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Salgado-Fuentes v. Great Southern Bank

United States District Court, D. Minnesota

February 19, 2014

Javier Salgado-Fuentes, Plaintiff,
v.
Great Southern Bank, Mortgage Electronic Registration Systems, Inc., and MERSCORP, Inc., Defendant.

William B. Butler, Butler Liberty Law, LLC, counsel for Plaintiff. [1]

Jared M. Goerlitz, Peterson, Fram & Bergman, PA, counsel for Defendant.

REPORT AND RECOMMENDATION

JEFFREY J. KEYES, Magistrate Judge.

This action is before the Court, Magistrate Judge Jeffrey J. Keyes, 316 N. Robert St., St. Paul, MN 55101, on a Motion to Dismiss by Defendants Great Southern Bank, Mortgage Electronic Registration Systems, Inc. ("MERS"), and MERSCORP, Inc. (AGreat Southern@) (Doc. No. 4). The motion has been referred to the Magistrate Judge for report and recommendation under 28 U.S.C. ' 636(b)(1) and Local Rule 72.1(c). The matter is considered on the documents and without a hearing. It is this Court=s determination herein that the Motion to Dismiss by Defendant Great Southern should be granted and the case be dismissed with prejudice.

I. BACKGROUND AND CLAIMS

Plaintiff alleges the following background facts which we assume to be true for purposes of this motion.

Javier Salgado-Fuentes resides in and is in possession of real property located at 14311 S. Alabama Ave., Savage, MN 55378, legally described as Lot 10, Block 1, Cherrywood, Scott County, Minnesota. On October 18, 2006, Plaintiff executed and delivered a note payable to Prime Mortgage Corporation ("PMC") in the principal amount of $331, 200.00. On that date he also executed a mortgage ("Mortgage") to PMC with MERS identified as nominee for PMC. (Doc. No. 1, Compl. ¶ 6, Ex. 1.)

On February 22, 2012, Inter Savings Bank, FSB ("Inter Savings Bank") drafted an Assignment of Mortgage ("2/22/12 AOM") purporting to transfer the Mortgage from MERS as nominee for PMC to Inter Savings Bank. Tori Mock signed the 2/22/12 AOM as "Assistant Secretary of MERS". The 2/22/12 AOM was recorded with the Scott County Recorder on 2/27/12 as Document No. A899474. ( Id. ¶ 12, Ex. 2.)

On March 15, 2012, the law firm of Peterson, Fram, and Bergman, PA ("PFB") drafted and recorded a Notice of Pendency of Proceeding and Power of Attorney ("3/15/12 NOP/POA"). Angela Pulli executed the 3/15/12 NOP/POA as Assistant Secretary & Vice President of Inter Savings Bank. The 3/15/12 NOP/POA purported to empower PFB to conduct a foreclosure on the Property. Ms. Pulli executed the 3/15/12 NOP/POA in New Jersey. Plaintiff alleges that Ms. Pulli was not a Vice President of Inter Savings Bank at the time she executed the 3/15/12 NOP/POA. The 3/15/12 NOP/POA was recorded with the Scott County Recorder on 3/22/12 as Document No. A901517 ( Id. ¶ 14, Ex. 4.) On March 19, 2012, PFB prepared a Notice of Foreclosure Sale for Inter Savings Bank ("03/19/12 NOF"). The 3/19/12 NOF identified Inter Savings Bank as the foreclosing entity. ( Id. ¶ 15)

On April 27, 2012 the FDIC shut down Inter Saving Bank and seized all of its assets. ( Id. ¶ 16, Ex. 5.) On or about April 27, 2012 Defendant Great Southern Bank and the FDIC entered into a purchase, assumption and loss sharing agreement whereby Great Southern acquired some of the seized assets of Inter Savings Bank and the FDIC agreed to assume 80 percent of Great Southern's losses on the acquired assets. ( Id.)

On October 1, 2012 Great Southern Bank prepared an assignment of mortgage purportedly assigning the Mortgage from the FDIC as Receiver for Inter Savings Bank to Great Southern Bank ("10/1/12 AOM"). The 10/1/12 AOM was recorded with the Scott County Recorder on January 24, 2013 as Document Number A927160. ( Id. ¶ 18, Ex. 6.)

On January 28, 2013, Great Southern executed a Notice of Pendency of Proceeding and Power of Attorney to Foreclose Mortgage by Corporation empowering PFB to foreclose on the Property ("1/28/13 NOP/POA"). The 1/28/13 NOP/POA was recorded with the Scott County Recorder on 2/08/13 as Document Number A928542. ( Id. ¶ 19, Ex. 7.)

On April 9, 2013, PFB, on behalf of Great Southern Bank, prepared a Sheriff's Certificate indicating that Great Southern Bank had the legal authority to make a credit bid at the sale and appeared at a sheriff's sale of the Property. The Sheriff's Certificate of Sale and foreclosure record was recorded in the Scott County Recorder's Office as Document No. A933006. ( Id. ¶ 21, Ex. 7.)

Plaintiff commenced an action against Defendants in the State of Minnesota District Court, County of Scott, requesting that the court declare the non-judicial foreclosure by Great Southern Bank invalid and void as a matter of law and seeking damages against Defendants. The action was removed to this federal court pursuant to 28 U.S.C. § 1332(a). Defendants now bring this ...


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