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McGraw v. Federal National Mortgage Association

United States District Court, D. Minnesota

July 23, 2015

MARGARET M. MCGRAW, Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION; CITIMORTGAGE, INC.; CITIBANK, N.A.; and CHIMNEY PINES HOMEOWNERS ASSOCIATION, INC., Defendants.

Jonathan L.R. Drewes and Caitlin Guilford, DREWES LAW, PLLC, for plaintiff.

Jared M. Goerlitz, PETERSON, FRAM & BERGMAN, PA, for defendants.

ORDER

PATRICK J. SCHILTZ UNITED STATES DISTRICT JUDGE

Plaintiff Margaret McGraw brings this action to invalidate the foreclosure sale of her home. This matter is before the Court on cross motions for summary judgment. Because defendant Citimortgage, Inc. (“Citi”) failed to strictly comply with the statutory requirements for foreclosure by advertisement, the Court grants (for the most part) McGraw’s motion for summary judgment, denies (for the most part) defendants’ motion for summary judgment, and declares the foreclosure sale of McGraw’s home to be null and void.

I. BACKGROUND

McGraw borrowed money to buy a home and executed a mortgage on that property. The mortgage was assigned to Citi on January 3, 2011. After McGraw fell behind on her loan payments, Citi initiated foreclosure proceedings.

Citi opted to foreclose by advertisement. Minnesota’s foreclosure-by- advertisement statutes require the mortgagee (or “bank”) to provide various notices, two of which are relevant here. First, the bank must issue a “notice of foreclosure sale” that provides information about the foreclosure sale, including “the time and place of sale.” Minn. Stat. § 580.04(a)(5). Second, the bank must issue a “foreclosure advice notice” that provides information to help the mortgagor (or “homeowner”) in the foreclosure process. See Minn. Stat. § 580.041. The statute provides that the notice “must be in 14-point boldface type” and “[t]he title of the notice must be in 20-point boldface type.” Id. at subd. 1b. The statute also provides that the notice must appear substantially as follows:

. . . AS OF [insert date], this lender says that you owe $[insert dollar amount] to bring your mortgage up to date (or ‘reinstate’ your mortgage). You must pay this amount, plus interest and other costs, to keep your house from going through a sheriff’s sale.

Id. at subd. 2.

Although these requirements are clear and simple, Citi failed to comply with them when it foreclosed on McGraw’s home. First, the notice of foreclosure sale issued by Citi stated that the place of sale was the “Sheriff’s Office, Room 30, Hennepin County Courthouse, 350 So. 5th St., City of Minneapolis.” The room number and street address were correct, but the building at that address is not the “Hennepin County Courthouse.” Instead, it is Minneapolis City Hall. (The Hennepin County Courthouse is located across the street, at 300 South Sixth Street.) Second, the foreclosure-advice notice was not in 14-point boldface type and the title of the notice was not in 20-point boldface type. Finally, the foreclosure-advice notice listed a reinstatement amount as of January 9, 2012. But the notice was not served on McGraw until December 12, 2012-nearly a year later-and thus the notice did not identify the amount that McGraw had to pay to reinstate her mortgage as of the time that she received the notice.

The sheriff’s sale went forward on February 22, 2013, and the property was sold to Citi. McGraw claims that the foreclosure sale was invalid because Citi did not strictly comply with the foreclosure-by-advertisement statutes.[1] Citi disagrees. The parties have filed cross motions for summary judgment.

II. ANALYSIS

A. Standard of Review

Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute over a fact is “material” only if its resolution might affect the outcome of the lawsuit under the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving ...


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