U.S. v. House, No. CIV. 98-2057(RLE).

• Decision Date: 10 April 2000
• Docket Number: No. CIV. 98-2057(RLE).
• Citation: U.S. v. House, 100 F.Supp.2d 967 (D. Minn. 2000)
• Parties: UNITED STATES of America, Plaintiff, v. Robert D. HOUSE, a/k/a Robert House, and Nancy C. House, a/k/a/ Nancy House, Defendants.
• Court: U.S. District Court — District of Minnesota

100 F.Supp.2d 967

UNITED STATES of America, Plaintiff, v. Robert D. HOUSE, a/k/a Robert House, and Nancy C. House, a/k/a/ Nancy House, Defendants.

No. CIV. 98-2057(RLE).

United States District Court, D. Minnesota.

April 10, 2000.

Friedrich Anson Paul Siekert, Roylene Ann Champeaux, U.S. Attorney, Minneapolis, MN, for Plaintiff.

Robert D. House, Rothsay, MN, pro se.

ORDER

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(c)(1), upon the Motion of the Plaintiff for Summary Judgment, and for Leave to File a Memorandum in response to the Defendants' Motion in Opposition to Summary Judgment.¹ A Hearing on the Motion was conducted on January 11, 2000, at which time, the Defendants appeared pro se, and the Plaintiff appeared by Friedrich A.P. Siekert, Esq. For reasons which follow, the Plaintiff's Motion for Summary Judgment is granted.

II. Factual and Procedural History

This action arises out of the Plaintiff's action to evict the Defendants from certain real property that is situated in Wilkin County, Minnesota. According to the Plaintiff, the Defendants, who are married, refused to vacate that real property notwithstanding a valid foreclosure by advertisement, and the expiration of the statutory redemption period. In response, the Defendants have filed a Counterclaim for rents, which they allege are owed to them, because of their inability to rent the property, as a result of the Plaintiff's assertedly wrongful foreclosure.

The history which precedes the foreclosure process is uncomplicated. In connection with loans made in 1972, and in May of 1978, the Defendants executed three promissory notes in favor of the Plaintiff. See, Declaration of Darrell S. Strand, Ex. A. On May 31, 1978, the Defendants executed a real estate mortgage. Id., Ex. B. The mortgaged premises included two parcels of real property that was situated in Wilkin County. Id.

According to the Plaintiff, after the Defendants defaulted on their payments, the Farmers Home Administration ("FMHA") began the mortgage foreclosure process. In an attempt to effectuate service of process upon the Defendants, the FMHA procured the services of the Wilkin County Sheriff's Department. On July 5, 1996, Wilkin County Deputy Sheriff Rick Fiedler ("Fiedler") personally served the individual who was farming the property — a Shannon Maack ("Maack") — on July 5, 1996, with a Notice of Mortgage Foreclosure Sale, and Notice of Postponement Sale. See, Declaration of Rick Fiedler, at ¶¶ 8, 13; Affidavit of Friedrich A.P. Siekert, Exs. A, B.

Although the Wilkin County Sheriff's Department was able to effectuate service upon Maack, its Deputies aver that, despite their best efforts, they could not locate the Defendants during that Summer. Between June 28, 1996, and August 28, 1996, the Sheriff's Deputies made at least 33 separate, unsuccessful attempts to personally serve the Defendants. See, Fiedler Dec., at ¶¶ 6, 7; Ex. C. As attested by Fiedler:

* * * I attempted to serve Mr. and Mrs. House on seven more occasions on July 23, July 30 (twice), July 31 (three times), and August 16. On most of these visits to the House farm in Rothsay, Minnesota, I would observe a dog and one or more of the vehicles that were licensed to the Houses. It always appeared that someone was residing at the premises but I never saw Mr. or Mrs. House. On each occasion, I would knock on the front door of the house, but no one would answer. On one occasion when I knocked on the front door, I recall observing the shades being shut from the inside; however, no one answered the door at that time. On other occasions when I would knock on the door, I also believed that there were individuals present inside the house, but no one would answer the door.

Fiedler Dec., at ¶ 11.

As related by Fiedler, based upon his observations, his inability to find the Defendants, as well as information from other Deputies, who were also unable to locate, let alone to contact the Defendants personally, it appeared that the Defendants were attempting to evade service of the mortgage foreclosure sale Notice. Id. at ¶ 15. Consequently, on August 28, 1996, Fiedler served the Notice of Mortgage and Foreclosure Sale, and Notice of Postponement of Sale, on Sharon Leske ("Leske"), a person of suitable age who was temporarily residing on the Defendants' property during the Summer. Id. at ¶ 14; Strand Dec., Ex. D.

In addition to serving Leske, Fiedler served Maack because he was farming the Defendant's land that Summer in accordance with a contract which he had recorded in March of 1995. See, Declaration of Shannon Maack, at ¶¶ 5, 7. Maack recounts that, at the time of the formation of the contract with the Defendants, they had informed him that they anticipated the FMHA would attempt to foreclose on the property that Summer. Id. at ¶ 9. As such, the Defendants informed Maack that they were planning on being away for most of the Summer, so as to avoid being served with the Notice of Mortgage Foreclosure. Id. In addition, Maack maintains that, prior to the Defendants' departure, they introduced him to Leske, and stated that she was going to take care of the Defendants' residence while they were gone. Id. at ¶ 10. During the Summer, Maack saw Leske on the property about five times per week, and was under the impression that she stayed there overnight on a number of occasions. Id. at ¶ 12.

Sometime during the Summer of 1996, and prior to the mortgage foreclosure, Maack had several conversations with the Defendants about the sale. As averred by Maack, on September 12, 1996, he displayed, to the Defendants, the papers that had been previously served upon him on August 28, 1996. Id. at ¶ 15.²

Maack's father, Robert Maack ("R.Maack") confirmed his son's version of the events, and stated that, in April of 1996, he had a conversation with Mr. House, during which Mr. House stated that the FMHA was going to initiate a foreclosure of the Defendants' farm and, therefore, that he and his wife intended to spend most of the Summer away from the property so as to avoid being served with the Notice of Mortgage Foreclosure. See, Declaration of Robert Maack, at ¶ 4. R. Maack also contends that, based upon his own observations, it appeared that Leske was residing at the Defendants' farm during that Summer. See, R. Maack Dec, at ¶ 5. Finally, as averred by R. Maack, during a subsequent conversation, Mr. House revealed that, on August 28, 1996 — when Fiedler had served Leske — he and Mrs. House were hiding in the basement of their home. See, R. Maack Dec, at ¶ 8.

Leske has corroborated many of the facts cited above, but she asserts that, on August 28, 1996, while she was being served, the Defendants were not present at their home. See, Seikert Aff., Deposition of Sharon R. Leske, at 45-49. Leske recounts that, upon being served, she placed the mortgage foreclosure papers in her purse. Id. at 50. However, after informing the Defendants that she had the papers, Mr. House responded that he did not want them. See, Leske Dep., at 50-51. About a week later, Leske and the Defendants went to visit their lawyer, Mr. Krekelberg ("Krekelberg"), who advised Leske to keep the papers in her purse. See, Leske Dep., at 52-58.

According to Mr. House, he and his wife owed over $100,000 on the notes and mortgages that were executed in favor of the United States. See, Siekert Aff., Deposition of Robert House, at 22. Mr. House has admitted that he received notice from the FMHA of its intent to foreclose. Id. at 23. As well, Mr. House was aware that the foreclosure process had commenced during the Summer of 1996, based upon his conversations with Maack. Id. at 23-24, 27-28, 33.

Mr. House also became aware, from a variety of sources, of the attempts by the Wilkins County Sheriff's Department, to serve him with foreclosure papers during the Summer of 1996. Id. at 34-36. Mr. House corroborated Leske's contention, that he was not at home on August 28, 1996, and that he had informed Leske that he did not want the papers that had been served upon her. Id. at 40-42. In addition, according to Mr. House, after visiting with Krekelberg, he examined the papers that were served upon Leske, and told her to "put those papers back in your purse and leave them there, because they didn't serve them to the right party." Id. at 43.³

Accordingly, the Defendants argue that the Plaintiff's mortgage foreclosure procedure was defective, because they were not properly served. Therefore, according to the Defendants, the Plaintiff's Motion for Summary Judgement should be denied as without merit. Moreover, as previously noted, the Defendants contend, in their Counterclaim, that they are entitled to any lost rents which were caused by the Plaintiff's purportedly wrongful foreclosure of their property.

III. Discussion

A. Standard of Review. Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the nonmoving party, and we have found no triable issue. Carter v. St. Louis Univ., 167 F.3d 398, 400 (8th Cir.1999); Prudential Ins. Co. v. National Park Med. Center, Inc., 154 F.3d 812, 818 (8th Cir.1998). For these purposes, a disputed fact is "material" if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is "genuine" if the evidence is such that a reasonable Jury could return a Verdict for the nonmoving party. See, Anderson v. Liberty Lobby,...