This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-330

 

Homecomings Financial Network, Inc.

Respondent,

 

vs.

 

Paul N. Ode,

Appellant,

 

Richard J. Dedrickson, et al.,

Defendants.

 

Filed August 27, 2002

Affirmed

Randall, Judge

 

Ramsey County District Court

File No.: C1-99-9167

 

 

Eric D. Cook, Kerry A. Evans, Leonard, O'Brien, Wilford, Spencer & Gale, Ltd., 100 South Fifth Street, Suite 1200, Minneapolis, MN 55402 (for respondent)

 

Alan W. Weinblatt, Madonna M. Kasbohm, Weinblatt & Gaylord, PLC, 1616 Pioneer Building, 336 Robert Street, St. Paul, MN 55101 (for appellant)

 

 

Considered and decided by Randall, Presiding Judge, Hanson, Judge, and Hudson, Judge.

 

U N P U B L I S H E D O P I N I O N

RANDALL, Judge.

Appellant challenges a district court order denying his motion to vacate a default judgment based on a stipulation, stay the expiration of the redemption period, and for permission to amend his answer. Appellant argues that respondent is not a bona fide purchaser of a mortgage because respondent knew or should have known that the loan appellant took out on the property was on behalf of a trust. Appellant also argues that the stipulation is defective because there was no discovery before it was entered into, there was no consideration, and appellant, as an individual, could not mortgage trust property or stipulate to its foreclosure. Respondent contends that this appeal is untimely because appellant failed to file this appeal from the underlying foreclosure judgment within the 60-day appeal period. We conclude appellant's appeal is untimely and he has shown no exception. We affirm.

FACTS

Appellant Paul N. Ode signed a contract for deed on May 24, 1996, for Lot 5, Block 2, Wegleitner Addition, Ramsey County, Minnesota ("Skillman property"). The deed reads "Paul Ode, a single person, Purchaser." Appellant signed the contract for deed "Paul Ode Trustee." In February 1998, appellant executed and delivered a promissory note to Great Northern Mortgage Corporation (GNMC) in the principal amount of $91,500. To secure payment of the debt evidenced in the note, appellant executed and delivered to GNMC a mortgage for the Skillman property. The mortgage reads the "mortgagor is PAUL N ODE, A SINGLE MAN." The mortgage was assigned to WMC Mortgage Company (WMC) and then to respondent, Homecomings Financial Network, Inc.

In May 1998, appellant defaulted on the mortgage. Respondent commenced a foreclosure action in October 1999. Appellant and respondent entered into a settlement agreement, called "Stipulation for Entry of Decree of Foreclosure" (stipulation). The stipulation was written between respondent and appellant. According to the stipulation, respondent was entitled to a decree of foreclosure on the mortgage. Appellant, however, retained redemption rights and a right to reinstate the mortgage before the sheriff's sale. Appellant added a handwritten note, preserving "the right to proceed against all who created a usurious loan." Appellant and the attorneys for both appellant and respondent signed the stipulation. Respondent filed the stipulation and, the district court ordered judgment of foreclosure in April 2000.

On May 8, 2000, respondent filed an amended complaint to include additional junior lienholders in the foreclosure. Appellant and additional defendants did not respond to the complaint or appear in court, and the district court entered a default judgment against all defendants in November 2000. The Skillman property was sold by the Ramsey County Sheriff's Department at a public sale on March 27, 2001. The sheriff's sale was confirmed by a district court order on May 2, 2001. The redemption period expired on November 2, 2001, and Ode did not appeal from the confirmation order.

In October 2001, appellant filed a motion to vacate the default judgment, leave to amend his answer to assert a counterclaim and for an order temporarily enjoining the expiration of the redemption period. Appellant asserted that the default judgment should be vacated because GNMC engaged in fraud, misrepresentation, and other wrongful conduct regarding the 1998 financing, because of discrepancies in the deed document concerning appellant's ownership and because of appellant's health problems. Appellant argued that respondent was not a bona fide purchaser of the mortgage because respondent should have noticed the word "trustee" after his name on the contract for deed. The district court, on November 1, 2001, denied appellant's motions "in their entirety."

Respondent commenced an eviction proceeding against appellant. The Ramsey County Housing Court entered an order for a writ of recovery but stayed execution of the writ for seven days based on appellant's agreement to vacate the property within seven days. Appellant failed to vacate the property and respondent scheduled a move out date with the Ramsey County Sheriff for January 4, 2002. The writ expired and the Ramsey County Sheriff's department could not reschedule in time.

On January 3, 2002, appellant brought a motion seeking to vacate the default judgment and enjoin the sheriff from executing the writ of recovery in the eviction proceeding case. In a January 4, 2002 order, the district court denied appellant's motion to vacate the judgment and application for temporary injunctive relief.

Respondent's second eviction action was heard on January 15, 2002. The matter was continued to February 4, 2002, after appellant requested a jury trial. At the time of trial, appellant waived a jury trial and respondent and appellant agreed to a stipulated order allowing appellant to pursue an appeal and remain in possession of the property if he perfected the appeal by March 15, 2002, and posted a $10,0000 bond. Appellant failed to comply with the terms and a hearing was held. The eviction court denied appellant's request to relieve him of the obligation to post the bond. Respondent scheduled a move out date for April 5, 2002. Appellant challenges the district court's orders of November 1, 2001, and January 4, 2002, arguing that respondent is not a bona fide purchaser of the mortgage because respondent knew or should have known that the loan appellant took out against the property was on behalf of a trust. Appellant also argues that the stipulation is defective because there was no discovery before it was entered and because appellant, as an individual, could not mortgage trust property or stipulate to its foreclosure. Respondent argues this appeal is untimely because appellant failed to appeal from the underlying foreclosure judgment before expiration of the 60-day time period under Minn. R. Civ. App. P. 104.01, subd. 1.

D E C I S I O N

Respondent Homecomings Financial Network argues that appellant Paul N. Ode's appeal from two post-judgment orders that denied his motion to vacate the district court's final judgment is untimely. Respondent contends that because appellant did not appeal from the underlying judgment this court lacks jurisdiction to hear his appeal. Appellant argues that under Minn. R. Civ. App. P. 103.03(b) and (e), his appeal is timely because the district court's November 1, 2001, and January 4, 2002, orders denied him injunctive relief, determined the underlying action, and denied a motion to vacate a default judgment.

We agree with respondent, the appeal is untimely. Appellant failed to contest the underlying foreclosure action before expiration of the 60-day appeal period requirement of Minn. R. Civ. App. P. 104.01, subd. 1. On April 25, 2000, the district court entered judgment against appellant pursuant to the stipulation for entry of decree of foreclosure. On October 25, 2000, the district court ordered an amended decree of foreclosure, which became a final judgment on November 11, 2000. On May 2, 2001, the district court confirmed the sheriff's sale. Rather than appealing to our court from these final judgments within the normal 60-day appeal period, appellant waited until October 2001 to argue the merits of the case of the underlying foreclosure action. The proper appeal from a final judgment is from the underlying judgment. LaFond v. Sczepanski, 273 Minn. 293, 295-96, 141 N.W.2d 485, 487 (1966). Appellant has shown no valid reason mandating an exception to the rules of procedure. See Minn. R. Civ. App. P. 103 (stating conditions for which an appeal may be taken).

Appellant contends that his appeal is from the district court orders dated November 1, 2001, and January 4, 2002, denying his motion to vacate a "default" judgment and thus meet the requirements of Minn. R. Civ. App. P. 103. However, even if we agree with appellant that the underlying judgment is a default judgment and thus is within the default exception, the November 2001 and January 2002 orders are still not appealable because appellant appeared and participated in the underlying action. See Carlson v. Panuska, 555 N.W.2d 745, 747 (Minn. 1996) (stating that generally there is no appeal from a refusal to vacate a default judgment where the party participated in the proceeding). In this case, appellant, in the underlying foreclosure action, fully negotiated with respondent, and entered into a stipulation for decree of foreclosure. Because appellant participated in the proceeding, his appeal is not within the default exception as stated in Carlson. His appeal remains untimely.

Although we are not deciding the merits of appellant's case, we reject his assertion that the stipulation of foreclosure that he freely entered into with the assistance of counsel is not binding against him because it lacked consideration. See Eggleston v. Keller Drug Co., 265 Minn. 78, 81-82, 120 N.W.2d 305, 307 (Minn. 1963) (stating that "[s]ettlement agreements are presumed to be valid in Minnesota."). Settlement agreements are contractual in nature, and, as contracts, are binding upon the parties. Chalmers v. Kanawyer, 544 N.W.2d 795, 797 (Minn.App.1996). The matter of vacating a stipulation of this kind is discretionary with the trial court.

Relieving a party from a stipulation made by him or his attorney rests in the judicial discretion of the court; and, unless it appears that this discretion has been abused, the action of the court in granting or refusing an application to vacate or disregard a stipulation will not be reversed by an appellate court.

 

Na'l. Council of Knights and Ladies of Sec. v. Scheiber, 141 Minn. 41, 46, 169 N.W. 272, 274 (1918) (citation omitted). When an individual is sued and a stipulated settlement has been reached, the concept of consideration is inherent in the agreement. If appellant believed that the stipulation lacked consideration or that it was unfairly negotiated then he should have contested the validity of the agreement within the 60-day time limit provided by law. Instead, appellant waited more than a year and one half before he took any action to set aside the judgment of foreclosure and have his case heard on the merits.

Respondent, which takes the position that it is a bona fide purchaser for value, concedes that the agreed upon stipulation does not affect any claims appellant may have against GNMC or others for any claims of fraud, misrepresentation, or other wrongful conduct. We agree.

This court takes no position on the merits of claims that appellant may have against other parties that were not made a party to the settlement agreement.

Affirmed.