BANK OF AMERICA, Plaintiff-Appellee, vs. STUART DANIEL JUAREZ, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-604 / 06-1793
Filed October 12, 2007
BANK OF AMERICA,
Plaintiff-Appellee,
vs.
STUART DANIEL JUAREZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Don C. Nickerson,
Judge.
Defendant appeals summary judgment for plaintiff in a collection case.
AFFIRMED.
Stuart Juarez, Des Moines, pro se.
Charles Litow and Piper Lori Hughes of Litow Law Office, P.C., Cedar
Rapids, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
2
ZIMMER, J.
Defendant, Stuart Daniel Juarez, appeals from a district court order
granting summary judgment to the plaintiff, Bank of America (BOA). Upon our
review of the record and consideration of the arguments asserted on appeal, we
affirm.
BOA issued a credit card to the defendant. Juarez used the card for a
number of years making purchases and partial payments.
In October 2005
Juarez sent BOA a letter in which he claimed to raise a dispute under 12 C.F.R.
226.13(b)(1) of the Truth in Lending Act. Juarez did not dispute specific charges
and credits on the account. Instead, he disputed the entire balance due. BOA
deemed the letter was insufficient to be considered a dispute under the Truth in
Lending Act. Juarez failed to make any further payments on his account.
In May 2006 BOA filed a petition seeking to collect the balance due on
Juarez’s credit card account.
Juarez filed an answer asserting a variety of
affirmative defenses. BOA filed a motion for summary judgment under a stated
account theory. Juarez responded by filing a purported counterclaim against
BOA’s counsel, two motions to strike, a resistance to the summary judgment
motion, and a motion to dismiss. Following a hearing held August 29, 2006, the
district court granted BOA’s motion for summary judgment in an order filed
October 16, 2006. The same day the court’s ruling was filed, Juarez filed a
motion to compel and a motion for summary judgment. Later, he filed a motion
to set aside judgment.
Juarez has appealed. He contends BOA was not entitled to summary
judgment.
3
We review the district court’s summary judgment rulings for the correction
of errors at law. Iowa R. App. P. 6.4; Faeth v. State Farm Mut. Auto. Ins. Co.,
707 N.W.2d 328, 331 (Iowa 2005). Summary judgment is appropriate when the
pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits show there is no genuine issue of material fact, and the moving party is
entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Grinnell Mut.
Reins. Co. v. Jungling, 654 N.W.2d 530, 535 (Iowa 2002).
Juarez has raised numerous legal arguments on appeal. We begin our
discussion by mentioning that his appellate brief includes a variety of arguments
that are not part of the summary judgment record, have not been preserved for
our review, or are not pertinent to our review of the district court’s entry of
summary judgment. For instance, the district court granted the plaintiff’s motion
for summary judgment by order filed on October 16.
On October 23 the
defendant filed a “Notice to Set Aside Summary Judgment,” a “Motion to Set
Aside Summary Judgment,” and an accompanying affidavit in support of the
motion.
On appeal, the defendant raises the issue
whether a reasonable finders of fact can determine if there was or if
there exist an inadvertent and unavoidable casualty of any material
fact(s) or issue(s) presented from being heard, reviewed, or
considered by District Court? Furthermore, would any material
fact(s) or issue(s) conceivably afford the Defendant-Appellant
another remedy or conclusion based on those fact(s), issue(s) and
Rules of Civil Procedure?
Juarez cites to rule 1.977 in support of his claim the summary judgment should
be set aside because of inadvertence or unavoidable casualty.
4
His claim fails for at least two reasons. First, rule 1.977 provides that a
court may set aside a default judgment. The judgment at issue here was not a
default judgment, so rule 1.977 does not apply to the circumstances of this case.
Second, the district court did not rule on the motion, so the issue is not preserved
for our review. See Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002).
The defendant also contends the court should have ordered the plaintiff to
comply with his discovery requests, and he argues the court should have
considered the facts deemed admitted from his requests for admissions to which
plaintiff did not respond. The problem with this argument is that the summary
judgment hearing was held before the due date for plaintiff’s response to
defendant’s discovery requests.
Juarez did not request a continuance or
otherwise make any provision for later admission of evidence. His October 16
“Summary Judgment Notice of Motion” with accompanying exhibits concerning
the supposed admissions of the plaintiff stated a motion would be made, but did
not constitute a motion for summary judgment. The district court granted the
plaintiff’s motion for summary judgment the same day the defendant filed his
“Notice of Motion.”
The filings made by the defendant after the summary
judgment hearing was held were untimely, and the district court had no obligation
to consider them in its ruling on BOA’s motion for summary judgment.
The record reveals BOA’s motion for summary judgment was properly
supported as required by our rules of appellate procedure. Therefore, it was
incumbent on Juarez to set forth specific facts showing there was a genuine
issue for trial. Upon review of the summary judgment record, we agree with the
district court’s conclusion that the defendant’s response to the summary
5
judgment record is insufficient to avoid summary judgment.
affirm the district court.
AFFIRMED.
Accordingly, we
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
