Opinion
No. 3-116 / 02-0298.
Filed March 12, 2003.
Appeal from the Iowa District Court for Woodbury County, JOHN D. ACKERMAN, Judge.
Defendant appeals from the district court's ruling granting plaintiff's motion for summary judgment. AFFIRMED.
George Qualley, Sioux City, for appellants.
Lee Poppen, Kansas City, and Kelly Salker of Berenstein, Moore, Berenstein, Hefferman Moeller, L.L.P., Sioux City, for appellee.
Considered by VOGEL, P.J., and VAITHESWARAN and EISENHAUER, JJ.
Defendant, George Qualley IV, appeals from the district court's ruling granting plaintiff UMLIC VP L.L.C.'s motion for summary judgment. Qualley contends the district court erred in concluding there was no genuine issue of material fact in dispute. We review the district court's ruling for errors at law. Iowa R.App.P. 6.4.
Bank of America filed a foreclosure action against defendants Cornelius Real Estate. Inc, George Qualley, Bonnie Qualley, and several lien holders alleging Cornelius Real Estate, Inc. (Cornelius) had defaulted on its $59,000 loan. Bank of America claimed the outstanding principal on the loan was $36,905.05 plus interest. Summary judgment was granted on March 1, 2001 granting foreclosure and declaring the amount due on the note as $36,905.08 plus accrued interest.
On the same date, the plaintiff was granted leave to amend its petition to name George Qualley IV as a defendant. In his answer, defendant George Qualley IV admitted the existence of the note, debt, and mortgage. Qualley also admitted that defendants Cornelius and Bonnie Qualley did not make the proper payments. Qualley only denied the amount of accrued interest on the loan. He did not deny that the outstanding principal was $36,905.08 or that interest accrued at the per diem rate of $10.66 after July 13, 2000. UMLIC VP L.L.C. (UMLIC), the successor to Bank of America, filed a motion for summary judgment, which Qualley resisted. The court granted the summary judgment in favor of UMLIC.
On appeal, Qualley contends a material issue of fact exists as to the amount due and therefore summary judgment is not appropriate. He also claims the district court erroneously placed the burden of proof on him.
The party moving for summary judgment has the burden of proving no genuine issue of material fact exists. Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001). When the moving party satisfies the initial burden of production, the burden shifts to the party opposing the motion who must then set forth specific facts showing there is a genuine issue of material fact. James v. Swiss Valley AG Service, 449 N.W.2d 886, 888 (Iowa Ct.App. 1989). Having found UMLIC satisfied its initial burden of proof, the district court did not err in shifting the burden back to Qualley to show a genuine issue of material fact.
In ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the party resisting the motion, and consider every legitimate inference that can be deduced from the record. Phillips, 625 N.W.2d at 717-18. However, an inference is not legitimate if based upon speculation and conjecture. Id. at 718. In his resistance, Qualley alleged mortgage payments were made that were not credited. However, this mere assertion is not enough. Qualley did not offer any evidence to prove the outstanding principal amount of $36,905.08 is inaccurate. Because his claim is speculative, the district court did not err in granting UMLIC's motion for summary judgment.
UMLIC requests an award of appellate attorney fees. Appellate attorney fees are not a matter of right but rest within the sound discretion of the reviewing court. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct.App. 1996). We decline to award UMLIC appellate attorney fees.