City Of Waterloo Vs. Jean Marie Burch F/k/a Jean Marie Perry, Mark A. Perry, Chase Home Finance, Deutsche Bank National Trust Co., Advanta

• Court: Supreme Court of Iowa
• Decided: May 23, 2008
• Docket: 44 / 06–2075
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 44 / 06–2075

Filed May 23, 2008

CITY OF WATERLOO,

Appellee,

vs.

JEAN MARIE BURCH f/k/a JEAN MARIE PERRY, MARK A. PERRY, CHASE HOME FINANCE, DEUTSCHE BANK NATIONAL TRUST CO., ADVANTA,

Defendants,

BIV US BANK,

Appellant. ________________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, James

C. Bauch, Judge.

A purchaser of a tax sale certificate appeals a district court order

eliminating its tax lien on property to which the city obtained title under

Iowa Code section 657A.10A (2005). AFFIRMED.

Deana K. Walocha, Omaha, Nebraska, for appellant.

David R. Zellhoefer, Assistant City Attorney, Waterloo, and Jared

R. Knapp of Clark, Butler, Walsh & Hamann, Waterloo, for appellee. 2

PER CURIAM.

This case presents a slight variation on the facts presented in

another case we decided today, City of Waterloo v. HLS US Bank, 749

N.W.2d 245 (Iowa 2008). In HLS US Bank, HLS purchased a tax sale

certificate at a public sale in June 2003. In this case, BIV US Bank

purchased a tax sale certificate in June 2004. This fact is significant

because the effective date of section 657A.10A, the statute the banks are

challenging in both cases, became effective May 17, 2004. All other

operative facts in HLS US Bank are the same as the facts in this case.

In HLS US Bank we found section 657A.10A(5) overrides the lien

created by section 445.28 of the Iowa Code. Id. at 249. For the same

reasons set forth in HLS US Bank, we find section 657A.10A(5) overrides

the tax lien held by BIV in this case.

In HLS US Bank we found HLS failed to preserve error on its

constitutional claims and that we would not consider those claims on

appeal. Id. at 247. In this case, BIV made the same record on its

constitutional claims as HLS. For the same reasons set forth in HLS US

Bank, we will not reach the constitutional issue raised on appeal in this

case.

Finally, in HLS US Bank we determined section 657A.10A could be

applied retrospectively to defeat HLS’s lien. Id. at 251. We need not

address that issue in this case because the legislature made section

657A.10A effective prior to the time BIV purchased the tax certificate.

Accordingly, we affirm the judgment of the district court.

AFFIRMED.

All justices concur except Baker, J., who takes no part.

This is not a published opinion.