Hommerding v. Travelers Ins. Co., C8-86-762
| Decision Date | 23 September 1986 |
| Docket Number | No. C8-86-762,C8-86-762 |
| Citation | 393 N.W.2d 389 |
| Parties | Sylvester J. HOMMERDING, et al., Appellants, v. TRAVELERS INSURANCE COMPANY, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Minnesota Statutes section 47.20, subd. 15, requiring notice to the buyer of a 60-day period to cure default, applies only to property to which the borrower may claim a homestead exemption on the date the mortgagee commences foreclosure proceedings.
James A. Beitz, Valerie K. Werness, Hagerty & Candell, Minneapolis, for appellants.
John Remington Graham, Brainerd, for respondent.
Heard, considered, and decided by LESLIE, P.J., and WOZNIAK and CRIPPEN, JJ.
Appellants Sylvester and Marion Hommerding began a suit in district court to set aside the mortgage foreclosure instituted by respondent Travelers Insurance Company based on insufficient notice. The trial court granted Travelers' summary judgment. We affirm.
The Hommerdings owned and farmed about 615 acres of land in Stearns County, and also owned residential property in the township of Wakefield. On June 11, 1976, Travelers loaned the Hommerdings $330,000 for agricultural needs, secured by a first mortgage on the Hommerdings' agricultural property. On October 27, 1981, Travelers loaned the Hommerdings an additional $285,000, secured by a second mortgage on the Hommerdings' agricultural property.
Soon after the second agricultural loan, the Hommerdings defaulted on the notes. On September 21, 1982, the Hommerdings filed Chapter 11 bankruptcy proceedings in United States Bankruptcy Court, District of Minnesota, which automatically stayed any action to create or enforce any lien against the Hommerdings' property. On March 6, 1984, the bankruptcy court filed an order lifting that stay.
On March 8, 1984, Travelers commenced foreclosure by advertisement under Minn.Stat. ch. 580 (1982 and Supp.1983). In accordance with Minn.Stat. Sec. 580.03, Travelers published the notice of mortgage foreclosure, and notified the Hommerdings and occupants of the foreclosed property of the foreclosure. The foreclosure sale was held on May 4, 1984, and Travelers bid on both mortgages.
On October 4, 1984, the Hommerdings commenced suit in Stearns County District Court alleging that Travelers failed to notify them they had 60 days from the date foreclosure notice was mailed in which to cure the default under Minn.Stat. Sec. 47.20, subd. 15 (Supp.1983).
Respondents claimed that the notice of right to cure default was necessary only when homestead property was being foreclosed and that the Hommerdings were not homesteading the foreclosed property. Travelers relied on the affidavit of Donald Ramler, the appraiser for Stearns County, who stated that the Hommerdings homesteaded the residential property located in Wakefield Township from May 24, 1983 through May 4, 1984. Ramler further stated that the Hommerdings' agricultural property, which secured Travelers' first and second mortgages, was not classified as homestead property during that period. The sheriff's affidavits of service of notice of foreclosure indicate that the Hommerdings did not reside in the foreclosed property, but resided in the Wakefield residential property. The sheriff's affidavits further indicate that he served Mike and Lori Hommerding, appellants' son and daughter-in-law, who resided on the agricultural property.
The trial court granted Travelers' motion for summary judgment based on the affidavit of Donald Ramler and found the requirements of Minn.Stat. Sec. 47.20 inapplicable to the foreclosed property. The Hommerdings appeal from the grant of summary judgment.
Should Travelers' notice of foreclosure have complied with Minn.Stat. Sec. 47.20, subd. 15, which requires notice to the borrower of a 60-day period to cure default?
Minn.Stat. Sec. 47.20, as amended in 1983 and applicable to this action, provided:
Subd. 15. Notwithstanding the provisions of any other law to the contrary, any notice of default on homestead property as defined in section 583.02, mailed after May 24, 1983 and prior to May 1, 1984, shall indicate that the borrower has 60 days from the date the notice is mailed in which to cure the default.
To continue reading
Request your trial
-
U.S. v. House, No. CIV. 98-2057(RLE).
...v. Island, C4-94-2425, 1995 WL 118895 *4 (Minn.App. March 21, 1995), rev. denied (Minn., May 16, 1995); Hommerding v. Travelers Ins. Co., 393 N.W.2d 389, 389 (Minn.App.1986). As argued by the Defendants, service by publication was not adequately executed as required by Rule 4.04, Minnesota ......
-
In re Stenzel, 01-2003.
...with the purposes underlying the exemption. For example, though "a debtor may claim only one homestead," Hommerding v. Travelers Ins. Co., 393 N.W.2d 389, 391 (Minn.App. 1986), exempt land may "consist of two or more separate descriptions, or tracts, of land, provided the same are so situat......
-
Michels v. Kozitza
...of land, on some part of which is located the residence. Id. at 348, 112 N.W. at 273 (citation omitted); cf. Hommerding v. Travelers Ins. Co., 393 N.W.2d 389, 391 (Minn.App.1986) (recognizing in dicta that agricultural property does not qualify for homestead exemption if parties' home is no......