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STATE OF MINNESOTA IN COURT OF APPEALS A09-796 Troy A. Molde, Appellant, vs. CitiMortgage, Inc., Respondent. Filed April 13, 2010 Affirmed Johnson, Judge Dakota County District Court File No. 19HA-CV-08-3120

Carl E. Christensen, Christensen Law Office PLLC, Minneapolis, Minnesota (for appellant) Christina M. Weber, Wilford & Geske, P.A., Woodbury, Minnesota (for respondent)

Considered and decided by Hudson, Presiding Judge; Connolly, Judge; and Johnson, Judge. SYLLABUS If an attorney conducting a foreclosure by advertisement pursuant to section 580.05 of the Minnesota Statutes is the attorney-in-fact of the mortgagee or an assignee of the mortgagee, the document establishing the powers of the attorney-in-fact must be recorded but need not be recorded in the tract index.

OPINION JOHNSON, Judge An attorney representing CitiMortgage, Inc., conducted a foreclosure by advertisement pursuant to section 580.05 of the Minnesota Statutes. The home

foreclosed upon was sold at a sheriffs auction. After the redemption period lapsed, the former owner of the home, Troy A. Molde, commenced this action to rescind the sale on the ground that the foreclosure documents did not satisfy the requirements of section 580.05. The district court entered summary judgment in favor of CitiMortgage. Moldes primary argument on appeal is that the document evidencing the authority of CitiMortgages attorney to act on behalf of CitiMortgage was not recorded in the tract index. We affirm. FACTS In September 2006, Molde borrowed $343,000 from Winstar Mortgage Partners, Inc. To secure the loan, Molde granted Mortgage Electronic Registration Systems, Inc. (MERS), a mortgage interest in his Lakeville residence. The mortgage was recorded in Dakota County in October 2006. Molde later fell behind in his mortgage payments. In November 2007, MERS assigned the mortgage to CitiMortgage. The assignment was recorded in Dakota County on November 13, 2007. That same day, a document entitled Notice of Pendency of Proceeding and Power of Attorney to Foreclose Mortgage also was recorded in Dakota County. The Notice of Pendency of Proceeding and Power of Attorney to Foreclose Mortgage described CitiMortgages intent to foreclose Moldes mortgage by 2

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The Notice of Pendency of Proceeding and Power of Attorney to

Foreclose Mortgage was executed by James A. Geske, Esq., on November 9, 2007. Above the signature line is the notation, "Wilford & Geske, P.A. as Attorney in Fact for CitiMortgage, Inc." Wilford & Geskes authority to foreclose Moldes mortgage on behalf of CitiMortgage derives not from the document that was recorded in November 2007 but from another document, which was executed and recorded in February 2004. On January 8, 2004, Pamela Schmidt, a vice-president of CitiMortgage, executed a document entitled Limited Power of Attorney. In the Limited Power of Attorney, CitiMortgage appointed the Wilford & Geske law firm to be "its true and lawful Attorney" for purposes of executing foreclosure documents on behalf of CitiMortgage. The Limited Power of Attorney was recorded in Dakota County on February 17, 2004. In January 2008, CitiMortgage was the highest bidder at the foreclosure sale of Moldes house and, accordingly, purchased the house for $358,839. The Sheriffs

Certificate of Sale and Foreclosure Record was promptly recorded in Dakota County. The redemption period lapsed in early July 2008. See Minn. Stat.

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Minnesota Law