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Rehr v. Guardian Tax Partners, Inc.

Court of Appeals of Iowa

April 19, 2017

THOMAS A. REHR, KATHRYN A. REHR, JEFFREY MINNER, RODNEY PETERSEN, BRADY LEMKE, and 1ST GATEWAY CREDIT UNION, Plaintiffs-Appellees,
v.
GUARDIAN TAX PARTNERS, INC., Defendant-Appellant.

         Appeal from the Iowa District Court for Clinton County, Mark R. Lawson, Judge.

         The holder of a tax sale certificate appeals the district court's order setting aside its deed as void due to the insufficiency of its proof-of-service affidavit. AFFIRMED.

          James E. Nervig of Brick Gentry, P.C., West Des Moines, for appellant.

          Thomas A. Rehr and Kathryn A. Rehr, pro se appellees.

          Christopher L. Farwell of Christopher L. Farwell, P.L.C., Clinton, for appellee Jeffrey Minner.

          James D. Bruhn of James D. Bruhn, P.L.C., Clinton, for appellee 1st Gateway Credit Union.

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

          TABOR, Judge.

         The plaintiffs[1] brought this action in equity to void a tax sale deed and restore their rights of redemption in a residence on Springdale Drive in Clinton. The district court granted the plaintiffs' motion for summary judgment, finding the affidavit of service of notice[2] of a ninety-day redemption period filed by Guardian Tax Partners, Inc., a Nebraska corporation, did not comply with the requirements in Iowa Code section 447.12. In its appeal, Guardian asserts the district court wrongly found its affidavit of service was insufficient and asks us to take a more "common sense" approach to the statutory requirements for such an affidavit. Because more than a century of case law instructs courts to strictly construe the statutory requirements for an affidavit of service, we find no error and affirm the district court's grant of summary judgment to the plaintiffs.

         I. Facts and Prior Proceedings

         Jeffrey Minner had owned the Springdale Drive property since 2005. In 2011, his mortgage lender transferred the property's title to Thomas and Kathryn Rehr by warranty deed. At the same time, 1st Gateway Credit Union recorded a mortgage on the property. The record shows Minner continued to live there, and he made mortgage payments.[3] The record does not indicate an agreement regarding the payment of the property's real estate taxes.

         Due to delinquent and unpaid taxes on the Springdale Drive property, Clinton County sold the property by sheriff's sale on June 18, 2012. See Iowa Code § 446.7. The buyer received a certificate of purchase from the county treasurer and then assigned that certificate to Guardian. See id. § 446.29. Thereafter, a proper party, as determined by the treasurer, could redeem the property "at any time before the right of redemption expires." Id. §§ 447.1, .5.

         When no one had redeemed the property by June 2015, certificate-holder Guardian took action to serve a notice, stating as relevant here, "the right of redemption will expire and a deed . . . be made unless redemption is made within ninety days from the completed service of notice." Id. § 447.9. Guardian's ninety-day period of redemption "begins as provided in section 447.12." Id. Under that section, Guardian's "[s]ervice is complete only after an affidavit has been filed" by Guardian "with the county treasurer." Id. § 447.12. Together, section 447.9 and section 447.12 instruct that Guardian's service will only be "complete" if it has followed section 447.12's requirements for Guardian's proof-of-service affidavit. See id. §§ 447.9, .12. Guardian filed its affidavit of service, no one redeemed the property within ninety days, and Guardian obtained a treasurer's deed, which was recorded on October 27, 2015. See City of Waterloo v. Bainbridge, 749 N.W.2d 245, 249 (Iowa 2008) ("If the property is not redeemed, the certificate holder is entitled to acquire the deed to the property.").

         On March 22, 2016, the owners, the parties in possession, and 1st Gateway filed a petition in equity alleging Guardian did not comply with sections 447.9 through 447.12. See Iowa Code § 447.8 (allowing action in equity to challenge treasurer's deed). As dispositive here, the plaintiffs alleged Guardian's affidavit was insufficient under section 447.12 by failing to state "under whose direction the affidavit was made." The plaintiffs asked the district court to enter a judgment declaring the treasurer's deed void.

         A week later, Guardian filed an answer and affirmative defenses. Both sides sought summary judgment. On October 5, 2016, the district court ruled on the cross-motions for summary judgment. Thereafter, both sides filed motions to modify the ruling under Iowa Rule of Civil Procedure 1.904(2). The district court reconsidered and filed a substituted ruling on November 3, 2016, holding the plaintiffs were entitled to summary judgment due to the insufficiency of Guardian's affidavit of service under the requirements for such affidavits in Iowa Code section 447.12. The court set aside Guardian's treasurer's deed as void, taxed costs to Guardian, [4] and concluded: "Guardian will be required to serve new notices of expiration of right of redemption on all parties in compliance with Iowa Code [section] 447.9, and file a proper affidavit of service in compliance with Iowa Code [section] 447.12 before a tax deed can be issued."

         Guardian appeals the district court's ruling. The plaintiffs waived their ...


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