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This case involved the question of how the amount of a deficiency owed by Fischer & Frichtel Inc, a commercial debtor, after a foreclosure sale of its property should be measured. The trial court submitted an instruction directing the jury to award the difference between the amount of the debt and the property's fair market value at the time of the foreclosure sale. The court then granted First Bank's motion for a new trial in light of its showing that Missouri case law instead requires the deficiency to be determined by the difference between the debt and the amount received at the foreclosure sale. The Supreme Court affirmed after discussing Missouri common law, which requires that the deficiency should be measured by the amount received at the foreclosure sale, but if the sale price is so inadequate as to raise an inference of fraud, then the foreclosure sale can be voided.Receive FREE Daily Opinion Summaries by Email
SUPREME COURT OF MISSOURI
FISCHER & FRICHTEL, INC.,
On Appeal from the Circuit Court of St. Louis County
The Honorable John F. Kintz, Judge
Opinion issued April 12, 2012
This case involves the question of whether the amount of the deficiency owed by
Fischer & Frichtel Inc., a sophisticated commercial debtor, after a foreclosure sale of its
property should be measured by the difference between the amount of the unpaid debt
and the amount obtained at the foreclosure sale or, instead, by the difference between the
amount of the unpaid debt and the fair market value of the property at the time of the
foreclosure sale. The trial court submitted an instruction directing the jury to award the
difference between the amount of the debt and the property’s fair market value but then
granted First Bank’s motion for a new trial in light of its showing that Missouri case law
instead requires the deficiency to be determined by the difference between the debt and
the amount received at the foreclosure sale. Fischer & Frichtel appeals.
As discussed below, Missouri common law requires the deficiency to be measured
by the amount received at the foreclosure sale, but if the sale price, alone or in
combination with other factors, is so inadequate as to raise an inference of fraud, then the
foreclosure sale can be voided. Missouri does not permit questions about the adequacy of
the foreclosure price also to be raised in the deficiency action. Fischer & Frichtel argues
that Missouri’s traditional approach leads to unfairness where the debtor is unable to
obtain alternative financing in time to submit a bid at the foreclosure sale and the lender
is the only bidder. It says this concern has caused other jurisdictions to reject the
traditional use of the foreclosure price to measure the deficiency and instead measure it
by the fair market value of the property.
Each jurisdiction cited by Fischer & Frichtel that has changed from basing the
deficiency on the foreclosure price to basing it on the property’s fair market value made
that change by statute. Further, the public policy rationales that Fischer & Frichtel offers
as the basis to do so do not apply to a sophisticated commercial entity such as itself,
which claims neither that it had inadequate notice to obtain alternative financing nor that
the foreclosure sale itself had badges of fraud. The trial court’s grant of a new trial to
First Bank is affirmed, and the case is remanded.
FACTUAL AND PROCEDURAL BACKGROUND
First Bank is a privately owned company that provides both retail and commercial
banking services to its clients. Fischer & Frichtel is a real-estate developer with more
than sixty years of experience in the industry. From 2005 to the beginning of 2008,
Fischer & Frichtel had hundreds of millions of dollars in revenue and earned tens of
millions of dollars in profit. Among its business deals in June 2000 was the purchase of
21 lots in Franklin County for a residential development.
To finance the acquisition, Fischer & Frichtel borrowed $2.576 million from First
Bank, in favor of which it executed a deed of trust pledging the lots as collateral for the
loan. From 2000 to 2005, Fischer & Frichtel sold 12 of the 21 lots to homebuyers. Each
time a lot was sold, Fischer & Frichtel made a principal payment of $126,000 to First
Bank, which then released that lot from the deed of trust. Beginning in 2005, the housing
market began to decline, and Fischer & Frichtel was unable to sell any of the nine
remaining lots in this particular development.
Although the original maturity date on the loan from First Bank to Fischer &
Frichtel was July 1, 2003, First Bank extended the maturity date six times. The final
mutually agreed maturity date on the loan was September 1, 2008. In April 2008, First
Bank and Fischer & Frichtel began to negotiate another extension of the maturity date,
but due to the increased risk caused by the declining real estate market, First Bank sought
a higher interest rate, a renewal fee, an increase in the amount of principal Fischer &
Frichtel would pay on the loan each time it sold a lot, and either a $283,000 cash payment
on the principal or a personal guaranty from John Fischer, the owner of Fischer &
Frichtel. Fischer & Frichtel believed the new terms were too onerous, and the parties
could not agree to an extension.
When the loan matured on September 1, 2008, Fischer & Frichtel was
contractually obligated to pay First Bank the remaining principal on the loan, $1,133,875.
Fischer & Frichtel chose instead to default on the loan, and First Bank foreclosed on the
nine lots remaining unsold that were subject to the deed of trust. The foreclosure sale
was held in December 2008, and First Bank acquired the nine unsold lots after making
the sole bid of $466,000. Fischer & Frichtel did not bid and does not claim that the
foreclosure sale was not properly noticed or conducted.
In November 2008, just prior to the foreclosure sale, First Bank filed suit against
Fischer & Frichtel seeking to recover the unpaid principal and interest on the loan. At the
trial in January 2010, Fischer & Frichtel presented expert testimony from an appraiser
that, although First Bank paid only $466,000, the fair market value of the nine lots at the
time of the foreclosure was nearly double that, $918,000. It also showed that internal
First Bank documents valued the property at $1.134 million at the time of the default in
September 2008. A First Bank employee testified that the bank determined the amount to
bid in foreclosure by estimating that, in the declining real estate market, the value of the
property to the bank was only $675,000, which should be discounted to $466,000 because
First Bank needed to sell the property in bulk, not as individual lots, and the depressed
real-estate market made finding a buyer extremely difficult.
At the close of trial, over First Bank’s objection, the court instructed the jury that
“[i]f you find in favor of [First Bank], then you must award [First Bank] the balance due
[First Bank] on the [loan] on the date of maturity, less the fair market value of the
property at the time of the foreclosure sale, plus interest.” Accordingly, the jury found
that the fair market value of the lots was $918,000, the value testified to by Fischer &
Frichtel’s expert, and that Fischer & Frichtel therefore owed First Bank $215,875 (the
difference between the amount of unpaid principal on the loan and the fair market value
of the property at the time of the foreclosure sale) plus $37,500 in interest.
First Bank filed a motion for a new trial, arguing that the damage instruction was
contrary to Missouri law because it directed the jury to base the amount of the deficiency
on the fair market value of the property at the time of the foreclosure sale instead of on
the amount obtained at the foreclosure sale. The trial court agreed and granted First
Bank’s motion for a new trial. Fischer & Frichtel appealed to the Missouri Court of
Appeals, which transferred the case to this Court pursuant to Rule 83.02 to address the
issue of how to determine the amount of the deficiency after a foreclosure sale. 1
STANDARD OF REVIEW
“Generally, an appellate court will be more liberal in upholding a trial court’s
decision to grant a new trial than it will be if the trial court denies a new trial.” Meyer v.
McGarvie, 856 S.W.2d 904, 907 (Mo. App. 1993). “However, a trial court’s authority to
grant a new trial is discretionary only as to questions of fact, not as to matters of law.”
Id. “Whether a jury was instructed properly is a question of law that this Court reviews
de novo.” Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752, 766 (Mo. banc 2010);
Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003) (“This Court reviews de novo,
as a question of law, whether a jury was properly instructed”). It is error for jury
instructions not to follow the Missouri Approved Instructions (MAI), and “[s]uch errors
are presumed to prejudice the defendant unless it is clearly established … that the error
In light of this Court’s holding on the proper measure of a deficiency, it is unnecessary
to reach the issues raised concerning whether the jury correctly determined the amount of
interest and whether the jury should have been instructed on Fischer & Frichtel’s
affirmative defenses of commercial frustration and lack of good faith and fair dealing.
did not result in prejudice.” State v. Westfall, 75 S.W.3d 278, 284 (Mo. banc 2002).
Where, as here, there is no applicable MAI, the instruction will be reviewed to determine
“‘whether the jury [could] understand the instruction and whether the instruction follows
applicable substantive law by submitting the ultimate facts required to sustain a verdict.’”
Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 462 (Mo. banc 1998), quoting
Brown v. Van Noy, 879 S.W.2d 667, 672 (Mo. App. 1994).
If this Court finds that the
instruction is erroneous, it must then determine whether the error misdirected, misled or
confused the jury, resulting in prejudicial error and justifying the grant of a new trial.
Harvey, 95 S.W.3d at 97; Kuzuf v. Gebhardt, 602 S.W.2d 446, 449 (Mo. banc 1980).
THE FORCLOSURE SALE PRICE IS THE MEASURE OF A DEFICIENCY
There are two general approaches to reviewing claims that the amount received for
a property at a foreclosure sale is insufficient.
One approach is to allow the foreclosure sale price to be used in determining the
deficiency only if the debtor does not challenge the adequacy of the foreclosure sale price
in the deficiency action. If there is such a challenge, states that use this approach rely on
a variety of standards, usually set by statute, for determining whether to reject the
foreclosure sale price in favor of fair market value as a measure of the deficiency, ranging
from whether there is a difference between the two prices, 2 to whether the foreclosure
See, e.g., UTAH CODE ANN. § 57-1-32 (West 2012) (“The court may not render [a
deficiency] judgment for more than the amount by which … the indebtedness … exceeds
the fair market value of the property as of the date of the sale”); WIS. STAT. ANN. §
846.165 (no “judgment for deficiency [shall be] rendered, until the court is satisfied that
the fair market value of the premises has been credited on the mortgage”).
sale price is substantially lower than the fair market value, 3 to whether the foreclosure
sale price is so much lower than the fair market value that it shocks the conscience. 4
Fischer & Frichtel argues that Missouri should adopt the most liberal of these
standards – that recommended by section 8.4 of the Restatement (Third) of Property
(1997) – and always allow debtors to pay only the difference between the debt and the
fair market value of the property at the time of the foreclosure if the debtor challenges the
foreclosure price. 5
MICH. COMP. LAWS ANN. § 600.3280 (West 2012) (showing that “the amount bid was
substantially less than its true value … shall constitute a defense to [a deficiency] action
and shall defeat the deficiency judgment against [the debtor] either in whole or in part”);
TENN. CODE ANN. § 35-5-118 (in order to use the fair market value as the measure of a
deficiency, the debtor must show the “property sold for an amount materially less than
the fair market value of [the] property at the time of the foreclosure sale”)
R.K. Cooper Const. Co. v. Fulton, 216 So.2d 11, 13 (Fla. 1968) (“A shockingly
inadequate sale price in the foreclosure proceeding can be asserted as an equitable
defense and the trial judge has the discretion and duty to inquire into the reasonable and
fair market value of the property sold ….”).
The Restatement (Third) of Property states in relevant part on this point:
§ 8.4 Foreclosure: Action For A Deficiency
(a) If the foreclosure sale price is less than the unpaid balance of the
mortgage obligation, an action may be brought to recover a deficiency
judgment against any person who is personally liable on the mortgage
obligation in accordance with the provisions of this section.
(b) Subject to Subsections (c) and (d) of this section, the deficiency judgment
is for the amount by which the mortgage obligation exceeds the foreclosure
(c) Any person against whom such a recovery is sought may request in the
proceeding in which the action for a deficiency is pending a determination of
the fair market value of the real estate as of the date of the foreclosure sale.
(d) If it is determined that the fair market value is greater than the
foreclosure sale price, the persons against whom recovery of the deficiency
is sought are entitled to an offset against the deficiency in the amount by
which the fair market value, less the amount of any liens on the real estate
that were not extinguished by the foreclosure, exceeds the sale price.
Restatement (Third) of Property § 8.4 (1997).
Missouri and many of the other states in which the method of measuring
deficiencies is governed by the common law traditionally have followed a different
These states require a debtor to pay as a deficiency the full
difference between the debt and the foreclosure sale price. 6 They do not permit a debtor
to attack the sufficiency of the foreclosure sale price as part of the deficiency proceeding
even if the debtor believes that the foreclosure sale price was inadequate.
This does not mean Missouri does not give a debtor a mechanism for attacking an
inadequate foreclosure sale price. Rather, a debtor who believes that the foreclosure sale
price was inadequate can bring an action to void the foreclosure sale itself. Roberts v.
Murray, 232 S.W.2d 540, 546 (Mo. 1950); Judah v. Pitts, 62 S.W.2d 717, 720 (Mo. 1933).
If the sale stands, then it has been thought fair to require the debtor to pay any deficiency
remaining based on the foreclosure sale price. Drannek Realty Co. v. Nathan Frank Inc.,
139 S.W.2d 926, 928 (Mo. 1940). Since Roberts, the standard for voiding a foreclosure
sale has been reaffirmed by numerous Missouri court decisions. 7
Fischer & Frichtel does not claim that this is not the current state of Missouri law,
nor does it offer any reason why it failed to follow this approach and file an action
attacking the validity of the foreclosure sale due to the inadequacy of the foreclosure sale
See, e.g., Rhode Island Depositors Econ. Prot. Corp. v. Macomber, 658 A.2d 511, 51112 (R.I. 1995); Fitch v. Buffalo Fed. Sav. and Loan Ass’n, 751 P.2d 1309, 1312-13 (Wyo.
1988); New England Sav. Bank v. Lopez, 630 A.2d 1010, 1015 (Conn. 1993) (power of
sale only); Standard Bank & Trust Co. v. Callaghan, 177 Ill. App. 3d 973, 977-78 (Ill. Ct.
See, e.g., Boatmen’s Bank of Jefferson Cnty. v. Community Interiors, Inc., 721 S.W.2d
72, 78 (Mo. App. 1986); Mueller v. Simmons, 634 S.W.2d 533, 536 (Mo. App. 1982);
Carondelet Sav. & Loan Ass’n v. Boyer, 595 S.W.2d 744, 747 (Mo. App. 1980).
price. Instead it argues that Missouri’s standard for setting aside a foreclosure sale is so
high that a debtor cannot realistically hope to meet it.
Missouri permits the debtor to void a properly noticed and carried out foreclosure
sale only by showing that “the inadequacy … [of the sale price is] so gross that it shocks
the conscience … and is in itself evidence of fraud.” Cockrell v. Taylor, 145 S.W.2d 416,
422 (Mo. 1940); Judah, 62 S.W.2d at 720. This is the predominant standard used by
courts in determining whether to void the foreclosure sale, but what is sufficient to
“shock the conscience” of a court seems to vary greatly. Some states, such as Oregon
and Wisconsin, have found sale prices of more than half the fair market value sufficient
to shock the conscience and set aside the sale, Teacher’s Retirement Fund Ass’n of Sch.
Dist. No. 1, Multnomah Cnty. v. Pirie, 46 P.2d 105, 106-109 (Or. 1935); Gumz v.
Chickering, 121 N.W.2d 279, 281-82 (Wis. 1963), while others uphold sales for less than
40 percent of the fair market value. Cromer v. De Jarnette, 51 S.E.2d 201, 204 (Va.
1949); Hurlock Food Processors, Inv. Assoc. v. Mercantile-Safe Deposit and Trust Co.,
633 A.2d 438, 452-54 (Md. Ct. Spec. App. 1993). Missouri’s standard for proving that a
foreclosure sale “shocks the conscience” is among the strictest in the country; more than
one Missouri case has refused to set aside a sale that was only 20 to 30 percent of the fair
market value because of Missouri’s historical practice of requiring an inference of fraud
in addition to a sale price that “shocks the conscience.” Cockrell, 145 S.W.2d at 422;
Judah, 62 S.W.2d at 720; Harlin v. Nation, 27 S.W. 330, 331 (Mo. 1894).
Fischer & Frichtel argues that this standard for setting aside a foreclosure sale is so
high that it is only an illusory remedy for an unfairly low sale price and that because the
foreclosure process inherently produces artificially low sale prices, it almost inevitably
leads to windfalls for lenders. Fischer & Frichtel suggests that the foreclosure process is
unfair in part because cash must be offered for the property by the bidder. This is a
problem for the ordinary bidder, particularly a homeowner or small business owner,
because the statutory minimum time period between notice of foreclosure and the actual
sale is often less than a month, 8 an insufficient amount of time to allow potential bidders
to secure financing.
Fischer & Frichtel notes that the lender does not have this financing problem, as it
does not have to pay with cash, but instead simply may deduct the purchase price from
the amount of principal the borrower owes. Because realistically the lender often will be
the sole bidder, it can buy the foreclosed property for far less than market value, sell the
property at a profit and then collect a deficiency from the borrower based on the belowmarket value it paid for the property. 9 The lender receives both the benefit of buying the
property for less than fair market value and also of only having to reduce the deficiency it
is entitled to by the below fair market price paid at the foreclosure sale.
First Bank offers factual and policy rebuttals to many of these arguments. 10 The
In Missouri, the minimum notice period is 20 days. § 443.310, RSMo 2000.
For example, assume that a lender loans the borrower $100,000; the borrower, having
paid none of the principal, defaults; and the lender forecloses. The property is appraised
at $130,000. Nevertheless, the lender is the only bidder at the sale and buys the property
for $60,000. The lender can seek a deficiency against the borrower and will recover
$40,000, the difference between the sale price at foreclosure and the amount of principal
left on the loan. The lender then can sell the house for its appraised value of $130,000
and will gain $170,000 from foreclosing on a loan of only $100,000.
First Bank suggests that this Court should continue to follow the foreclosure sale price
approach because changing to the fair market value approach will increase lending costs
policy debate presented by the parties may explain why so many states have chosen to
deal with this issue by statute, rather than by the common law, as still is the case in
Missouri. Cf. Powell v. Am. Motors Corp., 834 S.W.2d 184, 189-90 (Mo. banc 1992)
(holding that the balancing of competing public policies is best left to the legislature).
Even more importantly here, however, nearly all of the problems that Fischer &
Frichtel alleges concern not the fairness of the deficiency determination itself but the
fairness of the foreclosure sale price due to lack of sufficient notice to obtain alternative
financing or other bidders. Despite this, Fischer & Frichtel does not ask this Court to
reexamine the strict standard for voiding a foreclosure sale, as one might expect in light
of the settled Missouri law requiring inadequacy of the foreclosure sale price to be
examined in the foreclosure sale itself.
This is surprising in one sense, for setting aside an unfair sale, rather than allowing
it to stand unchallenged and then considering whether to adjust how to determine the
deficiency, would avoid many of the policy concerns raised by both parties about forcing
one or the other to accept an undue or unknown risk in not knowing whether the
by shifting all the risk in the foreclosure process onto the lender. Under the fair market
value approach, regardless of what happens to the market, the borrower knows it will owe
a deficiency based solely on the fair market value at the time of the foreclosure sale. By
contrast, if the lender buys the property, which Fischer & Frichtel agrees usually is the
case, it holds all the risk, so that if property prices decline and the lender cannot sell the
property for the fair market value at foreclosure, it incurs a loss. Furthermore, under the
fair market value approach, the lender may feel forced to buy property likely to bring in
less than the market price because it knows that it only will receive a deficiency for the
fair market value of the property, regardless of how little it recovers in the foreclosure
sale. First Bank also argues that the fair market value approach will increase costs by
forcing lenders to determine the fair market value of every property they foreclose and by
causing litigation over the true “fair market value” of the property.
foreclosure price will remain standing in a later deficiency action. Moreover, this Court
has not reexamined the standard for voiding a foreclosure sale since its decision in
Roberts, 232 S.W.2d at 546, decided more than 60 years ago, nor did this Court appear to
consider at that time whether its very stringent standard for setting aside a sale was out of
step with that used in other states.
It may be that Fischer & Frichtel advocates an alternative approach because it did
not file a timely challenge to the foreclosure sale and could not have met the traditional
standard for setting aside a foreclosure sale had it done so. 11 Or perhaps it is that the
policy reasons raised by Fischer & Frichtel for lowering the burden required to show
inadequacy of the foreclosure sale price principally apply to individuals and small
businesses that have no realistic ability to bid themselves, not to a sophisticated business
entity such as Fischer & Frichtel, which has not shown or alleged that it did not have
adequate notice of the foreclosure sale, that the sale was not fairly conducted or that it did
not have the financial means to offer an alternative bid. So far as the record shows,
Fischer & Frichtel simply made a strategic choice not to bid, not to attack the amount
received as inadequate under the traditional standard for setting aside a foreclosure sale
and not to ask this Court to adopt a less onerous standard. 12
Fischer & Frichtel’s
A review of the record shows that the foreclosure sale price of $466,000 was more than
half the $918,000 fair market value the property determined by the jury, and no other
indicia of fraud or misconduct are shown. These facts would not support voiding the
foreclosure sale under current Missouri law. Judah v. Pitts, 62 S.W.2d 717, 720 (Mo.
This may have been a wise strategic decision, as First Bank marketed the property for
$675,000, the amount at which First Bank valued it before discounting it because of the
need to sell it in bulk, and, as of the trial, had not received a single bid.
suggested alternative would make those decisions irrelevant.
Moreover, Fischer & Frichtel has not identified any jurisdiction that has rejected
the foreclosure sale price approach in favor of the fair market value approach based on
the common law. 13 All of the cited states that follow the fair market value approach
either have always done so or have made the change to that approach based on statute. 14
Independent research indicates that the Supreme Court of Tennessee never has
addressed squarely whether the foreclosure sales price is the proper measure of a
deficiency, although in Holt v. Citizens Cent. Bank, 688 S.W.2d 414, 416 (Tenn. 1984), it
held that absent fraud or other misconduct a properly held foreclosure sale cannot be
voided based on an inadequate price. After Holt, the Tennessee court of appeals issued
contradictory opinions as to whether the foreclosure sale price was conclusive in
deficiency proceedings. Compare McDill Columbus Corp. v. Lakes Corp., No. 03A019112CV00445, 1992 WL 115576 at *2 (Tenn. Ct. App. 1992) (finding Holt demanded
that foreclosure sale price be used to determine deficiency) with Lost Mountain Dev. Co.
v. King, No. M2004-02663-COA-R3-CV, 2006 WL 3740791 * at 5-6 (Tenn. Ct. App.
2006) (finding the reasoning of Holt precluded setting aside the foreclosure but did not
apply to deficiency judgments). The opinion that allowed evidence of the fair market
value to be used in determining the amount of the deficiency judgment did not purport to
change the common law, however, but instead cited numerous older cases for the
proposition that the foreclosure sales price had never been the conclusive measure of the
amount of a deficiency. Lost Mountain, 2006 WL 3740791 at *5-7. In 2010, the
Tennessee legislature passed a statute mandating that the fair market value be the
measure of any deficiency if a property is sold at foreclosure for materially less than its
fair value. Tenn. Code Ann. § 35-5-118.
In Florida, no statute requires that fair market value be used to determine the
amount of any deficiency, but the Florida Supreme Court switched from using the sale
price at foreclosure to using fair market value based on a statutory change in foreclosure
procedure, whereby instead of a judge having to confirm every foreclosure sale, the
foreclosure would automatically become final if, after 10 days, no party objected. R.K.
Cooper Const. Co v. Fulton, 216 So.2d 11, 13 (Fla. 1968); see also Fla. Stat. § 702.02(5)
(1955) (repealed 1972). The court reasoned that because under the statute the court had
no equitable power to determine whether the price paid at foreclosure was fair, it needed
to exercise that power in deficiency proceedings by assessing the fair market value of the
property. Cooper, 216 So.2d at 13.
For cases which traditionally have used this approach, see, e.g., Lake Hillsdale Estates,
Inc. v. Galloway, 473 So.2d 461, 466 (Miss. 1985); Tr. of Washington-Idaho-MontanaCarpenters-Employers Ret. Trust Fund v. Galleria P’ship, 780 P.2d 608, 616-17 (Mont.
While the fact that this matter is not addressed by statute does allow this Court
greater discretion than otherwise would be the case, “[u]nder the doctrine of stare decisis,
‘a decision of this [C]ourt should not be lightly overruled, particularly where … the
opinion has remained unchanged for many years.’” Sw. Bell Yellow Pages, Inc. v. Dir. of
Revenue, 94 S.W.3d 388, 390 (Mo. banc 2002), quoting Novak v. Kansas City Transit,
Inc. 365 S.W.3d 539, 546 (Mo. banc 1963).
Here, the public policy reasons that form the basis of Fischer & Frichtel’s
argument for modification of the more than century-old practice of using the foreclosure
sale price have no application to a sophisticated debtor such as it. New York Store
Mercantile Co. v. Thurmond, 85 S.W. 333, 336 (Mo. 1905). While the foreclosure sale
price was barely more than 50 percent of the fair market value later determined by the
jury, the lender gave cogent reasons for its lower bid due to the depressed real estate
market and the bulk nature of the sale, as of trial the lender had not been able to sell the
property, and Fischer & Frichtel has not argued it could not have purchased the property
1989); Vermont Nat. Bank v. Leninski, 687 A.2d 890, 892 (Vt. 1996). For states adopting
this approach by statute, see, e.g., ARIZ. REV. STAT. ANN. § 33-314 (2012); CAL. CIVIL
PROC. CODE § 580(b) (West 2012); COLO. REV. STAT. ANN. § 38-38-106(6) (West 2012);
CONN. GEN. STAT. § 49-14(a); IDAHO CODE ANN. § 6-108 (West 2012); ME. REV. STAT TIT
14, § 6324 (West 2012) (only applies if mortgagee is purchaser); MICH. COMP. LAWS ANN.
§ 600.3280 (West 2012); MINN. STAT. ANN. § 582.30 (West 2012); NEB. REV. STAT. § 761013 (West 2012); NEV. REV. STAT. ANN. § 40.459 (West 2012); N.J. STAT. ANN. § 2A:50-3
(West 2012) (does not apply to certain commercial loans); N.Y. REAL PROP. ACTS LAW §
1371(2) (McKinney 2011); N.C. GEN. STAT. ANN. § 45-21.36 (West 2012) (only applies if
mortgagee is purchaser); N.D. CENT. CODE ANN. § 32-19-03 (West 2012); OKLA. STAT.
ANN. TIT. 12, § 686 (West 2012); S.C. CODE ANN. § 29-3-700 (2012); S.D. CODIFIED LAWS
§ 21-47-16 (West 2012); TEX. PROP. CODE ANN. § 51.003 (West 2012); UTAH CODE ANN.
§ 57-1-32 (West 2012); WASH REV. CODE ANN. § 61.12.060 (West 2012); WIS. STAT. ANN.
§ 846.165 (West 2012).
at the foreclosure sale (or indeed thereafter while the property was still on the market for
$675,000, a good deal less than Fischer & Frichtel says is its fair market value).
This is not a case, therefore, in which to consider a modification of the standard
for setting aside a foreclosure sale solely due to inadequacy of price or whether a change
should be made in the manner of determining a deficiency where the foreclosure price is
less than the fair market value.
For the reasons stated, the judgment of the trial court awarding a new trial is
LAURA DENVIR STITH, JUDGE
Russell, Breckenridge and Fischer, JJ., and
Burkemper, Sp.J., and Parrish, Sr.J., concur;
Teitelman, C.J., dissents in separate opinion
filed. Price and Draper, JJ., not participating.
SUPREME COURT OF MISSOURI
FISCHER & FRICHTEL, INC.,
I respectfully dissent. The purpose of a damage award is to make the injured party
whole without creating a windfall. Accordingly, in nearly every context in which a party
sustains damage to or the loss of a property or business interest, Missouri law measures
damages by reference to fair market value. Yet in the foreclosure context, Missouri law
ignores the fair market value of the foreclosed property and, instead, measures the
lender’s damages with reference to the foreclosure sale price. Rather than making the
injured party whole, this anomaly in the law of damages, in many cases, will require the
defaulting party to subsidize a substantial windfall to the lender. Aside from the fact that
this anomaly long has been a part of Missouri law, there is no other compelling reason for
continued adherence to a measure of damages that too often enriches one party at the
expense of another. Consequently, I would hold that damages in a deficiency action
should be measured by reference to the fair market value of the foreclosed property.
The underlying deficiency judgment is nothing more than a means of calculating
First Bank’s damages for Fischer & Fritchel’s breach of a contract that was secured by
the foreclosed property. The issue is simply assigning a value to the foreclosed property
to calculate First Bank’s actual damages fairly. Missouri law recognizes that “[t]he goal
of awarding damages is to compensate a party for a legally recognized loss ... [and 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). In other
words, the fundamental purpose underlying the law of damages is to make the injured
party whole by monetary compensation. BMK Corp. v. Clayton Corp.226 S.W.3d 179,
197 (Mo. App. 2007).
When a party sustains loss of or damage to a marketable interest, the surest way to
make the injured party whole and avoid a windfall is to simply include fair market value
in the damages calculation. Presumably, this is the reason that, when possible, most
common law damages calculations use fair market value as a baseline for awarding
damages. For instance, when the seller of real estate brings suit for breach of contract
against the buyer, the “appropriate measure of damages is the difference between the
contract price and the market value of the property on the date the sale should have been
completed.” Shirley's Realty, Inc. v. Hunt, 160 S.W.3d 804, 807 (Mo. App. 2005).
Similarly, a seller’s measure of damages for a buyer’s breach of a contract for the sale of
land with a structure on it is the difference between the purchase price and the fair market
value of the property on the date of breach. Wooten v. DeMean, 788 S.W.2d 522, 527-28
(Mo. App. 1990). There are numerous other examples in which damages are calculated
with reference to the fair market value of the property or interest that is lost or damaged. 1
Unless the facts of the case clearly dictate otherwise, fair market value is the touchstone. 2
In contrast, Missouri’s current common law rule for calculating damages in a
deficiency proceeding is inconsistent with the underlying purpose of awarding damages.
Consistent with common knowledge, Missouri case law long has recognized that “[t]he
conditions of a foreclosure sale are not conducive to achieving a price that reflects the
fair market value of property.” Shirley's Realty, Inc., 160 S.W.3d at 808. Fair market
value presupposes a willing seller who is free to accept or reject offers as he or she sees
fit. A foreclosure sale usually does not involve a willing seller, and the conditions for
Groves v. State Farm Mut. Auto. Ins. Co., 540 S.W.2d 39, 43 (Mo. banc 1976) (the
general measure of damages for injury to personal property is the difference between its
reasonable market value before and after the damage); Coffman v. Powell, 929 S.W.2d
309, 312 (Mo. App. 1996)("[t]he proper measure of damages for the conversion of
personal property is the fair market value at the time and place of the conversion”);
Heberer v. Shell Oil Co. 744 S.W.2d 441, 443 (Mo. banc 1988)(appropriate measure for
damages in a fraudulent misrepresentation case is the difference between the fair market
value of the property received and the value if the property had been as represented);
King v. City of Independence, 64 S.W.3d 335, 340 (Mo. App. 2002), overruled on other
grounds, (damages for a permanent nuisance are measured by the change in the
property’s fair market value as a result of the injury); Concordia Lumber Company, Inc.
v. Davis, 696 S.W.2d 851, 852-53 (Mo. App. 1985)(proper measure of damages for
breach of warranty is generally the difference between the fair market value of the
property before and after the breach).
For instance, some categories of property are rarely, if ever, bought and sold on the
open market. In those cases, cost of replacement is the appropriate measure of damages
because it places the injured party in as good a position as if its property had not been
taken or destroyed. Leonard Missionary Baptist Church v. Sears, Roebuck and Co., 42
S.W.3d 833, 837 (Mo. App. 2001), citing Reorganized School Dist. No. 2 v. Missouri
Pac. R. Co., 503 S.W.2d 153, 159 (Mo. App. 1973). See, e.g., State ex rel. State
Highway Comm'n v. Mount Moriah Cemetery Ass'n, 434 S.W.2d 470 (Mo. 1968) (fair
market value not proper measure of damages for cemetery land).
purchase are subject to time and financing constraints not present in a sale on the open
market. Furthermore, in most cases, the purchaser and sole bidder at a foreclosure sale is
the foreclosing lender. 3 For these reasons, “it is well known that property, when sold at a
forced sale, usually does not bring its full value” and, instead, “has the potential of
bringing only a fraction of the fair market value.” Id. (quoting Smith v. Snodgrass, 747)
S.W.2d 743, 747 (Mo.App.1988). It is plainly evident that the practical effect of
calculating a foreclosure deficiency by reference to the foreclosure sale means that the
secured lender benefits from an often substantial windfall by purchasing the property at a
discount from fair market value while also obtaining an inflated deficiency judgment.
This windfall is subsidized by the already financially distressed debtor.
The principal opinion posits two primary justifications for continued adherence to
the current common law rule. First, the principal opinion notes correctly that Missouri
common law has, for decades, provided that a foreclosure deficiency is measured by
reference to the foreclosure sale price. While the passage of time can confirm the validity
and wisdom of a common law rule, it can also demonstrate its shortcomings. The test of
time is a double-edged sword. Therefore, when the common law is demonstrably
inconsistent with common knowledge and experience, this Court has exercised its
constitutional authority to modify the common law accordingly. For instance, this Court
abolished interspousal tort immunity because it “belies reality and fact to say there is no
tort when the husband either intentionally or negligently injures his wife” or vice versa.
Townsend v. Townsend, 708 S.W.2d 646 (Mo. banc 1986)(quoting Brawner v. Brawner,
First Bank concedes the fact that the foreclosing lender is often the purchaser.
327 S.W.2d 808, 819-820 (Mo. banc 1959) (Hollingsworth, J., dissenting). 4 Similarly,
continuing to measure a foreclosure deficiency by reference to the foreclosure sale price
also “belies reality and fact” because it ignores common knowledge, common experience
and the underlying purpose of the law of damages. In this case, the passage of time does
not confirm the common law rule; it fully illustrates its shortcomings.
Second, the principal opinion asserts that each jurisdiction cited by Fischer &
Fritchel that has changed from basing the deficiency on the foreclosure sale price to the
fair market value made the change by statute. However, as this Court has noted, “[I]t is
neither realistic nor consistent with the common law tradition to wait upon the legislature
to correct an outmoded rule of case law.” Abernathy v. Sisters of St. Mary's, 446 S.W.2d
599, 605 (Mo. banc 1969). The issue before this Court is not whether our legislature will
or will not pass a statute. The issue is whether this Court should continue to adhere to a
rule that it established and that is demonstrably inconsistent with the goal of fully
There are numerous other examples in which this Court has modified or abolished
flawed common law rules. See, Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111
(Mo. banc 1996)(adopting a “change in the common law” by requiring that punitive
damage claims must be supported by a clear and convincing standard of proof); Helsel v.
Noellsch, 107 S.W.3d 231, 233 (Mo. banc 2003)(abolishing the tort of alienation of
affection because there was no plausible reason to retain the cause of action);Thomas v.
Siddiqui, 869 S.W.2d at 743 (Mo. banc 1994) (Robertson, J., dissenting)(abolishing the
tort of criminal conversation); Abernathy v. Sisters of St. Mary's, 446 S.W.2d 599 (Mo.
banc 1969)(abrogating the rule of charitable immunity); O'Grady v. Brown, 654 S.W.2d
904 (Mo. banc 1983)(overruling State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo.
banc 1976), and establishing the standing of a parent to sue for the death of a viable
fetus); Steggal v. Morris, 258 S.W.2d 577, 581 (1953)(overruling Buel v. United Rys.
Co., 154 S.W. 71 (Mo. 1913), and holding that a child can recover for prenatal injuries).
compensating the injured party and avoiding a windfall. By using the fact that other
states made the change legislatively as a reason for this Court to avoid the change, the
principal opinion implicitly frames the issue in this case as one of process. This case is
not about the process of change; it is about the justification for change. The case is about
whether this Court’s common law rule is consistent with common knowledge, common
experience and the general precepts of the common law of damages. It is not. Because
this issue is squarely before this Court as a matter of common law, the fact that numerous
states have legislatively adopted a fair market valuation is relevant and further buttresses
the conclusion that the current common law rule is deficient.
In sum, there is no reason, except for tradition, to perpetuate this anomaly in
Missouri law and continue measuring the deficiency with reference to the foreclosure sale
price. Instead, this Court should adopt the valuation method recommended by section 8.4
of the Restatement (Third) of Property (1997), which requires debtors to pay the
difference between the principal balance and the fair market value at the time of the
foreclosure sale if the debtor challenges the foreclosure price. 5 If the legislature
First Bank argues that changing to the fair market value approach will place all the risk
in the foreclosure process onto the lender. This argument is not persuasive. By focusing
only on the foreclosure process, First Bank deflects consideration of the risk management
techniques available to lenders when the loan is made. A lender compensates for risk by
charging an interest rate that is set both by the financial markets and by the lender’s
assessment of the borrower’s creditworthiness. The lender also manages risk by
appraising the fair market value of the property to ensure that the loan is adequately
secured. Changing to a fair market value approach certainly would lessen the lender’s
chance of a large windfall and would mean only that First Bank, like the borrower, is
losing or gaining money based on fair market value of property. The risk of loss is part
of the risk of lending. That risk of loss should not be borne solely by the borrower and
then amplified by measuring the deficiency by reference to the foreclosure sale price.
disagrees, it can act accordingly and pass a statute for the governor’s approval. It is
through this process that the judicial, legislative and executive branches of our
government resolve legal issues. 6 In the meantime, this Court should alter the common
law measure of damages in a deficiency action so that our common law reflects our
common knowledge, common experience and the common law of damages, which, when
possible, defines damages with reference to fair market value.
I would reverse the judgment sustaining First Bank’s motion for a new trial and
order the trial court to enter judgment consistent with the jury’s finding that the fair
market value of the foreclosed property was $918,000 and that Fischer & Fritchel
therefore owed First Bank a deficiency of $215,875.
Richard B. Teitelman, Chief Justice
For instance, in Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99
(Mo. banc 1985), the Court abolished common law remittitur. In Jones v. State Highway
Commission, 557 S.W.2d 225, 228 (Mo. banc 1977), the Court abrogated sovereign
immunity. The legislature re-established both doctrines by statute.