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Gewecke Resource Library
On September 15, 2010 the Geweckes filed a Second Amended Complaint against the Defendants, US Bank, CitiGroup Mortgage, & Countrywide Home Loans which allege a failure to abide by Minnesota's Foreclosure by Advertisement laws, breach of contract, slander of title, a violation of the Real Estate Settlement Procedures Act, and a violation of the Minnesota Mortgage Servicing Statute.

The Geweckes' main legal theory is that an assignment of mortgage from the originating lender ("A") to a loan trust ("D") is insufficient to comply with Minnesota's Foreclosure by Advertisement laws because it fails to evidence all the actual assignments to the intervening parties, the trust aggregator, and the trust depositor ("C"). Since Minnesota's Foreclosure by Advertisement law requires that the Defendants record all assignments, i.e. A - B - C - D before foreclosing, they have not yet complied with Minnesota law, and they cannot foreclose. Furthermore, the assignment of mortgage that was recorded (the "A - D Assignment") is therefore false.

 Motion to Dismiss

Instead of filing an Answer to the Plaintiffs' Complaint, on November 4, 2010, the Defendants filed a Memorandum in Support of Motion to Dismiss. The Memorandum argues that the Plaintiffs failed to state claims upon which relief can be granted, because Jackson v. Mortgage Electric Registration Systems, Inc holds that only actual assignments must be recorded and equitable assignments do not.

In response, on November 23, 2010, Plaintiffs' filed a Memorandum in Response in Opposition to Motion to Dismiss, which highlights the claims that can grant relief and points to the flaws in the Defendants' argument as it relates to Jackson. Namely, Plaintiffs' Complaint does not address equitable assignments; it claims that actual assignments were not recorded.

Defendants responded with a Reply Memorandum in Support of Motion to Dismiss.  Their Reply still asserted that the Geweckes claims fail because they do not state a claim upon which relief can be granted as a matter of law with Jackson as a basis. In order to resolve this dispute, U.S. Magistrate Judge Leo Brisbois heard oral arguments on March 16, 2011.

In his June 6, 2011 Report and Recommendation, Magistrate Judge Brisbois denied Defendants’ Motion to Dismiss, holding that the Plaintiffs have properly presented facts to support their contention that the A – D assignment violates Minnesota law. The Court determined that the Plaintiffs’ facts and legal question are not the same as the Jackson holding, and as such, Jackson does not dispose of the Plaintiffs’ claims. 
 
Motion to Amend into Class Action

On January 12, 2011 the Geweckes filed a Memorandum in Support of Motion to Amend the Complaint requesting that the court allow the Plaintiffs to broaden the scope of the pending lawsuit as to some of the claims by adding class allegations to include all those similarly situation who have been damaged by Defendants' fraudulent assignments and invalid foreclosure related fees. In addition to seeking declaratory relief on behalf of the class declaring "A to D" assignments invalid and legally insufficient, and breach of contract on a class basis, the Plaintiff move to amend their Second Amended Complaint to raise an additional violation of law, namely, violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO").

The Defendants, in response, filed a Memorandum in Opposition to Motion for Leave to Amend Complaint, which make allegations that the Geweckes claims are futile and should not be amended. The Defendant, again, tries to show that "A - D assignments" are valid under Minnesota law.

In the Magistrate Judge’s Order, he denied the Plaintiffs’ request to amend into a class, but allowed the Plaintiffs’ RICO claims to move forward.