United States District Court, D. Minnesota
William B. Butler, Esq., Butler Liberty Law, LLC, counsel for Plaintiff.
Jonathan P. Norrie, Esq., and Michelle Kreidler Dove, Esq., counsel for Defendant.
REPORT AND RECOMMENDATION
JEFFREY J. KEYES, Magistrate Judge.
This matter is before the Court for a Report and Recommendation under 28 U.S.C. § 636 and D. Minn. LR 72.1, on Defendant U.S. Bank, N.A.'s ("U.S. Bank's") Motion for Summary Judgment (Doc. No. 7). This Court took the matter under advisement on the papers submitted on November 25, 2013. (Doc. No. 19.) In this action, Plaintiff Heather Sigford seeks to invalidate the foreclosure of the mortgage on her home, and asserts three claims against U.S. Bank. These claims include: (1) a quiet-title claim, to determine adverse claims under Minn. Stat. § 559.01; (2) a claim for a declaratory judgment; and (3) a claim of slander of title. For the reasons below, this Court recommends that U.S. Bank's motion for summary judgment be granted and Plaintiff's claims be dismissed with prejudice.
Plaintiff resides in and is in possession of real property located in Saint Paul, Minnesota. (Compl. ¶ 1.) She acquired her interest in the property via warranty deed in 1999. (Compl. ¶ 2.) On September 30, 1999, Plaintiff executed and delivered a promissory note to U.S. Bank. (Compl. ¶ 4; Doc. No. 10, Aff. of Stephanie Anne Smith in Supp. of Def.'s Mot. for Summ. J. ("Smith Aff.") ¶ 2, Ex. A.) The note was secured by a mortgage to U.S. Bank dated September 30, 1999. (Compl. ¶ 4; Smith Aff. ¶ 3, Ex. B; Doc. No. 14, Decl. of William Butler ("Butler Decl.") ¶ 2, Ex. 1.)
Plaintiff alleges that several notices of pendency of foreclosure proceedings and powers of attorney to foreclose mortgage that have been recorded with the Ramsey County Recorder's Office are invalid. ( See Compl. ¶¶ 10-14.) She provides evidence of three of these proceedings in the summary-judgment record. (Butler Decl. ¶¶ 3-5, Exs. 2-4.) The first is dated March 15, 2004, and indicates that the mortgage Plaintiff gave to U.S. Bank on the property on September 30, 1999, "has been assigned as follows, " and indicates that U.S. Bank, via its Attorney-in-Fact, empowers the law firm of Wilford & Geske as its attorneys at law to foreclose the mortgage by advertisement and take all necessary steps to accomplish that end. ( Id. ¶ 3, Ex. 2.) The second and third, dated September 29, 2008, and January 6, 2010, respectively, again empower Wilford & Geske to foreclose on the mortgage by advertisement on the same terms. ( Id. ¶¶ 4-5, Exs. 2 & 3.) Plaintiff alleges that any and all documents Wilford & Geske prepared and recorded with respect to the property at issue were without legal authority and are void because "U.S. Bank securitized this mortgage loan [and] [t]o the extent U.S. Bank has legal title to this loan, it holds legal title as trustee for the benefit of mortgage-backed securities holders." (Compl. ¶¶ 9, 11.) Thus, the gist of Plaintiff's action is that the subsequent foreclosure is void because none of the assignments of the mortgage that must have taken place as a result of its securitization by U.S. Bank were recorded. The obvious problem for Plaintiff, in responding to U.S. Bank's motion for summary judgment, is that there is no evidence in the record of this alleged securitization or any assignment that occurred as a result of it. ( See Doc. No.13, Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") 2 (describing, without citation to any record evidence, how documents governing the alleged securitization of the mortgage at issue require delivery of a complete chain of title and how "[t]hese assignments of mortgage are not recorded against the subject property").)
On April 20, 2011, U.S. Bank notified Plaintiff that she had breached the mortgage by failing to make monthly payments. (Smith Aff. ¶ 4, Ex. C.) On June 2, 2011, U.S. Bank's counsel sent Plaintiff a debt validation notice and Preforeclosure Notice. (Smith Aff. ¶ 5, Ex. D.) Although Plaintiff asserts that U.S. Bank refused to provide her an exact payoff figure or accept payments she tendered (Compl. ¶ 5), there is no evidence in the record to support that assertion.
After U.S. Bank's counsel sent the debt validation notice and Preforeclosure Notice, Plaintiff asked U.S. Bank to consider a loss mitigation foreclosure alternative, which initiated a loan modification process that took several months. (Smith Aff. ¶ 6.) On June 18, 2012, U.S. Bank notified Plaintiff that her request for loan modification was declined for failure to provide U.S. Bank all necessary information. (Smith Aff. ¶ 7, Ex. E.)
On July 13, 2012, U.S. Bank gave the law firm of Usset, Weingarden & Liebo, P.L.L.P. ("Usset") power of attorney to foreclose on the mortgage on the property. (Smith Aff. ¶ 8, Ex. F.) Usset filed the power of attorney in the Office of the County Recorder for Ramsey County, Minnesota, on August 1, 2012. (Smith Aff. ¶ 8, Ex. F at 1 (notation at top of page indicating power of attorney recorded on 8/1/2012 at 1:00 p.m. with Ramsey County Recorder as Doc. # 4349031).)
On August 10, 2012, Usset served Plaintiff the following: a Notice of Mortgage Foreclosure Sale; Homestead Designation Notice; Help for Homeowners in Foreclosure Notice; Notice of Redemption Rights; and Foreclosure Advice to Tenants Notice. (Smith Aff. ¶ 9, Ex. G.) On December 14, 2012, U.S. Bank purchased the foreclosed property at a public auction Sheriff's sale, and the Certificate of Sale was recorded with the Office of the Ramsey County Recorder on December 17, 2012. (Smith Aff. ¶ 10, Ex. H.) Plaintiff did not redeem the property by the expiration of the six-month redemption period on June 14, 2013. (Smith Aff. ¶ 11.)
I. Summary-Judgment ...