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CitiMortgage, Inc. v. Roback

Court of Appeals of Minnesota

December 23, 2013

CitiMortgage, Inc., Respondent,
v.
Deborah Roback, Appellant, Michael Davis, et al., Defendants.

UNPUBLISHED OPINION

Anoka County District Court File No. 02-CV-12-1213.

Bradley N. Beisel, Beisel & Dunlevy, P.A., Minneapolis, Minnesota (for respondent).

James Heiberg, Minneapolis, Minnesota (for appellant).

Considered and decided by Chief Judge Johnson, Presiding; Rodenberg, Judge; and Chutich, Judge.

CHUTICH, Judge.

In this mortgage dispute, appellant Deborah Roback argues that the district court erred in finding her mortgage valid under Minnesota Statutes section 507.02 (2012) and that genuine issues of material fact preclude summary judgment. Because the district court properly granted summary judgment to respondent CitiMortgage, Inc., we affirm.

FACTS

In December 2001, Roback and defendant Michael Davis were married. In June 2004, Roback purchased a home in Coon Rapids. At the time she bought it, she gave a purchase-money mortgage against the home in favor of Mortgage Electronic Registration Systems, Inc. as nominee for MILA, Inc. in the principal amount of $129, 693.14. Roback purchased the home in her own name because she "always purchased the houses on [her] own" and she "qualified with [her] own financial qualifications." Davis helped with the down payment and agreed to have only Roback's name on the title to the home. Roback and Davis lived together in the home until the fall of 2006.

In 2005, Roback discussed with Davis her wish to refinance the purchase-money mortgage. Davis told Roback he did not agree with refinancing. Roback decided to refinance the purchase-money mortgage over Davis's objection.

On January 10, 2006, Roback gave a new mortgage on the home in favor of Mortgage Electronic Registration Systems, Inc. as nominee for American Brokers Conduit in the principal amount of $127, 400 (2006 mortgage). Davis did not sign the 2006 mortgage or the note. Roback is listed, in typewriting, as "a married women" on page two of the 2006 mortgage. In an affidavit signed by Kevin Kokesh, the witness to the 2006 mortgage, "a married person" is handwritten after Roback's name. The balance of the 2004 purchase-money mortgage was paid in full from the proceeds of the 2006 mortgage.

That same day in January 2006, Roback obtained a second mortgage on the home in favor of Mortgage Electronic Registration Systems, Inc. as nominee for American Brokers Conduit in the principal amount of $35, 600 (second mortgage). With the 2006 mortgage and second mortgage, Roback was able to lower her monthly payments and to pay off other debts.

Roback thought that the 2006 mortgage was valid and paid the mortgage payments through 2010. Roback lost her job in 2009, and after about one year, she was no longer able to pay the mortgages. She filed for bankruptcy in 2011, and she included the debt from the 2006 and second mortgages in the list of debts owed. Roback believed that the 2006 mortgage was valid until this lawsuit began. She stated in her deposition that "[n]o one told [her] that a second signature [was required] or no one ever advised [her that she] needed a co-signer on these loans."

Roback and Davis are still married, but have been living apart since the fall of 2006. In explaining what caused their relationship to deteriorate, Roback stated, "We discussed refinancing the mortgage, and he was absolutely set on not refinancing the mortgage because of the economy and the market. And he wanted to sell the property versus refinancing. And I went ahead and refinanced it without his knowledge, and my marriage ended." Davis confirmed that he moved out of the home in approximately September 2006 and that the relationship deteriorated because Roback refinanced when he disagreed with it and without ...


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