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IN THE COURT OF APPEALS OF IOWA No. 9-856 / 09-0345 Filed January 22, 2010 U.S. BANK, Plaintiff-Appellee, vs. ANNA M. WEEMS, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Todd Gear, Judge.

Borrower in default on note appeals summary judgment in favor of bank. AFFIRMED.

Thomas P. Frerichs, Waterloo, for appellant. Christopher K. Loftus of Gurstel, Stalock & Chargo, P.A., Golden Valley, Minnesota, for appellee.

Considered by Eisenhauer, P.J., Potterfield, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).

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EISENHAUER, P.J. On March 25, 2003, Anna Weems signed a promissory note and mortgage for $32,738.96 with U.S. Bank. Weems made payments through

March 31, 2004, but then defaulted. On July 30, 2004, U.S. Bank charged off the Weems loan and ceased assessing late fees. On January 23, 2008, U.S. Bank sued to collect the debt and subsequently sought summary judgment. Weems resisted and argued the doctrines of abandonment and estoppel by acquiescence prevent recovery. Weemss affidavit asserts: I last made a regular payment . . . in March of 2004. On July 30, 2004, [U.S. Bank] "charged off" said loan and quit assessing late fees against me and never made or attempted collection on said mortgage. At no time since 2004 has [U.S. Bank] made any effort to collect on said promissory note or mortgage. I have had regular contact with U.S. Bank since prior to 1996. I have a home loan through U.S. Bank that is current at this time . . . . I have been late on that loan and the bank always made arrangements with me to continue my loan with separate payment arrangements. At none of the meetings concerning negotiations on my existing loan has anyone ever brought up the loan made in 2003. I have done numerous volunteer training seminars with the bank for over ten years . . . . It has been my understanding since 2004 that U.S. Bank had forgiven the loan and I was no longer obligated to make any payments. No one with U.S. Bank ever questioned me about the loan despite my nearly weekly visits to the bank. I understood that the loan had been forgiven and all of the actions of the Bank confirmed what I believed. The district court granted summary judgment to U.S. Bank and this appeal followed.
I. Standard of Review We review rulings on motions for summary judgment for the correction of errors at law. City of Cedar Rapids v. James Props., Inc., 701 N.W.2d 673, 675 (Iowa 2005). "Summary judgment is appropriate only when the entire record

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demonstrates that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). We examine the record in the light most favorable to the nonmoving party and draw all legitimate inferences the evidence bears in order to establish the existence of questions of fact. Mason v. Vision Iowa Bd., 700

N.W.2d 349, 353 (Iowa 2005). "A party resisting a motion for summary judgment cannot rely on the mere assertions in his pleadings but must come forward with evidence to demonstrate that a genuine issue of fact is presented. " Stevens, 728 N.W.2d at 827. II. Merits. Parties to a valid contract may abandon it, or by conduct inconsistent with the continued existence of the original contract, estop themselves from asserting contractual rights. Severson v. Elberon Elevator, Inc., 250 N.W.2d 417, 421 (Iowa 1977). Abandonment or estoppel may be evidenced by both words and conduct. Id. at 421-22. When the evidence is susceptible to differing inferences, the issue is for the trier of fact. Id. at 422. Weems first argues a factual issue on abandonment is generated because U.S. Banks actions of charging off her loan, posting a zero balance on its records, and making no further attempts at collection show it intended to abandon its rights to collect. "Abandonment is the relinquishment, renunciation, or surrender of a right. " Kladivo v. Melberg, 210 Iowa 306, 308, 227 N.W. 833, 835 (1929). "Abandonment involves an intent and purpose to surrender the right acquired, accompanied by acts indicating that purpose and intent." Ray Coal Mining Co. v. Ross, 169 Iowa 210, 217, 151 N.W. 63, 65 (1915). "The act of relinquishing must be unequivocal and

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decisive." Kladivo, 210 Iowa at 308, 227 N.W. at 835. Importantly, "mere nonuser of a right acquired by contract does not, in itself, constitute an abandonment of that right." Ross, 169 Iowa at 217, 151 N.W. at 65. However, nonuse of contract rights "coupled with other circumstances and conditions which expressly show an intention to abandon," if acted on by the other interested party, constitutes abandonment. Id. In her affidavit resisting summary judgment Weems did not assert she received any notice, written or otherwise, from the bank releasing her from the note and mortgage. However, in her briefing on appeal she states: "In 2004 US Bank provided to Weems, and presumably to appropriate tax collection agencies, formal documentation that there was a ,,zero balance on the loan." She makes no

reference to the record to support this allegation. In fact the only reference to a zero balance is in an internal US. Bank document obtained during discovery in this litigation. U.S. Bank brought suit within the applicable ten-year statute of limitations. See Iowa Code

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