Grinnell State Bank, Successor-In-Interest to Polk County Bank v. Charles A. Jones Laura Jones, AKA Laura J. Jones And Parties in Possession

• Court: Court of Appeals of Iowa
• Decided: April 27, 2016
• Docket: 15-0674
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0674 Filed April 27, 2016

GRINNELL STATE BANK, SUCCESSOR-IN-INTEREST TO POLK COUNTY BANK, Plaintiff-Appellee,

vs.

CHARLES A. JONES; LAURA JONES, AKA LAURA J. JONES; AND PARTIES IN POSSESSION, Defendants-Appellants. ________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Martha L. Mertz,

Judge.

Charles and Laura Jones appeal from the order denying their motion to

dismiss Grinnell State Bank’s mortgage-foreclosure action. AFFIRMED.

James L. Sayre of James L. Sayre, P.C., Clive, for appellant.

Jonathan E. Kramer of Whitfield & Eddy, P.L.C., Des Moines, for appellee.

Heard by Vogel, P.J., Doyle, J., and Eisenhauer, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2

DOYLE, Judge.

Charles and Laura Jones appeal from the order denying their motion to

dismiss Grinnell State Bank’s mortgage-foreclosure action. The district court

rejected the merits of the Joneses’ motion and also found the motion untimely.

We affirm on the timeliness issue, and accordingly, we need not reach the merits

of the substantive claim raised by the Joneses.

I. Background Facts and Proceedings.

On June 4, 2013, Grinnell State Bank (GSB) filed a petition seeking to

foreclose on the Joneses’ real estate mortgage pursuant to Iowa Code section

654.20 (2013). The parties agreed to an order granting GSB’s motion for

summary judgment, and judgment in rem was entered on August 27, 2013. Two

days later, GSB moved for an order nunc pro tunc to amend the decree to

include judgment in personam, which was granted.

The Joneses moved to set aside the amended order in November 2013,

alleging they never agreed to an in personam judgment. The court granted the

motion the following month. Then, on January 3, 2014, GSB filed a notice of

rescission of the first decree pursuant to Iowa Code section 654.17.

On January 7, 2014, GSB initiated a second foreclosure action on the

Joneses’ real estate mortgage, this time seeking judgment in rem and in

personam. The Joneses filed their answer on February 14, 2014. GSB moved

for summary judgment on February 24, 2014, and no resistance was filed by the

Joneses. On April 8, 2014, the court entered a decree of foreclosure, and GSB

proceeded to a special execution. On April 25, 2014, the Joneses’ attorney was 3

suspended from the practice of law. GSB was the successful bidder at the sale

and received a Sheriff’s Deed on June 10, 2014.

At some point the Joneses hired new counsel, and on September 19,

2014, the Joneses filed their motion to dismiss the second foreclosure action,

asserting the second action was barred by issue preclusion, claim preclusion, res

judicata, and/or collateral estoppel. While the district court addressed the merits

of their issue-preclusion claim, it also determined their motion to dismiss was

untimely and denied it on that basis as well. The Joneses filed a timely notice of

appeal.

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), which are reviewed de

novo, Iowa R. App. P. 6.907. However, we do not employ a de novo review on

appeal from a motion to dismiss. See Rieff v. Evans, 630 N.W.2d 278, 284 (Iowa

2001). We review the denial of a motion to dismiss for the correction of errors at

law. Id.

III. Analysis.

The Joneses allege the trial court erred in denying their motion to dismiss.

Iowa Rule of Civil Procedure 1.441(1) states: “Motions attacking a pleading must

be served before responding to the pleading or, if no responsive pleading is

required by these rules, within 20 days after the service of the pleading on such

party.” The Joneses moved to dismiss the petition more than seven months after

filing their answer. The motion to dismiss—which was filed more than eight

months after the petition, seven months after the answer, five months after the 4

foreclosure decree, and three months after the property was sold at auction—

was clearly untimely. See Walker Shoe Store, Inc. v. Howard’s Hobby Shop, 327

N.W.2d 725, 726 (Iowa 1982) (holding a motion to dismiss filed as part of the

same instrument containing a responsive pleasing is not timely because the

motion was not filed before the answer); Powell v. Khodari-Intergreen Co., 303

N.W.2d 171, 175 (Iowa 1981) (declining to consider a “motion to dismiss” argued

in the defendants’ trial brief and orally raised prior to jury selection).

The Joneses now, for the first time on appeal, allege their untimeliness

was excusable because they “were essentially unrepresented” when their prior

attorney was suspended from the practice of law “unbeknownst to [them].” They

failed to request an extension of time for filing their motion to dismiss and never

claimed excusable neglect in the district court. Because they are raising this

claim for the first time on appeal, we cannot consider it. See Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002).

The district court properly denied the Joneses’ motion to dismiss GSB’s

foreclosure action. We therefore affirm.

AFFIRMED.