STATE OF MINNESOTA IN COURT OF APPEALS A14
- 0877 Randall L. Twait, Appellant,

vs. MidFirst Bank, Respondent

. Filed January 26, 2015 Affirmed Connolly , Judge Hennepin County District Court File No. 27

- CV

- 13

- 18426
Jonathan L. R. Drewes, Drewes Law, PLLC, Minneapolis, Minnesota (for appellant) Kalli L. Ostlie, Shapiro & Zielke, LLP, Burnsville, Minnesota (for respondent)

Considered and decided by Connolly , Presiding Judge; Halbrooks , Judge; and Bjorkman , Judge

. S Y L L A B U S For the purposes of Minn. Stat. § 580.02 (2012) (providing that any a ssignments of a mortgage must be recorded before foreclosure by advertisement may begin), foreclosure begins with the first publication of the notice of sale.2 O P I N I O N CONNOLLY , Judge Appellant , a mortgagor of property, brought this action against respondent, the mortgagee, for a declaration that the sheriff’s sale of the property was null and void because foreclosure pro ceedings were begun before the final assignment of the mortgage had been recorded

. The district court granted respondent’s motion for summary judgment because the final assignment of the mortgage was recorde d a week before the first publication of the notice of sale, the event e stablished by Minnesota statutes and

case law as the commencement of foreclosure proceedings. Appellant challenges the summary judgment. Beca use both statutory law and case law establish the first pub lication of the notice of sale as the commencement of a foreclosure proceeding, we affirm. FACTS In April 2001, appellant Randall Twait secured a piece of real property in Minneapolis (the property) by executing and delivering to Allied Mortgage Capital
Co rporation (Allied) a mortgage of $112,730. Allied’s inte rest was assigned to RBMG
Inc. (RBMG), and the mortgage and assignment were recorded in June 2001. In January 2002, RBMG assigned the mortgage to Mortgage Electronic Registration Systems Inc. (MERS) ; that assignment was recorded in February 2002. In November 2012, MERS assigned the mortgage to respondent MidFirst Bank. Because appellant defaulted on the mortgage payments, respondent on December 3, 2012, mailed appellant a Notice of Mortgage Foreclosu re Sale, which stated that a3

foreclosure sale was scheduled for January 29, 2013. On December 4, 2012, the assignment to respondent was recorded, together with a notice of pendency. The public was first notified of the sale on December 12, 2012, when the notice of sale was first published

. The notice of sale was personally served on appellant on December 21, 2012. On January 29, 2013, the property was sold at a sheriff’s sale, and the certificate of sale to respondent was recorded on February 4, 2013. A ppellant’s six

- month redemption period expired on July 29, 2013; he did not redeem the property. Respondent began an eviction action and was awarded a writ for recovery of the property. ISSUE Was the final assignment of appellant’s mortgage recorded bef ore the commencement of foreclosure proceedings? ANALYSIS On appeal from a summary judgment, this court reviews de novo “whether a genuine issue of material facts exi sts” and “whether the district c ourt erred in its application of the law.” STAR Centers, Inc. v. Faegre & Benson, L.L.P ., 644 N.W.2d 72,
77 (Minn. 2002). “When the district court grants a summary judgment based on its application of statutory language to the undisputed facts of a case, . . . its conclusion is one of law and our review is de novo .” Lefto v. Hoggsbreath Enters., Inc. , 581 N.W.2d 855, 856 (Minn. 1998). Appellant argues that neither the first publication of the notice of sale nor any other event is the beginning of a foreclosure and that a foreclosure may begin with any of4

se veral events, e.g., scheduling a sheriff’s sale, dating and executing the notice of sale, serving any of three required notices on the occupant, executing any document stating that a foreclosure is pending, or recording a notice of pendency. Both Minnesot a statutes and case law refute this argument. “[P]roceedings to foreclose a real estate mortgage by advertisement shall be deemed commenced on the date of the first publication of the notice of sale.” Minn. Stat. § 541.03 , subd. 2 (2012). Every foreclosure by advertisement is “subject to the provisions of [Minn. Stat. §] 541.03.” Minn. Stat. § 580.01 (2012). “To entitle any party to make such foreclosure, it is requisite . . . (3) that the mortgage has been recorded and, if it has been a ssigned, that all assignment s thereof have been recorded.” Minn. Stat. § 580.02. Therefore, the provision of Minn. Stat. § 580.02(3) that all assignments of a mortgage be recorded before foreclosure commences means that all assignments of a mortgage be re corded before the first publication of the notice of sale. More specifically, appellant’s argument that a foreclosure proceeding begins with the recording of the notice of pendency is defeated by Minn. Stat. § 580.032 , subd. 3 (2012) (providing that another requisite for foreclosure by advertisement is “record[ing] a notice of the pendency of the foreclosure . . . before the first date of publication of the foreclosure notice.”)

. Thus, recording the notice of pendency cannot i tself begin the foreclosure because that recording must occur before the foreclosure is begun by the first publication of the notice of sale. See Minn. Stat. § 541.03.
Case law also establish es that a foreclosure proceeding begins with the first publicatio n of the notice of sale. See, e.g. , Ruiz v. 1st Fidelity Loan Servicing, LLC , 8295

N.W.2d 53, 58 (Minn. 2013) (concluding that, because the “assignment [of the mortgage] was not recorded until May 18, 2010, the same day as the first publication of the noti ce of sale, . . . the assignment was not recorded before the beginning of the foreclosure proceeding

. ”); Adlinger v. Close , 161 Minn. 404, 405, 201 N.W. 625, 625 (1925) (holding that “the right to proceed [with a foreclosure] must exist from the first publ ication [of the notice of sale]”). Ruiz relied on A d l inger for its conclusion, Ruiz , 829 N.W.2d a t 58, and we have found no case law between 1925 and 2013 opposing or questioning the view that first publication of the notice of sale is the commencement of foreclosure proceedings within the meani ng of Minn. Stat. § 580.02(3). Finally, to hold otherwise would lead to confusion and uncertainty in real estate foreclosure law, which we must avoid doing. D E C I S I O N Because respondent complied with Minn. St at. § 580.02(3) by publishing the notice of sale and thereby beginning foreclosure proceedings several days after the assignment of the mortgage was recorded, we affirm. Affirmed

.