Linn Area Credit Union v. Burnside ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0443
Filed March 8, 2023
LINN AREA CREDIT UNION,
Plaintiff-Appellee,
vs.
LAURIE S. BURNSIDE,
Defendant-Appellant,
and
MIDLAND FUNDING LLC, COUNTRY CLUB LAWN CARE LLC, and
CONVERGENCE ACQUISITIONS, LLC,
Defendants.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Lars Anderson, Judge.
Laurie Burnside appeals the grant of summary judgment to Linn Area Credit
Union in a foreclosure action. AFFIRMED.
Anne K. Wilson of Viner Law Firm, PC, Cedar Rapids, for appellant.
Laura M. Hyer of Bradley & Riley PC, Cedar Rapids, for appellee.
Considered by Vaitheswaran, P.J., and Ahlers and Buller, JJ.
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BULLER, Judge.
This dispute arose from a foreclosure proceeding between the Linn Area
Credit Union (LACU) and Laurie S. Burnside. Burnside mortgaged her property
but failed to make regular payments as required by her agreement with LACU. In
response, LACU filed this foreclosure action, followed by an application for entry
of default judgment, a motion for summary judgment, and a request for a decree
of foreclosure without redemption against Burnside. The court granted summary
judgment to LACU. Burnside appeals, arguing the district court erred in finding
that she did not establish a genuine disputed issue of material fact. We affirm.
I. Background Facts and Proceedings
Burnside made, executed, and delivered an adjustable-rate note to LACU,
a Cedar Rapids credit union. In return, LACU loaned Burnside $52,700.00 at an
interest rate of 5% per annum. To secure the indebtedness from the note,
Burnside executed and delivered a mortgage on her property in Marion to LACU.
The terms of the note and the mortgage required Burnside to make monthly
payments to repay her debt. The note also provided that if any payment were late,
then the note and mortgage would be in default. Burnside would then have thirty
days to cure the default after notice was mailed. If the default was not cured, then
all outstanding unpaid amounts owed would become immediately due, without
further demand or notice, at LACU’s option.
Burnside fell behind on her payments, and LACU eventually sent her notice
of default. Burnside did not cure the default, and LACU sent Burnside a notice of
acceleration of the debt, requesting the total amount due be paid. Burnside did
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not pay after this notice, and LACU petitioned in equity to foreclose the mortgage
without redemption.
LACU filed an application for default judgment in its favor, a motion for
summary judgment, and a request for a decree of foreclosure without redemption.
Burnside resisted, arguing that LACU needed to have face-to-face meetings with
her, that the total amount owed to LACU was incorrect, and that LACU had refused
to compromise with her.
The district court granted summary judgment for LACU, enabling LACU to
foreclose on the property. Burnside appeals.
II. Standard of Review
We review a summary judgment ruling for corrections of errors at law. See
Susie v. Fam. Health Care of Siouxland, PLC., 942 N.W.2d 333, 336 (Iowa 2020).
Summary judgment is appropriate when no disputed issue of material fact exists
and the moving party is entitled to judgment as a matter of law. See id. In
assessing whether a genuine issue of material fact exists, we view the facts in the
light most favorable to the nonmoving party. See Garrison v. New Fashion Pork
LLP, 977 N.W.2d 67, 76 (Iowa 2022).
III. Discussion
Burnside points to three facts that she claims are material and genuinely
disputed. We find none of these precluded summary judgment.
First, Burnside argues she created a genuine dispute of material fact as to
whether LACU made reasonable efforts to engage in face-to-face meetings under
24 C.F.R. § 203.604(b) (2020). Burnside recognizes this regulation only applies
to mortgages insured by the federal Department of Housing and Urban
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Development (HUD), but she contends that her mortgage and LACU’s notice of
default both show that the mortgage is insured by HUD. LACU asserts that the
regulation does not apply to it, as Burnside’s loan is not insured by HUD.
In pertinent part, the federal rule requires that a “mortgagee must have a
face-to-face interview with the mortgagor, or make a reasonable effort to arrange
such a meeting, before three full monthly installments due on the mortgage are
unpaid.” 24 C.F.R. § 203.604(b). However, LACU is correct that this requirement
only applies to loans insured by HUD. See id. § 203.500 (“This subpart identifies
servicing practices of lending institutions that HUD considers acceptable for
mortgages insured by HUD.”). Burnside is unable to point to any specific portion
of the mortgage, notice of default, or other paper that supports her argument that
the mortgage is insured by HUD. Without any evidence, Burnside has not created
a genuine issue of material fact. Hoefer v. Wis. Educ. Ass’n Ins. Tr., 470 N.W.2d
336, 338 (Iowa 1991) (“[T]here is no genuine issue of [material] fact if there is no
evidence.”).
Second, Burnside argues that LACU’s failure to mediate, and her attempts
to reach a compromise with LACU, bar summary judgment. We disagree.
Burnside provides no evidence surrounding these allegations, showing no genuine
issue of material fact exists. See Hoefer, 470 N.W.2d at 338.
Third, Burnside argues she raised an issue of material fact in disputing
LACU’s abstract costs, which the district court determined to be $400. Although
not entirely clear from her papers in the district court or on appeal, it appears
Burnside speculates this was an anticipatory cost, rather than a cost actually
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incurred. But “[s]peculation is insufficient to create a genuine issue of material
fact.” Cemen Tech, Inc. v. Three D Indus., L.L.C., 753 N.W.2d 1, 5 (Iowa 2008).
IV. Conclusion
Burnside has not shown any genuine dispute of material fact, and the district
court did not err in granting summary judgment to LACU.
AFFIRMED.