THOMAS A. REHR, KATHRYN A. REHR, JEFFREY MINNER, RODNEY PETERSEN, BRADY LEMKE, and 1ST GATEWAY CREDIT UNION, Plaintiffs-Appellees,
GUARDIAN TAX PARTNERS, INC., Defendant-Appellant.
from the Iowa District Court for Clinton County, Mark R.
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.
E. Nervig of Brick Gentry, P.C., West Des Moines, for
A. Rehr and Kathryn A. Rehr, pro se appellees.
Christopher L. Farwell of Christopher L. Farwell, P.L.C.,
Clinton, for appellee Jeffrey Minner.
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.
plaintiffs 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 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.
Facts and Prior Proceedings
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. The record does not indicate
an agreement regarding the payment of the property's real
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.
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.").
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.
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,  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."
appeals the district court's ruling. The plaintiffs
waived their ...