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Walsh v. U.S. Bank, N. A.

Court of Appeals of Minnesota

November 18, 2013

Laura L. Walsh, Appellant,
v.
U.S. Bank, N. A., Respondent.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CV-12-25292

Martin A. Carlson, Law Offices of Martin A. Carlson, Ltd., Minneapolis, Minnesota; and Roy B. Henline, Henline Law, P.A., Maple Grove, Minnesota (for appellant)

Charles F. Webber, Colton D. Long, Faegre Baker Daniels, LLP, Minneapolis, Minnesota (for respondent)

Considered and decided by Cleary, Presiding Judge; Kirk, Judge; and Smith, Judge.

SMITH, Judge

We reverse and remand because the district court erred by (1) dismissing appellant Laura Walsh's claim under Minn. R. Civ. P. 12.02(e) that respondent U.S. Bank, N. A. (USB) failed to properly serve a notice of foreclosure and (2) ruling that the sheriff's certificate from the sale pursuant to Minn. Stat. § 580.19 (2012) conclusively showed that the service of notice was proper.

FACTS

When Walsh defaulted on her mortgage, USB, the holder of that mortgage, began a nonjudicial foreclosure proceeding. USB served a notice of the foreclosure sale and other documents on a woman at the property who refused to identify herself. The process server's affidavit of service states that he was at the premises and served the documents

on the person(s) in possession thereof; that on said day and for some time prior thereto, said premises were and have been occupied by Jane Doe, adult female occupant who refuses to give her name or acquiesce to service and no one else; that (s)he served the attached by handing to and leaving with Jane Doe personally one (1) true and correct copy thereof. At the time of service, Jane Doe refused to open the door and accept service in hand. I displayed the Notices to her and told her that I would leave them in the door if she didn't want to cooperate. She began shouting at me about trespassing . . . much of what she said was unintelligible. I left the Notices in a secure place in her door.

After the foreclosure sale, Walsh sued USB, asserting that the foreclosure sale was defective because USB had not properly served the notice of foreclosure. USB moved to dismiss Walsh's suit with prejudice, under Minn. R. Civ. P. 12.02(e), arguing that her complaint failed to state a claim on which relief may be granted. After a hearing, the district court granted USB's motion to dismiss, stating that Walsh "failed to establish any evidence or facts giving rise to a plausible claim for relief[, ]" and that "[a]ll of the appropriately considered facts fail to establish improper service. Instead, her purported claim directly contradicts the Affidavit of Service on Occupant attached to her Complaint. In addition, pursuant to Minn. Stat. § 580.19, the Sheriff's Certificate serves as prima facie evidence that service was proper."

DECISION

I.

When a property is foreclosed by advertisement, a copy of the notice of a foreclosure sale "shall be served in like manner as a summons in a civil action" on "the person in possession of the mortgaged premises, if the same are actually occupied[.]" Minn. Stat. ยง 580.03 (2012). Here, it is undisputed that the premises were occupied. A summons in a civil action is served "by delivering a copy to the individual personally or by leaving a copy at the individual's usual place of abode ...


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