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Nelson Enterprises, L.C. v. Vogel

Court of Appeal of Iowa

November 20, 2013

NELSON ENTERPRISES, L.C., Plaintiff-Appellant,
v.
JAMES L. VOGEL, Defendant-Appellee.

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.

A vendee appeals the forfeiture of a real estate contract.

Patrick Burk and Matt O'Hollearn, Brick Gentry, P.C., West Des Moines, for appellant.

Thomas Tarbox of The Law Office of Thomas T. Tarbox, Des Moines, for appellee.

Considered by Doyle, P.J., and Tabor and Bower, JJ.

TABOR, J.

Nelson Enterprises, L.C., appeals the district court's order declining to set aside the forfeiture of a real estate contract. Nelson alleges the notice provided by vendor James Vogel under Iowa Code section 656.2 (2009) did not include a ground of noncompliance sufficient to justify the forfeiture. Because we agree with the district court's determination that delinquent real estate taxes served as a valid basis for forfeiture, we affirm.

I. Background Facts and Procedure

On December 31, 2001, James and Patricia Vogel sold a six-unit apartment building in Des Moines to Nelson Enterprises[1] for a purchase price of $86, 000. The parties recorded the sale on April 16, 2002. Nelson submitted $60, 200 as a down payment and agreed to pay the remaining $25, 800 in monthly installments of $299.56. Nelson secured the down payment by a mortgage, which Liberty Bank holds through assignment.

The contract required vendee Nelson to pay all real estate taxes before they become due. The contract also allowed the Vogels, as vendors, to initiate forfeiture upon Nelson's failure to pay taxes levied on the property before those taxes became delinquent, as well as when Nelson failed to make timely installment payments.

Nelson paid installments through May 2009. He then stopped making the monthly payments. He also stopped paying real estate taxes on the property. By the summer of 2010, the delinquent taxes amounted to more than $18, 000. The parties met with attorneys and with each other in August and September of 2010. But they reached no resolution. Nelson did make double payments in September and October of 2010.

Vogel served a notice of forfeiture on October 19, 2010. At the time the forfeiture was served, Polk County Treasurer records indicated Nelson owed $18, 364 in delinquent property taxes. The forfeiture list three defaults under the contract:

(1) "Buyer failed to pay contract payments when due" in the amount of $33, 839.93, (2) "real estate taxes due, owing through tax sale or otherwise necessary to [redeem] property from tax sale and pay taxes due through September 30, 2010" in the amount of $18, 464, (3) "Cost of necessary repairs" in the amount of $6, 150.

In a letter sent during the thirty-day redemption period, Nelson's attorney disputed the $33, 839.93 amount alleged due in contract payments and the $6150 in repair costs, but did not mention the delinquent taxes. Vogel's attorney sent a response discussing the ...


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