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Gretsch v. Vantium Capital, Inc.

Court of Appeals of Minnesota

June 17, 2013

Connie L. Gretsch, Appellant,
v.
Vantium Capital, Inc., d/b/a Acqura Loan Services, Respondent.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CV-11-16871.

Timothy L. Thompson, Housing Preservation Project, St. Paul, Minnesota; Richard J. Fuller, Bert Black, Schaefer Law Firm, LLC, Minneapolis, Minnesota; and Randall Smith, St. Paul, Minnesota (for appellant).

Michael J. Steinlage, Paul A. Sand, Larson King, LLP, St. Paul, Minnesota (for respondent).

Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Larkin, Judge.

WORKE, Judge

Appellant challenges the district court's grant of summary judgment, arguing that the district court erred by dismissing her claims under Minn. Stat. § 58.18, subd. 1 (2012), for violations of Minn. Stat. § 58.13 (2012), and Minn. Stat. § 332.37(19) (2012), and for negligence per se. We affirm.

FACTS

Appellant Connie L. Gretsch owned a home in Minneapolis. In 2006, appellant entered into a mortgage with Aegis Lending Corporation. This loan was sold to Pacifica L. Nineteen, LLC, which contracted with CitiMortgage, Inc., to service the mortgage. In 2008, appellant lost her job; she contacted CitiMortgage, which gave her a loan extension agreement, under the terms of which appellant agreed to make reduced payments.

In April 2010, appellant alleged that CitiMortgage informed her that she "had been granted forbearance and payment restructuring under the Home Affordable Unemployment Program (UP)"; her payment was reduced again to $300 per month for three months. She subsequently paid $300 in May, June, and July, 2010. The payments were accepted.

In 2009, respondent Vantium Capital, Inc., d/b/a Acqura Loan Services, agreed to participate in the Home Affordable Mortgage Program (HAMP) as a mortgage servicer. In order to do so, respondent was required to sign a Servicer Participation Agreement (SPA) with the Federal National Mortgage Association (Fannie Mae). The SPA sets forth certain guidelines and directives to all servicer participants. The terms of the agreement are "governed by and construed under Federal law and not the law of any state or locality"; the agreement inures to the benefit of and is binding on the parties to the agreement and any permitted successors-in-interest. The SPA requires a servicer who participates in HAMP to perform certain actions before commencing a foreclosure action, including determining whether a borrower is eligible for HAMP modification, and to extend modification upon certain criteria.

In May 2010, respondent acquired the servicing rights from CitiMortgage. Respondent notified appellant that it would not accept further payments at this reduced level, and no further forbearance or extension agreements were reached or offered. In November 2010, appellant's unemployment benefits ended, which, according to appellant, made her ineligible for the UP program, but potentially eligible for loan modification under HAMP. Appellant asked respondent for mortgage assistance, including modification under HAMP. Respondent either denied or did not respond to her inquiries. In December 2010, respondent began foreclosure proceedings, without screening for eligibility for loan modification under HAMP. The initial foreclosure proceeding was suspended, but respondent began foreclosure proceedings again in October 2011.

Appellant does not dispute that HAMP does not provide a private cause of action for violations of its rules or directives. See Cox v. Mortg. Elec. Reg. Sys., Inc., 794 F.Supp.2d 1060, 1064 (D. Minn. 2011), aff'd, 685 F.3d 663 (8th Cir. 2012). Instead, appellant served a complaint on respondent, alleging violations of state laws governing mortgage servicers, collection agencies, and consumer protection, and negligence and breach of contract. Respondent moved to dismiss pursuant to Minn. R. Civ. P. 12.02(e) (failure to state a claim upon which relief can be granted). Because it considered matters outside of the ...


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