Thomas A. Rehr, Kathryn A. Rehr, Jeffrey Minner, Rodney Petersen, Brady Lemke, and 1st Gateway Credit Union v. Guardian Tax Partners, Inc.
16-1962
| Iowa Ct. App. | Apr 19, 2017Background
- Clinton County sold property after unpaid 2012 taxes; certificate purchased and assigned to Guardian Tax Partners, Inc. Guardian sought to perfect a treasurer’s deed after no redemption by certificate's 90‑day notice period in 2015.
- Guardian’s attorney, Lilly Richardson‑Severn, filed an affidavit of service stating that “Guardian mailed” and “Guardian published” the Notice of Expiration of Right to Redeem and attaching return receipts and publication proof.
- Plaintiffs (property owners, possessors, and mortgagee 1st Gateway) sued in equity under Iowa Code §§ 447.8–.12 to void the treasurer’s deed, arguing the affidavit failed to state under whose direction and who actually made service.
- District court granted plaintiffs’ summary‑judgment motion, holding the affidavit did not comply with § 447.12 (it failed to identify the individual who made service and state that person acted under the certificate holder’s direction), and declared the tax deed void.
- Guardian appealed, arguing the affidavit was sufficient under a common‑sense reading of § 447.12 and that other procedural provisions limited the court’s authority to void the deed; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether affidavit complied with Iowa Code § 447.12 (must show making, manner, time/place, and under whose direction service was made) | Affidavit insufficient because it did not name the individual who performed service or aver that person acted under Guardian's direction | Affidavit adequate under a commonsense reading; attorney’s affidavit and attachments identify that Guardian caused mail and publication, so naming an individual is unnecessary | Affirmed for plaintiffs: affidavit insufficient; strict statutory compliance required |
| Whether courts may read extrinsic evidence or presume agency when affidavit is ambiguous | Plaintiffs: no—affidavit must explicitly state required facts; extrinsic proof cannot cure defect | Guardian: equities and other filings show who acted; presumption of agency is reasonable | Court rejected presumption/extrinsic cure; affidavit must state facts expressly |
| Whether § 447.8(4)–(5) procedural requirements limit court’s power to void deed without following that statute’s remediations | Plaintiffs: insufficiency of affidavit independently voids deed under Geil/Pendergast; § 447.8 procedure doesn’t alter affidavit requirement | Guardian: district court ignored mandatory procedures in § 447.8 before voiding deed | Court held § 447.12 affidavit requirement controls; § 447.8(4)–(5) govern other remedies but do not override affidavit sufficiency rule |
| Whether agent/attorney‑made affidavit can satisfy the “under whose direction” requirement without naming the individual | Plaintiffs: no; agent’s affidavit must identify who made service and that they acted under principal’s direction | Guardian: attorney’s role and content suffice; Fleck supports entity direction without naming individual | Court: agent/attorney affidavit must identify the individual who performed service and state direction by the certificate holder; Fleck does not excuse naming the individual here |
Key Cases Cited
- City of Waterloo v. Bainbridge, 749 N.W.2d 245 (Iowa 2008) (certificate holder entitled to deed if property not redeemed when statutory steps satisfied)
- Geil v. Babb, 242 N.W. 34 (Iowa 1932) (affidavit of service requirements are essential and must be explicit; strict construction)
- Pendergast v. Davenport, 375 N.W.2d 684 (Iowa 1985) (if § 447.12 affidavit is incomplete or insufficient, right of redemption not cut off and deed cannot issue)
- Lindsey v. Booge, 122 N.W. 819 (Iowa 1909) (where affiant is certificate holder and states self‑service, stating direction is unnecessary; distinguishable where agent, not holder, attests)
- Fidelity Inv. Co. v. White, 223 N.W. 884 (Iowa 1929) (agent’s affidavit insufficient when it failed to aver service was made under the principal’s direction)
- Fleck v. Duro, 288 N.W. 426 (Iowa 1939) (upholding affidavit where agent averred he personally served notice under direction of corporate principal)
- Nelson v. Forbes, 545 N.W.2d 576 (Iowa Ct. App. 1996) (reinforcing strict compliance for tax‑deed issuance)