                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-2052

                                   Joyce M. Woelfel,
                                      Appellant,

                                           vs.

                            U. S. Bank, National Association,
                                      Respondent.

                                  Filed July 21, 2014
                                Reversed and remanded
                                   Klaphake, Judge*

                               Todd County District Court
                                File No. 77-CV-13-218

Jonathan L. R. Drewes, Caitlin Guilford, Drewes Law, PLLC, Minneapolis, Minnesota
(for appellant)

Ellen B. Silverman, Ashley M. DeMinck, Hinshaw & Culbertson LLP, Minneapolis,
Minnesota (for respondent)

      Considered and decided by Halbrooks, Presiding Judge; Smith, Judge; and

Klaphake, Judge.

                        UNPUBLISHED OPINION

KLAPHAKE, Judge

      Appellant-mortgagor challenges the district court’s dismissal of her action to set

aside a foreclosure sale, arguing that respondent-mortgagee’s failure to timely record the

*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
notice of pendency of foreclosure by advertisement rendered the foreclosure void.

Because the district court erred by failing to require strict compliance with Minn. Stat.

§ 580.032, subd. 3 (2012), which provides that the notice must be recorded before the

first date that the foreclosure notice is published, we reverse and remand.

                                     DECISION

       The district court dismissed appellant Joyce Woelfel’s complaint seeking to void

the foreclosure sale of her home after respondent U.S. Bank, N.A., conducted a

foreclosure by advertisement, but failed to record the notice of pendency of foreclosure

until four days after the first publication date of the foreclosure, rather than before the

first publication date, as specified by Minn. Stat. § 580.032, subd. 3. On appeal from a

district court’s dismissal of a case for failure to state a claim under Minnesota Rule of

Civil Procedure 12.02(e), we review whether the complaint alleges a legally sufficient

claim for relief, which presents a question of law. Bodah v. Lakeville Motor Express,

Inc., 663 N.W.2d 550, 553 (Minn. 2003). On undisputed facts, we review de novo the

construction of Minn. Stat. § 580.032, subd. 3, and the district court’s conclusion that the

bank’s lack of strict compliance with its timeliness provision did not void the foreclosure

sale. See Ruiz v. 1st Fid. Loan Servicing, LLC, 829 N.W.2d 53, 56 (Minn. 2013) (stating

that “[s]tatutory interpretation presents a question of law, subject to de novo review.”).

       Minn. Stat. § 580.032, subd. 3, provides:

              A person foreclosing a mortgage by advertisement shall
              record a notice of the pendency of the foreclosure with the
              county recorder or registrar of titles in the county in which the
              property is located before the first date of publication of the



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              foreclosure notice but not more than six months before the
              first date of publication.

       When interpreting a statute, this court first examines its plain language. Jackson v.

Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487, 496 (Minn. 2009). “We construe a

statute as a whole so as to harmonize and give effect to all its parts.” Id. (quotation

omitted). If the words of the statute as applied to an existing situation are unambiguous,

we will not disregard the letter of the law to pursue its spirit. Minn. Stat. § 645.16

(2012). A statute is not ambiguous if it is not reasonably susceptible to more than one

interpretation. City of St. Paul v. Eldredge, 800 N.W.2d 643, 647 (Minn. 2011).

       The language of Minn. Stat. § 580.032, subd. 3, is not ambiguous: it states that the

notice of pendency of foreclosure “shall” be recorded “before the first date of publication

of the foreclosure notice.” See id.; Minn. Stat. § 645.44, subd. 16 (2012) (stating that

“‘[s]hall’ is mandatory”). Therefore, by its plain terms, the statute required that in this

foreclosure by advertisement, U.S. Bank had to record the notice of pendency of

foreclosure prior to the first publication date of the foreclosure notice, not four days later.

       The district court concluded that this defect did not render the foreclosure sale

void because Woelfel, as the mortgagor, had received actual notice of the pending

foreclosure under Minn. Stat. § 580.03 (2012), and because she had suffered no prejudice

by the absence of compliance with Minn. Stat. § 580.032, subd. 3. See Holmes v.

Crummett, 30 Minn. 23, 25, 13 N.W. 924, 924 (1882) (stating that a mortgagor may not

challenge a foreclosure action based on the omission of a prescribed act which could not

have affected his interest); see also Badrawi v. Wells Fargo Home Mortg., Inc., 718 F.3d



                                               3
756, 760 (8th Cir. 2013) (applying Minnesota law, holding that a mortgagor could not

maintain an action based on a violation of the notice requirement of subdivision 3

because she was not among the persons for whom that requirement was enacted). The

district court noted that unlike other lienholders, who could recover only money damages

for failure to mail a third-party notice of foreclosure, see Minn. Stat. § 580.032, subds. 4,

6 (2012), Woelfel could seek the remedy of setting aside the foreclosure.

       But read as a whole, the statute does not support such a distinction between

Woelfel and other lienholders or creditors. The foreclosure-by-advertisement provisions

specifically apply to “[a] person having a redeemable interest in real property under

section 580.23 or 580.24.” Minn. Stat. § 580.032, subd. 1 (2012). Sections 580.23 and

580.24 set forth, respectively, procedures for redemption by a mortgagor and by

subsequent creditors. Minn. Stat. § 580.23, .24 (2012). Therefore, by its terms, the

requirements of Minn. Stat. § 580.032 apply to Woelfel as a mortgagor.          Further, the

availability of money damages as a remedy for failure to timely record the notice of

pendency of foreclosure does not compel a conclusion that mortgagors are excluded from

the group benefitted by Minn. Stat. § 580.032, subd. 3.

       Recent Minnesota appellate cases also support this result.           The Minnesota

Supreme Court has indicated that “the foreclosure by advertisement statutes prescribe

mandatory requirements which must be met for a party to proceed under the statutes.”

Jackson, 770 N.W.2d at 495. Because foreclosure by advertisement is a statutorily

created remedy that avoids the expense and delay of judicial proceedings, courts require




                                             4
exact compliance: “[i]f the foreclosing party fails to strictly comply with the statutory

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

       Addressing another requirement of foreclosure by advertisement, the supreme

court concluded that Minn. Stat. § 580.02(3) (2012) must be strictly construed to require

the recording of all assignments of a mortgage before a mortgagee may engage in

foreclosure by advertisement. Ruiz, 829 N.W.2d at 54. And in Ruiz, the supreme court

also declined to disturb this court’s previous decision, in an unpublished opinion, which

addressed the same issue in the current case and held that a mortgagee’s failure to timely

satisfy the recording requirement of Minn. Stat. § 580.032, subd. 3, rendered a

foreclosure by advertisement void. Id. at 59; see Ruiz v. 1st Fid. Loan Servicing, LLC,

No. A11-1081, 2012 WL 762313 (Minn. App. Mar. 12, 2012), aff’d, 829 N.W.2d 53

(Minn. 2013)). Although unpublished, this court’s Ruiz opinion has persuasive value and

supports our conclusion that subdivision 3 requires strict compliance. See State v. Zais,

790 N.W.2d 853, 861 (Minn. App. 2010) (stating that unpublished cases, although not

precedential, may have persuasive value), aff’d, 805 N.W.2d 32 (Minn. 2011).

       The plain language of Minn. Stat. § 580.032, subd. 3, unambiguously requires that

the pendency of the notice of foreclosure must be recorded within a specified time period.

In this case, U.S. Bank failed to meet that requirement. And “[t]he supreme court’s

recent opinions on chapter 580 indicate that a failure to strictly comply with any statute in

chapter 580 causes a foreclosure to be void.” Hunter v. Anchor Bank, N.A., 842 N.W.2d

10, 15 (Minn. App. 2013) (citing Ruiz, 829 N.W.2d at 57-59, and Jackson, 770 N.W.2d at

493-501), review denied (Minn. Mar. 18, 2014). Thus, we conclude that the district court


                                             5
erred by dismissing Woelfel’s complaint on the basis that U.S. Bank’s failure to timely

record the notice of pendency of foreclosure did not void the foreclosure sale. We

therefore reverse and remand for further proceedings based on that claim.

      Reversed and remanded.




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