Walsh v. U. S. Bank, N. A., A13-0742

• Decision Date: 18 November 2013
• Docket Number: A13-0742
• Parties: Laura L. Walsh, Appellant, v. U. S. Bank, N. A., Respondent.
• Court: Minnesota Court of Appeals

Laura L. Walsh, Appellant, v. U. S. Bank, N. A., Respondent.

A13-0742

STATE OF MINNESOTA IN COURT OF APPEALS

Filed November 18, 2013

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

Reversed and remanded

Smith, Judge

Hennepin County District Court

File No. 27-CV-12-25292

Martin A. Carlson, Law Offices of Martin A. Carlson, Ltd., Minneapolis, Minnesota; and Roy B. Henline, Henline Law, P.A., Maple Grove, Minnesota (for appellant)

Charles F. Webber, Colton D. Long, Faegre Baker Daniels, LLP, Minneapolis, Minnesota (for respondent)

Considered and decided by Cleary, Presiding Judge; Kirk, Judge; and Smith, Judge.

UNPUBLISHED OPINION

SMITH, Judge

We reverse and remand because the district court erred by (1) dismissing appellant Laura Walsh's claim under Minn. R. Civ. P. 12.02(e) that respondent U. S. Bank, N. A. (USB) failed to properly serve a notice of foreclosure and (2) ruling that the sheriff'scertificate from the sale pursuant to Minn. Stat. § 580.19 (2012) conclusively showed that the service of notice was proper.

FACTS

When Walsh defaulted on her mortgage, USB, the holder of that mortgage, began a nonjudicial foreclosure proceeding. USB served a notice of the foreclosure sale and other documents on a woman at the property who refused to identify herself. The process server's affidavit of service states that he was at the premises and served the documents

on the person(s) in possession thereof; that on said day and for some time prior thereto, said premises were and have been occupied by Jane Doe, adult female occupant who refuses to give her name or acquiesce to service and no one else; that (s)he served the attached by handing to and leaving with Jane Doe personally one (1) true and correct copy thereof. At the time of service, Jane Doe refused to open the door and accept service in hand. I displayed the Notices to her and told her that I would leave them in the door if she didn't want to cooperate. She began shouting at me about trespassing . . . much of what she said was unintelligible. I left the Notices in a secure place in her door.

After the foreclosure sale, Walsh sued USB, asserting that the foreclosure sale was defective because USB had not properly served the notice of foreclosure. USB moved to dismiss Walsh's suit with prejudice, under Minn. R. Civ. P. 12.02(e), arguing that her complaint failed to state a claim on which relief may be granted. After a hearing, the district court granted USB's motion to dismiss, stating that Walsh "failed to establish any evidence or facts giving rise to a plausible claim for relief[,]" and that "[a]ll of the appropriately considered facts fail to establish improper service. Instead, her purported claim directly contradicts the Affidavit of Service on Occupant attached to herComplaint. In addition, pursuant to Minn. Stat. § 580.19, the Sheriff's Certificate serves as prima facie evidence that service was proper."

DECISION

I.

When a property is foreclosed by advertisement, a copy of the notice of a foreclosure sale "shall be served in like manner as a summons in a civil action" on "the person in possession of the mortgaged premises, if the same are actually occupied[.]" Minn. Stat. § 580.03 (2012). Here, it is undisputed that the premises were occupied. A summons in a civil action is served "by delivering a copy to the individual personally or by leaving a copy at the individual's usual place of abode with some person of suitable age and discretion then residing therein." Minn. R. Civ. P. 4.03(a).

The parties agree that if the Jane Doe mentioned in the affidavit of the process server was in fact Walsh, service was proper. Thus, we focus on whether Walsh adequately alleges that the process server failed to leave the papers at Walsh's "usual place of abode with some person of suitable age and discretion then residing therein[,]" as required by rule 4.03(a) for substitute service.

Although rule 4.03(a) requires substitute service to be accomplished by serving a person "residing" at the usual place of abode of the person to be served, the affidavit of USB's process server refers to Jane Doe as an "occupant" of the premises without addressing whether Jane Doe resided at the premises. Walsh asserts that "the persons residing at the Property were [Walsh] and [] her roommate." USB accepts the notion asserted by Walsh that she and her roommate were the only persons then residing at thepremises. Further, Walsh alleges that USB failed "to serve the required notice upon a person then residing at [Walsh's] usual place of abode." Given the fact that only Walsh and her roommate resided at the premises, the complaint asserts that Jane Doe did not then "reside" at the premises for purposes of substitute service under rule 4.03.

An appellate court "will not uphold a Rule 12.02(e) dismissal if it is possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded." Radke v. Cnty. of Freeborn, 694 N.W.2d 788, 793 (Minn. 2005) (quotation omitted). Thus, if Walsh might be able to produce evidence demonstrating that Jane Doe did not reside at the premises for purposes of substitute service under rule 4.03, the dismissal under rule 12.02(e) was improper. Rule 4.03 does not define "residence," but caselaw addressing substitute service under rule 4.03(a), for service of process, notes that "residence means something more than mere physical presence and something less than domicile." O'Sell v. Peterson, 595 N.W.2d 870, 872 (Minn. App. 1999) (quotations omitted). Noting that service is intended to give notice, the O'Sell court went on:

In deciding whether an individual is "then residing therein" for purposes of service of process, there must be a nexus between the individual and the defendant that establishes some reasonable assurance that notice would reach the defendant. For example, a relationship of confidence, including but not limited to a familial relationship, may establish a nexus and support the conclusion that notice would reach the defendant. In addition, the duration of an individual's presence, the frequency of the presence, or the intent to return may also establish nexus between the individual and defendant. Finally, evidence that the service actually reached the intended person strongly supports aconclusion that service is valid because due process has been afforded.

Id. at 872-73 (citations omitted).

Whether, under O'Sell, a nexus existed between Jane Doe and Walsh "establish[ing a] reasonable assurance that notice would reach [Walsh,]" is unclear. Neither the complaint nor the incorporated affidavit of USB's process server address whether Jane Doe's relationship to Walsh was one of confidence, familial or otherwise. Similarly, neither the complaint nor the affidavit address whether Jane Doe intended to return to the premises.

Regarding the duration of Jane Doe's presence at the premises and the frequency of that presence, the affidavit of the process server states,...