Grinnell State Bank v. Parties in Possession, and Suzanne K. Stephenson ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1208
Filed July 16, 2014
GRINNELL STATE BANK,
Plaintiff-Appellee,
vs.
PARTIES IN POSSESSION,
Defendants,
and
SUZANNE K. STEPHENSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,
Judge.
Suzanne Stephenson appeals from summary judgment entered in favor of
mortgagee’s successor Grinnell State Bank. AFFIRMED.
Robert C. Gainer and Amanda R. Rutherford of Cutler Law Firm, P.C.,
West Des Moines, for appellant.
Michael K. Thibodeau of Simpson, Jensen, Abels, Fischer & Bouslog,
P.C., Des Moines, for appellee.
Heard by Danilson, C.J., and Potterfield and McDonald, JJ.
2
POTTERFIELD, J.
Suzanne Stephenson appeals from summary judgment entered in favor of
mortgagee’s successor, Grinnell State Bank. She asserts genuine issues of fact,
including the authenticity of the mortgage documents and whether an oral
representation by a banker was not honored, preclude summary judgment.
I. Background Facts and Proceedings.
On June 13, 2012, Grinnell State Bank (Bank) filed a petition for
foreclosure against Suzanne Stephenson.1 Count I dealt with a March 9, 2005
promissory note in the sum of $227,617.56 (Note 1), which was secured by two
mortgages dated July 1, 2003 describing two residential properties—two
duplexes (Mortgages 1 and 2). Count II dealt with a December 13, 2006
promissory note in the sum of $430,499.61 (Note 2), which was secured by two
mortgages dated December 16, 2005, describing agricultural real estate
(Mortgages 3 and 4).
The petition alleged, in respect to Count I, Stephenson was “delinquent in
payments on Note 1, Mortgage 1 and Mortgage 2,” and sought judgment against
Stephenson personally and in rem in the sum of $165,264.40 plus interest and
costs. Concerning Count II, the petition alleged Stephenson “had failed to cure
her default” and “failed to make payment after being sent a fourteen (14) day
1
Grinnell State Bank is the successor in interest to certain assets of Polk County Bank
purchased by Grinnell State Bank from the Federal Deposit Insurance Corporation as
receiver. The suit also named as defendants “parties in possession” with respect to the
residential properties at issue because the duplexes were rented out to others. No
appearance or answer was made by any party in possession.
3
demand for payment.” The Bank sought judgment against Stephenson and in
rem in the sum of $429,565.07 plus interest and costs.
In her answer, Stephenson admitted she executed Note 1 in the sum of
$227,617.56, and admitted the note was secured by Mortgage 1 and Mortgage 2
and the properties described. She admitted she was the owner of the real estate
described in Mortgage 1 and Mortgage 2. She further admitted she was
delinquent in payments, but denied owing the amount claimed.
As to Count II, Stephenson’s answer admitted the following paragraphs:
25. On or about December 13, 2006, Defendant Stephenson
made, executed and delivered to Polk County Bank a Promissory
Note in writing for the sum of $430,499.61 (hereinafter “Note 2”). A
copy of said Note 2 is attached hereto as Exhibit “H”, and is
incorporated herein by this reference.
26. On or about January 13, 2008, Defendant made,
executed and delivered to Polk County Bank a Change in Terms
Agreement extending the maturity date of Note 2 to January 13,
2009 (hereinafter “Change in Terms Agreement 1”). A copy of
Change in Terms Agreement 1 is attached hereto as Exhibit “I”.
27. On or about March 23, 2009, Defendant Stephenson
made, executed and delivered to Polk County Bank a Change in
Terms Agreement extending the maturity date of Note 2 to April 15,
2009 (hereinafter “Change in of Change in Terms Agreement 2 is
attached hereto as Stephenson made, executed Terms Agreement
2”). A copy Exhibit “J”.
28. On or about May 28, 2009, Defendant Stephenson
made, executed and delivered to Polk County Bank a Change in
Terms Agreement changing the interest rate, the payment terms
and the maturity date (hereinafter “Change in Terms Agreement
3”). A copy of Change in Terms Agreement 3 is attached hereto as
Exhibit “K”.
Stephenson, however, denied that Note 2 was secured by the real estate
described in the petition,2 though she admitted she was the owner of the real
2
Specifically, Stephenson denied paragraphs 29 and 30, which read:
4
estate described in Mortgage 3 and Mortgage 4 and that she failed to make
payments on the note after being sent a demand for payment.
An amended petition was allowed. It asserted updated calculations of
money owed. Stephenson denied the amended paragraphs.
The Bank filed a motion for summary judgment with supporting
documentation. In resistance, Stephenson filed a “statement of disputed facts,”
29. Said Note 2 is secured by a certain mortgage on the following
described real estate:
The South 51.75 Feet of Lot 11 in Reedbury, an Official
Plat, Now Included in and Forming a Part of the City of Des
Moines, Polk County, IA.
Said mortgage is dated December 16, 2005 and recorded December 20,
2005 in Book 11449 at Page 313, in the records of the Polk County
Recorder (hereinafter “Mortgage 3”). A copy of said Mortgage 3 is
attached hereto as Exhibit “L” and is incorporated herein by this
reference.
30. Said Note 2 is also secured by a certain mortgage on the
following described real estate:
Commencing at the Southeast corner of Lot 11 Reedbury,
an Official Plat, Now Included in and Forming a Part of the
City of Des Moines, Polk County, Iowa; thence South
204.25 Feet, thence West 584.83 Feet to the East Line of
42nd Street, Thence North 204.25 Feet along the East
Line of 42nd Street, to a point in line with the South Line of
Lot 11, thence East 584.83 Feet to the Place of Beginning,
said property being situated in the Northwest Quarter (NW
1/4) of the Northeast Quarter (NE 1/4) of Section 33,
Township 79 North, Range 23, West of the 5th P.M., Polk
County, Iowa, now included in and forming a part of the
City of Des Moines, Polk County, Iowa
AND
The Southwest Quarter (SW 1/4) of the Northeast Quarter
(NE 1/4) of Section 33, Township 79 North, Range 23,
West of the 5th P.M., in the City of Des Moines, Polk
County, Iowa, subject to legally established highways.
Said mortgage is dated December 16, 2005 and recorded December 20,
2005 in Book 11449 at Page 324, in the records of the Polk County
Recorder (hereinafter “Mortgage 4”). A copy of said Mortgage 4 is
attached hereto as Exhibit “M” and is incorporated herein by this
reference.
5
which included the statement Mortgage 4 had been “changed after execution by
removing the actual ‘Attachment A’ and inserting a holographic ‘Page 10,’ and is
therefore invalid.” She further asserted Mortgage 3 “either was not executed by
Defendant, or was changed after execution and is therefore invalid.”
Stephenson also asserted in her resistance to summary judgment that Tim
Rhoades, who had been Stephenson’s loan officer at Polk County Bank, had a
practice of “releasing the mortgage on a portion of real estate for which a partial
repayment was sufficient”; she had relied on that practice; in December 2008,
she had “provided Polk County Bank representative Greg Baker a partial
repayment offer of $250,000 to release a portion of land”; the partial repayment
was “sufficient value to release the portion of the land requested be released”;
and Baker had refused partial payment, which “precluded Defendant from
continuing to meet any obligations on notes owed.” Finally, Stephenson asserted
Mortgage 1 and Mortgage 2 “do not accurately reflect the agreement entered into
by the parties, either through a non-approved change to the documents or
mistake or inadvertence.”
Stephenson’s supporting documentation included Stephenson’s affidavit in
which she avowed she had read her statement of disputed facts “and find each
and every one of those facts to be true and accurate,” and an affidavit of Tim
Rhoades. In a supplemental affidavit, Stephenson avowed, “I do not believe the
“Addendum to Plaintiff’s [Mortgage 4] Exhibit ‘M’ is the agreed-to real estate to be
covered by that mortgage.” She further stated,
(5) As relating to Plaintiff’s Exhibits “L” [Mortgage 3] and “M”
to the Petition, those documents do not accurately reflect the extent
6
of any mortgage as I dispute the dollar amount covered by the
mortgage, and the legal description supporting Exhibit “M”.
(6) As relating to Plaintiffs Exhibits “B” [Mortgage 1] and “C”
[Mortgage 2] to the Petition, those documents do not accurately
reflect the extent of any mortgage as I dispute the dollar amount
covered by the mortgage.
(7) I did not agree to a $2,000,000.00 mortgage to be placed
on any land I owned. The total amount I was ever advanced by
Plaintiff was less than $1,000,000.00.
The Bank, in response, argued Stephenson’s signature on a mediation
agreement,3 submitted as exhibit “P” to the petition, “is an admission that she
owes the money and the mortgages are valid.”
The district court heard oral arguments. On June 5, 2013, the court
issued its written ruling granting summary judgment for the Bank. The court
noted a resisting party must come forward with specific facts constituting
competent evidence supporting its claim or defense. The court concluded
Stephenson’s statement—that Mortgages 3 and 4 were “not executed by the
Defendant or, [were] changed after execution”—was not an effective denial of her
signature and did not raise a genuine fact issue regarding the validity of the
3
The mediation agreement was signed by Stephenson on March 21, 2012, and provides
as follows:
Stephenson to retire Note #5546 [Note 1] by May 1, 2012.
In the event Stephenson fails to retire [Note 1] by May 1, 2012,
Bank shall file a voluntary nonjudicial foreclosure at any time after
midnight May 1, 2012.
Stephenson shall execute nonjudicial voluntary foreclosure
documents as soon as Stephenson’s counsel receives the documents
from Bank’s counsel.
In the event any sales proceeds from the properties that secure
[Note1] exceed the amount due and owing on [Note 1], the excess shall
be applied to Note #6162 [Note 2].
Bank shall refrain from collection actions on [Note 2] until June 1,
2012.
7
mortgages. As for her second defense concerning her claim that the Bank
refused her offer of partial payment, the court wrote:
The affidavit submitted in support of this contention, from the loan
officer, does not establish that fact. Moreover, the defendant has
not tendered evidence that she made any large partial repayment.
Finally, the notes and mortgages contain integration clauses and
cannot be varied or modified based on prior oral representations or
agreements.
On July 9, the court entered a foreclosure decree.
Stephenson appeals, contending she adequately raised issues of fact that
should have precluded summary judgment.
II. Scope and Standard of Review.
“Foreclosure proceedings are typically tried in equity.” Freedom Fin. Bank
v. Estate of Boesen, 805 N.W.2d 802, 806 (Iowa 2011); Iowa Code § 654.1(2011). This appeal, however, is from an order granting summary judgment and
related supplemental orders. Consequently, our review is for correction of errors
of law. Iowa R. App. P. 6.907; Estate of Boesen, 805 N.W.2d at 806.
Summary judgment is properly granted when the pleadings, depositions,
admissions, interrogatory answers, and any affidavits “show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). We examine the
evidence in the light most favorable to the nonmoving party to decide whether the
moving party has met its burden. Pavone v. Kirke, 807 N.W.2d 828, 832 (Iowa
2011).
8
III. Discussion.
The question presented is whether the Bank has established it is entitled
to judgment as a matter of law. We begin with what is not disputed:
Note 1. Stephenson admits she executed Note 1 on March 9, 2005, in the
sum of $227,617.56, the note was secured by Mortgage 1 and Mortgage 2, she
was the owner of the real estate described in Mortgage 1 and Mortgage 2, and
that she was delinquent in payments.
Note 2. Stephenson admits she executed Note 2 on December 13, 2006,
in the sum of $430,499.61. The original Note 2 is not in evidence. Two
mortgages securing agricultural property in Des Moines, Polk County, Iowa, are
in evidence—each is signed by Stephenson, is notarized, and was recorded on
December 20, 2005. Stephenson admits she owns the properties described in
Mortgage 3 and Mortgage 4. She also admits she has failed to cure her default
on Note 2.
Stephenson executed written changes in the terms of Note 2 on January
13, 2008; January 13, 2009; March 23, 2009; and May 28, 2009. The
“description of collateral” in the March 23 and May 28 agreements reads as
follows: “42.2 acres of undeveloped property located on the east side of Des
Moines, IA secured with 1st lien mortgage agreement dated 12/16/05.” The May
28, 2009 change in terms agreement also reads in part:
DESCRIPTION OF CHANGE IN TERMS. Renewal of Note
#40506162 with an interest rate change from 7.25% to 7.00% and
changing to a quarterly principal and interest payments for 36
months.
PROMISE TO PAY. Suzanne K Stephenson (“Borrower”)
promises to pay to POLK COUNTY BANK (“Lender”), or order, in
lawful money of the United States of America, the principal amount
9
of Four Hundred Thirty Thousand Four Hundred Ninety-nine
& 61/100 Dollars ($430,499.61), together with interest on the
unpaid principal balance from May 28, 2009, calculated as
described in the “INTEREST CALCULATION METHOD” paragraph
using an interest rate of 7.000% per annum based on a year of 360
days, until paid in full. The interest rate may change under the
terms and conditions of the “INTEREST AFTER DEFAULT”
section.
PAYMENT. Borrower will pay this loan in full immediately
upon Lender’s demand. If no demand is made, Borrower will pay
this loan in 11 regular payments of $7,664.90 each and one
irregular last payment estimated at $436,594.36. Borrower’s first
payment is due August 15, 2009, and all subsequent payments are
due on the same day of each quarter after that. Borrower’s final
payment will be due on May 15, 2012, and will be for all principal
and all accrued interest not yet paid. Payments include principal
and interest. Unless otherwise agreed or required by applicable
law, payments will be applied first to any accrued unpaid interest;
then to principal; and then to any late charges. Borrower will pay
Lender at Lender’s address shown above or at such other place as
Lender may designate in writing.
....
COLLATERAL. Borrower acknowledges this Agreement is
secured by Two Real Estate Mortgages dated December 16, 2005
from Suzanne K Stephenson to Polk County Bank on 42.2 acres of
undeveloped property located on the east side of Des Moines, IA.
CONTINUING VALIDITY. Except as expressly changed by
this Agreement, the terms of the original obligation or obligations,
including all agreements evidenced or securing the obligation(s),
remain unchanged and in full force and effect. Consent by Lender
to this Agreement does not waive Lender’s right to strict
performance of the obligation(s) as changed, nor obligate Lender to
make any future change in terms. Nothing in this Agreement will
constitute a satisfaction of the obligation(s). It is the intention of
Lender to retain as liable parties all makers and endorsers of the
original obligation(s), including accommodation parties, unless a
party is expressly released by Lender in writing. Any maker or
endorser, including accommodation makers, will not be released by
virtue of this Agreement. If any person who signed the original
obligation does not sign this Agreement below, then all persons
signing below acknowledge that this Agreement is given
conditionally, based on the representation to Lender that the non-
signing party consents to the changes and provisions of this
Agreement or otherwise will not be released by it. This waiver
applies not only to any initial extension, modification or release, but
also to all such subsequent actions.
10
PRIOR NOTE. The Promissory Note #40606162 dated
December 13, 2006 from Suzanne K Stephenson to Polk County
Bank in the amount of $430,499.61.
The Bank has provided documentation as to its calculations about the
amount Stephenson owes, including the affidavit of Jonathan Albert, which
provides in part,
That as Senior Vice President for the Plaintiff, I have in my care,
custody and control the books and records that show that
Defendant, Suzanne K. Stephenson is indebted to the Plaintiff on
Note 1 for the sum of $179,192.40; together with accrued interest
through July 5, 2012 of $16,504.56; together with interest accruing
at the rate of 7.5% per annum ($36.82 per day) after July 5, 2012;
together with late charges of $1,453.50; and together with
abstracting costs of $375.00; and on Note 2 the sum of
$437,678.07; together with accrued interest through July 5, 2012 of
$64,299.71; together with interest accruing at the rate of 18.00%
per annum ($218.83 per day) after July 5, 2012; together with late
charges of $125.00; and together with abstracting costs of $375.00;
plus court costs and reasonable attorney fees after being allowed
credits; and that said amount is justly due and owing to the Plaintiff.
Also provided were copies of the four mortgages securing Notes 1 and 2. All four
mortgages bear Stephenson’s signature, are notarized, contain descriptions of
properties Stephenson admits she owns, and are recorded. The Bank has
proved it is entitled to judgment as a matter of law unless “by affidavits or as
otherwise provided” in rule 1.981, Stephenson has “set forth specific facts
showing that there is a genuine issue for trial.” Iowa R. Civ. P. 1.981(5).
Our rules of summary judgment do not permit the nonmovant to rest on
conclusory allegations in the pleadings in the face of a properly supported motion
for summary judgment. Iowa R. Civ. P. 1.981(5) (“When a motion for summary
judgment is made and supported as provided in this rule, an adverse party may
not rest upon the mere allegations or denials in the pleadings . . . .”). “A
11
responsive showing must be made that would allow a reasonable fact finder to
conclude in favor of the nonmovant on the claim.” Castro v. State, 795 N.W.2d
789, 795 (Iowa 2011); see also Parish v. Jumpking, Inc., 719 N.W.2d 540, 545
(Iowa 2006) (stating the requirement for a response to a motion for summary
judgment must assert genuine issues of facts, which are sufficient if “a
reasonable fact finder could return a verdict or decision for the nonmoving party
based upon those facts”). We “inquire whether a reasonable jury faced with the
evidence presented could return a verdict for the nonmoving party.” Clinkscales
v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005)
A. Validity of mortgages. Stephenson’s resistance to the Bank’s motion
for summary judgment is not sufficient to allow a reasonable fact finder to
conclude in her favor.4 Her statement of disputed facts asserts Mortgage 4 had
been “changed after execution by removing the actual ‘Attachment A’ and
inserting a holographic ‘Page 10,’ and is therefore invalid.” This statement in no
way contests the legal description on page 10 of the signed, notarized, and
recorded Mortgage 4. Similarly, Stephenson’s statement that Mortgage 3 “either
was not executed by Defendant, or was changed after execution and is therefore
invalid” provides no specific facts in dispute and is conclusory at best. In a
supplemental affidavit, Stephenson avowed, “I do not believe the “Addendum to
4
Stephenson contends her position is supported by our unpublished decision, Great
Western Bank v. Creger, No. 06-1550, 2007 WL 4191982 (Iowa Ct. App. Nov. 29, 2007).
We disagree. In Creger, we noted: “[Great Western Bank] GWB alleged that Creger
executed the documents and then failed to perform under their terms. Undisputed,
these facts were sufficient to warrant a grant of summary judgment in favor of GWB.”
2007 WL 4191982, at *3. However, Creger had “presented a sworn affidavit disputing
the authenticity of his signature on the documents.” Id. Stephenson does not dispute
the authenticity of her signature on any of the documents and thus Creger is inapposite.
12
Plaintiff’s [Mortgage 4] Exhibit ‘M’ is the agreed-to real estate to be covered by
that mortgage.” But she owns the property listed in Mortgage 3 and Mortgage 4.
She does not contest she signed the notarized mortgages. Those mortgages
were recorded December 20, 2005. She signed several amended loan
agreements, all of which reference two real estate mortgages dated December
16, 2005, on 42.2 acres of undeveloped property located on the east side of Des
Moines, Iowa. The additional statements in Stephenson’s supplemental affidavit
that dispute the “extent of the mortgage[s]” provide no defense to the amounts
she admittedly owes on Notes 1 and 2.5
Stephenson argues in her appellate brief that her affidavit is sufficient to
establish there is a factual dispute as to whether “Stephenson signed the actual
mortgage documents Grinnell State Bank seeks to use in this foreclosure action.”
She argues the Bank must come forward with
evidence showing that (1) Stephenson signed the mortgage
document in its altered state, or (2) that Stephenson did not sign
the mortgage document in its altered state, but that the alteration
made by Grinnell State Bank or Polk County Bank did not change
the agreement in any substantial way or invalidate the agreement.
5
Stephenson’s supplemental affidavit includes her assertion that she “did not agree to a
$2,000,000.00 mortgage to be placed on any land I owned. The total amount ever
advanced by Plaintiff was less than $1,000,000.00.” Both Mortgages 3 and 4 contain the
following:
NOTICE: THIS MORTGAGE SECURES CREDIT IN THE
AMOUNT OF $2,000,000.00. LOANS AND ADVANCES UP TO THIS
AMOUNT, TOGETHER WITH INTEREST, ARE SENIOR TO
INDEBTEDNESS TO OTHER CREDITORS UNDER SUBSEQUENTLY
RECORDED OR FILED MORTGAGES OR LIENS.
But this is a “maximum obligation limit,” not the amount of “secured debt.”
13
Stephenson has the burden of proving the alleged alteration occurred after her
signature and was material.6 Hartwick v. Hartwick, 252 N.W. 502, 507 (Iowa
1934) (“Mere proof that an alteration was in fact made is not sufficient to cast
upon the party relying on the instrument the burden to show that it was made
before delivery. . . . The burden is upon the party alleging the material alteration
in such written instrument to show that it was made after delivery of the
instrument.” (internal quotation marks and citations omitted)).
In any event, the Bank responds that Stephenson’s affidavit contains
speculation, which is not sufficient to generate a genuine issue of fact. Hlubek v.
Pelecky, 701 N.W.2d 93, 96 (Iowa 2005) (“Speculation is not sufficient to
generate a genuine issue of fact.”). We agree. With Note 2 Stephenson
admittedly borrowed almost half a million dollars from the bank secured by
mortgages describing property she owns. Her bare statement —“I do not believe
the ‘Addendum to Plaintiff’s [Mortgage 4] Exhibit “M”’ is the agreed-to real estate
to be covered by that mortgage”—provides nothing more than speculation and
does not raise a material factual dispute.
B. Refusal of partial loan repayment. We turn next to for Stephenson’s
assertions that Polk County Bank violated an oral agreement of terms other than
those found in the written documents. In support, Stephenson submitted a
statement of disputed facts, including these:
6
See also Van Horn v. Bell, 11 Iowa 465, 467-68 (1861) (“The defendant failed to deny
the execution of the mortgage under oath, and until this was done, the burden of proof
was upon him to show that the alteration was made without the knowledge or consent of
the parties.”).
14
3. Suzanne Stephenson’s loan officer at Polk County Bank
was Tim Rhoades, until Mr. Rhoades left the employment of Polk
County Bank in 2008.
4. Mr. Rhoades informed Plaintiff [sic] of his practice of
releasing the mortgage on a portion of real estate for which a partial
repayment was sufficient. See Affidavit of Tim Rhoades.
5. Mr. Rhoades provided this information to Defendant, who
relied on this information in entering into mortgages and notes with
Polk County Bank. See Affidavit of Suzanne Stephenson.
6. This ability of Defendant to prepay remained in full force
and effect subsequent to any change in term agreements executed
by Ms. Stephenson.
7. On or about December 2008, Defendant provided Polk
County Bank representative Greg Baker with a partial repayment
offer of $250,000.00 to release a portion of land for which Polk
County Bank asserts it held a mortgage.
8. The partial repayment was of sufficient value to release
the portion of the land requested be released. See Affidavit of
Suzanne Stephenson.
9. That in breach of the representations provided in loan no.
40506162 entered into between the parties, Polk County Bank
representative Greg Baker refused the partial payment provided by
Defendant in December 2008.
10. Defendant Suzanne Stephenson was precluded from
performing under the note (see section “PAYMENTS”) by Mr.
Baker.
11. The refusal of Polk County Bank to allow for, the
prepayment, and partial release of land, precluded Defendant from
continuing to meet any obligations on notes owed to Polk County
Bank.
Stephenson’s supporting affidavit avows she “find[s] each and every one
of those facts to be true and accurate.”
Even if we were to assume these documents could be sufficient to
establish Stephenson in fact offered to pay $250,000, which we doubt, we must
point out that Stephenson’s paragraph 7 provides no information as to what
“portion of land” Stephenson requested to be released. There is nothing from
which this court can evaluate whether the asserted proffer was “of sufficient
15
value to release” the unspecified portion of land. And we are left not knowing to
what paragraph 10’s parenthetical “see section ‘PAYMENTS’” references.
She also submitted the affidavit of Tim Rhoades, in which he avows:
1. I have been a loan officer in the Polk County area for
approximately 20 years.
2. I was a loan officer at Polk County Bank during the time
period 1991 through 2008.
3. I was a loan officer for Suzanne Stephenson at Polk
County Bank until I separated from employment with Polk County
Bank.
4. When presented with an option for partial repayment by
customers on real estate loans, it was my practice to evaluate
whether the particular partial repayment encompassed sufficient
loan value to release the mortgage on a proportionate amount of
real estate.
5. It was my practice that if the partial repayment was
sufficient, I would release the mortgage on the portion of the real
estate for which the repayment was sufficient.
6. It is likely I would have conveyed my practice concerning
partial repayment and mortgage release to Suzanne while I was her
loan officer at Polk County Bank.
7. My practice concerning evaluation of partial repayment
and mortgage release is consistent with banking industry practice in
and around Polk County, Iowa.
As noted by the district court, Rhoades’s affidavit did not establish what
Stephenson purported, that Stephenson would be able to obtain a release of
some of the mortgaged property upon a large prepayment of notes. In fact, the
promissory notes clearly and boldly state—and Iowa Code section 535.17
requires7—any modification to the agreements must be in writing. We note, too
7
Iowa Code section 535.17 provides, in part:
1. A credit agreement is not enforceable in contract law by way of
action or defense by any party unless a writing exists which contains all of
the material terms of the agreement and is signed by the party against
whom enforcement is sought.
2. Unless otherwise expressly agreed in writing, a modification of
a credit agreement which occurs after the person asserting the
modification has been notified in writing that oral or implied modifications
16
that Note 1 states, “Any partial prepayment will not excuse or reduce any later
scheduled payment until this note is paid in full (unless, when I make the
to the credit agreement are unenforceable and should not be relied upon,
is not enforceable in contract law by way of action or defense by any
party unless a writing exists containing the material terms of the
modification and is signed by the party against whom enforcement is
sought. This notification can be included among the terms of a credit
agreement, can be included on a separate form or together with other
disclosures that are provided when the agreement is made, or can be
given wholly apart from the agreement and at any time after the
agreement has been made. To be effective, the notification and its
language must be conspicuous. A person who gives a notification is
bound by it to the same extent as the person notified. A notification with
respect to any credit agreement is effective with respect to all other credit
agreements then in effect between the parties if the notification
conspicuously so provides. When a modification is required by this
section to be in writing and signed, such requirement cannot be modified
except by clear and explicit language in a writing signed by the person
against whom the modification is to be enforced.
3. A notification referred to in subsection 2 in the following form in
boldface, ten point type, complies with the requirements of this section:
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS
AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY
THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER
TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE
TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT.
....
6. This section shall be interpreted and applied purposively to
ensure that contract actions and defenses on credit agreements are
supported by clear and certain written proof of the terms of such
agreements to protect against fraud and to enhance the clear and
predictable understanding of rights and duties under credit agreements.
7. This section entirely displaces principles of common law and
equity that would make or recognize exceptions to or otherwise limit or
dilute the force and effect of its provisions concerning the enforcement in
contract law of credit agreements or modifications of credit agreements.
However, this section does not displace any additional or other
requirements of contract law, which shall continue to apply, with respect
to the making of enforceable contracts, including the requirement of
consideration or other basis of validation.
17
prepayment, you and I agree in writing to the contrary).” The May 28, 2009
change-in-terms agreement provides,
PREPAYMENT. Borrower may pay without penalty all or a portion
of the amount owed earlier than it is due. Early payments will not,
unless agreed to by Lender in writing, relieve Borrower of
Borrower’s obligation to continue to make payments under the
payment schedule. Rather, early payments will reduce the principal
balance due and may result In Borrower’s making fewer payments.
Borrower agrees not to send Lender payments marked “paid in full”,
“without recourse”, or similar language. If Borrower sends such a
payment, Lender may accept it without losing any of Lender’s rights
under this Agreement, and Borrower will remain obligated to pay
any further amount owed to Lender.
Stephenson’s resistance and affidavits in support did not rebut the
undisputed facts in the motion for summary judgment and did not “set forth
specific facts showing that there is a genuine issue for trial.” Iowa R. Civ. P.
1.981(5). We therefore affirm the entry of summary judgment in favor of the
Bank.
AFFIRMED.