See also unpublished cases cited in Roberts, 25 Minnesota Practice Real Estate Law Section 6.20. 7 (affidavit of service of notice of cancellation and noncompliance is prima facie evidence of cancellation of a residential purchase agreement under §559.217 and authorizes release of the earnest money to the party who served the notice). Relying on Thomey, Block suggested that even a defense that the contract for deed had been paid in full could not be raised unless an injunction was first obtained. §559.213 (recording of a notice of default, proof of service and affidavit of noncompliance is prima facie evidence that contract was terminated under §559.21) and §559.217, subd. Thus, although the cases do not directly address the point, cancellations have been invalidated, notwithstanding the failure to procure an injunction prior to the end of the notice period, in cases where the claim was the notice understated the statutory time for cure, decided after Thomey, the Minnesota Court of Appeals 1) invalidated a cancellation based upon the fact that the default was an immaterial single payment, and 2) reversed the trial court’s ruling that it lacked jurisdiction to invalidate the cancellation due to the purchaser’s failure to seek judicial relief prior to the running of the notice period. 4, despite the fact that the purchaser did not seek an injunction prior to the running of the notice period.
have interpreted the language referencing procuring the injunction “prior to the effective date of termination of the contract” to mean that if the purchaser does not obtain an injunction prior to the period set forth in the cancellation notice, then the purchaser may not subsequently raise any defense to the cancellation, including a defense of waiver. A blanket rule that a defense to cancellation can never be raised unless an injunction under §559.211 is obtained prior to the end of the notice period is, however, inconsistent with another line of cases, mostly decided prior to the enactment of the injunction statute, invalidating cancellation even though no injunction was either sought or obtained prior to the end of the notice period.
Thus, either due to the fact that the seller has not had at least four previous contract-for-deed sales in the past year or because a lawyer or real estate broker or salesperson is representing the buyer, garden-variety sales will be exempt from the disclosure requirement. However, even if a particular contract-for-deed is exempted under this provision, it still counts for purpose of determining whether a seller is a “multiple seller” for a future contract for deed transaction.
Assuming that the residential transaction involves a “multiple seller” and the lawyer/real estate broker exception does not apply, the statute imposes a disclosure requirement somewhat similar to the condominium/townhome disclosure statute.
(2)(a) The Master or the Court may examine any person summoned under sub-section (1) on oath or affirmation concerning any matter referred to in that subsection, either orally or on written interrogatories, and may reduce his answers to writing and require him to sign them.
(b) Any such person may be required to answer any question put to him at the examination, notwithstanding that the answer might tend to incriminate him, and any answer given to any such question may thereafter be used in evidence against him.(3) The Master or the Court may require any such person to produce any books or papers in his custody or under his control relating to the company but without prejudice to any lien claimed with regard to any such books or papers, and the Court shall have power to determine all questions relating to any such lien.(4) If any person who has been duly summoned under subsection (1) and to whom a reasonable sum for his expenses has been tendered, fails to attend before the Master or the Court at the time appointed by the summons without lawful excuse made known to the Master or the Court at the time of the sitting and accepted by the Master or the Court, the Master or the Court may cause him to be apprehended and brought before him or it for examination.(6) Any person who applies for an examination or enquiry in terms of this section or section 418 shall be liable for the payment of the costs and expenses incidental thereto, unless the Master or the Court directs that the whole or any part of such costs and expenses shall be paid out of the assets of the company concerned.(7) Any examination or enquiry under this section or section 418 and any application therefore shall be private and confidential, unless the Master or the Court, either generally or in respect of any particular person, directs otherwise."In the winding-up of two companies unable to pay their debts, the applicants were summoned for examination ("the section 417 examination" or "the section 417 enquiry") pursuant to the provisions of sub-sections (1) and (2) of section 417 of the Act.
Finally, the Thomey rule presents an insurmountable problem for a purchaser where the basis for the otherwise valid defense, such as waiver, only arises at the last days of the notice period (or after the cancellation period) when there is no time left to obtain an injunction. 2 to provide that, subject to other statutory provisions that create a prima facie presumption that a statutory cancellation has been effectuated, the injunction statute itself does not bar a court from determining the validity, effectiveness, or consequences of a statutory cancellation under either §559.21 or §559.217, or granting other relief in connection therewith, despite the fact that the purchaser did not seek or obtain relief under the injunction statute prior to the end of the notice period. The extent of the reach of the Olson rule has always been open to interpretation and that uncertainty will continue with the new amendment.