United States District Court, D. Minnesota
William B. Butler, Esq., 
Butler Liberty Law, LLC, counsel for Plaintiff.
Jessica Z. Savran, Esq., and Charles F. Webber, Esq., Faegre Baker Daniels LLP, counsel for Defendant.
REPORT AND RECOMMENDATION
JEFFREY J. KEYES, Magistrate Judge.
Plaintiff Maria Twigg obtained an interest in residential real property in Eden Prairie, Minnesota, by warranty deed dated January 19, 2004. (Compl. ¶¶ 1-2, Doc. No. 1.) On July 21, 2005, Plaintiff executed and delivered a note payable to BNC Mortgage Corporation, Inc. ("BNC") and a mortgage to BNC Mortgage, Inc. with MERS identified as nominee for BNC Mortgage, Inc. ( Id. ¶ 4, Ex. 1.) On October 7, 2010, the law firm of Shapiro & Zielke, LLP ("Shapiro") drafted an assignment of mortgage from MERS to U.S. Bank National Association as Trustee for the Structured Asset Investment Loan Trust, 2005-9 ("U.S. Bank".) The assignment was recorded in the Hennepin County Recorder on January 10, 2011, as Document No. A9608520. ( Id. ¶ 20, Ex. 4.) On October 14, 2010, James E. Blue, Vice President of Loan Documentation for Wells Fargo Bank, N.A., executed a Notice of Pendency of Proceeding and Power of Attorney to Foreclose Mortgage ("NOP/POA") as attorney in fact for U.S. Bank. This NOP/POA appointed Shapiro to foreclose the mortgage. This NOP/POA was recorded on January 10, 2011. ( Id. ¶ 21, Ex. 5.) On May 4, 2012, Ronald Spencer, an attorney at Shapiro, executed a Notice of Pendency of Proceeding to Foreclose Mortgage, which was recorded on May 7, 2012. ( Id. ¶ 22, Ex. 6.)
On November 15, 2012, Shapiro drafted a Notice of Pendency of Proceeding to Foreclose Mortgage. This Notice was signed by Gary J. Evers as attorney for Shapiro and recorded with the Hennepin County Recorder as Document No. A9872381. ( Id. ¶ 23, Ex. 7.) On January 11, 2013, Shapiro, on behalf of U.S. Bank, appeared at the sheriff's sale at which U.S. Bank successfully bid $193, 800. ( Id. ¶ 24, Ex. 8.) The certificate of sale was recorded on January 16, 2013. ( Id. )
Plaintiff contends that the subject mortgage was securitized into a mortgage-backed security trust entitled "Structured Asset Investment Loan Trust Mortgage Pass-Through Certificates, Series 2005-9" (the "Trust"). She further contends that the governing documents of the trust and securitization process required execution and delivery of all assignments of mortgage to U.S. Bank, trustee of the Trust, prior to October 28, 2005, which was the closing date for the Trust. ( Id. ¶¶ 6-9.) Plaintiff asserts that failure to satisfy this requirement opens the opportunity to now void the foreclosure sale and transfer of title to the property in 2013. ( Id. ¶ 13.) Noting that the assignment of mortgage from MERS to U.S. Bank that was filed prior to the foreclosure was dated October 7, 2010, Plaintiff speculates that if the mortgage was assigned to U.S. Bank prior to October 28, 2005, as required by the trust agreement, then there was an unrecorded assignment and this violated the requirement of Minn. Stat. § 580.02 that all assignments be recorded before foreclosure. ( Id. ¶¶ 31-32.) Alternatively, if the mortgage was not assigned to U.S. Bank before October 28, 2005, then, Plaintiff alleges, "U.S. Bank cannot claim title to or any interest in the mortgage loan" because "[t]he 10/07/10 AOM [assignment of mortgage] violates the terms of the Securitization Documents and New York trust law which requires execution and delivery of all assignments of mortgage prior to October 28, 2005." ( Id. ¶ 31.)
Plaintiff also raises two additional arguments about deficiencies in the foreclosure process. She contends that there is no power of attorney from U.S. Bank to Wells Fargo in the public real estate records giving Wells Fargo the authority to act as attorney in fact for U.S. Bank. And she asserts that nobody who executed foreclosure-related documents had authority to do so. ( Id. ¶ 34.)
In this action, Plaintiff seeks to invalidate the foreclosure sale of the property and thus void the Sheriff's Certificate of Sale of the subject property. This case should be dismissed because the Complaint fails to state a claim upon which relief can be granted.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a complaint must be dismissed if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Blankenship v. USA Truck, Inc., 601 F.3d 852, 853 (8th Cir. 2010). It must not, however, give effect to conclusory allegations of law. Stalley ex rel. United States v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007). The plaintiff must do more than offer "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. Instead, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id.
Ordinarily, if the parties present, and the court considers, matters outside of the pleadings, a Rule 12(b)(6) motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d). But the court may consider exhibits attached to the complaint and documents that are necessarily embraced by the complaint without converting the motion into one for summary judgment. Mattes v. ABC Plastics, Inc., ...