                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-2749
                                    ___________

James M. Hart,                      *
                                    *
           Appellant,               *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * District of Minnesota.
Aurora Loan Services, Inc.;         *
Wachovia Mortgage Corporation,      *     [UNPUBLISHED]
                                    *
           Appellees.               *
                               ___________

                              Submitted: May 14, 2008
                                 Filed: August 8, 2008
                                  ___________

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       James M. Hart appeals the district court's grant of summary judgment in favor
of Aurora Loan Services, Inc. ("Aurora") and Wachovia Mortgage Corporation
("Wachovia") (collectively, defendants), and the district court's1 denial of his motion
for leave to amend the complaint. We affirm.




      1
         The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
       In 1990, Hart purchased a home at 459 Geneva Avenue in Oakdale, Minnesota.
Hart's home was mortgaged by First Union Mortgage Corporation, which is now
Wachovia, and he paid $436 each month for a number of years. On or about
November 12, 1999, Aurora began servicing Hart's mortgage. Hart avers that neither
Wachovia nor Aurora informed him that his mortgage was being transferred;
therefore, he claims, he continued to send his monthly payments to Wachovia. Hart
also avers that Wachovia occasionally forwarded the payments to Aurora. Aurora
asserts, however, that on October 19, 1999, it sent Hart a letter informing him that his
mortgage had been transferred and instructed him how to make future payments.

        Aurora contends that, starting in July 2000, it did not receive payments from
Hart. On September 8, 2000, Aurora sent Hart a letter notifying him that his mortgage
was in default. On October 23, 2000, Aurora's attorney sent Hart a letter stating that
foreclosure proceedings were commencing. On October 25, 2000, Hart received a
letter from Aurora returning his September 1, 2000, check, which the letter advised
was being returned because it was not sufficient to bring the loan current. On October
30, 2000, a Notice of Pendency of Proceeding and Power of Attorney to Foreclose
Mortgage was recorded with the Washington County, Minnesota Office of the County
Recorder, and on November 28, 2000, a Notice of Mortgage Foreclosure and
Homestead Designation was posted on the front and back doors of Hart's home. He
was also mailed a copy of the notice. A letter from Hart's previous attorney indicates
Hart saw the notice posted on his home.

       On January 4, 2001, a sheriff's sale of Hart's property was conducted, and
Mortgage Electronic Registration Systems, Inc. (MERS) purchased the property. On
January 16, 2001, the Sheriff's Certificate of Sale and Foreclosure Record was
recorded in Washington County. On January 3, 2002, MERS assigned the Sheriff's
Certificate of Sale and Foreclosure Record to North Point Investments Corp., and on
March 2, 2002 Hart was evicted from the property. The property now has new owners.



                                          -2-
       On January 3, 2007, Hart filed the complaint in the instant matter, alleging in
the "facts" section that "WMC's failure to forward Jimmie Hart's mortgage payments
to Aurora caused Aurora to foreclose on the Property and caused Jimmie Hart to
suffer substantial injury and damage" and also that "Aurora . . . failed to satisfy the
requirements for service by publication." In the proposed amended complaint, Hart
claimed that Wachovia "fraudulently concealed and converted his mortgage-payment
checks," "impliedly misrepresented to Aurora that he was delinquent in his mortgage
payments," and "negligently failed to credit the checks to Jimmie Hart's mortgage loan
account or forward the same to Aurora." As to Aurora, the amended complaint alleged
that Aurora "fraudulently misrepresented that he was in arrears in his mortgage
payments to enable Aurora fraudulently or negligently [to] sell and dispossess Jimmie
Hart of his property," "received Jimmie Hart's mortgage payment checks from
Wachovia but negligently failed to credit the checks to Jimmie Hart's mortgage loan
account," and "failed, neglected or refused to account" for all the mortgage payment
checks that it received.

       After a hearing on Hart's motion to amend his complaint and defendants'
motions to dismiss, the district court granted defendants' motions to dismiss and
denied Hart's motion to amend his complaint. Because the district court considered
matters outside the pleadings in resolving the motions to dismiss, it converted them
into summary judgment motions. See BJC Health Sys. v. Columbia Cas. Co., 348 F.3d
685, 687–88 (8th Cir. 2003) (stating that when matters outside the pleadings are
considered, a motion to dismiss must be treated as a motion for summary judgment).
In granting summary judgment for defendants the district court concluded that Hart
withdrew or abandoned his claim regarding requirements for service by publication
because it did not appear in his amended complaint. In any event, the district court
considered the claim time barred by the five-year statute of limitations that applies to
claims regarding defects in foreclosure notice and dismissed it. See Minn. Stat. §
580.20, and Minn. Stat. §§ 582.25 and 27.



                                          -3-
        As to the proposed amended complaint, the district court found that it would be
futile to allow Hart to amend his complaint because the proposed complaint contained
no cognizable legal claim nor did it set forth sufficient facts to support his allegations.
Also, the complaint did not satisfy the heightened pleading requirements for claims
of fraud, see Fed. R. Civ. P. 9(b), and Hart's claims for fraud or negligence were time
barred by Minnesota's general six-year statute of limitations. Minn. Stat. § 541.05.
The court noted, additionally, that the 15-year statute of limitations for challenging
foreclosures per se, Minn. Stat. § 580.21, did not apply. Therefore, the district court
held that any amendment of the complaint would be futile.

       Having reviewed de novo the district court's grant of summary judgment, Riley
v. Lance, Inc., 518 F.3d 996, 999 (8th Cir. 2008), and the denial of the motion for
leave to amend the complaint, In re K-tel Intern., Inc. Sec. Litig., 300 F.3d 881, 899
(8th Cir. 2002), we conclude that the grant of summary judgment for Wachovia and
Aurora was proper, as was the denial of Hart's motion to amend the complaint for the
reasons set forth by the district court. Accordingly, we affirm on the basis of the
district court's opinion. See 8th Cir. Rule 47B.
                         ______________________________




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