FIRST NATIONAL BANK OF OMAHA, Plaintiff-Appellee, vs. CARROLL BRANNEN and JANE BRANNEN, Defendants-Appellants.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-348 / 08-1782
Filed June 17, 2009
FIRST NATIONAL BANK OF OMAHA,
Plaintiff-Appellee,
vs.
CARROLL BRANNEN and JANE BRANNEN,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
The defendants appeal from the district court’s order finding the plaintiff
mailed proper notice to cure and entering judgment against the defendants and
in favor of the plaintiffs. AFFIRMED.
Theodore Sporer of Sporer & Flanagan, P.C., Des Moines, for appellant.
Mark Quandahl and Sarah Miller of Brumbaugh & Quandahl, P.C.,
Omaha, Nebraska, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
VOGEL, J.
Carroll and Jane Brannen opened a credit card account with First National
Bank of Omaha (the Bank) in 1976. In 2004, the account became delinquent and
in September 2006, the Bank filed suit to collect on the account. On September
30, 2008, a bench trial was held. The Brannens asserted the Bank did not prove
it mailed a proper notice of right to cure. However, they did not dispute they were
in default or the amount owed.
On October 3, 2008, the district court found that on December 10, 2004,
the Bank’s
automated system generated a letter containing a notice of right to
cure to the Brannens. The Bank does not have a copy of the letter
sent to the defendants. However, the Bank’s computer system
contains the information contained in the letter and shows the date
the letter was created. . . . The Bank has proven that it generated a
notice on December 10, 2004, and that the notice substantially
complied with Iowa Code section 537.5111.
Further, the district court found that the notice was in fact mailed to the
Brannens. The court also noted that Jane Brannen “did not testify that she never
received the notice to cure letter, only that she did not receive a document in the
format of Exhibit 5.”1 Judgment was entered against the Brannens and in favor
of the Bank in the amount of $9168.36 together with interest and costs.
The Brannens appeal and assert the district court erred in finding there
was a statutorily compliant notice to cure and there was sufficient proof of
mailing. Our review is for correction of errors at law. Iowa R. App. P. 6.4. The
district court’s factual findings are binding if supported by substantial evidence.
1
When Jane Brannen was asked whether she had ever seen a document like Exhibit 5,
which was the multi-page computer printout of the notice to cure, she replied: “No, not
this setup.”
3
Iowa R. App. P. 6.14(6)(a). Prior to filing an action to collect a debt, a creditor
must give the consumer notice of right to cure.
Iowa Code §§ 537.5110,
537.5111 (2007). The creditor has the burden of proving the notice was given.
Pub. Fin. Co. v. Van Blaricome, 324 N.W.2d 716, 718 (Iowa 1982).
The Bank introduced computer records demonstrating that a notice to cure
letter was generated by an automated system.2
Dan Tlustos, a recovery
representative with the Bank who handles delinquent accounts, testified that the
Bank’s records were maintained electronically.
He also described how the
Bank’s automated computer system functions, including how a notice to cure
letter is generated and mailed. He stated that the Bank sent a notice to cure
letter to the Brannens and described the content of that letter, which was
supported by the computer records offered and received as exhibits.
Additionally, he testified as to the address the notice to cure was mailed, which
was the Brannens’ address, and that the notice was not returned as
undeliverable. See Pub. Fin. Co., 324 N.W.2d at 718 (holding testimony of office
custom may provide sufficient foundation to raise a presumption that mailed
notices were in fact received). The Brannens had previously received mail from
the Bank at this address.
The Brannens argue that “[t]he only witness testifying as to bank
procedures has no personal knowledge of mailing.” However, our supreme court
2
Our supreme court has acknowledged that records “created through a fully automated
and reliable process involving no human declarant . . . are arguably not hearsay at all, as
they would not have been made by a human declarant.” State v. Reynolds, 746 N.W.2d
837, 843 (Iowa 2008) (citing State v. Armstead, 432 So.2d 837, 839 n. 2 (La. 1983)
(discussing the distinction between computer-stored (hearsay) and computer-generated
(non-hearsay) data); State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998) (noting computergenerated records are not hearsay, and their admissibility is measured by the reliability
of the system)).
4
has “held that testimony of office custom may provide sufficient foundation to
raise a presumption that mailed notices were in fact received.” Montgomery
Ward, Inc. v. Davis, 398 N.W.2d 869, 871-72 (Iowa 1987) (“Although Ward
presented no direct evidence of the process by which the notice to cure was
mailed, the jury reasonably could infer from circumstantial evidence that the
computerized system operated the way its witnesses described. So too could
the jury conclude that Davis received the mailed notice document at the address
she had given Ward just as she had [] received the earlier computer-generated
mailings.”). From Tlustos’s testimony, a fact finder could reasonably conclude
that the automated system operated the way described, identifying the Brannens’
delinquent account, providing the required information, and mailing the notice to
cure. We therefore agree with the district court’s findings as substantial evidence
supports the finding the Bank mailed a notice to cure that complied with statutory
requirements. We affirm the judgment of the district court.
AFFIRMED.
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.
