CitiMortgage, Inc. v. Equity Bank, N.A.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-1312
___________________________
CitiMortgage, Inc.
Plaintiff - Appellant
v.
Equity Bank, N.A.
Defendant - Appellee
___________________________
No. 18-1313
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CitiMortgage, Inc.
Plaintiff - Cross Appellee
v.
Equity Bank, N.A.
Defendant - Cross Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 17, 2019
Filed: November 6, 2019

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Before LOKEN, GRASZ, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
This appeal involves a dispute over twelve residential-mortgage loans that
CitiMortgage, Inc. purchased from Equity Bank, N.A. After discovering problems
with the loans, CitiMortgage demanded that Equity repurchase them and then sued
when Equity refused. A magistrate judge,1 acting by consent of the parties, ruled
that Equity’s duty to repurchase was limited to the six loans that had not gone
through foreclosure. We affirm.
I.
Over the years, CitiMortgage purchased hundreds of residential-mortgage
loans from Equity. Rather than negotiate a new deal each time, the parties entered
into one overarching contract (the “Agreement”). Generally speaking, the
Agreement placed the risk of loss on Equity by requiring it to abide by a long list of
representations and warranties, granting CitiMortgage the “sole and exclusive
discretion” to identify defects in the loans, and giving CitiMortgage considerable
rights if it did. In fact, the Agreement made clear that CitiMortgage had no
obligation to review the loans, either at the time of purchase or at any point
thereafter, and that its “review of, or failure to review, all or any portion of the Loan
documentation [would] not affect” its rights.
1The Honorable Shirley Padmore Mensah, United States Magistrate Judge for
the Eastern District of Missouri, to whom this case was referred for final disposition
under 28 U.S.C. § 636(c).

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For the twelve loans at issue here, CitiMortgage notified Equity of the defects
in writing. It informed Equity that it needed to take action under the Agreement’s
“cure-or-repurchase” provision, which obligated Equity to
correct or cure [the] defect within the time prescribed by
[CitiMortgage] to the full and complete satisfaction of [CitiMortgage].
If, after receiving . . . notice from [CitiMortgage], [Equity] [wa]s
unable to correct or cure such defect within the prescribed time, [Equity
had to], at [CitiMortgage’s] sole discretion, either (i) repurchase such
defective Loan from [CitiMortgage] at the price required by
[CitiMortgage] (“Repurchase Price”) or (ii) agree to such other
remedies (including but not limited to additional indemnification and/or
refund of a portion of the Loan purchase price) as [CitiMortgage] . . .
deem[ed] appropriate.
By the time CitiMortgage demanded that Equity buy back six of the loans, the
mortgages securing them had already been through foreclosure.
When Equity refused to act, CitiMortgage sued. Both sides requested
summary judgment, and the magistrate judge analyzed the loans differently based
on whether foreclosure had occurred. For the six in which it had not, the judge ruled
that Equity breached the Agreement. For the other six, however, the judge
determined that Equity owed nothing to CitiMortgage. Equity and CitiMortgage
both appeal the portions of the decision that they lost and raise issues of contractual
interpretation that we review de novo. See Hudson Specialty Ins. Co. v. Brash Tygr,
LLC, 769 F.3d 586, 590 (8th Cir. 2014).
II.
The Agreement contained a Missouri choice-of-law provision that the parties
acknowledge applies here. See BancorpSouth Bank v. Hazelwood Logistics Ctr.,
LLC, 706 F.3d 888, 893 (8th Cir. 2013). Our task is to interpret the Agreement by
examining “the plain and ordinary meaning of the language used” to determine the

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parties’ obligations, both for the loans that had gone through foreclosure and those
that had not. Whelan Sec. Co. v. Kennebrew, 379 S.W.3d 835, 846 (Mo. banc 2012)
(internal quotation marks and citation omitted).
A.
We address the latter category first. Equity does not dispute that all six loans
in this group were defective and that it refused to cure or repurchase them. Rather,
it argues that CitiMortgage’s letters lacked the necessary detail to trigger its duty to
perform and that CitiMortgage waited too long to exercise its rights. On both points,
we disagree.
Equity insists that it did not need to act because CitiMortgage’s letters never
specified the repurchase prices of any of the loans, which it characterizes as a
condition precedent to its own performance. It is true that CitiMortgage’s letters
omitted the repurchase prices. Even so, Missouri law “does not favor conditions
precedent and courts will not construe contract provisions” to include them “unless
required to do so by plain, unambiguous language or by necessary implication.”
Kan. City S. Ry. Co. v. St. Louis-S.F. Ry. Co., 509 S.W.2d 457, 460 (Mo. 1974). The
cure-or-repurchase provision did not contain any language suggesting that inclusion
of the repurchase price was necessary to trigger Equity’s obligation to perform,
much less include typical “conditional language such as ‘provided that’ or ‘on
condition.’” James E. Brady & Co. v. Eno, 992 F.2d 864, 869 (8th Cir. 1993)
(citation omitted). If disclosure of the repurchase price was not a condition
precedent to Equity’s performance, then Equity had to hold up its end of the bargain.
Equity’s other line of argument is that CitiMortgage delayed too long before
acting, first by waiting before demanding that Equity repurchase the loans and later
by failing to sue in a timely fashion. CitiMortgage took its time, to be sure, waiting
more than two years in some cases to demand action from Equity. But nothing in
the Agreement required it to act any sooner.

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The Agreement itself did not require CitiMortgage to exercise its rights any
more swiftly under the cure-or-repurchase provision than it did. It is true that, in the
face of contractual silence, courts will sometimes presume that an option or a right
“must be exercised within a reasonable time.” Venture Stores, Inc. v. Pac. Beach
Co., 980 S.W.2d 176, 183 (Mo. Ct. App. 1998) (per curiam) (internal quotation
marks and citation omitted); see also Magee v. Mercantile-Commerce Bank & Tr.
Co., 124 S.W.2d 1121, 1124–25 (Mo. 1938); Weis v. Wanstrath, 149 S.W.2d 442,
445–46 (Mo. Ct. App. 1941). But we must also be “leery of imposing time limits”
when there is evidence that the “parties to the contract bargained” against them.
Venture Stores, 980 S.W.2d at 183; cf. Johnson v. Mo.-Kan.-Tex. R. Co., 216 S.W.2d
499, 502 (Mo. 1949) (looking for a “satisfactory basis in the express contract . . . to
imply certain duties and obligations” (citation omitted)).
Three provisions in the Agreement suggest that the parties bargained against
a reasonable time limitation. First, CitiMortgage was assigned the “sole and
exclusive discretion” to determine whether a loan was defective. Second, the
Agreement contained a no-waiver-of-rights clause, which provided that “the failure
of either party to exercise any [contractual] right” did not constitute “waiver” of any
other right. Third, CitiMortgage had the right to “review . . . , or fail[] to review, all
or any portion of the Loan documentation” without “affect[ing its] rights to demand
repurchase.”
The judicially imposed time limit that Equity seeks would affect these
contractual rights. To determine when the clock started running might require a
court to decide when a loan was defective enough to require repurchase—which
would arguably invade CitiMortgage’s “sole and exclusive discretion” to make the
call itself. And delaying after discovering a defect would risk waiving
CitiMortgage’s right to demand repurchase, even though its review of the “Loan
documentation” was not supposed to prejudice its rights. Implying a reasonable time
limitation, in other words, would defeat the parties’ bargained-for terms.

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Equity responds that it should not have had to live with perpetual uncertainty
after it sold the loans. Just because Equity now has second thoughts about the
contract it signed with CitiMortgage, however, does not mean that we should rescue
it from what may have turned out to be a bad deal. See Venture Stores, 980 S.W.2d
at 183 (“[T]he freedom to contract includes the freedom to make bad decisions.”);
cf. CitiMortgage, Inc. v. Chi. Bancorp, Inc., 808 F.3d 747, 754 (8th Cir. 2015)
(noting that a similar “agreement was the result of an arm’s length negotiation
between two sophisticated commercial entities . . . [that] knowingly accepted the
risk set forth by the plain language therein”).
In a variation on its argument that CitiMortgage moved too slowly, Equity
insists that this lawsuit came too late under Missouri’s five-year statute of
limitations. See Mo. Rev. Stat. §§ 516.100, .120(1). This argument turns on when
CitiMortgage’s claims accrued, because the record shows that CitiMortgage sued
within five years after Equity refused to repurchase the loans. CitiMortgage’s view
is that then, and only then, did it suffer an “actual loss.” Spalding v. Stewart Title
Guar. Co., 463 S.W.3d 770, 775–77 (Mo. banc 2015); see also Mo. Rev. Stat.
§ 516.100 (“[T]he cause of action . . . accrue[s] . . . when the damage resulting
therefrom is sustained and is capable of ascertainment.”). Equity’s view, by contrast,
is that CitiMortgage suffered a loss as soon as it purchased the defective loans.
The existence of the cure-or-repurchase provision itself is incompatible with
Equity’s position. By including it, the parties placed the risk on Equity, which had
a contractual obligation to fix any disclosed defects. CitiMortgage could demand
action at any time, including months or even years after it discovered a defect. But
only when Equity refused to fulfill its repurchase obligation and make things right
did CitiMortgage suffer an “actual loss.”2 Cf. Spalding, 463 S.W.3d at 776–77
2This accrual date does not, as Equity suggests, make CitiMortgage the
“master of its own statute of limitations.” See M & D Enters., Inc. v. Wolff, 923

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(“[T]he claim for breach of contract did not accrue until [the defendant] allegedly
failed or refused to adequately compensate [the plaintiff] . . . as required under the
[contract].”). Indeed, it is clear from CitiMortgage’s complaint that it sued Equity
for breaching its obligation to repurchase the loans, not for the act of selling defective
loans in the first place.
B.
The six loans that had gone through foreclosure are a different story.
CitiMortgage has not explained what, exactly, Equity was supposed to repurchase.
If the residential-mortgage loans still existed, then CitiMortgage was within its rights
to demand that Equity repurchase them. But sometimes residential-mortgage loans
cease to exist after foreclosure, such as by operation of state law, see, e.g., Tex. Prop.
Code § 51.003(a) (establishing a short statute of limitations for certain post-
foreclosure deficiency judgments in Texas, where several of the properties were
located), or through discharge in federal bankruptcy proceedings, see generally 11
U.S.C. §§ 727, 1328. So without evidence of what, if anything, remained of the
underlying loans, we are left guessing about whether Equity breached by failing to
fulfill its repurchase obligation.
Rather than pointing to evidence showing that these loans still existed,
CitiMortgage insists that it does not matter. In its view, it is entitled to money
damages either way.
CitiMortgage’s argument, however, conflates the two distinct remedies
available under the cure-or-repurchase provision: “repurchase” of the loan—the
S.W.2d 389, 398–99 (Mo. Ct. App. 1996) (explaining that Missouri courts try to
avoid the “possibility of control of the statute of limitations by parties”). After all,
CitiMortgage’s right to sue Equity for failing to fulfill its obligation to repurchase
the defective loans arose only when Equity failed to act. See Spalding, 463 S.W.3d
at 775–77; Mo. Rev. Stat. § 516.100.

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remedy it sought—or “other remedies (including but not limited to additional
indemnification and/or refund of a portion of the Loan purchase price).”
CitiMortgage’s current theory that it was entitled to compensation no matter what
was left of the loans fits in the second category, not the first.3 Yet CitiMortgage has
always claimed that Equity breached because it failed to “comply with its repurchase
obligations,” which falls into the first category. (Emphasis added). So its current
theory is inconsistent with the remedy it has sought all along.
CitiMortgage also seeks refuge in the Agreement’s repurchase-price formula,
which allowed CitiMortgage to recoup “foreclosure expenses” in a forced
repurchase.4 The fact that the Agreement recognized the prospect of foreclosure,
however, does not prove as much as CitiMortgage thinks. It is possible, for example,
for CitiMortgage to have incurred foreclosure-related expenses before any of the
3The existence of the other-remedies clause also addresses CitiMortgage’s
argument that an open-ended interpretation of the cure-or-repurchase provision is
necessary to avoid “let[ting] Equity off the hook” for selling defective loans. Even
if the original loans could not be repurchased because they no longer existed,
CitiMortgage had another remedy available to it that it never invoked.
4The full repurchase-price formula is:
the sum of: (i) the current principal balance on the loan as of the paid-
to date; (ii) the accrued interest calculated at the mortgage loan Note
rate from the mortgage loan paid-to date up to and including the
repurchase date; (iii) all unreimbursed advances (including but not
limited to tax and insurance advances, delinquency and/or foreclosure
expenses, etc.) incurred in connection with the servicing of the
mortgage loan, (iv) any price paid in excess of par by CitiMortgage on
the funding date, and (v) any other fees, costs or expenses charged by
or paid to another investor in connection with the repurchase of the
mortgage loan from such investor but only to the extent such fees, costs
and expenses exceed the total of items (i) through (iv) above.
(emphasis added).

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properties entered foreclosure, which CitiMortgage could then have passed along to
Equity as part of a forced repurchase. Or the formula might account for a situation
in which a loan survived foreclosure and there was something left for Equity to buy.
Either way, the reference to “foreclosure expenses” in the repurchase-price formula
does not establish that CitiMortgage could force Equity to repurchase something that
had ceased to exist.
Indeed, the repurchase-price formula accounted for only half of the impact of
a foreclosure. It mentioned foreclosure expenses, but was completely silent on
foreclosure proceeds. So if CitiMortgage’s theory is correct, it could have
conceivably recovered both the pre-foreclosure face value of the loan and any
proceeds from the sale of the property, leaving it with a substantial windfall, if not a
double recovery. Cf. Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155
S.W.3d 50, 54 (Mo. banc 2005) (“A party should be fully compensated for its loss,
but not recover a windfall.”); Star Dev. Corp. v. Urgent Care Assocs., 429 S.W.3d
487, 491 (Mo. Ct. App. 2014) (“Generally, liquidated damages clauses in contracts
are enforceable, while penalty clauses are not.”). CitiMortgage urges us to simply
ignore this problem by construing the Agreement to allow Equity to deduct “any
sums recovered in the case of foreclosure.”5 No matter how much sense this may
make now, the repurchase-price formula itself said something else.
5The dissent presents a different theory. Relying heavily on the Fannie Mae
and Freddie Mac Selling Guides, the dissent says that “repurchase” and “repurchase
price” are “established terms of art in the secondary mortgage industry.” Post, at
13–14. These Guides, to the extent they are relevant, tend to undercut the dissent’s
argument. After all, the repurchase-price formula for Real Estate Owned properties
explicitly requires the deduction of all “sale proceeds”—a critical term that has no
counterpart in CitiMortgage’s repurchase-price formula. Freddie Mac, Snapshot of
the Single-Family Seller/Servicer Guide published December 17, 2010, at 72-3,
available at https://sf.freddiemac.com/content/_assets/resources/pdf/guide-
snapshot/2010guide.pdf.

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Finally, CitiMortgage points to a provision in the Agreement that required it
to provide the mortgage file to Equity “[i]f [a] defective Loan [was] owned by
[CitiMortgage] at the time of repurchase.” (Emphasis added). CitiMortgage says
that this provision, by negative implication, shows that the Agreement contemplated
the repurchase of loans owned by a third party. CitiMortgage then jumps to the
conclusion that Equity should have had to repurchase all the loans it sold, even those
that had ceased to exist.
Once again, CitiMortgage puts too much weight on a contractual provision
designed to accomplish something else. This term simply addressed situations in
which CitiMortgage had already resold a loan—which in fact occurred here and is a
common practice within the industry. Certainly, it did not say, or even imply, that
Equity must repurchase loans that may not exist anymore.
III.
We accordingly affirm the judgment.
LOKEN, Circuit Judge, concurring in part and dissenting in part.
I concur in Part II.A. of the court’s opinion, which affirms judgment in favor
of CitiMortgage, Inc (“CitiMortgage” or “CMI”), on six loans that had not been
through foreclosure when CitiMortgage demanded that Equity Bank, N.A.
(“Equity”), repurchase them. I respectfully dissent from the court’s decision in Part
II.B. to affirm the dismissal of CitiMortgage’s claims regarding six foreclosed loans.
The court decides that the word “repurchase” has a plain contractual meaning
without adequately explaining the use of that term in the complex contract at issue.
In 2006, CitiMortgage and Equity entered into a “Correspondent Agreement Form
200” in which CitiMortgage agreed to purchase mortgage loans originated by
Equity. CitiMortgage and Equity were participating in the nationwide secondary

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market for residential mortgage loans. CitiMortgage served as a middleman, buying
nearly five hundred mortgage-secured loans from Equity, the originating lender, and
reselling most loans to investors in the secondary market. After the market collapsed
during the 2008 financial crisis, investors and middlemen such as CitiMortgage
discovered that many loans did not comply with the originators’ contractual
representations and warranties. The Form 200 Agreement, “the result of an arm’s
length negotiation between two sophisticated commercial entities,” gave
CitiMortgage unfettered discretion to declare that a loan purchased from Equity was
defective and obligated Equity “to repurchase defective loans on demand.”
CitiMortgage, Inc. v. Chicago Bancorp, Inc., 808 F.3d 747, 754 (8th Cir. 2015). “A
repurchase provision is designed to shift the risk to the selling party in the event that
a dispute arises.” Resolution Tr. Corp. v. Key Fin. Servs., Inc., 280 F.3d 12, 18 (1st
Cir. 2002).
CitiMortgage sold the six foreclosed loans at issue to investors Federal
National Mortgage Association (Fannie Mae) and Federal Home Loan Mortgage
Corporation (Freddie Mac). Fannie Mae and Freddie Mac foreclosed on the
underlying mortgages before CitiMortgage demanded that Equity repurchase the six
loans.6 The district court held that “Equity did not have a contractual obligation to
‘repurchase’ the Liquidated Loans, because at the time of the repurchase demand
they had already been foreclosed on, the property underlying them had been sold,
and the loans no longer existed.” This was error. The loans were not “liquidated”
by the mortgage foreclosure. A mortgage is a security interest in real property that
serves as collateral for the borrower’s loan. When the mortgage is foreclosed, the
underlying promissory note (the “loan”) is not “liquidated” or “extinguished.” If
foreclosing on the collateral does not recover the outstanding balance on the loan,
the debt survives foreclosure and the mortgagor (borrower) is still liable for the
6Fannie Mae and Freddie Mac sold four of the foreclosed properties before
demanding that CitiMortgage repurchase the defective loans. CitiMortgage
repurchased the other two loans and resold the foreclosed properties itself.

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resulting deficiency (absent further action such as a new agreement or discharge of
the debt in bankruptcy). See Lindell Tr. Co. v. Lieberman, 825 S.W.2d 358 (Mo.
App. 1992).
Equity admits that it breached the Form 200 Agreement when it refused to
cure the defects or repurchase the six defective loans. Rather than endorse the
district court’s erroneous conclusion that the loans did not “exist,” the court
concludes that CitiMortgage has no claim for this breach of contract because it
asserted the wrong contract remedy. This counterintuitive conclusion requires a
closer look at the remedial provisions in Section 11 of the Form 200 Agreement.
Section 11 provides in relevant part:
11. CURE OR REPURCHASE
If CMI, in its sole and exclusive discretion, determines any
Loan purchased pursuant to the Agreement:
* * * * *
(iv) must be repurchased from any secondary market
investor (including but not limited to the Fannie Mae,
Freddie Mac, FHA, VA, HUD or Government National
Mortgage Association) due to a breach by [Equity] of any
representation, warranty or covenant contained in this
Agreement or the CMI Manual . . . .
[Equity] will, upon notification by CMI, correct or cure such
defect . . . to the full and complete satisfaction of CMI. If
[Equity] is unable to correct or cure such defect within the
prescribed time, [Equity] shall, at CMI’s sole discretion,
either (i) repurchase such defective Loan from CMI at the

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price required by CMI (“Repurchase Price”) or (ii) agree to
such other remedies . . . as CMI may deem appropriate. If
CMI requests a repurchase of a defective Loan, [Equity] shall
. . . pay to CMI the Repurchase Price . . . . If such defective
Loan is owned by CMI at the time of repurchase by [Equity],
CMI shall, upon receipt of the Repurchase Price, release to
[Equity] the related mortgage file and . . . deliver such
instruments . . . as shall be necessary to vest in [Equity] title
to the repurchased Loan.
“Glossary 2301” of CMI’s Correspondent Manual defined “Repurchase Price” as
the sum of:
(i) the current principal balance on the loan as of the paid-to date; (ii)
the accrued interest calculated at the mortgage loan Note rate from the
mortgage loan paid-to date up to and including the repurchase date; (iii)
all unreimbursed advances . . . incurred in connection with the servicing
of the mortgage loan, (iv) any price paid in excess of par by [CMI] on
the funding date, and (v) any other fees, costs, or expenses charged by
or paid to another investor in connection with the repurchase of the
mortgage loan from such investor [if they] exceed the total of items (i)
through (v) above.
The court simply ignores the context and scope of this contractual
“repurchase” remedy. Prior to CitiMortgage demanding that Equity repurchase the
defective foreclosed loans, Fannie Mae and Freddie Mac had notified CitiMortgage
of the loan defects and demanded that the loans “be repurchased” by middleman
CitiMortgage in accordance with governing Fannie Mae and Freddie Mac Guides.
The Freddie Mac demand letters specifically referenced three “repurchase
procedures . . . stated in full in Section 78.20 of the Guide.” The third category,
“Real Estate Owned” (REO) loans, specified the method of calculating the

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“Repurchase Price” for a mortgage loan that has been foreclosed. Similarly, Fannie
Mae’s Selling Guide defined “Repurchase Date” as the date “a lender is required to
repurchase a mortgage or an acquired property from Fannie Mae.” (Emphasis
added.) In my view, this is conclusive evidence that the terms “repurchase” and
“repurchase price” in Section 11 simply reflected established terms of art in the
secondary mortgage industry, as Equity knew or should have known. By demanding
that Equity “repurchase” foreclosed loans, CitiMortgage was invoking a remedy
unambiguously provided in Section 11 of the Form 200 Agreement, using standard
industry language. For the court to instead conclude that CitiMortgage has no
remedy for Equity’s breach of contract works an injustice that thoroughly
compromises our careful opinion in Chicago Bancorp. See CitiMortgage, Inc. v.
Royal Pac. Funding Corp., No. 4:16cv00210 PLC, 2017 WL 3116135, at *9 (E.D.
Mo. Jul. 21, 2017) (rejecting the conclusion the court reaches in this case as contrary
to Chicago Bancorp).
Even though Section 11 expressly contemplated repurchase where a defective
loan is not owned by CitiMortgage at the time of repurchase, the court cites the fact
that the Repurchase Price formula does not take into account foreclosure proceeds,
leaving CitiMortgage with a “substantial windfall” if it is allowed to repurchase, as
a reason to deny CitiMortgage any contractual remedy for the foreclosed loans. This
is a classic red herring.7 First, as the court notes, under Missouri law, a “party should
be fully compensated for its loss, but not recover a windfall.” Ameristar Jet Charter,
Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50, 54 (Mo. banc 2005). Preventing a
windfall in a breach of contract action warrants reducing a party’s damage claim; it
does not warrant dismissing the claim altogether. Second, before the district court,
Equity conceded that the “Repurchase Price” is the proper measure of damages for
CitiMortgage’s breach of contract claims. Finally, and more importantly, the
summary judgment record contains unrefuted evidence that CitiMortgage would
include an “REO Sale Proceeds” credit for the foreclosure proceeds in its calculation
7A diversion intended to distract attention from the real issue.

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of the “Repurchase Price” claims for the six foreclosed loans. This calculation
would provide CitiMortgage its actual contract losses, not a windfall.8
For these reasons, I would reverse the grant of summary judgment dismissing
these six claims, leaving Equity free on remand to challenge CitiMortgage’s
application of the Repurchase Price formula in calculating its actual losses on the
foreclosed loans. As the parties settled their damages disputes concerning the six
unforeclosed loans, I join the court in affirming the district court’s final judgment in
favor of CitiMortgage on those claims.
______________________________
8The court errs in faulting CitiMortgage for not providing “evidence of what,
if anything, remained of the underlying loans.” Supra p. 7. Not only is this a flawed
view of the summary judgment record, it is a factual issue that does not warrant the
grant of summary judgment.

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