IN THE MISSOURI SUPREME COURT SCOTT HUBER and ...

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III. The Trial Court did not err in granting Respondent’s Motion for Summary Judgment because no issue of material fact exists in that Section 443.130 is only applicable if, at the time Appellants made their demand on Respondent, the property is encumbered by the Respondent’s Deed of Trust. MO. REV. STAT. § 443.060 (2000) MO. REV. STAT. § 443.130 (2000) Berndsen v. Flagstar Bank, 193 S.W.3d 828 (Mo. App. E.D. 2006) Digman v. McCollum, 47 Mo. 372, 1871 WL 7647 (Mo. 1871) Garr v. Countrywide Home Loans, Inc., 137 S.W.3d 457 (Mo. banc 2004) 10
Argument I. The Trial Court did not err in granting Respondent’s Motion for Summary Judgment because no issue of material fact exists in that Section 443.130 is only applicable if, at the time Appellants made their demand on Respondent, the property is encumbered by the Respondent’s Deed of Trust. A. Standard of Review This Court’s review of the propriety of summary judgment is a question of law and therefore review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for determining the propriety of summary judgment on appeal are no different than those used at the trial level. Id. This Court views the record and construes all inferences favorably to the non- movant, but facts set forth in support of the summary judgment motion are taken as true unless contradicted by the non-movant’s response. Id. at 376, 382-83. A defendant may establish a right to judgment by showing (1) facts that negate any one of the elements of the plaintiff’s claim, (2) that the plaintiff cannot produce evidence sufficient to allow the trier of fact to find the existence of any one of the plaintiff’s elements, or (3) “that there is no genuine dispute as to the existence of each of the facts necessary to support the [defendant’s] properly-pleaded affirmative defense.” Id. at 381. Once the defendant has met this burden, the plaintiff must show by reference to the record that “one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed.” Id. 11
Page 1 and 2: IN THE MISSOURI SUPREME COURT _____
Page 3 and 4: Cases: Table of Authorities Berndse
Page 5 and 6: This appeal falls within the jurisd
Page 7 and 8: Appellants. L.F. 93. On April 23, 2
Page 9: Points Relied On I. The Trial Court
Page 13 and 14: The Penalty Statute is the enforcem
Page 15 and 16: no longer subject to a mortgage. To
Page 17 and 18: Court’s attention away from the f
Page 19 and 20: the enforcement mechanism of the Pe
Page 21 and 22: obligations under the Penalty Statu
Page 23 and 24: II. The Circuit Court did not err i
Page 25 and 26: III. The Circuit Court did not err
Page 27 and 28: 27 Respectfully submitted, HAZELWOO
Page 29 and 30: Appendix 29

IN THE MISSOURI SUPREME COURT SCOTT HUBER and ...

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