This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Mortgage One, Inc.
(Assignee of and Successor in interest to Wells Fargo Home Mortgage, Inc.,),


Michelle R. Newton, a/k/a Michelle R. Newton-Witkowski,
Theodore Witkowski,
John Doe, et al.,


Filed February 17, 2004

Reversed and remanded

Stoneburner, Judge


Anoka County District Court

File No. C90010025


Gary B. Bodelson, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)


Christopher E. Brevik, Brevik & Associates, 1224 Irvine Drive, Hanover, MN 55341 (for respondent Theodore Witkowski)


            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.



U N P U B L I S H E D  O P I N I O N




            Appellant Mortgage One, Inc. challenges the district court’s judgment limiting its recovery on a valid purchase-money mortgage to recovery of principal only.  Appellant also challenges the district court’s requirement that it discharge a notice of lis pendens prior to completion of litigation in this matter and to modify the record of the mortgage.  We reverse and remand.



Appellant Mortgage One, Inc. is the assignee of a promissory note and mortgage executed by respondent Michelle Newton (formerly known as Michelle Newton-Witkowski).  In a prior appeal, this court held that the subject mortgage is a valid purchase-money mortgage in the amount of $55,034.74, on property that was purchased by Newton prior to her marriage to respondent Theodore Witkowski, but mortgaged by Newton during their marriage without Witkowski’s knowledge.  Wells Fargo Home Mortgage, Inc. v. Newton, et al., 646 N.W.2d 888 (Minn. App. 2002), review denied (Minn. Sept. 25, 2002).  Theodore Witkowski was awarded the property in the decree dissolving the marriage of Newton and Witkowski. 

            Appellant moved for summary judgment against Newton on the promissory note, for judgment establishing a mortgage lien of $108,856.24 against the property, and for foreclosure on the lien.  The amount of the requested mortgage-lien judgment was based on the unpaid principal and interest plus attorney fees, late fees, and other compensable amounts under the terms of the mortgage.  

            The district court granted summary judgment to appellant against Newton[1] and also granted summary judgment to appellant on the mortgage lien, but limited the amount of the lien to $55,034.74, based on language in the prior decision of this court that stated “because Witkowski did not sign the mortgage, the mortgage is not valid for any amount greater than $55,034.74 . . .” and the mortgage “is not valid . . . to the extent that the mortgage secures any amount greater than $55,034.74.”  Id. at 899-900.  The district court also ordered appellant to discharge the notice of lis pendens and to “modify the record of the mortgage on the subject property . . . to reflect that the mortgage principal is $55,034.74.”  This appeal followed.



On an appeal from summary judgment, we ask: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  In this case, it is undisputed that the promissory note and mortgage expressly provide that interest, attorney fees, and other items listed “shall become additional debt of Borrower secured by this Security Instrument.”  Appellant argues that the district court’s refusal to add interest, attorney

fees, and other compensable items contained in the mortgage to the mortgage lien is contrary to law. 

            The district court’s refusal to add to the mortgage principal was based on “the language and equitable theme prevalent in the Court of Appeal’s decision.”  But the issue previously decided by this court was that the mortgage executed by Newton was exempt from the spousal-signature requirement in Minn. Stat. § 507.02 (1998) to the extent that the funds borrowed were used to pay off the contract for deed on the parties’ homestead.  Newton, 646 N.W.2d at 897.  As a result, although the promissory note and mortgage signed by Newton were in the amount of $116,600, the mortgage was held to be valid as a purchase-money mortgage, superior to the claim or right of any defendant, only for $55,034.74, the amount used by Newton to pay off the contract for deed.  Id. at 899.  Because the prior litigation did not involve interest, attorney fees, and other amounts compensable under the mortgage, the opinion cannot be read as limiting any amount other than the principal amount addressed in the litigation.  See Skelly Oil Co. v. Comm’n of Taxation, 269 Minn. 351, 371, 131, N.W.2d 632, 645 (1964) (stating “the language used in an opinion must be read in the light of the issues presented”) (quoting Sinclair v. United States, 279 U.S. 749, 767, 49 S. Ct. 471, 477, 73, L.Ed. 938 (1929)).  There is no legal basis to deny enforcement of all of the terms of what has already been determined to be a valid purchase-money mortgage; therefore, we reverse the district court’s denial of judgment on interest, attorney fees, and other amounts compensable under the terms of the mortgage and remand for a determination of the amount of the mortgage lien consistent with the terms of the mortgage.

            The district court correctly noted that a notice of lis pendens is appropriate when an action involving property described in the notice is pending.  Chaney v. Minneapolis

Community Development Agency, 641 N.W.2d 328, 333 (Minn. App. 2002).  But we agree with appellant that the present action is still pending such that discharge of the notice of lis pendens is premature.  We reverse the portion of the district court’s order requiring appellant to discharge the notice of lis pendens at this time. 

            The parties seem to agree that recording the prior opinion of this court will satisfy the district court’s direction to appellant to modify the record of the mortgage on the subject property.  On remand, the district court should clarify the manner in which it contemplated that the record be corrected and, if appropriate, designate the appropriate party to make the correction. 

            Reversed and remanded.


[1] The entry of judgment against Newton was not appealed, and this opinion does not reach that portion of the judgment.