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U.S. Bank National Association v. Parrott

Court of Appeals of Iowa

July 18, 2018

U.S. BANK NATIONAL ASSOCIATION, Plaintiff-Appellant,
v.
MICHAEL PARROTT, HEIRS OF DOLORES MARIE LISK, ERIC LISK, UNKNOWN HEIRS OF DOLORES MARIE LISK, CREDITORS OF DOLORES MARIE LISK, STATE OF IOWA, and PARTIES IN POSSESSION, Defendants-Appellees.

          Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.

         In an interlocutory appeal, plaintiff challenges the district court decision denying its motion for a default judgment in a foreclosure action.

          Donald J. Pavelka Jr. of Locher Pavelka Dostal Braddy & Hammes, L.L.C., Council Bluffs, for appellant.

          Thomas J. Miller, Attorney General, and Donald D. Stanley, Jr. and Laura A. Steffensmeier, Assistant Attorneys General, for appellee State.

          Eric Lisk, Wilson, appellee pro se.

          Michael Parrott, appellee pro se.

          Considered by Vogel, P.J., Bower, J., and Mahan, S.J. [*]

          BOWER, JUDGE.

         In an interlocutory appeal, U.S. Bank National Association (U.S. Bank) challenges the district court decision denying its motion for a default judgment in a foreclosure action where the mortgagor is deceased. We find U.S. Bank adequately provided notice to those with an interest in the foreclosure proceedings. We conclude the district court abused its discretion in denying U.S. Bank's motion for a default judgment.

         I. Background Facts & Proceedings

         On April 24, 2015, Dolores Lisk obtained a loan of $58, 500 from U.S. Bank. The loan was secured by a mortgage on real estate she owned in Davenport. Lisk died on January 28, 2016. An estate was not opened after her death. The loan went into default.

         On September 22, 2016, U.S. Bank filed a petition seeking foreclosure of the mortgage without redemption, under Iowa Code section 654.20 (2016), and waived its right to a deficiency judgment. The petition named as defendants Lisk's sons Michael Parrott and Eric Lisk, unknown heirs of Lisk, creditors of Lisk, and "all persons known and unknown claiming any right, title, or interest and all of their heirs, spouses, assigns, grantees, legatees, devisees, and all beneficiaries of each and all the above-named defendants."[1] U.S. Bank mailed notice to Lisk's two sons. The district court entered an order permitting service by publication for the unknown defendants. U.S. Bank placed an official notice of the foreclosure action in the Quad-City Times on three occasions. The property which was the subject of the foreclosure was vacant.

         On November 1, U.S. Bank gave notice of its intent to file a written application for default. No defendants responded to the foreclosure petition or the notice of intent to seek a default judgment. U.S. Bank filed an application for default judgment on January 4, 2017. The district court denied the motion, finding an estate should be opened to determine the real parties in interest concerning the property in question. The court also stated, "Plaintiff has provided no authority to support its methods."

         U.S. Bank filed a motion to reconsider, stating it relied upon Iowa Title Standard 7.8. It noted Lisk's obituary stated she was survived by two sons and other relatives, and the sons had been given notice of the foreclosure proceedings. Additionally, the bank pointed out it was seeking an in rem judgment against the real estate. The district court denied the motion to reconsider. The court stated, "In order to quiet title and grant Plaintiff's motion, the Court would need to make findings that the defendants are the real parties in interest." Also, "This Court cannot make a finding that it has jurisdiction over persons with an interest because this court does not know the identity of the persons with an interest in the estate of a ...


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