Colleen Cole f/k/a Colleen Wallin, 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This opinion will be unpublished and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
A19-1326

Colleen Cole f/k/a Colleen Wallin,
Appellant,

vs.

Caliber Home Loans, Inc.,
Respondent.

Filed April 20, 2020
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CV-17-13668

Joseph W. Dicker, Joseph W. Dicker, P.A., Minneapolis, Minnesota (for appellant)

Christopher J. Knapp, Barnes & Thornburg LLP, Minneapolis, Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant argues that the district court erred by granting summary judgment in
respondent’s favor when it determined that there were no issues of material fact regarding
the amount due and owing on her mortgage in the notice of foreclosure sale. We affirm.

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FACTS
In 2004, appellant Col leen Cole f/k/a Colleen Wallin entered into a mortgage
contract with Bell America Mortgage LLC (Bell America). Cole executed a promissory
note in favor of Bell America in the amount of $288,000, secured by a mortgage on real
property. Mortgage Electronic Registration Systems Inc. (MERS) was designated as the
nominee for Bell America. The note and mortgage were later assigned to different holders
and servicers, and Caliber Home Loans Inc. (Caliber) is the current holder of the note and
mortgage. In 2016, Cole defaulted on the mortgage and Caliber initiated a foreclosure by
advertisement. In July 2016, Ca liber i ssued a notice of mortgage foreclosure s ale (the
foreclosure notice), scheduling a sheriff’s sale. The foreclosure notice indicated that the
total amount due and owing on the note was $405,225.21. At the sheriff’s sale, Caliber
was the highest bidder and took title to the property. Cole did not exercise her statutory
right of redemption.
In February 2017, Cole filed a civil lawsuit against Caliber (1) challenging the
validity of the foreclosure, (2) seeking an accounting, and (3) alleging improper dual
tracking. The district court dismissed counts two and three of the complaint, determining
that Cole could not maintain a cause of action for accounting and that the improper -dual-
tracking claim was statutorily barred. Following discovery, the district cou rt granted
Caliber’s summary-judgment motion and dismissed the remaining count. The district court
held that there was no issue of material fact concerning the amount due on the mortgage.
Further, the district court concluded that even if it accepted Col e’s argument that the

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amount reflected in the foreclosure notice was incorrect, the error, if any, was not material
and did not prejudice Cole. Cole now appeals summary judgment.1
D E C I S I O N
I. Standard of review
Summary judgment is appropriate if the record reflects “no genuine issue as to any
material fact” and that the moving party “is entitled to judgment as a matter of law.” Minn.
R. Civ. P. 56.01. A genuine issue of material fact exists if a rational trier of fact,
considering the record as a whole, could find for the nonmoving party. Frieler v. Carlson
Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). “[T]here is no genuine issue of
material fact for trial when the nonmoving party presents evidence which merely creates a
metaphysical doubt as to a factual issue and which is not sufficiently probative with respect
to an essential element of the nonmoving party’s case to permit reasonable persons to draw
different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). On appeal,
“[w]e review a district court ’s decision to grant summary judgment de novo to determine
whether any genuine issue of material fact exists and whether the distri ct court correctly
applied the law.” Citizens State Bank Norwood Young Am. v. Brown , 849 N.W.2d 55, 61
(Minn. 2014). “[W]e may affirm a grant of summary judgment if it can be sustained on
any grounds.” Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012).

1 Cole does not challenge the dismissal of counts two and three of the complaint.

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II. The district c ourt did not err in determining that there were no issues of
material fact.

Cole asserts that summary judgment was improper because deficiencies in Caliber’s
foreclosure notice render the foreclosure and the sale void. In a foreclosure by
advertisement, a notice of foreclosure sale must contain “the original or maximum principal
amount secured by the mortgage” and “the amount claimed to be due on the mortgage on
the date of the notice.” Minn. Stat. §§ 580.04(a)(1), (3) (2020).
Here, the foreclosure notice stated that the amount claimed to be due on the
mortgage as of the date of notice was $405,225.21. Caliber presented evidence to the
district court that the amount stated on the foreclosure notice was correct. Specifically,
Caliber’s default service officer submitted an affidavit containing copies of Cole’s payment
history from January 2005 to April 2019. Cole argues that the amount is incorrect because
Caliber failed to account for approximately $30,000 of check payments she made toward
the mortgage . However, it is uncontested that Caliber did not cash these checks and
returned the uncashed checks to Cole. It is further uncontested that the uncashed checks
were not applied to the loan balance and did not reduce the amount due and owing on the
mortgage. The district court determined that the uncashed checks failed to rebut the
evidence presented by Caliber. Cole did not present any other evidence demonstrating that
Caliber’s calculation of the mortgage balanc e was incorrect. Given the lack of evidence,
the district court determined that there were no genuine issues of material fact as to the
accuracy of the mortgage foreclosure notice and granted summary judgment in Caliber’s
favor.

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We discern no error in the district court’s decision. At the time of the foreclosure
sale, the notice of foreclosure complied with Minn. Stat. §§ 580.04(a)(1), (3) by correctly
listing the amount due and owing as $405,225.21. Cole did not present any competent
evidence that the amount listed as owed on the foreclosure notice was inaccurate, and the
district court specifically observed that Cole “failed to provide any evidence to suggest that
the amount on [Caliber’s] foreclosure notice was incorrect.” Because there are no genuine
issues of material fact concerning the amount due on the mortgage , the district court did
not err by granting summary judgment.
Cole urges this court to hold that a misstatement in the foreclosure noti ce is
presumptively prejudicial and overrule Leeco, Inc. v. Cornerstone Bank, 898 N.W.2d 653
(Minn. App. 2017), review denied (Minn. Sept. 27, 2017). In its summary-judgment order,
the district court stated that even assuming the amount reflected in the fo reclosure notice
was incorrect, Cole was not entitled to relief because she did not demonstrate prejudice.
The district court relied on the Leeco decision, which recognized that “a mortgagee, under
a mistake of law or fact may honestly claim more than by law he would be entitled to. In
such a situation, if the other party is not shown to be prejudiced thereby, the sale should
not be disturbed.” Id. at 659 (citation omitted). Here, Cole did not allege that she suffered
prejudice as a result of any purported error in the amount claimed on the foreclosure notice.
We decline to revisit the Leeco decision. As an error-correcting court, we are bound
by supreme court precedent and the published decisions of this court . Landmark Cmty.
Bank, N.A. v. Klingelhutz , 927 N.W.2d 748, 761 (Minn. App . 2019); see also Jackson v.
Options Residential, Inc., 896 N.W.2d 549, 553 (Minn. App. 2017) (holding that “we are

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bound by precedent established in . . . our own published opinions”). We will generally
“adhere to former decisions in order that there might be stability in the law,” and we “will
only overrule our precedent if provided with a compelling reason to do so.” Ariola v. City
of Stillwater, 889 N.W.2d 340, 356 (Minn. App. 2017) (quotations omitted), review denied
(Minn. Apr. 18, 2017). “[T]he reasons for departing from former decisions [must] greatly
outweigh reasons for adhering to them.” Id. (alteration in original). Here, Cole has not
articulated a persuasive argument compelling this court to ignore Leeco’s holding, and the
district court did not err by applying it.
Because the district court did not err by determining that the amount listed on the
foreclosure notice was accurate and supported by the record, we affirm.
Affirmed.