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Wells Fargo Home Mortgage, Inc. v. McCarthy

August 5, 2003

WELLS FARGO HOME MORTGAGE, INC., RESPONDENT,
v.
TIMOTHY P. MCCARTHY, APPELLANT,
CITY COUNTY FEDERAL CREDIT UNION, ET AL., DEFENDANTS.



Ramsey County District Court File No. C2-02-006743

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.

The opinion of the court was delivered by: Huspeni, Judge*fn1

Affirmed in part and remanded

UNPUBLISHED OPINION

In challenging the district court's award of summary judgment to respondent, pro se appellant argues that (1) respondent failed to obtain personal jurisdiction over appellant and the court should have granted a motion to dismiss this proceeding on that ground; (2) the court improperly denied appellant's motion to strike certain affidavits; (3) an award of summary judgment to respondent was improper because genuine issues of material fact exist; (4) the district court erred in refusing to consider pleadings of a corporation that was not represented by counsel; and (5) appellant's counterclaims are still valid and must be addressed. Because we conclude that (1) appellant waived any jurisdictional arguments he may have possessed; (2) the district court was within its discretion in ruling on the challenged affidavits; (3) there are no genuine issues of material fact; and (4) the district court properly refused to consider pleadings from a corporation not represented by an attorney, we affirm the award of summary judgment. Because it appears that the district court did not rule on the viability of appellant's counterclaims, we remand to enable the court to address that issue.

FACTS

On October 5, 1995, appellant Timothy McCarthy signed and executed a promissory note and mortgage in favor of Meridian National Bank, encumbering a parcel of real property he owns in Ramsey County (the premises). On that same day, Meridian assigned the mortgage to respondent Wells Fargo Home Mortgage, Inc. Both Meridian and Wells Fargo filed their mortgages for record with the Ramsey County Recorder on November 17, 1995. On February 5, 2001, McCarthy entered into an agreement with R & D Food Services, Inc. (R&D), purporting to give R&D a security interest in the premises. R&D subsequently filed a financing statement with the Minnesota Secretary of State. No payments were made by McCarthy on the note and mortgage after February 1, 2002.

Wells Fargo commenced a foreclosure by advertisement by filing a notice of pendency and power of attorney to foreclose mortgage with the Ramsey County Recorder on June 12, 2002. Wells Fargo attempted, but was unable, to personally serve McCarthy with the notice of mortgage foreclosure despite "numerous attempts." Wells Fargo also attempted to "communicate in writing with [McCarthy] regarding the service issue and the status of the mortgage foreclosure proceeding. Said efforts were unsuccessful." On July 18, 2002, Wells Fargo commenced this action for recovery of all sums owing under the note and mortgage, and for sale of the subject premises to pay the debt secured by the mortgage. Wells Fargo attempted to personally serve the summons and complaint on appellant, but was unsuccessful. Having failed to serve McCarthy personally, Wells Fargo proceeded to serve him by publication, pursuant to Minn. R. Civ. P. 4.04(a)(1).

McCarthy filed an answer with the court on August 23, 2002, and served Wells Fargo with that pleading on August 26, 2002. McCarthy also served interrogatories, requests for admissions, and requests for production of documents. Finally, on October 10, 2002, McCarthy served counterclaims on Wells Fargo. Wells Fargo filed a motion for summary judgment on October 17, 2002, and answers to McCarthy's counterclaims on October 24, 2002. McCarthy served Wells Fargo with motions to dismiss and strike certain affidavits on November 7, 2002. Wells Fargo served responsive memoranda on November 14, 2002. On November 18, 2002, McCarthy served Wells Fargo with his memorandum in opposition to plaintiff's motion for summary judgment, supported by his own affidavit.

On November 20, 2002, the district court heard both Wells Fargo's summary-judgment motion and McCarthy's motions to dismiss and to strike certain affidavits. Wells Fargo's motion for summary judgment was granted; McCarthy's motions to dismiss and to strike were denied.

Two weeks after the award of summary judgment to Wells Fargo, McCarthy filed a Chapter 7 bankruptcy petition; the bankruptcy court subsequently granted Wells Fargo relief from the automatic stay. This appeal followed.

DECISION

I.

We first address McCarthy's allegation that the district court did not have personal jurisdiction over him and, therefore, this proceeding must be dismissed. The district court, in denying McCarthy's allegation that dismissal was required, determined that the defense of lack of personal jurisdiction was not pleaded in McCarthy's answer and was, thus, waived under Minn. R. Civ. P. 12.08(a).*fn2 We review de novo the construction of a rule of court procedure. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn. 2000). In addition, the question of whether personal jurisdiction exists is a question of law, which is reviewed de novo. Id.

We agree with the district court that the defense of lack of personal jurisdiction was waived. There is no dispute that McCarthy filed and served an answer, served significant discovery requests, and filed a counterclaim before filing the motion to dismiss. While both parties cite Patterson as informative, the holding of that case supports Wells Fargo's position. The Patterson court addressed ...


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