Carmen E. Wood v. Bank of America, N.A.

Springfield, Missouri civil litigation lawyer represented Plaintiff, who sued Defendant on a breach of contract theory.

N.A. ("BANA”) and release of a lis pendens. In two points on appeal, Wood argues that the trial

court erred in granting BANA's motion for summary judgment on: (1) Wood's claim for breach

of fiduciary duty in that this was a question of fact and not a question of law; and (2) Wood's claim

for exemplary or punitive damages because this was a question of fact and not law. Finding no

merit to Wood's points, we affirm the trial court's judgment.

Facts and Procedural History



In 2001, Wood, and her then-husband, Donald Ready ("Ready”), purchased real property

located at 2533 North Fort Avenue, Springfield, Missouri (the "Property”). They took out two

loans from BANA secured by the Property. Thereafter, they transferred their individual interests

in the Property to the Donald J. Ready and Carmen E. Ready Revocable Living Trust.

Wood and Ready divorced in 2014. A "Judgment and Decree of Dissolution of Marriage”

provided that the Property was to be "placed on the market and must be sold at fair market value

or an amount agreeable by the parties.” If the Property was not sold within twelve months from

the judgment, then it was to be auctioned. Ready was allowed to occupy the home until it was

sold, and was to be responsible for payment of all bills associated with the home, including

maintaining insurance on the home. The Property was neither sold nor auctioned, and the joint

revocable trust continued to hold title.



In July 2015, Ready obtained a $50,000 line of credit from BANA to refinance the existing

residential loan, thus eliminating Wood's personal liability for the 2001 loans ("2015 Loan”).

While Wood did not sign a promissory note securing the loan, she and Ready did sign a Deed of

Trust encumbering the Property as security for repayment of the 2015 Loan.



Ready later defaulted on the 2015 Loan. On October 3, 2018, BANA appointed Millsap

& Singer, P.C., as Successor Trustee under the Deed of Trust. On May 15, 2019, Millsap & Singer

served Wood and Ready with a Notice of Trustee's Sale scheduling a foreclosure sale on the

Property for June 11, 2019.

On June 5, 2019, Wood filed a two-count petition against BANA and Millsap & Singer to

prevent the foreclosure sale. Wood amended the petition on June 19, 2019, asserting in Count I a

breach of fiduciary duties, and in Count II a claim for recovery of exemplary or punitive damages.

Ready was not a party to Wood's lawsuit. The foreclosure sale was cancelled after Wood filed

suit. Ready remains in default, but the sale has not gone forward. At some point, Wood filed a lis

pendens against the Property.



Both BANA and Millsap & Singer filed motions to dismiss. After hearing argument, the

trial court denied the motions finding:



AFTER CONSIDERATION, DFTS' MOTIONS TO DISMISS PLT'S PETITION

MAY RAISE ISSUES OUTSIDE THE SCOPE OF PLT'S PETITION ITSELF

AND MAY BETTER BE PRESENTED THROUGH MOTIONS FOR

SUMMARY JUDGMENT. THEREFORE, DFTS' MOTIONS TO DISMISS ARE

OVERRULED. DFTS GIVEN 30 DAYS TO FILE AN ANSWER.



On May 5, 2021, BANA filed a "Motion for Summary Judgment and Suggestions in

Support” and "Statement of Uncontroverted Material Facts” asserting that the undisputed facts

were that Ready had defaulted on the promissory note, that Wood was bound by the Deed of Trust,

and that the Deed of Trust authorized BANA and Millsap & Singer to foreclose.

Wood responded with a "Motion for Partial Summary Judgment” contending that:

(1) Millsap & Singer breached a fiduciary duty to her in seeking to foreclose; and (2) BANA could

not direct a foreclosure against her interest in the Property because she was not indebted to BANA.

Millsap & Singer filed a response to Wood's motion.



After hearing oral argument on the motions for summary judgment, the trial court found

"that each statement of material fact cited in support of BANA's Motion is uncontroverted, that

no issues of material fact exist, and that BANA has established that it is entitled to judgment as a

matter of law.” The trial court granted BANA's Motion for Summary Judgment and dismissed

Wood's claims against BANA with prejudice. The trial court overruled Wood's Motion for Partial

Summary Judgment. The trial court also found that there "is no just reason for delay in granting

BANA's Motion while [Wood]'s litigation against [Millsap & Singer continues[.]”

Affirmed on appeal.