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Janet Oppong-Agyei v. Chase Home Finance, LLC

Court of Appeals of Minnesota

July 8, 2013

Janet Oppong-Agyei, et al., Appellants,
Chase Home Finance, LLC, Respondent, EMC Mortgage Corporation, et al., Defendants, Usset, Weingarden & Liebo, P. L. L. P., Respondent.


Dakota County District Court File No. 19HA-CV-11-3026.

William B. Butler, Butler Liberty Law, Minneapolis, Minnesota (for appellants)

W. Anders Folk, Phillip J. Ashfield, Leonard, Street and Deinard, Minneapolis, Minnesota (for respondent)

Gerald G. Workinger, Jr., Usset, Weingarden & Liebo, PLLP, Minneapolis, Minnesota (for respondent Usset, Weingarden & Liebo, PLLP)

Considered and decided by Connolly, Presiding Judge; Stoneburner, Judge; and Rodenberg, Judge.


Appellants, mortgagors of eight properties on which the mortgages were foreclosed, challenge the summary judgment granted to respondents, the mortgagees that foreclosed the mortgages, arguing that genuine issues of material fact exist as to their claims. Because we see no genuine issues of material fact precluding summary judgment, we affirm.


The eight mortgages at issue here involve properties belonging to individual appellants or groups of appellants: (1) Janet Oppong-Agyei and Ellen Annang (the Oppong-Agyei/Annang mortgage); (2) Sylvia Marier-Urroz (the Marier-Urroz mortgage) (3) Trena and Daniel Koenig (the Koenig mortgage); (4) Michael and Julie Yakin (the Yakin mortgage); (6) William Rice (the Rice mortgage); (5) Nancy Smith and Keith Jackson (the Smith/Jackson mortgage); (7) William Bigelow (the Bigelow mortgage); and (8) Patrick Schmeichel (the Schmeichel mortgage). All the mortgages are in default, but not all have been foreclosed upon.

In May 2011, appellants brought this action alleging claims against respondents Chase Home Finance, LLC (Chase); EMC Insurance Corporation (EMC); U.S. Bank N.A.; and Mortgage Electronic Registration Systems (MERS). JP Morgan Chase Bank N.A. (JP Morgan) is the successor in interest by merger to Chase and EMC. Some claims were also alleged against respondent Usset, Weingarden & Liebo law firm (UWL), which was retained by Chase to foreclose some of the mortgages.

Respondents moved for dismissal under Minn. R. Civ. P. 12. Following a hearing, the district court dismissed eight claims and dismissed UWL as a defendant in two other claims.[1] Respondents moved for summary judgment on the remaining claims. Following a hearing, the district court issued a summary judgment dismissing those claims. Appellants challenge the grant of summary judgment, arguing that genuine issues of material fact precluded dismissal of their claims: (1) slander of title, (2) lack of standing, (3) failure to hold notes in due course, (4) fraudulent representations, (5) negligent misrepresentation, (6) negligence, (7) conversion, (8) civil conspiracy, and (9) unjust enrichment.


This court reviews a grant of summary judgment de novo, determining whether any genuine issues of material fact preclude summary judgment and whether the district court properly applied the law. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010).

I. Slander of Title

A slander-of-title claim requires (1) a false statement about real property that another person owns or has an interest in; (2) publication of that statement; (3) malice; and (4) special damages. Paidar v. Hughes, 615 N.W.2d 276, 279-80 (Minn. 2000). Appellants attempted to stop or void the foreclosures of their properties by alleging a slander-of-title claim against respondents MERS, Chase, and U.S. Bank; they also allege slander of title against respondent UWL. They argue that genuine issues of material fact preclude summary judgment dismissing their slander-of-title claim. Because the mortgages involve different facts, each mortgage will be considered separately.

A. The Oppong-Agyei/Annang Mortgage

In September 2007, the Oppong-Agyei/Annang mortgage and note were executed in favor of JP Morgan; the mortgage was recorded on October 8, 2007. On December 11, 2008, JP Morgan assigned the mortgage to Chase. On December 23, 2008, that assignment was recorded as document 2628100, and a notice of pendency of foreclosure proceedings was recorded as document 2628101. The mortgage went into default after the last payment was made in December 2009. In September 2010, Chase, the recorded holder of the mortgage, began foreclosure of the Oppong-Agyei/Annang property, retaining UWL; in November 2010, Chase purchased the property at a foreclosure sale.

JP Morgan, although it had already assigned the mortgage to Chase and therefore had no interest in it, assigned it to MERS in November 2010; this assignment, recorded in December 2010, was ineffective. See Sander v. Stenger, 117 Minn. 424, 427-28, 136 N.W. 4, 5 (1912) (noting that, when, although assignment was recorded and appeared in the notice, "it was apparent that [the assignor] had no interest to assign. . . . [C]learly neither [the assignment's] existence of record, nor the fact that the notice referred to it, in any way affected the right to foreclose the mortgage under the power of sale").

Appellants argue that "there is a genuine issue of material fact concerning the validity of this [2010] assignment." But the 2010 assignment had no legal effect, because JP Morgan, having assigned its interest to Chase in 2008, had no interest to assign in 2010. As the district court concluded, "[Chase] was the record owner of the ...

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