Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bank v. Clement

Court of Appeals of Iowa

March 20, 2019

GREAT WESTERN BANK, Plaintiff,
v.
CONRAD D. CLEMENT; MANACO, CORP., and PARTIES IN POSSESSION, Defendant. SUE ANN DOUGAN, Appellant,
v.
WAYNE JOSEPH MLADY, Appellee.

          Appeal from the Iowa District Court for Howard County, John J. Bauercamper, Judge.

         The assignee of a debtor's right of redemption appeals the district court's determination that the assignment was not valid and enforceable under the terms of the underlying foreclosure decree. REVERSED AND REMANDED.

          John L. Duffy of Heiny, McManigal, Duffy, Stambaugh & Anderson, P.L.C., Mason City, for appellant.

          Lynn Wickham Hartman, Erin R. Nathan, and Jared F. Knight of Simmons Perrine Moyer Bergman PLC, Cedar Rapids, for appellee.

          Considered by Potterfield, P.J., Doyle, J., and Carr, S.J. [*]

          DOYLE, Judge.

         Sue Ann Dougan, the assignee of a debtor's statutory right of redemption, appeals following the dismissal of her petition in district court seeking declaration of her assignment's validity, as well as calculation of the interest due to redeem the assignor-debtor's foreclosed property. Dougan challenges the district court's determination that the use of the word "exclusive" in the foreclosure decree meant the debtor was prohibited from validly assigning his right of redemption. Dougan further asserts the court erred in finding that because the debtor did not appeal the decree, "the law of the case" and res judicata rendered Dougan's assignment invalid and unenforceable. Upon our review, we reverse the ruling and remand the case back to the district court for further proceedings consistent with this opinion.

         I. Background Facts and Proceedings.

         In December 2016, lender Great Western Bank filed a petition in district court alleging Conrad Clement, the debtor, was in default under the terms of the parties' mortgage agreement for failing to pay the bank as agreed. The bank requested judgment be entered against Clement for the sums of money due under the parties' agreement. The bank also requested the property securing the parties' agreement-208 acres of agricultural land-be foreclosed upon to satisfy the judgment.

         In January 2017, the bank filed a motion seeking entry of a default judgment against Clement and parties in possession. On February 3, 2017, the district court entered an order finding Clement and parties in possession in default and entered a default judgment against them. The court directed the bank to submit a proposed judgment and decree of foreclosure consistent with the relief it prayed for in its petition.

         On March 24, 2017, the district court entered a decree granting the bank's request to foreclose upon the farm property that secured Clement's mortgage. The decree noted the judgment and decree had been submitted by the bank as previously directed by the court. Among the findings of fact set out in the decree, one paragraph stated: "The court notes that the Subject Real Estate is agricultural real estate and, as such, there shall be a one-year redemption following sheriff's sale, exclusive to the Defendant, Conrad D. Clement only. The court further notes that sheriff's sale may be scheduled immediately upon request by [the bank]." Similarly, in the "order, judgment and decree" section of the decree, the decree provided:

The court finds that the Subject Real Estate is agricultural real estate and, as such, following sheriff's sale of the Subject Real Estate, which may take place immediately upon written request by counsel for Lender, there shall be a one-year period of redemption exclusive to the Defendant, Conrad D. Clement, following any such sheriff's sale.

         Following a sheriff's sale, the farm property was purchased by Wayne Mlady on May 22, 2017. Almost eleven months later, Sue Ann Dougan filed a petition in the case essentially seeking entry of a declaratory judgment in her favor. Dougan's petition stated Clement had assigned his right to redeem the farm property to her, with a copy of the assignment attached thereto. The assignment stated it was effective March 28, 2018, and it assigned Clement's "exclusive right to redeem the [farm] real estate" for value received. In her petition, Dougan states she had tendered to the district court clerk more than the sum due pursuant to Iowa Code sections 628.13 and .18 (2017) to redeem the property. She requested the district court "[r]atify and confirm the redemption of the [farm property] by [Dougan] in accordance with the terms determined by the court." Mlady answered the petition and resisted Dougan's claims she validly redeemed the farm property.

         A hearing on Dougan's petition was held in April 2018 before a judge not previously involved in the foreclosure case. Thereafter, the court entered an order denying Dougan's petition and determining Clement's assignment was not valid and enforceable. The court concluded: "The decree states that the redemption right ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.