Fiecke-Stifter v. MidCountry Bank

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Sandra K. Fiecke-Stifter and The Estate of    File No. 22-cv-3056 (ECT/DTS) 
Doris M. Fasching, by and through Personal                                
Representative Sandra Fiecke-Stifter,                                     

     Plaintiffs,                                                     
                                    OPINION AND ORDER                
v.                                                                        

Taft Stettinius & Hollister LLP,                                          

     Defendant.                                                      
________________________________________________________________________  
Carl E. Christensen and Christopher Wilcox, Christensen Sampsel PLLC, Minneapolis, 
MN, and Thomas J. Lyons Jr., Consumer Justice Center P.A., Vadnais Heights, MN, for 
Plaintiffs Sandra K. Fiecke-Stifter and The Estate of Doris M. Fasching.   
Jason R. Asmus, Justin P. Weinberg, and Schaan Barth, Taft Stettinius & Hollister LLP, 
Minneapolis, MN, for Defendant Taft Stettinius & Hollister LLP.           
________________________________________________________________________  
Plaintiff Sandra K. Fiecke-Stifter alleges that Defendant Taft Stettinius & Hollister 
violated the Fair Debt Collection Practices Act by foreclosing on a home that had been 
owned by Sandra’s late mother, Doris M. Fasching.  MidCountry Bank was the lender, 
note holder, and mortgagee.  Taft represented MidCountry in the nonjudicial foreclosure 
proceedings.    Sandra  alleges  that  MidCountry  foreclosed  without  a  present  right  to 
possession in violation of § 1692f(6)(A) of the FDCPA.                    
Taft moves to dismiss, and the motion will be granted.  Under the mortgage’s terms, 
there was a default because Sandra made late payments on the note.  Sandra’s various 
arguments for why MidCountry lacked a present right to possession despite this default are 
not persuasive.  MidCountry was not required to give a notice of default before foreclosing 
under the terms of the mortgage.  Nor was it required to accelerate the loan.  Although 
Sandra may have had a right to cure (until MidCountry exercised its right to accelerate the 

note),  this  is  beside  the  point,  because  she  never  completely  cured  the  default  after 
MidCountry  commenced  the  foreclosure.    And  although  a  violation  of  Minnesota 
foreclosure-by-advertisement statutes may have rendered the foreclosure void, a void 
foreclosure does not mean MidCountry lacked a present right to possession.   
                           I1                                        

The Corrected Second Amended Complaint doesn’t change Sandra’s core factual 
allegations.  To recap, Doris owned a home in Hutchinson, Minnesota.  ECF No. 52 ¶¶ 17, 
21.  She and her husband took out a line of credit from MidCountry, secured against the 
home.  Id. ¶ 19.  When Doris died in September 2021, predeceased by her husband, she 
was current on all payments.  Id. ¶¶ 11–12, 23.  Sandra continued to reside in the home 

after Doris’s death and made payments on the loan.  Id. ¶¶ 24–25.  On February 1, 2022, 
MidCountry initiated a foreclosure-by-advertisement proceeding.  Id. ¶ 72.  MidCountry 
appointed Taft as its attorney to foreclose on the property.  Id. ¶ 75.  The property was sold 

1    The facts are drawn from the Corrected Second Amended Complaint and taken as 
true.  The original note and mortgage and subsequent amendments are also considered 
because they are embraced by the pleadings.  See Zean v. Fairview Health Servs., 

 (8th Cir. 2017).  Although Sandra’s breach-of-contract claim has been dismissed, 
these documents are central to Sandra’s FDCPA claim because her claim rests on the 
premise that MidCountry lacked a present right to possession when it foreclosed on the 
property.  See, e.g., ECF No. 52 ¶¶ 46–49 (describing § 9’s notice-of-default requirement).  
And she does not contest the authenticity of these documents.  It is unnecessary to decide 
which  loan  statements  and  other  corporate  records  generated  by  MidCountry  are 
appropriate to consider because none are needed to decide this motion.    
at a sheriff’s auction on April 7, 2022.  Id. ¶ 88.  Sandra later redeemed the property.  Id. ¶ 
91.                                                                       
Sandra’s new allegations fill in details from late 2021 through early 2022.  In 

November 2021, Sandra “received a loan statement from MidCountry Bank stating that a 
payment was due on December 26, 2021, in the amount of $1,640.62.”  ECF No. 52 ¶ 52.  
She paid $562.35 on December 6 and $1,640.62 on December 29.  Id. ¶ 53.  In December, 
Sandra received a loan statement stating that a payment was due January 26, 2022, in the 
amount of $533.92.  Id. ¶ 56.  In January, Sandra received a loan statement stating that a 

payment was due February 26 in the amount of $1,619.59, which included the past-due 
amount of $533.92.  Id. ¶ 57.  “It also included an improper force placed insurance premium 
of $557.86.”  Id. ¶ 58.  Sandra received two past-due notices in February.  Id. ¶ 60.  Sandra 
paid $1,067.84 on February 22.  Id. ¶ 61.  That same month, Sandra received a loan 
statement stating that a payment was due March 26, 2022, in the amount of $1,079.41.  Id. 

¶ 62.                                                                     
MidCountry returns Sandra’s late payments.  On March 24, 2022, weeks after 
MidCountry initiated foreclosure by advertisement, MidCountry refunded $2,708.46 in 
payments.  ECF No. 52 ¶ 63.  That same day, MidCountry sent a past-due notice stating 
that a payment was due for $2,778.45.  Id. ¶ 65.  Sandra alleges that “any default that 

occurred was of MidCountry Bank’s creation by the return of the payments.”  Id. ¶ 71.   
MidCountry fails to provide a payoff amount.  In March 2022, Sandra’s “probate 
attorney contacted MidCountry Bank through counsel and requested a payoff for the loan.”  
ECF No. 52 ¶ 81.  A Taft attorney responded by email on March 31, acknowledging the 
request and indicating he would provide a payoff amount.  Id. ¶ 82.  Sandra sent a follow-
up letter stating her concerns with the impending foreclosure and representing she had the 
financial resources to pay off the loan.  Id. ¶ 83.  MidCountry and Taft never responded to 

Sandra’s request for a payoff amount.  Id. ¶ 84.                          
Procedural posture.  In December 2022, Sandra brought this case as a prospective 
class action against MidCountry and Taft.  ECF No. 1.  After filing an Amended Complaint, 
ECF No. 31, Sandra’s claims against MidCountry were dismissed without prejudice.  
Fiecke-Stifter v. MidCountry Bank, No. 22-cv-3056 (ECT/DTS), 

, at *8 

(D. Minn. Sept. 11, 2023).  Sandra moved to amend, seeking to revive her claims against 
MidCountry and bolster her FDCPA claim against Taft.  ECF No. 38.  Magistrate Judge 
Schultz denied Sandra’s request to revive her claims against MidCountry but allowed 
Sandra to amend her FDCPA claim against Taft.  ECF No. 50.  In the operative Corrected 
Second Amended Complaint, Sandra claims Taft violated §§ 1692f(6)(A) and (C) of the 

FDCPA because MidCountry lacked a present right to possession when Taft foreclosed on 
the home (on MidCountry’s behalf).  ECF No. 52 ¶¶ 167–205.                
                           II                                        
                           A                                         
Under the familiar Rule 12(b)(6) standard, a court must accept as true all the factual 

allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor.  
Gorog v. Best Buy Co., 

 (8th Cir. 2014) (citation omitted).  Although the 
factual allegations need not be detailed, they must be sufficient to “raise a right to relief 
above the speculative level.”  Bell Atl. Corp. v. Twombly, 

 (2007) 
(citation omitted).  The complaint must “state a claim to relief that is plausible on its face.”  

.  “A claim has facial plausibility when the plaintiff pleads factual content that 
allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.”  Aschcroft v. Iqbal, 

 (2009).       
                           B                                         
Section 1692f(6) prohibits a debt collector from using “unfair or unconscionable 
means to collect or attempt to collect any debt” by:                      
     Taking or threatening to take any nonjudicial action to effect  
     dispossession or disablement of property if—                    

     (A) there is no present right to possession of the property     
     claimed as collateral through an enforceable security interest; 
     [or]                                                            

     . . .                                                           

     (C) the property is exempt by law from such dispossession or    
     disablement.                                                    

15 U.S.C. § 1692f(6).2                                                    
A brief primer on mortgages helps explain how nonjudicial foreclosures fit into 
§ 1692f(6).  “A mortgage is given to secure the repayment of an underlying debt.”  4 Powell 
on Real Property § 37.12 (2024).  Framed in § 1692f(6)(A)’s terms, a mortgage is a security 

2    Despite alleging a violation of § 1692f(6)(C), see ECF No. 52 ¶ 194, Sandra 
concedes in her response brief that she “does not know of any basis to claim that her home 
would be exempt under this section.”  Pls.’ Mem. in Opp’n [ECF No. 63] at 18 n.3.  Any 
claim  under  §  1692f(6)(C)  has  therefore  been  waived.    See  Doe  v.  Mayorkas,  No. 
22-cv-752 (ECT/DTS), 

, at *2 (D. Minn. Sept. 23, 2022) (citing Espey 
v. Nationstar Mortg., LLC, No. 13-cv-2979 (ADM/JSM), 

, at *11 (D. 
Minn. June 19, 2014)).                                                    
interest that secures repayment of an obligation by placing a lien against real property (the 
property claimed as collateral).  See 

  “The most important feature of the mortgage 
relationship is the power of the mortgagee to force the sale of the mortgaged land.”  4 

Powell on Real Property § 37.36 (2024).  This right to foreclose, i.e. to force a sale, is 
generally defined by the terms and conditions of the mortgage.  See, e.g., ECF No. 9-2 § 9.  
Again, put in the statute’s terms, foreclosure dispossesses the mortgagor of the property.  
Although foreclosures may be judicial or nonjudicial, see 4 Powell on Real Property § 
37.36  (2024),  only  nonjudicial  foreclosures  fall  within  the  scope  of  § 1692f(6).  

Nonjudicial foreclosures are created and defined by statute.  Jackson v. Mortg. Elec. 
Registration  Sys.,  Inc.,  

  (Minn.  2009)  (“[F]oreclosure  by 
advertisement is a purely statutory creation.”).    Such  statutes  define  requisites  for  a 
mortgagee to initiate a nonjudicial foreclosure and procedures the mortgagee is required to 
follow.  See Minn. Stat. Ch. 580.                                         

The fighting issue here is whether MidCountry had a “present right to possession” 
when it foreclosed the property.  Because the FDCPA does not define this phrase, courts 
“look to state law requirements to determine whether there was a present right to possession 
under the FDCPA.”  Hansen v. Santander Bank, 

, 686 (D. Minn. 2023) 
(quoting  Revering  v.  Norwest  Bank  Minn.,  No.  99-cv-480  (RHK/JMM),  

, at *5 (D. Minn. Nov. 30, 1999)).  Sandra offers two theories to explain why 
MidCountry lacked a present right to possession under Minnesota law: (1) Sandra was not 
in default on the note; and (2) MidCountry violated 

, a Minnesota 
foreclosure-by-advertisement statute.  Take each in turn.                 
                           C                                         
                           1                                         
Courts agree that until a mortgagor has defaulted, mortgagees lack a present right 

to possession.  See, e.g., James v. Nationstar Mortg., LLC, 

 (S.D. 
Ala. 2015) (“[T]he Loan was not in default when Nationstar threatened foreclosure.”); 
Thomas v. Ocwen Loan Servicing, No. C17-1222RSM, 

, at *5 (W.D. 
Wash. July 26, 2018).  This makes sense; until a mortgagor defaults, the mortgagee has no 
right to foreclose, and until a mortgagee has a right to foreclose, the mortgagee lacks a 

present right to possession.                                              
A default is defined by the terms of the mortgage.  Here, the mortgagor “will be in 
default if . . . [a]ny party obligated on the Secured Debt fails to make a payment when due.”  
ECF No. 9-2 § 8.  Sandra alleges that she was not in default.  See ECF No. 52 ¶ 95 
(“[D]efendants manipulated the loan accounting to reflect that she was in default when she 

was not in default”); ¶ 118 (“[Defendant] foreclosed her property even thought [sic] she 
was not in default.”); ¶ 174 (“[Sandra] made all of her payments up to and including the 
February 2022 mortgage payment.”).  But Sandra’s own allegations plainly show that she 
failed to make payments when payments were due.  See ECF No. 52 ¶¶ 52–65.  Therefore, 
she was in default as defined by the terms of the mortgage.  And her conclusory allegations 

to the contrary are not plausible.                                        
Sandra does not dispute this basic reading of the Corrected Second Amended 
Complaint—that she made late payments.  See, e.g., Pls.’ Mem. in Opp’n at 1.  But she 
contends  that  MidCountry  lacked  the  right  to  foreclose,  and  thus  a  present  right  to 
possession, despite these late payments.                                  
Sandra first argues that § 9 of the mortgage required MidCountry to provide a 

written notice of default before foreclosing.  Pls.’ Mem. in Opp’n at 8–10.  This is a 
question of contract interpretation.  “[T]he primary goal of contract interpretation is to 
determine and enforce the intent of the parties.”  Motorsports Racing Plus, Inc. v. Arctic 
Cat  Sales,  Inc.,  

  (Minn.  2003).    When  contract  language  is 
unambiguous, the “language must be given its plain and ordinary meaning.”  Minneapolis 

Pub. Hous. Auth. v. Lor, 

 (Minn. 1999) (footnotes omitted).  Section 
9 requires the mortgagee to provide a notice of default before foreclosure “[i]f this is a 
conventional loan under 

.”  ECF No. 9-2 § 9.  The statute defines a 
“conventional loan” in relevant part as:                                  
     a loan or advance of credit, other than a loan or advance of    
     credit made by a credit union or made pursuant to section       
     334.011, to a noncorporate borrower in an original principal    
     amount of less than $100,000, secured by a mortgage upon real   
     property . . . and which is not made pursuant to the authority  
     granted in subdivision 1, clause (3) or (4).                    

 subdiv. 2(3).  Subdivision 1(4) provides in relevant part: 
     [B]anks, savings banks, and savings associations organized      
     under  the  laws  of  this  state  or  the  United  States  .  .  .  are 
     authorized . . . (4) to make, purchase or participate in such loans 
     and advances of credit secured by mortgages on real property    
     which  are  authorized  or  allowed  by  the  Office  of  Thrift 
     Supervision or the Office of the Comptroller of the Currency,   
     or any successor to these federal agencies.                     

 subdiv. 1(4).  As Magistrate Judge Schultz explained when denying 
Sandra’s motion to amend, “the mortgage at issue here was made pursuant to the authority 
granted in 

 subd. 1(4); as such, it is not a ‘conventional loan,’ and the 

notice requirements in paragraph 9 of the mortgage do not apply.”  ECF No. 50 at 13.   
Sandra does not dispute that the at-issue mortgage and note were issued under the 
authority described in 

 subdiv. 1(4).  See Pls.’ Mem. in Opp’n at 8–10.  
Rather, she argues that “[t]he way to harmonize the language in paragraph 9 with the tenets 
of contract interpretation is to conclude that the mortgage’s intended definition . . . is 

enlarging substantive protections for [MidCountry’s] loan products.”  Id. at 9.  Because the 
note was made to a noncorporate borrower in an original principal amount of less than 
$100,000, Sandra argues that the note is the type of conventional loan to which the notice-
of-default requirement applies.  Id.                                      
Sandra’s interpretation of the mortgage is inconsistent with the plain language of 

§ 9.  The mortgage states that notice is required only “[i]f this is a conventional loan under 

.”  ECF No. 9-2 ¶ 9.  The only way to determine if the note “is a 
conventional  loan  under  

.20”  is  to  determine  if  it  fits  the  statutory 
definition.    

.20’s  definition  of  a  conventional  loan  includes  several 
carve-outs.  See 

 subdiv. 2(3) (“[O]ther than a loan or advance of credit 

made by a credit union or made pursuant to section 334.011. . . [w]hich is not insured or 
guaranteed by the secretary of housing and urban development, by the administrator of 
veterans affairs, or by the administrator of the Farmers Home Administration. . . which is 
not made pursuant to the authority granted in subdivision 1, clause (3) or (4).”).  There is 
no textual basis or context clue to justify excluding any of these carve-outs from the 
definition incorporated by the mortgage.  And Judge Schultz’s interpretation makes sense 
within the context of § 47.20’s statutory scheme.  Section 47.20 requires “[a] lender making 

a conventional loan . . . [to include] a provision whereby the lender, if it intends to 
foreclose, agrees to give the borrower written notice of any default.”  

 
subdiv. 8.  It is not surprising that MidCountry would include protections for mortgagors 
to the extent required by Minnesota law.                                  
Sandra’s second default argument proceeds in several steps: for MidCountry to 

exercise its right to accelerate the loan, it needed to provide clear notice, Pls.’ Mem. in 
Opp’n at 11; until MidCountry accelerated the loan, Sandra had a right to cure any default 
“absent a notice that it would strictly comply with the contract,” id. at 12; because Sandra 
had a right to cure any default, MidCountry “could not disaffirm acceptance of her late 
payments as a cure,” id.; and but for MidCountry’s impermissible return of her late 

payments, the default would have been cured, leaving MidCountry without a present right 
to possession.3                                                           
As support for this argument, Sandra relies on Cobb v. Midwest Recovery Bureau 
Co., 

 (Minn. 1980), for the proposition that MidCountry was required to 
give notice before requiring strict compliance with the terms of the mortgage and note.  See 


3    Relatedly,  Sandra  suggests  that  a  notice  of  acceleration  is  a  prerequisite  to 
foreclosure.  But the mortgage did not require MidCountry to accelerate the note before 
foreclosing the property.  See ECF No. 9-2 § 9 (“Upon default, Lender shall have the right, 
without declaring the whole indebtedness due and payable, to foreclose against all or any 
part of the Property.”).                                                  
Pls.’  Mem.  in  Opp’n  at  13.    But  Cobb’s  notice  requirement  applies  to  a  creditor’s 
repossession  of  collateral  under  Minnesota’s  Uniform  Commercial  Code.    See,  e.g., 
McNeill v. Dakota Cnty. State Bank, 

, 384–85 (Minn. Ct. App. 1994) 

(applying  Cobb).    Even  assuming  that  Cobb  (or  similar  legal  principles)  applied  to 
mortgages, it wouldn’t change anything here.  Cobb involved “the repeated acceptance of 
late payments” inducing reliance by a debtor.  Cobb, 295 N.W.2d at 236–37.  There, a 
plaintiff made twenty late payments in a row, never making an on-time payment after 
executing an extension agreement.  By contrast, Sandra alleges that MidCountry accepted 

one late payment (for December) before commencing a foreclosure on February 1 after no 
payment was made in January.  ECF No. 52 ¶¶ 52–54, 56–61, 72.  One late payment cannot 
plausibly be read as similar to a creditor repeatedly accepting late payments.  Therefore, 
Cobb and other unidentified but related estoppel-based principles do not apply to this case.   
If MidCountry was required to accept past-due payments until it exercised its right 

to accelerate the note,4 Sandra does not plausibly allege she ever cured the default.  
MidCountry initiated nonjudicial foreclosure before Sandra made her January payment.  
See ECF No. 52 ¶¶ 56–57, 72.  Sandra alleges that she owed $1,118.47 in February 2022 
but only paid $1,067.84.  

 ¶¶ 60–61.  In other words, assuming MidCountry was required 
to accept Sandra’s late December and February payments, the default was never completely 


4    Some authority supports this proposition.  See Deutsche Bank Nat’l Tr. Co. on 
behalf of Bosco Credit II Tr. Series 2010-1 v. Johnson, No. A16-1315, 

, 
at *5 (Minn. Ct. App. Apr. 3, 2017) (“Until the obligee exercises its rights under the 
acceleration clause, the obligor has the right to remedy the default by tendering payment 
of the amount due.”).                                                     
cured, and therefore MidCountry never lost its present right to possession under Sandra’s 
cure theory.                                                              
                           2                                         

Sandra’s statutory-violation theory proceeds in three steps.  First, Sandra alleges 
that MidCountry violated § 580.30, one of Minnesota’s foreclosure-by-advertisement 
statutes.  Pls.’ Mem. in Opp’n at 18, 22–27.  Second, Sandra argues that this violation of 
§ 580.30 renders the foreclosure void.  Id. at 18, 25.  Third, she contends that “[i]f the 
foreclosure  is  void,  there  was  no  legal  entitlement  to  foreclose  or  present  right  of 

possession.”  Id. at 19.                                                  

 subdiv. 1 states, “[t]he holder of a mortgage shall inform the 
mortgagor of the amount necessary to reinstate the mortgage within three days of receipt 
of a request for a reinstatement amount from the mortgagor.”  Sandra plausibly alleges that 
MidCountry violated § 580.30 by failing to inform her about the amount necessary to 

reinstate the mortgage within three days of receiving a request.  See ECF No. 52 ¶¶ 81–84.  
And although the Minnesota Supreme Court has never held that a violation of § 580.30 
would void a nonjudicial foreclosure, that is a fair prediction of how the Minnesota 
Supreme Court would rule if faced with the same issue.  Jackson, 

 (“If 
the foreclosing party fails to strictly comply with the statutory requirements, the foreclosure 

proceeding is void.”); Hunter v. Anchor Bank, N.A., 

 (Minn. Ct. App. 
2013) (“The Jackson opinion suggests that strict compliance is required for all statutes 
within chapter 580, not just for section 580.02.”); Drews v. Fed. Nat’l Mortg. Ass’n, 

 (Minn. Ct. App. 2014) (“Absent strict compliance with the foreclosure 
statute, the foreclosure proceeding is void.”).  Taft does not seem to dispute Sandra’s first 
two points.  See Def.’s Reply Mem. [ECF No. 66] at 12.                    
The debate surrounds Sandra’s third contention—that if the foreclosure is void, 

MidCountry lacked a present right to possession.  Sandra identifies no authority to support 
this proposition.  Most cases applying § 1692f(6)(A) to nonjudicial foreclosures consider 
whether the contractual or statutory prerequisites to initiate foreclosure are met.  See Patton 
v. Am. Home Mortg. Servicing, Inc., No. 1:11CV420-HSO-RHW, 

, at 
*5 (S.D. Miss. Mar. 28, 2013) (“The Trust had a ‘present right to possession of the 

[P]roperty’ because it owned the Deed of Trust and Note at the time of Plaintiff's default.”); 
Dowers v. Nationstar Mortg., LLC, 

 (9th Cir. 2017) (“Plaintiffs alleged 
that Nationstar threatened to take non-judicial action to dispossess Plaintiffs of their home 
without a legal ability to do so.  Such conduct is exactly what Section 1692f(6) protects 
borrowers against.”); Lowenstern v. Residential Credit Sols., C.A. No. 11-11760-MLW, 

, at *6 (D. Mass. Feb. 25, 2013) (“[A] plaintiff must allege that defendant 
initiated foreclosure proceedings without the requisite possessory interest under state 
foreclosure law.”); cf. Ruffner v. Quality Loan Serv. Corp. of Wash., No. 3:19-cv-01824-
HZ, 

, at *5 (D. Or. Apr. 12, 2021) (question of material fact whether 
mortgagee possessed the note when initiating a nonjudicial foreclosure).   

Some cases have held (or discussed in dicta) that a mortgagee lacks a present right 
to possession if the mortgagee violates a state foreclosure statute’s notice requirement.  
Manson v. GMAC Mortg., LLC, 

 (D. Mass. 2012) (“General Laws ch. 
244, § 14, is conclusive on the issue: if a violation of the statute occurred then the law firm 
defendant in question had no present right to possession, and the FDCPA protections are 
triggered.”); Barber v. L. Offs. of Thomas J. Burbank, No. 1:21-CV-539-MJT-CLS, 

, at *5 (E.D. Tex. June 1, 2023), R. & R. adopted,  

 (E.D. 

Tex. June 29, 2023) (“Either of Plaintiffs’ two contentions, if true, could mean that 
Defendants did not have a present right to foreclose on their home (as Plaintiffs were either 
not in default or Defendants did not send proper notice of the foreclosure sale), in violation 
of section 1692f(6)(A) of the FDCPA.”); Shaw v. Bank of Am., NA, No. 10-CV-11021, 

, at *4 (D. Mass. Jan. 15, 2015) (“[O]nce Shaw defaulted and BOA 

provided statutory notice pursuant to Mass. Gen. L. c. 244, § 14, BOA had a right to 
foreclose.  Because BOA had the right to possess the Property in which it held a security 
interest,  BOA  did  not  violate  the  FDCPA.”);  Hill  v.  Nationstar  Mortg.  LLC,  No. 
3:22CV108 (DJN), 

, at *6 (E.D. Va. Nov. 15, 2022) (holding that a 
mortgagee could premise her § 1692f(6)(A) claim on mortgagor’s alleged failure to comply 

with Virginia Code § 55.1-321, a state foreclosure statute notice requirement).  The Court’s 
independent  research  has  identified  no  case  discussing  a  violation  of  §  1692f(6)(A) 
predicated on an underlying violation of a non-notice state foreclosure statute or equating 
a void foreclosure with the absence of a present right to possession.     
Given the dearth of authority supporting Sandra’s theory, the better answer is that a 

present right to possession refers to prerequisites, such as 

 and the right 
to a power of sale under the note and mortgage, rather than compliance with other 
foreclosure-by-advertisement statutory procedures.  If Sandra is correct, then almost every 
violation  of  Minnesota’s  nonjudicial  foreclosure  statutes  would  be  a  violation  of 
§ 1692f(6)(A).  That seems like a remarkable conclusion unsupported by case law in this 
District and elsewhere.  And if Congress wanted to make violations of states’ nonjudicial 
foreclosure statutes violations of the FDCPA, it could have expressly done so. 

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Defendant Taft Stettinius & Hollister LLP’s Motion to Dismiss [ECF No. 
53] is GRANTED.                                                           

2.   The Corrected Second Amended Complaint is DISMISSED with prejudice.    
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated:  October 11, 2024           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court           

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Sandra K. Fiecke-Stifter and The Estate of    File No. 22-cv-3056 (ECT/DTS) 
Doris M. Fasching, by and through Personal                                
Representative Sandra Fiecke-Stifter,                                     

     Plaintiffs,                                                     
                                    OPINION AND ORDER                
v.                                                                        

Taft Stettinius & Hollister LLP,                                          

     Defendant.                                                      
________________________________________________________________________  
Carl E. Christensen and Christopher Wilcox, Christensen Sampsel PLLC, Minneapolis, 
MN, and Thomas J. Lyons Jr., Consumer Justice Center P.A., Vadnais Heights, MN, for 
Plaintiffs Sandra K. Fiecke-Stifter and The Estate of Doris M. Fasching.   
Jason R. Asmus, Justin P. Weinberg, and Schaan Barth, Taft Stettinius & Hollister LLP, 
Minneapolis, MN, for Defendant Taft Stettinius & Hollister LLP.           
________________________________________________________________________  
Plaintiff Sandra K. Fiecke-Stifter alleges that Defendant Taft Stettinius & Hollister 
violated the Fair Debt Collection Practices Act by foreclosing on a home that had been 
owned by Sandra’s late mother, Doris M. Fasching.  MidCountry Bank was the lender, 
note holder, and mortgagee.  Taft represented MidCountry in the nonjudicial foreclosure 
proceedings.    Sandra  alleges  that  MidCountry  foreclosed  without  a  present  right  to 
possession in violation of § 1692f(6)(A) of the FDCPA.                    
Taft moves to dismiss, and the motion will be granted.  Under the mortgage’s terms, 
there was a default because Sandra made late payments on the note.  Sandra’s various 
arguments for why MidCountry lacked a present right to possession despite this default are 
not persuasive.  MidCountry was not required to give a notice of default before foreclosing 
under the terms of the mortgage.  Nor was it required to accelerate the loan.  Although 
Sandra may have had a right to cure (until MidCountry exercised its right to accelerate the 

note),  this  is  beside  the  point,  because  she  never  completely  cured  the  default  after 
MidCountry  commenced  the  foreclosure.    And  although  a  violation  of  Minnesota 
foreclosure-by-advertisement statutes may have rendered the foreclosure void, a void 
foreclosure does not mean MidCountry lacked a present right to possession.   
                           I1                                        

The Corrected Second Amended Complaint doesn’t change Sandra’s core factual 
allegations.  To recap, Doris owned a home in Hutchinson, Minnesota.  ECF No. 52 ¶¶ 17, 
21.  She and her husband took out a line of credit from MidCountry, secured against the 
home.  Id. ¶ 19.  When Doris died in September 2021, predeceased by her husband, she 
was current on all payments.  Id. ¶¶ 11–12, 23.  Sandra continued to reside in the home 

after Doris’s death and made payments on the loan.  Id. ¶¶ 24–25.  On February 1, 2022, 
MidCountry initiated a foreclosure-by-advertisement proceeding.  Id. ¶ 72.  MidCountry 
appointed Taft as its attorney to foreclose on the property.  Id. ¶ 75.  The property was sold 

1    The facts are drawn from the Corrected Second Amended Complaint and taken as 
true.  The original note and mortgage and subsequent amendments are also considered 
because they are embraced by the pleadings.  See Zean v. Fairview Health Servs., 

 (8th Cir. 2017).  Although Sandra’s breach-of-contract claim has been dismissed, 
these documents are central to Sandra’s FDCPA claim because her claim rests on the 
premise that MidCountry lacked a present right to possession when it foreclosed on the 
property.  See, e.g., ECF No. 52 ¶¶ 46–49 (describing § 9’s notice-of-default requirement).  
And she does not contest the authenticity of these documents.  It is unnecessary to decide 
which  loan  statements  and  other  corporate  records  generated  by  MidCountry  are 
appropriate to consider because none are needed to decide this motion.    
at a sheriff’s auction on April 7, 2022.  Id. ¶ 88.  Sandra later redeemed the property.  Id. ¶ 
91.                                                                       
Sandra’s new allegations fill in details from late 2021 through early 2022.  In 

November 2021, Sandra “received a loan statement from MidCountry Bank stating that a 
payment was due on December 26, 2021, in the amount of $1,640.62.”  ECF No. 52 ¶ 52.  
She paid $562.35 on December 6 and $1,640.62 on December 29.  Id. ¶ 53.  In December, 
Sandra received a loan statement stating that a payment was due January 26, 2022, in the 
amount of $533.92.  Id. ¶ 56.  In January, Sandra received a loan statement stating that a 

payment was due February 26 in the amount of $1,619.59, which included the past-due 
amount of $533.92.  Id. ¶ 57.  “It also included an improper force placed insurance premium 
of $557.86.”  Id. ¶ 58.  Sandra received two past-due notices in February.  Id. ¶ 60.  Sandra 
paid $1,067.84 on February 22.  Id. ¶ 61.  That same month, Sandra received a loan 
statement stating that a payment was due March 26, 2022, in the amount of $1,079.41.  Id. 

¶ 62.                                                                     
MidCountry returns Sandra’s late payments.  On March 24, 2022, weeks after 
MidCountry initiated foreclosure by advertisement, MidCountry refunded $2,708.46 in 
payments.  ECF No. 52 ¶ 63.  That same day, MidCountry sent a past-due notice stating 
that a payment was due for $2,778.45.  Id. ¶ 65.  Sandra alleges that “any default that 

occurred was of MidCountry Bank’s creation by the return of the payments.”  Id. ¶ 71.   
MidCountry fails to provide a payoff amount.  In March 2022, Sandra’s “probate 
attorney contacted MidCountry Bank through counsel and requested a payoff for the loan.”  
ECF No. 52 ¶ 81.  A Taft attorney responded by email on March 31, acknowledging the 
request and indicating he would provide a payoff amount.  Id. ¶ 82.  Sandra sent a follow-
up letter stating her concerns with the impending foreclosure and representing she had the 
financial resources to pay off the loan.  Id. ¶ 83.  MidCountry and Taft never responded to 

Sandra’s request for a payoff amount.  Id. ¶ 84.                          
Procedural posture.  In December 2022, Sandra brought this case as a prospective 
class action against MidCountry and Taft.  ECF No. 1.  After filing an Amended Complaint, 
ECF No. 31, Sandra’s claims against MidCountry were dismissed without prejudice.  
Fiecke-Stifter v. MidCountry Bank, No. 22-cv-3056 (ECT/DTS), 

, at *8 

(D. Minn. Sept. 11, 2023).  Sandra moved to amend, seeking to revive her claims against 
MidCountry and bolster her FDCPA claim against Taft.  ECF No. 38.  Magistrate Judge 
Schultz denied Sandra’s request to revive her claims against MidCountry but allowed 
Sandra to amend her FDCPA claim against Taft.  ECF No. 50.  In the operative Corrected 
Second Amended Complaint, Sandra claims Taft violated §§ 1692f(6)(A) and (C) of the 

FDCPA because MidCountry lacked a present right to possession when Taft foreclosed on 
the home (on MidCountry’s behalf).  ECF No. 52 ¶¶ 167–205.                
                           II                                        
                           A                                         
Under the familiar Rule 12(b)(6) standard, a court must accept as true all the factual 

allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor.  
Gorog v. Best Buy Co., 

 (8th Cir. 2014) (citation omitted).  Although the 
factual allegations need not be detailed, they must be sufficient to “raise a right to relief 
above the speculative level.”  Bell Atl. Corp. v. Twombly, 

 (2007) 
(citation omitted).  The complaint must “state a claim to relief that is plausible on its face.”  

.  “A claim has facial plausibility when the plaintiff pleads factual content that 
allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.”  Aschcroft v. Iqbal, 

 (2009).       
                           B                                         
Section 1692f(6) prohibits a debt collector from using “unfair or unconscionable 
means to collect or attempt to collect any debt” by:                      
     Taking or threatening to take any nonjudicial action to effect  
     dispossession or disablement of property if—                    

     (A) there is no present right to possession of the property     
     claimed as collateral through an enforceable security interest; 
     [or]                                                            

     . . .                                                           

     (C) the property is exempt by law from such dispossession or    
     disablement.                                                    

15 U.S.C. § 1692f(6).2                                                    
A brief primer on mortgages helps explain how nonjudicial foreclosures fit into 
§ 1692f(6).  “A mortgage is given to secure the repayment of an underlying debt.”  4 Powell 
on Real Property § 37.12 (2024).  Framed in § 1692f(6)(A)’s terms, a mortgage is a security 

2    Despite alleging a violation of § 1692f(6)(C), see ECF No. 52 ¶ 194, Sandra 
concedes in her response brief that she “does not know of any basis to claim that her home 
would be exempt under this section.”  Pls.’ Mem. in Opp’n [ECF No. 63] at 18 n.3.  Any 
claim  under  §  1692f(6)(C)  has  therefore  been  waived.    See  Doe  v.  Mayorkas,  No. 
22-cv-752 (ECT/DTS), 

, at *2 (D. Minn. Sept. 23, 2022) (citing Espey 
v. Nationstar Mortg., LLC, No. 13-cv-2979 (ADM/JSM), 

, at *11 (D. 
Minn. June 19, 2014)).                                                    
interest that secures repayment of an obligation by placing a lien against real property (the 
property claimed as collateral).  See 

  “The most important feature of the mortgage 
relationship is the power of the mortgagee to force the sale of the mortgaged land.”  4 

Powell on Real Property § 37.36 (2024).  This right to foreclose, i.e. to force a sale, is 
generally defined by the terms and conditions of the mortgage.  See, e.g., ECF No. 9-2 § 9.  
Again, put in the statute’s terms, foreclosure dispossesses the mortgagor of the property.  
Although foreclosures may be judicial or nonjudicial, see 4 Powell on Real Property § 
37.36  (2024),  only  nonjudicial  foreclosures  fall  within  the  scope  of  § 1692f(6).  

Nonjudicial foreclosures are created and defined by statute.  Jackson v. Mortg. Elec. 
Registration  Sys.,  Inc.,  

  (Minn.  2009)  (“[F]oreclosure  by 
advertisement is a purely statutory creation.”).    Such  statutes  define  requisites  for  a 
mortgagee to initiate a nonjudicial foreclosure and procedures the mortgagee is required to 
follow.  See Minn. Stat. Ch. 580.                                         

The fighting issue here is whether MidCountry had a “present right to possession” 
when it foreclosed the property.  Because the FDCPA does not define this phrase, courts 
“look to state law requirements to determine whether there was a present right to possession 
under the FDCPA.”  Hansen v. Santander Bank, 

, 686 (D. Minn. 2023) 
(quoting  Revering  v.  Norwest  Bank  Minn.,  No.  99-cv-480  (RHK/JMM),  

, at *5 (D. Minn. Nov. 30, 1999)).  Sandra offers two theories to explain why 
MidCountry lacked a present right to possession under Minnesota law: (1) Sandra was not 
in default on the note; and (2) MidCountry violated 

, a Minnesota 
foreclosure-by-advertisement statute.  Take each in turn.                 
                           C                                         
                           1                                         
Courts agree that until a mortgagor has defaulted, mortgagees lack a present right 

to possession.  See, e.g., James v. Nationstar Mortg., LLC, 

 (S.D. 
Ala. 2015) (“[T]he Loan was not in default when Nationstar threatened foreclosure.”); 
Thomas v. Ocwen Loan Servicing, No. C17-1222RSM, 

, at *5 (W.D. 
Wash. July 26, 2018).  This makes sense; until a mortgagor defaults, the mortgagee has no 
right to foreclose, and until a mortgagee has a right to foreclose, the mortgagee lacks a 

present right to possession.                                              
A default is defined by the terms of the mortgage.  Here, the mortgagor “will be in 
default if . . . [a]ny party obligated on the Secured Debt fails to make a payment when due.”  
ECF No. 9-2 § 8.  Sandra alleges that she was not in default.  See ECF No. 52 ¶ 95 
(“[D]efendants manipulated the loan accounting to reflect that she was in default when she 

was not in default”); ¶ 118 (“[Defendant] foreclosed her property even thought [sic] she 
was not in default.”); ¶ 174 (“[Sandra] made all of her payments up to and including the 
February 2022 mortgage payment.”).  But Sandra’s own allegations plainly show that she 
failed to make payments when payments were due.  See ECF No. 52 ¶¶ 52–65.  Therefore, 
she was in default as defined by the terms of the mortgage.  And her conclusory allegations 

to the contrary are not plausible.                                        
Sandra does not dispute this basic reading of the Corrected Second Amended 
Complaint—that she made late payments.  See, e.g., Pls.’ Mem. in Opp’n at 1.  But she 
contends  that  MidCountry  lacked  the  right  to  foreclose,  and  thus  a  present  right  to 
possession, despite these late payments.                                  
Sandra first argues that § 9 of the mortgage required MidCountry to provide a 

written notice of default before foreclosing.  Pls.’ Mem. in Opp’n at 8–10.  This is a 
question of contract interpretation.  “[T]he primary goal of contract interpretation is to 
determine and enforce the intent of the parties.”  Motorsports Racing Plus, Inc. v. Arctic 
Cat  Sales,  Inc.,  

  (Minn.  2003).    When  contract  language  is 
unambiguous, the “language must be given its plain and ordinary meaning.”  Minneapolis 

Pub. Hous. Auth. v. Lor, 

 (Minn. 1999) (footnotes omitted).  Section 
9 requires the mortgagee to provide a notice of default before foreclosure “[i]f this is a 
conventional loan under 

.”  ECF No. 9-2 § 9.  The statute defines a 
“conventional loan” in relevant part as:                                  
     a loan or advance of credit, other than a loan or advance of    
     credit made by a credit union or made pursuant to section       
     334.011, to a noncorporate borrower in an original principal    
     amount of less than $100,000, secured by a mortgage upon real   
     property . . . and which is not made pursuant to the authority  
     granted in subdivision 1, clause (3) or (4).                    

 subdiv. 2(3).  Subdivision 1(4) provides in relevant part: 
     [B]anks, savings banks, and savings associations organized      
     under  the  laws  of  this  state  or  the  United  States  .  .  .  are 
     authorized . . . (4) to make, purchase or participate in such loans 
     and advances of credit secured by mortgages on real property    
     which  are  authorized  or  allowed  by  the  Office  of  Thrift 
     Supervision or the Office of the Comptroller of the Currency,   
     or any successor to these federal agencies.                     

 subdiv. 1(4).  As Magistrate Judge Schultz explained when denying 
Sandra’s motion to amend, “the mortgage at issue here was made pursuant to the authority 
granted in 

 subd. 1(4); as such, it is not a ‘conventional loan,’ and the 

notice requirements in paragraph 9 of the mortgage do not apply.”  ECF No. 50 at 13.   
Sandra does not dispute that the at-issue mortgage and note were issued under the 
authority described in 

 subdiv. 1(4).  See Pls.’ Mem. in Opp’n at 8–10.  
Rather, she argues that “[t]he way to harmonize the language in paragraph 9 with the tenets 
of contract interpretation is to conclude that the mortgage’s intended definition . . . is 

enlarging substantive protections for [MidCountry’s] loan products.”  Id. at 9.  Because the 
note was made to a noncorporate borrower in an original principal amount of less than 
$100,000, Sandra argues that the note is the type of conventional loan to which the notice-
of-default requirement applies.  Id.                                      
Sandra’s interpretation of the mortgage is inconsistent with the plain language of 

§ 9.  The mortgage states that notice is required only “[i]f this is a conventional loan under 

.”  ECF No. 9-2 ¶ 9.  The only way to determine if the note “is a 
conventional  loan  under  

.20”  is  to  determine  if  it  fits  the  statutory 
definition.    

.20’s  definition  of  a  conventional  loan  includes  several 
carve-outs.  See 

 subdiv. 2(3) (“[O]ther than a loan or advance of credit 

made by a credit union or made pursuant to section 334.011. . . [w]hich is not insured or 
guaranteed by the secretary of housing and urban development, by the administrator of 
veterans affairs, or by the administrator of the Farmers Home Administration. . . which is 
not made pursuant to the authority granted in subdivision 1, clause (3) or (4).”).  There is 
no textual basis or context clue to justify excluding any of these carve-outs from the 
definition incorporated by the mortgage.  And Judge Schultz’s interpretation makes sense 
within the context of § 47.20’s statutory scheme.  Section 47.20 requires “[a] lender making 

a conventional loan . . . [to include] a provision whereby the lender, if it intends to 
foreclose, agrees to give the borrower written notice of any default.”  

 
subdiv. 8.  It is not surprising that MidCountry would include protections for mortgagors 
to the extent required by Minnesota law.                                  
Sandra’s second default argument proceeds in several steps: for MidCountry to 

exercise its right to accelerate the loan, it needed to provide clear notice, Pls.’ Mem. in 
Opp’n at 11; until MidCountry accelerated the loan, Sandra had a right to cure any default 
“absent a notice that it would strictly comply with the contract,” id. at 12; because Sandra 
had a right to cure any default, MidCountry “could not disaffirm acceptance of her late 
payments as a cure,” id.; and but for MidCountry’s impermissible return of her late 

payments, the default would have been cured, leaving MidCountry without a present right 
to possession.3                                                           
As support for this argument, Sandra relies on Cobb v. Midwest Recovery Bureau 
Co., 

 (Minn. 1980), for the proposition that MidCountry was required to 
give notice before requiring strict compliance with the terms of the mortgage and note.  See 


3    Relatedly,  Sandra  suggests  that  a  notice  of  acceleration  is  a  prerequisite  to 
foreclosure.  But the mortgage did not require MidCountry to accelerate the note before 
foreclosing the property.  See ECF No. 9-2 § 9 (“Upon default, Lender shall have the right, 
without declaring the whole indebtedness due and payable, to foreclose against all or any 
part of the Property.”).                                                  
Pls.’  Mem.  in  Opp’n  at  13.    But  Cobb’s  notice  requirement  applies  to  a  creditor’s 
repossession  of  collateral  under  Minnesota’s  Uniform  Commercial  Code.    See,  e.g., 
McNeill v. Dakota Cnty. State Bank, 

, 384–85 (Minn. Ct. App. 1994) 

(applying  Cobb).    Even  assuming  that  Cobb  (or  similar  legal  principles)  applied  to 
mortgages, it wouldn’t change anything here.  Cobb involved “the repeated acceptance of 
late payments” inducing reliance by a debtor.  Cobb, 295 N.W.2d at 236–37.  There, a 
plaintiff made twenty late payments in a row, never making an on-time payment after 
executing an extension agreement.  By contrast, Sandra alleges that MidCountry accepted 

one late payment (for December) before commencing a foreclosure on February 1 after no 
payment was made in January.  ECF No. 52 ¶¶ 52–54, 56–61, 72.  One late payment cannot 
plausibly be read as similar to a creditor repeatedly accepting late payments.  Therefore, 
Cobb and other unidentified but related estoppel-based principles do not apply to this case.   
If MidCountry was required to accept past-due payments until it exercised its right 

to accelerate the note,4 Sandra does not plausibly allege she ever cured the default.  
MidCountry initiated nonjudicial foreclosure before Sandra made her January payment.  
See ECF No. 52 ¶¶ 56–57, 72.  Sandra alleges that she owed $1,118.47 in February 2022 
but only paid $1,067.84.  

 ¶¶ 60–61.  In other words, assuming MidCountry was required 
to accept Sandra’s late December and February payments, the default was never completely 


4    Some authority supports this proposition.  See Deutsche Bank Nat’l Tr. Co. on 
behalf of Bosco Credit II Tr. Series 2010-1 v. Johnson, No. A16-1315, 

, 
at *5 (Minn. Ct. App. Apr. 3, 2017) (“Until the obligee exercises its rights under the 
acceleration clause, the obligor has the right to remedy the default by tendering payment 
of the amount due.”).                                                     
cured, and therefore MidCountry never lost its present right to possession under Sandra’s 
cure theory.                                                              
                           2                                         

Sandra’s statutory-violation theory proceeds in three steps.  First, Sandra alleges 
that MidCountry violated § 580.30, one of Minnesota’s foreclosure-by-advertisement 
statutes.  Pls.’ Mem. in Opp’n at 18, 22–27.  Second, Sandra argues that this violation of 
§ 580.30 renders the foreclosure void.  Id. at 18, 25.  Third, she contends that “[i]f the 
foreclosure  is  void,  there  was  no  legal  entitlement  to  foreclose  or  present  right  of 

possession.”  Id. at 19.                                                  

 subdiv. 1 states, “[t]he holder of a mortgage shall inform the 
mortgagor of the amount necessary to reinstate the mortgage within three days of receipt 
of a request for a reinstatement amount from the mortgagor.”  Sandra plausibly alleges that 
MidCountry violated § 580.30 by failing to inform her about the amount necessary to 

reinstate the mortgage within three days of receiving a request.  See ECF No. 52 ¶¶ 81–84.  
And although the Minnesota Supreme Court has never held that a violation of § 580.30 
would void a nonjudicial foreclosure, that is a fair prediction of how the Minnesota 
Supreme Court would rule if faced with the same issue.  Jackson, 

 (“If 
the foreclosing party fails to strictly comply with the statutory requirements, the foreclosure 

proceeding is void.”); Hunter v. Anchor Bank, N.A., 

 (Minn. Ct. App. 
2013) (“The Jackson opinion suggests that strict compliance is required for all statutes 
within chapter 580, not just for section 580.02.”); Drews v. Fed. Nat’l Mortg. Ass’n, 

 (Minn. Ct. App. 2014) (“Absent strict compliance with the foreclosure 
statute, the foreclosure proceeding is void.”).  Taft does not seem to dispute Sandra’s first 
two points.  See Def.’s Reply Mem. [ECF No. 66] at 12.                    
The debate surrounds Sandra’s third contention—that if the foreclosure is void, 

MidCountry lacked a present right to possession.  Sandra identifies no authority to support 
this proposition.  Most cases applying § 1692f(6)(A) to nonjudicial foreclosures consider 
whether the contractual or statutory prerequisites to initiate foreclosure are met.  See Patton 
v. Am. Home Mortg. Servicing, Inc., No. 1:11CV420-HSO-RHW, 

, at 
*5 (S.D. Miss. Mar. 28, 2013) (“The Trust had a ‘present right to possession of the 

[P]roperty’ because it owned the Deed of Trust and Note at the time of Plaintiff's default.”); 
Dowers v. Nationstar Mortg., LLC, 

 (9th Cir. 2017) (“Plaintiffs alleged 
that Nationstar threatened to take non-judicial action to dispossess Plaintiffs of their home 
without a legal ability to do so.  Such conduct is exactly what Section 1692f(6) protects 
borrowers against.”); Lowenstern v. Residential Credit Sols., C.A. No. 11-11760-MLW, 

, at *6 (D. Mass. Feb. 25, 2013) (“[A] plaintiff must allege that defendant 
initiated foreclosure proceedings without the requisite possessory interest under state 
foreclosure law.”); cf. Ruffner v. Quality Loan Serv. Corp. of Wash., No. 3:19-cv-01824-
HZ, 

, at *5 (D. Or. Apr. 12, 2021) (question of material fact whether 
mortgagee possessed the note when initiating a nonjudicial foreclosure).   

Some cases have held (or discussed in dicta) that a mortgagee lacks a present right 
to possession if the mortgagee violates a state foreclosure statute’s notice requirement.  
Manson v. GMAC Mortg., LLC, 

 (D. Mass. 2012) (“General Laws ch. 
244, § 14, is conclusive on the issue: if a violation of the statute occurred then the law firm 
defendant in question had no present right to possession, and the FDCPA protections are 
triggered.”); Barber v. L. Offs. of Thomas J. Burbank, No. 1:21-CV-539-MJT-CLS, 

, at *5 (E.D. Tex. June 1, 2023), R. & R. adopted,  

 (E.D. 

Tex. June 29, 2023) (“Either of Plaintiffs’ two contentions, if true, could mean that 
Defendants did not have a present right to foreclose on their home (as Plaintiffs were either 
not in default or Defendants did not send proper notice of the foreclosure sale), in violation 
of section 1692f(6)(A) of the FDCPA.”); Shaw v. Bank of Am., NA, No. 10-CV-11021, 

, at *4 (D. Mass. Jan. 15, 2015) (“[O]nce Shaw defaulted and BOA 

provided statutory notice pursuant to Mass. Gen. L. c. 244, § 14, BOA had a right to 
foreclose.  Because BOA had the right to possess the Property in which it held a security 
interest,  BOA  did  not  violate  the  FDCPA.”);  Hill  v.  Nationstar  Mortg.  LLC,  No. 
3:22CV108 (DJN), 

, at *6 (E.D. Va. Nov. 15, 2022) (holding that a 
mortgagee could premise her § 1692f(6)(A) claim on mortgagor’s alleged failure to comply 

with Virginia Code § 55.1-321, a state foreclosure statute notice requirement).  The Court’s 
independent  research  has  identified  no  case  discussing  a  violation  of  §  1692f(6)(A) 
predicated on an underlying violation of a non-notice state foreclosure statute or equating 
a void foreclosure with the absence of a present right to possession.     
Given the dearth of authority supporting Sandra’s theory, the better answer is that a 

present right to possession refers to prerequisites, such as 

 and the right 
to a power of sale under the note and mortgage, rather than compliance with other 
foreclosure-by-advertisement statutory procedures.  If Sandra is correct, then almost every 
violation  of  Minnesota’s  nonjudicial  foreclosure  statutes  would  be  a  violation  of 
§ 1692f(6)(A).  That seems like a remarkable conclusion unsupported by case law in this 
District and elsewhere.  And if Congress wanted to make violations of states’ nonjudicial 
foreclosure statutes violations of the FDCPA, it could have expressly done so. 

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Defendant Taft Stettinius & Hollister LLP’s Motion to Dismiss [ECF No. 
53] is GRANTED.                                                           

2.   The Corrected Second Amended Complaint is DISMISSED with prejudice.    
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated:  October 11, 2024           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court