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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 The "Affidavit" was signed by Citibank's

"Affidavit of Attorney for Plaintiff."

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

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