----- Message from "John Mayne" <jmayne@maynelaw.com> on Tue, 31 Jan 2006 16:42:24 -0600 -----

To:	"H. J. Dane" <hjdane@hjdane.com>, "Craig Hastings" <craig.hastings@amesattorneys.com>, <realestate@iabar.org>
Subject:	RE: Foreclosure issue

This observation is a good one.  The Clerks of Court are not required to
(nor do they) note on their section 655.4 instrument that such an
affidavit was used to obtain judgment.  Accordingly the abstract won't
show it either.  Perhaps we should ask the legislature to require the
Clerk to include that information under 655.4.

And no lawyer west of I-35 would ever consider using a self-serving
affidavit.

-----Original Message-----
From: H. J. Dane mailto:hjdane@hjdane.com
Sent: Tuesday, January 31, 2006 4:18 PM
To: John Mayne; 'Craig Hastings'; realestate@iabar.org
Subject: RE: Foreclosure issue

These lenders always rely on an affidavit of lost note.  (Although we
tend
to like "self-serving" affidavits over here in Scott County, even I
wonder
about the now prolific affidavit of lost note and mortgage.)

H. J. Jack Dane, Attorney at Law
1111 E. River Dr., Davenport, IA 52803-5740
Phone (563) 326-0006; Fax (563) 326-6204

-----Original Message-----
From: realestate-owner@iabar.org mailto:realestate-owner@iabar.org On
Behalf Of John Mayne
Sent: Tuesday, January 31, 2006 4:17 PM
To: Craig Hastings; realestate@iabar.org
Subject: RE: Foreclosure issue

Further to this question, when Bank B foreclosed, it had to surrender
the original note to be cancelled by the Clerk of Court in order to
obtain judgment.  Iowa R.Civ.P. 1.961.  The original maker of the note
cannot then complain later.  It is also difficult to imagine how another
attempt to foreclose under the same mortgage could survive without the
note.  Finally, how would Bank B be in possession of the note if not by
assignment?

-----Original Message-----
From: realestate-owner@iabar.org mailto:realestate-owner@iabar.org On
Behalf Of Craig Hastings
Sent: Tuesday, January 31, 2006 11:09 AM
To: realestate@iabar.org
Subject: Foreclosure issue

Owner mortgaged property to Bank A.

Subsequently Bank B commenced a foreclosure action. No assignment from
Bank A to Bank B. The foreclosure was completed in short order, a
decree was issued and the sale took place.

More than a year after the sale an Assignment of the mortgage from Bank
A to Bank B was recorded. It was dated about 6 months after the sale.

A different Bank purchased the property and received the Sheriff's
Deed. It is now selling the property.

Rule 1.201 requires all actions be brought by the "real party in
interest"

I presume Bank B was not the real party in interest, therefore the
foreclosure is suspect and probably voidable. However, 1.201 also
allows curing by ratification, joinder or substitution.

Would I be correct in requiring Bank A file a ratification of the
foreclosure proceeding?

Or, do I make them start over?

Craig R. Hastings
Hastings & Gartin LLP
Ames

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