In the Matter of the Petition of CitiMortgage, Inc., a New York corporation, relating to Certificate of Title No. 1004362 for a new Certificate of Title after Mortgage Foreclosure Sale

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0803

In the Matter of the Petition of CitiMortgage, Inc.,
a New York corporation,
relating to Certificate of Title No. 1004362
for a new Certificate of Title
after Mortgage Foreclosure Sale

Filed April 24, 2017
Affirmed
Worke, Judge

Hennepin County District Court
File Nos. 27-ET-CV-11-1440; 27-CV-HC-12-1597

Renee Kinzer, Minneapolis, Minnesota (pro se appellant)

Katherine M. Melander, Brian W. Varland, Jeffrey A. Scott, Heley, Duncan & Melander,
PLLP, Minneapolis, Minnesota (for respondent CitiMortgage, Inc.)

Considered and decided by Worke, Presiding Judge; Jesson, Judge; and Smith, John,
Judge.*
U N P U B L I S H E D O P I N I O N
WORKE, Judge
In this post -foreclosure proceeding, appellant challenges the district court ’s
adoption of the report of the examiner of titles and grant of summary judgment to
respondent. We affirm.

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

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FACTS
Appellant Re nee Kinzer and her husband David Kinzer owned real property in
Minneapolis. The Kinzers divorced in 2004, but continued to own the property as joint
tenants. Shortly after the divorce, on March 26, 2004, David Kinzer mortgaged the
property. In doing so, he represented that the Kinzers were still married, and according to
Renee Kinzer (Kinzer), David Kinzer used a forged power-of-attorney form to execute the
mortgage on her behalf. The Kinzers defaulted on the mortgage, and a sheriff’s sale was
held in June 2011. Respondent CitiMortgage was the purchaser at the sheriff’s sale, and
there was no redemption of the property.
In September 2011, CitiMortgage commenced an action requesting a new certificate
of title. Kinzer filed an answer, alleging “an impro per and illegal mortgage and invalid
mortgage foreclosure sale” and requesting that she be deemed the property’s sole owner .
CitiMortgage conveyed the property to Federal Home Loan Mortgage Corporation
(FHLMC), and FHLMC commenced an eviction action against the Kinzers. In response,
Kinzer sought a temporary restraining order (TRO) to halt the eviction. In March 2012,
the district court granted the TRO and directed Kinzer to initiate a civil action. Kinzer
commenced a civil action in May 2012, attacking the validity of the mortgage and
foreclosure.
On September 16, 2013, the parties reached a mediated settlement agreemen t in
Kinzer’s civil action. The agreement was signed by Kinzer, CitiMortgage, and FHLMC .
The terms of the agreement were, in relevant part, as follows: (1) CitiMortgage and
FHLMC were to pay $18,000 in full settlement of Kinzer’s claims, with $15,000 paid upon

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“settlement papers” being signed, and $3,000 paid if Kinzer vacated the property by April
30, 2014; (2) Kinzer was to dismiss the lis pendens, consent to proceedings subsequent,
acknowledge that the foreclosure in 2011 was valid, and acknowledge th e validity of the
mortgage of March 26, 2004; (3) Kinzer was to release all claims, including claims relating
to title of the subject property; and (4) the parties were to execute releases.
Following the settlement, in October 2013, Kinzer moved to refer t he matter back
to mediation, arguing that a final settlement agreement was never reached, she was coerced
into signing the agreement, unauthorized terms were added, and her attorney had engaged
in willful and negligent misrepresentation and breached his fiduciary duty.
In January 2014, the district court concluded that the settlement agreement was valid
and enforceable and dismissed Kinzer’s complaint with prejudice. Kinzer appealed that
determination. On January 20, 2015, this court affirmed the dismi ssal, concluding that
Kinzer had failed to put forth valid bases to invalidate the settlement agreement. Kinzer v.
CitiMortgage, Inc., No. A14-0830, 2015 WL 234262, at *1 (Minn. App. Jan. 20, 2015).
In January 2014, CitiMortgage and FHLMC moved the dis trict court, under Minn.
R. Civ. P. 60.02, to order Kinzer to sign a W -9 form (a request for taxpayer identification
number and certification). Kinzer refused to sign the W -9, which CitiMortgage and
FHLMC argued was necessary to process Kinzer’s settlement payment. The district court
determined that a rule 60.02 motion was inappropriate and encouraged FHLMC and
CitiMortgage “to consider other possible ways to carry out the settlement agreement
without the need for . . . Kinzer to sign a W-9 form.”

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In May 2014, FHLMC filed a second eviction action alleging its right to possess the
property. The district court granted summary judgment for FHLMC and issued a writ of
recovery. The matter was appealed to this court and affirmed. Fed. Home Loan Mortg .
Corp. v. Kinzer, No. A14-1013, 2015 WL 134201, at *5 (Minn. App. Jan. 12, 2015), review
denied (Minn. Apr. 14, 2015). In affirming, we noted that Kinzer did not dispute that the
mortgage was foreclosed and that there was no redemption , and she did not dispute that
“CitiMortgage purchased the property at the sheriff ’s sale and registered a copy of the
sheriff’s certificate, and later conveyed its interest in the property to [FHLMC], which was
also registered.” Id. at *3.
In April 2015, the district court, pur suant to Minn. Stat. § 508.20 (2016), referred
CitiMortgage’s title action to the examiner of titles to hear and determine issues of law and
fact and make a report for the district court. CitiMortgage moved for summary judgment,
claiming that a valid foreclosure had occurred, CitiMortgage had obtained the rights to the
property, the property was then conveyed to FHLMC, and CitiMortgage was therefore
entitled to a new certificate of title in favor of FHLMC. CitiMortgage further alleged that
the defenses ra ised in Kinzer’s answer were barred by res judicata. Kinzer moved for
partial summary judgment. On August 17, 2015, the examiner issued a report
recommending summary judgment for CitiMortgage and determining that Kinzer’s
challenges were barred by the mediated settlement agreement and res judicata.
CitiMortgage moved to adopt and Kinzer moved to reject the examiner’s report.
Kinzer argued that res judicata was inapplicable because CitiMortgage failed to perform
the terms of the settlement agreement by no t paying her $15,000 upon her signing of the

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settlement agreement. In November 2015, the district court ordered that CitiMortgage
either tender $15,000 to Kinzer or submit a brief explaining why Kinzer’s claims were
barred despite nonpayment. In December 2015, CitiMortgage tendered payment of
$15,000 to Kinzer’s attorney, and the attorney attempted to give the payment, minus his
fees, to Kinzer, but she refused to accept. In March 2016, the district court adopted the
examiner’s report, granted summary ju dgment in favor of CitiMortgage, and directed the
registrar of titles to enter a new certificate of title in favor of FHLMC. This appeal
followed.
D E C I S I O N
The district court adopted the report and recommendations of a title examiner and
granted summary judgment in favor of CitiMortgage. “Our review of a district court’s
decision to adopt the report and recommendations of a title examiner presents a mixed
question of law and fact.” In re Petition of Beachside I Homeowners Ass ’n, 802 N.W.2d
771, 773 (Minn. App. 2011). The district court’s factual findings will not be disturbed
unless clearly erroneous. Id. But we review the district court’s legal conclusio ns and
judgment de novo. Id.
Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that either party is entitled to a judgment as
a matter of law.” Minn. R. Civ. P. 56.03. “On appeal from summary judgment, this court
reviews de novo whether there are any genuine issues of material fact and whether the

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district court erred in its application of th e law to the facts.” Commerce Bank v. W. Bend
Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015).
Kinzer argues that (1) genuine issues of material fact preclude summary judgment ;
(2) the district court improperly applied claim preclusion; (3) res judicata bars
CitiMortgage’s title action; (4) the parties agreed that Kinzer’s previous civil action is not
relevant to this matter , and the district court lacked jurisdiction over the settlement
agreement; (5) the settlement agreement was abandoned and the judgm ent was dormant,
and the district court improperly rewrote the terms of the settlement agreement; (6) the
district court improperly made factual findings and clearly erred in its findings; and (7)
David Kinzer was not properly served, and the district court improperly awarded costs and
disbursements. We address each issue in turn.
Summary judgment
We first address whether genuine issues of material fact remain in CitiMortgage’s
title action following a mortgage foreclosure. “Any person who has, by an action or other
proceeding to enforce or foreclose a mortgage . . . become the owner in fee of the land . . .
may have the title registered.” Minn. Stat. § 508.58, subd. 1 (2016). Here, there was a
mortgage and subsequent foreclosure, a sheriff’s sale, CitiMortgage purchased the
property, and there was no redemption. A sheriff’s certificate of sale w as entered into the
record, which provides prima facie evidence of title in fee for CitiMortgage and its heirs
and assigns. See Minn. Stat. § 580.19 (2016).
Kinzer argues that genuine issue s of material fact remain because CitiMortgage
repeatedly stated during a motion hearing that the validity of the mortgage and foreclosure

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was in dispute. Kinzer’s argument is meritless. CitiMortgage was simply clarifying
Kinzer’s challenges to the title action and arguing that those challenges were barred by res
judicata.
Kinzer argues that a genuine issue of material fact exists because, in CitiMortgage’s
answer in Kinzer’s civil action, CitiMortgage admitted that “the mortgage is void.” Again,
Kinzer’s argument is meritless. CitiMortgage was simply presenting alternative pleadings
and arguing that, if the mortgage was void, David Kinzer was liable to CitiMortgage. See
Minn. R. Civ. P. 8.05(b) (permitting two or more alternative or hypothetical statements of
a defense).
Kinzer argues that genuine issues of material fact remain over the validity of the
mortgage and foreclosure. She seeks title to the property and argues that the mortgage was
fraudulently obtained. No genuine issues of material fact exist because those matters were
already decided, and Kinzer’s attacks on the mortgage and foreclosure are barred by res
judicata, which precludes a party from raising claims that were, or could have been, raised
in an earlier action. See Drewitz v. Motorwerks, Inc., 728 N.W.2d 231, 239 (Minn. 2007).
This court reviews de novo whether res judicata is applicable. Id. Res judicata bars
a subsequent claim when “(1) the earlier claim involved the same set of factual
circumstances; (2) the earlier claim involved the same parties or their privities; (3) there
was a final judgment on the merits; [and] (4) the estopped party had a full and fair
opportunity to litigate the matter.” Brown-Wilbert, Inc. v. Copeland Buhl & Co. , 732
N.W.2d 209, 220 (Minn. 2007) (quotation omitted).

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First, there was an earlier claim involv ing the same set of factual circumstances .
Kinzer commenced an action in 2012 seeking title to the property and attacking the validity
of the mortgage and foreclosure. She alleged that her former husband used a forged power-
of-attorney form to obtain a mortgage without her knowledge. Here, Kinzer again seeks
title and claims that the mortgage and foreclosure are invalid because her former husband
used a forged power-of-attorney form to obtain a mortgage without her knowledge.
Second, the same parties are involved. Kinzer was the plaintiff in her previous civil
action, and CitiMortgage and FHLMC were both named defendants. Third, Kinzer’s
previous civil action reached a final disposition pursuant to a mediated sett lement
agreement and subsequent dismissal with prejudice. “A judgment based on a settlement
agreement is a final judgment on the merits, but only with respect to those issues and claims
actually settled.” Goldberger v. Kaplan, Strangis & Kaplan, P.A. , 534 N.W.2d 734, 736
n.1 (Minn. App. 1995) (citation omitted), review denied (Minn. Sept. 28, 1995). In her
complaint in her civil action, Kinzer asked the district court to declare the power -of-
attorney, the mortgage, and the sheriff’s sale to be void and t o declare her the sole owner
of the property. Pursuant to the settlement agreement, Kinzer would consent to
proceedings subsequent and acknowledge the validity of the mortgage and foreclosure.
Therefore, Kinzer’s claims challenging the validity of the m ortgage and foreclosure
reached a final judgment on the merits.
Fourth, Kinzer had a full and fair opportunity to litigate the matter. She was
represented by counsel and participated in a mediation session, she signed the settlement

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agreement and then challenged its validity. The settlement agreement was deemed binding
and enforceable, she appealed, and we affirmed.
In sum, Kinzer’s claim of title based upon a challenge to the validity of the mortgage
and foreclosure is barred by res judicata , and there are no genuine issues of material fact
regarding the validity of the mortgage and foreclosure . See Application of Schaefer to
Register Title, 287 Minn. 490, 490, 178 N.W.2d 907, 908 (1970) (holding that res judicata
barred a claim of title asserted in a registration proceeding when the same claim had been
asserted and dismissed with prejudice in a prior action between the same parties); Barth v.
Stenwick, 761 N.W.2d 502, 508 (Minn. App. 2009) (setting forth requirements for
collateral estoppel, which are s imilar to requirements for res judicata but concern
previously litigated issues rather than claims); Nussbaumer v. Fetrow , 556 N.W.2d 595,
599 (Minn. App. 1996) (stating that Minnesota does not permit collateral attacks on facially
valid judgments), review denied (Minn. Feb. 26, 1997).
Preclusion
Kinzer next argues that preclusion is inapplicable because CitiMortgage failed to
perform the terms of the settlement agreement by failing to pay her. Kinzer’s challenge is
unavailing. A binding and enforceable settlement agreement was reached, the matte r was
disposed of pursuant to that agreement, and this court affirmed that disposition. Therefore,
res judicata is applicable. Generally, in the absence of fraud, a valid judgment entered by
agreement operates as res judicata “to the same extent as if it had been rendered after
contest and full hearing and is binding and conclusive upon the parties.” Pangalos v.
Halpern, 247 Minn. 80, 85-86, 76 N.W.2d 702, 706 (1956).

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Res judicata
Kinzer argues that res judicata bars CitiMortgage’s present title action. She argues
that the resolution of the previous rule 60.02 motion (asking the district court to make
Kinzer sign the W -9 form) “denied CitiMortgage a transfer of title for not paying on the
mediation contract.” Kinzer mischaracterizes that order. The district court simply
concluded that a rule 60.02 motion was the improper vehicle for the requested relief ; the
order was not a denial of a request to transfer title. Further, the rule 60.02 order was not a
final judgment on the merits. See Brown-Wilbert, 732 N.W.2d at 220 (requiring a final
judgment on the merits for application of res judicata); see also Minn. R. Civ. P. 60.02
(providing relief from final judgments, orders, or proceedings, and noting that a motion
under rule 60.02 “does not affect the finality of a judgment or suspend its operation”).
Civil action
Kinzer argues that the parties agreed that her civil action challenging the mortgage
and foreclosure is not relevant to this matter. Kinzer’s argument is meritless. CitiMortgage
is clearly arguing that res judicata is applicable. Kinzer asserts that the district court lacked
jurisdiction to rule on the settlement agreement because the case was not before the court.
However, res judicata intrinsically requires the existence and examination of a previous
claim. See Drewitz, 728 N.W.2d at 239.
Settlement agreement
Kinzer argues that the settlement agreement was abandoned and dormant, and
CitiMortgage somehow waived any right to seek title following its motion under rule 60.02.
Kinzer also argues that the district court improperly rewrote the terms of the settlement

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agreement. We shall not address these arguments as they were not raised before the district
court. Generally, we will not consider issues not argued to and considered by the district
court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
Factual findings
Kinzer argues that the district court improperly made findings in its summary
judgment order and clearly erred in its findings. While a district court must not make
factual findings on summary judgment, it may apply the law to undisputed facts , as
occurred here. DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).
Kinzer asserts that the district court clearly erred by finding that her marriage was
dissolved in March 2014, and the mortgage “was executed after July 1, 1987.” The district
court’s observation that the marriage was dissolved in 2014 was erroneous, as the decree
was entered in 2004. However, the district court “accepted, adopted, and approved” the
examiner’s report, which noted the correct date of the dissolution. Further, the date was
not germane. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (stating
that de minimis error not grounds for reversal). Kinzer also argues that it was erroneous to
find that the mortgage “was executed after July 1, 1987.” This was not an error because
the mortgage was executed in 2004.
Service/Costs and disbursements
Kinzer asserts that David Kinzer was not properly served with an order to show
cause. This issue was not raised before the district court. See Thiele, 425 N.W.2d at 582.
Regardless, service was proper. The examiner of titles recommended that notice be
provided by order to show cause. See Minn. Stat. § 508.13 (2016) (concerning powers and

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reports of examiners). An order to show cause was then issued by the district court.
Affidavits were filed stating that David Kinzer could not be located in Minnesota and that
he was therefore served by both mail and publication. The district court found that David
Kinzer was served and received notice, and the record supports this finding. See Minn.
Stat. § 508. 58, subd. 1 (requiring due notice); Minn. R. Gen. Pract. 215 (requiring, in
proceedings under Minn. Stat. § 508.58 , when the manner of service is not prescribed by
statute, service by order to show cause in the manner designated by that order); see also
Minn. Stat. § 508.39 (2016) (allowing service of nonresidents by mail, publication, or other
means if ordered by the court).
Lastly, Kinzer argues, in her reply brief, that the district court, sua sponte ,
improperly awarded costs and disbursements to CitiMortgage. We shall not address this
issue because it was not raised in Kinzer’s principal brief. Issues that are raised for the
first time in a reply brief are not properly before this court. Swarthout v. Mut. Serv. Life
Ins. Co., 632 N.W.2d 741, 748 (Minn. App. 2001).
Affirmed.