828 N.W.2d 141
Minn. Ct. App.2013Background
- Appellants challenge a foreclosure by advertisement on the grounds that the mortgagee’s attorney-in-fact authority was not properly recorded under Minn. Stat. § 580.05.
- U.S. Bank recorded a limited power of attorney in 2003 appointing Chase as attorney-in-fact to collect debts for U.S. Bank.
- Chase recorded on October 13, 2010 a notice of pendency and power of attorney to foreclose the Embrees’ mortgage, leading to a sheriff’s sale on December 6, 2010.
- The Embrees defaulted on their 2006 mortgage; U.S. Bank had acquired the loan through properly recorded assignments by 2010.
- The district court granted summary judgment for U.S. Bank, concluding the recording satisfied the statute and that there were no genuine issues of material fact.
- On appeal, Embrees argue the limited power of attorney did not establish Chase’s authority to foreclose, and that other servicing documents should have been recorded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does recording a limited power of attorney satisfy the statute? | Embree: limited POA insufficient to evidence authority. | U.S. Bank: recorded POA suffices to evidence authority. | Yes; recording the limited POA satisfies the requirement. |
| Does the POA extend to Embrees’ loan and foreclosure by advertisement? | Embree: authority limited to specific loans/conditions; may not cover their mortgage. | Bank: POA covers debts owed by U.S. Bank, including future debts. | The POA unambiguously covers debts belonging to or claimed by U.S. Bank, including this mortgage. |
| Is the Embrees’ challenge to authority based on lack of authority evidence or solely on sufficiency of recording? | Embree contends lack of authority evidence; potential factual disputes. | Bank: no genuine factual issues; record shows authority. | Recording suffices; no genuine issues precluding summary judgment. |
Key Cases Cited
- Dublin v. Kroening, 796 N.W.2d 503 (Minn. 2011) (summary judgment de novo standard of review)
- Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855 (Minn. 1998) (statutory interpretation of foreclosure statutes de novo)
- Jackson v. Mortgage Elec. Registration Sys., Inc., 770 N.W.2d 487 (Minn. 2009) (strict construction of foreclosure-by-advertisement statutes)
- Molde v. CitiMortgage, Inc., 781 N.W.2d 36 (Minn. App. 2010) (attorney-in-fact under limited power of attorney authority to foreclose)
- Roemhildt v. Kristall Dev., Inc., 798 N.W.2d 371 (Minn. App. 2011) (contract interpretation as a question of law)