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Butler v. Wells Fargo Bank, N.A.

Court of Appeals of Iowa

June 5, 2019

TERRY D. BUTLER, Plaintiff-Appellant,
v.
WELLS FARGO BANK, N.A., and DAVID M. ERICKSON, Defendants-Appellees.

          Appeal from the Iowa District Court for Warren County, Timothy O'Grady, Judge.

         A plaintiff appeals the grant of summary judgment dismissing his claims..

          John 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 appellant.

          Jesse Linebaugh, Angela Morales, and Kathryn Skilton of Faegre Baker Daniels LLP, Des Moines, for appellee Wells Fargo Bank, N.A.

          David 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.

          Bower, Judge.

         Terry 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.

         I. Background Facts and Proceedings

         Butler 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.

         Butler 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[1] 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 order.

         Butler 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.

         Both 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 ...


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