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Bank of America, N. A. v. Kent

Court of Appeals of Minnesota

August 5, 2013

Bank of America, N. A., Respondent,
v.
Brandon R. Kent, et al., Appellants.

UNPUBLISHED OPINION

Sherburne County District Court File No. 71-CV-12-208.

Karla M. Vehrs, Lindsey E. Middlecamp, Lindquist & Vennum LLP, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Kirk, Judge.

BJORKMAN, Judge

Appellants challenge the judgment dismissing this quiet-title action on the pleadings. We affirm.

FACTS

On October 16, 2006, appellants Brandon and Julie Kent granted a mortgage on their real property to Mortgage Electronic Registration Systems Inc. (MERS) as nominee for Decision One Mortgage Company (Decision One). The mortgage was not initially recorded. On April 16, 2009, Rolf Lindberg, a title officer at Stewart Title Guaranty Company, recorded an affidavit pursuant to Minn. Stat. § 507.29 (2008) in Sherburne County on behalf of Decision One. The affidavit states that the Kents granted a mortgage to Decision One and that the original mortgage was lost, misplaced, or otherwise unavailable for recording. A copy of the mortgage was attached to the affidavit. On October 5, 2011, MERS assigned the mortgage to respondent Bank of America N.A. (BOA). The assignment was recorded in Sherburne County on October 17.

On February 3, 2012, BOA brought this quiet-title action, seeking a declaration that the mortgage (1) encumbers the Kents' property; (2) was recorded on April 16, 2009; and (3) is a valid and enforceable contract between the Kents and BOA. BOA also sought a declaration that Bruce Creek Nursery Inc. does not have a lien on the property and does not have priority over the mortgage.[1]

In their answer, the Kents deny that the mortgage was lost, that the Lindberg affidavit is valid, and that BOA holds the mortgage by virtue of the assignment recorded on October 17, 2011. The Kents also assert the following affirmative defenses: (1) BOA lacks standing to obtain possession of the Kents' homestead and is not a real party in interest; (2) BOA does not have an ownership interest over the Kents' indebtedness and cannot assert ownership over the security interest securing the indebtedness; (3) BOA paid no consideration for the assignment and is not a real party in interest; (4) BOA cannot show an injury in fact and lacks standing; and (5) the doctrines of waiver, failure of consideration, and payment and release bar BOA's claims. The Kents subsequently served interrogatories, document requests, and requests for admission on BOA.

BOA moved for judgment on the pleadings and a protective order staying discovery. In opposing the motion, the Kents submitted a two-page document that purports to have been downloaded from MERS's website on an unknown date that identifies BOA as a servicer of the loan and HSBC Bank USA National Association as the investor; excerpts from the prospectus of the HSI Asset Securitization Corporation Trust 2007-HEI; excerpts from a pooling-and-servicing agreement (PSA) for the trust; and MERS's membership rules. BOA then filed an affidavit that attached a limited-document-search report listing the documents recorded against the Kents' real property since October 16, 2006.

During a hearing on May 24, 2012, the district court granted the protective order and allowed the Kents 30 days to provide supplemental factual information to support their affirmative defenses. The Kents did not submit additional information; and the district court extended the deadline to July 26, 63 days after the hearing. The Kents again failed to submit supplemental material regarding their ...


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