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Point Builders, L.L.C. v. Zheng

Court of Appeals of Iowa

December 5, 2013

POINT BUILDERS, L.L.C., Plaintiff-Appellee,
v.
SHI ZHONG ZHENG, Defendant-Appellant, and TING SI ZHENG, JIMMY CHENG and G.P. SCHOENFELDER, Trustee of the GERALD P. SCHOENFELDER 2003 REAL PROPERTY TRUST, Defendants. GERALD P. SCHOENFELDER 2003 REAL PROPERTY TRUST, ASSIGNEE OF REGIONS BANK, SUCCESSOR BY MERGER TO UNION PLANTERS BANK, N.A., Plaintiff-Appellee,
v.
SHI ZHONG ZHENG, SPOUSE OF SHI ZHONG ZHENG, TING SI ZHENG, SPOUSE OF TING SI ZHENG, JUMMY CHENG, SPOUSE OF JIMMY CHENG, CITY OF WATERLOO, IOWA, POINT BUILDERS, L.L.C., and PARTIES IN POSSESSION, Defendants.

Appeal from the Iowa District Court for Black County, Todd A. Geer, Judge.

Zheng appeals from the district court order dismissing his petition to vacate.

Dennis J. Naughton of Naughton Law Firm, Marion, for appellant.

Kirsten N. Arnold and Eric W. Johnson of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellee Schoenfelder.

Mark Mershon of Mershon Law Firm, Cedar Falls, for appellee Point Builders, L.L.C..

Heard by Vogel, P.J., Potterfield, J. and Mullins, J.

MULLINS, J.

Shi Zhong Zheng filed a petition to vacate default judgments obtained against him approximately five years earlier while he was incarcerated in China. He alleges the judgments are void because his due-process rights were violated. Finding the due process requirements were met in the underlying actions, the district court held the judgments were not void. Accordingly, Zheng's petition to vacate was untimely and the court dismissed it.

Zheng asks us to reverse the dismissal of his petition to vacate, arguing service by publication violated due process requirements. He also argues he was entitled to, but did not receive, competent defense by a guardian ad litem. Because Zheng received due process in both service and representation in the underlying actions, the district court properly exercised its discretion in dismissing Zheng's petition to vacate because it was untimely. Accordingly, we affirm. We remand to the district court to determine the amount of appellate attorney fees to which Schoenfelder is entitled.

I. BACKGROUNDS FACTS AND PROCEEDINGS.

Zheng and two partners[1] planned to build and operate a restaurant near Crossroads Mall in Waterloo. They purchased real estate in May of 2005 and obtained a $300, 000 loan secured by a mortgage from Union Planters Bank.

Zheng received an undivided one-half interest in the property and his partners each received an undivided one-fourth interest. Zheng also signed a contract with Point Builders to perform work on the property. On December 8, 2005, Point Builders filed a mechanic's lien on the property for the work done up to that point. An amended mechanic's lien was filed on April 7, 2006, to reflect the work performed up to that date.

On March 29, 2006, Zheng traveled to China. He made arrangements with one of his business partners and a cousin to pay his bills while he was away. He also left emergency funds to cover expenses in case something occurred in his absence. On April 4, 2006, Zheng was arrested and incarcerated. He alleges he was not allowed to communicate with anyone at home during his incarceration in China.

On May 2, 2006, Point Builders filed a petition to foreclose its mechanic's lien. Unable to locate Zheng and serve him personally, Point Builders served Zheng by publication. A default judgment in rem was entered against Zheng on December 6, 2006. Point Builders ...


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