This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Petition of:
David R. Sina and Candice M. Sina.
Filed September 26, 2006
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.
D E C I S I O N
Candice Sina purchased property located in
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.
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 (
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.
concerns a party’s right to bring a particular action.” Patzner
v. Schaefer, 551 N.W.2d 736, 737 (
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 (
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.
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 (
by advertisement is a statutory remedy, and the failure to comply with the
foreclosure statute invalidates the foreclosure. Sander
v. Stenger, 117
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.
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 (
“[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 (
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