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IN THE COURT OF APPEALS OF IOWA No. 8-232 / 07-0877 Filed June 25, 2008

BAYVIEW LOAN SERVICING, LLC, f/k/a INTERBAY FUNDING, LLC, Plaintiff-Appellee, vs. LEO W. REISETTER, Defendant-Appellant, SHERRY REISETTER, Defendant. ________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Michael J. Moon, Judge.

A borrower appeals a district court ruling in favor of a lender. AFFIRMED.

Jerrold Wanek of Garten & Wanek, Des Moines, for appellant. Michael J. Cunningham of Howe, Cunningham & Lowe, P.L.C., Des Moines, for appellee.

Considered by Sackett, C.J., and Vogel and Vaitheswaran, JJ.

2 VAITHESWARAN, J. A borrower appeals a district court ruling in favor of a lender. The

borrower asserts that the description of the property securing the loan was insufficient to permit foreclosure, an adequate description was attached only after the mortgage instrument was executed, and the lender, therefore, had no legal interest in the property. The borrower also asserts that the lender did not seek leave of court to amend its petition and, accordingly, waived its right to a personal judgment against him. We affirm. I. Background Facts and Proceedings Leo Reisetter is the owner of a repair shop in Marshalltown with an address of 308 South Third Avenue. That address only refers to the front half of a building on the property. The property actually encompasses the addresses 308, 310, 312, and 314 South Third Avenue. Reisetter and his wife had a loan from Liberty Bank. The bank secured the loan by obtaining a mortgage on the business property. The address listed on the mortgage was 308 South Third Avenue. Reisetter refinanced the debt through Bayview Loan Servicing (Bayview) and used the loan proceeds to pay off Liberty Bank and release its mortgage. The mortgage and security agreement with Bayview listed the mortgaged property as 308 South Third Avenue. An attachment set forth the legal description. Reisetter defaulted on his payments to Bayview and Bayview sued. 1 The petition requested foreclosure of the mortgage. The petition's prayer for relief

1

The petition was filed against Reisetter and his wife but his wife was later dismissed on summary judgment.

3 also sought a personal judgment against the Reisetters. The body of the

document, however, stated Bayview was waiving its right to a deficiency judgment. Bayview later amended its petition to delete that allegation but did not file a motion to amend. In his answer, Reisetter asserted that the legal description in the attachment was included after the mortgage was executed, altering the mortgage and requiring that it be disregarded. The parties filed cross-motions for summary judgment. Those motions were denied as to Bayview and Reisetter. The court concluded the issue "whether the mortgage lacks sufficient specificity to be enforceable" was a question for the fact-finder. Following trial, the district court concluded that equity would imply a security in favor of Bayview. The court foreclosed the mortgage and entered a money judgment against Reisetter in the amount of $174,503.54. appealed. II. Foreclosure. To be effective, "a mortgage must describe the property covered with sufficient certainty to identify it, or furnish the means by which, with the aid of extraneous evidence, it may be identified." 59 C.J.S. Mortgages

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