Joplin, MO Business Blog

Case Review - Mortgage Co. Must Give Homeowner Deed of Release or Face Statutory Damages

When a homeowner pays off the mortgage on his residence the mortgage company or financial institution must release the deed of trust and give to the homeowner the deed of release.  In Huber v. Wells Fargo Home Mtg. the homeowner paid off the loan on his residence and Wells Fargo recorded a deed of release.  However, Wells Fargo failed to provide to the homeowner the deed of release.  The homeowner sent a demand letter to Wells Fargo demanding immediate release of the deed of trust and for the deed of release to be delivered to the homeowner within 15 days.  Wells Fargo failed to respond to the letter and the homeowner filed suit against Wells Fargo and Franklin American Mortgage Co., which initially made the loan but then sold it to Wells Fargo.  The trial court granted summary judgment for both defendants because Wells Fargo had recorded the deed of release and, therefore, the homeowner was not entitled to statutory damages.  The homeowner appealed.  The appellate court determined that the homeowner had failed to provide Franklin American with the required notice and it affirmed the summary judgment as to it.  However, Wells Fargo was not so lucky.  The court determined that even though Wells Fargo had complied with the purpose of section 443.130, which is aimed at financial institutions who fail to release the mortgagee's property, in accordance with the ruling the Missouri Supreme Court handed down in Glass v. First National Bank of St. Louis, 191 S.W.3d 662 (Mo. banc 2006), that did not excuse it from providing the homeowner with the deed of release as required by section 443.130.1.  The homeowner was entitled to statutory damages and the appellate court reversed the trial court's ruling as to Wells Fargo.

Source:  Huber v. Wells Fargo Home Mtg., ED88183, (Mo. App. E.D., 03/06/2007)

Case Review- Unemployment Benefits Denied

In Peoples v. ESI Mail Pharmacy Services, Inc., et al., unemployment benefits were denied to Peoples based on reckless negligence.  Peoples had worked for ESI Mail Pharmacy Services, Inc. as a packer.  The pharmacy had problems with Peoples sending incorrect prescriptions to its customers and he was fired.  Peoples filed for unemployment benefits and the pharmacy contested his claim.  Peoples appealed the decision and it eventually was reviewed by the the Missouri Court of Appeals, Eastern District.  The appellate court upheld the denial of benefits on the basis of reckless negligence and stated that under Missouri laws

"misconduct" is defined as:  an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.  Section 288.030.1(24), RSMo. Cum. Supp. 2005.

The court also  found that there was a disregard of standards of behavior in this case.

Source:  Peoples v. ESI Mail Pharmacy Services, Inc., et al., Missouri Court of Appeals, Eastern District, Case number ED87565, February 6, 2007

Prenups for Women

What do you think about first when someone mentions the words "prenup" or "alimony"  (called "maintenance" in Missouri)?  You probably think that the man is wanting the prenup so he doesn't have to pay alimony to the woman in the event of a divorce.  Right?  Well, it is time to rethink this.  Women should start thinking about protecting their assets before they get married or even enter into a living arrangement with a man.  Why?  More and more women are seeing an increase in their income due to owning their own business, working their way up the corporate ladder, etc.  In many cases the woman's income will be more than the man.  Women need to start thinking about protecting their assets just like the men have always done.

You may be thinking that no man will ask for alimony - that it will hurt their "manly" pride.  Wrong, think again.  Men are starting to seek alimony and it just isn't the rich and famous like Nick Lachey or Elizabeth Taylor's ex.  It is the man who stayed home with the children while the woman went off to work; it is the man who works part-time  or who doesn't make as much as the woman and got used to the finer things that her money helped provide.  It could be the man you are planning on marrying or moving in with.

How do you protect your assets?  If you plan ahead you can have a prenuptial agreement or living arrangement agreement prepared by your attorney.  Be prepared to reveal all of your assets to your attorney and to your soon-to-be spouse.  If you don't reveal all of the assets in the prenup those assets will not be part of the agreement and there could possibly be grounds for fraud and setting aside the whole agreement.  If you want to enter into a contract before you live with someone you will need to include whether any or all monies will be combined, how the joint bills are to be paid, how the separate and personal bills will be paid, what will happen to the joint assets should there be a separation or parting of the ways, etc.

What if you are already married but want to protect your assets?  PINK magazine, February/March 2007 issue, has listed four things you can do.  These include:

1. Getting the man back into the workforce before you ask for a divorce or even hint that you are thinking about one.  If he is working and earning money on his own, he should not need as much or any support from you;
2. Keep all assets that you inherit in your name alone and do not co-mingle them with your spouse.  This means you do not put any monies into a joint account with your husband, you do not put his name on any real property, stocks, etc. Do not let your parents or other persons give assets to you and your spouse.  Have them just give it to you.  In other words, keep the assets totally in your control and name. 
3. You should build up a nest egg in a separate account under your control only.  This way should something happen you will have access to money if you need it.
4. You may be able to get your husband to sign a post-nuptial agreement, but don't count on it.  If you ask for one after the marriage you are probably going to be giving up more assets than you would have had you entered into a prenuptial agreement (think along the terms of a divorce settlement on this one.)

Due to tradition a woman may not feel comfortable asking the man in her life to enter into the agreements described above.  Women have come a long way in the work force and have worked hard to build up their assets and to provide for themselves and not have to rely upon the man taking care of them.  Women want to be treated as equals and are equal to men in this area and they should not hesitate to protect their assets just like the men should not hesitate to protect theirs.  Remember - entering into an agreement before the marriage or living arrangement is concluded is the best way to do this.

Source:  PINK, February/March 2007