This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








Prosch Bros., Inc.,


Steven Walker; Janet Walker et al.,



Filed February 12, 2002


Crippen, Judge



Dakota County District Court

File No. C8007517



Jack W. Clinton, Jack W. Clinton, P.A., Suite 200 Currell Center, 7616 Currell Boulevard, Woodbury, MN 55125 (for respondent)


David E. Albright, 7814 131st Street West, Apple Valley, MN 55124 (for appellants)


            Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N




            Appellants, former owners of a Dakota County parcel of land, challenge the trial court’s denial of their motion to vacate a redemption by respondent Prosch Bros., Inc.,[1] from a mortgage foreclosure sale.  Because we agree with the trial court’s determination that appellants have no standing to seek the relief they request, we affirm the court’s denial of appellants’ motion.



Appellants Steven and Janet Walker owned property that was subject to a mortgage foreclosure by advertisement and a mechanic’s lien foreclosure proceeding.  On January 10, 2001, the three mechanic’s lien claimants and appellants presented a stipulation to the trial court that the claimants agreed to discharge their mechanic’s lien claims against the property for personal judgments against appellants.  On January 13, 2001, the trial court signed the stipulation and entered personal judgments against appellants in favor of the three mechanic’s lien claimants, including one in favor of respondent Prosch.  The mechanic’s liens were discharged and the claimants each filed affidavits of identity and docketed their judgments. 

The six-month period to redeem from the foreclosure by advertisement expired January 19, 2001, and appellants did not redeem from the mortgage foreclosure sale.  Respondent’s assignee exercised its rights of redemption as a junior creditor within the statutorily prescribed time.

Appellants requested that the trial court vacate its January 13, 2001 judgment because it was obtained through fraud.  On April 13, 2001, the court did vacate its January 13 judgment because it found that Prosch’s attorney misrepresented the circumstances surrounding the written stipulation.  Appellants then requested that the trial court (1) vacate respondent’s redemption because respondent redeemed the mortgage pursuant to a fraudulent judgment; and (2) enter judgment in conformity with the proposed amended findings of fact, conclusions of law, and order for judgment.  On June 15, 2001, the trial court entered its amended findings of fact and order for judgment outlining the parties’ stipulation. The trial court granted personal judgments against appellants and discharged the mechanic liens. 

After the June 15, 2001 order, appellants amended their motion, asking the court to vacate respondent’s redemption.  The trial court (1) denied appellants’ request to vacate respondent’s redemption; (2) found that the amended judgment filed on June 15, 2001, was valid and effective on the date judgment was originally entered—January 13, 2001; and (3) found that, because appellants’ rights in the property expired, they lacked standing to challenge respondent’s redemption.  This appeal followed. 



            Our review is de novo, involving the application of law to stipulated facts.  Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992).  To establish standing for an action, a party must demonstrate a personal stake in the outcome of the controversy to ensure “injury or threat of injury to a legally recognized, rather than personal, interest.”  Envall v. Indep. Sch. Dist. No. 704, 399 N.W.2d 593, 596 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).

The trial court found that appellants lacked standing to challenge respondent’s redemption of the mortgage because their rights in the property were extinguished when the redemption period expired.  Appellants contend that the “district judge misperceived the standing requirement and its rationale” and argue that they have standing to challenge respondent’s redemption because they have suffered an economic injury. 

Specifically, appellants allege that they have standing because of the tenancy rights acquired from Joe Meger, Mrs. Walker’s father, after he purchased appellants’ property by obtaining an assignment of the sheriff’s certificate on January 19, 2001.  In argument to this court, appellants contend that Meger granted them an oral month-to-month tenancy.  But the record reflects no oral tenancy agreement in the evidence offered or the arguments stated to the trial court.  This court is not to consider matters that are not contained in the record and not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see also Minn. R. Civ. App. 110.01 (the record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any”).

Even if an oral agreement for a periodic tenancy existed, appellants are claiming an oral lease with Meger, who no longer has an interest in the property because respondent properly redeemed the property, and Meger received respondent’s payment for the property.  See Mitchell v. Hawley, 83 U.S. 544, 550 (1873) (expressing the general property principle that one can not convey what one does not own).  Because appellants failed to redeem the property and because the record reflects no oral tenancy agreement that conveys an interest in the property to appellants, appellants lack standing to challenge respondent’s redemption.  See Johnson v. Melges, 163 Minn. 315, 316, 203 N.W. 983, 983 (1925) (holding that a mortgagor who fails to redeem from the foreclosure sale has no interest in the property and thus cannot challenge the validity of a creditor’s redemption).  Whether or not cause exists to challenge the respondent’s redemption, appellants lost their ability to get relief on that question when they failed to redeem the property.[2]

Appellants contend that respondent’s redemption is improper because it is based on the court’s order that vacated the January 13 personal judgments against appellants due to a misrepresentation of facts to the judge.  But after the vacation, the trial court on June 15, 2001, amended the January 13 judgment and upheld respondent’s personal judgment against appellants.  Having heard the parties on the dispute, the trial court in the order on appeal found that the June 15 amended order was valid and effective on January 13, 2001.  Basically, the trial court corrected the record “in furtherance of justice” through a nunc pro tunc entry of judicial action.  See Hampshire Arms Hotel Co. v. Wells, 210 Minn. 286, 288, 298 N.W. 452, 453 (Minn. 1941) (“The record of a judgment presently (nunc) made is given effect as of a prior time (tunc) when it should have been entered.”).  Appellant has not offered any challenge to the trial court’s nunc pro tunc determination.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (issues not briefed on appeal are waived); see also Thiele, 425 N.W.2d at 582 (Minn. 1988) (this court will generally not consider matters not argued and considered in the trial court).

Moreover, appellants’ contention that the mechanic’s lien rights of respondent were to be extinguished by a stipulation of the parties in January 13, 2001, ignores the fact that if the terms were given effect, respondent would still enjoy its personal judgment against appellants. 

Because appellants have no standing to challenge respondent’s redemption of the mortgage, we affirm the trial court’s determination denying appellants’ motion to vacate respondent’s redemption.




[1] Respondent Prosch assigned its personal judgment against appellants to Phenix Development, Inc.  Although Phenix argued this case on appeal, Phenix is not a named party because they are simply acting as Prosch’s assignee. 

[2] Appellants’ concern regards the lasting effect of respondent’s mechanic’s lien claims after they were to be extinguished under the stipulation of the parties, thus impairing appellants’ ability to redeem the mortgage.  But appellants did not seek and obtain judicial relief on that issue before their rights were extinguished by the passing of the redemption period.