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US District Court : REAL PROPERTY | CREDITOR - equity stripping, foreclosure consultants, contract required; HOEPA, TILA

Michael E. Jones and
Edith A. Jones,
Civil File No. 05-2384 (MJD/AJB)
Real Estate Equity Strategies, LLC;
Chadwick Banken; and l
Central Bank,
Kristine K. Nogosek and Robert B. Bauer, Severson Sheldon Dougherty &
Molenda, PA., Counsel For Plaintiffs.
Jack E. Pierce, Pierce Law Firm, PA., Counsel For Defendants REES-MAX,
LLC; Real Estate Equity Strategies, LLC; and Chadwick Banken.
Brian M. Sund and Eric G. Nasstrom, Morrison Fenske & Sund, PA., Counsel
For Defendant Central Bank.
Before the Court are cross motions for summary judgment. Plaintiffs
move for partial summary judgment as to their claims that Defendants
violated Minn. Stat. 325N.04, .11, .12 and .17. Defendants REES-MAX,
LLC, Real Estate Equity Strategies, LLC (REES) and Chadwick Banken
(Banken) move for summary judgment as to all counts. Defendant
Central Bank has joined REES-MAX, REES and Bankens motion for
summary judgment.
A. The Parties
Plaintiffs, Michael E. Jones (M. Jones) and Edith A. Jones (E.
Jones) were the owners of a home located at 7451 27th Street Circle
North, Oakdale, Minnesota 55128 (the Property). E. Jones moved into
the Property in 1977, and M. Jones moved into the Property in 1988.
Defendant REES-MAX, LLC (REES-MAX), is a holding company for
real estate. Defendant Real Estate Equity Strategies, LLC (REES) is a
company that looks at property to acquire and manages and maintains
property held by REES-MAX. Defendant Chadwick Banken (Banken) is a
licensed real-estate broker, and the chief manager for both REES and REESMAX.
These companies are owned in part by Banken through a trust, and
he receives income as a result of the activities of both REES and REES-MAX.
Collectively, Defendants deal with distressed properties that are in
foreclosure and solicit potential clients through the use of a direct mailer. If
a homeowner responds to the mailer, Defendants offer several service
options, including: 1) alternative mortgage services through Custom
Mortgage and Funding; 2) reconveyance transactions, in which the
homeowner sells the property with the option of purchasing it back on a
contract for deed; 3) cash for keys, in which REES purchases the home
outright; and 4) an option to purchase a different home from REES.
Defendant Central Bank is a party to this action because it financed REESMAX
in the purchase of the Property.
B. Factual Background
In the fall of 2004, the Joneses fell behind on their mortgage in favor
of Wells Fargo Home Mortgage Inc., and the Property went into foreclosure.
The last payment was made on May 4, 2004. The Joneses filed for
bankruptcy on November 9, 2004. In this bankruptcy proceeding, the
Joneses submitted a payment plan that required monthly housing payments
of ,000. In May 2005, however, the bankruptcy was dismissed due to the
failure of the Joneses to make these payments. This dismissal resulted in
the lifting of the stay of foreclosure.
It was during this time that the Joneses received a notice from
Banken that read:
There are only a few months to go in your redemption period! Your
options to save the equity in your home are fading. Call me
immediately for a no bull, no obligation, assessment of your situation.
Even if you have been promised by a mortgage broker or investor
that they will help, CALL ME. You need to have a back up plan in
case they break their promise intentionally or not.
I will attempt to contact you once more before the end of the
redemption. By that time my only offer can be a few hundred or a
few thousands of dollars for the keys to your home. Dont find out
the hard way its your only option then. CALL TODAY to make sure
you are getting the best solutions to your problem.
(Nogosek Aff., Ex. A)(emphasis in original).
As a result of this notice, M. Jones contacted Banken, and a few days
later, they met at the Property. At this initial meeting, Banken discussed
options with the Joneses but provided no written documentation. Banken
later delivered documents to the Property, and any discussion of the
documents took place over the phone. Included in these documents was a
cancellation document, a purchase agreement, a pre-negotiation disclosure,
a contract for deed proposal agreement, and a residential real estate lease
Banken testified at his deposition that the transaction was structured
so that REES-MAX would purchase the Property from the Joneses.
Thereafter, the Joneses would lease the Property from REES-MAX for a few
months, after which time the Joneses would purchase the Property back
from REES-MAX on a contract for deed. Banken Dep. 71.
When the Joneses first received the purchase agreement, it did not
identify who the buyer of the Property would be, and the purchase price
was inconsistently listed as 5,000 and 8,000. Pierce Decl., Ex. EE.
The residential real estate lease provided that the lease payment would be
,005 per month. Id. Ex. FF. The contract for deed proposal provided that
the purchase price of the Property was 5,000, less a down payment of
,050, leaving an estimated contract balance of 6,950. Further, the
monthly interest only payment was estimated to be ,777 plus taxes and
insurance. Id. Ex. GG.
On May 9, 2005, the Joneses went to Bankens office to sign the
documents, but Banken was unavailable. Instead, the Joneses executed the
above described documents in the presence of Chris Conati, a REES
employee. Banken appears to have signed the documents later that same
On June 2, 2005, the Joneses met with Banken at the offices of Title
One, Inc., to close the transaction. At the closing, the Joneses executed a
warranty deed transferring title to the Property to REES-MAX. The Joneses
also executed a sellers affidavit, which admittedly contained false
representations concerning prior bankruptcies while the Joneses resided at
the Property. Id. Ex. JJ.
In addition, the Joneses executed a HUD-1 Settlement Statement
(HUD-1"). Id. Ex. KK. Line 401 of the HUD-1 indicates that the contract
sales price was 8,000. Line 507 provided that REES was receiving a fee
in the amount of ,912.34, and that ,092.00 was identified as Rees
DP in Line 508. At the closing, REES-MAX tendered ,000 in the form of
a cashiers check and 4,000 from its financing with Central Bank. In
addition, the Joneses brought and tendered ,500 at closing. Nogosek
Aff., Ex. S. Title One, Inc. then issued a check to payoff the Joneses
mortgage totaling 5,476.18 and issued three checks to REES-MAX
totaling ,181.13. Id., Ex. U.
After the closing, the Joneses were informed that because they had
only brought ,500, rather than ,000, they would need to pay back the
deficiency in 0 increments until it was paid in full. Pierce Decl., Ex.
MM. The parties dispute whether this ,000 was owed. With this
adjustment, the initial monthly lease payments were set at ,455, which
was approximately 0 more than they were paying on their previous
mortgage. The Joneses contested these fees and did not make any
Thereafter, REES initiated an unlawful detainer action and was
granted summary judgment. Real Estate Equity Strategies, LLC. V. Jones,
720 N.W.2d 352, 354 (Minn. Ct. App. 2006). REES was granted an eviction
judgment, and although the Joneses appealed, the decision of the district
court was affirmed. Id., at 360.
The Joneses filed this action in October 2005 alleging that as a result
of the transactions entered into between the parties, REES-MAX was able to
acquire a property worth 8,000 for 4,000; stripping them of ,000
in equity. Further, the Joneses assert that Defendants did not comply with
the requirements of Minnesota Statutes Chapter 325N, the Home
Ownership and Equity Protection Act (HOEPA), or the Truth in Lending
Act (TILA). Further, the Joneses believe that Defendants engaged in
consumer fraud in violation of Minn. Stat. 325F.69. They are seeking
various forms of relief available under these statutes and are seeking to
rescind the transactions.
A. Summary Judgment Standard
Summary judgment is appropriate if, viewing all facts in the light
most favorable to the non-moving party, there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The party seeking summary judgment bears the burden of showing
that there is no disputed issue of material fact. Id. at 323. If the opposing
party fails to make a showing that supports the existence of an element
essential to the case on which they have the burden of proof at trial,
summary judgment must be granted. Id. at 332-33. Summary judgment
should not be viewed as a disfavored procedural shortcut, but rather an
integral part of the Federal Rules as a whole, designed to secure the just,
speedy and inexpensive resolution of every action. Celotex Corp., 477 U.S.
at 327.
B. Federal Causes of Action
The Joneses have asserted claims under HOEPA and TILA, alleging
that Defendants violated the disclosure requirements of both statutes and
the implementing regulations. 15 U.S.C. 1602, 1638, 1639 and 1641; 12
C.F.R. 226.31 and .32. Because of these violations, the Joneses argue
that they have a continuing right to rescind the transaction. 15 U.S.C.
1635; 12 C.F.R. 226.23(a)(2).
1. Equitable Mortgage
Defendants argue that TILA only applies to a credit transaction. 15
U.S.C. 1638(a); 12 C.F.R. 226.2(a)(14). Defendants further argue that
in order for HOEPA to apply, there must be a consumer credit transaction
that is secured by the consumers principal dwelling 15 U.S.C.
1602(aa)(1). Defendants reason that since there was no debt instrument
and no loan, neither TILA nor HOEPA apply.
Whether or not the Joneses claims fall under TILA and/or HOEPA
depends on whether the parties conducted a consumer credit transaction
in which the defendants were creditors within the meaning of TILA and
HOEPA. Hruby v. Larsen, Civ. No. 05-894 (DSD/SRN), 2005 WL 1540130,
*2 (D. Minn. 2005). A mortgage will be subject to TILA and HOEPA as a
consumer credit transaction secured by the consumers principal dwelling.
15 U.S.C. 1602(aa)(1). To determine whether a transaction was in fact
secured by a dwelling requires this Court to look to Minnesota law. Hruby,
2005 WL 1540130, *2; 12 C.F.R. 226.2(a)(25).
Courts generally presume that a deed is a conveyance. Ministers Life
& Cas. Union v. Franklin Park Towers Corp., 239 N.W.2d 207, 210 (Minn.
1976). However, Minnesota courts have adopted the doctrine of equitable
mortgage to prevent an overreaching by one party that would unfairly
exploit the other partys financial position or relative lack of real estate
dealings. Id. Essentially, if the real nature of the transaction between the
parties is that of a loan, advanced upon the security of realty granted to the
party making the loan, it may be treated as an equitable mortgage. First
Natl Bank of St. Paul v. Ramier, 311 N.W.2d 502, 503 (Minn. 1981). The
intent of the parties is paramount, and to overcome the presumption that a
deed is a conveyance, it must be clear that both parties intended that the
transaction result in a mortgage. Ministers Life & Cas. Union, 239 N.W.2d
at 210.
In order to determine intent, courts may look to the documents
relating to the transaction. Id. The lack of terms such as debt, security,
or mortgage are strong evidence indicating that the transaction is not a
mortgage. Id. However, the fact that documents do not express the
existence of a loan is not conclusive, and the intention of the parties is to be
ascertained by looking at all the facts and circumstances surrounding a
transaction. Gagne v. Hoban, 159 N.W.2d 896, 899 (Minn. 1968). In
the final analysis, the question of whether the parties to a conveyance really
intended it to be absolute or security for indebtedness is for the trier of
fact. Gagne, 159 N.W.2d at 900.
Defendants argue that the documents at issue here state explicitly
that no security interest is being granted. For example, the Pre-Negotiation
Disclosure states the Contract for Deed is not intended a loan and a
mortgage securing repayment of a debt to REES. Pierce Decl., Ex. HH.
Defendants further argue that the Joneses themselves stated that they did
not believe the Defendants loaned them any money. E. Jones Dep. p. 135;
M. Jones Dep. p. 106. During her deposition, E. Jones was asked to review
all related documents and was not able to identify anything that could be
construed as a mortgage. E. Jones Dep. . 130-133.
Defendants, in seizing on these arguments, elevate form over
substance. The true inquiry is whether the parties intended an outright sale
or whether the purpose and effect of the transaction is to give security on
real property for a debt. Gagne, 159 N.W.2d at 899.
The Court finds genuine issues of fact exist on the issue of intent.
The Joneses assert that they believed that Banken was offering a service
that would allow them to stay in the house, make monthly payments, and
pay Defendants off within 5 years. M. Jones Dep. . 81-82. In addition,
they assert it was not until the commencement of the eviction action that
they became aware they allegedly sold the Defendants the property. Id. at
In addition to looking to the intent of the parties, courts will also
consider the following factors in making a determination as to whether a
conveyance should be construed as an equitable mortgage: 1) the disparity
between the value of the property and the price paid; 2) the nature of the
solicitation that gave rise to the transaction; 3) attempts to sell the property
on the open market; 4) whether there was a negotiated sale price; and 5)
whether there was continuous occupancy. Brown v. Grant Holding, LLC.,
394 F. Supp.2d 1090, 1098-99 (D. Minn. 2005). The Court finds these
factors all weigh in favor of a finding that the conveyance at issue should be
construed as an equitable mortgage.
In this case, the Property was appraised at 8,000 and purchased
by REES-MAX for 4,000. Given this disparity, this factor weighs in favor
of finding that the transaction was intended to operate as a mortgage. See
Brown, 394 F. Supp. 2d at 1098; Gagne, 159 N.W.2d at 900. A typical
buyer does not leave the closing table with ,092.
There is also evidence indicating that Banken made frequent
assurances to the Joneses that they would be able to remain in their home.
M. Jones Dep. 57, 59-60. In addition, the evidence demonstrates that the
Property was not listed on the open market and there is little, if any,
evidence demonstrating that the sale price was negotiated. Finally, the
evidence demonstrates that the Joneses were allowed to continue to occupy
the Property just as they had before the transactions at issue took place.
See Brown, 394 F. Supp. 2d at 1099.
2. Rescission
In Count VIII of the First Amended Complaint, the Joneses seek to
exercise their right to rescission under TILA and HOEPA. Defendants argue
that in order to be entitled to such relief, the Joneses must tender to
Defendants the reasonable value of the property. 15 U.S.C. 1635(b). In
this case, Defendants assert the reasonable value of the Property is
approximately 5,000; which was the mortgage amount secured to pay
off the Wells Fargo mortgage. Defendants argue that the Joneses have not
met their burden of demonstrating that they could tender the value of the
property within a reasonable period, and therefore are not entitled to
The right to the remedy of rescission may be conditioned upon
repayment to a creditor. See eg., FDIC v. Hughes Dev. Co., 684 F. Supp.
616, 625 (D. Minn. 1988) (citing LeGrone v. Johnson, 534 F.2d 1360, 1362
(9th Cir. 1976)). In addition, it is within this Courts discretion to allow the
debtor a reasonable time to pay the mortgage amount. See FDIC 684 F.
Supp. at 625 (allowing debtor one year to tender principle). Given the
discretion within which the Court may condition the right to rescission, it is
not necessary that the Joneses demonstrate they have the means to secure
the necessary financing at this point in time.
Accordingly, Defendants motion for summary judgment as to the
TILA/HOEPA claims must be denied.
C. State Causes of Action
Defendants are seeking summary judgment on all claims arising
under state law. The Joneses are seeking partial summary judgment, that
as a matter of law, Defendants Banken, REES-MAX and REES have violated
Minn. Stat. 325N.04, .11, .12, and .17.
Chapter 325N of Minnesota State statutes regulates mortgage
foreclosures as part of an overall consumer protection scheme. This
Chapter is divided into two distinct sections: (1) 325N.01 through .09
which regulate foreclosure consultants, and (2) 325N.10 through .18
which regulate foreclosure purchasers.
1. Foreclosure Consultants, Minn. Stat. 325N.01 through .09
A foreclosure consultant is a person who, either directly or indirectly,
makes a solicitation or offer to any owner that they will, for compensation,
do any of the following: (1) stop or postpone the foreclosure sale . . . or
(8) save the owners residence from foreclosure. Minn. Stat. 325N.01(a).
A foreclosure consultant must not, inter alia, receive any consideration from
a third party in connection with services rendered unless this consideration
is fully disclosed to the owner. Minn. Stat. 325N.04(4).
The Joneses assert that Banken sent them a solicitation notice that
offered to aid them in saving their home and stopping the foreclosure.
Further, they assert that Banken was compensated for his services by REES
after the closing on the Property. The record shows that REES received
almost ,000 in fees, and that Banken received a portion of that fee in
the form of dividends and distributions from REES. The Joneses argue that
Bankens failure to disclose this fact violates Minn. Stat. 325N.04(4) and
entitles them to summary judgment as to this claim. They also seek
rescission of the foreclosure consultant contract pursuant to Minn. Stat.
Defendants argue Banken is not a foreclosure consultant, because the
solicitation notice did not specifically provide that Defendants would stop,
postpone or save the home from foreclosure. Further, Defendants point to
the deposition of E. Jones, in which she states that Banken did not represent
to her that he would postpone the foreclosure of her home. E. Jones Dep.,
p. 73.
While the solicitation notice sent by Banken does not mirror the
statutory language to stop postpone or save the home, the notice does
reference the remaining redemption period, and offers options to save the
equity in the home. Nogosek Aff., Ex. A. Thereafter, Banken arranged for
the Joneses to enter into a series of transactions which would allow them to
remain in their home. Based upon these undisputed facts, the Court finds
that Banken is a foreclosure consultant as defined by statute.
As a foreclosure consultant, Banken was required to fully disclose to
the Joneses the fact that he would receive compensation in arranging the
transactions which would allow the Joneses to stay in their home. The
HUD-1 provided that REES received fees in the amount of ,912.34.
Banken testified at his deposition that he receives income from the real
estate activities of REES-MAX and REES. Banken Dep. 124. The Joneses
assert, however, that they were not informed concerning Bankens
compensation. Accordingly, genuine issues of material fact preclude
summary judgment as to this particular violation.
2. Foreclosure Purchasers, Minn. Stat. 325N.10 through .18
A foreclosure purchaser is a person, joint venture, or enterprise that
has acted as the acquirer of more than one foreclosure reconveyance during
any 24 month period. Minn. Stat. 325N.10, Subd. 4. A foreclosure
reconveyance involves the transfer of title to real property by a foreclosed
homeowner by creation of a mortgage or other lien or encumbrance that
allows the acquirer to obtain title by redeeming the property. Minn. Stat.
325N.10, Subd. 3(1). In addition, it involves a subsequent conveyance, or
promise of a conveyance of an interest back to the foreclosed homeowner
which allows the homeowner to possess the property. Minn. Stat.
325N.10, Subd. 3(2).
The Joneses assert that REES and REES-MAX are foreclosure
purchasers as they have acquired more than one foreclosure reconveyance
during a 24 month period, and continue to engage in reconveyance
transactions. See Nogosek Aff., Ex. M; Banken Dep., . 64-65. For purposes
of its motion for summary judgment, Defendants do not dispute that REESMAX
and REES are foreclosure purchasers and that the transaction at issue
was a foreclosure reconveyance. Defendants Memorandum in Support of
Summary Judgment, p. 23.
a. Foreclosure purchase contract requirements
Minnesota law requires that every foreclosure purchaser shall enter
into every foreclosure reconveyance in the form of a written contract.
Minn. Stat. 325N.11. In addition, [e]very contract required by section
325N.11 must contain the entire agreement of the parties. Minn. Stat.
325N.12. Such contract must also include those terms set forth in Minn.
Stat. 325N.12 (1)-(8). For example, the contract must include the name,
business address and telephone number of the foreclosure purchaser, and
include a complete description of the terms of payment or other
consideration including, but not limited to, any services of any nature that
the foreclosure purchaser represents he or she will perform for the
foreclosed homeowner before or after the sale. Minn. Stat. 325N.12(1)
and (4). The contract must also include a notice of cancellation in the
following form:
Until your right to cancel this contract has ended, . . . (Name) or
anyone working . . . (Name) CANNOT ask you to sign or have you
sign any deed or any other document.
Minn. Stat. 325N.12 (8).
In addition, the contract must comply with the notice requirements
set forth in section 325N.14 (a) and (b). Generally, these notice
requirements provide that the foreclosure purchaser notify the foreclosed
homeowner, in a specific format, of the right to cancellation, and the date
the right to cancellation expires. The five day cancellation period does not
begin to run until all parties have executed the contract and the foreclosure
purchaser has complied with section 325N.14. Minn. Stat. 325N.14 (d).
Defendants respond that it substantially complied with these
statutory requirements, referring to the Contract for Deed and the Pre-
Negotiation Disclosure. Pierce Decl., Exs. GG and HH. Defendants admit
that the contracts did not technically comply with the cancellation notice
requirements, but assert that the Joneses are not entitled to summary
judgment as they have not shown this lack of compliance caused them
damage. Defendants assert that there is no evidence that after executing
the documents on May 9, 2005, that either Plaintiff wished to rescind the
transaction. Defendants further point out that almost a month passed
between executing the documents and the closing, and that during that
time, the Joneses did not assert a desire to cancel.
Contrary to Defendants assertions of substantial compliance, the
Court finds that Defendants did not comply with sections 325N.11 and 12
in many respects. Section 325N.12 requires a written contract that contains
the entire agreement of the parties before the execution of any instrument of
conveyance. (emphasis added). The Court has reviewed the record and
finds no contract contains the entire agreement of the parties. There are a
series of documents - a purchase agreement, lease, contract for deed, prenegotiation
disclosure - but not one document that fully explains the entire
agreement. The Court further finds that no contract executed prior to the
execution of the instrument of conveyance - the warranty deed - provides
that the lease payment will be ,455 for the first two months, as provided
in the payment fact sheet sent to the Joneses after the closing. Pierce Decl.,
Ex. MM. According to the Joneses, they disputed the initial lease payments,
and did not make the lease payments because of this dispute. Had they
been aware of the initial lease payments, they may have exercised their
rights to cancellation, or never executed the documents in the first place.
The Court thus finds that the Joneses are entitled to summary
judgment on their claims that Defendants failed to comply with Minn. Stat.
325N.11 and .12.
b. Failure to verify a reasonable ability to pay
A foreclosure purchaser is prohibited from attempting to enter into a
foreclosure reconveyance unless they can demonstrate they have verified
that the foreclosed homeowner has a reasonable ability to pay for the
subsequent conveyance of an interest back to them. Minn. Stat.
325N.17(a)(1). In addition, there is a rebuttable presumption that a
foreclosure purchaser has failed to do this if the purchaser has not obtained
documents other than a statement from the homeowner of assets liabilities
and income. Id.
Defendants have admitted that they relied solely on the Joneses
representation of their income. Banken Dep., . 74-76. In fact, Banken
testified that it is the general practice of REES not to verify a foreclosed
homeowners income or seek credit reports. Banken Dep., . 31-33.
1Defendants allege that in their bankruptcy filings, the Joneses listed a net monthly income of
,543. Yet, their income tax returns for 2004 and 2005 show a combined adjusted gross
income of ,329 and ,906, respectively. Thus, if Defendants had verified the Joneses
income, they would have discovered an inability to meet a monthly obligation of ,455 or
Defendants nonetheless seek to avoid liability under this statutory
requirement by asserting that the Joneses statements about their income
was later verified by M. Jones in his deposition. Section 325N.17(a)(1)
makes clear, however, that verification of income is to be made prior to the
foreclosure reconveyance. Whatever M. Jones stated at his deposition, or in
his bankruptcy proceeding, is irrelevant.1 What is relevant is the fact that
Defendants took no steps to verify the Joneses income prior to entering into
the foreclosure reconveyance transactions. The Joneses are thus entitled to
summary judgment as to this claim.
c. Additional violations
It is a violation of the statute for a foreclosure purchaser to represent,
directly or indirectly, that they are assisting the foreclosed homeowner to
save the house or to assert a substantially similar claim. Minn. Stat.
325N.17(d)(3). Also, a foreclosure purchaser must not represent, directly
or indirectly, that they are assisting the foreclosed homeowner to prevent a
completed foreclosure if in fact the result of the transaction is that the
foreclosed homeowner will not complete a redemption of the property.
Minn. Stat. 325N.17(d)(4).
The Joneses assert that the written solicitation they received from
Banken, and subsequent oral representations by Banken to them, constitute
a violation of section 325N.17(d)(3) and (4). The Court agrees. As
discussed previously, while the notice did not specifically state that Banken
would save the house, the language in the notice does so indirectly by
referencing the redemption period, and options to save the equity in your
home. Nogosek Aff, Ex. A.
Finally, foreclosure purchasers are prohibited from making any
statements, directly or by implication, or engage in any conduct that is false,
deceptive or misleading. Minn. Stat. 325N.17(e). The Joneses claim that
Defendants misrepresented that the lease payments would be ,005 per
month but that after the closing, they received a payment fact sheet listing
the lease payments as ,455 per month. Pierce Decl., Ex. MM.
Defendants argue that the Joneses cannot rely on the payment fact
sheet for their claim that Defendants made false or misleading statements,
as the payment fact sheet was sent to the Joneses after the closing. The
Court disagrees.
The evidence shows that prior to closing, the Joneses were led to
believe that the lease payments would be ,005. Yet, after closing, the
Joneses were told they had to pay ,455. Defendants claim the additional
amounts were due to the fact that the Joneses did not bring ,000 to the
closing, yet the record is not clear the Joneses were aware of this
requirement prior to closing. There is no mention of the obligation to bring
,000 to closing in the foreclosure reconveyance documents that are a part
of the record. Accordingly, the Court finds a genuine issue of material fact
exists as to the claim that Defendants violated section 325N.17(e).
d. Causation
Defendants argue that the Joneses have the burden of proving a legal
nexus between the complained of acts and their alleged monetary losses.
See Group Health Plan, Inc. v. Philip Morris Incorporated et al, 621 N.W.2d
2, 14 (Minn. 2001); LeSage v. Norwest Bank Calhoun-Isles N.A., 409
N.W.2d 536, 539 (Minn. Ct. App. 1987). Because the Joneses have failed to
demonstrate that their alleged damages were proximately caused by
Defendants conduct, Defendants motion for summary judgment on the
claims asserted pursuant to Minn. Stat. 325N should be granted. The
Court disagrees.
In this case, there are genuine issues of material fact as to whether
the Defendants conduct caused the Joneses damages. First, it is
undisputed that the Joneses lost their home, and any equity they had in the
home. Further, they assert they were not informed of the actual monthly
lease payment until after the closing, nor did they understand the true
nature of the transactions. M. Jones testified that he believes Banken
intended him to fail, by redoing the payments and putting them into a sale
instead of a service which I understand it to be. M. Jones Dep., p. 111.
With respect to the claimed violations of Minn. Stat. 325N. 11, .12
and .14, the Joneses note that these statutory provisions mandate that
foreclosure purchasers undertake certain obligations, whereas section
325N.17 prohibits certain conduct. As such, they argue that the same
causal link is not required. For example, under TILA, failure to provide the
debtor notice of the right to rescind entitles the borrower to rescind the
transaction. See eg., FDIC, 684 F. Supp. at 624; Hanlin v. Ohio Builders &
Remolders, Inc., 212 F. Supp.2d 752 (S.D. Ohio 2002). No further showing
of damages is required. The Joneses argue, and the Court agrees, that this
principle should apply to violations under Minn. Stat. 325N.11, .12. and
2Defendants argued that the TILA/HOEPA claims and the Minn. Stat. 325N claims are mutually
exclusive - that is the former covers credit transactions, such as mortgages, and the latter covers
only sales. The Court disagrees. An equitable mortgage, which would be governed by
TILA/HOEPA, may arise from a transaction that on its face is a sale, such as a sale/lease-back.
See eg. Hruby 2005 WL 1540130 at *3. Thus, claims under TILA/HOEPA and Section 325N are
not mutually exclusive.
The Joneses are not moving for summary judgment as to their
damages claim at this point. Rather, they seek summary judgment only as
to whether, as a matter of law, Defendants violated the relevant sections of
Minn. Stat. 325N. The Joneses intend to request a hearing on damages
at a later date. As discussed above, the Court will grant the Joneses in
3. Minnesota Prevention of Consumer Fraud Act
The Joneses have also asserted a claim pursuant to the Minnesota
Prevention of Consumer Fraud Act. This statute prohibits the use of a
fraudulent statement in connection with the sale of merchandise, which
includes real estate. Minn. Stat. 325F.69, Subd. 1. Defendants move for
summary judgment as to this claim.
A violation of sections 325N.10 to 325N.17 is considered to be a
violation of 325F.69. Minn. Stat. 325N.18, subd. 1. As this Court has
found Defendants have violated sections of Minn. Stat. 325N, Defendants
are not entitled to summary judgment as to this claim.
D. Central Bank Joinder of Defendants Banken, REES and REESMAXs
Motion for Summary Judgment.
REES-MAX obtained a mortgage on the Property through Central
Bank. The Joneses acknowledge that Central Bank is an indispensable party
with respect to the claims of rescission only. Because REES, REES-MAX and
Bankens motion for summary judgment will be denied, and the right to
rescission has not been extinguished, Central Banks motion will also be
denied at this time.
1. Plaintiffs Motion for Partial Summary Judgment [Doc. No. 43] is
GRANTED in part and DENIED in part. The motion is denied with respect
to the claimed violations of Minn. Stat. 325N.04(4) and .17(e), and
granted in all other respects.
2. Defendants Motion for Summary Judgment [Doc. No. 41] is
3. Defendant Central Banks Motion for Summary Judgment [Doc.
No. 54] is DENIED.
Date: September 17, 2007
s / Michael J. Davis
Michael J. Davis
United States District Court


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