Opinion
No. 58591.
March 10, 1975. Rehearing Denied April 14, 1975.
APPEAL FROM THE CIRCUIT COURT, 16TH JUDICIAL CIRCUIT, DIVISION NO. 14, ROBERT A. MEYERS, J.
James L. Muller, The Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for appellant.
Charles F. Crews, Alan E. South, Crews Milliard, Kansas City, for respondent.
This is an appeal from a judgment in which the trial court denied relief to appellant in her suit seeking a declaratory judgment that Missouri extrajudicial foreclosure statutes are unconstitutional under the federal and state due process clauses and also seeking restitution of possession of real estate which respondent had obtained from her in an action for unlawful detainer following foreclosure of a deed of trust on her property.
The evidence disclosed that in 1966 appellant and her husband purchased a house and lot from the Department of Housing and Urban Development. A standard FHA deed of trust containing a power of sale clause was executed by appellant and her husband. In 1970 payments on the note and deed of trust became delinquent and the trustee, at the request of respondent, advertised in the Daily Record for the required 21 times a notice of foreclosure by the trustee. There was evidence on behalf of respondent that a letter calling attention to the delinquency and the fact that the entire debt was due was mailed to appellant. However, appellant testified that she received no notice of the foreclosure sale.
Respondent purchased the property at the foreclosure sale for $7,464.27. Thereafter, respondent filed an action in unlawful detainer. Appellant did not appear in response and a default judgment of possession in favor of respondent was entered. Respondent then obtained possession on a writ of restitution.
Thereafter, respondent sought declaratory and injunctive relief in the U.S. District Court for the Western District of Missouri. The trial judge applied the rule of abstention and that decision was affirmed on appeal. Warren v. Government National Mortgage Association, 443 F.2d 624 (8th Cir. 1971). Thereupon, this case was filed by appellant.
On appeal appellant raises the same questions as those asserted by appellant in Federal National Mortgage Association v. Howlett, 521 S.W.2d 428 (Mo. banc. 1975), decided concurrently herewith. For the reasons detailed in that opinion, we overrule appellant's contentions.
Judgment affirmed.
All concur.