MN TRO | The Examiner ordered an eviction stopped because we provided evidence that the foreclosure was void and that the petitioner, Freddie Mac, lacked legal capacity to obtain possession of the home


MN TRO | The Examiner ordered an eviction stopped because we provided evidence that the foreclosure was void and that the petitioner, Freddie Mac, lacked legal capacity to obtain possession of the home

MN TRO | The Examiner ordered an eviction stopped because we provided evidence that the foreclosure was void and that the petitioner, Freddie Mac, lacked legal capacity to obtain possession of the home


In the Matter of the Petition of
Federal Home Loan Mortgage Corporation
for a New Certificatercate of Title After
Mortgage Foreclosure Sale


The above-entitled matter came on for hearing by telephone conference call on May 15,
2014 on Petitioner’s Motion for a Temporary Restraining Order to prevent Petitioner from being
evicted under a Writ of Restitution issued by Judge Marek in Housing Court File 62-HG-CV-14-
483. The hearing was held by Wayne D. Anderson, Examiner of Titles, sitting as Referee of
District Court. William Butler appeared for movant, Jeffrey C. Jacobsen. Stephanie Nelson
appeared for Petitioner, Federal Home Loan Mortgage Corporation. There were no other

Upon the written pleadings and argument of counsel, Petitioner’s Motion for Temporary
Restarining Order is GRANTED, effective immediately. The Sheriff SHALL NOT remove
persons from the property under the authority of the Writ of Execution until further Order of this

The following Memorandum of Law is incorporated herein.

1. A Writ of Restitution was issued in Housing Court File 62-HG-CV-14-483. The Sheriff
is scheduled to execute the Writ by physically removing Petitioner from the Property on
Friday, May 16, 2014.

2. The basis for the Housing Court Writ of Restitution is a Sheriff s Certificate evidencing
the sale of the property following mortgage foreclosure, recorded as Doc. No. 2199665.

3. A Sheriff s Certificate is primafacie evidence that the foreclosure was valid and, upon
expiration of the redemption period, that all ownership rights belong to the foreclosing
party, including the right of possession. Minn. Stat. 580.19.

4. The Housing Court does not determine the validity of the foreclosure or the effectiveness
of the Sheriff s Certificate to convey rights to the lender. Those issues must be
challenged by a separate action, which Petitioner has brought in this instant action.
Amresco Residential Mortgage Corp. v. Stange,631N.W.2d444 (Minn. App.200l).

5. Until the validity of the foreclosure is adjudicated, this Court cannot state with certainty
what rights in the property – if any – are held by the lender, so the lender cannot assert
that it alone holds the right of possession required to evict the borrower from the

6. Petitioner seeks a Temporary Restraining Order preventing the enforcement of the Writ
of Restitution. The Court must consider five factors as articulatedin Dahlberg Bros. v.
FordMotor Co.,137N.W.2d314 (Minn. 1965), indeterminingwhetherthetemporary
restraining order should issue. The Dahlberg factors to be considered are as follows:

a. The nature and background of the relationship between the parties pre-existing
the dispute giving rise to the request for relief.
b. The harm to be suffered by plaintiff if the temporary restraint is denied as
compared to that inflicted on defendant if the injunction issues pending trial.
c. The likelihood that one party or the other will prevail on the merits when the
fact situation is viewed in the light of established precedent fixing the limits of
equitable relief.
d. The aspects of the fact situation, if any, that permit or require consideration of
public policy expressed in the statutes, state and federal.
e. The administrative burdens involved injudicial supervision and enforcement
of the temporary decree.

7. The Court finds that the relationship of the parties is lender-borrower which doesn’t favor
either party. The harm to be suffered by lender is short-term lost opportunity to sell; the
harm to be suffered by borrower is to be rendered homeless, perhaps wrongfully, which
factor favors the borrower. The likelihood of prevailing on the merits cannot be
determined yet because final written submissions regarding a motion for Summary
Judgment, heard on May 14,2014 have not been received and reviewed, and essential
legal questions have not been briefed or argued, which favors issuing the injunction to
freeze the situation in place. Minnesota has a strong public policy of enabling people to
stay in their homes, as expressed in numerous consumer protection statutes and programs,
which favors the borrower; a speedy and final resolution of this issue slightly favors the
62-CV-13-7742 lender. The administrative burden of a short-term injunction will be slight, which favors
neither party.

8. No bond is required, but Mr. Jacobsen is required to provide an initial deposit of
$1,500.00 and monthly payments to cover ongoing carrying costs in the amount of
$800.00, to be deposited with the District Court. The initial deposit and first monthly
payment is due by 4:30 p.m. on Friday May 23,2014. Succeeding monthly payments are
due by 4:30 p.m. Jwrc23,July 23,August 25, September23,2ol4,and on the 23’d of
each month thereafter (or the first day following the 23’d that is not a Saturday, Sunday or
legal holiday.) If payments are not made as ordered, the injunction will be dissolved.
The foregoing facts were found by me after due hearing and entry of this Order is recommended.

Dated: 5-16-14


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