Douglas Drews v. Federal National Mortgage Association. MN foreclosure, service of process
Douglas Drews was behind on his mortgage, and in 2010, the assignee of the mortgage, Everhome Mortgage Company, began foreclosure by advertisement. That procedure is governed by Minn. Stat. 580.03, which calls for service of the notice in a like manner as the summons in a civil action. After fifteen failed attempts, a process server from Metro Legal purportedly served the papers at Drews' home, and made an affidavit of service that he made service by "handing to and leaving with Douglas H. Drews" the papers. The sale then follows on December 16, 2010, and Everhome subsequently assigned its rights to FNMA.
About a year later, Drews filed a quiet-title action in Scott County, asserting that he had not been properly served. FNMA moved for summary judgment, and attached a more detailed affidavit from the process server. The process server detailed how he performed a "stakeout". When he saw an occupant inside, he made eye contact through an open window and asked the man to come to the door. He then vocalized that he would tape the documents to the front door of his house.
Drews responded with an affidavit pointing out his claim of the impossibility of one part of the process server's affidavit. The trial court denied FNMA's motion for summary judgment, and held a trial on the issue of whether the papers had been properly served. The process server testified, and Drews testified that he wasn't home that evening.
The trial court held that the process server's testimony was credible and plausible, and held that the foreclosure was proper. Drews then appealed to the Minnesota Court of Appeals.
The Court of Appeals noted that the foreclosure by advertisement statute must be strictly complied with. It affirmed the trial court, and noted that service cannot be avoided by physically refusing to accept the papers. When a party produces evidence of proper service, the burden shifts to the party challenging service to show by clear and convincing evidence that service was improper. Shifting the burden of production is not inconsistent with the strict-compliance standard of the foreclosure statute.
No. A13-1135 (Minn. Ct. App. July 21, 2014)
Please see the original opinion for the court's exact language.
Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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