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Ofori v. Wells Fargo Bank N.A.

Court of Appeals of Minnesota

July 8, 2013

Wil A. Ofori, et al., Appellants,
v.
Wells Fargo Bank, N.A., as Trustee for Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2005-NC2, et al., Respondents.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CV-11-11679

Marcus Anton Jarvis, Jarvis & Associates, P.C., Burnsville, Minnesota (for appellants)

Curtis D. Ripley, Leonard, Street and Deinard, Professional Association, Minneapolis, Minnesota (for respondents)

Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Stauber, Judge.

HUDSON, Judge

Appellant mortgagors challenge the district court's summary judgment on their claims relating to foreclosure of their residential mortgage. Because the district court did not err by concluding that appellants failed to show a material factual issue based on a legally cognizable claim relating to the mortgage foreclosure, we affirm.

FACTS

In February 2005, appellants Wil A. Ofori and Comfort Lartey-Ofori purchased residential property in Champlin. To finance the purchase, New Century Mortgage Corporation issued a $360, 000 note, which was secured by a mortgage on appellants' property. In May 2005, New Century transferred the note to a mortgage-backed security trust for securitization: the Structured Asset Securities Corporation Mortgage Pass-Through Certificate Series 2005-NC2 Trust. New Century retained legal title to the mortgage, and after the trust was closed in 2005, respondent Wells Fargo, as trustee, continued to manage the mortgage interests contained in the trust assets. In July 2005, servicing rights on the mortgage were transferred to Chase Home Finance, LLC, whose successor-in-interest is JPMorgan Chase Bank, N.A. (Chase). Chase was given power of attorney to perform acts in connection with servicing of the mortgage.

In 2008, appellants defaulted on the loan. Although they attempted to work out a loan modification with Chase in 2008, they remained unable to pay, and Chase issued a notice of acceleration and intent to foreclose. In February 2009, New Century assigned its interest in the mortgage and note to the trust. Wells Fargo, acting as trustee, initiated foreclosure proceedings but agreed to suspend them while appellants attempted to work out a loan modification with Chase in 2009 and 2010. Ultimately those efforts were unsuccessful, and in 2010 Wells Fargo reinitiated the foreclosure process. Wells Fargo complied with the requirements for foreclosure and purchased the property at a sheriff's sale in November 2010.

On the last day of the redemption period, appellants commenced this action, seeking a declaration that respondents had no legal rights in the note or mortgage and lacked standing to foreclose on the property because the assignment of the original lender's interest did not comport with requirements of the trust documents, specifically the included pooling and servicing agreement (PSA). Appellants were also seeking loan modification through a then-existing federal program, the Independent Foreclosure Review process.

Wells Fargo moved for summary judgment.[1] The district court granted summary judgment, concluding that there were no genuine issues of material fact and that the theories asserted in appellants' complaint were unsupported by Minnesota law. This appeal follows.

DECISION

This court reviews de novo the district court's grant of summary judgment to determine whether genuine issues of material fact exist and whether the district court erred in its application of the law. Ruiz v. 1st Fid. Loan Servicing, LLC, 829 N.W.2d 53, 56 (Minn. 2013); Minn. R. Civ. P. 56.03. A reviewing court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). But a party cannot defeat a motion for summary judgment with "unverified and conclusory allegations or by postulating evidence that might be developed at trial." Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn. 2002). Summary judgment is proper if "the issues ...


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