TERRY D. BUTLER, Plaintiff-Appellant,
WELLS FARGO BANK, N.A., and DAVID M. ERICKSON, Defendants-Appellees.
from the Iowa District Court for Warren County, Timothy
plaintiff appeals the grant of summary judgment dismissing
H. Judisch and Robert M. Benton of Stuyvesant, Benton &
Judisch, Carlisle, and Allison M. Steuterman and Billy J.
Mallory of Brick Gentry, P.C., West Des Moines, for
Linebaugh, Angela Morales, and Kathryn Skilton of Faegre
Baker Daniels LLP, Des Moines, for appellee Wells Fargo Bank,
H. Luginbill and Emily A. Kolbe of Ahlers & Cooney, P.C.,
Des Moines, for appellee David M. Erickson.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
Butler appeals from the district court's grant of summary
judgment in his action against Wells Fargo Bank, N.A. (Wells
Fargo) and David Erickson. Butler initiated these proceedings
alleging several causes of action against Wells Fargo and
Erickson, counsel for Wells Fargo, following a foreclosure
action. We affirm.
Background Facts and Proceedings
acquired two adjoining parcels of land, lot 1 and lot 2,
totaling 10.27 acres, by warranty deed in 2009. He financed
his purchase of the land with a promissory note from Wells
Fargo totaling $125, 681.00. In issuing the promissory note,
Wells Fargo relied upon a report appraising the value of the
combined parcels. The note was secured by a mortgage, which
was recorded at the Warren County Recorder's Office.
However, the recorded mortgage's description of the
secured land only made specific reference to lot 1.
Eventually Butler defaulted on the note, and Wells Fargo
initiated a foreclosure proceeding and retained Erickson as
counsel. In an attachment to the foreclosure petition, the
property to be foreclosed upon was described using the legal
description of lot 1 and a description of lot 2.
received notice of the foreclosure proceeding but never filed
an answer. Wells Fargo sought and received a default
judgment. The county sheriff auctioned off the land (both lot
1 and lot 2), and Wells Fargo purchased it. It then
transferred the land to a new owner through a quit claim
deed. During this process, Erickson learned the description
of lot 2 used in all prior documents varied from its legal
description by the omission of the word "acres."
Wells Fargo requested a nunc pro tunc order to add
"acres" to the description of lot 2 in the
foreclosure decree, and the court issued the nunc pro tunc
initiated these proceedings, initially only naming Wells
Fargo as a defendant. Wells Fargo filed a pre-answer motion
to dismiss, which was denied. Butler then added Erickson as a
party and amended his petition to assert eight different
causes of action related to the foreclosure proceeding and
its impact to lot 2. Butler's eight claims alleged: (1)
Wells Fargo and Erickson committed abuse of process; (2)
Wells Fargo breached its contracts with Butler; (3) Wells
Fargo converted lot 2; (4) Wells Fargo and Erickson committed
fraudulent misrepresentation by claiming Wells Fargo had an
interest in lot 2; (5) Wells Fargo was unjustly enriched from
the foreclosure of lot 2; (6) Erickson was liable through
agent liability; (7) concert of action against Wells Fargo
and Erickson; and (8) he was entitled to specific performance
from Wells Fargo to transfer title of lot 2 back to him. Each
claim was predicated on the proposition the mortgage did not
include lot 2.
defendants denied Butler's allegations. Butler sought
partial summary judgment requesting the court declare Wells
Fargo never held an interest in lot 2 and Wells Fargo sold or
disposed of lot 2. Defendants sought summary judgment to
dismiss all of Butler's claims. The district court denied
Butler's motion for partial summary judgment in part,
declining to declare Wells Fargo never had an interest in lot
2, and granted it in part, declaring Wells Fargo sold or
disposed of lot 2. Following a hearing, the district court
granted the defendants' motion for summary judgment. It
concluded Butler's claims were barred by issue preclusion
and claim preclusion and the abuse of process claim also
failed because Butler failed to provide any evidence the
defendants' motivations during the ...