Cases in Real Estate
is a weekly update on real estate law, with legal principles illustrated and
explained by lawsuits from around the country. The topics are wide-ranging for
appeal to a broad spectrum of readers including lawyers, homeowners, investors
and the general public. Andrea Lee Negroni, a Washington DC
attorney and legal writer with 25 years of experience in financial services and
mortgage law, contributes the case summaries.
Real Cases in Real Estate will learn and be entertained by lawsuits
involving nuisance, trespass, zoning violations, deed restrictions, title
insurance, public utilities, mechanics liens, construction defects, adverse
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brokers and homebuyers, and zoning administrators and developers.
cited case summary highlights the essential law of the case and explains the
principal legal theories and concepts relevant to the outcome. Plain language
treatment makes Real Cases in Real Estate accessible to lawyers and
follow real estate law professionally or as a hobby, you'll find something new
and useful every week in Real Cases in Real Estate.
for the Week of January 7th, 2013
Former Owner's Simple
Allegation of Paramount Title Does Not Support Dismissal of Bank's Forcible
Entry and Detainer Petition.
Thomas Hawbaker and his
wife bought a home in Mills County, Iowa in 2002; the mortgage was foreclosed
in March 2008. The district court issued a special execution for sale of the
real estate and ordered it sold six months later. The court also ordered the
sheriff of Mills County to put the foreclosure purchaser "into immediate
possession" of the property after the sale. The sheriff's sale was held on
September 15, 2009 with Glenwood State Bank as the purchaser. The bank received
a sheriff's deed the same day. Hawbaker was served with a notice to quit and a petition
for forcible entry and detainer was granted. Forcible entry and
detainer involves legal proceedings by the rightful owner against a squatter or
tenant without title who refuses to depart the property. A hearing on the
petition took place on October 6, 2009. The district court granted the petition
for forcible entry and detainer.
Hawbaker challenged the
forcible entry and detainer by claiming "paramount title" to the property. By
claiming paramount title, he was attempting to deprive the bank of its remedy
(forcible entry and ultimately, eviction of the prior owner) because under Iowa
law, a summary remedy for forcible entry and detailer is allowed "when the
defendant continues in possession after ... foreclosure ..., unless the defendant claims by a title paramount to the lien by virtue
of which the sale was made ..."
Case law in Iowa dating
to 1841 states that forcible entry and detainer actions are not the proper
actions for trying titles. In claiming paramount title, Hawbaker attempted to
defeat the court's jurisdiction. He failed because later case law indicates
that "title is a justiciable issue in a forcible entry and detainer action when
the action has been originally commenced in a district court." Since Hawbaker participated in the
foreclosure action that resulted in the bank's acquisition of title, and
because he failed to specify the grounds on which his claimed paramount title
rested, the appeals court affirmed the order granting forcible entry and
detainer to the bank.
GLENWOOD STATE BANK, vs. THOMAS A. HAWBAKER, 2011 Iowa App. LEXIS 119 [enhanced version available to lexis.com subscribers].
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