GREAT WESTERN BANK, Plaintiff-Appellee, vs. STEPHEN D. CREGER, Defendant-Appellant FIRST CHOICE HEATING & COOLING CO., KATHY A. CREGER, CITY OF DES MOINES, IOWA, STATE OF IOWA, ABC SUPPLY CO., STATE OF IOWA DEPARTMENT OF REVENUE, Defendants.
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IN THE COURT OF APPEALS OF IOWA
No. 7-688 / 06-1550
Filed November 29, 2007
GREAT WESTERN BANK,
Plaintiff-Appellee,
vs.
STEPHEN D. CREGER,
Defendant-Appellant
FIRST CHOICE HEATING &
COOLING CO., KATHY A.
CREGER, CITY OF DES MOINES,
IOWA, STATE OF IOWA, ABC
SUPPLY CO., STATE OF IOWA
DEPARTMENT OF REVENUE,
Defendants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Christensen,
Judge.
Stephen Creger appeals the district court’s ruling finding summary
judgment in favor of Great Western Bank. REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
Thomas Lenihan, West Des Moines, for appellant.
Thomas Burke and Nicholas Cooper of Whitfield & Eddy, P.L.C., Des
Moines, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MAHAN, P.J.
Stephen Creger appeals the district court’s ruling finding summary
judgment in favor of Great Western Bank (GWB). Creger claims the district court
erred by relying on the rebuttable presumption of the validity of a notarized
signature, thus, improperly determining the sufficiency of the evidence when it
granted GWB’s motion for summary judgment.
We reverse and remand for
further proceedings.
I. Background Facts and Proceedings
GWB filed a mortgage foreclosure action against Creger, his ex-wife, and
First Choice Heating & Cooling Co. (First Choice) on January 18, 2006. 1 The
petition alleged that on September 3, 2004, the Cregers executed a personal
guaranty and a mortgage in favor of GWB to secure a loan to First Choice. GWB
was initially not able to obtain service upon Creger.
Creger was eventually
served by posting and first-class mail in February 2006 after the district court
granted permission to GWB to serve by alternative service. Creger did not file an
answer until June 15, 2006, after GWB filed a notice of intent to file a written
default against him.
His answer contained an affirmative defense that the
signatures on the loan and mortgage documents were not actually his own.
GWB then filed a motion for summary judgment, claiming there were no
genuine issues of material fact. In his resistance to GWB’s motion for summary
judgment filed July 6, 2006, Creger claimed the promissory note, security
agreements, mortgage, and other documents allegedly executed by himself on
1
First Choice and Kathy Creger do not appeal the summary judgment ruling.
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September 3, 2004, were not, in fact, his signatures.
He supported this
contention with his own affidavit stating in part:
3. For the first time I had an opportunity to review the Exhibits
which are attached to the Petition. When I first reviewed the
Exhibits I was very confused. The signatures which are
contained on those documents that are supposed to be mine in
fact look very much like my signature. They look so much like
my signature that I began to question myself.
4. However, I did not sign any documents on September 3, 2004.
Despite the fact that the document [sic] may look to bear my
signature, they are in fact not my signature.
5. I am confident that they are not my signature because on
September 3, 2004, I was in Minnesota for the entire day and
could not have signed any such documents.
6. Further, it is clear to me after reading some of the terms of the
documents that these documents are different than the actual
ones that I signed at Great Western Bank.
7. I give this Affidavit for purposes of clarifying that the signature
[sic] which purports to be mine on Exhibit “A”, “B”, “C”, and “E”
do not bear my signature and any effort to suggest that these
are my signatures is forgery.
In response, GWB filed the affidavit of Michael McCoy, vice president of
GWB. McCoy stated that he was the notary public for Creger’s signature on the
documents, that to the best of his information and belief the documents were
executed by Creger, and that it is not his nor GWB’s practice or procedure to
allow documents which require notarization to be executed outside the presence
of a notary public. GWB also sought to have Creger’s resistance to the motion
for summary judgment stricken.
The district court did not strike Creger’s
resistance, but ruled in favor of GWB on summary judgment, finding the mere
assertion by Creger denying that his signature was on the documents was not
clear evidence to overcome the presumption of validity afforded to notarized acts.
This appeal followed.
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II. Standard of Review
We review the district court’s ruling on a motion for summary judgment for
corrections of errors at law. Iowa R. App. P. 6.4; General Car & Truck Leasing
Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996). Summary
judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3);
Brown v. Monticello St. Bank, 360 N.W.2d 81, 83-84 (Iowa 1984). The facts
must be viewed in the light most favorable to the opposing party. Bearshield v.
John Morrell & Co., 570 N.W.2d 915, 917 (Iowa 1997). Summary judgment is
not proper if reasonable minds could differ on resolution of the matter before the
court. Dickerson v. Mertz, 547 N.W.2d 208, 212 (Iowa 1996). However, if the
only conflict concerns the legal consequences flowing from undisputed facts,
summary judgment is proper. Brown, 360 N.W.2d at 84.
III. Merits
Creger claims the district court erred by using the rebuttable presumption
of the validity of notarized signatures in ruling on the motion for summary
judgment. He claims this constituted an improper weighing of the evidence that
is to be reserved for the fact finder after a trial on the issues. He claims he
should be afforded the opportunity to overcome the presumption by presenting
additional evidence at trial.
The district court relied on Iowa Code section 9E.10(3) (2005) for its
finding that a notarized document is valid. However, our case law establishes
this presumption. See e.g. Waitt Bros. Land, Inc. v. Montange, 257 N.W.2d 516,
520 (Iowa 1977).
Section 9E.10(3) states that “[t]he signature and title of a
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person performing a notarial act are prima facie evidence that the signature is
genuine and that the person holds the designated title.”
Section 9E.10 is
identical to Uniform Law on Notarial Acts section 3(c) (2005). The comment to
that uniform law leads us to believe that the section refers to the authority of the
notary, not the validity of the document. Unif. Law on Notarial Acts § 3, cmt.
Because the notary’s authority was not challenged, we fail to see the statute’s
applicability to the issues in this case.
“Where the certificate of the notary is in due and legal form, the instrument
is admissible in evidence without further proof, and the burden is upon the
person challenging the truth of its contents to prove his contention by clear and
convincing evidence.” Waitt Bros. Land, 257 N.W.2d at 520. The “clear and
convincing evidence” required to meet this burden of rebutting the presumption is
equivalent to “clear, satisfactory and convincing evidence.” Raim v. Stancel, 339
N.W.2d 621, 624 (Iowa Ct. App. 1983).
acknowledgment.
Great weight is given to a notary’s
Quaas v. Quaas, 250 Iowa 24, 33, 92 N.W.2d 427, 432
(1958); see Waitt Bros. Land, 257 N.W.2d at 519. However, if there is a disputed
issue with regard to the presumed material fact, summary judgment cannot be
granted. See Laufert v. Wegner, 245 Iowa 472, 474, 62 N.W.2d 758, 760 (1954).
[A] summary judgment should not be granted if the affidavit of
defense shows a substantial issue of fact. And this is true though
the affidavit is disbelieved. If the facts stated in the affidavits are
directly opposed the case must be tried.
Eaton v. Downey, 254 Iowa 573, 577, 118 N.W.2d 583, 585 (1962) (emphasis
added).
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In Laufert a grantor sought to set aside deeds of conveyance as
fraudulent.
Id. at 473, 62 N.W.2d at 759.
The grantor was the ward of a
guardianship when the deeds were executed, and thus the deeds were
presumed fraudulent, just as Creger’s signatures are presumed authentic in this
case.
Id.
question.
Our supreme court stated, “This appeal presents strictly a fact
Is the proof offered by the defendants so clear, satisfactory, and
convincing as to overcome the presumed fraud?” Id. at 474, 62 N.W.2d at 760
(emphasis added).
In the case of In re Hasselstrom’s Estate, 257 Iowa 1014, 135 N.W.2d 530
(1965), the proponents of a lost will had the burden to prove the essential
elements of their claim by clear, convincing, and satisfactory evidence.
Our
supreme court stated:
Defendants’ chief complaint about the sufficiency of the
evidence is, it is so thin and contradictory as well as being based to
a large degree on the testimony of proponent that it is not clear,
convincing and satisfactory. Whether or not evidence meets that
test, except in rare cases, is for the determination of the trier of
facts, it involves credibility, weight and preponderance of the
evidence.
Hasselstrom’s Estate, 257 Iowa at 1021, 135 N.W.2d at 535 (emphasis added).
In ruling on the motion for summary judgment, the district court was
required to determine the facts in the light most favorable to Creger. Bearshield,
570 N.W.2d at 917. GWB alleged that Creger executed the documents and then
failed to perform under their terms. Undisputed, these facts were sufficient to
warrant a grant of summary judgment in favor of GWB. However, Creger then
presented a sworn affidavit disputing the authenticity of his signature on the
documents. Except in rare cases, the question of whether evidence constitutes
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the clear and convincing evidence necessary to rebut a presumption presents a
fact question.
We believe that Creger’s affidavit raises a genuine issue of
material fact, and it is up to the finder of fact to determine whether facts
presented in support of the allegations of the affidavit constitute such clear and
convincing evidence as to rebut the presumption involved in this case.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
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