Hawkeye Bank & Trust N.A. v. Milburn

437 N.W.2d 919, 1989 Iowa Sup. LEXIS 63, 1989 WL 24790
CourtSupreme Court of Iowa
DecidedMarch 22, 1989
Docket87-1759
StatusPublished
Cited by7 cases

This text of 437 N.W.2d 919 (Hawkeye Bank & Trust N.A. v. Milburn) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hawkeye Bank & Trust N.A. v. Milburn, 437 N.W.2d 919, 1989 Iowa Sup. LEXIS 63, 1989 WL 24790 (iowa 1989).

Opinions

ANDREASEN, Justice.

In First National Bank v. Matt Bauer Farms Corp., 408 N.W.2d 51, 55 (Iowa 1987), we held that an automatic stay resulting from the filing of a voluntary petition in bankruptcy is a “stay" within the meaning of Iowa Code section 628.4 (1987)1 and acts to bar a debtor’s statutory right to redeem from a real estate foreclosure sale. In this appeal we are presented with challenges to the constitutionality of section 628.4. We hold it is constitutional. We also hold the statutory homestead right of redemption may be extinguished under its provisions.

I. In 1976, Hawkeye Bank & Trust, N.A. of Centerville-Seymour (bank) financed the farming operation of Danny L. Milbum. This loan was secured by a mortgage on 320 acres of real estate. In 1982, Milbum defaulted on this note. Milbum filed for bankruptcy under Chapter 11 of the United States Code in December of 1982. In May of 1984, the bank obtained relief from the automatic stay and on August 20, 1984, it filed a foreclosure action.

On the day before the scheduled trial, Milbum filed a second Chapter 11 bankruptcy petition. The bank again obtained relief from the stay and the bankruptcy petition was dismissed in November 1986. [921]*921The bank was granted a decree of foreclosure on December 23, 1986, and a sheriff’s foreclosure sale was scheduled for April 23, 1987.

On April 22, 1987, one day prior to the scheduled sale, Milbum filed his third petition in bankruptcy, this time under Chapter 12 of the Bankruptcy Code. The bankruptcy court dismissed the Chapter 12 petition based in part on Milbum’s bad faith and abuse of funds in the debtor-in-possession account. After this dismissal, the court rescheduled the foreclosure sale for November 19, 1987. The bank submitted to the Iowa district court a motion requesting that the sheriff issue a deed rather than a sheriff's certificate at the time of sale.

On November 17, 1987, Milbum again entered bankruptcy court and obtained a federal court order to stay the scheduled sale pending appeal of the federal court dismissal of the Chapter 12 petition. The appeal was not perfected and the foreclosure sale was again scheduled. The Iowa district court, meanwhile, ruled Mil-bum was entitled to redeem the homestead portion of the real estate under the provisions of Iowa Code section 654.16 but that he was not entitled to redeem the remaining portion of the land. Both parties appealed.

Milbum argues the district court erred in ruling that the automatic stay provisions in Title 11 United States Code section 362 (1982) extinguish the right of redemption found in Iowa Code section 628.3. According to Milbum, this ruling is unconstitutional as it allows the taking of property without due process, it denies certain debtors equal protection of the law, and it violates the supremacy clause of the United States Constitution.

The bank denies that section 628.4 is unconstitutional. The bank also argues Milbum’s statutory right to redeem the homestead under section 654.16 is barred under the provisions of section 628.4.

II. Chapter 654 of the Iowa Code outlines the procedure for real estate foreclosure. When a real estate mortgage is foreclosed, the court renders judgment for the entire amount found to be due and directs the mortgaged property to be sold to satisfy the judgment, interest and costs. Iowa Code § 654.5. A special execution is issued directing the sheriff to sell the mortgaged real estate. The sheriff must give four weeks’ notice of the time and place of selling real estate. Iowa Code § 626.74. Generally, foreclosure sales are subject to redemption and the purchaser at the sale receives a sheriff’s certificate of purchase rather than a deed.

Chapter 628 of the Iowa Code provides a right of redemption for mortgage debtors and creditors. Although a one-year redemption period is provided by section 628.-3, other time periods for redemption are provided depending upon the use of the mortgaged property, the terms of the mortgage, the size of the mortgaged property, whether the property has been abandoned, and whether the mortgagee has waived the right to a deficiency judgment. Iowa Code §§ 628.26-.28. Under these provisions the statutory time period for redemption may be as short as thirty days or as long as five years.

Not all real estate foreclosure sales are subject to redemption. A party who stays execution on the judgment is not entitled to redeem. Iowa Code § 628.4. If the mortgaged property is not used for an agricultural purpose, the plaintiff in an action for foreclosure of a real estate mortgage can elect foreclosure without statutory redemption. See 1987 Iowa Acts ch. 142, § 6-9 (to be codified at Iowa Code section 654.20-.23).

The statutory rights of redemption should not be confused with the equity of redemption. A mortgage debtor has an equity of redemption until the foreclosure sale, and not afterwards. After the foreclosure sale, the mortgage debtor has the right of redemption if the statute so provides. See Lincoln Joint Stock Land Bank v. Mitchell, 239 Iowa 995, 1006, 33 N.W.2d 388, 394 (1948); Mayer v. Farmers’ Bank, 44 Iowa 212, 216 (1876); G. Osborne, Mortgages, § 8, at 17 (2d ed. 1970).

III. Milbum raises constitutional challenges to section 628.4 and its application [922]*922under federal bankruptcy law. Under the Bankruptcy Act the debtor’s estate includes all legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C. § 541 (1982). Upon filing a petition in bankruptcy an automatic stay is triggered. 11 U.S.C. § 362(a)(1982). The trustee in bankruptcy is also provided an extension of time of sixty days to perform an act such as redemption. 11 U.S.C. § 108(b)(1982).

A. Milbum asserts section 628.4 facially, or as applied by the court, violates the due process and equal protection provisions of the United States Constitution. Iowa has no duty to provide a statutory right of redemption. Approximately one-half of the states do not provide a right of redemption to the mortgage debtors or creditors. G. Nelson & D. Whitman, Real Estate Finance Law, §§ 7.1 & 8.4 (2d ed. 1985). Where such right exists, it is by statute, and the right extends only to cases coming within the statute. Northwestern Mut. Life Ins. Co. v. Hansen, 205 Iowa 789, 794, 218 N.W. 502, 505 (1928).

We addressed both the due process and equal protection challenge to section 628.4 in Farmers’ Trust and Savings Bank v. Manning, 359 N.W.2d 461

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Lieber
600 B.R. 408 (N.D. Iowa, 2019)
Great Western Bank v. Clement
Court of Appeals of Iowa, 2019
West Des Moines State Bank v. Pameco, Inc.
501 N.W.2d 555 (Court of Appeals of Iowa, 1993)
Federal Land Bank of Omaha v. Sleister
444 N.W.2d 504 (Supreme Court of Iowa, 1989)
Metropolitan Life Insurance Co. v. Deklotz
437 N.W.2d 925 (Supreme Court of Iowa, 1989)
Hawkeye Bank & Trust N.A. v. Milburn
437 N.W.2d 919 (Supreme Court of Iowa, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
437 N.W.2d 919, 1989 Iowa Sup. LEXIS 63, 1989 WL 24790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkeye-bank-trust-na-v-milburn-iowa-1989.