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Sovereign Bank v. Vernon P. Varner and Lynda K. Varner

March 13, 2013

SOVEREIGN BANK, PLAINTIFF-APPELLEE,
v.
VERNON P. VARNER AND LYNDA K. VARNER, DEFENDANTS-APPELLANTS,
AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., UNITED STATES OF AMERICA, STATE OF IOWA, AMERICAN EXPRESS, SELZER WERDERITSCH & ASSOCIATES AND FIRST NATIONAL BANK OF OMAHA, DEFENDANTS.



Appeal from the Iowa District Court for Johnson County, Marsha Bergan (summary judgment), Douglas Russell (foreclosure decree).

The opinion of the court was delivered by: Tabor, J.

Vernon and Lynda Varner challenge the grant of summary judgment in a foreclosure action in favor of Sovereign Bank. AFFIRMED AND REMANDED.

Heard by Eisenhauer, C.J., and Vaitheswaran and Tabor, JJ. Mullins, J., takes no part.

Vernon and Lynda Varner challenge the grant of summary judgment in a foreclosure action in favor of Sovereign Bank. They contend Sovereign failed to make a threshold showing regarding the allegations in its foreclosure petition and that genuine issues of material fact existed at the time the court granted Sovereign's renewed motion for summary judgment.

Because the Varners did not raise any of the issues in the district court that they present on appeal, nor did the district court rule on their issues, the homeowners did not preserve error on the challenges before us. We remand the case for the district court to determine Sovereign's appellate attorney fees.

I. Background Facts and Proceedings

On February 3, 2010, Sovereign Bank filed a petition against Vernon Varner, Lynda Varner, and their creditors, seeking to foreclose on the Varners' home located at lot fourteen on Brickwood Circle Northeast in Iowa City.*fn1

Sovereign's petition alleges the following facts.

On August 11, 2003, the Varners made, executed, and delivered to CSMC, Inc. d/b/a Direct Mortgage Funding (CSMC) a promissory note for the principal sum of $229,600 with an adjustable rate of 6.75 percent per annum after maturity. The Varners also made, executed, and delivered to CMSC a mortgage conveying their interest in the above-listed property, recorded on August 15, 2003. Sovereign included copies of both instruments as exhibits to its petition. The mortgage was eventually assigned to Sovereign Bank, though the bank did not include the assignment document as an exhibit. The Varners are now in default, and as of January 14, 2010, the balance due on the note is $229,546.46.

In the Varners' answer they largely deny Sovereign's allegations and assert several defenses.

On January 20, 2011, Sovereign moved for summary judgment. The bank's motion asserted no material fact was in genuine dispute and the Varners had no viable defense; it also referred to bank employee James McGinley's attached affidavit as proof of the veracity of the facts stated in the petition. McGinley's attached affidavit states:

1. That I am employed by Sovereign Bank in the foreclosure department.

2. That documenting mortgage payments is a regularly conducted business activity of Sovereign Bank.

3. That I have read the Petition for Foreclosure, Motion for Summary Judgment, and Statement of Facts believed not to be in dispute, and I know of my own personal knowledge that each and every fact therein contained is true and ...


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