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Twait v. MidFirst Bank

Court of Appeals of Minnesota

January 26, 2015

Randall L. Twait, Appellant,
v.
MidFirst Bank, Respondent

Hennepin County District Court File No. 27-CV-13-18426.

SYLLABUS

For the purposes of Minn. Stat. § 580.02 (2012) (providing that any assignments of a mortgage must be recorded before foreclosure by advertisement may begin), foreclosure begins with the first publication of the notice of sale.

For Appellant: Jonathan L. R. Drewes, Drewes Law, PLLC, Minneapolis, Minnesota.

For Respondent: Kalli L. Ostlie, Shapiro & Zielke, LLP, Burnsville, Minnesota.

Considered and decided by Connolly, Presiding Judge; Halbrooks, Judge; and Bjorkman, Judge.

OPINION

CONNOLLY, Judge

Appellant, a mortgagor of property, brought this action against respondent, the mortgagee, for a declaration that the sheriff's sale of the property was null and void because foreclosure proceedings were begun before the final assignment of the mortgage had been recorded. The district court granted respondent's motion for summary judgment because the final assignment of the mortgage was recorded a week before the first publication of the notice of sale, the event established by Minnesota statutes and caselaw as the commencement of foreclosure proceedings. Appellant challenges the summary judgment. Because both statutory law and caselaw establish the first publication of the notice of sale as the commencement of a foreclosure proceeding, we affirm.

FACTS

In April 2001, appellant Randall Twait secured a piece of real property in Minneapolis (the property) by executing and delivering to Allied Mortgage Capital Corporation (Allied) a mortgage of $112,730. Allied's interest was assigned to RBMG Inc. (RBMG), and the mortgage and assignment were recorded in June 2001. In

Page 395

January 2002, RBMG assigned the mortgage to Mortgage Electronic Registration Systems Inc. (MERS); that assignment was recorded in February 2002.

In November 2012, MERS assigned the mortgage to respondent MidFirst Bank. Because appellant defaulted on the mortgage payments, respondent on December 3, 2012, mailed appellant a Notice of Mortgage Foreclosure Sale, which stated that a foreclosure sale was scheduled for January 29, 2013. On December 4, 2012, the assignment to respondent was recorded, together with a notice of pendency.

The public was first notified of the sale on December 12, 2012, when the notice of sale was first published. The notice of sale was personally ...


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