This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




Georgina Y. Stephens,



Chrysler First Financial Services Corp. of America,

n/k/a Chrysler Financial Corp.,


Filed August 12, 1997

Affirmed and motion denied

Amundson, Judge

Ramsey County District Court

File No. C9902634

Georgina Y. Stephens, 175 North Lexington Parkway, St. Paul, MN 55104 (pro se appellant)

Richard J. Olson, Scott E. Miller, Miller & Kellermeister, P.A., 3908 IDS Center, Minneapolis, MN 55402 (for respondent)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Holtan, Judge.[*]



Appellant Georgina Stephens asserts that the district court erred by finding that the Truth in Lending Act (TILA) did not apply to her loan transaction with respondent Chrysler First Financial Services Corporation of America and by amending the judgment after this appeal was taken. We affirm.


In 1989, Larry Alexander, the fiance of appellant Georgina Stephens, applied for a loan of $50,000 from respondent Chrysler First Financial Services Corporation of America (Chrysler) to be secured by property he owned in St. Paul (the property). The property included commercial space on the first floor and residential space on the second and third floors. In connection with the loan application, an appraiser reported that the property was vacant and under remodeling construction.

When Alexander's credit report revealed that he was a poor credit risk, Alexander withdrew his application and Stephens applied for the loan instead. The property was deeded to Stephens. She described the property as residential and listed a home address in Bloomington. On May 23, 1989, the parties completed the loan transaction. Chrysler did not provide notice to Stephens that she had a right to rescind the transaction.

Stephens defaulted in February 1990, after making regular loan payments for eight months. On February 27, 1990, Stephens notified Chrysler that she wanted to rescind the loan transaction. Chrysler refused. Stephens sought a declaratory judgment and both parties sought summary judgment. The district court concluded that Chrysler failed to make the required disclosure regarding the right to rescind under the Truth in Lending Act (TILA) and, thus, Stephens was entitled to rescind the loan in February 1990. Chrysler appealed. This court affirmed in part and reversed and remanded in part for determination of the fact issues on the application of TILA. Stephens v. Chrysler First Fin. Serv. Corp., No. C7-91-2324 (Minn. App. May 26, 1992). On remand, the district court found that the property was not Stephens's principal dwelling, the loan transaction was commercial in nature, and, thus, that TILA was inapplicable. The district court granted foreclosure.

Chrysler moved for amended findings. On January 21, 1997, Stephens filed this appeal, and on the following day the district court issued a written order indicating that there was an error in one paragraph of the findings and in the amount of the order for judgment. In addition to challenging the judgment on the merits, Stephens moves to vacate the amended judgment entered on February 11, after this appeal was taken.


I. Principal Dwelling

In concluding that TILA did not apply to this case, the district court made a factual determination that the property was not Stephens's principal dwelling. See Scott v. Long Island Sav. Bank, F.S.B., 937 F.2d 738, 741 (2d Cir. 1991) (nature of dwelling is a question of fact). This court will not set aside a finding of fact unless it is clearly erroneous. Minn. R. Civ. P. 52.01.

TILA provides that in any consumer credit transaction where a security interest is acquired in property used as the principal dwelling of the person who is extended credit,

the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction * * *. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section.

15 U.S.C. § 1635(a) (1994). The meaning of a "principal dwelling" is quite clear:

A consumer can only have one principal dwelling at a time. Thus, a vacation or other second home would not be a principal dwelling.

Regulation Z, 12 C.F.R. § 226, Supp. I (1997). A trier of fact may consider the name on telephone and electrical bills, where mail is received, and what belongings are kept at the property in determining whether a property is a consumer's principal dwelling under TILA. Scott, 937 F.2d at 741.

The district court's finding that the St. Paul property was not Stephens's principal dwelling is amply supported: (1) the property was under construction and unoccupied at the time of the loan transaction and there were no telephone or electrical bills; (2) Stephens did not file a change of address form until November 1990, more than one year after the May 1989 loan transaction; (3) Stephens's tax returns indicate that she used the property for personal purposes for no more than two weeks in 1989; (4) several appraisers testified that the property was unoccupied and lacked furniture, clothing, or decorations; (5) the property was not certified for home occupation by the fire department; and (6) Stephens testified at trial that her principal dwelling on May 23, 1989, was in Bloomington. The district court's finding is not clearly erroneous.

II. Nature of Transaction

In deciding that TILA did not apply to the instant case, the district court also made a factual determination that the credit transaction was commercial in nature. A finding of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

Transactions that involve credit extensions primarily for business or commercial purposes are exempt from TILA. Bokros v. Associates Fin., Inc., 607 F.Supp. 869, 871 (N.D. Ill. 1984). "[T]he nature of the credit transaction is ultimately determined by the entire surrounding factual circumstances." Tower v. Moss, 625 F.2d 1161, 1166 (5th Cir. 1980).

The district court found that (1) Chrysler based its decision to approve the loan on the inclusion of anticipated rent to be paid by Alexander for two floors; (2) Stephens told Chrysler that she intended to sell her Bloomington home and move to the property, but she was acquiring the property as non-owner-occupied rental property; (3) Stephens and Alexander provided Chrysler with a memorandum of understanding confirming that Alexander would lease two floors of the property; and (4) Stephens filed tax returns claiming deductions not available to owner-occupied residential property and stating that she did not personally use the property. These findings are supported by the record and cumulatively support the district court's finding that the loan was commercial in nature.

III. Claimed Bias

Stephens claims that the district court was biased against her. Chrysler asserts that this issue, as well as other claims not yet addressed, should not be reviewed because they were not properly preserved by motion for a new trial. We agree. Matters such as trial procedure and evidentiary rulings are reviewable by appellate courts only if the appellant raises the claimed errors in a motion for a new trial. Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986).

Stephens argues that her constitutional right to the impartial administration of justice was violated as a result of judicial bias and, thus, that she may raise the issue of judicial bias for the first time on appeal.[1] The record establishes that the district court made rulings against Stephens, stated that Stephens did not understand the relevant law, and commented on credibility. These rulings and statements do not constitute a demonstration of bias.

IV. Law of the Case

Stephens contends that "res judicata" precludes our consideration of the district court's determinations on remand regarding (1) the "purchase money mortgage" argument; (2) the legal sufficiency of the May 5, 1989, quit claim deed; (3) her ownership interest in the property; and (4) the finality of the November 4, 1991, judgment.[2]

However, the doctrine of law of the case does not preclude litigation on remand of issues not determined in a previous appeal. Mattson, 414 N.W.2d at 720. In the previous appeal, this court determined that the district court (1) did not err by hearing Stephens's untimely cross-motion for summary judgment and (2) did err by granting summary judgment because there were fact issues on the nature of the loan transaction and Stephens's principal dwelling. The determinations made on remand are not inconsistent with our previous decision and the law of the case doctrine is inapplicable.

V. Amended Findings and Judgment

Stephens moves to vacate the amended judgment entered after this appeal was taken. Generally, the filing of an appeal suspends the authority of the district court to modify the decision subject to appeal. Spaeth v. Plymouth, 344 N.W.2d 815, 824 (Minn. 1984). However, a district court may attend to collateral matters. Barnes, 349 Minn. at 303, 81 N.W.2d at 866. With "leave of the appellate court," the district court may correct clerical mistakes. Minn. R. Civ. P. 60.01. Even if the district court lacked jurisdiction to make its order after an appeal has been taken, this court may take cognizance of such an order "for the insight it affords." Evans v. Blesi, 345 N.W.2d 775, 780 (Minn. App. 1984), review denied (Minn. June 13, 1984).

In this case, the original judgment indicated that "Alexander was referred by [Chrysler] to Noteworthy Investments, an independent mortgage broker which connected potential borrowers with lenders." On January 22, 1997, the district court corrected that finding to indicate that "Alexander was referred to [Chrysler] by Noteworthy Investments * * *." (Emphasis added.) In addition, the amount of the judgment for Chrysler was increased by $400, to correct an error. We take cognizance of the clerical errors and conclude that the district court had authority to correct them. The district court's findings and conclusions are proper and the judgment is affirmed. We deny the motion to vacate the amended judgment.

Affirmed and motion denied.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 Stephens also asserts that (1) Chrysler never properly served notice of the district court's order and she may still make a motion for a new trial; (2) most of the claimed errors occurred prior to trial and could not have been raised in a motion for a new trial; and (3) the validity of the February 3, 1993, nunc pro tunc order involves a question of law and is reviewable. These arguments are unpersuasive. Stephens did not bring a motion for new trial before appeal and we are skeptical that such a motion would be appropriate after appeal. The district court had authority to clarify the amount of the award. See State v. Barnes, 249 Minn. 301, 303, 81 N.W.2d 864, 866 (1957) (court retains jurisdiction over ancillary matters). Stephens did not preserve other claims for appeal.

[ ]2 Stephens confuses the doctrine of res judicata with the doctrine of law of the case. Res judicata is applicable when a case has been fully litigated and a new action is brought in an attempt to relitigate an issue determined in the previous case. Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 719 (Minn. 1987). Law of the case is applicable when an appellate court has ruled on a legal issue. On remand, the lower court may not act in a manner inconsistent with the appellate decision. Id.