MEMORANDUM OPINION AND ORDER

JOHN R. TUNHEIM, District Judge.

On July 26, 2007, Matthew V. Ebbighausen and Katherine Ebbighausen ("the Ebbighausens") entered into a mortgage loan transaction to refinance their home in Scott County, Minnesota. They eventually fell behind on their loan payments, and defendant JP Morgan Chase Bank, N.A. ("Chase") attempted to foreclose on the property. The Ebbighausens bring this action against Chase, John Doe,1 Creative Funding Corporation, Inc., Joanne Bryant, and the Federal Deposit Insurance Corporation ("the FDIC") as receiver for Washington Mutual ("WaMu") alleging claims for quiet title/declaratory relief, fraud/intentional misrepresentation, civil conspiracy to commit fraud, negligent misrepresentation, slander of title, individual liability/piercing the corporate veil, and violations of the Truth in Lending Act ("TILA").2 The Ebbighausens seek to rescind their loan and receive other relief because they allegedly received inadequate disclosures at closing pursuant to TILA. They also seek relief because, they allege, Chase has wrongly attempted to foreclose on their home. Although it is possible that Chase has wrongly attempted to foreclose, the Ebbighausens have not properly alleged that Chase has done so. Similarly, although it is possible that the Ebbighausens have a valid TILA claim, the Ebbighausens have not properly alleged such a claim. Accordingly, the Court will grant Chase and the FDIC's motions for summary judgment and will deny Plaintiffs' motion for default and summary judgment.

BACKGROUND

I. CLOSING AND CLOSING DOCUMENTS

Matthew Ebbighausen is a licensed real estate broker who owned a company involved in hundreds of residential real estate transactions. (Third Decl. of Matthew B. Seltzer, Ex. B (Dep. of Matthew Ebbighausen ("Ebbighausen Dep.") 42, 46-47), June 21, 2012, Docket No. 71.) On July 26, 2007, Matthew and Katherine Ebbighausen entered into a mortgage loan transaction to refinance their home. (First Aff. of Matthew V. Ebbighausen ¶ 3, May 14, 2012, Docket No. 54.) The closing of the loan took place at an office in Lakeville, Minnesota, that David Anderson, the closer of the loan, shared with the real estate brokerage that Matthew Ebbighausen owned. (Third Seltzer Decl., Ex. A at 4; Ebbighausen Dep. 50.) It appears that defendants Creative Funding Corporation, Inc., and Bryant had some involvement in the closing, but nowhere in the amended complaint is this precise role described. Ebbighausen had a prior business relationship with Anderson because Anderson's title company has underwritten transactions handled by Ebbighausen's brokerage. (Ebbighausen Dep. 49-51, 58.)

At the closing on July 26, the Ebbighausens agreed to borrow $885,500 from WaMu and, in return, agreed to grant WaMu a mortgage against their home. (See First Ebbighausen Aff. ¶ 4, Exs. A-C.) Matthew Ebbighausen signed the note for the property. (Id., Ex. A; Second Decl. of Matthew B. Seltzer, Ex. B at 9, May 29, 2012, Docket No. 58.) The note obligated the Ebbighausens to make monthly payments and, if they failed to do so, stated that the lender was entitled to accelerate the debt and foreclose the mortgage. (First Ebbighausen Aff., Ex. A.) The Ebbighausens both signed the mortgage, which was recorded by WaMu in the office of the County Recorder of Scott County, Minnesota, on August 3, 2007. (Id., Ex. B.) The mortgage identified the lender as "Washington Mutual Bank, FA." (Id., Ex. B at 9.)3

In addition to the note and mortgage, the Ebbighausens signed other documents on July 26, including a Good Faith Estimate of Closing Costs. (Third Seltzer Decl., Ex. C.) This Good Faith Estimate identified a loan discount fee of $6,641.25 to be paid by the Ebbighausens. (Id.) This loan discount fee was also disclosed in a Borrower's Disbursement Authorization that Matthew Ebbighausen signed. (Id., Ex. D.)

The Ebbighausens also signed a Truth in Lending Disclosure Statement ("TIL") on July 26 that outlined the terms of the loan as follows:

(Am. Compl., Ex. 4, May 6, 2011, Docket No. 26.) In addition, the Ebbighausens signed a "notice of right to cancel" document that day. (Id., Ex. 10.) By signing this document, the Ebbighausens confirmed that they "each acknowledge[d] receipt of two copies of NOTICE of RIGHT TO CANCEL and one copy of the Federal Truth in Lending Disclosure Statement." (Id.)4 Ebbighausen was aware through his work as a broker that loan closings include the right to rescind or cancel. (Ebbighausen Dep. 48.) He had also seen TILs before in the course of his work. (Id.)

The Ebbighausens claim that they received no copies of the closing documents on July 26. They currently allege that they only acquired copies of closing documents on October 31, 2008, after requesting them from the title company. (See First Ebbighausen Aff. ¶ 5.)5 Matthew Ebbighausen testified at his deposition, however, that he did not receive anything at closing but may have received some documents the next day. (Ebbighausen Dep. 59-60.) The closer of the loan, Anderson, testified that he delivered the entire package of closing documents to the Ebbighausens shortly after the closing on July 26, possibly the day after closing. (Third Seltzer Decl., Ex. A (Dep. of David Anderson ("Anderson Dep.") 23).)

II. HUD-1 SETTLEMENT STATEMENTS

Much of the Ebbighausens' case focuses on allegedly conflicting HUD-1 settlement statements related to their loan. A HUD-1 settlement statement ("HUD-1") is a statement "setting forth settlement charges in connection with either the purchase or the refinancing" of a residential property. 24 C.F.R. § 3500.2(b). Matthew Ebbighausen had seen HUD-1s in the past through his work as a broker. (Ebbighausen Dep. 47.)

The Ebbighausens have produced a HUD-1 dated "7/26/07 [at] 3:15 PM" ("the first HUD-1"). (First Ebbighausen Aff., Ex. H.) The first HUD-1 shows the "[t]otal settlement charges" for the mortgage loan to be $10,882.14.6 (Id.) It lists a "settlement" or closing date of July 26, 2007. (Id.)

The Ebbighausens have also produced a HUD-1 with a time-stamp across the top that states "07/31/07 1:41 PM" ("the second HUD-1").7 (See First Ebbighausen Aff., Ex. F.)8 Because of this time stamp, the Ebbighausens claim that the document was created on July 31. Although Chase claims that the document may have been created earlier, the Court will assume without deciding that the document was created on July 31. This HUD-1 shows the "[t]otal settlement charges" to be $17,764.64. (Id.) The settlement costs were higher in the second HUD-1, primarily because they included a loan discount fee of $6,641.25 that was not listed on the first HUD-1. (Id.)9 The second HUD-1 lists the "settlement" or closing date to be July 28, 2007. (Id.)10 The Ebbighausens claim that the second HUD-1 controlled the terms of the loan transaction and thus July 28 is when the loan truly "closed."11

III. AFFIDAVIT OF LOST NOTE

Sometime after the closing of the Ebbighausens' loan, the original note was lost. The Ebbighausens claim to have received a lost note affidavit from WaMu in 2009. (Id. ¶¶ 6-7.) This affidavit states that the promissory note in the amount of $885,500, executed by the Ebbighausens on July 28, 2007, was lost. (Id., Ex. N.) It lists the correct loan number for the note. (Id.; see Am. Compl., Ex. 1.) This affidavit has certain blank fields, such as a field intended to include information about when the security instrument was recorded. (First Ebbighausen Aff., Ex. N.)

WaMu also produced a "Lost Note Agreement and Indemnity," signed September 19, 2007, which acknowledges the loss of the original note and states — correctly — that the note was dated July 26, 2007. (See id., Ex. O; Am. Compl., Ex. 1.) This document states:

(First Ebbighausen Aff., Ex. O.) With the last line, this lost note agreement and indemnity is "endorsed in the blank." (Id.) The Ebbighausens claim that this endorsement in the blank creates a question of material fact as to whether the loan was assigned from WaMu to a party other than Chase at some point in the past.12

IV. THE EBBIGHAUSENS' DEFAULT

The Ebbighausens' payments on their loan are only current through December 2008, and they have not made a payment since March 2010. (Decl. of Montoya McGruder ¶ 10, Apr. 23, 2012, Docket No. 49.) In addition, Chase has apparently paid the real estate taxes on the property for some time. (Ebbighausen Dep. 63.)

V. SALE OF EBBIGHAUSENS' MORTGAGE AND LOAN

As noted above, WaMu originally owned the Ebbighausens' note and mortgage. On September 25, 2008, the Office of Thrift Supervision placed WaMu into FDIC receivership for liquidation. (First Aff. of Kelly S. Hadac, Ex. A, May 30, 2012, Docket No. 61; McGruder Decl., Ex. E.) Pursuant to a Purchase and Assumption Agreement ("P&A agreement") executed on September 25, 2008, the FDIC sold the assets and certain liabilities of WaMu to Chase, including — Chase alleges — the Ebbighausens' loan and mortgage. (See McGruder Decl. ¶ 4.)

VI. RECORDING OF THE MORTGAGE

At some point, Chase claims that it submitted to Scott County an Affidavit of the FDIC affirming that Chase became the owner of all WaMu loans. (Decl. of Janette L. Aalbers ¶¶ 2-3, Ex. A, Aug. 31, 2012, Docket No. 79.) This document, from the Washington State Recorder, lists Chase as the owner of all "loans and loan commitments of Washington Mutual." (Id., Ex. A at 4.) The form does not say anything about the Ebbighausens' property or mortgage. Chase has produced no document establishing that it recorded the Ebbighausens' mortgage with Scott County.

VII. NOTICE OF FORECLOSURE

In April 2009, Chase filed a Notice of Pendency of Proceeding to Foreclose Mortgage ("Foreclosure Notice"). (First Ebbighausen Aff., Ex. P.) In May 2009, Chase filed a Power of Attorney to Foreclose Mortgage. (Id., Ex. Q.) This document states that the mortgagee is Washington Mutual Bank, FA and lists the date and place of filing of the mortgage as August 3, 2007, in Scott County. (First Ebbighausen Aff., Ex. Q.) Thus, this document seems to acknowledge that Chase had not, by that time, recorded the mortgage in its name. The foreclosure sale of the Ebbighausen home has now been postponed twice. (First Decl. of Matthew B. Seltzer, Ex. K, Apr. 23, 2012, Docket No. 50.)

VIII. ATTEMPT TO RESCIND

The Ebbighausens attempted to rescind their mortgage loan by sending notice to WaMu on April 10, 2010, and to Chase on June 8, 2010. (First Ebbighausen Aff. ¶¶ 11-12, Exs. R-S.) No party has honored the rescission request. (Id. ¶ 13.)

ANALYSIS

I. STANDARD OF REVIEW

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party demonstrates that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that can be drawn from those facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. TILA

The Ebbighausens bring a claim for TILA rescission, pursuant to 15 U.S.C. § 1635, against Chase and the FDIC as receiver for WaMu. This claim alleges that WaMu did not clearly and conspicuously disclose the Ebbighausens' right to rescind their loan or the material terms of the loan. (Am. Compl. ¶¶ 84-98.) The Court must determine if a factual dispute exists regarding whether the Ebbighausens received the clear and conspicuous disclosures required by TILA.13

A. Disclosure of Material Terms

The Ebbighausens first argue that they are entitled to rescind their loan because they did not receive clear and conspicuous disclosure of the finance charge associated with their loan. TILA's purposes are "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing . . . practices." 15 U.S.C. § 1601(a). In accordance with these purposes, TILA "requires creditors to provide borrowers with clear and accurate disclosures of terms." Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998).14 Specifically, if a consumer does not receive certain "material disclosures," the consumer has the right to rescind the transaction. See 15 U.S.C. § 1635(a), (f); 12 C.F.R. § 226.23(a)(3). Among these "material disclosures" are the finance charge.15 12 C.F.R. § 226.23(a)(3) n.48. A "finance charge" is defined as "the cost of consumer credit as a dollar amount. It includes any charge payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit." Id. § 226.4(a). Examples of finance charges include "[p]oints, loan fees, assumption fees, finder's fees, and similar charges." Id. § 226.4(b)(3). Thus, finance charges include loan discount fees like those inaccurately omitted from the Ebbighausens' first HUD-1.

As a preliminary matter, the Court notes that the Truth in Lending Disclosure Statement ("TIL"), created pursuant to TILA requirements and signed by the Ebbighausens on the day of closing, did not violate TILA or disclose materially inaccurate terms. Indeed, the Ebbighausens have not argued that the TIL violated TILA.16

Instead, the Ebbighausens' complaint focuses on inaccuracies in the first HUD-1. (See Am. Compl. ¶ 92.) Specifically, the complaint alleges that the Ebbighausens are entitled to rescind their loan "because Washington Mutual or its successors in interest had initiated a foreclosure against the Ebbighausens and the [First] HUD-1 statement underdisclosed the finance charge by more than $35." (Id.) As noted above, the amount of "total settlement charges" changed from $10,882.14 in the first HUD-1 to $17,764.64 in the second HUD-1, which the Ebbighausens allege violates TILA. The primary reason for this difference in settlement costs was the first HUD-1's failure to list a loan discount fee of $6,641.25.

1. Ability of HUD-1s to Violate TILA

To address the Ebbighausens' argument, the Court must decide if inaccuracies in a HUD-1 can violate TILA. HUD-1s are created pursuant to the Real Estate Settlement Procedures Act ("RESPA"). RESPA mandates that a HUD-1 settlement statement "shall be completed and made available for inspection by the borrower at or before settlement by the person conducting the settlement." 12 U.S.C. § 2603(b); see also 24 C.F.R. § 3500.10.

The Court must first look to the language of TILA to determine if it requires accuracy in HUD-1s. See Owner-Operator Indep. Drivers Ass'n, Inc. v. Supervalu, Inc., 651 F.3d 857, 862 (8th Cir. 2011) ("[W]ith any question of statutory interpretation, the court begins its analysis with the plain language of the statute[.]"). TILA itself appears to be silent on whether HUD-1s must contain accurate terms at the time of closing. On the one hand, TILA states generally that, before the consummation of the transaction, "[t]he creditor shall make the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep." 12 C.F.R. § 226.17(a)-(b). TILA does not explicitly exclude the possibility that HUD-1s are among the "disclosures" that must include correct material terms. On the other hand, TILA's model disclosure forms (which include TILs, for example) do not include HUD-1s, suggesting that these forms are not subject to TILA's requirements. See 12 C.F.R. Pt. 226, App. H; see also 12 C.F.R. § 226.17(a) (outlining form of required disclosures), 226.18 (outlining content of required disclosures).

Because TILA is not explicit regarding whether inaccuracies in HUD-1s violate TILA — and, if anything, seems to suggest that they do not — it is appropriate to look to other methods of statutory interpretation. Under the rule of in pari materia, the Court should construe statutes involving related subject matter consistently when possible. See Erlenbaugh v. United States, 409 U.S. 239, 243 (1972); Linquist v. Bowen, 813 F.2d 884, 888-89 (8th Cir. 1987). Here, RESPA and TILA both involve disclosures related to mortgage loan transactions and thus should be interpreted consistently. See Erlenbaugh, 409 U.S. at 243; Linquist, 813 F.2d at 889.

The Court finds — by reading RESPA and TILA together — that violations of RESPA, including inaccuracies in HUD-1s, do not violate TILA. RESPA states that "[n]othing in [this chapter] shall affect the validity or enforceability of any . . . loan, loan agreement, mortgage, or lien made or arising in connection with a federally related mortgage loan." 12 U.S.C. § 2615. Allowing the Ebbighausens to rescind their loan under TILA due to inaccuracies in a HUD-1 would be inconsistent with this explicit provision in RESPA.

Furthermore, RESPA allows for corrections in HUD-1s, which would be inconsistent with requiring accurate HUD-1s under TILA. RESPA states:

See 24 C.F.R. § 3500.8(c).17 Thus, RESPA will forgive an inadvertent or technical error that is corrected within thirty days. TILA, on the other hand, demands that clear and conspicuous disclosures be made before consummation of the transaction. 12 C.F.R. § 226.17(a)-(b). Finding a TILA violation for inaccuracies in HUD-1s provided at closing would therefore conflict with RESPA. Thus, the Court declines to find a TILA violation due to the inaccuracy in the first HUD-1.

2. Inaccuracy of Terms in the Ebbighausens' HUD-1s

Even if inaccuracies in a HUD-1 violated TILA, however, there would be no violation in this case. The Ebbighausens argue that TILA was violated because the "settlement costs" on the HUD-1 — which they equate to the "finance charge" under TILA — were inaccurate. (See Am. Compl. ¶ 92.) However, the settlement costs listed on the first HUD-1 are not equivalent to a "finance charge" under TILA; for example, the credit report fee included in the HUD-1's "settlement costs" is not part of the "finance charge" under TILA.18 See 12 C.F.R. § 226.4(c)(7). On this basis alone, the Ebbighausens' claim fails because they have not pled with particularity the inaccurate terms in the first HUD-1 that violate TILA. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 465 (7th Cir. 2010) (holding that pointing to discrepancies between a HUD-1 settlement statement and TILA disclosures, without demonstrating a specific TILA violation, is insufficient to state a claim).

In addition, even if the Ebbighausens had pled their claim with specificity, their TILA claim would fail. As noted above, the HUD-1 did not list a "finance charge," instead listing only "settlement costs" such as the loan discount fee. The Ebbighausens therefore cannot claim that the HUD-1 inaccurately disclosed the overall finance charge and can instead only allege that the HUD-1 inaccurately recited aspects of the finance charge, such as the loan discount fee. See 12 C.F.R. § 226.4(b)(3) (listing "loan fees" as a component of the finance charge). However, rescission under TILA is not available for inaccurate itemization of the finance charge. See Smith v. Fid. Consumer Disc. Co., 898 F.2d 896, 901 (3d Cir. 1990). Here, the most the Ebbighausens can claim is that the HUD-1 inaccurately itemized aspects of the finance charge, such as the loan discount fee. Because this type of inaccurate itemization does not violate TILA, the Ebbighausens have not stated a TILA claim.19

B. Failure to Receive Notices of Right to Cancel

The Ebbighausens also claim that they have the right to rescind their loan under TILA because they were not given notices of their right to cancel or other closing documents. Under TILA, "[i]n a transaction subject to rescission, a creditor shall deliver two copies of the notice of the right to rescind to each consumer entitled to rescind." 12 C.F.R. § 226.23(b)(1). The consumer may rescind before midnight of the third business day following (1) the consummation of the transaction, (2) delivery of the notice of the right to rescind, or (3) "delivery of all material disclosures, whichever occurs last." 12 C.F.R. § 226.23(a)(3) (footnote omitted). Written acknowledgement of receipt of any disclosures creates a rebuttable presumption of proper delivery of the disclosures. 15 U.S.C. § 1635(c). The burden is then on the debtors to rebut the presumption by presenting evidence that the requisite number or quality of disclosures were not received. Cooper v. First Gov't Mortg. & Investors Corp., 238 F.Supp.2d 50, 64 (D.D.C. 2002).

Here, there is no dispute that the Ebbighausens ultimately received the closing documents they signed, including the TIL and the notice of right to cancel. (See, e.g., First Ebbighausen Aff., Ex. E.)20 The dispute is over the timing of this receipt. The Ebbighausens allege that "Washington Mutual did not provide any Notices of Right to Cancel to the Ebbighausens on either of the closing dates specified on the HUD-1 settlement statements: July 26, 2007 or July 28, 2007." (Am. Compl. ¶ 90.) The complaint also alleges that TILA was violated because the Ebbighausens "did not receive a copy of any TILA disclosures on July 28, 2007, which is the date of the closing according to the [second] HUD-1." (Id. ¶ 91.) These allegations, even if true, do not violate TILA because TILA explicitly does not require that the notice of right to cancel be provided on the date of the closing. See Simmons v. Mortg. Elec. Registration Sys., Inc., Civil No. 09-162, 2010 WL 428784, at *3 (D. Minn. Feb. 2, 2010); Peterson v. Argent Mortg. Co., Civil No. 06-3796, 2007 WL 1725355, at *2 (D. Minn. June 14, 2007). Rather, TILA gives the consumer three days after the delivery of the notice of right to cancel to rescind the transaction. See 12 C.F.R. § 226.23(a)(3). Thus, by alleging that they have the right to rescind because the HUD-1 was not delivered on the date of closing, the Ebbighausens have failed to state a TILA claim.21

III. QUIET TITLE

Next, the Court must address the quiet title claim that the Ebbighausens bring against Chase and the FDIC as receiver. The quiet title claim rests on allegations that Chase does not possess the note and there are defects with the note. (Am. Compl. ¶¶ 100-03.) The Court will dismiss this claim because these allegations are meritless under Minnesota law.22

Under Minnesota law, an assignment of mortgage must be recorded prior to foreclosure of a mortgage by advertisement. Minn. Stat. §§ 580.02, .04; Jackson v. Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487, 494 (Minn. 2009). The law of this Circuit clearly establishes that different entities can hold the promissory note and legal title to the mortgage, and that the holder of legal title to a mortgage need not possess the promissory note before it can institute foreclosure by advertisement. Stein v. Chase Home Fin., LLC, 662 F.3d 976, 979-80 (8th Cir. 2011) (citing Jackson, 770 N.W.2d at 489-501).

As a preliminary matter, the Court notes that it is not at all clear that Chase has properly instituted foreclosure proceedings against the Ebbighausens. Chase has not demonstrated that it has properly recorded the Chase mortgage, which is a prerequisite to any foreclosure proceeding instituted by Chase as mortgagee. See Jackson, 770 N.W.2d at 494. However, this is not the focus of the Ebbighausens' claims. Instead, the Ebbighausens focus on problems with the note.

Specifically, the Ebbighausens argue that the cases controlling on this Court — Jackson and Stein — were in error because they are silent on the role of Article 3 of the UCC in the enforcement of promissory notes. According to the Ebbighausens, Article 3 of the UCC does not allow the mortgage and note to be transferred separately and thus Chase must prove it is the owner of the note. The Court rejects this argument as a repackaging of the discredited show-me-the-note arguments repeatedly disallowed by this Court. See Butler v. Bank of America, N.A., 690 F.3d 959, 962 (8th Cir. 2012) (holding that the show-me-the note argument "is foreclosed by the plain language of Minnesota's foreclosure-by-advertisement statute").

The Ebbighausens also appear to argue that Chase does not have the authority to foreclose because it did not demonstrate its authority to foreclose on behalf of the note holder. The Court finds no merit in this argument. "[I]t is not necessary that the mortgage holder get the permission of the note holder to foreclose; if the mortgage holder forecloses against the wishes of the note holder, that is a dispute for those parties (and only those parties) to resolve." Welk v. GMAC Mortg., LLC, 850 F.Supp.2d 976, 985(D. Minn. 2012); see also JPMorgan Chase Bank, N.A. v. Erlandson, No. A12-0045, 2012 WL 3792624, at *5 (Minn. Ct. App. Sept. 4, 2012).23 In addition, even if Chase was required to prove that it owned the note, the Court finds that it could do so.24

The Ebbighausens also argue that there is a defect with the affidavit of lost note, creating no right to foreclose on the property. The Court finds otherwise. Minnesota Statutes § 336.3-309(b) requires that a person seeking to enforce an instrument "prove the terms of the instrument and the person's right to enforce the instrument." Here, Chase has proven the terms and its right to enforce the note. First, a copy of the note is attached to the amended complaint, showing its terms. Second, the original affidavit of lost note is in the possession of Chase and establishes, along with the P&A agreement, that the Ebbighausens' note was transferred to Chase.25 Thus, there is no question of material fact regarding the terms and ownership of the instrument. Because the Ebbighausens' quiet title claim is based on alleged problems with the note, the Court will dismiss the claim.

IV. FRAUD/INTENTIONAL MISREPRESENTATION AGAINST CHASE AND THE FDIC

The Ebbighausens next allege fraud and misrepresentation against Chase and the FDIC as receiver for WaMu. This claim is based on allegations that WaMu included incorrect terms on the first HUD-1 on which the Ebbighausens relied when entering into the mortgage loan transaction.

In an action for fraudulent misrepresentation, the plaintiff must show that the misrepresenter acted with fraudulent intent. Florenzano v. Olson, 387 N.W.2d 168, 173 (Minn. 1986). "Fraudulent intent is, in essence, dishonesty or bad faith." Id.

Id. (quoting Restatement (Second) of Torts § 526 (1977)).

The Court concludes that no reasonable jury could conclude that WaMu or the closer, Anderson, acted with fraudulent intent. Here, there is no direct evidence that WaMu or Anderson acted in anything but a negligent manner in making errors on the first HUD-1. The circumstantial evidence likewise yields no reasonable inference of fraudulent intent. Documents at closing other than the HUD-1 that contained correct terms, including the loan discount fee, suggesting a lack of intent to deceive. Furthermore, the HUD-1 was revised — in accordance with REPSA and shortly after the closing — to disclose the correct terms, again suggesting that Anderson and WaMu had no intent to mislead the Ebbighausens.26 Absent any evidence of dishonesty or bad faith, the Court finds that no jury could reasonably conclude that WaMu had fraudulent intent in producing the first HUD-1 at closing.

In addition to fraudulent intent, the Ebbighausens must also demonstrate that they reasonably relied upon the misrepresentations. See Davidson v. Wilson, 763 F.Supp. 1470, 1472 (D. Minn. 1991). Reasonable reliance is judged by taking into account "[t]he capacity and experience of the recipient of the alleged misrepresentations." Id. Matthew Ebbighausen is sophisticated in the area of mortgage loan transactions. He is a licensed real estate broker who has been involved in hundreds of real estate transactions and has previously seen TILs and HUD-1s. Given his sophistication and experience, the Court finds that it was unreasonable for him to rely on the first HUD-1 in light of its conflict with other documents signed at closing. Furthermore, even if the Ebbighausens' reliance could have been reasonable, they have not pointed to evidence showing that they in fact relied on the HUD-1 — to the exclusion of the other documents provided at closing — in deciding to close on the loan. Accordingly, the Court will dismiss this claim against Chase and the FDIC as receiver for WaMu.

V. FRAUD/INTENTIONAL MISREPRESENTATION AGAINST JOAN BRYANT AND CREATIVE FUNDING CORPORATION, INC.

The Ebbighausens also assert a claim of fraud and intentional misrepresentation against Bryant and Creative Funding Corporation, Inc. ("Creative Funding"). This claim alleges that Bryant and Creative Funding deceived the Ebbighausens into believing they had accepted the terms outlined at closing and misrepresented that the Ebbighausens had agreed to the terms outlined in the second HUD-1. (Am. Compl. ¶¶ 106-117.) The Court finds these vague accusations wholly insufficient to survive summary judgment. The complaint and briefing provide no details on the role that Bryant and Creative Funding played in any aspect of the mortgage loan transaction. The record is also devoid of specific allegations — much less direct or circumstantial evidence — that would show or even suggest a fraudulent intent on behalf of Bryant and Creative Funding. See Florenzano, 387 N.W.2d at 173. To the extent that the Ebbighausens attempt to link Bryant and Creative Funding's liability to that of Chase or WaMu, this attempt fails for the reasons listed above regarding the fraud claim against those defendants.27 Accordingly, the Court will dismiss this claim.

VI. CIVIL CONSPIRACY TO COMMIT FRAUD

The Ebbighausens bring a civil conspiracy to commit fraud claim against Chase, the FDIC as receiver for WaMu, Creative Funding and Bryant. This claim fails for two reasons. First, under Minnesota law, "[a] civil conspiracy claim requires an underlying tort." Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 986-87 (8th Cir. 2008). As already explained, the Court will dismiss the Ebbighausens' fraud claims so they have no underlying tort to support a claim for civil conspiracy to commit fraud. Second, the Ebbighausens' allegations regarding civil conspiracy are nebulous and insufficient to state a claim in any event. See Fed. R. Civ. P. 12(b)(6), 9(b). They allege that WaMu, Creative Funding, Bryant, and Chase combined unlawfully to originate and enforce a mortgage loan other than the loan to which the Ebbighausens agreed, unlawfully enforced a security instrument not incident to any lawful debt instrument, and executed and exchanged false documents, among other allegations. (Am. Compl. ¶¶ 134-41.) However, nowhere do the Ebbighausens explain what role Creative Funding and Bryant had in the creation or signing of the mortgage loans; instead, they make general allegations, such as that they "exchanged false documents" and "perpetrate[d] a fraud." (See id. ¶¶ 135-36.) The Ebbighausens also fail to explain how the parties worked together, beyond vague accusations that they "confederated and combined" to participate in various activities. (See id. ¶ 139.) Accordingly, dismissal of this claim is warranted.

VII. NEGLIGENT MISREPRESENTATION

The Ebbighausens also assert a claim of negligent misrepresentation against Chase, the FDIC as receiver for WaMu, Creative Funding, and Bryant. In order to prevail on a negligent misrepresentation claim, the Ebbighausens must demonstrate: "(1) a duty of reasonable care in conveying information; (2) breach of that duty by negligently giving false information; (3) reasonable reliance on the misrepresentations, which reliance is the proximate cause of physical injury; and (4) damages." Flynn v. Am. Home Prods. Corp., 627 N.W.2d 342, 350-51 (Minn. Ct. App. 2001).

This claim alleges that the defendants misrepresented that the Ebbighausens entered into a mortgage loan agreement with settlement charges as reflected in the first HUD-1.28 (Am. Compl. ¶ 143.) This allegation fails because, as described above, the Ebbighausens did not reasonably rely on the HUD-1 in entering into the mortgage transaction, nor have they raised a question of fact regarding whether they in fact relied on the HUD-1.29

In addition, the negligent misrepresentation claim alleges problems with the note and the giving of false information to the Ebbighausens about the enforceability of the note and Chase's right to foreclose.30 The Court will dismiss this claim because, as explained above, the Ebbighausens have not raised a genuine issue of material fact regarding problems with the note or with Chase's attempt to foreclose based on the note.31

VIII. SLANDER OF TITLE

The Ebbighausens assert a slander of title claim against Chase and the FDIC as receiver for WaMu. Under Minnesota law, slander of title requires a plaintiff to establish that (1) a false statement (2) was published to others (3) maliciously32 and (4) the publication caused the plaintiff pecuniary loss in the form of special damages. Paidar v. Hughes, 615 N.W.2d 276, 279-80 (Minn. 2000). The Ebbighausens allege that Chase made a false statement about the property by "record[ing] a mortgage incident to a nonexistent loan and record[ing] that mortgage with the Scott County Office of the Registrar of Titles."33 (Am. Compl. ¶ 154.) They also assert that "the notice of pendency of foreclosure was publicly recorded even though it was not valid and in disregard to the facts." (Id. ¶ 155.) Again, the Court finds no genuine issue of material fact regarding whether there is a nonexistent loan or a false statement about a nonexistent loan; therefore, the Court will dismiss this claim.34

ORDER

Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:

1. Defendant JP Morgan Chase Bank, N.A.'s Motion for Summary Judgment [Docket No. 46] is GRANTED;

2. Defendant Federal Deposit Insurance Corporation's Motion for Summary Judgment [Docket No. 59] is GRANTED;

3. Plaintiffs' Motion for Default Judgment and Motion for Summary Judgment [Docket No. 62] is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.