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IN THE COURT OF APPEALS OF IOWA No. 0-407 / 09-1816 Filed July 28, 2010

FFMLT 04-FF10, BANK OF NEW YORK, as Successor in Interest to JP MORGAN CHASE BANK, N.A., as Trustee, Plaintiff-Appellee, vs. BARBRA J. SMITH, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.

Barbra Smith appeals from a district court order denying her motion to quash the special execution and sale of her residence and grant declaratory relief. REVERSED AND REMANDED WITH DIRECTIONS.

Robert C. Griffin, Des Moines, for appellant. Benjamin W. Hopkins, of Petosa, Petosa & Boecker, L.L.P., Clive, for appellee.

Considered by Vogel, P.J., and Potterfield and Danilson, JJ.

2 DANILSON, J. Barbra Smith appeals from a district court order denying her motion to quash the special execution and sale of her residence and grant declaratory relief. Smith contends the district court erred because the foreclosure judgment entered on July 5, 2007, was null and void pursuant to the statute of limitations in Iowa Code section 615.1 (2007), and thus, no execution could issue thereon. For the following reasons, we reverse. I. Background Facts and Proceedings. Smith resides in a single-family residence at 371 NE 52nd Street in Des Moines, Iowa, with the legal description of Lot 2, W.H. Dean Place, An Official Plat, Polk County, Iowa. On April 4, 2007, Bank of New York filed an action to foreclose upon Smiths mortgage. Smith filed her demand for a six-month delay of sale on April 13, 2007 pursuant to Iowa Code section 654.21, which provides: At any time prior to entry of judgment, the mortgagor may file a demand for delay of sale. . . . [I]f the demand is filed and the mortgaged property is the residence of the mortgagor and is a onefamily or two-family dwelling, the sale shall be held promptly after the expiration of twelve months, or six months if the petition includes a waiver of deficiency judgment, from entry of judgment. On July 5, 2007, the district court entered an in rem foreclosure decree in favor of Bank of New York, which provided for the execution sale of Smith s residence. However, the demand to delay sale Smith filed prohibited Bank of New York from seeking execution on the foreclosure judgment until six months after the foreclosure decree was filed. On July 24, 2009, a special execution was issued for enforcement of the July 5, 2007 foreclosure judgment. Thereafter, Smith filed a motion to quash the

3 special execution and sale of her residence and grant declaratory relief, contending the two-year statute of limitations imposed in Iowa Code section 615.1 rendered the foreclosure judgment null and void and prohibited its execution. Bank of New York subsequently filed a resistance to Smiths motion to quash, arguing the two-year statute of limitations was tolled for six months as a result of Smiths demand to delay sale. On October 29, 2009, the district court denied Smiths motion to quash the special execution and sale and grant declaratory relief, finding "it [did] not have the discretion to stop the sale of the real property in this cause." This ruling allowed the special execution and subsequent sheriffs sale, scheduled for the same day, to proceed. Bank of New York purchased the property at the sheriffs sale and now asserts legal title to it. However, Smith continues to reside on the property. Smith now appeals. II. Scope and Standard of Review. We review a district courts denial of a motion to quash based on statutory construction for errors at law. War Eagle Vill. Apartments v. Plummer, 775

N.W.2d 714, 717 (Iowa 2009). Consequently, we must determine if the district court correctly interpreted Iowa Code section 615.1. III. Preservation of Error. We first address whether error was preserved. Bank of New York

contends error was not preserved because Smith did not introduce into evidence any supporting facts to prove the applicability of section 615.1. Specifically, Bank of New York argues Smith only filed a bare motion to quash and presented no

4 evidence to the district court that the property was a one-family or two-family dwelling at the time the foreclosure judgment was entered. Before an issue can be reviewed on appeal, it must be both raised and decided by the district court. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The failure to present evidence may result in the failure to preserve error. Spies v. Prybil, 160 N.W.2d 505, 507 (Iowa 1968). Here Bank of New York contends no evidence was presented that the property in question was a one or two-family dwelling. However, the resistance alleged the statute of limitations was tolled by Smiths demand to delay the sale for s ix months. Iowa law only permits a six-month delay in a sheriffs sale where the mortgaged property is the defendants residence and is a one-family or two-family dwelling. Iowa Code

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