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IA APPEALS COURT |”Sheriff’s Sale Null and Void, Returning Legal Title to Owner” BANK OF NEW YORK v SMITH

IA APPEALS COURT |”Sheriff’s Sale Null and Void, Returning Legal Title to Owner” BANK OF NEW YORK v SMITH


IN THE COURT OF APPEALS OF IOWA
No. 0-407 / 09-1816

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.

Excerpt:

Bank of New York also contends any issue concerning the validity of the foreclosure judgment is moot because it already bought the property at the sheriff’s sale. We find this claim without merit because we have the power to declare a judgment null and void, even if the judgment has previously been executed. See Hell, 238 Iowa at 513-14, 28 N.W.2d at 2-3 (holding the two-year statute of limitations had run, rendering the judgment null and void even though a levy had been made on the property and the debtor’s credits had already been garnished). “A void judgment ordinarily cannot be made valid and operative by . . . a sale on execution held under it.” Halverson v. Hageman, 249 Iowa 1381, 1390, 92 N.W.2d 569, 575 (1958) (citation omitted). The fact that an execution sale has occurred does not moot the issue presented.

V. Conclusion.
We conclude the legislature did not intend a demand to delay sale obtained pursuant to Iowa Code section 654.21 to toll the two-year statute of limitations in section 615.1. Therefore, the July 24, 2009 special execution of the July 5, 2007 foreclosure judgment came nineteen days too late, rendering the judgment null and void.

We reverse the decision of the district court and remand for entry of a decree declaring the sheriff’s sale null and void, returning legal title to Smith, and declaring the July 5, 2007 foreclosure judgment null and void for any purpose other than set off or counterclaim. Costs are assessed to the Bank of New York.

REVERSED AND REMANDED WITH DIRECTIONS.

BANK OF NEW YORK v SMITH

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