Case study 2 First Bank v. Fischer & Frichtel, Inc. Fischer & Frichtel, Inc., is an experienced real estate developer based in Missouri. In June 2000, Fischer & Frichtel borrowed $2.58 million from First Bank in order to buy twenty-one lots of property for a resi- dential development. Over the next five years, Fischer & Frichtel paid First Bank as it sold the lots, which served as collateral for the loan. When the housing market collapsed, however, Fischer & Frichtel was unable to pay First Bank for nine unsold lots. Through a series of negotiations, First Bank extended the loans maturity date from July 1, 2003, to September 1, 2008. When the loan matured, Fischer & Frichtel defaulted, still owing $1.13 million. First Bank foreclosed on the unsold lots and was the only bidder at the judicial sale. First Banks winning bid of $466,000 was based on its estimate of the lots value, the depressed state of the real estate market, and the fact that it would have to sell the lots in bulk rather than individually. First Bank filed a suit seeking to recover the unpaid principal and interest on the loan. At trial, Fischer & Frichtel presented expert testi- mony showing that the lots fair market value was $918,000. The trial judge instructed the jury that, if it found for First Bank, it must award . . . the balance due . . . on the date of maturity, less the fair market value of the property at the time of the foreclosure sale, plus inter- est. Following the judges instructions, the jury awarded First Bank $215,875. First Bank then moved for a new trial, arguing that it was entitled to the full difference between the sale price and the amount owed. The trial court granted First Banks motion, and Fischer & Fric- htel appealed to the Missouri Supreme Court. 1. 364 S.W.3d 216 (Mo. 2012). MAJORITY OPINION Laura Denvir STITH, Judge. *** * Missouri and many * * * other states * * * require a debtor to pay as a deficiency the full difference between the debt and the foreclo- sure sale price. 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. 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. *** * 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. * * * Missouris 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 * * * . [Emphasis added.] Fischer & Frichtel argues that this standard * * * almost inevita- bly 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 bid- der, 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, an insufficient amount of time to allow potential bidders to secure financing. Fischer & Frichtel notes that the lender does not have this financ- ing problem, as it does not have to pay with cash, but instead simply may deduct the purchase price from the amount of principal the bor- rower owes. Because realistically the lender often will be the sole bid- der, 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 below-market value it paid for the property. *** * * * * While the foreclosure sale price was barely more than 50 per- cent 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 at the foreclosure sale * * * . This is not a case, therefore, in which to consider a modification of the standard for setting aside a foreclosure sale solely due to inad- equacy 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 affirmed. DISSENTING OPINION Richard B. TEITELMAN, Chief Justice. 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, Mis- souri law ignores the fair market value of the foreclosed property and, instead, measures the lenders 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. *** * I would reverse the judgment sustaining First Banks motion for a new trial and order the trial court to enter judgment consistent with the jurys 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

1. What was the majoritys decision? What were the reasons for its decision?

2. Why did the dissent disagree with the majority? If the court had adopted the dissents position, how would this have affected the result?

3. Suppose that First Bank, the only bidder at the judicial sale, had submitted a winning bid of $1,000. Would First Banks conduct have been ethical? Why or why not?

4. Are there any reasons why the dissents position might be more favorable for economic recovery from a recession? Explain your answer.

5. What does the majoritys ruling mean for a mortgagee that bids on a foreclosed property at a judicial sale? Explain your answer.