This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In the Matter of the Petition of:

David R. Sina and Candice M. Sina.


Filed September 26, 2006


Kalitowski, Judge


Hennepin County District Court

File No. A 32335


David R. Sina, Candice M. Sina, 5755 Heather Ridge Drive, Shoreview, MN 55126 (pro se appellants)


Eric D. Cook, Jodi L. Lindor, Wilford & Geske, P.A., 7650 Currell Boulevard, Suite 300, Woodbury, MN 55125 (for respondent Mortgage Electronic Registration Systems)


            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from summary judgment in an action to set aside and vacate a foreclosure by advertisement, appellants Candice and David Sina argue that the district court erred by (1) not setting aside the foreclosure by advertisement when the mortgage assignee lacked standing; and (2) determining that it had subject matter jurisdiction when the statutory foreclosure requirements were not met.  Respondent argues that appellant’s claims are barred by res judicata and collateral estoppel.  We affirm.



            Appellant Candice Sina purchased property located in Champlin, Minnesota (the property) in December 2002.  In conjunction with the purchase of the property, Candice Sina executed a note and mortgage against the property in favor of Maribella Mortgage, LLC (Maribella).  Maribella then executed an assignment of real estate mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS).

            Following the sale of the property, MERS sold and assigned the note and mortgage in the secondary market to Aurora Loan Services, Inc. (ALS).  But MERS continued to hold the mortgage in its name, and it acted as a nominee for ALS with the power to foreclose the mortgage.

            In June 2003, Candice Sina defaulted on her mortgage payment.  Counsel for MERS and ALS then commenced proceedings to foreclose by advertisement.  On November 13, 2003, the property was sold in a sheriff’s sale to MERS.  Candice Sina then brought an action to void the mortgage foreclosure and vacate the foreclosure sale.  The action was removed to federal court, where the action was dismissed.  Subsequently, appellants brought this action, again seeking to void the mortgage foreclosure.  In October 2005, the district court granted respondent’s motion for summary judgment and dismissed all of appellants’ claims with prejudice.

            Courts shall grant motions for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, show that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  On appeal from a grant of summary judgment, this court must ask whether there are any genuine issues of material fact and whether the district court correctly applied the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court must “view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio, 504 N.W.2d at 761.  And this court need not defer to a district court’s decision on a legal question.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).



              Appellants argue that MERS did not have standing to foreclose the property and that the district court erred by not ruling on the standing issue.  We disagree.

            “Standing concerns a party’s right to bring a particular action.”  Patzner v. Schaefer, 551 N.W.2d 736, 737 (Minn. App. 1996).  Standing raises a question of law, which is subject to de novo review.  In re Petition for Improvement of County Ditch No. 86, 625 N.W.2d 813, 817 (Minn. 2001).

            Because the district court did not decide whether MERS had standing, the issue is not properly before this court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally do not consider matters not considered by the district court).  Moreover, the record shows that MERS had standing to foreclose the property.  “A party claiming to be the assignee of a mortgage must have a legal assignment thereof, duly recorded, before he can foreclose it by advertisement.”  Casserly v. Morrow, 101 Minn. 16, 19, 111 N.W. 654, 655 (1907).

            Here, appellant Candice Sina executed a mortgage on the property in favor of Maribella.  Maribella then executed an assignment of mortgage in favor of MERS.  After Candice Sina defaulted on her mortgage payment, MERS recorded the assignment and commenced foreclosure proceedings.

            Appellants contend that MERS is not the real party in interest because MERS acts solely as the nominee for ALS.  Although the record shows that ALS serviced the mortgage, the assignment of mortgage was recorded in MERS’s name.  And by agreement, MERS retained the power to foreclose the mortgage in its name.  Because MERS is the record assignee of the mortgage, we conclude that MERS had standing to foreclose the property by advertisement.  See id.


            Appellants argue that the district court did not have subject matter jurisdiction because the requirements of the foreclosure-by-advertisement statute were not met.  We disagree.  

            Whether a district court has subject matter jurisdiction is a question of law, which this court reviews de novo.  In re Thulin, 660 N.W.2d 140, 143 (Minn. App. 2003).  “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”  Minn. R. Civ. P. 12.08(c).  Although a party’s defective foreclosure may be a basis for a district court to grant relief, the defect would not deprive the district court of jurisdiction to hear the dispute.  Thus, we only address whether the district court should have set aside and vacated the foreclosure by advertisement for being defective. 

            Foreclosure by advertisement is a statutory remedy, and the failure to comply with the foreclosure statute invalidates the foreclosure.  Sander v. Stenger, 117 Minn. 424, 428, 136 N.W. 4, 5 (1912); Moore v. Carlson, 112 Minn. 433, 434, 128 N.W. 578, 579 (1910).  The foreclosure of property by advertisement is authorized if the mortgage and all assignments have been properly registered and a memorial thereof has been duly entered upon the certificate of title.  Minn. Stat. § 508.57 (2004). 

            Here, appellants contend that the foreclosure by advertisement is void because ALS never recorded a valid assignment of mortgage.  But the record shows that MERS legally recorded its assignment of the mortgage and that it had the authority to foreclose the mortgage in its name.  Thus, we conclude that the district court did not err by determining that MERS met the statutory foreclosure-by-advertisement requirements.



            Respondent argues that the district court correctly determined that appellants’ claims are barred by res judicata and collateral estoppel.  But in their initial brief, appellants do not challenge the district court’s determination regarding res judicata and collateral estoppel.  Thus, those issues are not properly before this court.  See McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (stating that issues not raised or argued in appellant’s brief cannot be revived in a reply brief), review denied (Minn. Sept. 28, 1990). 

            Moreover, “[o]nce there is an adjudication of a dispute between parties, res judicata prevents either party from relitigating claims arising from the original circumstances, even under new legal theories.”  Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004).  Thus, res judicata precludes a party from bringing a second action to litigate additional claims arising out of the same operative facts.  Id. at 840.  And collateral estoppel applies to specific legal issues that have been adjudicated.   Id. at 837.

            Here, after the foreclosure occurred, appellant brought an action to vacate and set aside the mortgage foreclosure sale, alleging that MERS failed to comply with the Fair Debt Collection Practices Act.  The action was then removed to federal court.  The federal district court granted MERS’s motion for summary judgment, and the United States Court of Appeals for the Eighth Circuit affirmed the district court.  Subsequently, appellant brought this action to vacate and set aside the mortgage foreclosure sale, alleging that respondent did not comply with Minnesota’s statutory foreclosure requirements.  Because this matter arises out of the same operative facts and involves issues that were previously litigated, we conclude that the district court did not err in determining that appellants’ claims are barred by res judicata and collateral estoppel.