                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2014).

                                  STATE OF MINNESOTA
                                  IN COURT OF APPEALS
                                        A14-1529

                     The Janice Kaunas Samsing Revocable Trust, et al.,
                                       Respondents,

                                              vs.

                                       Arthur D. Walsh,
                                          Appellant.

                                      Filed June 29, 2015
                                           Affirmed
                                      Rodenberg, Judge

                                Washington County District Court
                                   File No. 82-CV-13-1444

Barton C. Gernander, Burns & Hansen, P.A., Minneapolis, Minnesota (for respondents)

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., St. Paul, Minnesota (for
appellant)

       Considered and decided by Stauber, Presiding Judge; Bjorkman, Judge; and

Rodenberg, Judge.

                           UNPUBLISHED OPINION

RODENBERG, Judge

       We affirm the district court in this foreclosure-by-action dispute because, of the

issues properly preserved for review, the district court made no errors of law and acted

within its discretion. We decline to address the issues on appeal that were not timely

raised to the district court.
                                           FACTS

         This dispute arises out of a loan to appellant Arthur D. Walsh, a licensed attorney,

made by respondents Mildred Kaunas and Janice Samsing as co-trustees of the Janice

Kaunas Samsing Revocable Trust.1 The appeal follows multiple motions and a court

trial.

         Appellant borrowed $150,000 from respondents to finance the construction of a

new home located at 4936 210th Street North, Forest Lake, Minnesota.               Appellant

acknowledged both his receipt of the funds and the terms for repayment in several letters

addressed to respondents. In these letters, appellant agreed to repay the loan in monthly

installments over a thirty-year period at six percent annual interest. Appellant also stated

in the letters that he would repay the loan according to the terms of a promissory note

secured by a first mortgage, both to be drafted by appellant, and the letters were to be

enforceable until appellant finalized the promissory note and mortgage.

         No promissory note was drafted, but appellant did draft and execute a mortgage in

favor of the trust on January 5, 2004. Appellant made 29 sporadic payments after signing

the mortgage, with the last payment made on December 24, 2011.

         On January 17, 2012, respondents sent a letter to appellant demanding that he

bring the payments current or deed the property to respondents in lieu of foreclosure.

Appellant failed to do either.      Respondents commenced an action to foreclose the

mortgage, and requested judgment for the full amount loaned, plus interest and attorney

fees.

1
  Mildred Kaunas, Janice Samsing, and the Janice Kaunas Samsing Revocable Trust are
referred to collectively as “respondents.”

                                              2
      Respondents moved for partial summary judgment, arguing that as a matter of law,

appellant’s letters constituted an enforceable contract between the parties, that the

mortgage was valid and enforceable, and that appellant was in default under his

agreement with respondents. Appellant also moved for summary judgment. Although he

failed to properly serve the motion, the district court allowed appellant to make

arguments in support of his untimely motion at the summary judgment hearing. The

district court granted respondents partial summary judgment, determining that the letters

from appellant created a valid contract between the parties, that the mortgage was a valid

and enforceable document, and that appellant was in default under the mortgage and in

breach of the contract between the parties regarding repayment of the loan. Because the

amount owed by appellant was in dispute, the issue of respondents’ money damages was

reserved for further decision. Appellant’s summary judgment motion was denied.

      A court trial was held on the remaining issues: the amount of respondents’

damages, the amount of attorney fees incurred by respondents, and the effect of any

failure by respondents to provide a foreclosure notice under Minn. Stat. § 580.021, subd.

2 (2014). After trial, the district court ordered a money judgment against appellant for

$244,676.83 and concluded that respondents were entitled to a decree of foreclosure. The

district court further determined that Minn. Stat. § 580.021, subd. 2 provided no penalty

for failure to give the required notice, ruled that appellant suffered no prejudice by any

such violation, and excused any failure by respondents to provide the required notice

under the statute. Respondents docketed the judgment on May 27, 2014.




                                            3
       On June 9, 2014, appellant moved for amended findings and a new trial, and for

judgment as a matter of law on various grounds. The district court denied appellant’s

motions. This appeal followed.

                                     DECISION

I.     Issues Not Properly Before the Court

       Appellant raises numerous issues on appeal. Several of these issues were not

properly presented to or considered by the district court.

       Appellant argues that 1) respondents failed to provide a foreclosure-related notice

under Minn. Stat. § 580.041 (2014); 2) respondents failed to provide notice that late

payments would no longer be accepted before commencing the foreclosure action against

appellant as articulated in Cobb v. Midwest Recovery Bureau Co., 295 N.W.2d 232

(Minn. 1980); 3) the district court erred in applying attorney fees to appellant’s personal

judgment obligation; 4) respondents elected to pursue their remedies on the personal

judgment and to forego the foreclosure remedy by docketing the judgment against

appellant; and 5) pursuant to Minn. Stat. § 541.05, subd. 1(1) (2014), respondents are

barred by the six-year statute of limitations from recovering any payments from appellant

before June 28, 2013. All of these issues were first raised by appellant in a post-trial

motion to the district court.2

       Appellant also argues that any personal judgment against him must be limited to

installments claimed due and owing at the time of trial, because the letter promising

repayment terms contained no acceleration clause.            This issue was first raised by

2
 Appellant asserted the statute of limitations as a defense in his answer but no argument
was presented on the issue until appellant’s post-trial motion.

                                             4
appellant in a post-summary-judgment-hearing memorandum and was not addressed by

the district court in its order regarding summary judgment.3 Appellant again raised the

issue in his post-trial motion.

       Because none of these issues were properly and timely raised in the district court,

we decline to consider appellant’s arguments concerning these issues on appeal. See

Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing court must generally

consider only those issues that the record shows were presented and considered by the

[district] court in deciding the matter before it.” (quotations omitted)); see also Grigsby v.

Grigsby, 648 N.W.2d 716, 726 (Minn. App. 2002) (stating that “an issue first raised in a

post-trial motion is not raised in a timely fashion”); State v. Brunes, 373 N.W.2d 381, 386

(Minn. App. 1985) (providing that when issues are first raised in a post-hearing

memorandum, they are considered waived). Appellant had ample opportunity to raise

these issues at or before trial and, whether by inadvertence or some design, failed to do

so. No good reason appears for us to depart from our general practice of declining to

address issues not timely presented to the district court.

II.    Real Party In Interest

       Appellant argues that the district court’s foreclosure judgment must be vacated

because respondents failed to include the real party in interest. Appellant asserts that if

the mortgage was part of the trust res, then respondents Kaunas and Samsing should have

brought suit in their capacity as trustees, rather than as individuals. Minnesota Rule of


3
  While the district court did allow parties to submit a “[v]ery brief closing argument”
after the summary judgment hearing, it did not allow the parties to submit post-hearing
memoranda raising issues that were not previously raised at the hearing.

                                              5
Civil Procedure 17.01 requires that every action be brought by the real party in interest,

which is determined by “whether the party has the legal right to bring the claim under the

applicable substantive law.” Austin v. Austin, 481 N.W.2d 884, 886 (Minn. App. 1992).

The rule’s purpose is to “prevent other claimants from making further demands against a

defendant for the same relief.” Id. “Determining the real party in interest is ordinarily a

question of fact for the [district] court, whose factual findings must be upheld unless

clearly erroneous.” Minn. Educ. Ass’n v. Indep. Sch. Dist. No. 404, 287 N.W.2d 666, 668

(Minn. 1980) (citation omitted).

       Here, the named plaintiffs include Mildred Kaunas, Janice Samsing, and the Janice

Kaunas Samsing Revocable Trust. Kaunas and Samsing are co-trustees of the trust.

Appellant received the loan from Kaunas and Samsing, and a mortgage was executed in

favor of the trust. The payments that appellant made were paid to the order of either 1)

Mildred Kaunas and Janice Samsing, collectively; 2) the Janice Kaunas Samsing

Revocable Trust; or 3) Janice Samsing, individually.

       Together, the named plaintiffs comprise all of the potential plaintiffs that could

pursue the claims against appellant. Under rule 17.01, Samsing and Kaunas, as trustees

of the trust, could have sued in their own names without joining the trust itself. Minn. R.

Civ. P. 17.01 (A “trustee of an express trust, . . . may sue in that person’s own name

without joining the party for whose benefit the action is brought”). The district court did

not err in allowing suit to proceed in these circumstances.




                                             6
III.   “Notice” Issues Properly Raised on Appeal

       Appellant argues that respondents failed to comply with various notice

prerequisites for the foreclosure by action, and that such failures require that the

foreclosure be vacated. See Minn. Stat. §§ 580.021, subd. 2; 582.041 (2014). Appellant

timely raised and preserved statutory-notice issues. Minn. Stat. § 580.021, subd. 2 and

Minn. Stat. § 582.041 (2014). We address each in turn.

       A. Minn. Stat. § 580.021, subd. 2

       At trial, respondents stipulated that they did not provide appellant with notice

under Minn. Stat. § 580.021, subd. 2. The parties dispute the effect of the absence of the

notice on this proceeding. Appellant argues that respondents’ failure to provide the

statutory notice requires vacation of the foreclosure judgment because the statute

mandates that notice of foreclosure prevention counseling services be given. Appellant’s

claim involves a determination of the effect the statute has if the statutory notice is not

given in the foreclosure-by-action context. Whether respondents’ failure to comply with

the statutory notice requirements of section 580.021, subd. 2, requires vacation of the

foreclosure judgment presents a question of statutory interpretation. We therefore review

de novo. See S.M. Hentges & Sons, Inc. v. Mensing, 777 N.W.2d 228, 231 (Minn. 2010).

       Minn. Stat. § 580.021, subd. 2 provides:

              Before the notice of pendency under section 580.032,
              subdivision 3, or the lis pendens for a foreclosure under
              chapter 581 is recorded, a party foreclosing a mortgage must
              provide to the mortgagor information contained in a form
              prescribed in section 580.022, subdivision 1, that:




                                            7
            (1) foreclosure prevention counseling services provided by an
                authorized foreclosure prevention counseling agency are
                available.

       The statute does not specify a remedy for failure to comply with the required

foreclosure-prevention-counseling-services notice in the foreclosure-by-action context.

Appellant suggests that vacation of the foreclosure judgment, and requiring respondents

to begin the foreclosure action anew, is the only way to give effect to the statute’s notice

requirements. To support his argument, appellant cites to a footnote in Jackson v. Mortg.

Elec. Registration Sys., Inc., 770 N.W.2d 487, 492 n.3 (Minn. 2009). The footnote

provides:

               In 2008, the legislature added an additional prerequisite to
               foreclosure by advertisement, requiring that “before the
               notice of pendency as required under section 580.032 is
               recorded, the party has complied with section 580.021.” Act
               of May 18, 2008, ch. 341, art. 5, § 7, 2008 Minn. Laws 1390,
               1422 (codified at Minn. Stat. 580.02 (2008)). Section
               580.021 requires the foreclosing party to give notice of the
               availability of counseling, and to provide the homeowner
               various contact information for counseling services. Minn.
               Stat. §§ [sic] 580.021 (2008).

Id. The supreme court in Jackson then went on to note:

               [T]he Minnesota Legislature has amended chapter 580 to help
               mortgagors facing foreclosure by advertisement . . . . Under
               the new sections, it is a prerequisite to foreclosure by
               advertisement that the mortgagees provide mortgagors with
               information on the availability of counseling. Minn. Stat.
               §§ 580.02-.22 (2008).     The Minnesota Legislature has
               attempted to provide homeowners facing possible foreclosure
               by advertisement with greater information and access to help.

Id. at 502.     “If the foreclosing party fails to strictly comply with the statutory

requirements, the foreclosure proceeding is void.” Id. at 494.


                                             8
          Appellant’s reliance on Jackson is misplaced. Jackson discusses application of the

statute in the foreclosure-by-advertisement context. This case involves a foreclosure by

action.     “An alternative to foreclosure by action, foreclosure by advertisement was

devised to avoid the delay and expense of judicial proceedings.” Ruiz v. 1st Fidelity

Loan Servicing, LLC, 829 N.W.2d 53, 59 (Minn. 2013) (voiding a foreclosure by

advertisement for failure to strictly comply with Minn. Stat. § 580.02(3)). Unlike a

foreclosure by advertisement, a foreclosure by action involves judicial review and

subsequent approval of the foreclosure process.

          Appellant is correct that a strict-compliance standard is applied in foreclosure by

advertisement. But no authority requires strict compliance in instances of foreclosure by

action. Accordingly, violation of the Minn. Stat. § 580.021 notice requirement does not

mandate automatic vacation of the foreclosure judgment.

          Because we conclude that strict compliance with the section 580.021, subd. 2,

notice is not required in the case of a foreclosure by action, we next consider whether

appellant was prejudiced by respondents’ failure to provide the foreclosure-prevention-

counseling-services notice. See Minn. R. Civ. P. 61 (stating that “no error or defect in

any ruling or order . . . is ground for granting a new trial . . . unless refusal to take such

action appears to the court inconsistent with substantial justice”); see also Waters v.

Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 465 (Minn. 1944) (“[E]rror without

prejudice is not ground for reversal.”). The district court determined that appellant was

not prejudiced by respondents’ failure to provide notice under section 580.021, subd. 2,

taking judicial notice that appellant is a licensed attorney and determining that his status


                                               9
as an attorney was relevant to the question of whether appellant was aware of options to

avoid foreclosure.

       Appellant’s status as an attorney supports the district court’s determination that he

was not prejudiced by respondents’ failure to provide notice of foreclosure prevention

counseling services. He should have been aware of options to avoid foreclosure without

being advised under section 580.021, subd. 2. And neither at the district court nor on

appeal does appellant identify any prejudice suffered by him as a result of the lack of

notice. The record does not reveal any prejudice. The district court did not err in ruling

that failure to provide notice to appellant under Minn. Stat. § 580.021, subd. 2 did not

require dismissal of this foreclosure by action.

       B. Minn. Stat. § 582.041

       Appellant also argues that respondents failed to provide notice under Minn. Stat.

§ 582.041. He asserts that this failure requires vacation of the foreclosure judgment.

Again, this is a question of statutory interpretation, and we review de novo.          S.M.

Hentges, 777 N.W.2d at 231.

       Minn. Stat. § 582.041, subd. 1 provides:

              If a mortgage on real property is foreclosed and the property
              contains a portion of a homestead, the person in possession of
              the real property must be notified by the foreclosing
              mortgagee that the homestead may be sold and redeemed
              separately from the remaining property.

Section 582.041 notice provides a procedure for a debtor to allocate a portion of a

foreclosed property to be designated as a homestead if it contains a home, and sold

separately. Id., subd. 2. The allocated parcels must conform to local zoning ordinances


                                             10
and be compact so as to not unreasonably reduce the value of the remaining property.

Id., subd. 3. The homestead portion is to be sold separately. Id., subd.

       We have already determined that no authority requires strict statutory compliance

in foreclosure-by-action cases. The failure to give the section 582.041 notice requirement

does not mandate vacating the foreclosure judgment, as appellant contends.

       Appellant has suffered no prejudice by not receiving the homestead-exemption

notice because appellant could not possibly “allocate[] a portion of homestead property to

be sold first” under the statute. Appellant’s house is located on a residential lot that is

platted as a single-family residence. Further division of the property is not possible

without violating local zoning ordinances.        Moreover, the entire assessed value of

appellant’s land is significantly lower than the total amount of respondents’ claims. Even

if appellant were able to have a separate portion of his property homesteaded, he would

only benefit under the statute if that separate parcel could be sold to satisfy the judgment

against appellant. That is impossible on these facts. Because it would be impossible for

appellant to designate a portion of his property to be sold separately from the house itself,

he has suffered no prejudice by the failure to provide the homestead-exemption notice.

The district court did not err in excusing respondents’ failure to provide such notice.

IV.    Attorney Fees

       Appellant challenges the district court’s award of attorney fees. We review a

district court’s grant of attorney fees for an abuse of discretion.        Becker v. Alloy

Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987). “The reasonable value of

attorney fees is a question of fact, and we must uphold the district court’s findings on that


                                             11
issue unless they are clearly erroneous.” Andrew L. Youngquist, Inc. v. Cincinnati Ins.

Co., 625 N.W.2d 178, 188 (Minn. App. 2001).

       A. Sufficiency of Findings

       In challenging the district court’s award, appellant first argues that the district

court erred by failing to make sufficient findings of fact to support its award of attorney

fees to respondents. A judgment based on insufficient findings will not be sustained on

appeal. See Becker, 401 N.W.2d at 661 (providing that, on remand, the district court

should provide its rationale for denying request for attorney fees so the award could be

reviewed by appellate court).

       Here, the district court awarded respondents attorney fees in the amount of

$28,785.89. The district court made several findings of fact regarding its award of the

fees, indicating the analysis it applied and providing its reasoning for the amount awarded

to respondents. The district court’s findings are more than adequate, and the record

before us supports those findings. Accordingly, the district court made sufficient findings

to support its award of attorney fees to respondents.

       Appellant also argues that the district court shifted to him the burden of proof on

the attorney-fees issue. Appellant misapprehends the district court’s observation in its

finding of fact that appellant presented no argument rebutting the amount of claimed

attorney fees. The district court found that respondents met their burden of proof through

Samsing’s testimony. The court’s observation that respondents’ request for fees was

unopposed by appellant did not amount to a reallocation of the burden of proof.




                                            12
       B. Exhibit 14

       Appellant argues that the district court abused its discretion in allowing Exhibit

14, a copy of the billing statements of respondents’ attorneys through the day before trial,

to be used to refresh Samsing’s recollection when she testified at trial. Appellant asserts

that the document could not be used to refresh Samsing’s memory because Samsing was

not the author of the document.

       “The admission of evidence rests within the broad discretion of the [district] court

and its ruling will not be disturbed unless it is based on an erroneous view of the law or

constitutes an abuse of discretion.” Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d

42, 45-46 (Minn. 1997) (quotation omitted). Under Minn. R. Evid. 612, if a witness has

first-hand knowledge about that which he or she is testifying, that witness may

legitimately rely on a writing to refresh his or her memory. See also Minn. R. Evid. 602.

The district court “has wide discretion in permitting use of memoranda [to refresh a

witness’s memory] and in the references that may be made thereto.”            Ostrowski v.

Mockridge, 242 Minn. 265, 274, 65 N.W.2d 185, 191 (1954).

       Rule 612 does not require that the individual whose memory is being refreshed be

the same individual who authored the document. The rule only requires that the witness

have “first-hand knowledge” about the topic to which he or she is testifying. See Minn.

R. Evid. 602. Here, Samsing testified that she had personal knowledge of the attorney

fees that she had incurred, but also indicated that she could not remember the specific

amount of the fees. Exhibit 14 was used to refresh her recollection of the exact amount.




                                            13
The district court did not abuse its discretion in allowing Exhibit 14 to be used to refresh

Samsing’s recollection.

V.     Amount of Judgment

       Appellant argues that the district court erred in entering judgment against him in

the full amount owed on the loan through the date of trial. Appellant asserts that the

district court’s error stems, in part, from admitting inadmissible evidence.

       Appellant argues that the district court abused its discretion when it received into

evidence Exhibit 13, an amortization schedule reflecting the payments made by appellant,

the principal amount that remained owing, and the accrual of interest through the date of

trial. Appellant asserts that Exhibit 13 prejudiced him because it was the only evidence

offered by respondents regarding the amount due and owing by appellant.

       As previously discussed, the district court has broad discretion in making

evidence-admissibility determinations, and these rulings will only be overturned if they

are based on “an erroneous view of the law or constitute[] an abuse of discretion.”

Kroning, 567 N.W.2d at 45-46. Over appellant’s objection, the district court allowed

Exhibit 13 into evidence under Minn. R. Evid. 803(6). Rule 803(6) allows for the

admission of hearsay statements under the business-records exception, provided that a

qualified witness testifies that it was the regular practice of the business to create and

maintain that record. See also Nat’l Tea Co. v. Tyler Refrigeration Co., 339 N.W.2d 59,

62 (Minn. 1983) (providing that the business-records exception requires foundation for

the document’s admissibility to be laid by a qualified witness). A “qualified witness”

need not be an employee of the business. See Nat’l Tea, 339 N.W.2d at 61-62. “The


                                             14
phrase ‘other qualified witness’ should be given the broadest interpretation; he need not

be an employee of the entity so long as he understands the system.” Id. at 61.

       Appellant argues that Samsing is not a “qualified witness” within the meaning of

Rule 803(6) because she did not know exactly how Exhibit 13 was produced or the basis

for the calculations contained in the document. Despite this, the record supports the

district court’s admission of the exhibit. At trial, Exhibit 13 was identified by Samsing as

a record regularly kept concerning this loan to appellant and reflecting the amounts owed

through the date of trial. She testified that the document was prepared, at her direction,

by her accountant of fifteen years. Samsing further testified that the accountant first

prepared the document at the time the loan was made, that the document was prepared

with information Samsing provided to the accountant, that the document accurately

reflected the payments appellant made, and she had no reason to believe that there was

any error or inaccuracy in the document. Based on this record, we see no abuse of the

district court’s discretion in finding that proper foundation was provided for Exhibit 13.

The district court acted within its discretion in admitting the amortization schedule as a

business record.

       Affirmed.




                                            15
