Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, L. P. v. Cheryl Smith

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2299

Bank of America, N.A.,
as successor by merger to BAC Home Loans Servicing, L. P.,
Respondent,

vs.

Cheryl Smith, et al.,
Appellants.

Filed August 4, 2014
Affirmed
Schellhas, Judge

Anoka County District Court
File No. 02-CV-13-4750

Orin J. Kipp, Wilford Geske & Cook, P.A., Woodbury, Minnesota (for respondent)

William B. Butler, Butler Liberty Law, LLC, Minneapolis, Minnesota (for appellants)

Considered and decided by Schellhas, Presiding Judge; Connolly, Judge; and

Willis, Judge.*

*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 UNPUBLISHED OPINION

SCHELLHAS, Judge

In this eviction action, appellant challenges the district court’s grant of summary

judgment to respondent. We affirm.

FACTS

This appeal involves property located at 10599 Sanctuary Drive Northeast, Blaine,

Minnesota 55449-5383 (the property). On August 29, 2013, process servers mailed an

eviction summons and an eviction complaint to the property, which was the last known

address of appellants Cheryl Smith Jr., Joseph Smith Jr., John Doe, and Mary Rowe, and

posted the summons and complaint on the property premises. In the complaint,

respondent Bank of America, N.A., demanded judgment against Smiths, Doe, and Rowe

for restitution of the property. The bank alleged that it was the successor by merger of

BAC Home Loans Servicing, LP; the property was properly sold at a July 18, 2011

sheriff’s sale, based on a mortgage foreclosure; the six-month redemption period expired

without redemption; it was the property’s fee owner; Smiths, Doe, and Rowe remained in

possession of the property, even though the bank was entitled to possession of it; and the

bank complied with Minn. Stat. § 504B.181 (2012) “by actual knowledge of [Smiths,

Doe, and Rowe].” Smiths, Doe, and Rowe answered, alleging in part, “Because the

foreclosure is void, [the bank] lacks legal standing and/or the legal capacity to bring this

action.”

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 The bank moved for summary judgment and argued that Smiths, Doe, and Rowe

“failed to assert a relevant defense to [the bank]’s Complaint that is admissible in this

matter.” The district court conducted a hearing; granted the bank’s motion; granted the

bank a writ of recovery of the property; and ordered Smiths, Rowe, and Doe to vacate the

property within seven days.

This appeal follows.

DECISION

“On appeal from a grant of summary judgment, [appellate courts] determine

whether any genuine issues of material fact exist and whether the district court erred in its

application of the law. We construe the facts in the light most favorable to the party

against whom summary judgment was granted . . . .” Minn. Laborers Health & Welfare

Fund v. Granite Re, Inc., 844 N.W.2d 509, 513 (Minn. 2014) (citation omitted). Smiths,

Doe, and Rowe challenge the district court’s grant of summary judgment to the bank,

arguing that genuine issues of material fact exist as to whether the bank had standing to

commence the eviction action and whether it had any right, title, or interest in the

property. Their arguments are unpersuasive.

An eviction proceeding is “a summary court proceeding to remove a[n] . . .

occupant from or otherwise recover possession of real property,” Minn. Stat. § 504B.001,

subd. 4 (2012), and is “intended to adjudicate only the limited question of present

possessory rights to the property,” Deutsche Bank Nat’l Trust Co. v. Hanson, 841

N.W.2d 161, 164 (Minn. App. 2014). See State v. Spence, 768 N.W.2d 104, 109 (Minn.

2009) (“An unlawful detainer action merely determines the right to present possession

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and does not adjudicate the ultimate legal or equitable rights of ownership possessed by

the parties.” (quotation omitted)); Real Estate Equity Strategies, LLC v. Jones, 720

N.W.2d 352, 357 (Minn. App. 2006) (similar).

“[A]n objection to want of standing goes to the existence of a cause of action, is

jurisdictional, and may be raised at any time.” Marine Credit Union v. Detlefson-Delano,

830 N.W.2d 859, 864 n.3 (Minn. 2013) (quotation omitted). “A plaintiff may have

standing in two ways: either the plaintiff has suffered some ‘injury-in-fact’ or the plaintiff

is the beneficiary of some legislative enactment granting standing.” Gretsch v. Vantium

Capital, Inc., 846 N.W.2d 424, 429 (Minn. 2014). For example, the supreme court

concluded in League of Women Voters Minn. v. Ritchie that Minn. Stat. § 204B.44 (2010)

“constitute[d] a legislative grant of standing” because it provided that “[a]ny individual

may file a petition in the manner provided in this section for the correction of any of the

following errors, omissions, or wrongful acts which have occurred or are about to occur.”

819 N.W.2d 636, 645 n.7 (Minn. 2012).

Here, the bank had standing to commence this eviction action under Minn. Stat.

§ 504B.285, subd. 1(1)(ii) (2012). Section 504B.285, subdivision 1(1)(ii), provides that

“[t]he person entitled to the premises may recover possession by eviction when: . . . any

person holds over real property: . . . after the expiration of the time for redemption on

foreclosure of a mortgage.” The bank is entitled to possession of the premises because it

is a successor by merger of BAC Home Loans. A sheriff’s certificate of sale indicates

that the property’s mortgagee was Mortgage Electronic Registration Systems, Inc.

(MERS); MERS assigned the mortgage to BAC Home Loans; and BAC Home Loans

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purchased the property at the July 18, 2011 sheriff’s sale. See Minn. Stat. §§ 580.12

(providing that a properly recorded certificate of sale “operate[s] as a conveyance to the

purchaser or the purchaser’s assignee of all the right, title, and interest of the mortgagor

in and to the premises named therein at the date of such mortgage”), .19 (“Every sheriff’s

certificate of sale made under a power to sell contained in a mortgage shall be prima facie

evidence that all the requirements of law in that behalf have been complied with, and

prima facie evidence of title in fee thereunder in the purchaser at such sale, the

purchaser’s heirs or assigns, after the time for redemption therefrom has expired.”)

(2012). Smiths, Doe, and Rowe continued to possess the property, although the

redemption period expired six months after the July 2011 sheriff’s sale, about 19 months

before the bank commenced this eviction action.

In district court, Smiths, Doe, and Rowe asked the district court to take judicial

notice of “facts governing the legal ownership of this loan and affecting the validity of

this foreclosure” under Minn. R. Evid. 201. They seem to argue now that the district

court erred by not granting their judicial-notice request, but they did not file their request

with the district court until December 18, 2013, two days after they noticed this appeal.

Their request therefore is outside the record on appeal and not properly before this court.

See Minn. R. Civ. App. P. 110.01 (“The papers filed in the trial court, the exhibits, and

the transcript of the proceedings, if any, shall constitute the record on appeal in all

cases.”); Thomas v. Fey, 405 N.W.2d 450, 454 (Minn. App. 1987) (concluding that an

affidavit was “not part of the record on appeal and may not be considered,” reasoning in

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part that county did not “come forward” with the affidavit until “three weeks after notice

of appeal”).

Smiths, Doe, and Rowe argue, “Comparing the recorded foreclosure record to the

terms of the Bafc Stalt 2005-1F Trust, it is clear that no foreclosure occurred and that the

of-record foreclosure is patently fraudulent.” They also argue that no genuine issue of

material facts exists about “whether a foreclosure occurred and as to whether [the bank]

has any right, title or interest in the property.” But the sheriff’s certificate of sale is

“prima facie evidence that all the requirements of law in that behalf have been complied

with, and prima facie evidence of title in fee thereunder in the purchaser at such sale, the

purchaser’s heirs or assigns.” Minn. Stat. § 580.19. And permitting Smiths, Doe, and

Rowe to avoid the summary nature of eviction proceedings is unwarranted because they

provide no reason why they could not challenge the underlying foreclosure in a separate

district court proceeding. See Amresco Residential Mortg. Corp. v. Stange, 631 N.W.2d

444, 444–46 (Minn. App. 2001) (affirming dismissal of counterclaims “related to the

underlying mortgage foreclosure” because appellants could “raise their counterclaims and

equitable defenses directly in [a] separate, district court proceeding” and, consequently,

“there [was] no evident reason to interfere with the summary nature of eviction

proceedings”), relied on in Fraser v. Fraser, 642 N.W.2d 34, 40–41 (Minn. App. 2002)

(“[T]o the extent wife has the ability to litigate her equitable mortgage and other claims

and defenses in alternate civil proceedings, it would be inappropriate for her to seek to do

so in the eviction action.”); see also Deutsche Bank, 841 N.W.2d at 165 (“We are not

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persuaded by the Hansons’ argument that Deutsche Bank cannot show that it is entitled to

a writ of recovery without establishing the validity of the foreclosed mortgage.”).1

Affirmed.

1
Smiths, Doe, and Rowe ask this court to judicially notice the same “facts” that they
asked the district court to judicially notice. We decline. “Judicial notice may be taken at
any stage of the proceeding,” Minn. R. Evid. 201(f), including on appeal, see Smisek v.
Comm’r of Pub. Safety, 400 N.W.2d 766, 768 (Minn. App. 1987) (taking judicial notice).
But the facts of which Smiths, Doe, and Rowe request judicial notice are already in the
record or irrelevant to the eviction proceeding. See Amresco, 631 N.W.2d at 445–46; cf.
Cravens v. Smith, 610 F.3d 1019, 1029 (8th Cir. 2010) (“[A] court may properly decline
to take judicial notice of documents that are irrelevant to the resolution of a case.”). They
ask this court to judicially notice the “fact[]” that a mortgage assignment to the bank “is
void.” But whether the assignment is void is a legal, not factual, matter and, therefore, not
the proper subject of judicial notice, which pertains to “adjudicative facts.” Minn. R.
Evid. 201(a); cf. Gores v. Schultz, 777 N.W.2d 522, 525 (Minn. App. 2009) (“Whether a
mortgagee can assert that a competing mortgage is void under section 507.02 requires
construction of the statute. Construction of a statute is a question of law . . . .”), review
denied (Minn. Mar. 16, 2010).

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