Olson et al v. Wells Fargo Bank, N.A. et al

Filing 68

AMENDED MEMORANDUM OPINION AND ORDER. 1. Plaintiffs' Motion to Enforce Settlement Agreement (Doc. No. 40 ) is DENIED. 2. Defendants' Motion for Summary Judgment (Doc. No. 51) is GRANTED. 3. This matter and all claims are DISMISSED WITH PREJUDICE. (Written Opinion). Signed by Judge Donovan W. Frank on 8/5/2015. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Stephen R. Olson, an individual; and
Amy J. Olson, an individual,

Civil No. 13-780 (DWF/JJK)

Plaintiffs,
AMENDED
MEMORANDUM
OPINION AND ORDER

v.
Wells Fargo Bank, N.A., d/b/a America’s
Servicing Company; and The Bank of New
York Mellon f/k/a The Bank of New York
as Successor in interest to JP Morgan Chase
Bank, N.A., as Trustee for Structured Asset
Mortgage Investments II, Inc., Bear Stearns
ALT-A Trust 2005-8, Mortgage
Pass-Through Certificates, Series 2005-8,
Defendants.

Christopher M. Daniels, Esq., Jesse H. Kibort, Esq., Troy A. Stark, Esq., and
Dominic J. Haik, Esq., Daniels & Kibort, PLLC, counsel for Plaintiffs.
D. Charles Macdonald, Esq., Erin L. Hoffman, Esq., and Jessica Z. Savran, Esq., Faegre
Baker Daniels LLP, counsel for Defendants.
________________________________________________________________________

INTRODUCTION
The following Order has been amended solely to reflect the correct attorneys
representing the parties. This matter is before the Court on a Motion to Enforce
Settlement Agreement brought by Plaintiffs Stephen R. Olson and Amy J. Olson
(together, “Plaintiffs”) (Doc. No. 40) and a Motion for Summary Judgment brought by
Wells Fargo Bank, N.A., d/b/a America’s Servicing Company (“Wells Fargo”), and The

Bank of New York Mellon, f/k/a The Bank of New York as Successor in interest to JP
Morgan Chase Bank, N.A., as Trustee for Structured Asset Mortgage Investments II, Inc.,
Bear Stearns ALT-A Trust 2005-8, Mortgage Pass-Through Certificates, Series 2005-8
(the “Bank of New York”) (collectively, “Defendants”). (Doc. No. 51.) For the reasons
set forth below, the Court denies Plaintiffs’ Motion to Enforce Settlement Agreement and
grants Defendants’ Motion for Summary Judgment.
BACKGROUND
In July 2005, Plaintiffs borrowed $359,650 from Union Federal Bank of
Indianapolis and purchased property in Ramsey, Minnesota (the “Property”). (Doc.
No. 59, Ex. 1 (“Banks’ App.”) at 1-8.) The loan was secured by a Mortgage in favor of
Union Federal Bank of Indianapolis. (Id. at 9-28.) In 2006, Wells Fargo began servicing
the loan. In April 2009, the loan was assigned to the Bank of New York and the
assignment was recorded on July 1, 2009. (Id. at 29-31.)
Plaintiffs fell behind on their loan payments. (Id. at 32-37; Doc. No. 1 (“Verified
Compl.”) ¶ 10.) Plaintiffs contacted Wells Fargo to attempt to permanently modify their
loan. (Verified Compl. ¶ 11.) Plaintiffs applied for a loan modification, but their
application was denied because Plaintiffs were unable to afford the modified payments.
(Banks’ App. at 39.) Plaintiffs’ attorney later informed Wells Fargo that Plaintiffs’
financial situation had improved and requested that Wells Fargo reconsider Plaintiffs’
loan modification application. (Id. at 38.) From June through August 2010, Wells Fargo
and Plaintiffs communicated with respect to Plaintiffs’ loan modification application.
(Id. at 38-67.)
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On June 2, 2010, Plaintiffs received a letter from Wells Fargo, stating in part, the
following:
As your mortgage servicer, we want to help you stay in your home. We
want you to know there is a program available that may help you. If you
qualify under the federal government’s Home Affordable Modification
program and comply with the terms of the Home Affordable Modification
Program [“HAMP”] Trial Period Plan, we will modify your mortgage loan
and you can avoid foreclosure.
(Doc. No. 61 (“Haik Aff.”) ¶ 1, Ex. 1.) Plaintiffs were asked to gather and submit certain
financial documentation and to complete required forms. (Id.) The letter stated: “If you
meet the eligibility criteria, you will be offered a Trial Period Plan.” (Id.)
On August 25, 2010, Wells Fargo informed Plaintiffs that they had been
“approved to enter into a trial period plan under the Home Affordable Modification
Program” (the “TPP Letter”). (Banks’ App. at 80.)
The TPP Letter reads, in relevant part, as follows:
Congratulations! You are approved to enter into a trial period plan under
the Home Affordable Modification Program. This is the first step toward
qualifying for more affordable mortgage payments. Please read this letter
so that you understand all the steps you need to take to modify your
mortgage payments.
What you need to do . . .
To accept this offer, you must make new monthly “trial period payments”
in place of your normal monthly mortgage payment. Send your monthly
trial period payments—instead of your normal monthly mortgage
payment—as follows:
1st payment: $1,714.36 by October 1, 2010
2nd payment: $1,714.36 by November 1, 2010
3rd payment: $1,714.36 by December 1, 2010
After all trial period payments are timely made and you have submitted all
the required documents, your mortgage would then be permanently
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modified. (Your existing loan and loan requirements remain in effect and
unchanged during the trial period.) If each payment is not received by
[Wells Fargo] in the month in which it is due, this offer will end and
your loan will not be modified under the Making Home Affordable
program.
...
Why is there a trial period?
The trial period offers you immediate payment relief (and could prevent a
foreclosure sale) while we process your paperwork to determine if you
qualify for a permanent loan modification. It also gives you time to make
sure you can manage the lower monthly mortgage payment. Note: This is
only a temporary Trial Period Plan. Your existing loan and loan
requirements remain in effect and unchanged during the trial period.
...
Your current loan documents remain in effect; however, you may
make the trial period payment instead of the payment required under
your loan documents:
You agree that all terms and provisions of your current mortgage note and
mortgage security instrument remain in full force and effect and you will
comply with those terms; and that nothing in the trial period plan shall be
understood or construed to be a satisfaction or release in whole or in part of
the obligations contained in the loan documents.
(Id. at 80, 82, 84.)
Plaintiffs made the trial payments as outlined on a monthly basis. Plaintiffs
contend that they successfully completed all requirements under the TPP Letter by
December 1, 2010, and should have been offered a permanent loan modification. In
January 2011, Plaintiffs contacted Wells Fargo and asked Wells Fargo to confirm that
Plaintiffs would receive a permanent loan modification. Wells Fargo indicated that the
permanent loan modification was in “the final steps to go through settlement.” (Id. at
57.) In February 2011, Plaintiffs called Wells Fargo again and were told that their

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application was still in review for a final modification and that Wells Fargo was waiting
to hear from the investor. (Id.) Plaintiffs made TTP payments through October 2011.
During the loan modification review, Wells Fargo discovered tax liens and
judgments recorded against the Property. (Id. at 63, 66, 100-03, 132-33.) In early
August 2011, Wells Fargo was informed that Plaintiffs would be filing for bankruptcy.
(Id. at 66.) In a letter dated November 14, 2011, Wells Fargo indicated that in order to
proceed with Plaintiffs’ HAMP modification process, it required documented proof
within ten days that the title issues had been resolved, including the subordination of their
second mortgage. (Id. at 87.) Plaintiffs sought more time to provide the documentation.
(Id. at 68-71.) On January 6, 2012, Wells Fargo agreed to provide more time, but
reiterated the need for a subordination agreement and proof of clean title. (Id. at 71.)
Wells Fargo subsequently communicated with Plaintiffs’ attorney, reiterating the need for
a subordination agreement. (Id. at 76.) On March 23, 2012, Wells Fargo again wrote to
Plaintiffs, via their attorney, stating that a loan modification was not possible because
Wells Fargo did not receive the necessary documentation. (Id. at 79.)
Wells Fargo initiated foreclosure proceedings as the attorney-in-fact for The Bank
of New York Mellon. (Id. at 90-130.) On or about December 31, 2012, Defendants
served Plaintiffs with a Notice of Mortgage Foreclosure Sale. (Id. at 104-06.) A
Sheriff’s sale occurred on March 1, 2013. (Id. at 115-17.)
Plaintiffs initiated the present action in state court in March 2013. (Verified
Compl.) Defendants removed the case to this Court. (Doc. No. 1.) In their Complaint,
Plaintiffs assert claims for Breach of Contract (Count I); Negligent and Constructive
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Misrepresentation (Count II); Breach of the Covenant of Good Faith and Fair Dealing
(Count III); Promissory Estoppel (Count IV); Slander of Credit (Count V); Violation of
Minn. Stat. § 580.02 (Count VI); Violation of Minn. Stat. § 580.04 (Count VII); and
Slander of Title (Count VIII). (Verified Compl. ¶¶ 49-146.)
Beginning in May 2013, the parties engaged in discussions regarding the
settlement of this case that continued for nearly eighteen months. (Doc. No. 47 (“Savran
Decl.”) ¶¶ 2-3 & Ex. A at 4-6.) Specifically, the parties’ attorneys discussed a possible
settlement that involved Plaintiffs’ submitting a loan modification application. (Id. ¶ 2.)
Plaintiffs provided financial information to Wells Fargo “in the hopes of coming to an
amicable resolution” of the matter. (Id. ¶ 3, Ex. A at 4.) At that time, Wells Fargo’s
attorney told Plaintiffs’ attorney that tax liens recorded against the Property would likely
be a problem with respect to Plaintiffs’ loan modification application. (Id. at 3.)
Wells Fargo’s attorney explained:
Unfortunately, Wells Fargo tells me that any kind of judgment lien on the
property that clouds title disqualifies a person from getting a loan
modification. It is irrelevant that they are participating in a payment plan;
so long as there is a lien on the property, they cannot get a [modification].
All of the information I have so far tells me that the liens on the [Plaintiffs’]
property is why they did not qualify for a [modification] in 2011. Unless
they can come up with a way to quickly pay it off, Wells Fargo will not
consider them for a modification. I’m really sorry.
(Id.) Wells Fargo did not review Plaintiffs’ financial information further because of the
unresolved tax liens. (Savran Decl. ¶ 4.) Wells Fargo submits that all subsequent
settlement negotiations took “place with the understanding that [Plaintiffs] needed to
resolve the liens before they could . . . qualify for a modification.” (Id. ¶ 5.)

6

On May 28, 2013, Plaintiffs’ attorney informed Wells Fargo’s attorney that
Plaintiffs were able to obtain subordinations for the tax liens. (Id. ¶ 6.) Plaintiffs’
attorney asked whether that would satisfy Wells Fargo so as to consider Plaintiffs for a
modification. (Id. ¶ 3, Ex. A at 2.) Wells Fargo agreed to review a loan modification
application “under the assumption” that Plaintiffs would secure subordination
agreements. (Id. ¶ 7, Ex. B.) Plaintiffs’ attorney understood this. (Id. ¶ 8, Ex. C at 1.)
Wells Fargo also indicated that ultimate approval would depend in part on the
subordination agreements. (Id. ¶ 7, Ex. B (emphasis added).) Plaintiffs’ attorney,
however, also acknowledged that his clients were having problems obtaining the
necessary subordinations and proposed, instead, that Plaintiffs purchase a lender’s title
policy insuring Wells Fargo in a first-lien position. (Id. ¶ 8, Ex. C at 2.)
On August 9, 2013, Plaintiffs’ attorney e-mailed Wells Fargo’s attorney to inquire
into the status of Plaintiff’s loan modification application. (Id. ¶ 10, Ex. D.) Wells Fargo
indicated that it had not yet reached a decision. (Id.) On August 19, 2013, Wells Fargo’s
attorney e-mailed Plaintiffs’ attorney requesting additional information regarding
Plaintiffs’ income. (Id. ¶ 11, Ex. E at 1-2.) Plaintiffs’ attorney provided the information
and asked whether Plaintiffs could begin making trial payments again. (Id. ¶ 12, Ex. F
at 1-2.) Counsel for Wells Fargo stated: “I think all of this will depend on whether
[Plaintiffs] are approved for a loan modification.” (Id. at 1.)
The parties did not communicate again until October 1, 2013, when counsel for
Wells Fargo asked for an update on the subordinations. (Id. ¶ 13, Ex. G at 2.) Plaintiffs’

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counsel indicated that Plaintiffs might not be able to obtain a subordination from the
State of Minnesota, but indicated that he was pursuing the matter further. (Id. at 1.)
On October 30, 2013, Plaintiffs’ attorney e-mailed Wells Fargo’s attorney,
indicating that a title insurance company was willing to insure a modified mortgage in
first-lien position. (Id. ¶ 15, Ex. H at 4.) In the same e-mail, Plaintiffs’ attorney
purported to make a settlement offer containing the following terms: Plaintiffs would
pay the title insurance premium and closing fees for a new lender’s title insurance policy
insuring Plaintiffs’ modified mortgage loan in the first lien position; Plaintiffs would
discharge the Notice of Lis Pendens recorded against the Property; the parties would
stipulate to an order voiding the foreclosure sale; and the parties would record a
modification of Plaintiffs’ Mortgage Loan with fixed payments in the same amount as
those paid by Plaintiffs during the trial period. (Doc. No. 43 (“Hartmann Aff.”) ¶ 2,
Ex. A at 1.) Specifically, the e-mail from Plaintiffs’ attorney states:
We have good news. The title insurance company that insures title on your
client’s mortgage . . . indicated that it is willing to insure your client’s
modified mortgage in first position. The title company will put its money
on the line without the subordinations.
I told the examiner that we anticipate the modified interest rate will be fixed
and will be lower than the original interest rate. I also said that the
anticipated monthly payment will be the same as the TPP payment . . . .
As I told the examiner, every junior interest will be more secure because
the likelihood of default on the first mortgage will be reduced—in fact, a
fatal default [the Sheriff’s Certificate] will be cured and the junior interests
will be restored in the same relative position vis a vis your client. In other
words, the junior lienholders would have no basis for a judicial
subordination because they currently have no interest of record, and any
revived interest they might have will necessarily be subordinate to the

8

modification agreement that revived them. These are basic equitable
principles.
I proposed to the examiner that we will discharge the lis pendens, obtain an
order voiding the foreclosure sale (by stipulation), and record a
modification of your client’s first mortgage. I asked the examiner (who in
turn asked the underwriter) the following question: What would it take to
insure the bank’s modified mortgage in first position?
The response was, “if the mortgage has a clause about securing renewals,
extensions, [and] modifications, they won’t require anything further from
the junior mortgage holder.” The mortgage does secure “all renewals,
extensions, and modifications of the Note . . . .”
...
My clients will pay the title insurance premium and related fees from the
title company. This will put your client in the same position it was
originally in: it will be insured in first-lien position.
What will your client require in order to move forward with the
modification? You mentioned a new trial payment plan. Can we start
with that? Please let me know your client’s terms. This matter is ripe for
settlement. If your client has any particular concerns, please address them
with me.
(Id. at 1 (emphasis added).)
Plaintiffs’ attorney subsequently sent follow-up e-mails on November 19, 2013
and December 3, 2013, respectively, stating in part:
Have you heard a response from your client regarding Steve and Amy
Olson’s offer to insure your client’s modified mortgage loan in first
position? This is a win-win. Please let me know if your client has any
hesitation or questions. We want to make it very easy for your client to say
“yes.” Conversely, we see no good faith reason for your client to deny the
modification.
...
Why is your client taking so long to make this decision? Our proposal will
insure your client’s mortgage in first position and our clients will resume
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making payments as they did for 13 months pursuant to the trial payment
plan (until your client indicated it was initiating foreclosure proceedings)
. . . [Plaintiffs] have offered to pay your client’s title insurance premium in
order to resolve this matter. Does your client need some additional
information to help make this decision?
(Hartmann Aff. ¶¶ 3-4, Exs. B-C.)
On December 4, 2013, Wells Fargo’s attorney sent Plaintiffs’ attorney an e-mail
that stated in part:
I contacted Wells Fargo again to see if a decision has been made about
whether it will accept the proposed arrangement. I can tell you that if they
agree to this type of arrangement, we will need to see a copy of the
insurance commitment for our review and approval. At this point,
however, I still have not heard if Wells will approve this or not. I know it
is taking a long time.
(Id. ¶ 5, Ex. D.)
On December 19, 2013, Wells Fargo’s attorney sent another e-mail to Plaintiffs’
attorney, which stated in part:
Wells finally got back to me and said it would accept an insurance policy
insuring their lien position. So, the next step is to get me a copy of the
[lender’s title insurance policy] commitment so that we can review the
precise language to make sure it is adequate. This is great news. I’m sorry
it took so long.
(Id. ¶ 6, Ex. E.) On December 30, 2013, Plaintiffs’ attorney sent a copy of the updated
lender’s title insurance policy to Wells Fargo’s attorney. (Id. ¶ 8, Ex. F.) Wells Fargo’s
attorney responded the next day, stating: “We will review this and get back to you on
whether it is sufficient.” (Id. ¶ 9, Ex. G.) On January 7, 2014, Wells Fargo’s attorney
sent Plaintiffs’ attorney an e-mail stating: “I wanted to follow up with you on this case.

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We did not discuss what we should do with our respective outstanding discovery requests
since we have reached an agreement in principle to settle?” (Id. ¶ 10, Ex. H.)
On January 13, 2014, Wells Fargo’s attorney e-mailed Plaintiffs’ attorney, stating
in part: “[A] transactional attorney from my firm will be contacting the title company
about our proposed changes to the title policy commitment . . . . Also, I will be drafting
up a settlement agreement for this case and will pass it along to you for your review once
I have drafted it.” (Id. ¶ 11, Ex. I.) On that same day, a real estate attorney, whose
assistance had been enlisted by his colleague and counsel for Wells Fargo, e-mailed the
title examiner at Edina Realty Title, requesting a lender’s title insurance policy
commitment and a lender’s pro forma policy. (Id. ¶ 12, Ex. J.) The e-mail also stated, in
part:
As I understand it, the lender and the borrower have entered into a
settlement agreement pursuant to which the mortgage is re-instated, and a
lender’s title insurance policy (specifically insuring that the mortgage
continues to have priority over certain liens against the property owner) is
purchased.
(Id.) 1 The e-mail was copied to Wells Fargo’s attorneys on this matter. (Id.) Plaintiffs
claim that those attorneys did not (either directly or through their new counsel) disaffirm
that a settlement had been reached. (Id. ¶ 16.)
On January 30, 2014, an attorney for Wells Fargo e-mailed Plaintiffs’ attorney,
attaching a document in which she attempted to reduce the Settlement Terms to a “four
1

Plaintiffs point to this e-mail as evidence that the parties had reached an
agreement. Defendants have submitted evidence that the real estate attorney who drafted
this e-mail had not been involved in the litigation or settlement discussions and was
involved solely to obtain a commitment for a lender’s title insurance policy. (Doc. No.
48 (“Moe Aff.”) ¶¶ 2-5.)
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corners” document. (Savran Decl. ¶ 23.) The draft agreement provides in part as
follows:
Wells Fargo agrees to review [Plaintiffs’] for a loan modification.
[Plaintiffs] agree to provide Wells Fargo with a complete and up-to-date
loan modification application within a reasonable amount of time after
execution of this Agreement. . . .
...
[Plaintiffs] agree and acknowledge that this Agreement requires only that
Wells Fargo review the [Plaintiffs] for a loan modification, and does not
commit Wells Fargo to approving, offering or granting [Plaintiffs] a loan
modification. . . .
(Id. ¶ 24, Ex. M at 2-3.)
Plaintiffs submit that the draft agreement differed from the terms negotiated by
counsel and that Defendants attempted to add additional and new terms to the agreement.
Plaintiffs objected to Wells Fargo’s settlement terms in an e-mail dated February 5, 2014:
The draft settlement agreement terms are very surprising to us. We
expected the agreement to include [Plaintiffs’] modified loan terms and the
proposed modification documents. The draft agreement only requires
Wells Fargo to review [Plaintiffs] for a modification.
(Hartman Aff. ¶ 21, Ex. L at 1.) Wells Fargo’s attorney responded to the e-mail:
[Plaintiffs] have to actually qualify for a loan modification in order to get a
loan modification. They will need to resubmit a loan modification package
since it has to be up-to-date with their most recent bank statements and
evidence of pay/paystubs []. Wells can’t agree to modify their loan without
conducting a full review to determine if they qualify for a loan. This is what
we discussed long ago.
(Id. ¶ 22, Ex. L at 1.)
On March 13, 2014, Plaintiffs’ attorney informed Wells Fargo’s attorney that:

12

We are working with [Plaintiffs] to prepare an updated modification
application. I had intended to send you redlines to the proposed settlement
agreement that added some protection for [Plaintiffs] during the
modification review period, among other things. . . .
(Savran Decl. ¶ 27, Ex. N at 1.) Wells Fargo’s attorney responded by indicating that
Wells Fargo would not review a modification application without a settlement agreement
in place. (Id.)
On April 8, 2014, Plaintiffs’ attorney sent an e-mail to Wells Fargo’s attorney,
stating in relevant part:
Based on the substantial written correspondence about our settlement
proposal which I explain in part below, our position is that we have a
settlement agreement to reinstate the previous modified mortgage in
exchange for the [Plaintiffs] providing a lender’s title policy insuring the
modified loan in the first position.
...
I am prepared to revise the draft settlement agreement to include the terms
of our agreement, which was to reinstate the previously modified mortgage
loan in exchange for a lender’s title policy insuring your client in first
position.
(Id. ¶ 28, Ex. O at 3.)
On April 9, 2014, counsel for Wells Fargo responded:
It appears that, perhaps, there has been a misunderstanding. Settlement
discussions started by your firm asking if Wells Fargo would consider
[Plaintiffs] for a modification. I thought it was clear to you that
Wells Fargo cannot just modify your clients’ loan. The only way to obtain
a modification is to submit a current modification application, which gets
reviewed by Wells Fargo. Any application that is more than 90 days old is
outdated and will not be considered. The reason for this is that Wells Fargo
needs to review current financial information in order to make a decision
about a modification. [Plaintiffs’] financial situation from 6 or 8 months
ago could paint a very different picture than their financial situation today.

13

Wells Fargo agreed to review [Plaintiffs] for a modification if [Plaintiffs]
could obtain assurance that Wells Fargo would remain in a first lien
position. For many months you worked on obtaining subordination
agreements. When that turned out to be a dead-end road, we went a
different route—a title commitment insuring Wells Fargo’s first lien
position.
From my understanding, [Plaintiffs] literally cannot purchase the title
commitment until we know the terms of the modified loan. Attorneys at
our office worked on the language of the title commitment, and so we’re
now at the stage of signing a settlement agreement. I have never heard of a
settlement agreement that left the litigation intact. A settlement, from my
understanding, is a way to resolve and end the litigation. That is what we
are trying to accomplish here.
***
So, in an effort to move the process forward, is the dismissal with prejudice
the part you cannot accept? That is the only feedback I have received from
you, and I am prepared to take feedback to Wells Fargo, but I need to know
what that feedback is.
(Id. at 1-2.)
On September 12, 2014, Defendants’ attorney indicated that Wells Fargo would
request the writ of recovery (to complete the eviction of Plaintiffs from the Property) on
or after October 1, 2014. (Hartman Aff. ¶ 25, Ex. O.)
DISCUSSION
I.

Motion to Enforce Settlement Agreement
Plaintiffs move to enforce the purported settlement of their claims. In support,

Plaintiffs argue that their attorney made a settlement offer via e-mail to Wells Fargo’s
counsel on October 30, 2013 (the “October 30 e-mail”) and that the offer proposed terms,
including that the parties would record a modification of Plaintiffs’ Mortgage Loan with
fixed payments in the same amount as those paid during the TPP. Plaintiffs also argue
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that Defendants accepted Plaintiffs’ offer to purchase a lender’s title policy, Defendants
had already approved Plaintiffs for a loan modification in August 2010, and that once the
alleged issue with Plaintiffs’ title was eliminated, there were no unmet conditions to
obstruct Plaintiffs’ loan modification.
Defendants argue that the parties did not enter into a settlement agreement.
Specifically, Defendants contend that there was no clear and definite offer, Wells Fargo
never accepted any proposal to modify Plaintiffs’ mortgage loan without review, and no
settlement agreement exists because there was no meeting of the minds on essential terms
of a settlement. In so arguing, Defendants acknowledge that there were ongoing
settlement discussions, but maintain that any settlement agreement was conditioned on a
loan modification review.
Settlement of lawsuits without litigation is highly favored, and such settlements
will not be set aside lightly. Johnson v. St. Paul Ins. Cos., 305 N.W.2d 571, 573 (Minn.
1981) (considering a motion to vacate settlement agreement). If a settlement unravels
before the original suit is dismissed, a party who seeks to keep the settlement may file a
motion for enforcement because a district court possesses the inherent or equitable power
to enforce an agreement to settle a case pending before it. Simmons, Inc. v. Koronis
Parts, Inc., Civ. No. 00-1984, 2002 WL 1347401, at *2 (D. Minn. June 18, 2002).
However, before enforcing a settlement, the Court must first conclude that a settlement
agreement was actually reached.
Under Minnesota law, it is well established that settlement agreements are
governed by principles of contract law. Ryan v. Ryan, 193 N.W.2d 295, 297 (Minn.
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1971). “[A] full and enforceable settlement requires offer and acceptance so as to
constitute a meeting of minds on the essential terms of the agreement.” Id. “[W]here the
offer is clear, definite, and explicit, and leaves nothing open for negotiation, it constitutes
an offer, the acceptance of which will complete the contract.” Short v. Sun Newspapers,
Inc., 300 N.W.2d 781, 786 (Minn. 1980) (citation omitted).
The parties dispute whether they agreed to settle this case pursuant to the terms set
forth in the October 30 e-mail. After a careful review of the record, and for the reasons
discussed below, the Court concludes that the parties did not enter into an agreement to
settle this matter pursuant to the terms purportedly set forth in the October 30 e-mail.
First, the formation of a contract requires communication of a specific and definite
offer. See Grenier v. Air Express Int’l Corp., 132 F. Supp. 2d 1198, 1201 (D. Minn.
2001); Wells v. Envoy Med., Inc., Civ. No. 11-1572, 2012 WL 4009435, at *3 (D. Minn.
Sept. 12, 2012). Here, Plaintiffs contend that the October 30 e-mail constitutes an offer.
The Court disagrees. As an initial matter, the terms identified in the e-mail (that
Plaintiffs now contend constitute the terms of an offer) were not proposed to
Wells Fargo. Instead, in the e-mail, Plaintiffs’ attorney explains what he communicated
to the title examiner: “I also said [to the title examiner] that the anticipated monthly
payment will be the same as the TPP payment” and “I proposed to the examiner that we
will discharge the lis pendens, obtain an order voiding the foreclosure sale (by
stipulation), and record a modification of your client’s first mortgage.” (Hartman Aff.
¶ 12, Ex. A.) This language, when viewed objectively, is not a proposal of specific

16

settlement terms to Wells Fargo, but is rather an ongoing discussion of possible
settlement terms.
Second, even if the purported terms were directed to Wells Fargo, the e-mail is not
sufficiently definite to be considered an offer. In fact, Plaintiffs’ attorney specifically
asked: “What will your client require in order to move forward with the modification?
You mentioned a new trial payment plan. Can we start with that? Please let me know
your client’s terms.” (Id.) These questions highlight the fact that material terms
remained open to negotiation and, thus, this e-mail reflects an offer to continue the
ongoing negotiations. See, e.g., Goddard, Inc. v. Henry’s Foods, Inc., 291 F. Supp. 2d
1021, 1026, 1030 (D. Minn. 2003) (explaining that the terms of a letter were not
sufficiently clear and definite to constitute an offer; instead, the letter was an invitation to
the opposing party to offer to settle).
Third, even if Plaintiffs’ October 30 e-mail constituted an offer, Wells Fargo’s
counsel did not accept the offer. Acceptance of an offer must be coextensive with the
offer and may not introduce additional terms. See Alpine Glass, Inc. v. Ill. Farmers Ins.
Co., 643 F.3d 659, 666 (8th Cir. 2011); McLaughlin v. Heikkila, 697 N.W.2d 231, 235
(Minn. 2005). Here, Plaintiffs claim that Wells Fargo accepted the terms set forth in the
October 30 e-mail on December 19, 2013 (the “December 19 e-mail”), when
Wells Fargo’s attorney e-mailed the following:
Wells finally got back to me and said it would accept an insurance policy
insuring their lien position. So, the next step is to get me a copy of the
[lender’s title insurance policy] commitment so that we can review the
precise language to make sure it is adequate. This is great news. I’m sorry
it took so long.
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(Hartman Aff. ¶ 6, Ex. E.) Plaintiffs assert that the only contingency expressed was that
Defendants would need a copy of the lender’s title insurance policy commitment for
review and approval. The Court disagrees. The December 19 e-mail only addresses one
of the four alleged terms of Plaintiffs’ settlement offer. Thus, while Wells Fargo agreed
to accept an insurance policy to insure its lien position, so long as the insurance policy
was deemed adequate after review, the e-mail does not address any of the other purported
settlement terms. The December 19 e-mail, in addressing only Wells Fargo’s willingness
to accept a title policy in lieu of subordinations, is consistent with the parties’ preceding
settlement negotiations, which centered on whether Plaintiffs would be able to obtain
subordinations from the Property’s lien holders. Because the December 19 e-mail is not
“coextensive” with the purported settlement terms, it does not constitute an acceptance
and no binding settlement was agreed upon.
Finally, upon careful review of the record and the parties’ negotiations, it is
apparent to the Court that there was not a meeting of the minds as to the essential terms
of a settlement. Significantly, the parties discussed the understanding that Plaintiffs
would need to submit a modification application, which Wells Fargo would review under
the assumption that Plaintiffs would secure subordinations. It was apparent that approval
for modification would depend in part on the securing of the subordinations. The
October 30 e-mail laid out a new strategy for settling the case—having Plaintiffs obtain
an insurance policy insuring Wells Fargo’s first lien position instead of obtaining
subordinations. There is no evidence that the parties agreed that Plaintiffs would get a

18

modification without review and approval. Eventually, Wells Fargo did agree to “accept
an insurance policy insuring their lien position,” but it did not agree to modify Plaintiffs’
loan without review.
Plaintiffs further attempt to rely on Wells Fargo’s counsel’s statement on
January 7, 2014, that the parties had “reached a settlement in principle.” This statement
alone, however, does not demonstrate that there was a meeting of the minds on the
essential terms of a settlement agreement. Wells Fargo reiterated the need for Plaintiffs
to qualify for a loan modification. (Savran Decl. ¶ 22, Ex. L.) In fact, the evidence of the
parties’ negotiations indicates that the details were not agreed upon and, indeed, that the
parties continued to negotiate for months.
For all of the above reasons, the Court concludes that the parties never came to a
meeting of the minds on the essential terms of a settlement agreement. Accordingly,
Plaintiffs’ motion to enforce settlement is denied. 2
II.

Summary Judgment
Summary judgment is proper if there are no disputed issues of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
2

The Court’s ruling on this motion does not in any way condone what appears to be
a serious lack of urgency on the part of Wells Fargo in responding to Plaintiffs in an
attempt to settle this matter.
19

shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d
at 747. The nonmoving party must demonstrate the existence of specific facts in the
record that create a genuine issue for trial. Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957
(8th Cir. 1995). A party opposing a properly supported motion for summary judgment
“may not rest upon the mere allegations or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986).
A.

Breach of Contract (Count I)

Plaintiffs assert that the parties entered into a “TPP Agreement”— namely a
binding, unilateral contract whereby Defendants were required to offer Plaintiffs a
mortgage modification if Plaintiffs fulfilled all conditions precedent, such as making
timely TPP payments and submitting required documents. 3 Plaintiffs further allege that

3

In their Verified Complaint, Plaintiffs allege that: (1) the TPP Letter “was an
agreement to modify Plaintiffs’ Loan”; (2) that Defendants “agreed, in writing, to modify
Plaintiffs’ loan”; and (3) that the “promises, representations and agreements between
Plaintiffs and Defendants are valid and enforceable contracts.” (Verified Compl. ¶¶ 17,
51-52.) Plaintiffs do not allege, however, a contract in which they would be offered a
loan modification. Thus, the allegations in their Verified Complaint are inconsistent with
Plaintiffs’ current arguments. Even so, as explained herein, Plaintiffs’ breach of contract
claim fails as a matter of law.
20

they fulfilled all of the conditions precedent and, therefore, Defendants breached the
agreement by failing to offer Plaintiffs a mortgage modification.
Defendants argue that Plaintiffs’ breach of contract claim fails as a matter of law.
Specifically, Defendants maintain that the TPP is not a contract for a permanent
modification and that no contract to permanently modify (or offer to modify) Plaintiffs’
loan was ever formed. In addition, Defendants argue that the TPP Letter cannot form the
basis for a breach of contract claim because it does not qualify as a credit agreement
under Minnesota law.
The elements of a breach of contract claim under Minnesota law are:
(1) formation of a contract; (2) performance of conditions precedent by plaintiff; and
(3) breach of the contract by defendant. Lyon Fin. Servs., Inc. v. Ill. Paper & Copier Co.,
848 N.W.2d 539, 543 (Minn. 2014); see also Olivares v. ONC Bank, N.A., Civ. No. 111626, 2011 WL 4860167 at *5 (D. Minn. Oct. 13, 2011). A valid contract contains the
elements of “offer, acceptance, and bargained for consideration.” Topchain v. JPMorgan
Chase Bank, N.A., 760 F.3d 843, 850 (8th Cir. 2014). Minnesota law also imposes
heightened writing requirements on home loan modifications. Minn. Stat. § 513.33,
subd. 2. Specifically, Minnesota’s Credit Agreement Statute bars the enforcement of
“credit agreements” that are not in writing and signed by both the creditor and the debtor.
Id. (“A debtor may not maintain an action on a credit agreement unless the agreement is
in writing, expresses consideration, sets forth the relevant terms and conditions, and is
signed by the creditor and the debtor.”). Moreover, a loan modification constitutes a
credit agreement. Racutt v. U.S. Bank, Civ. No. 11-2948, 2012 WL 1242320, at *2 (D.
21

Minn. Feb. 23, 2012); Tharaldson v. Ocwen Loan Servicing, LLC, 840 F. Supp. 2d 1156,
1162 (D. Minn. 2011).
Here, Plaintiffs’ breach of contract claim fails. First, no binding contract for a
permanent modification was formed between the parties. The TPP Letter does not
constitute a specific and definite offer to modify Plaintiffs’ loan. See, e.g., Stark v. Bank
of Am., N.A., Civ. No. 14-2913, 2015 WL 756938, at *2 (D. Minn. Feb. 23, 2015) (noting
that even if the TPP was sufficient to create a unilateral contract, “it still fails under
Minnesota law because it is silent on material terms”); Bonhoff v. Wells Fargo Bank,
N.A., 853 F. Supp. 2d 849, 857 (D. Minn. 2012) (holding a TPP is not a contract to
modify a Note; but rather, it is an offer to consider modification); Laurent v. Mortg. Elec.
Registration Sys., Inc., Civ. No. 11-2585, 2011 WL 6888800, at *2 (D. Minn.
Dec. 30, 2011) (dismissing breach of contract claim where letter does not express the
requisite relevant terms for a loan modification); Wittkowski v. PNC Mortg., Civ.
No. 11-1602, 2011 WL 5838517, at *3-4 (D. Minn. Nov. 18, 2011) (providing that a TPP
is not a promise of a permanent loan modification; in addition TPP does not set forth all
relevant terms). Indeed, the TTP Letter specifically and explicitly provides that a
modification is not guaranteed, stating for example: (1) “This is the first step toward
qualifying for more affordable mortgage payments.”; (2) “The trial period offers you
immediate payment relief . . . while we process your paperwork to determine if you
qualify for a permanent loan modification.”; (3) “Note: This is only a temporary Trial
Period Plan. Your existing loan and loan requirements remain in effect and unchanged
during the trial period.”; (4) “Once we confirm you are eligible for a Home Affordable
22

Modification and you make all of your trial period payments on time, we will send you a
modification agreement . . .”; and (5) “You agree that all terms and provisions of your
current mortgage note and mortgage security instrument remain in full force and effect
and you will comply with those terms; and that nothing in this trial period plan shall be
understood or construed to be a satisfaction or release in whole or in part of the
obligations contained in the loan documents.” (Banks’ App. at 80, 82, 84 (emphasis
added).) 4 Pursuant to the TPP Letter, Plaintiffs were not promised a permanent loan
modification or that they would be offered a permanent loan modification.
Second, even accepting that Plaintiffs’ breach of contract claim is based on the
alleged existence of a binding unilateral contract, the claim also fails because there is no
written agreement between the parties that would satisfy the heightened requirements for
home loan modifications. The TTP Letter does not contain all relevant terms and
conditions of a modified loan and is not signed by both the creditor and debtor.
Therefore, it does not qualify as a credit agreement and no contract to modify the loan
was formed. See Stark, 2015 WL 756938, at *2; Wittkowski, 2011 WL 5838517, at *3-4.
For the above reasons, Plaintiffs’ breach of contract claim fails as a matter of law.
In addition, the Court notes that while it need not consider Defendants’ additional
4

Despite the fact that their Verified Complaint specifically identifies the
August 25, 2010 TPP Letter as the source of Defendants’ offer, in their opposition,
Plaintiffs cite to the June 2, 2010 Letter, wherein Wells Fargo invited Plaintiffs to
participate in a TPP, as the source of the alleged modification offer. This letter, however,
specifically provides that it is an invitation to apply for a TPP, not a loan modification.
Indeed, the June 2 letter states: “If you meet the eligibility criteria, you will be offered a
Trial Period Plan,” not a permanently modified loan. Thus this letter does not support
Plaintiffs’ present breach of contract theory.

23

arguments in support of summary judgment on this claim, the record demonstrates that
Plaintiffs failed to provide proof of clean title or a subordination agreement before
Wells Fargo closed its file and therefore did not perform the required conditions for a
loan modification.
B.

Negligent Misrepresentation (Count II)

In Count II of the Verified Complaint, Plaintiffs assert a claim for negligent
misrepresentation. (Verified Compl. ¶¶ 69-89.)
A person makes a negligent misrepresentation when: “(1) in the course of his or
her business, profession, or employment, or in a transaction in which he or she has a
pecuniary interest, (2) the person supplies false information for the guidance of others in
their business transactions, (3) another justifiably relies on the information, and (4) the
person making the representation has failed to exercise reasonable care in obtaining or
communicating the information.” Valspar Refinish, Inc. v. Gaylord’s, Inc., 764
N.W.2d 359, 369 (Minn. 2009) (citation omitted).
Plaintiffs assert that Wells Fargo made several false representations with respect to
a loan modification. These alleged misrepresentations stem from the August 25, 2010
TPP Letter. Specifically, Plaintiffs assert that Defendants offered and agreed in writing
to modify Plaintiffs’ loan, not to charge Plaintiffs any fees during trial payments, not to
conduct a foreclosure sale, and to waive all unpaid late charges, if Plaintiffs made
required trial payments. (Verified Compl. ¶ 72.)
Here, Plaintiffs’ negligent misrepresentation claim fails as a matter of law, as
Plaintiffs have not pointed to evidence that Defendants made the alleged
24

misrepresentations. As discussed above, the TPP Letter of August 2010 contains no
promises to permanently modify Plaintiffs’ loan if Plaintiffs made trial period payments.
Instead, the TPP Letter was an offer to enter into a trial period plan. Moreover, the TPP
Letter explicitly provides that it does not constitute a loan modification, that Plaintiffs’
loan requirements remained in effect and unchanged during the trial period, and that a
permanent modification would be contingent upon Plaintiffs making timely payments and
submitting required documentation for review. Viewing the evidence in the light most
favorable to Plaintiffs, there is no evidence that Defendants made any false
representations. As such, summary judgment on Plaintiffs’ negligent misrepresentation
claim is warranted.
C.

Breach of Covenant of Good Faith and Fair Dealing (Count III)

Under Minnesota law, there is an implied duty of good faith and fair dealing in
every contract. See In re Hennepin Cnty. 1986 Recycling Bond Litig., 540 N.W.2d 494,
502 (Minn. 1995) (citation omitted). Plaintiffs allege that Wells Fargo breached the
implied covenant of good faith and fair dealing by not providing them with a loan
modification. (Verified Compl. ¶¶ 90-97.)
A cause of action for good faith and fair dealing cannot exist independent of the
underlying breach of contract claim; instead, a contract must exist before a duty of good
faith and fair dealing can be implied. See, e.g., Cox v. Mortg. Elec. Registration Sys.,
Inc., 685 F.3d 663, 670 (8th Cir. 2010) (citation omitted). Here, the Court has already
concluded that Plaintiffs’ claim for breach of contract fails as a matter of law. Plaintiffs

25

cannot demonstrate that a contract to modify the loan existed. Accordingly, Plaintiffs’
breach of covenant of good faith and fair dealing claim also necessarily fails.
D.

Promissory Estoppel (Count IV)

In Count IV, Plaintiffs assert a claim for promissory estoppel. In support,
Plaintiffs allege that Defendants made a clear and definite promise that offered a
permanent modification of Plaintiffs’ loan should certain conditions be met. In
particular, Plaintiffs allege that Defendants made the “unequivocal promise . . . that:
Defendants were going to modify Plaintiffs’ Loan.” (Verified Compl. ¶ 99.)
To prevail on a promissory estoppel cause of action, Plaintiffs must demonstrate
that: (1) a clear and definite promise was made; (2) the promisor intended to induce
reliance and the promise was in fact relied on to his or her detriment; and (3) the promise
must be enforced to prevent injustice. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d
732, 746 (Minn. 2000).
Plaintiffs assert that the promises made were those made in the alleged TPP Letter.
Specifically, Plaintiffs assert that Defendants promised: (1) to modify Plaintiffs’ loan;
(2) that they would not charge Plaintiffs any fees during the trial payments; (3) that they
would not foreclose on Plaintiffs’ Property; and (4) that they would waive all unpaid late
fees. (Verified Compl. ¶ 99.) As discussed above, Wells Fargo did not promise to
modify Plaintiffs’ loan. Nor does the TPP Letter constitute a unilateral offer regarding
the same. Instead, Wells Fargo explained that participation in the TPP was a first step
towards a loan modification. Moreover, the TPP Letter specifically provided that “any
pending foreclosure action or proceeding will not be dismissed and may be immediately
26

resumed if you fail to comply with the terms of the trial period plan or do not qualify for
a modification” and “if your loan is modified, we will waive all unpaid late charges.”
(Banks’ App. at 82, 84 (emphasis added).) Because Plaintiffs have failed to put forth
evidence of the alleged promises, the Court grants summary judgment on Plaintiffs’
promissory estoppel claim. See, e.g., Bonhoff, 853 F. Supp. 2d at 857.
E.

Slander of Credit (Count V)

In Count V, Plaintiffs allege slander of credit, or credit defamation. Plaintiffs
allege that Defendants promised to modify Plaintiffs’ loan, failed to honor the
modification, and then negatively reported on Plaintiffs’ credit, resulting in Plaintiffs’
credit being slandered and causing damage to Plaintiffs. (Verified Compl. ¶¶ 106-16.)
Plaintiffs’ slander of credit claim fails for two reasons. First, any such claim
appears to be barred by the Fair Credit Reporting Act (“FRCA”). See 15 U.S.C.
§ 1681s-2. In particular, the Court is persuaded by authority from other circuits holding
that similar defamation claims are preempted when the claims arise out of duties as a
furnisher under 15 U.S.C. § 1681s-2. See, e.g., Macpherson v. JP Morgan Chase Bank,
N.A., 665 F.3d 45, 47-48 (2d Cir. 2011); Purcell v. Bank of Am., 659 F.3d 622, 624-25
(7th Cir. 2011). Here, Plaintiffs’ defamation claim arises out of Wells Fargo’s duties as a
furnisher under 15 U.S.C. § 1681s-2 and, thus, falls squarely within the preemption
language of § 1681t(b)(1)(F) (preempting all state-law claims relating to “any subject
matter regulated under . . . section 1681s-2 of this title, relating to the responsibilities of
persons who furnish information to consumer reporting agencies”).

27

Second, even if Plaintiffs’ slander of title claim was not preempted, Plaintiffs have
not pointed to evidence to support the claim. To prove a defamation claim, Plaintiffs
must show: (1) a false statement; (2) communicated to someone besides Plaintiffs; and
(3) that the statement tended to harm Plaintiffs’ reputation. See Richie v. Paramount
Pictures Corp., 544 N.W.2d 21, 25 (Minn. 1996) (citation omitted). Here, Plaintiffs have
no evidence demonstrating that Defendants made any defamatory statements. Moreover,
Plaintiffs have not pointed to any record evidence of credit reporting or any evidence that
they are not able to secure new credit as a result of any alleged reporting. Without such
evidence, Plaintiffs’ claim fails as a matter of law.
F.

Violation of Minnesota Statutes §§ 580.02, 580.04, and Slander of Title
(Counts VI, VII, and VIII)

In Counts VI and VII, respectively, Plaintiffs claim that Defendants violated
Minnesota Statutes §§ 580.02 and 580.04 in attempting to foreclose on the Property prior
to recording all assignments and without specifying all assignments and the notice of
foreclosure. (Verified Compl. ¶¶ 117-137.) The Minnesota Statutes at issue require that
in order to foreclose by advertisement, the mortgage, as well as any assignments, must be
recorded and that each notice of foreclosure by advertisement must contain the name of
the mortgager, the mortgages, and each assignee of the mortgage, if any. (See Minn. Stat.
§§ 580.02(3)), 580.04(a)(1).) Plaintiffs base their claims under these Minnesota Statutes
on the fact that Defendants’ Notice of Mortgage Foreclosure listed only one assignee,
The Bank of New York Mellon, yet Plaintiffs allege that the Mortgage was assigned at
least three more times, on July 13, 2005, July 14, 2005, and October 8, 2012.

28

Here, the public record shows that the Mortgage was recorded and that it was
assigned once on April 17, 2009, to the Bank of New York Mellon. (Bank’s App.
at 28-31.) In addition, the assignment was recorded on July 1, 2009. (Id.) The Notice of
Mortgage Foreclosure Sale contains the name of the mortgagers, the mortgages, and the
one assignment. (Id.) Thus, Defendants complied with the Minnesota Statutes and
Plaintiffs’ claims under those statutes fail as a matter of law.
The Court notes that Plaintiffs’ argument that alleged subsequent assignments
were required to be listed in the Notice of Foreclosure Sale is without merit. First, two of
these assignments were assignments of Plaintiffs’ second mortgage. (Id. at 146-53
(recorded copy of second mortgage); see also id. at 9-28; Haik Aff. ¶¶ 4, 6, Exs. 3, 5.)
Thus, these assignments were not required to be listed. Second, the third alleged
assignment, is blank and incomplete, naming no assignee. (Haik Aff. ¶5, Ex. 4.) This
blank assignment is without effect.
In Count VIII, Plaintiffs assert a claim for Slander of Title. (Verified Compl.
¶¶ 138-146.) Plaintiffs’ Slander of Title claim is premised on their claim for breach of
contract and violations of Minn. Stat. §§ 580.02 and 580.04. In short, Plaintiffs assert
that Wells Fargo did not have a right to foreclose because it promised to modify
Plaintiffs’ loan and because it failed to record all assignments of the mortgage. Thus,
Plaintiffs claim that recording a Sheriff’s certificate containing allegedly false statements
was slanderous.
To prevail on a claim of Slander of Title, Plaintiff must demonstrate that: (1) there
was a false statement concerning the real property owned by Plaintiffs; (2) the false
29

statement was published to others; (3) the false statement was published maliciously; and
(4) the publication of the false statement concerning title to the property caused damages.
Paidar v. Hughes, 615 N.W.2d 276, 279-80 (Minn. 2000).
Here, Plaintiffs’ Slander of Title claim fails as a matter of law. First, as explained
above with respect to Plaintiffs’ Breach of Contract claim, Plaintiffs cannot show that
Wells Fargo promised to modify Plaintiffs’ mortgage loan. Second, as discussed above,
Plaintiffs’ claims under Minn. Stat. §§ 580.02 and 580.04 fail as a matter of law. Finally,
Plaintiffs have not pointed to any evidence to demonstrate that Defendants acted with
malice. For these reasons, Plaintiffs’ Slander of Title claim fails and summary judgment
is warranted.
ORDER
1.

Plaintiffs’ Motion to Enforce Settlement Agreement (Doc. No. [40]) is

DENIED.
2.

Defendants’ Motion for Summary Judgment (Doc. No. [51]) is

GRANTED.
3.

This matter and all claims are DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 5, 2015

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

30