Montgomery Ward, Inc. v. Davis

398 N.W.2d 869, 1987 Iowa Sup. LEXIS 1063
CourtSupreme Court of Iowa
DecidedJanuary 14, 1987
Docket85-1147
StatusPublished
Cited by7 cases

This text of 398 N.W.2d 869 (Montgomery Ward, Inc. v. Davis) 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
Montgomery Ward, Inc. v. Davis, 398 N.W.2d 869, 1987 Iowa Sup. LEXIS 1063 (iowa 1987).

Opinions

WOLLE, Justice.

Plaintiff Montgomery Ward, Inc. (Ward) brought this law action against defendant Peggy Davis for $1,596.61, claiming she had defaulted on payments owed for furniture bought on credit. In her answer and counterclaim asking for actual damages, a statutory penalty, attorney fees and costs, Davis asserted that any obligation on her part was unenforceable because Ward had failed to provide her with statutory notice of her right to cure the default. Iowa Code §§ 537.5110, .5111 (1981). A jury returned a general verdict for Ward and by answer to a special interrogatory found that Ward had given Davis proper notice of the right to cure the default. Davis appealed, we transferred the case to the court of appeals, and that court in a two to one decision reversed the trial court’s judgment on the ground Ward had offered insufficient evidence that it mailed the notice to cure. On further review, we find sufficient evidence to support the jury’s finding that the computer-generated notice was mailed to Davis. We vacate the decision of the court of appeals and affirm the judgment of the district court.

We have jurisdiction to decide this case under Iowa Rule of Appellate Procedure 3 because the amount in controversy disclosed by the record is at least $3,000. We held in Northwest Bank and Trust Co. v. Gutshall, 274 N.W.2d 713, 716-17 (Iowa 1979) (overruled on other grounds, IPAL-CO Employees Credit Union v. Culver, 309 N.W.2d 484, 487 (Iowa 1981)), that the amount in controversy in consumer credit cases like this includes the aggregated amounts on which judgment could have been entered on either the claim or counterclaim, including penalties, attorney fees and court costs which inhere within the cause of action. Gutshall, 274 N.W.2d at 716. When a demand for attorney fees is not specified in the pleadings, we “examine the record before us to determine whether judgment could have been entered for the requisite amount.” Ackerman v. International Business Machines Corp., 337 N.W.2d 486, 488 (Iowa 1983); In re Gabeline, 288 N.W.2d 341, 344 (Iowa 1980). We have jurisdiction in this case because the trial court could have entered judgment for Davis for as much as $3,000 on her demand for a statutory penalty, attorney fees and court costs.

We turn to Davis’s contention, upheld by the court of appeals, that she was entitled to a directed verdict because Ward failed to prove it mailed her a notice to cure. Ward’s right to enforce Davis's obligation arising from this consumer credit transaction was contingent on its fulfilling the notice requirement of Iowa Code section 537.5110 which provides:

1. Notwithstanding any term or agreement to the contrary, the obligation of a consumer in a consumer credit transaction is enforceable by a creditor only after compliance with this section.
2. A creditor who believes in good faith that a consumer is in default may give the consumer written notice of the alleged default, and, if the consumer has a right to cure the default, shall give the consumer the notice of right to cure provided in section 537.5111 before exercising any right he may have to enforce.

That notice requirement is satisfied when the creditor “delivers the notice to the consumer or mails the notice to him at his residence_” Iowa Code § 537.5111(3). The creditor has the burden to prove by a preponderance of the evidence that the notice was given. Public Finance Co. v. Van Blaricome, 324 N.W.2d 716, 718 (Iowa 1982). Proof that a document was properly mailed raises a presumption that it was received. Reserve Insurance Co. v. Johnson, 260 Iowa 740, 744, 150 N.W.2d 632, 634 (1967). The party relying on that presumption, however, must offer evidence to satisfy six foundational facts concerning mailing of the written notice. There must be evidence:

1) Of the contents and execution of the paper;
[871]*8712) That it was enclosed in a wrapper or otherwise prepared for transmission through the mail;
3) Of the correct address of the person to receive it;
4) That the wrapper was properly addressed;
5) That postage was prepaid; and
6) That the article was deposited in the mail.

Van Blaricome, 324 N.W.2d at 718-19 (quoting Central Trust Co. v. City of Des Moines, 205 Iowa 742, 746, 218 N.W. 580, 582-83 (1928)). In Van Blaricome, we held that testimony of office custom may provide sufficient foundation to raise a presumption that mailed notices were in fact received. 324 N.W.2d at 720-21 (listing cases holding office custom sufficient to prove mailing even in the absence of evidence concerning the particular mailing in question).

It is noteworthy that Davis in this appeal does not challenge any particular evidentia-ry ruling of the trial court but only the court’s denial of her motion for directed verdict. In determining whether there was sufficient evidence to overcome Davis’s motion for directed verdict we consider the evidence in the light most favorable to Ward. See Kurth v. Van Horn, 380 N.W.2d 693, 695 (Iowa 1986).

The evidence relied on by Ward consisted of the testimony of its credit supervisor Gary Ness, its account representative Patti Lamberti, and the testimony of Davis herself.

As a Minneapolis office supervisor of delinquent accounts, Ness testified he was familiar with the computer system used by Ward in 1981. According to Ness, all Ward offices throughout the midwest had access to identical computer screens containing collection information that, when entered by an account representative and accepted by the system, could not after-wards be removed from it. Ness stated he had access in the ordinary course of business to information concerning the delinquent Davis account. He thoroughly explained a computer printout displaying that information. The printout, which he described as a reproduction of a microfilmed collection screen, shows that on December 28, 1981 one P. Lamberti entered a request for a notice to cure letter, and it further shows that a letter containing appropriate information was generated by the machine. Ness explained that earlier billing statements addressed to the same address as that shown on the collection screen and admittedly received by defendant were produced in the same way by the computer.

Des Moines account representative Patti Lamberti explained the procedure in effect in her office in 1981 for sending letters, including notices to cure, to those with delinquent accounts. She remembered entering into her terminal a request that a notice to cure letter be sent to Davis.

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Montgomery Ward, Inc. v. Davis
398 N.W.2d 869 (Supreme Court of Iowa, 1987)

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398 N.W.2d 869, 1987 Iowa Sup. LEXIS 1063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-ward-inc-v-davis-iowa-1987.