Rodney Wayne Kesanen, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1060

Rodney Wayne Kesanen,
Appellant,

vs.

Dawn Strope-Robinson,
Respondent.

Filed February 11, 2019
Affirmed
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69VI-CV-17-751

John H. Bray, Maki & Overom, Ltd., Duluth, Minnesota (for appellant)

Richard E. Prebich, Richard Dahl , Prebich Law Office, P.C., Hib bing, Minnesota (for
respondent)

Considered and decided by Johnson, Presiding Judge; Ross, Judg e; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Rodney Wayne Kesanen (creditor) had judgment against David C. Strope
(debtor). Debtor, shortly before he died, executed a transfer-o n-death deed to transfer
certain real property to his ni ece, respondent Dawn Strope-Robi nson (transferee). After
debtor’s death, creditor sued transferee under the Minnesota Un iform Voidable

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Transactions Act (MUVTA), Minn. Stat. §§ 513.41-.51 (2018), seeking to void the transfer
as fraudulent and to establish that he had a lien on the proper ty. The district court granted
summary judgment in favor of transferee, concluding that there is no genuine issue of fact
that the property was debtor’s homestead and that transferee was entitled to a judgment as
a matter of law. We affirm.
FACTS
In April 2006, creditor obtained a judgment of several hundred thousand dollars
against debtor. Eight years later, debtor filed for bankruptcy. Debtor moved the bankruptcy
court to avoid credito r’s judgment lien on debtor’s real proper ty located at 4450 Pelican
Road in Orr, Minnesota, for the reason that the property was hi s homestead. Pursuant to
stipulations by the parties, the bankruptcy court granted the m otion. The underlying debt
was not discharged in bankruptcy.
Thereafter, in early August 2017, debtor, who had no spouse or children, executed
and filed a transfer-on-death d eed (TODD), conveying the proper ty to his niece upon his
death. On August 14, 2017, debtor died. Creditor subsequently f iled this action against
transferee, seeking to void the transfer of the property as fraudulent under the MUVTA; he
also sought a determination that a judgment lien attached to the property. The district court
granted transferee’s motion for summary judgment on the grounds that the homestead
exemption applied to debtor’s property, the transfer was not voidable under the MUVTA,
and no judgment lien attached to the property.
This appeal follows.

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D E C I S I O N
On appeal from summary judgment, we review de novo whether a g enuine issue of
material fact exists and whether the district court erred in its application of law. STAR Ctrs.,
Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002). “We view the evidence
in the light most favorable to the party against whom summary judgment was granted.” Id.
at 66-67 (quotation omitted). A mo tion for summary judgment sha ll be granted when the
record shows “that there is no genuine issue of material fact and that either party is entitled
to judgment as a matter of law.” Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993)
(citation omitted); see Minn. R. Civ. P. 56.01. In this case, the district court grante d
summary judgment in favor of transferee because it decided that (1) no genuine issue
existed as to whether the proper ty was debtor’s homestead until death and (2) transferee
was entitled to judgment as a matter of law because the transfe r of debtor’s homestead
property was not voidable under the MUVTA and because debtor’s homestead property
was transferred without being subject to a judgment lien.
We will address both decisions, b ut we begin with the legal issues.
I. Application of Law

The district court decided that , if the transferred property w as debtor’s homestead
until his death, transferee was entitled to judgment as a matter of law because the transfer
was not voidable and no lien attached to the property.
A. MUVTA Claim
Creditor claims that the transfer of the property to transferee was fraudulent and
voidable under the MUVTA. The MUVTA renders “a transfer made or obligation incurred

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by a debtor” voidable as to a creditor in certain situations. M inn. Stat. §§ 513.44-.45.
“‘Transfer’ means every mode . . . of disposing of or parting with an asset or an interest in
an asset, and includes payment of money, release, lease, license, and creation of a lien or
other encumbrance.” Minn. Stat . § 513.41(16). “‘Asset’ means pr operty of a debtor, but
the term does not include . . . property to the extent it is ge nerally exempt under
nonbankruptcy law . . . .” Minn. Stat. § 513.41(2).
Homestead property is exempt under nonbankruptcy law. Minn. Sta t. § 510.01
(2018). Thus, a transfer of homestead property is not within the scope of the MUVTA. See
Minn. Stat. §§ 513.41, .44 (providing when a transfer is voidab l e u n d e r t h e M U V T A ) .
Caselaw, applying essentially the same statutory grant of homes tead right, holds that the
homestead exemption extends to fraudulent conveyances. See Nw. Holding Co. v. Evanson,
122 N.W.2d 596, 600 (Minn. 1963) (“Even a conveyance fraudulent as to creditors does
not deprive the property of its homestead exemption.”); First Nat’l Bank of Mankato v.
Wilson, 47 N.W.2d 764, 766 (Minn. 1951) (“[A] conveyance of [a] homes tead cannot be
set aside by creditors as fraudulent, even though the debtor conveying the property intends
thereby to defraud his creditors.”); Sisco v. Paulson , 45 N.W.2d 385, 387 (Minn. 1950)
(“Exempt property [including hom estead property] is not suscept ible of fraudulent
alienation, and creditors ordinarily have no right to complain of the disposition made of it
. . . .”).
Creditor argues that, even assuming the property was debtor’s h omestead, the
transfer at issue is still within the scope of the MUVTA becaus e debtor’s homestead
exemption ceased to exist upon debtor’s death, rendering the property nonexempt. Creditor

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cites Minn. Stat. § 510.06 (2018), which provides that a homestead exemption survives the
owner’s death if the owner dies leaving a spouse or minor child ren but does not, creditor
notes, extend the same protection to a niece.
But debtor did not only die, he transferred his property, and Minnesota law protects
the rights of owners to convey homestead property free of debts . Minn. Stat. § 510.07
(2018) provides that an “owner may sell and convey the homestea d without subjecting it
. . . to any judgment or debt from which it was exempt in the o wner’s hands.” Thus, if
section 510.07 applies to debtor’s transfer, it was a transfer of homestead property and not
subject to the MUVTA. See Nw. Holding Co., 122 N.W.2d at 600.
Creditor argues that section 510.07 does not apply because the transfer was by
means of a TODD. He reasons that the TODD become effective upon debtor’s death; that,
at some theoretical moment betwee n debtor’s death and the trans fer, debtor’s homestead
exemption expired; and that debtor therefore transferred nonexempt property. Besides the
lack of authority for excepting a TODD from section 510.07, we cannot see why the full
protection of homesteaders’ rig hts under section 510.07 would n ot apply to debtor’s
conveyance by a TODD when those rights would have applied had d ebtor conveyed the
property to his niece the day before his death. Minnesota law “jealously protect[s] the rights
of homesteaders,” id., and this protection includes the right to convey homestead property
free of debts.
Creditor also argues that the right to convey a homestead under section 510.07 does
not apply because it applies only in arm’s-length transactions and this transfer was not
arm’s-length. But “[t]he right to sell and convey the homestead is absolute, and the purpose

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of the transfer is immaterial, as is the amount of the consideration paid.” Wilson, 47 N.W.2d
at 766. Section 510.07 therefore applies even though the transfer was to debtor’s niece, at
no cost.
Thus, the district court correctly concluded that, if debtor’s property was homestead
property at the time of his death, the transfer of his property falls within the protections of
section 510.07 and the MUVTA does not apply.
B. Lien
Creditor also argues that the district court erred by concluding that he is not entitled
to a lien on the property. Under the TODD statute, an interest transferred by a TODD after
the grantor-owner’s death “is transferred subject to all effective . . . judgments . . . to which
the interest was subject on the date of death of the grantor ow ner.” Minn. Stat. § 507.071,
subd. 3 (2018). Relying on similar reasoning to his MUVTA argument, creditor asserts that
debtor’s homestead exemption expired at his death and, at a the oretical moment between
his death and the transfer of th e property pursuant to the TODD , creditor’s judgment lien
attached and the property was thus transferred subject to the lien.
Again, we disagree. Debtor’s interest in the property could be subject to no
judgment lien as long as the prope rty was debtor’s homestead. A s the district court
suggested, the expiration of both debtor’s homestead exemption and debtor’s interest in the
property occurred simultaneously u pon debtor’s death; there was no period of time in
which debtor retained an interes t in nonexempt property to whic h a judgment lien could
have attached. The property was thus transferred to transferee without creditor’s asserted
lien attached.

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The district court made no erro r of law by concluding that transferee was entitled to
summary judgment if debtor’s property was his homestead. We turn next to whether there
is any genuine issue of fact concerning that question.
II. There is no genuine dispute th at debtor’s property was his homestead until
death.

“The house owned and occupied by a debtor as the debtor’s dwel ling place . . .
constitute[s] the homestead of such debtor and the debtor’s family.” Minn. Stat. § 510.01.
The district court concluded that there was no genuine dispute as to whether debtor’s
property was his homestead until death.
Transferee presented several pieces of evidence to prove that the property was
debtor’s homestead until his death. First, during debtor’s bankruptcy proceeding in 2014,
creditor stipulated that the prop erty was a homestead. Second, the St. Louis County
Assessor’s office certified that th e property was homesteaded i n 2017 for tax purposes.
Third, debtor’s death certificate lists Orr, Minnesota, as his residence and place of death.
Fourth, two former neighbors of debtor signed affidavits in whi ch they stated that, during
the years they knew debtor and at the time of his death, debtor “was owner of the property”
and “occupied the property . . . as his primary residence.” One of them knew debtor for
over 15 years and saw him once or twice a week at the property towards the end of his life.
Creditor, on the other hand, did not present any evidence sugg esting that the
property ceased to be a homestead at some point before debtor’s death. Creditor instead
argues that a genuine issue persists because transferee failed to establish that the property
had been a homestead at the moment debtor died. This argument is unpersuasive. Not only

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does creditor unfairly disregard the neighbors’ sworn statement s t o t h e c o n t r a r y , h e
misconstrues what a summary-judgm ent movant’s burden is. Transf eree’s burden, as a
summary-judgment movant, is not to prove that there is no theor etical possibility that a
genuine issue can exist. See DLH, Inc. v. Russ , 566 N.W.2d 60, 71 (Minn. 1997) (“[A]
metaphysical doubt as to a factual issue will not defeat a summ ary judgment motion.”
(quotation omitted)). Rather, her burden is to prove that reasonable persons cannot “draw
different conclusions from the evidence presented.” Id. at 69.
Summary judgment “is mandatory against a party who fails to es tablish an essential
element of [the] claim, if that party has the burden of proof.” Bebo v. Delander, 632 N.W.2d
732, 737 (Minn. App. 2001) (altern ation in original) (quotation omitted), review denied
(Minn. Oct. 26, 2002). Here, cr editor bears the ultimate burden to prove that debtor had
stopped using the property as a homestead before he died. See Gordon v. Emerson-
Brantingham Implement Co., 210 N.W. 87, 88 (1926) (“[O]nce a homestead is acquired,
the exemption from the claims of creditors is presumed to conti nue until it is shown by
clear and convincing evidence that the right has been abandoned .”). Because creditor did
not present any evidence to suppo rt that proposition, a reasona ble person would find that
creditor failed to meet his burden. There was no genuine issue as to the fact that debtor
homesteaded the property until his death.
Because there was no genuine dispute of fact that the property was debtor’s
homestead, and because transferee was entitled to judgment as a matter of law, the district
court did not err in granting summary judgment to transferee.
Affirmed.