1

The Honorable Richard W. Goldberg, Judge of the United States Court of

International Trade, sitting by designation.

2

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-2079

___________

Real Estate Equity Strategies, LLC, a *

Minnesota limited liability company, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota. 

Internal Revenue Service; Department *

of the Treasury, *

*

Appellees. * 

___________

Submitted: January 17, 2008

Filed: August 28, 2008

___________

Before COLLOTON and SHEPHERD, Circuit Judges, and GOLDBERG,1

 Judge.

___________

COLLOTON, Circuit Judge.

Real Estate Equity Strategies, LLC (REES), brought this quiet title action

against the Internal Revenue Service (IRS), alleging that the IRS’s redemption on a

parcel of property was untimely and therefore invalid. The district court2

 granted the
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IRS’s motion for summary judgment and dismissed the case, determining that REES

lost its ability to challenge the IRS’s redemption when it failed to tender sufficient

funds in its own attempted redemption. We affirm.

I.

On January 27, 1990, James and Kathryn Moore purchased a parcel of property

located at 14909 Crown Drive, Minnetonka, Minnesota, and assumed a mortgage held

by Duval Federal Savings & Loan Association (Duval). Because the Moores failed

to pay their income taxes from 1987 to 1994, the IRS filed three separate tax liens on

the property in 1996. The Moores also defaulted on their mortgage. Midland

Mortgage Company, the assignee of the Duval mortgage, foreclosed on the mortgage,

and the property was sold at a sheriff’s sale on September 16, 2004, to Avidigm

Capital Group, Inc. (Avidigm) for $90,000. Under Minnesota law, the Moores were

given six months to redeem the property. Minn. Stat. § 580.23 (1994). During the

redemption period, the Moores granted to REES six separate mortgages, all supported

by consideration. Both the IRS and REES filed Notices of Intention to Redeem with

the Hennepin County Recorder during the Moores’ redemption period.

The Moores failed to redeem within the six month period, and the right to

redeem passed to the IRS as the most senior creditor. See Minn. Stat. § 580.24(a)

(1994). Because the IRS had three separate liens on the property, it had 21 days –

three consecutive 7-day redemption periods – to redeem. Minn. Stat. § 580.24. The

Moores’ redemption period had expired on March 16, 2005, giving the IRS until April

5, 2005, to redeem. 

The IRS, however, did not attempt to redeem until April 11, 2005, six days after

the expiration of its redemption period. The Hennepin County Sheriff rejected the

IRS’s attempted redemption and declined to issue a Certificate of Redemption,

explaining that the IRS could no longer redeem because its redemption period had
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expired. The IRS then executed its own Certificate of Redemption, using the statutory

grant of authority in 26 U.S.C. § 7425(d). The IRS filed the certificate with the

Hennepin County Recorder, along with an affidavit representing the Moores’

outstanding debt (and the base amount to be tendered by any subsequent

redemptioner) to be $309,952.12. The IRS then directed the sheriff to forward the

redemption money to Avidigm, the holder of the sheriff’s certificate of sale. The

sheriff did so.

Just over one month later, REES, the junior creditor, attempted to redeem the

property from Avidigm, presumably believing that the IRS’s attempted redemption

was invalid. Avidigm declined to issue a certificate of redemption, explaining to

REES that the IRS already had issued its own certificate, and that Avidigm had

accepted the funds from the IRS’s redemption. REES then attempted to redeem from

the sheriff the next day. The sheriff also rejected REES’s attempted redemption,

explaining that the IRS held the certificate of redemption, and that the amount

tendered by REES, $96,915.77, was “insufficient to pay the prior redeeming

lienholder [i.e., the IRS] the amount shown in its affidavit [($309,952.12)].” The

sheriff agreed to hold the funds until the matter was resolved in court. 

REES left the funds in the care of the sheriff and challenged the IRS’s

redemption in the United States District Court for the District of Minnesota. The

district court initially agreed with REES, finding that the IRS had failed timely to

redeem and holding that the IRS’s certificate must be revoked. But the court did not

enter final judgment on the matter, reasoning that Avidigm probably “had an interest

in whether [REES] tendered an amount sufficient to redeem.”

The court reconsidered the order six months later and reversed course,

determining that REES could not contest the IRS’s redemption, because it had not

“‘availed [itself] of the right to redeem strictly in accordance with the provisions of

the [redemption] statute.’” The court pointed to the sum tendered, an amount equal
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to that which the IRS had tendered more than five weeks before, and explained that

REES had failed to include interest from the time of the IRS’s redemption to the time

of its own redemption. Thus, the court reasoned, REES forfeited its interest in the

property and its related right to contest the IRS’s interest by failing to tender sufficient

funds within the allotted time for redemption. Because REES could not contest the

IRS’s redemption, the district court granted the IRS’s motion for summary judgment,

leaving the IRS’s redemption in force. REES appealed. 

II.

Minnesota long has followed the rule that “the only person who may attack a

redemption, fair on the face of the record, but wrongful in fact, where the redemption

money has been accepted by the one holding the title of the purchaser at the

foreclosure sale, is one who has still some beneficial interest in the land, or one who,

being a subsequent lienholder, has availed himself of the right to redeem strictly in

accordance with the provisions of the statute.” Orr v. Sutton, 148 N.W. 1066, 1069-

70 (Minn. 1914). Thus, REES must demonstrate that it has a valid interest in the

property through availing itself properly of a right to redeem.

REES argues that it preserved its interest in the property – its right to redeem

– by tendering $96,915.77 to Avidigm and then to the sheriff. REES is correct that

tender and its subsequent refusal “will preserve and protect the right of the

redemptioner to have the redemption perfected, if such right is seasonably asserted.”

Schroeder v. Lahman, 9 N.W. 173, 174 (Minn. 1881). But the junior creditor (and

potential redemptioner) must have “availed himself of the right to redeem strictly in

accordance with the provisions of the statute.” Orr, 148 N.W. at 1070. In claiming

that the IRS’s redemption was invalid, REES treated that redemption as non-existent

and tried to redeem from Avidigm and then from the sheriff. REES’s initial actions

were correct; when challenging another’s redemption as invalid, the challenging party
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should treat the prior redemption as if it has no legal effect. See Lehtinen v. Gerr, 367

N.W.2d 595, 597-99 (Minn. Ct. App. 1985).

But to preserve the rights of the potential redemptioner, Minnesota law requires

that the attempted tender be timely and accurate. See Sieve v. Rosar, 613 N.W.2d 789,

794 (Minn. Ct. App. 2000); Sardeson v. Menage, 43 N.W. 66, 66 (Minn. 1889)

(explaining that “production of original documents” showing a right to redeem and

“the due payment of the required sum” are “all that is essential to protect the rights of

the purchaser”). “The right of redemption is a strict legal right, to be exercised, if at

all, in accordance with the terms of statute by which the right is conferred, unless

waived or extended by the party whose interests are to be affected.” In re Petition of

Nelson, 495 N.W.2d 200, 202 (Minn. 1993) (quoting State ex rel. Anderson v. Kerr,

53 N.W. 719, 719 (Minn. 1892) (citations omittted)); see also Graybow-Daniels Co.

v. Pinotti, 255 N.W.2d 405, 407 (Minn. 1997) (“[W]e continue to hold that the

redemption requirements of Minn. Stat. § 580.24 must be strictly adhered to”); Moore

v. Penney, 170 N.W. 599, 600 (Minn. 1919) (explaining that the “statutory

requirements are mandatory”); In re Petition of Midwest Fed. Sav. and Loan Assoc.

of Minneapolis, 359 N.W.2d 33, 37 (Minn. Ct. App. 1984) (“Strict compliance with

the statute is required of all lienholders.”).

Because REES viewed the IRS’s redemption as invalid, it was obliged to

proceed as though its redemption attempt was directed to the holder of the certificate

of sale, Avidigm. Minnesota Statute sections 580.23 and 580.24 allow a creditor to

redeem from a holder of the certificate of sale “by paying the sum of money for which

the [property was] sold, with interest from the time of sale at the rate provided to be

paid on the mortgage debt and, if no rate be provided on the mortgage note, at the rate

of six percent per annum, together with any further sums which may be payable as

provided in section 582.03 and 582.021.” Minn. Stat. § 580.23. This sum “may be

paid to the holder of the sheriff’s certificate of sale . . . or to the sheriff for the holder.”

Minn. Stat. § 580.24. The sheriff’s refusal of accurate and timely tender does not
3

The statute explains that interest should be calculated “at the rate provided to

be paid on the mortgage debt,” and only at six percent if no rate is provided. It is

unclear whether the mortgage note provided a rate, as the note is not in the record.

Because neither party argues otherwise, we assume that the rate of six percent per

annum is the proper rate to apply.

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extinguish the creditor’s rights in the property, but preserves them pending resolution

of any underlying dispute. Schroeder, 9 N.W. at 174.

REES attempted to redeem from Avidigm and then from the sheriff, but was

rebuffed on both occasions. If REES’s tender was accurate and timely, this would be

enough to preserve its rights. Id. Because REES attempted to redeem on May 17,

2005, correct tender would consist of the amount paid by Avidigm at the foreclosure

sale, $90,000, plus interest calculated at six percent per annum from the date of the

sheriff’s sale, September 16, 2004, to the date of redemption, and any additional costs.

See Minn. Stat. 580.23, subd. 1.3

 REES, however, did not tender the amount required

by statute. Rather, REES tendered the same amount that the IRS had delivered five

weeks earlier. This amount represented the purchase price, costs, and interest

calculated at six percent per annum from the date of the sheriff’s sale to April 5, 2005,

not May 17, 2005. As a result, REES’s tender did not include over five weeks of

interest, and it was therefore insufficient. 

REES relies on United States v. Dairy Farm Leasing Co., 747 F. Supp. 1335

(D. Minn. 1990), for the proposition that tendering the wrong amount to the sheriff is

enough to preserve a right to redeem. Dairy Farm did allow the plaintiff to proceed

with its suit even though its tender had been incorrect. See id. at 1339. We

respectfully decline to follow this decision, however, because we think the Minnesota

cases declaring a requirement of strict compliance with the redemption statute are a

better indicator of Minnesota law on the point. Nelson, 495 N.W.2d at 202; GraybowDaniels Co., 255 N.W.2d at 407; Orr, 148 N.W. at 1069-70; Kerr, 53 N.W. at 719;

Sieve, 613 N.W.2d at 794; Midwest Fed. Sav. and Loan Assoc., 359 N.W.2d at 37.
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Finally, REES claims that the missing interest should not bar it from

challenging the IRS’s redemption, because that is not the reason why Avidigm and the

sheriff rejected its tender. REES suggests that it would have cured the defect in its

tender had the sheriff pointed it out. But REES cannot blame the sheriff for a mistake

it could have discovered on its own. See Higgins v. Trauger, 632 N.W.2d 463, 470

(N.D. 2001) (“[W]hen a failure to timely redeem is attributable in part to the neglect

of the redemptioner, and not wholly to the mistake of the public official, the attempted

redemption will not be upheld.”). The redemption statute is clear that accurate tender

includes interest from the date of the sheriff’s sale up to the date of the attempted

redemption. Minn. Stat. § 580.23. Because REES did not comply with the statutory

requirements, it lost any interest in the property when its redemption period expired

on May 18, 2005. 

The judgment of the district court is affirmed.

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