                       IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1021
                               Filed July 18, 2018


SIBLEY STATE BANK,
     Plaintiff-Appellee,

vs.

DALE W. BRAAKSMA, DANNA S. BRAAKSMA, JESSE DALE BRAAKSMA,
and BRAAKSMA GRAIN FARMS, INC.,
     Defendants-Appellants.
________________________________________________________________


       Appeal from the Iowa District Court for Osceola County, Patrick M. Carr,

Judge.



       Farm debtors appeal the district court’s appointment of the bank as a

receiver, the denial of a continuance, and the grant of summary judgment to the

bank in a foreclosure action. AFFIRMED.




       Curt Krull of Waagmeester Law Office, P.L.C., Rock Rapids, for appellants.

       Daniel E. DeKoter of DeKoter, Thole, Dawson & Rockman, P.L.C., Sibley,

for appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ. Carr,

S.J., takes no part.
                                            2


TABOR, Judge.

         For more than a decade, Sibley State Bank loaned money to Dale and

Danna Braaksma, their son Jesse, and Braaksma Grain Farms, Inc. (collectively

the Braaksmas) and secured mortgages on their farmland as collateral. This

appeal involves the bank’s foreclosure action commenced in 2016.                     The

Braaksmas take issue with three district court rulings: (1) appointment of the bank

as a receiver under Iowa Code section 680.1 (2017); (2) denial of their motion to

continue under Iowa Code section 645.15; and (3) grant of the bank’s motion for

summary judgment on the foreclosure. Finding the district court acted properly in

all three respects, we affirm.

    I.      Facts and Prior Proceedings

         At the time, the Braaksmas owned about 800 acres of farmland in Osceola

County. Dale and Danna filed articles of incorporation creating Braaksma Grain

Farms, Inc. in 2000. Dale is corporate president and Danna is the treasurer and

secretary. Their son, Jesse plays an active role in the family’s farming operations.

         From 2004 to 2014, Sibley State Bank loaned the Braakmas money through

six promissory notes. Dale and Danna signed two of the six promissory notes,

Jesse signed three of the promissory notes, and Braaksma Grain Farms signed

one.     The Braaksmas’ notes and obligations were secured by real estate

mortgages encumbering more than half of their total acres of land.1




1
  The record shows a series of three unconditional guaranties of the bank obligations: the
first executed by Dale and Danna in January 2004, holding them liable for all of Jesse’s
obligations; the second executed by Braaksma Grain Farms’ in October 2013, holding the
corporation liable for all of Dale and Danna’s obligations; and the third executed by Dale
and Danna in May 2014 for Braaksma Farm’s obligations to the bank.
                                             3


       In early 2016, the Braaksmas missed payments on their promissory notes.

By July 15, 2016, all the notes were in default. The Braaksmas owed the bank in

excess $1.5 million. The bank sent the Braaksmas notice of right to cure the

default, but forty-five days elapsed without payment. The parties participated in

mediation as required by Iowa Code section 654.2C2 but did not come to an

agreement. The bank requested a mediation release in August. In September,

the bank’s attorney sent a “demand for payment of the accelerated balances of the

promissory notes” in accord with a clause in the promissory notes and Iowa Code

section 654.4B.3 In October, the bank proceeded with a foreclosure action.4

       In February 2017, the bank asked to be appointed as the receiver under the

terms of the Braaksmas’ mortgages. The application asserted, “The property



2
  This section provides:
                 A person shall not initiate a proceeding under this chapter to
        foreclose a deed of trust or mortgage on agricultural property, as defined
        in section 654A.1, which is subject to chapter 654A and which is subject to
        a debt of twenty thousand dollars or more under the deed of trust or
        mortgage unless the person receives a mediation release under section
        654A.11, or unless the court determines after notice and hearing that the
        time delay required for the mediation would cause the person to suffer
        irreparable harm. Title to land that is agricultural property is not affected by
        the failure of any creditor to receive a mediation release, regardless of its
        validity.
Iowa Code § 654.2C.
3
  This section provides:
                 Prior to commencing a foreclosure on the accelerated balance of a
        mortgage loan and after termination of any applicable cure period, including
        but not limited to those provided in section 654.2A or 654.2D, a creditor
        shall give the borrower a fourteen-day demand for payment of the
        accelerated balance to qualify for an award of attorney fees under section
        625.25 on the accelerated balance.
Iowa Code § 654.4B(1).
4
  The bank also brought a replevin action against the Braaksmas. Because Iowa Code
section 643.2 prohibits joinder of any action with a replevin proceeding, the district court
addressed the replevin filing in a separate case. See Sibley State Bank v. Braaksma, No.
17-1002, also filed today.
                                           4


subject to the mortgages is tillable farmland. Historically, the [Braaksmas] have

very poor farm practices, which have deteriorated the condition of the farmland

and resulted in yields well below local production averages.” The Braaksmas

contested the appointment of the bank as receiver. Bank president Karl Bormann

testified the Braaksmas demonstrated an “inability for timeliness, to actually get

the crop in in a timely fashion, to actually care for the crop in terms of weed control,

to actually fertilize the crop, and then to ultimately harvest the crop.” Bormann

pointed to lower yields and deterioration of the corn allowed to stand in the field.

In response to Bormann, Jesse testified his family uses no-till and other

sustainable farming approaches which were not common to their area of the state.

He said the bank took a “dim view” of these conservation methods and wanted

them to “operate like their other customers.” In March 2017, the district court

appointed the bank as receiver.

        Also in February 2017, the bank filed a motion for summary judgment in

the foreclosure action. In March, the Braaksmas filed a resistance to the bank’s

motion for summary judgment, as well as a motion to continue under Iowa Code

section 654.15. In May, the district court denied the Braaksmas’ motion to continue

and granted the bank’s motion for summary judgment. The district court filed the

decree of foreclosure in June 2017. The Braaksma now appeal.

II.    Scope and Standards of Review

       The three issues on appeal call for varying standards of review. First, we

review the district court’s decision to appoint the bank as receiver de novo. See

Wellman Sav. Bank v. Roth, 432 N.W.2d 697, 699 (Iowa Ct. App. 1988). We give

weight to the district court’s fact findings but are not bound by them. Id.
                                          5


       Second, we review the denial of a continuance under the foreclosure

moratorium statute for an abuse of discretion. See Ronan v. Larson, 278 N.W.

641, 642 (Iowa 1938).

       Third, we review the grant of summary judgment for the correction of legal

error. Iowa R. App. P. 6.907; U.S. Bank Nat’l. Ass’n v. Lamb, 874 N.W.2d 112,

115 (Iowa 2016). The district court properly grants summary judgment “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, reveal 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);

IBP Inc. v. DCS Sanitation Mgmt. Servs., Inc., 498 N.W.2d 425, 426 (Iowa Ct. App.

1993). A genuine issue of material fact exists if reasonable minds could differ with

respect to how the issue should be resolved. U.S. Bank Nat’l. Ass’n v. Lamb, 874

N.W.2d at 115. We view the record in the light most favorable to the nonmoving

party. Id.

III.   Discussion

       A.     Appointment of Receiver

       A receiver is “a person appointed by the court to take into his custody the

control and management of the property or funds of another, pending judicial

action concerning them.” Dobler v. Bawden, 25 N.W.2d. 866, 869–70 (Iowa 1947)

(describing receiver as “an arm of the court”). On appeal, the Braaksmas contend

the district court should not have appointed the bank as receiver. They first assert

the mortgage did not contractually require the appointment of a receiver. The

mortgage states:
                                           6


             Upon a default by the Mortgagor, the lender may take
      possession of the property itself or through a court appointed
      receiver, without regard to the solvency or insolvency of the
      Mortgagor, the value of the property, the adequacy of the Lender’s
      security, or the existence of any deficiency judgment, and may
      operate the Property and collect the rents and apply them to the
      costs of operating the Property and/or to the unpaid debt.

      The bank interprets this clause as entitling it to appointment of a receiver.

The district court disagreed, concluding it could not “infer from the language of

those mortgages” that the Braaksmas were barred from resisting the appointment

of a receiver. We agree with the district court; the use of the term “may” signals

the Braaksmas did not consent to the appointment of a receiver. See Norwest

Bank Des Moines, Nat’l. Ass’n v. Bruett, 432 N.W.2d 711, 712 (Iowa Ct. App. 1988)

(finding mortgagor consented to appointment of a receiver based on the use of

“shall” in the mortgage). Given the mortgage language, the appointment of a

receiver was a decision for the district court. See Holden v. Constr. Mach. Co.,

202 N.W.2d 348, 360 (Iowa 1972) (describing appointment of a receiver to be

“addressed to the court’s sound legal discretion”).

      We turn from the contract terms to the statutory language. The Braaksmas

acknowledge Iowa Code section 680.1 authorizes the district court to appoint a

receiver where

      the party shows that [it] has a probable right to, or interest in, any
      property which is the subject of the controversy, and that such
      property, or its rents or profits, are in danger of being lost or materially
      injured or impaired, and on such notice to the adverse party as the
      court shall prescribe, the court, if satisfied that the interests of one or
      both parties will be thereby promoted, and the substantial rights of
      neither unduly infringed. . . .

Iowa Code § 680.1.
                                          7


       The Braaksmas do not dispute the bank’s interest in the property nor do

they deny receiving “notice.”     But they contend the bank failed to meet the

remaining elements of the statute.         In particular, the Braaksmas maintain

insufficient evidence supports the bank’s position that the property’s “rents or

profits” were “in danger of being lost or materially injured or impaired”.

       At the hearing on the bank’s motion to appoint a receiver, bank president

Bormann expressed concern the Braaksmas would not timely harvest their corn

crop, noting Jesse’s dilatory farm practices and “the inconsistency of allowing grain

to stand in the field and be harvested in the spring further added to the deterioration

of that collateral.” The Braaksmas assert Bormann is “not a farming expert” and

his testimony did not show the bank’s interest in the crop yield was “in danger of

being lost or materially injured” without the appointment of a receiver. They fault

the district court for accepting Bormann’s opinion “at face value” and allege the

district court erred in appointing a receiver because the court relied on the

“groundless opinions of a bank president.”

       The bank counters that the previous fall it was forced to hire a custom

combine to harvest the Braaksmas’ corn even though the family possessed

machinery and could have timely harvested the crop.            The bank argues the

Braaksmas’ “refusal to harvest the 2016 corn crop is sufficient in itself to support

a finding of probable injury or impairment to the rents and profits of the land under

section 680.1.” We agree the district court properly appointed the bank as receiver

so the bank could oversee the harvest and protect its profits in foreclosure to

reduce the outstanding obligations of the Braaksmas.
                                             8


       In further defense of the district court’s decision, the bank argues the

Braaksmas cannot show their substantial rights were “unduly infringed” by the

appointment of the bank as a receiver because they were granted the right of first

refusal to rent the farmland in compliance with Iowa Code section 654.14.5 See

Fed. Land Bank of Omaha v. Heeren, 398 N.W.2d 839, 842 (Iowa 1987) (defining

preference under the facts of case as giving the debtor a right of first refusal in

leasing).   The Braaksmas contend that as a practical matter the statutory

preference was of little value to them after the bank took their assets in the replevin

action. They also cite to Iowa Code section 628.3, which provides for a debtor to

“redeem real property at any time within one year from the day of sale” and entitles

a debtor “in the meantime” to “possession thereof.” The Braaksmas argue that

when read together sections 654.14 and 628.3 signal a legislative intent to give

landowners “every opportunity” to continue farming until a foreclosure is final.

While those statutory provisions may signal such an intent, nothing about the

appointment of a receiver in this case undermines that legislative purpose.

       The appointment of the receiver offered a benefit to both the bank and the

Braaksmas. The receiver maximizes the value of the land the bank can sell which

in turns decreases the Braaksmas’ debt. We conclude the appointment of the bank

as receiver did not unduly infringe on the Braaksmas’ rights and affirm the ruling.




5
 “In an action to foreclose a real estate mortgage, if a receiver is appointed to take charge
of the real estate, preference shall be given to the owner or person in actual possession,
subject to approval of the court, in leasing the mortgaged premises.” Iowa Code §
654.14(1).
                                           9


       B.        Denial of Continuance

       The Braaksmas next allege the district court abused its discretion in denying

their March 2017 motion to continue under Iowa Code section 654.15. That statute

provides:

                In all actions for the foreclosure of real estate mortgages . . .
       when the owner enters an appearance and files an answer admitting
       some indebtedness and breach of the terms of the designated
       instrument . . . the owner may apply for a continuance of the
       foreclosure action if the default is mainly due or brought about by
       reason of drought, flood, heat, hail, storm, or other climatic conditions
       . . . . The application must be in writing and filed at or before final
       decree . . . . If the court finds that the application is made in good
       faith and is supported by competent evidence showing that default in
       payment or inability to pay is due to drought, fraud, heat, hail, storm,
       or other climatic conditions or due to infestation of pests, the court
       may continue the foreclosure proceedings . . . .

Iowa Code § 654.15(1)(a).

       The Braaksmas partially satisfied section 654.15 by admitting in their

answer to defaulting on some of the notes and to breaching the terms of the

designated instrument. But they fell short on proving by competent evidence that

their default was mainly due to climatic conditions. At a May 2017 hearing Jesse

testified the “very wet, nasty spring” of 2016, which prevented timely planting, was

the root of their financial turmoil. He explained, “The rain just continued. So what

we   did    is    we   filed   a   prevented    plant    claim   with    our   Federal

Crop Insurance on approximately 75 percent of our farm.” Jesse claimed the

family’s inability to plant three-quarters of its cropland led directly to the loan

default. But on cross examination, Jesse acknowledged payments were due on

bank notes in the amount of $28,800 in January 2016 and in the amounts of

$65,730 and $76,591 in March 2016, before the wet spring would have had an
                                         10


impact on their ability to satisfy the obligations. The bank agreed to extend the

payment dates until the summer of 2016.

       In denying the Braaksmas’ motion to continue, the district court aptly

reasoned

       [T]heir failures to pay in January and March, 2016, or the extended
       note dates of June and July, 2016, can scarcely be laid at the feet of
       wet planting conditions for the 2016 crop. Had the wet planting
       conditions not prevailed, and had their 2016 crop been timely
       planted, it would not have been available for harvest, sale and
       application to their notes until the fall harvest season of 2016. Even
       after allowing for their 45-day cure dates, all their cure dates expired
       before September, 2016, the earliest date upon which the crop could
       have been realized.

The court concluded the Braaksmas’ default did not result from adverse weather

conditions.   The statute allows the district court to exercise discretion in

determining whether the owners’ predicament can be traced to climactic conditions

beyond their control. See Bank of Craig, Craig, Mo v. Hughes, 398 N.W.2d 216,

2017 (Iowa Ct. App. 1986). The Braaksmas did not produce sufficient evidence to

support a finding that their application was made in good faith or they were unable

to pay due to conditions outlined in section 654.15. We determine the district court

acted within its discretion in declining to impose a foreclosure moratorium under

section 654.15.

       C.     Summary Judgment

       Most critically, the Braaksmas assert the district court erred in granting the

bank’s motion for summary judgment in the mortgage foreclosure proceeding.

They raise a single contention over the interpretation of a creditor’s right to cure a

default in a foreclosure action on agricultural land under Iowa Code

section 654.2A(1) and (4).
                                          11


       At issue is the following language:

              1. A creditor shall not initiate an action pursuant to this chapter
       to foreclose on a deed of trust or mortgage on agricultural land, as
       defined in section 9H.1, until the creditor has complied with this
       section.

              ....

              4. If the borrower has a right to cure a default:

              a. A creditor shall not accelerate the maturity of the unpaid
       balance of the obligation, demand or otherwise take possession of
       the land, other than by accepting a voluntary surrender of it, or
       otherwise attempt to enforce the obligation until forty-five days after
       a proper notice of right to cure is given. The time period for a request
       for mediation pursuant to chapter 654A shall run concurrently with
       the period for the notice to cure under this section.

               b. Until the expiration of forty-five days after notice is given,
       the borrower may cure the default by tendering either the amount of
       all unpaid installments due at the time of tender, without acceleration,
       plus a delinquency charge of the scheduled annual interest rate plus
       five percent per annum for the period between the giving of the notice
       of right to cure and the tender, or the amount stated in the notice of
       right to cure, whichever is less, or by tendering any performance
       necessary to cure a default other than nonpayment of amounts due,
       which is described in the notice of right to cure.

Iowa Code § 654.2A.

       The Braaksmas highlight the last clause of section 654.2A(4)(b), contending

they may cure the default by tendering either the amount of all unpaid installments

or any performance necessary to cure a default other than nonpayment of amounts

due.6 They focus on the word “performance” and suggest it be given a liberal

construction under the remedial provisions of chapter 654. See Koch v. Kostichek,

409 N.W.2d 680, 682 (Iowa 1987). The Braaksmas contend “any performance” is



6
  The Braaksma do not dispute that they were in default or that they received the proper
forty-five day notice to cure.
                                           12


broad enough to encompass their pledge to assign their expected crop insurance

payment and the liquidation of “old crop” grain on hand to the bank. They claim

by informing the bank of a future payment at a future date they satisfy the

performance requirement of section 654.2A(4)(b).

       The bank insists the Braaksmas are “misreading” the last phrase and offers

an alternative statutory interpretation:

       The Code contemplates two situations, which may or may not both
       be in play in a given case. One situation is a debtor defaulting by
       failing to make a payment due, which is the Braaksma situation.
       Another situation is the debtor defaulting by violating some other
       agreement with the creditor, e.g. by failing to pay real estate taxes,
       or failing to insure collateral as required in loan agreements.

The bank contends it is unreasonable to interpret the right-to-cure statute as

allowing a debtor to cure a default by the promise of a future payment. We agree

with the bank’s interpretation. The phrase “any performance necessary” in the last

sentence refers to defaults stemming from the borrower’s failure to satisfy an

obligation to the lender other than nonpayment. See Koch, 409 N.W.2d at 683

(“We will not search for the meaning of a statute or apply a strained construction

when its language is clear and unambiguous.”). The Braaksmas have not shown

any legal error in the district court’s grant of the bank’s motion for summary

judgment.

       AFFIRMED.
