This opinion will be unpublished and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

A04-1601

A04-1698

 

James G. Peirce,

Appellant,

 

Melanie D. Peirce,

Appellant,

 

vs.

 

Homecomings Financial Network, Inc., et al.,

Respondents (A04-1601),

 

and

 

Homecomings Financial Network, Inc.,

Respondent (A04-1698),

 

John Doe, et al.,

Defendants (A04-1698).

 

Filed July 5, 2005

Affirmed

Hudson, Judge

 

LeSueur County District Court

File No. C1-03-1185

 

James G. Peirce, Melanie D. Peirce, 6109 Kerry Court, Madison Lake, Minnesota 56063 (pro se appellants)

 

Lawrence P. Zielke, Sharpiro & Nordmeyer, L.L.P., 7300 Metro Boulevard, Suite 390, Edina, Minnesota 55439 (for respondents)

 

            Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

This consolidated appeal arises out of two cases involving the same real property.  Appellants challenge the district court’s dismissal of appellants’ amended complaint, grant of summary judgment on appellants’ original complaint, and denial of appellants’ motions for declaratory judgment and to compel discovery.  Additionally, appellants challenge the district court’s grant of summary judgment in respondents’ eviction action.  Because we conclude that the district court did not err, we affirm.

FACTS

 

            A Torrens certificate of title shows that on September 20, 2000, appellant Melanie Peirce signed a $292,000 mortgage with Bayrock Mortgage Corporation for property in Madison Lake, Minnesota.  The “Memorial” attached to the certificate of title shows that on September 20, 2001, the mortgage was assigned to EquiCredit Corporation of America (EquiCredit), and that on March 21, 2003, the mortgage was assigned to Homecomings Financial Network, Inc. (Homecomings).  Servicing of the mortgage was initially effected by EquiCredit but was subsequently transferred to Fairbanks Capital Corporation (Fairbanks), and then to GMAC Mortgage (GMAC).  On March 27, 2003, Homecomings commenced foreclosure by advertisement based on appellant’s failure to pay the mortgage. 

            On February 18, 2004, pro se appellants James and Melanie Peirce filed a complaint against Homecomings, Shapiro & Nordmeyer, LLP (Shapiro)[1] and Lawrence P. Zielke (Zielke),[2] alleging violations of Minnesota statutes for foreclosure by advertisement, illegal foreclosure, breach of contract, violation of the federal fair-debt-collection-practices act, violations of the truth-in-lending law, and fraud upon the court.  Homecomings, Shapiro, and Zielke answered and service was completed by mail on January 30, 2004.  On April 20, 2004, appellants filed an “Amended Complaint and Joinder of Party,” which was identical to the original complaint except that Fairbanks was named as a defendant. 

            Respondents moved the district court to dismiss appellants’ amended complaint against Fairbanks; strike appellants’ pleadings, filings and submissions; and grant summary judgment.  Appellants moved the district court to grant a declaratory judgment and to compel discovery.  On June 30, 2004, the district court granted respondents’ motions to dismiss appellants’ amended complaint against Fairbanks and for summary judgment.  The district court also denied respondents’ motion to strike the pleadings, filings and submissions and appellants’ motions for declaratory judgment and to compel discovery. 

On August 9, 2004, respondents brought an eviction action against appellants.  On September 2, 2004, the district court granted summary judgment in favor of respondents.  Appellants challenge the judgments entered on both the district court’s orders regarding appellants’ lawsuit following the mortgage foreclosure and respondents’ eviction action.  This court consolidated the appeals.

D E C I S I O N

I

 

Appellants argue that the district court erred by granting summary judgment against appellants in both its June 30, 2004 and September 2, 2004 orders. 

On appeal from summary judgment, this court determines: (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).  This court reviews the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

Regarding the June 30, 2004 grant of summary judgment, appellants assert that they provided evidence of a genuine issue of material fact because they showed that Homecomings was not the holder in due course of the promissory note and therefore did not have the authority to foreclose the mortgage.  Appellants argue that the assignment of the mortgage to Homecomings was invalid because EquiCredit failed to sign the document, “Assignment of Note Without Recourse,” which assigned Bayrock’s rights to enforce the promissory note against appellants.  Regarding the September 2, 2004 grant of summary judgment, appellants argue that the district court weighed the evidence in granting summary judgment. 

Respondents cite Minn. Stat. § 508.36 (2004) and Hersh Props., LLC v. McDonald’s Corp., 588 N.W.2d 728, 733–34 (Minn. 1999) for the proposition that the Torrens certificate is conclusive of the fact that the mortgage was assigned to EquiCredit and then Homecomings because the “memorial” delineates these assignments.  Thus, respondents argue that the registration of the assignment conclusively cured any alleged, but not conceded, irregularity in the assignments of the mortgage for purposes of the mortgage foreclosure. 

The Torrens Act operates to vest conclusive title in the holder of a certificate of title issued pursuant to judicial proceedings.  Hersh Props., 588 N.W.2d at 734; see also Moore v. Henricksen, 282 Minn. 509, 519, 165 N.W.2d 209, 217 (1968).  The statute governing foreclosure of Torrens property delineates that it is sufficient to authorize the foreclosure of a mortgage upon registered land by advertisement “if such mortgage and all assignments thereof shall have been registered, and a memorial thereof duly entered upon the certificate of title.”  Minn. Stat. § 508.57 (2004).

Minn. Stat. § 508.36 provides:

The certificate of title in the register of titles, any copy of it duly certified by the registrar, or by a deputy, and authenticated by the registrar’s seal shall be received in evidence in all the courts of this state and be conclusive evidence of all matters and things contained in it.  Deeds, mortgages, leases, or other conveyances of real estate, and all instruments in any manner affecting the title to registered land, together with any notations, endorsements, or memorials upon the same made by the registrar of titles, as required by law, heretofore or hereafter filed with the registrar, shall be received in evidence in all the courts of this state, without further or other proof, and be prima facie evidence of the contents of it.  Duly authenticated copies of these instruments, or any of them, may likewise be received in evidence in any court in this state with like force and effect as the original instruments.

 

            Here, the memorial attached to the certificate of title shows that the mortgage was assigned to EquiCredit and then Homecomings.  Because “memorials . . . shall be received in evidence in all the courts of this state, without further or other proof, and be prima facie evidence of the contents of it,” respondents have conclusively established the facts of the assignments.  See Minn. Stat. § 508.36.  Thus, the registration of the assignment cured any alleged defect in the assignment of the mortgage.

            Additionally, we conclude that appellants have not fully briefed their argument that the district court weighed evidence on summary judgment.  Appellants merely allege that the district court “decided factual issues in its order of September 2, 2004,” and fail to articulate the specific factual issues that the district court allegedly weighed.  Therefore, appellants have waived this argument.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues not briefed on appeal are waived). 

            Accordingly, the district court did not err by granting summary judgment in its June 30, 2004 and September 2, 2004 orders.

II

 

Appellants argue that the district court abused its discretion by denying appellants’ motion to compel discovery and by granting summary judgment in its June 30, 2004 order before appellants could complete discovery. 

            The district court has considerable discretion regarding discovery, and absent an abuse of that discretion, this court will not reverse the district court’s decision regarding whether to compel discovery.  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  Summary judgment should not be granted when an opposing party has been unable to complete relevant discovery through no fault of his own.  Rice v. Perl, 320 N.W.2d 407, 412–13 (Minn. 1982).  Minnesota courts refuse to continue a summary judgment motion to allow additional discovery when the party is merely conducting a fishing expedition or fails to specify what evidence is sought.  See, e.g., Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 919 (Minn. App. 2003) (stating that an affidavit brought pursuant to Minn. R. Civ. P. 56.06 “must be specific about the evidence expected, the source of discovery necessary to obtain the evidence, and the reasons for the failure to complete discovery to date”).

            In its memorandum in support of its order denying appellants’ motion to compel discovery, the district court explained: (1) respondents Homecomings, Shapiro, and Zielke made a good faith effort to respond to appellant’s discovery requests; (2) appellants requested documents that are either already in their possession, are a matter of public record, or simply do not exist; and (3) Fairbanks has no obligation to provide discovery because appellants never completed service of process nor requested discovery from Fairbanks. 

Appellants argue that the district court erroneously failed to “compel the respondents to produce the documents that prove that they had the rights to foreclose the mortgage.”  But appellants fail to specify what additional discovery they sought.  Therefore, appellants have not shown that the district court abused its discretion in denying appellants’ motion to compel discovery or by granting summary judgment when it did.

III

            Appellants argue that the district court violated their due process rights by failing to join Fairbanks as a defendant.

            The district court granted respondents’ motion to dismiss appellants’ amended complaint against Fairbanks, explaining that it assumed that appellants intended to join Fairbanks by submitting an “Amended Complaint Joinder of Party” that was identical to their original complaint except that Fairbanks was named as a defendant.  The district court explained that appellants did not comply with the Minnesota Rules of Civil Procedure regarding amendment of pleadings, joinder of parties, or service of process. 

            Appellants argue that they properly served Fairbanks “by the MN Sec. Of State.”  Additionally, appellants cite Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99 (1957), Maty v. Grasselli Chemical Co., 303 U.S. 197, 58 S. Ct. 507 (1938), and Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594 (1972), arguing that these cases “indicate that the trial court abused its discretion by denying to add Fairbanks as a defendant on procedural basis.” 

            Appellants’ arguments lack merit.  First, attempting service of process through the office of the Minnesota Secretary of State does not guarantee that service is sufficient.  Indeed, the Secretary of State “Service of Process Acknowledgement” that appellants cite states, “The Office of the Secretary of State does not determine or attempt to determine if your service of process is valid.”  Further, this document states, “Substituted service of process through the Office of the Secretary of State does not guarantee that the service will be sufficient and permit a court to obtain or accept jurisdiction over the business entity against whom service is made.”

Here, appellants do not allege that they satisfied Minn. R. Civ. P. 4.03(c), personal service upon a corporation.  Further, appellants did not satisfy Minn. R. Civ. P. 4.05, service by mail, because they did not file an affidavit of service and Fairbanks did not complete an acknowledgement of service as required.  Thus, appellants did not complete service of process upon Fairbanks.  But even if appellants had completed service of process, the Minnesota Rules of Civil Procedure do not permit appellants to add a party by simply filing an amended complaint that names the party sought to be joined.  See Minn. R. Civ. P. 15 (delineating the rules for amending a pleading).  Furthermore, appellants did not move the district court to join Fairbanks as a party.  Thus, appellants are precluded from raising this argument now.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate court will not consider matters not argued and considered in the district court).

            Finally, appellants argue that the district court erred by “precluding the appellants from bringing any action against [Fairbanks] in the future.”  Even though the district court concluded that Fairbanks was not a party, it disposed of appellants’ claims against Fairbanks as though Fairbanks were a party.  We conclude that the district court improperly disposed of appellant’s claims with respect to Fairbanks because Fairbanks was not properly added as a party.  But because we hold that Homecomings was properly assigned the mortgage, it follows that appellants have no cause of cause of action against Fairbanks.

IV

 

            Appellants argue that the district court violated their due process rights by denying their motion to take mandatory judicial notice of 57 facts.  Appellants assert that they brought “a mandatory judicial notice under MN statue (sic) 559.04 and MN Rules of Civ. Pro. Rule 201 (d), (e) & (f).”  But the statute that appellants cite does not address judicial notice.  See Minn. Stat. § 559.04 (2004) (addressing joinder of claimants under a common grantor).  Additionally, “MN Rules of Civ. Pro. Rule 201” does not exist.  We presume appellants meant to cite Minn. R. Evid. 201, which governs judicial notice of adjudicative facts in civil cases.  See Minn. R. Evid. 201.  The district court has discretion to take judicial notice.  Wood v. Astleford, 412 N.W.2d 753, 758 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987).

The district court presumed that appellants submitted the 57 facts in an effort to defeat respondents’ summary judgment motion.  In refusing to take judicial notice, the district court explained:

[T]his Court will summarize the document as containing dozens of factual assertions, most of which are not disputed by [respondents] and therefore do not constitute “issues” of material fact to be preserved for trial.  The document also includes many facts that, if true and disputed, would not constitute “material” facts to be preserved for trial.  The remaining assertions are again conclusory statements and are not appropriate for consideration on a summary judgment motion.

 

After reviewing the 57 facts, we conclude that the district court did not abuse its discretion in refusing to take judicial notice. 

V

            Finally, appellants argue that the district court erred by denying their motion for declaratory judgment.  Appellants argue that the district court should have vacated the mortgage foreclosure because “Homecomings did not have legal authority to foreclose the mortgage.” 

            Here, appellants make the same argument regarding Homecomings’ purported lack of authority to foreclose the mortgage that they make in their challenge to the district court’s grant of summary judgment.  Thus, for the same reasons that the district court did not err by granting summary judgment, the district court did not err by not granting appellants’ motion for a declaratory judgment.

Affirmed.