Michael M Whalen, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1671

Michael M Whalen,
Appellant,

vs.

200 River Drive Condominium Association,
Respondent,

Minneapolis Property LLC,
Respondent.

Filed August 5, 2024
Affirmed in part and reversed in part
Ross, Judge

Ramsey County District Court
File No. 62-CV-22-6061

Carl E. Christensen, Christopher J. Wilcox, Robert Kouba, Christensen Sampsel PLLC,
Minneapolis, Minnesota (for appellant)

Kurt M. Mitchell, Neven Selimovic, Phaedra J. Howard, Brendan M. Kenny, Hellmuth &
Johnson, Edina, Minnesota (for respondent 200 River Drive Condominium Association)

Gregory J. Holly, Hugo, Minnesota (for respondent Minneapolis Property LLC)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Reyes ,
Judge.
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NONPRECEDENTIAL OPINION
ROSS, Judge
Michael Whalen owns a residential condominium unit in a complex governed by a
housing association whose controlling board decided to repair the deteriorating ironwork
on balconies in the complex and assess the repair cost to the unit owners. Whalen refused
to pay his assessed, proportionate share of the repair cost, leading the association to record
an assessment lien against his unit and then foreclose on the lien. Whalen sued the
association, primarily seeking a judgment declaring the special assessment, the lien, and
the foreclosure and consequent sale invalid as a matter of law. The district court rejected
Whalen’s invalidation arguments and granted summary judgment favoring the association,
dismissing Whalen’s civil complaint. We affirm the summary-judgment dismissal on those
issues, but we reverse in part because Whalen also alleged and has identified evidence
supporting his claim that the association failed to meet its statutory duty to provide him
with records that he requested related to the balcony project.
FACTS
Appellant Michael Whalen owns a residential condominium unit in a complex
whose housing association, respondent 200 River Drive Condominium Association, is
composed of unit owners and maintains the complex’s common areas. The common areas
include exterior ironwork balconies that are affixed to each residence and that were
deteriorating in April 2020, needing to be repaired. The association considered plans to
repair the balconies, and its board of directors held two votes to approve its proposed
project. Whalen alone voted against it, resulting in a final tally of 13 to 1. The association
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completed the project and specially assessed each member a share of the overall cost,
proportionate to the value of each member’s residential unit.
The opposing parties then dug in on principle. Whalen refused to pay his assessed
cost of $11,200 until the association provided requested documentation concerning the
project. The association provided him some, but allegedly not all, of the requested
documentation and added a $75 late fee. Whalen then agreed to pay the assessment amount
but not the late fee. The association refused to accept Whalen’s payment without the late
fee. The fight over that $75 grew into this litigation.
The association recorded a lien statement against Whalen’s unit in February 202 2
for his unpaid assessment, and it notified Whalen in March 2022 that it had accelerated his
assessments due for the entire year. The association began the foreclosure process. In April
2022, it published notice in the newspaper of a foreclosure sale of Whalen’s unit scheduled
for June 22, 2022, and it attempted to serve Whalen directly with the notice. But foreclosure
by advertisement requires the foreclosing party to both publish notice of the foreclosure
sale for six weeks before the scheduled date of sale and to personally serve the property
possessor four weeks before the sale. Minn. Stat. § 580.03 (2022). Because it had not
served Whalen in time for a June 22, 2022 sale, in September 2022, the association
published notice that the foreclosure sale was postponed until November 17, 2022, and it
served Whalen with the notice.
Whalen unsuccessfully moved the district court for a temporary restraining order to
prevent the foreclosure sale. He also filed a civil complaint in district court to prevent the
sale, alleging that both the underlying lien and the sale were invalid and alleging that the
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association had failed to meet its statutory duty to provide him with requested
documentation.
Minneapolis Property LLC purchased the property at the sale, which occurred as
rescheduled. Whalen and the association filed competing motions for summary judgment.
Shortly before the statutory redemption period was set to expire, Whalen redeemed the
property by paying $28,226.78. The district court granted the association’s motion,
determining that the association’s assessment lien was valid and that Whalen waived his
opportunity to challenge the foreclosure process by redeeming the property.
Whalen appeals.
DECISION
Whalen challenges the district court’s summary-judgment dismissal of his civil
complaint. We review a grant of summary judgment de novo. Montemayor v. Sebright
Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017). We apply the same standard as the district
court, affirming summary judgment if the moving party has demonstrated that no genuine
issue of material fact exists and that the moving party is entitled to judgment as a matter of
law. Minn. R. Civ. P. 56.01. On this review, we conclude that Whalen has demonstrated
that material fact disputes prevent summary judgment favoring the association as to only
one claim in his complaint, specifically, whether the association met its legal obligation to
properly respond to Whalen’s requests for records maintained by the association.
I
We begin our summary-judgment assessment by addressing the association’s
threshold argument asserting that, by redeeming the property, Whalen waived the claims
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he made in his civil complaint. The association argues that we should affirm summary
judgment in its favor based on the application of two statutes to these circumstances. We
determine de novo how statutes are interpreted and applied. Cocchiarella v. Driggs, 884
N.W.2d 621, 624 (Minn. 2016). The association argues specifically that, because Whalen
failed to follow “all [the] steps [outlined in Minnesota Statutes section 580.28 (2022)] to
preserve his claims,” and because Whalen redeemed the property after the foreclosure sale
and therefore rendered the sale annulled by virtue of Minnesota Statutes section 580.27
(2022), he waived his right to challenge the foreclosure. Construing the statutes on their
plain terms, we reject the association’s waiver argument.
Contrary to the association’s proposition that Whalen “had to follow [section]
580.28’s requirements” for him to have “preserve[d] his right to challenge the validity of
the sale while the redemption period was running,” that section instead outlines the process
a claimant may invoke to preserve his right to redeem the property being foreclosed by
advertisement pending his legal action challenging the validity of the underlying mortgage:
When an action is brought wherein it is claimed that any
mortgage as to the plaintiff or person for whose benefit the
action is brought is fraudulent or void, or has been paid or
discharged, in whole or in part, or the relative priority or the
validity of liens is disputed, if such mortgage has been
foreclosed by advertisement, and the time for redemption from
the foreclosure sale will expire before final judgment in such
action, the plaintiff or beneficiary having the right to redeem,
for the purpose of saving such right in case the action fails, may
deposit with the sheriff before the time of redemption expires
the amount for which the mortgaged premises were sold, with
interest thereon to the time of deposit, together with a bond to
the holder of the sheriff’s certificate of sale, in an amount and
with sureties to be approved by the sheriff, conditioned to pay
all interest that may accrue or be allowed on such deposit if the
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action fail. The person shall, in writing, notify such sheriff that
the person claims the mortgage to be fraudulent or void, or to
have been paid or discharged, in whole or in part, as the case
may be, and that such action is pending, and direct the sheriff
to retain such money and bond until final judgment. In case
such action fails, such deposit shall operate as a redemption of
the premises from such foreclosure sale, and entitle the
plaintiff to a certificate thereof. Such foreclosure, deposit,
bond, and notice shall be brought to the attention of the court
by supplemental complaint in the action, and the judgment
shall determine the validity of the foreclosure sale, and the
rights of the parties to the moneys and bond so deposited,
which shall be paid and delivered by the sheriff as directed by
such judgment upon delivery to the sheriff of a certified copy
thereof. The remedy herein provided shall be in addition to
other remedies now existing.

Minn. Stat. § 580.28. Whalen did not follow the steps to invoke the statute, which is
expressly established “for the purpose of saving such right [to redeem] in case the action
[challenging the mortgage] fails.” Id. Whalen instead actually exercised his right to redeem,
and the statute says nothing about any effect redemption might have on the claimant’s
underlying claims.
We are partially convinced by the association’s related supposition that, based on
Minnesota Statutes section 580.27, Whalen could not “both annul the foreclosure [by
redeeming the property] and challenge it on the merits.” Section 580.27 does not say that,
by redeeming, a property owner waives any pending foreclosure-related claims. The
statute’s operative language declares only, “If redemption is made by the owner of the
property sold, . . . such redemption annuls the [foreclosure] sale.” Minn. Stat. § 580.27.
The association reasonably contends that redemption and the consequent annulment of the
sale result in Whalen having “no claims to preserve regarding the validity of the sale,” and
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Count IV of Whalen’s complaint challenges the validity of the foreclosure sale and asks
the court expressly to nullify it. Because Whalen’s redemption nullified the sale, Count IV
cannot survive under section 580.27 to the extent it challenges the sale.
But as we have said, we are only partially persuaded by the association’s argument
arising from section 580.27. This is because Whalen’s complaint is not limited to his claim
challenging the validity of the foreclosure sale and seeking its nullification. His complaint
also alleges that he is entitled to a declaratory judgment and the recovery of attorney fees
under Minnesota Statutes section 515B.4-116 (2022), which establishes a cause of action
by any aggrieved person “for appropriate relief” against an association for its having failed
to act properly under its own bylaws. In support of that claim, Whalen alleged that the
association failed to follow the procedures indicated in its bylaws when it specially
assessed his unit for the balcony repairs, when it refused to provide him documentation
related to the ballot for approval of the project, when it sought foreclosure under the wrong
mechanism, and when it attempted to obligate him to pay its attorney fees. The complaint
seeks unspecified relief under section 515B.4 -116, including but not limited to an award
of attorney fees to be paid by the association and excluded from any assessment against
Whalen. Neither section 580.27 nor 580.28 expressly or implicitly precludes Whalen from
pursuing his claim under section 515B.4-116 simply because he redeemed the property
after the foreclosure sale.
II
Whalen advances a different threshold argument. He contends primarily that,
because the a ssociation did not postpone the foreclosure sale before it occurred, the
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foreclosure action terminated automatically when the scheduled sale date passed without a
sale and could not, after that date, be revived by the association’s notice of sale
postponement. He builds this argument on the fact that the association did not publish
notice of the sale postponement until September 22, 2022, almost nine weeks after the
scheduled sale date of June 22, 2022. No case or statute that Whalen cites directly supports
his argument, and we are aware of none. It is not our prerogative to add words when we
construe a statute, even to fill a gap that we suppose the legislature might have overlooked.
Martinco v. Hastings, 122 N.W.2d 631, 638 (Minn. 1963) (“[C]ourts cannot supply that
which the legislature purposely omits or inadvertently overlooks.”). Under the controlling
statute, a mortgagee can postpone a foreclosure sale by publishing notice of the
postponement in the newspaper where the initial notice of sale was published and by
mailing notice to the mortgagor. Minn. Stat. § 580.07, subd. 1 (2022). The postponement
statute requires the postponing party to “publish, only once, a notice of the postponement
and the rescheduled date of the sale, if known,” id., subd. 1(a)(1), and neither of its two
timing restrictions includes the bar that Whalen would have us incorporate into the statute.
One of the timing references requires the postponing party to publish the postponement
notice “as soon as practicable” after determining the date of the rescheduled sale, and the
other requires the party to send the occupant of the foreclosed property the notice,
“postmarked within ten days of the rescheduled sale.” Id., subd. 1(a)(1), (b)(2). The statute
does not otherwise regulate the timing of the postponement notice. Nor does it or any other
authority referenced by Whalen suggest that a foreclosure proceeding dies instantly if the
sale does not occur on the original date scheduled. We decline to hold that the timing of
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the postponement notice automatically ended the sale process. We turn to Whalen’s other
arguments for reversal.
III
Whalen contends that we should reverse the district court’s decision dismissing his
claim for relief under Minnesota Statutes section 515B.4-116 because the association
engaged in various conduct not authorized by its bylaws or by statute. His complaint
identifies five allegedly unlawful actions: (1) failing to obtain member approval to
specially assess the units for the balcony-repair project; (2) failing to respond to Whalen’s
requests for documentation regarding the ballot used in the balcony-project vote;
(3) seeking to foreclose by advertisement instead of by action; (4) failing to follow the law
when foreclosing by advertisement; and (5) seeking to recover attorney fees through
foreclosure by advertisement. Our de novo review of the summary-judgment arguments
leads us to reject all but one of Whalen’s contentions.
Member Approval of Balcony-Repair Project
We first address Whalen’s claims arising from the association’s alleged bylaw
violations in its process for approving the balcony project. A condominium association’s
authority is framed by its declarations, by its bylaws, and by statute. Chapman Place Ass’n,
Inc. v. Prokasky, 507 N.W.2d 858, 863 (Minn. App. 1993), rev. denied (Minn. Jan. 24,
1994). The Minnesota Common Interest Ownership Act (MCIOA), codified under
Minnesota Statutes chapter 515B, applies in part to condominiums created under a
predecessor statute, chapter 515. Minn. Stat. § 515B.1-102 (2022). The association’s
declaration establishes that it was created under chapter 515. It is a nonprofit corporation
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organized in relevant part to provide for the maintenance, preservation, operation, and
management of the complex property. Whalen argues that the association is not entitled to
summary judgment because the board of directors violated the association bylaws by
undertaking the balcony project without first obtaining member approval through an
election process that meets the procedural requirements for membership elections outlined
in the bylaws. The association counters, maintaining that, because the bylaws authorize the
board to provide “care” and “maintenance” of common areas, no membership vote was
necessary to approve the balcony project. The association alternatively asserts that a
membership vote in fact ratified the board’s decision and that Whalen has offered no
evidence to support his assertions that the membership vote included disqualifying
irregularities.
We conclude that t he association bylaws empowered the board to approve the
balcony-repair project. Under the MCIOA, a condominium owners ’ association has the
power to “levy and collect assessments for common expenses from unit owners, . . .
regulate the use, maintenance, repair, replacement, and modification of the common
elements” and “cause improvements to be made as a part of the common elements.” Minn.
Stat. § 515B.3-102(a)(2), (6), (7) (2022). The association’s bylaws provide that “[t]he
Board of Directors shall have the powers and duties necessary for the administration of the
affairs of the Association and may do all such acts and things as are not by law or by these
By-Laws directed to be exercised and done by the owners.” Two of the board’s express
duties in the bylaws not directed to be done by the owners are the “care [and] upkeep . . .
of the . . . common areas and facilities.” And the bylaws categorize the unit balconies as
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common areas. Although Whalen argues that “[n]owhere is the board authorized to
undertake capital improvement projects,” he does not identify any provision in the bylaws
or declaration that prohibits the board from contracting on the association’s behalf to repair
common areas. Nor does he point to any provision distinguishing repairs that are “capital
improvements” from repairs that are “upkeep” and “maintenance” of the property.
Our analysis is also informed by a provision in the association’s declaration, which
expressly requires a members’ decision whether to “rebuild, repair, or restore, or sell the
property” if the property has been damaged or destroyed. This provision requiring member
authorization is limited to property subject to repair particularly because it has been
damaged or destroyed, not property that is subject to repair because of its ordinary wear or
deterioration over time. We agree with the district court that, by contrast and “[m]ore
specific to this case, the Association’s Declaration and By-Laws leave to the elected Board
of Directors, acting on behalf of the Association, decisions relating to the ‘care’ and
‘upkeep’ of the project as well as ‘designation and dismissal’ of personnel ‘necessary for
the maintenance and operation’ of the project.” We are unpersuaded by Whalen’s
contention on appeal that this provision about “damage or destruction” applies to the
balcony project, which, according to the record, was initiated by the association because
the ironwork had begun deteriorating, not because it had been damaged or destroyed. We
hold that the duty to maintain the propert y’s common areas necessarily implies the
authority to undertake periodic repairs and that repairing the balconies’ time-worn
ironwork falls under the board’s authority with or without member approval. Although it
might be prudent for the board to submit particularly expensive maintenance and upkeep
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projects to the association membership for approval, Whalen has not shown that the bylaws
require it here.
We similarly are not persuaded by Whalen’s contention that the board needed
member approval before assessing the cost of the balcony project to the unit owners.
Whalen emphasizes that the bylaws do not specifically grant the board the authority to fund
repairs by a special assessment. But they also do not list situations where an assessment
would require member approval. Nor do they describe the process for covering costs
through a special assessment. The bylaws do authorize the association to “establish[] and
collect[] monthly assessments.” Although the y do not define what “establishing” an
assessment entails, the record supports the reasonable understanding that it includes
allocating the cost of repair projects to unit owners to be included in their monthly
assessment obligations.
On his premise that the board could not undertake the project without the vote of
association members, after acknowledging that the board “submitted to the vote of the
[m]embers whether to authorize a balcony project for the redesign and replacement” of the
balconies’ ironwork for $235,000, Whalen maintains that the membership vote was infirm
for five reasons. He asserts that the membership ballots failed to state that the project would
be funded by a special assessment, that the board held the election over a 5 -day period
rather than the 15-day period required by statute, that the board allowed the votes to be cast
by mail rather than limiting voting to an association membership meeting, that the ballot
box remained open past the voting period established by the board, and that the board did
not provide Whalen documents proving that the members voted in favor of the project.
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Because we have concluded that a membership vote was unnecessary, we do not discuss
Whalen’s contentions against the voting process.
Documentation Regarding Balcony Project
Whalen’s complaint alleges that the association is liable under Minnesota Statutes
section 515B.4-116 for violating the bylaws and the MCIOA by refusing to grant his
requests for information and documents related to the ballot circulated for approval of the
balcony project. His brief on appeal discusses the association’s alleged “fail[ure] to present
any evidence that the board actually undertook any vote to approve the [b]alcony [p]roject
and assess the costs,” and he presents two distinct arguments about this failure. He first
references the association’s treatment of his requests for information to support his
contention that the board never administered an authentic vote of members to approve the
project. Because we have already determined that the bylaws did not require the association
to secure member approval of the project, this argument about documentation is no longer
relevant.
But Whalen’s second argument about the association’s alleged failure to provide
him with requested documents has legal and evidentiary support. He identifies various
categories of documents that he requested and specific dates on which he requested them,
and he identifies evidence in the record to support his allegation that the board members
either ignored or misled him about those documents. The MCIOA requires an association
to “keep adequate records of its membership, unit owners meetings, board of directors
meetings, committee meetings, contracts, leases and other agreements to which the
association is a party, and material correspondence and memoranda relating to its
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operations.” Minn. Stat. § 515B.3-118 (2022). It also requires associations to make those
records “reasonably available for examination by any unit owner” and to “provide copies
[in the form] requested by the owner.” Id. The MCIOA provides a cause of action for
violations of its provisions, establishing that “any person . . . adversely affected by the
failure to comply” with “any provision of this chapter” will have a “claim for appropriate
relief.” Minn. Stat. § 515B.4-116(a). The district court did not explain why it was
dismissing Whalen’s failure-to-provide-requested-documents claim when it granted
summary judgment favoring the association. And the association’s brief on appeal does not
address Whalen’s argument that the evidence supports his allegations. For these reasons
we reverse the district court’s summary-judgment decision on this issue. We offer no
opinion as to the claim’s merit, the specifics of which the association has not addressed on
appeal.
Foreclosure by Advertisement and Attorney Fees Sought Through Foreclosure
Whalen promotes his complaint’s allegation about foreclosure by advertisement
rather than foreclosure by action by including it as part of his assertions about the
foreclosure sale’s postponement. We have already explained why those assertions fail.
Regarding his complaint’s allegation that the association improperly sought attorney fees
based on the assessment and foreclosure, he does not develop an argument except to assert
that the association engaged in “bad faith insistence on attorney fees,” and he clarifies the
argument by contending, “[T]o the extent the board actually took unilateral action to
approve the project and assessment, . . . it did so in bad faith.” Because we have already
addressed that argument, we need not discuss it further.
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Our de novo review informs us that the district court did not err by granting
summary judgment against almost all of Whalen’s claims. As a mortgagor, he cannot
contest the foreclosure proceeding after redeeming his property from the foreclosure sale.
He may still contest the validity of the underlying lien, but we conclude that the lien against
his property was a valid exercise of the association’s power under its declaration and
bylaws and the applicable Minnesota statutes. But Whalen has identified genuine issues of
material fact regarding his claim that the association failed to adequately provide requested
records as required by law.
Affirmed in part and reversed in part.