant lot. To the contrary, all documentary and
    
    
    
    
             8
               Smith's argument appears to be that he realized at the closing that the title company had the wrong legal
    description for the property that the parties intended to be secured by the Note, but that this was not his fault because
    the lender selected the title company that made the error. However, this contention actually supports the bank's
    argument that the intent of the parties at the time they entered into the transaction was not properly reflected in the
    final documents and, therefore, that reformation is proper.
    
                                                               15
    testimonial evidence reflects a preexisting agreement that the real estate where Smith's
    
    home is located was intended to be the security for the Note by the Deed of Trust.
    
           The court found the "existence of a preexisting agreement between the parties"
    
    and that "a mistake was made when the incorrect legal description of the vacant lot was
    
    affixed to the loan documents referring to the residence at 808 W. 99th Street, Kansas
    
    City, Missouri, as the security interest." It then confirmed the mutuality of mistake such
    
    that reformation was proper.
    
           As stated above, we will affirm the judgment of the trial court unless there is no
    
    substantial evidence to support it, it is against the weight of the evidence, or the trial court
    
    erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. Because US Bank
    
    presented clear, cogent and convincing evidence that the loan was contemplated by both
    
    parties to be secured by the real estate where Smith's home was located we find no error
    
    in the trial court's judgment. Point I is denied.
    
                                          CONCLUSION
    
           The judgment of the trial court is affirmed as modified by this opinion. The
    
    judgment entered by the trial court failed to set forth the full legal description of the
    
    property that the Deed of Trust should be reformed to reflect.              The correct legal
    
    description associated with the Deed of Trust at issue is included herein so that this
    
    judgment describes "with reasonable certainty the real estate affected by the decree" and
    
    is "alone suitable for recording in real estate records." See Sharp v. Crawford, 
    313 S.W.3d 193
    , 201 (Mo. App. S.D. 2010) (citations omitted). Therefore, pursuant to Rule
    
    84.14, we "give such judgment as the court ought to give." The Deed of Trust is hereby
    
                                                  16
    reformed to reflect the correct legal description for the property securing the Note,9 to
    
    wit:
    
            ALL that part of Lot 6, MOUNTAIN SPRINGS, a subdivision in Kansas
            City, Jackson County, Missouri, according to the recorded plat thereof,
            described as follows: Beginning at the Southeast corner of Lot 6; thence
            West along the South line thereof, a distance of 180 feet; thence North and
            parallel to the West line of said Lot 6, a distance of 138.5 feet; thence East
            and parallel to the South line of Lot 6, to a point on the Easterly line
            thereof; thence Southeasterly and Southerly along said Easterly line to the
            point of beginning.
    
            US Bank's motion to dismiss Smith's appeal is denied.10
    
    
    
    
                                                         __________________________________
                                                         Gary D. Witt, Judge
    
    All concur
    
    
    
    
            9
                Counsel for US Bank acknowledged at oral argument that only the lot with the house was to be security
    for the Note and that the vacant lot was not to be included in the reformed Deed of Trust.
              10
                 Despite briefing deficiencies as enumerated by US Bank in its motion to dismiss this appeal, we were
    able to discern Smith's arguments and elected to review the points ex gratia.
    
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