Brisbin v. AURORA LOAN SERVICES, LLC
2012 U.S. App. LEXIS 10153
8th Cir.2012Background
- Brisbin purchased one Minneapolis home in 2006 with a $248,000 mortgage and a $62,000 second; multiple properties were in distress during 2008–2009.
- Brisbin requested a loan modification; lender advised postponement but proceeded with foreclosure sale on October 23, 2009.
- Lender temporarily placed Brisbin in a forbearance program; eventually denied modification after sale.
- Lender failed to publish notice of postponement promised to Brisbin; Brisbin sued in state court for invalidation and damages.
- Lender removed to federal court and moved for summary judgment on all Counts; district court granted all motions.
- Brisbin appeals the summary judgment decisions on Counts I (notice/postponement), II (promissory estoppel), IV–V (misrepresentation); Count III (HAMP third-party beneficiary) not appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Postponement statute applicability | Brisbin contends postponement notice required; raised genuine issue. | No postponement occurred; statute inapplicable. | Statute inapplicable; no postponement occurred. |
| promissory estoppel and MCAS | Oral postponement promise should be enforced. | MCAS bars enforcement absent written credit agreement. | MCAS bars enforcement of oral postponement. |
| HAMP third-party beneficiary | Brisbin as third-party beneficiary can enforce HAMP terms. | No third-party beneficiary under HAMP agreement. | Brisbin not a third-party beneficiary. |
| Negligent/intentional misrepresentation reliance | Affidavit shows potential reliance on lender's promise. | Record shows lack of concrete reliance; speculative. | No genuine issue of material fact; no detrimental reliance. |
| Overall summary-judgment standard under Minnesota law | Genuine facts exist; judgment premature. | Record lacks material facts; entitlement to judgment as a matter of law. | District court correctly granted summary judgment. |
Key Cases Cited
- BankCherokee v. Insignia Dev., LLC, 779 N.W.2d 896 (Minn. Ct. App. 2010) (forbearance promises fall within credit agreements under MCAS)
- Rural Am. Bank of Greenwald v. Herickhoff, 473 N.W.2d 361 (Minn. Ct. App. 1991) (forbearance as a credit accommodation falls within MCAS)
- Carlson v. Estes, 458 N.W.2d 123 (Minn. Ct. App. 1990) (promises not to record mortgage are not for financial accommodation)
- Beardsley v. Garcia, 753 N.W.2d 735 (Minn. 2008) (plain meaning of statute governs; avoid unwritten agreements)
- Toth v. Arason, 722 N.W.2d 437 (Minn. 2006) (statutory purpose to prevent unfounded credit promises)