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Roseland v. Wentzell

Court of Appeals of Minnesota

May 18, 2015

Kenneth A. Roseland, et al., Appellants,
v.
Joseph A. Wentzell, Attorney at Law, et al., Respondents, Richard L. Kusick, et al., Respondents, and Roseland Acres, LLC, et al., third party plaintiffs, Respondents,
v.
Eric Brever, Attorney at Law, et al., third party defendants

Page 357

[Copyrighted Material Omitted]

Page 358

Pine County District Court File No. 58-CV-12-479.

SYLLABUS

An equitable mortgage created during the foreclosure process does not constitute a foreclosure reconveyance under Minn. Stat. § 325N.10, subd. 3 (2014), when the mortgage does not allow the mortgagee to acquire title to the property by redeeming the property as a junior lienholder.

A district court may order that mortgaged premises, including agricultural land, be sold as one parcel under Minn. Stat. § 581.04 (2014), if the court determines that a sale as one parcel is most beneficial to the interests of the parties and the mortgagor does not request that tracts be sold separately under Minn. Stat. § 582.042, subd. 3 (2014).

Kenneth A. Roseland, et al., Appellants, Pro se, Moose Lake, Minnesota.

For Joseph A. Wentzell, et al., Respondents: Charles E. Jones, Melissa Dosick Riethof, Meagher & Geer, PLLP, Minneapolis, Minnesota.

For Richard L. Kusick, et al. and Roseland Acres, LLC, et al., Respondents: Robert L. Meller, Jr., Joseph J.W. Phelps, Best & Flanagan LLP, Minneapolis, Minnesota.

For Eric Brever, et al., Third Party Defendants: Richard J. Thomas, Burke & Thomas, PLLP, Arden Hills, Minnesota.

Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and Stauber, Judge.

OPINION

Page 359

SCHELLHAS, Judge

Appellants challenge summary judgment for respondents on appellants' claims of legal malpractice and statutory violations under Minn. Stat. § § 325N.01-.18 (2014), Minnesota's home-ownership and equity-protection act (MHOEPA), and on respondent's counterclaim for foreclosure of an equitable mortgage.[1] Appellants also challenge the amount of the judgment against them. We affirm in part, reverse in part, and remand for further proceedings.

FACTS

Appellants Kenneth and Diana Roseland own farmland identified as parcels A through E in Pine County and parcels F and G in Carlton County.[2] Various improvements are located on the farmland, including Roselands' home on parcel B. To secure loans from First National Bank of Moose Lake, Roselands granted First National mortgages on parcels A, B, and G. Roselands defaulted on their mortgage loans, engaged in unsuccessful mediation with First National, and, in January 2007, retained respondents Joseph Wentzell and Wentzell Law Office P.L.L.C. (individually or collectively, Wentzell) to represent them. Because Roselands did not cure their defaults, First National commenced foreclosure proceedings. Wentzell represented Roselands in petitioning for bankruptcy and later assisted Roselands in objecting to First National's motion to lift the automatic stay as to parcels A, B, and G, arguing that Roselands' reorganization plan required that their farmland not be split.

During the bankruptcy proceedings, Roselands and First National reached agreement regarding the debt repayment, but Roselands initially refused to provide notarized signatures on the written agreement. First National sought reimbursement from Roselands for the expenses it incurred as a result of the delay. Roselands provided First National with a notarized agreement but failed to reimburse First National for its delay expenses. The bankruptcy court lifted the automatic stay and dismissed Roselands' bankruptcy case.

In early 2008, First National commenced a foreclosure by advertisement against parcels A and B and a foreclosure by action against parcel G. On May 22, 2008, First National purchased parcels A and B at a sheriff's sale. Wentzell continued to represent Roselands, who understood that they had one year to redeem parcels A and B. Roselands interposed an answer and a usury counterclaim in the foreclosure-by-action proceeding against parcel ...


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