CITIBANK (SOUTH DAKOTA), N.A., Plaintiff-Appellee, vs. RICHARD MAKOHONIUK, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-944 / 09-0762
Filed December 17, 2009
CITIBANK (SOUTH DAKOTA), N.A.,
Plaintiff-Appellee,
vs.
RICHARD MAKOHONIUK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Paul R. Huscher,
Judge.
A consumer appeals from the summary judgment entered by the district
court in favor of a credit card issuer. REVERSED AND REMANDED.
Theodore Sporer, Des Moines, for appellant.
Jaci Rase, Des Moines, for appellee.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
2
MANSFIELD, J.
Richard Makohoniuk appeals a district court’s grant of summary judgment
in favor of a credit card issuer. Because we find a genuine issue of material fact
as to whether the credit card issuer mailed Makohoniuk the required notice of
right to cure, we reverse and remand.
Citibank (South Dakota), N.A. sued Makohoniuk on September 22, 2008,
alleging that he owed it a credit card debt of approximately $30,084.82.
Makohoniuk answered, denying liability. On March 6, 2009, Citibank moved for
summary judgment.
Accompanying the motion was a document entitled
“Affidavit of Attorney for Plaintiff.”
The “Affidavit” was signed by Citibank’s
attorney. However, it was not notarized or dated, and it did not state that it was
sworn or made under penalty of perjury. It did say,
Attached hereto as Exhibit “A2” and a [sic] made a part hereof is a
true and correct copy of the Notice to Cure sent to the Defendant.
It is our regular practice to mail all Notices to Cure on the date so
noted on the Cure.
Accompanying the “Affidavit” was a copy of what purported to be a June 26,
2008 “Notice of Right to Cure Default” addressed to Makohoniuk by Citibank’s
law firm.
Makohoniuk filed a resistance to Citibank’s summary judgment motion.
Makohoniuk argued there was a genuine issue of material fact as to whether the
notice of right to cure had been sent.
His resistance was supported by an
affidavit where he denied receiving the June 28, 2008 notice, although he
conceded the address reflected in the notice was the correct address of his
residence.
3
Following oral argument, the district court granted summary judgment.
Makohoniuk now appeals, arguing there was a genuine issue of fact as to
whether Citibank provided the required pre-suit notice.
We review the entry of summary judgment for correction of errors at law.
Fennelly v. A-1 Mach. & Tools Co., 728 N.W.2d 181, 185 (Iowa 2007).
A motion for summary judgment should only be granted if, viewing
the evidence in the light most favorable to the nonmoving party,
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Id. (quoting Iowa R. Civ. P. 1.981(3)).
The parties do not dispute that under the Iowa Consumer Credit Code,
Citibank was obligated to give a notice of right to cure before commencing legal
action. See Iowa Code §§ 537.5110, 537.5111 (2007). The giving of a notice to
cure is a condition precedent to bringing suit; it is the creditor’s burden to prove
the notice has been given. Montgomery Ward, Inc. v. Davis, 398 N.W.2d 869,
870 (Iowa 1987) (holding a creditor has the burden of proving it gave notice to
cure under Iowa Code section 537.5110); Pub. Fin. Co. v. Van Blaricome, 324
N.W.2d 716, 718 (Iowa 1982) (same). There is a six-pronged test for meeting
the burden of proof of mailing. Van Blaricome, 324 N.W.2d at 718. Specifically,
there must be evidence:
1) Of the contents and execution of the paper;
2) That it was enclosed in a wrapper or otherwise prepared
for transmission through the mail;
3) Of the correct address of the person to receive it;
4) That the wrapper was properly addressed;
5) That postage was prepaid; and
6) That the article was deposited in the mail.
4
See id. at 718-19. Yet, proof of “standard office procedure” or “office custom” is
sufficient to raise a presumption that the notice was mailed. Id. at 721. It is not
necessary that the witness have recollection about the specific mailing (or even
that he or she be the actual person who made the mailing). Id.; see also Davis,
398 N.W.2d at 370.
Makohoniuk argues that there is a genuine issue of material fact as to
whether the notice was sent.
We agree with Makohoniuk, for at least two
reasons. First, the “Affidavit” of Citibank’s attorney does not comply with Iowa
Rule of Civil Procedure 1.981(5) because it is not actually an affidavit or a
permissible substitute therefor. It is not dated, notarized, sworn, or made under
penalty of perjury. See Iowa Code § 622.1 (allowing unsworn declarations made
under penalty of perjury to be used in lieu of affidavits). Second, even if the
“Affidavit” had been properly verified, we believe it would still be deficient under
rule 1.981(5). An attorney’s conclusory statement that it is “our regular practice
to mail all Notices to Cure on the date so noted on the Cure” does not meet the
rule’s requirements that affidavits be “made on personal knowledge, . . . set forth
such facts as would be admissible in evidence, and . . . show affirmatively that
the affiant is competent to the matters stated therein.” Many attorneys in law
firms do not handle the mailing of correspondence, and there is no indication in
the record that this attorney had personal knowledge of the mailing practices in
the firm. In addition, there is no description or detail regarding those practices.
We do not, because we need not, reach the question whether
Makohoniuk’s affidavit would create a genuine issue of material fact even if
Citibank had properly supported its summary judgment motion on an issue, i.e.,
5
the giving of notice, where it had the burden of proof.
Iowa Code section
537.5111(3) does not require that the notice to cure be received; it just requires
that it be mailed to the consumer’s residence. See Midwest Checking Cashing,
Inc. v. Richey, 728 N.W.2d 396, 400-01 (Iowa 2007) (holding that a notice to cure
complied with the Iowa Consumer Credit Code when it was mailed to the
consumer’s residence address as defined in the statute, even though the
consumer did not receive it because she had moved). Van Blaricome indicates
that proper testimony regarding “office custom” is “sufficient, absent proof to the
contrary, to raise a presumption that the notices of default were mailed.” 324
N.W.2d at 721. Yet, all this leads to another question (which we do not answer
today): Can a consumer’s sworn denial that he received a notice to cure at the
address listed thereon raise a genuine issue of fact for summary judgment
purposes as to whether the notice was mailed, even assuming the creditor
provides competent proof of “office custom” regarding mailing?
Finally, we reject Citibank’s argument that Makohoniuk waived his right to
appeal the summary judgment ruling because he did not order a transcript of the
summary judgment hearing. Citibank suggests that some additional explanation
of the law firm’s business practices was provided at that hearing. However, the
purpose of a summary judgment hearing is to allow attorneys to present
argument, not to receive additional evidence.
Thus, a summary judgment
hearing is ordinarily not the kind of hearing covered by Iowa Rule of Appellate
Procedure 6.803. Absent a special circumstance, which has not been shown
here, Makohoniuk was not required to order a transcript of the summary
judgment hearing.
6
For the foregoing reasons, we reverse and remand for further
proceedings.
REVERSED AND REMANDED.
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.
