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Claim by LaSalle Bank National_Jeffery Welterf 27620 IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY LASALLE BANK NATIONAL 30-0088156: ASSOCIATION, AS TRUSTEE FOR THE MLMI TRUST SERIES 2006-HE2 Plaintiff,: vs. JEFFREY J. WELTER; CITY OF DUBUQUE, IOWA; SPOUSE OF JEFFREY J. WELTER, IF ANY; Defendants.: EQUITY NO. EQCV097207 MOTION FOR SUMMARY JUDGMENT COMES NOW the Plaintiff, LaSalle Bank National Association, as Trustee for the MLMI Trust Series 2006-HE2, and moves the Court for summary judgment in its favor and against the Defendant herein named and for grounds states: 1. That the Plaintiff, heretofore received and is the current holder of a promissory note (the "Note") executed by Jeffrey J. Welter and real estate mortgage (the "Mortgage") executed by Jeffrey J. Welter to First Horizon Home Loan Corporation. The Note and Mortgage established a first, prior real estate lien, on the following described premises situated in Dubuque County, Iowa: Lot 2 of Lot 1 of Lot 2 of "Young-Primrose Place", in the City of Dubuque, Iowa, according to the recorded Plat thereof. ~ ~ (the "Mortgaged Property") ~- ~~ --< ~~ r"' G _ yl N Q :i (D ~ 1 27620 The Mortgage was properly recorded in the office of the Recorder of Dubuque County, Iowa on December 7, 2005 in 2005-00020022, all as set out in the Plaintiff's Petition. 2. That after applications of all credits and adjustments to the Note of the Defendant, there remains due and owing to the Plaintiff the sum of $70,471.11 with interest at llo per annum from September 1, 2007, plus accrued late charges, protective advances, attorneys' fees, abstract expense and costs. 3. That all parties to this action have been accorded their rights and notices in accordance with the laws of the State of Iowa and have been served or entered their appearance in this matter. 4. That all the Defendants claim some right, title and interest in the Mortgaged Property, but the liens, interest and rights of each of the Defendants in and to the Mortgaged Property are junior, subsequent and inferior to the lien of the Mortgage. 5. That the Plaintiff is entitled, as a matter of law, to the foreclosure of the Mortgage and it is the Plaintiff's belief that no good faith defense exists against said claim. 6. That attached hereto, marked Exhibit "A" and by reference made a part hereof is the Affidavit in support of this Motion for Summary Judgment signed by the agent and representative of the Plaintiff. 2 27620 7. That attached hereto is the supporting Statement of Facts and Memorandum of Authorities, marked Exhibits "B" and "C", respectively, and by reference made a part hereof as if fully set forth herein. WHEREFORE, the Plaintiff moves for summary judgment in it's favor and against the Defendant in accordance with I.R.C.P. Rule 1.981, et seq, and that the Court set this matter down for hearing, and upon said hearing grant summary judgment in favor of the Plaintiff and against the Defendant and for such further and other relief as the Court deems just and equitable. PETOSA By Be i 13 C e ow T ep one: csimile: & BOECKER, L.L.P. 3opkins AT0003573 z treet uite 100 X03 308 (515) 222-9400 (515) 222-9121 ATTORNEYS FOR PLAINTIFF 3 Copy to: Jeffrey J. Welter c/o Jeffrey A. Trannel Attorney at Law 1154 Iowa Street Dubuque, IA 52001 City of Dubuque, Iowa City Clerk 50 W. 13th Street, First Floor Dubuque, IA Spouse of Jeffrey J. Welter, if any 695 Kane Street Dubuque, IA 52001 4 27620 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing instrument was served upon all parties to the above cause to each of the attorneys of record herein at their respective addresses disclosed on the pleadings on 2008. ~U.S. Mail ^ FAX ^ Hand Delivered ^ Overnight Courier ^ Certified Mail ^ Other: Signature~~ e..~i-~ AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT STATE OF Nl~ ~~+~~ ) SS COUNTY OF((~~ ~~-- .... yy,, tom( ~'~_~' ) I, l~~U.G~ 6-W-1Yl~~ being first duly sworn on oath depose and state that I am ~a'r.~a~~,91C1e~~'!d ~~~'91t for Plaintiff; that as such I have personal knowledge that the Defendants, Jeffrey J. Welter, are in default of their obligations under the promissory note executed by Jeffrey J. Welter and real estate mortgage executed by Jeffrey J. Welter in favor of First Horizon Home Loan Corporation, now held by the Plaintiff and have personal knowledge of the amounts due and owing to the Plaintiff by said Defendants; that I have personal knowledge of the books and records of the Plaintiff; that there is presently due and owing to the Plaintiff under the promissory note and real estate mortgage lien the following: Principal $70,471.11 Interest through 4/21/2008 $4,781.51 Protective Advances $1,197.66 together with attorneys' fees, abstract expense and costs; and that no part of said accounts and amounts have been paid by any person, and that the Plaintiff is still the owner and holder of the promissory note; and that it is my good faith belief that no defense exists against said claim. Wilshire Credit Corporation _~; By `; : _ riC kso..l ;~ E3CCa ~ Ql~6t'~ Subscribed and sworn to before me t day ors 20 Mathew Allan Banaszewski NOTARY PUBLIC • MINNESOTA MY COMMISSION EXPIRES JAN. 31, 2011 Notary Public in a~d for the State of M Our file # 27620 EXHIBIT "A" STATEMENT OF FACTS Plaintiff, LaSalle Bank National Association, as Trustee for the MLMI Trust Series 2006-HE2, is a corporation doing business in the United States of America. Said Note provides for periodic changes in the interest rate and the current interest rate is 110. The note (the "Note") and mortgage (the "Mortgage"), which are attached to the Plaintiff's Petition as Exhibits "A" and "B", respectively, evidence indebtedness of Defendant Jeffrey J. Welter for money borrowed in regard to the purchase of the following described real estate: Lot 2 of Lot 1 of Lot 2 of "Young-Primrose Place", in the City of Dubuque, Iowa, according to the recorded Plat thereof. The Mortgage was recorded in the Office of Recorder of Dubuque County, Iowa, on December 7, 2005 in 2005-00020022. That the Plaintiff is currently the holder of record of the Note and Mortgage. The Note and Mortgage provide that if default is made at any time for failure of payment or interest that the holders of said note may cause the whole debt, including interest, to be due and payable immediately. The Mortgage further provides for attorney fees to be recovered. The Mortgage further provides that the Defendant pledge their rents and profits as additional EXHIBIT "B" security and that the mortgagee would be entitled to possession of said property and the appointment of a receiver upon foreclosure, who shall have authority to take and hold possession of the property and to collect rents and profits. That the Defendant Jeffrey J. Welter, has not made several monthly installment payments. The Plaintiff has complied with all conditions precedent for payment having demanded payment from the Defendant, and the same having been refused. EXHIBIT "B" f i MEMORANDUM OF AUTHORITIES IN SUPPORT OF MOTION BRIEF POINT PLAINTIFF IS ENTITLED TO JUDGMENT AS PRAYED FOR IN ITS PETITION BECAUSE THE INDEBTEDNESS EVIDENCED BY THE NOTE AND MORTGAGE IS DUE AND DELINQUENT. Motion for Summary Judgment has been recognized as an appropriate procedure for Plaintiff where there is no genuine issue as to a mate_r_ial fact. Northwestern National Bank of Sioux City v. Steinbeck, 179 N.W.2d 471 (Iowa 1970). Also, a Motion for Summary Judgment is appropriate in this instance where the amount claimed is of a liquidated sum and for the foreclosure of the mortgage. Humboldt Livestock Auction, Inc. v. B & H Cattle Co._, 155 N.W.2d 478 (Iowa 1967). EXHIBIT "C"