Chase vs Goodrich COURT OF APPEALS OF IOWA No. 4-561 / 02-1889,

September 9, 2004

Notwithstanding Chase’s failure to file the original Promissory Note... 2002, the Goodriches filed their pro se “Motion to Vacate A Void Judgment and Dismiss” ... that the judgment of foreclosure should be ...

These motions sought relief from the judgment of foreclosure on the grounds that Chase’s failure to produce the "original" of the promissory note was newly discovered evidence justifying a new trial.
 

IN THE COURT OF APPEALS OF IOWA

No. 4-561 / 02-1889

Filed September 9, 2004

CHASE MANHATTAN MORTGAGE CORPORATION,

            Plaintiff-Appellee,

vs.

LYNN E. GOODRICH and LEANA M. GOODRICH,

            Defendants-Appellants,

 

HOME FEDERAL SAVINGS BANK, U.S. BANK, NATIONAL ASSOCIATION, and GENERAL SERVICE BUREAU, INC.,

            Defendants.

 


 

                Appeal from the Iowa District Court for Harrison County, Gordon C. Abel, Judge.

 

                  Lynn E. Goodrich and Leana M. Goodrich appeal from the adverse ruling

 

by the district court.  AFFIRMED.

 

Lynn Goodrich, Woodbine, for appellant pro se.

 

Mark Walz, Des Moines, for appellee.

 

            Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.

 

HECHT, J.

Lynn E. Goodrich and Leana M. Goodrich appeal from an adverse ruling on their petition to vacate a judgment in a mortgage foreclosure action.  We affirm.

I.            Factual Background and Proceedings

Chase Manhattan Mortgage Corporation (Chase) brought an action against the Goodriches to foreclose a mortgage executed on December 29, 1995.  The district court granted Chase’s motion for summary judgment on August 13, 2001, after the Goodriches withdrew their resistance in consideration for Chase’s agreement to delay the foreclosure sale until six months after entry of a foreclosure decree. 

On March 11, 2002, Chase filed an affidavit affirming that the original of the promissory note secured by the mortgage in question had been lost.  On March 18, 2002, the district court filed a decree of foreclosure expressly authorizing the document to be filed notwithstanding Chase’s failure to file the original note for cancellation.

On April 4, 2002, the Goodriches filed a “Motion to Set Aside Foreclosure & Decree and Motion for New Trial.”  These motions sought relief from the judgment of foreclosure on the ground that Chase’s failure to produce the original of the promissory note was newly discovered evidence justifying a new trial.  After the district court authorized their counsel to withdraw on July 1, 2002, the Goodriches filed their pro se “Motion to Vacate A Void Judgment and Dismiss” asserting that the judgment of foreclosure should be vacated because (1) the district court lacked subject matter jurisdiction, (2) the judgment was obtained through a violation of the Fair Debt Collection Practices Act and deprivation of their due process rights, (3) the original promissory note was not filed by Chase, and (4) their constitutional right to competent legal counsel was infringed.  Chase resisted the motions and requested sanctions against the Goodriches on the ground that the motions were frivolous.  The district court overruled the motions, found they were not based on existing law or the good faith extension of existing law and ordered the Goodriches to pay $150 for Chase’s attorney fees.

On appeal, the Goodriches contend the judgment against them should be vacated because (1) the record was insufficient to support the summary judgment against them, (2) their due process rights were infringed because Chase “produced no competent witness for cross examination”, (3) Chase’s Lost Note Affidavit lacked credibility, (4) they have not had an opportunity to examine for authenticity the newly discovered original note that was found after judgment was entered, and (5) the “Truth in Lending Act” was violated. 

II.            Scope and Standards of Review.  

We review summary judgment rulings for errors of law.  Grovihohn v. Virjon, Inc., 643 N.W.2d 200, 202 (Iowa 2002).   We similarly review rulings on motions to vacate judgments for errors of law.  In re Marriage of Kinnard, 512 N.W.2d 821, 823 (Iowa Ct. App. 1993).   The district court enjoys considerable discretion in determining whether to vacate a judgment.  Id.

III.            Discussion.  

Several of the separate contentions articulated by the Goodriches position that the summary judgment record was insufficient to support the summary judgment and decree of foreclosure.  Central to these contentions is the mistaken notion that a judgment of foreclosure could not be entered because Chase failed to produce the original of the promissory note.  Iowa Rule of Civil Procedure 1.961 contemplates that judgment on a note may be entered without production of the original note if the court so orders.  The district court did by order authorize the foreclosure despite Chase’s failure to produce the original note.  Thus, we conclude the summary judgment record was not insufficient to support the judgment of foreclosure despite Chase’s failure to produce the original of the note.  Our resolution of this issue is strongly influenced by the fact that the Goodriches make no contention that either Chase’s Lost Note Affidavit or the foreclosure decree misstated any term of the promissory note. 

            The Goodriches further contend the original promissory note found after entry of the judgment of foreclosure constitutes newly discovered evidence which they have not had an opportunity to inspect for authenticity.  The court record discloses the note was filed by Chase and thereby made available for inspection after the judgment was entered. We find it significant that the Goodriches acknowledge they have not availed themselves of the opportunity to examine the document even after it was made part of the court file in this case.  As noted above, they make no argument that the terms stated in the original note differ from the terms of the contract found by the district court.  Accordingly, even if the original note could be viewed as newly discovered evidence, the district court did not abuse its discretion in determining that such evidence did not justify vacation of the judgment against the Goodriches.

            The due process claim asserted by the Goodriches is also without merit.  When they withdrew their resistance to the motion for summary judgment, they waived any claims that the nature and quality of the evidence produced by Chase failed to adequately support the judgment against them.  Included among the claims thus waived is the claim that the Goodriches were entitled to cross-examine a witness called by Chase to testify.

            We have reviewed all other arguments and claims raised on appeal by the Goodriches and find they were waived or without merit.

            AFFIRMED.

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