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Welk v. Federal National Mortgage Association

United States District Court, Eighth Circuit

May 17, 2013

Dean J. Welk, Plaintiff,
v.
Federal National Mortgage Association, Reiter & Schiller, P.A., and Curt Trisko, Defendants.

William B. Butler, Butler Liberty Law, LLC, 33 South Sixth St., Suite 4100, Minneapolis, Minnesota 55402, for Plaintiff Dean J. Welk.

Charles F. Webber and Elizabeth Ann Walker, Faegre Baker Daniels LLP, 90 South Seventh St., Suite 2200, Minneapolis, MN 55402, for Defendant Federal National Mortgage Association.

Curt N. Trisko and Rebecca F. Schiller, Schiller & Adam, PA, The Academy Professional Building, 25 Dale Street North, St. Paul, MN 55102, for Defendants Reiter & Schiller, P.A., and Curt Trisko.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on Defendant Federal National Mortgage Association's Motion to Dismiss [Doc. No. 6]; Defendants Reiter & Schiller, P.A. and Curt Trisko's Motion to Dismiss [Doc. No. 13]; and Plaintiff's Motion to Remand [Doc. No. 16]. For the reasons stated below, the Court grants the Motions to Dismiss, denies the Motion to Remand, and dismisses the Amended Complaint [Doc. No. 25] with prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Dean J. Welk challenges the foreclosure proceedings on his home for at least the third time in this Court.[1] His first challenge was as part of a multi-plaintiff action, Cartier v. Wells Fargo Bank, N.A., Civ. No. 11-2168 (JRT/AJB). In that lawsuit, Mr. Welk and his wife, Heather Welk, claimed to reside at "P.O. Box 9188, North St. Paul." (Cartier Compl. [Doc. No. 1-2] § 23.) The property, located in Ramsey County, Minnesota, was described in the Complaint as

The South 160.7 feet of the Westerly 133.5 feet of the Easterly 261.22 feet of the South Half of the Southeast Quarter of the Southwest Quarter of the Northeast Quarter of Section 14, Township 29, Range 22.

(Id.)

Less than two months later, Mrs. Welk was the first named plaintiff in another multi-plaintiff lawsuit, Welk v. GMAC Mortgage, LLC, Civ. No. 11-2676 (PJS/JJK) (Welk I). In the Welk I Complaint, Mrs. Welk claimed to "own[] the property at 2130 Cowern Place East, North St. Paul." (Welk I Compl. [Doc. No. 1-1] § 1.) The legal description of the property is

East 127.72 feet of the South 1/2 of the Southeast 1/4 of the Southwest 1/4 of the Northeast 1/4 of Section 14, Township 29, Range 22 (except part acquired for right of way of St. Paul & Stillwater Road) also described as Block 38 of Fifth Addition to North St. Paul together with so much of streets and alleys as accrued to said Block 7 reason of vacation thereof, according to the United States Government Survey thereof and situate [sic] in Ramsey County, Minnesota.

(Id.) At first glance, this appears to be a different property than that described in Cartier, but subtracting the Cartier property's 133.5 westerly feet from the 261.22 easterly portion of that property results in the "East 127.72 feet" described in Welk I. There is no explanation for Welk I's failure to name Dean Welk as a plaintiff, given that he presumably owns the property in joint tenancy with his wife.

Finally, in the first paragraph of the instant Amended Complaint, Plaintiff Dean Welk claims to "reside[] at 2121 Holloway Avenue East, North Saint Paul." (Welk II Am. Compl. [Doc. No. 25] § 1.) The legal description of the property that follows is identical to the legal description of the Welks' property in Cartier. The difference in address between Welk II and the property in Welk I might give one pause, until one reads the second paragraph of the Welk II Amended Complaint, which states, curiously, that Dean Welk "is a natural person currently residing at 2120 E Cowern Place, North St. Paul." (Id. § 2.)[2] There is no explanation for Mr. Welk's residence at two different addresses, nor is there any mention of Mrs. Welk. Both Cartier and Welk I were dismissed at the pleading stage for failure to state a claim on which relief could be granted.

In this matter, Mr. Welk's first claim challenges the assignment of his mortgage from the Mortgage Electronic Registration System ("MERS") to Wells Fargo, contending that the person who signed the assignment did not have the authority to do so, rendering the foreclosure invalid under Minnesota law. (Am. Compl. §§ 12-15.) Similarly, Mr. Welk also contends that the individual who signed a power of attorney allowing Defendant Reiter & Schiller, P.A. to commence non-judicial foreclosure proceedings did not have the legal authority to do so. (Id. §§ 23-24.) Mr. Welk also alleges that Defendant Federal National Mortgage Association (known colloquially as Fannie Mae) acquired an interest in the mortgage from Wells Fargo in February 2004 but no assignment of the mortgage from Wells Fargo to ...


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