Arnold Lee Erickson; Marilyn E. Erickson; Michael D. Erickson; Julie M. Erickson v. Nationstar Mortgage, LLC, /Counterclaim

United States Court of Appeals
For the Eighth Circuit
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No. 21-2280
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Arnold Lee Erickson; Marilyn E. Erickson; Michael D. Erickson; Julie M.
Erickson
Plaintiffs
v.
Nationstar Mortgage, LLC, /Counterclaim Plaintiff/Third-Party Plaintiff, doing
business as Mr. Cooper
Defendant
v.
Erickson Cabins, LLC
Third Party Plaintiff - Appellant
v.
Busey Bank; Garrett Bradley; Brian Schulte
Third Party Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: February 17, 2022
Filed: April 20, 2022
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Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.
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BENTON, Circuit Judge.
Erickson Cabin, LLC filed a third-party slander-of-title claim against various
defendants under Missouri law. The district court1 granted summary judgment for
the defendants, finding that Erickson Cabin failed to establish a dispute of material
fact on two required elements for slander of title. Having jurisdiction under 28
U.S.C. § 1291, this Court affirms.
I.
In 2006, Plaintiffs Arnold L., Marilyn E., Michael D., and Julie M. Erickson
(collectively, “Ericksons”) purchased a property in Putnam County, Missouri. On
January 6, 2007, Michael and Arnold Erickson executed a Promissory Note for a
loan. It listed as the lender Pulaski Bank, Savings Bank of St. Louis (“Pulaski
Bank”). A few days later, the Ericksons executed a Deed of Trust on the property,
listing Pulaski Bank as the “Grantee/Lender.”
Soon after making a retail loan, Pulaski Bank’s typical practice was to sell the
loan to a third-party lender and record the sale through the Mortgage Electronic
Registration Systems (“MERS”) database. Pulaski Bank transferred the Ericksons’
Promissory Note to Countrywide Bank, which eventually transferred it to Nationstar
Mortgage LLC (“Nationstar”). Pulaski Bank, meanwhile, merged into Busey Bank,
which became Pulaski Bank’s successor in interest.
In February 2018, Edward E. Cox, an Iowa attorney, contacted Brian Schulte,
a Busey Bank employee. Cox had identified Pulaski Bank as the holder of a lien
1 The Honorable John M. Bodenhausen, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).

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under the Ericksons’ January 2007 Deed of Trust, and asked Schulte to confirm the
status of the deed and note. Schulte found no record of an active loan to the
Ericksons. Assuming it had been paid off, he told Cox that the bank had no interest
in the property and offered to execute a deed of release, which he prepared.
On March 5, 2018, Garrett Bradley, another Busey Bank employee, filed that
“Full Deed of Release,” dated February 21, 2018, on behalf of Busey Bank,
completely releasing its interest in the property to the Ericksons. That document
identified Busey Bank as “the undersigned present holder and legal owner of said
Deed of Trust and note or notes” in the Ericksons’ property. This statement was
incorrect because Nationstar was, in fact, the owner of the note.
After Michael Erickson contacted Schulte and Bradley with concerns that
Nationstar—not Busey Bank—held and owned the note, Busey Bank searched the
MERS database and discovered Nationstar now owned the note. Neither Schulte
nor Bradley had direct access to the MERS database; instead, other Busey Bank
employees searched it. On April 20, 2018, Schulte emailed Michael Erickson,
stating the results of the search, that Nationstar was the holder, and that he would
“take whatever corrective action is necessary to maintain the integrity of
Nationstar’s lien.”
On July 2, 2018, the Ericksons executed a “Quit Claim Deed” transferring all
their rights to the property to Erickson Cabin, LLC, an entity they had formed.
On March 15, 2019, a “Title Resolution Specialist” at Martin Leigh law firm,
Nationstar’s successor trustee, contacted Schulte about the 2018 Full Release of
Deed and provided a sample affidavit to undo the erroneous release.
On March 20, 2019, Bradley filed an “Affidavit of Erroneous Deed of
Release” on behalf of Busey Bank. It declared “null and void” the March 5, 2018,
Deed of Full Release, stating:

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It was not the intent of the undersigned to release the Deed
of Trust on said property, since the Deed of Trust Note and
loan released to said Deed of Trust has not been paid and
the release of said Deed of Trust was not authorized and
was ineffective. The error made consists of:
The loan secured by aforementioned Deed of Trust was
sold by Pulaski Bank, now known as Busey Bank, to
Nationstar Mortgage LLC in the year 2007. Busey Bank
held no ownership interest in the aforementioned Deed of
Trust at the time the erroneous Full Deed of Release was
recorded.
On May 1, 2019, Martin Leigh notified the Ericksons that it planned to sell
the property at a trustee’s sale on May 30, 2019.
On May 14, 2019, Erickson Cabin entered a contract for sale of the property
with Charles and Jodie Sapper for a price of $125,000 and a closing date of June 21,
2019.
On May 23, 2019, the Ericksons sued Nationstar in state court to enjoin the
May 30 trustee’s sale. Nationstar filed a counterclaim and third-party petition for
declaratory judgment, to quiet title, and to recover outstanding amounts due.
On July 30, 2019, the Sappers emailed the Ericksons, cancelling their
purchase of the property and stating, “[T]he filings by Pulaski Bank, Busey Bank
and or NationStar in March and April of this year are deemed to be clouds on the
title by the insurance carrier and closing agent and hence our lender. It’s impossible
for us to proceed.”
On September 13, 2019, in the state-court suit, Erickson Cabin filed a third-
party claim for slander of title against Busey Bank, Schulte, and Bradley
(collectively, “Busey Defendants”), as well as Nationstar.

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On October 23, 2019, the Busey Defendants removed to federal court. After
discovery, they filed for summary judgment, which the district court granted.
Erickson Cabin appeals.
II.
This Court reviews de novo a grant of summary judgment. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “Summary judgment
is proper if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Id. (quotations omitted). A fact
is “material” if it may “affect the outcome of the suit.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “An issue is genuine if the evidence is sufficient to
persuade a reasonable jury to return a verdict for the nonmoving party.” Schilf v.
Eli Lilly & Co., 687 F.3d 947, 948 (8th Cir. 2012) (quotations omitted).
The party opposing summary judgment must “cit[e] particular materials in the
record” or show that the “materials cited do not establish the . . . absence of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1). “A mere ‘scintilla of evidence’ is insufficient to
defeat summary judgment, and if a nonmoving party who has the burden of
persuasion at trial does not present sufficient evidence as to any element of the cause
of action, then summary judgment is appropriate.” Wagner v. Campbell, 779 F.3d
761, 766 (8th Cir. 2015), quoting Brunsting v. Lutsen Mountains Corp., 601 F.3d
813, 820 (8th Cir. 2010).
Similarly, if the movant has supported its motion for summary judgment, the
party opposing summary judgment “may not simply rest on the hope of discrediting
the movant’s evidence at trial.” United States v. 3234 Washington Ave. N., 480
F.3d 841, 844 (8th Cir. 2007) (“3234 Washington”). Where the testimony of the
movant’s witnesses is critical, if the testimony is “positive, internally consistent,
unequivocal, and in full accord with the documentary exhibits,” “then the opposing
party cannot force a trial merely to cross-examine the witness or in the hope that

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something might turn up at the trial.” Id. at 845 (quotations omitted); Nationwide
Prop. & Cas. Ins. Co. v. Faircloth, 845 F.3d 378, 382 (8th Cir. 2016). But summary
judgment is improper where specific facts “even partially” undermine the witness’s
credibility in a material way. 3234 Washington, 480 F.3d at 845.
Missouri substantive law applies to this diversity suit. See, e.g., Brunsting,
601 F.3d at 820. Under Missouri law, a plaintiff must prove four elements for a
slander of title claim: (1) an interest in the property, (2) that the words published
were false, (3) “that the words were maliciously published,” and (4) that the plaintiff
“suffered pecuniary loss” “as a result of the false statement.” Bechtle v. Adbar Co.,
L.C., 14 S.W.3d 725, 728 (Mo. App. 2000); see Arbors at Sugar Creek
Homeowners Ass’n v. Jefferson Bank & Tr. Co., 464 S.W.3d 177, 188 (Mo. banc
2015) (“Slander of title requires there be ‘false words that are maliciously published,
causing the plaintiff to suffer a pecuniary loss or injury.’” (quoting First Nat. Bank
of St. Louis v. Ricon, Inc., 311 S.W.3d 857, 864 (Mo. App. 2010) (“Ricon”)).
The district court found the first two elements were met. The parties do not
dispute them here. Rather, Erickson Cabin’s slander of title fails because it did not
establish a dispute of material fact on the malice element.
“To infer the existence of malice, the evidence of plaintiffs must support a
reasonable inference that the representation not only was without legal justification
or excuse, but also was not innocently or ignorantly made.” Bechtle, 14 S.W.3d at
729. A defendant who acts in good faith based on incorrect information does not act
with malice. See Ricon, 311 S.W.3d at 868 (reversing summary judgment for
plaintiff where a jury could find that defendant believed it had a “reasonable right”
in the property, despite evidence showing it had no such right); see also Butts v.
Long, 80 S.W. 312, 313 (St. Louis Ct. App. 1904) (“[I]f, at the time he spoke, he
supposed, in good faith, that he had such right, no liability is imposed. . . . [A]
defendant, though acting stupidly, may have been prompted by innocent motive.”).

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Erickson Cabin has not produced sufficient evidence. The undisputed record
shows that, before Busey Bank filed the 2018 Full Release of Deed:
• Cox, the Iowa attorney, had a record of the 2006 Pulaski Bank loan, but
not of transfers or Nationstar’s current ownership of the note.
• Bradley executed lien releases dozens of times during a typical week.
• Bradley and Schulte identified no records that Pulaski Bank or Busey Bank
had current ownership in the property.
• Bradley and Schulte lacked direct access to and experience with the MERS
database, and did not think to use it.
The undisputed record also shows that, after Busey Bank filed the 2018 Full
Release of Deed:
• Schulte asked Busey Bank employees in another department to search the
MERS database after Michael Erickson told him Nationstar held a valid
interest in the property.
• That search confirmed Pulaski Bank had sold the note to the Erickson
property.
• On April 30, 2018, Schulte emailed Michael Erickson, confirming that
Nationstar in fact had the property interest, and stating he would “take
whatever corrective action is necessary to maintain the integrity” of that
interest.
• Schulte did not prepare the 2019 Affidavit of Erroneous Release until an
employee at Martin Leigh, contacted him and provided a sample release.
The affidavit was executed on March 20, 2019.

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• On May 1, 2019, Martin Leigh notified the Ericksons of the impending
sale of the property.
These undisputed facts reflect only an “innocently or ignorantly made”
mistake. See Bechtle, 14 S.W.3d at 729. They show that Schulte and Bradley made
an error in their normal course of duties, that Schulte told Michael Erickson the error
would be corrected as necessary, and that Busey Bank eventually corrected that error
with its 2019 Affidavit when contacted by Martin Leigh. Erickson Cabin has
produced no evidence that undermines the Busey Defendants’ credibility, nor
identified anything that suggests malice, or a reason for Busey Bank, Bradley, or
Schulte to harbor ill-will. Erickson Cabin has not produced even a “scintilla” of
contravening evidence. It “may not simply rest on the hope of discrediting [the
defendants’] evidence at trial.” 3234 Washington, 480 F.3d at 844.
Because Erickson Cabin failed to establish a genuine issue of material fact on
a required element for its claim, this Court affirms summary judgment for the Busey
Defendants.
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The judgment is affirmed.
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