Federal Land Bank of Omaha v. Haworth

414 N.W.2d 650, 1987 Iowa App. LEXIS 1719
CourtCourt of Appeals of Iowa
DecidedAugust 26, 1987
Docket86-281
StatusPublished
Cited by3 cases

This text of 414 N.W.2d 650 (Federal Land Bank of Omaha v. Haworth) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Land Bank of Omaha v. Haworth, 414 N.W.2d 650, 1987 Iowa App. LEXIS 1719 (iowactapp 1987).

Opinions

DONIELSON, Judge.

The defendants, Gordon and Mary Ha-worth, appeal from a district court order authorizing an appointment of a receiver in a foreclosure action against the defendants. The defendants assert that the appointment of a receiver is inconsistent with the debtor’s right to possession of the foreclosed property during the redemption period under Iowa Code section 628.3 (1985). We affirm.

The defendants mortgaged two separate parcels of real estate in Poweshiek County on January 11, 1978, and on March 14, 1978. The mortgages, though containing different real estate descriptions and mortgage terms, also contained the following language:

Gordon L. Haworth and Mary M. Ha-worth, husband and wife, ... mortgage and convey to the Federal Land Bank of Omaha ... containing 105 acres, more or less, together with all of the right, title and interest (now or hereafter acquired) of the mortgagors in said property, including ... the rents, issues, crops, and profits arising from said lands....

The mortgages also contain the following provisions:

8. That in the event action is brought to foreclose this mortgage, the mortgagee shall be entitled to immediate possession of the mortgaged premises with the usual powers of receivers in like cases.

The defendants subsequently defaulted on their mortgages, and on September 5, 1985, the Federal Land Bank of Omaha instituted foreclosure proceedings against the defendants. Summary judgments were obtained in the foreclosure. The two parcels of real estate were sold at a sheriff's sale, the Federal Land Bank purchasing the properties at a price less than the judgments.

On January 15, 1986, the Federal Land Bank applied for an appointment of a receiver. The defendants filed a resistance on January 21,1986. On January 24,1986, a hearing was held. Because there was apparently no factual dispute that the mortgages provided for a receiver, the real estate had been sold at a price less than judgment, and the price of the real estate was declining, no evidence was taken at the hearing, but arguments from both parties’ counsel were heard on the legal propriety of appointing a receiver. On February 27, 1986, an order was signed by the trial court [652]*652appointing a receiver, and on March 5, 1986, the order was entered of record.

Our scope of review is de novo. Iowa R.App.P. 4. We give weight to the fact findings of the trial court, but we are not bound by them. Iowa R.App.P. 14(f)(7).

The defendants specifically contend that under Iowa Code section 628.3 (1985), a receiver should not have been appointed in the present case since the appointment of a receiver is inconsistent with a debtor’s entitlement to possession during the redemption period provided for in section 628.3. The defendants further argue that the provisions for a receiver as contained in the mortgage contracts contravene public policy. We disagree.

While we have found no Iowa cases which have addressed the question of whether the appointment of a receiver is inconsistent with section 628.3, a number of Iowa cases have considered the question of when, pursuant to the terms of a particular mortgage, the appointment of a receiver is proper. In First Trust Joint Stock Land Bank v. Jansen, 217 Iowa 439, 251 N.W. 711 (1933), the Iowa Supreme Court was faced with a set of facts quite similar to the present case. The bank in Jansen held a mortgage on the defendant’s real estate for $38,000. 217 Iowa at 440, 251 N.W. at 712. The defendants defaulted in their installment payments, and the plaintiff bank instituted foreclosure proceedings and asked for appointment of a receiver. Id. at 441, 251 N.W. at 712-13. The mortgage pledged the rents and profits and right to possession of the mortgage premises pending foreclosure and also provided for the appointment of a receiver to take possession and to collect the rents and profits pending the foreclosure sale and the period of redemption. Id. The trial court found that the plaintiff’s mortgage was in default, the security was inadequate, and that the premises were not worth over $35,-000.00, though the total indebtedness was in excess of $40,000.00. Id. at 442, 251 N.W. at 712. The Iowa Supreme Court held that under such circumstances where the mortgage pledges the rents and profits and provides for the appointment of a receiver and proof shows that the security is inadequate, a receiver should be appointed. Id.

In Des Moines Joint Stock Land Bank v. Allen, 220 Iowa 448, 261 N.W. 912 (1935), the plaintiff bank requested an appointment of a receiver to collect the rents and profits during the period of redemption. The trial court denied the appointment of a receiver. 220 Iowa at 452, 261 N.W. at 915. In holding that the plaintiff bank was entitled to a receiver, the Allen court noted that “[i]t is a well-settled rule of law in this state that a receiver will not be appointed in a foreclosure proceeding, in the absence of a showing of equitable grounds therefor.” Id. at 458, 261 N.W. at 918. The court, however, also opined that “[i]t is likewise the rule that a receiver will be appointed (the mortgage so providing) where such a showing is made, because the mortgagee has a lien on such rents and profits against the mortgagor....” Id. The court found that the value of the land was not worth more than $100.00. From this finding, the Allen court held:

The judgment entered against the defendant Allen, was $24,800. If the land in question was not worth more than $100 an acre it would not be sufficient security for the balance due on the judgment. It is our conclusion from the testimony of values offered that the total value of the land at that time was not over $100 an acre. It necessarily follows that plaintiff was entitled to the appointment of a receiver for the collection of rents and profits during the period of redemption, (emphasis added) Id.

More recently, in Federal Land Bank of Omaha v. Heeren, 398 N.W.2d 839 (Iowa 1987), the Iowa Supreme Court was presented the question of whether a receiver had substantially complied with the provision of Iowa Code section 654.14 (1985), requiring a lease preference to the debtor. Initially, however, the Heeren court commented on the propriety of the appointment of a receiver under the record of that case. The court noted that under the provisions of the mortgage, the Federal Land Bank [653]*653was entitled to immediate possession of the foreclosed property. 398 N.W.2d at 841. Additionally, the trial court had ordered that the receiver collect rents and profits, though under the terms of the mortgage the rents and profits were not pledged as security for the note. Id. The Heeren court noted that pursuant to Iowa Code section 628.3, the debtor was to remain in the possession of the foreclosed property during the one-year redemption period, but commented that because Heeren failed to object to the appointment of a receiver on this ground and also failed to object to the order permitting the collection of rents and profits, any challenge to these issues was waived. Id.

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Related

Moad v. Neill
451 N.W.2d 4 (Court of Appeals of Iowa, 1989)
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Federal Land Bank of Omaha v. Haworth
414 N.W.2d 650 (Court of Appeals of Iowa, 1987)

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Bluebook (online)
414 N.W.2d 650, 1987 Iowa App. LEXIS 1719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-land-bank-of-omaha-v-haworth-iowactapp-1987.