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HomeMy WebLinkAbout1992 Lawsuits • IN THE IOWA DISTRICT COURT FOR i COUNTY UPON THE PETITION OF: N4. 3C/7 / -0)1'2_ Lawrance Alien Whit'e, 1216 2nd_ At. , ORIGINAL NOTICE Boone, Ia.. 50036 Plaintiffs ) vs. I University Of Iowa, Iowa City, Ia. `moi D endarit (s Aleta Por'ceila. Sup: v. , U of I Defendant (s)/ Dorothy Rowland X-Suprv. , U of I Defendant(s ' Robert Mclaii: MD, U of I Defendant (s) ry E5 Tom Oswalt RN, U of I • n G-)s> . Defendant(s), (-)-t, I Randy Wrobble MD, U of I —• "c--' "..-1 Defendant (s) 7 ©73. co _1?L... Hu4us-s1rthf, D U of I ; Defendant(s) '� Dr.- Nepola-ortho MD, U of I Defendant(s) , Iowa Civil eights Commission - Des Moines Defendait (s).1 Iowa City Human Relations Commission - Iowa City __. Defendant(s) To the Above-Named Defendant (s) : You are herebye notified that there is now on file in the office of 014 clerk of the above court/ a petitioniri the above-entitled action, a copy of which petition is attached hereto. The plaintiffs attorney is Lawrence Allen- - White , whose address is 1016 2nd St. , _ Boond, a Iowa 50036 You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file a written special appearance, motion, or . answer, in the District Court fir. County-, at the county courthouse inAttfowa, judgement by default i1.1 rendered against you for the relief demanded in the petition. clerk Of The Above Court ye-' County Courthouse --1,c 7 / /. , i owaJ 2/ .L3.1 1►►Y a. tC► Jit✓+1\i<r1 ,. .;;;JA t..JI-3J•i.. 11V =11a x.113 or 1".av.JL1 • C { P ntigay Discrimination, Sexual Harrassme:lt. And Anticav Hate Crime - - SUIT r-' 7 ? Plaintiff : Lawrence Alien White vs. 92 AUG 41 Phi 3: L 2 3k1th 1-O C CLERK Defendant : Univ. Of Iowa HOs p. , as kirT ur ve , Iowa City, Ia. 52242 including associated defendants . Aleta Porcella SUPERV. U of I Hospital Dorothy Rowland X -SUPRV. 3RClti, u of I Hospital Robert Mclain MD O T iOPAEDICS, U of I Hospital aa Tom Oswalt RN, U of I Hospital Randy Wrobble MD ORTHOPAEDICS, U of I Hospital r— - ' N � i Dr Hugus MD ORTHOPAEDICS, U of I Hospital G_ -a `: T Dr Nepola MD ORTHOPAEDICS, U of I Hospital Dr Other Defendant : Iowa Civil Riuhts Commission, 211 E. Maple - 't. • 2nd Floor, c/o Grimes State Office Bicg. , Les Moines, Ia. 5U3 .9 Other Defendant : Iowa City Human Relations Commission, 4 1 0 East -- - Washin•_ton;Civic Center, Iota City, Ia. 5224U Introduction : We like to think that the bright minds of our institutions of higher learning and especicallI healthcare structures,�9.aula Le spendir1g time preparinc for and aetterina humanity. Unfortunately, this case is about what happens when we live in an era of our own creation where greed, the _v . rsYe J. int, alac. , p: 1Ij .ciGe, and u .6 :tif ] 1a11Gi1 are trendily encouracsed, but _ashy when we forget what our priorities really are in the race to set human riahts back decades. This case is about a University actively _nudged in the business of the repression of human rights, the repression of civil r.'ichts by th_ aI1tioa;T discrimination, tile sexual harrassment, the anticav hate crime, the absolutely screaming invasion -of privacy associated, an.i the state sanctioned partner:ir_r within this _t. , atrocite. This case is about when hatred becomes a little more acceptable and takes an ugly turn somewhere becoming-a vile -wasteful-tanster that more than smacks of a representation of a time when a man named Joe Menc_.Zele MD was conductin'_' diabolically insain research on prisoners of hitlers caIUps. We have state laws which make antigay hate crime and sexual harrassment illegal. We have a city ordinance in Iowa City which rakes . utiiiz•?d as a legal i n L.r'ument t o set analternative y _ c • -- ���I�marl. precedent in the creation of a .ta :e law prohibiting discrimination in employment on the basis of sexual orientation. we live in a state that has CCeualiv turned hatred in Lo a science . i t is time for people to come first. We Shall Ovcr-coI%' --petition : For his claim a3ainsC-aetenda;ltiS edoove/ Flaiiitisf States: the institutional defendant, ;.Univ. of Iowa, did with intent, maliciously collude with said employees et other U of I staff to set nut to and 'did so Conspire to discriminate aaains"t the gay Plaintiff, Lawrence Allen White, on the basis of his sexual orientation violating the plaintiffs constitutional rights as a citizen cf the United States Of America also violating the Iowa -__t_' ordinance :.:r'ohibit:illc_ .:a,.tigaJ discrimination in employment, - Further the pla_ntiff/ Lawrence Allen White/ was the " victim of sexual harrassment at the Univ. of Iowa Hospital/ violating the state_antisexual ee har'r'y Asa ent Iowa Iain"+ Finally/ the plaintiff/ Lawrence Alen i l+.ite becare.e tt c v=ci:ii. of insidious c `i377 b"te cr:: e at the 1i4.v. of IOWA, '.o at l_ne the :owe raftCrimes Act orthe basis of s.xua � a tion -- .Lawrence Allen Whites constitutional rightS•.as. a- citizen. L ne United 5 %lt+-.. ,if ATerica were violated s a gay i c hy' \_ a:, Li=Si U;:@�.nu _ _ ;tart: P. r., vicious sexual harrassinent and gross arti:caJ hate crime'-a -.the IJ::t.iv. of _ , ro Iowa . The re i;.J t of tcte comb i_rlat ."!n of the t_1-:es of discrimination fcie:ent- -t: ;irle•o, the escalation/ the amount did involve intent and malicious activities directed at the r_ ,�irtw x` azf SF activitiesfi iiitie5 of mental cruelty were intimidation, hariassment, vrranti f terrorism, interference/ iitOCK].(o1 teuntincl and cu;nr latively/ as assoc.iatedy was the threatening coIuml'"nicatj on so profoundly consistent/ so pervasive th.=t it. was both. `armful and iniurious to the plaintiff. Using both traditional known methods anc7 techr.io•nes of D57: bological manipulation/pressure devices U of (lid set out to and did conspire to induce the Plaintiff to nsycholouicalj•e -emotional a ld financial breakdown resulting in the wrongful. personal injury L•` the mental illness ln_5: Ci _ iEu/ " VosL traumatic :stress disorder " further the iirorl_iful firing and ass C,iia �u t:e slander and libel of the �l'airat:lff _ j L•Qik'CPACg;-tU-i a WRiVe.. £i!E_ 1-.1-__: rs7• O1_ rti: ii-i ..�C�,_T :71S�i.�.ul�licty.t.�ta . o�rv�• ha::rassment. and ant alev hate crime directed. at the plaintiff :r'.'ated an impossible and hostile work enviorrrnent where the overlapping fern'tienrioned d i eeri.minations were highly evidenciary through the scapeaoa.:1Iig of the n1aintiffs work also the subtle veiled and more obvious threats attiring . -4 PH 3: , and l=hysical harm. Arising rut of and in the t:o'tiroe .af employment , in fact. even further rears to this date, after the piai. Itifo$ employment, Lawrence !Olen White still relatns a p=.:o ic. taraet of intimidation/ha ras„:ment and other i nC ident►• of employment, education! public accomodation! Privacy diseriki. latieV as a Ai bac$ azld lr9•aire•z . re slit of Ow plaintiffs ei ployi e t Vito ti Univ. *i YOwa- The plaintiff states that since his employment at the Univ. Of Iowa ,.here have been a consistant number of incidents he believes to be homicide attempts upon: his life and though the pLai.n ift is not alleging or :.mzlicatinn any of the individual defendants said within this p.eti`iool the pi.aint:if f noes a1.eae J ofI connections as :aesOC-1atr..�a`with t1":e �^ Incidents in question. In addition to the activities of antic:a._i discrin. . Sexual ha:"ra:isment, and ctnt_.'JGl`T nate crime related to u of I. there have L . -L, has bean a .ei istant �l':f'1-1 ,�.<: �,.., �.Jl. retaliation i.-21c1t��l, a_11.:.111G n:`;tl 4S..0.�_:1'J � feature throughout this entire ordeal . Specific examples of the more traditional au t:igai' discriminatory activities c:i.rected at the piairtifk at. U of I ragged from nitpickinc over a mouthwash container uoina utl iebel d ai.:' .beim_ invited into somex visers office and being given % rai because of . _ .a L:�Y"G a _ �.fE_ a aa".,:.C:�1:�.e i:1•�: i�G..u.l�.•�:v?fi?a of GO11VC�"'n._i� LJ .bc.i.na accused of passing medications ae a nursing asst. on a uiiii: the plain- -tiff didn't even work on the day of said aiieaatior_. Interrelated. with the hate clime and Sexual narrass.'nent, the antiaav Ceiel .r_unatio71 was elle filial reaeo n for the wrongful firing which iIlvolv'ed u of 1. :ilisconstrueing, falsifying, and creating a false issue ever the clay 71a-Tlt=i f.` kissing an elderly female client on the Gheek and checking on her post op rocmarc in the bathroom. The Plaintiff has Leen tailed, ' faggot or queer ' on numerous occasions by U of I staff and threatened with violence by staff waving there fists at plaintiff or coiunLn cating to plaintiff that, ' queers should be killed: Aside from staff turning the plaintiffs sound off other staff activities involved Placing there hands on the plaintiffs behind, Aiakinu suaaestivc and `i o v aca ti de advances upon the plaintiti and retalitory actions related to the plaintiffs employee peifor-mance and conduct by attempting to create false issues wiieil the plaintiff tried to confront .the advancing person gaybaitinulike ciosety fashion. There were threats of f= l ,r'r,.C_ : fCT-.t.z-UDtrv1cr y staff made to the p_31itlff on numerous Cc:Casicas a idty i.1 ) the rz.) g u3 le.,._ n g •jtllec;a0 io .ir to the night of March 25, i'.'. ; P re- �_ n sur F� �..� t t? .�:.i.i ,.1"ti ._t, ci kl"_:., 1 .���;.. �._. �i.a:iil;:.i1'' i' a +varniii+_ for .:eciooneiing a :ita_-f i{! . her by ca iil_.ti him a hoiriczht-J b a-!'ter he cal led the p l e.intJ..f f a r " f aagot K and the plafIntiff ri port 6 i 1 .. to T.T of 1 . The psych. wa:. LaYeltortrye he Rear 1 ti Nov.. c86 as created tip U of I staff and law e_?foi: :eipsst2t a=1d nontinues within . the plaintiffs ct.,4. nt en i ms—Ttr..t , =h_.s Ltituation :'.; p1.aintiff "c1T[der duress, injurious stress: C'.:xiJ.siniT mental illness.ess __This situation and associated firing by . - _ ;T of I was liewrir .a retalitory response to prior complaints the nlainiff had wide cicainst. U of I, The repressive activities of the T1 of I further d .,: so l:.vc.-T, law en`.orccircmt in retaliation and t_.rro^y resulting in being set up and framed for art satmag;.f15 which tri Q Vi? € TeQi€�� �►r• hi ht. in jail for the plaintiff due to the aiding and abetting of coworkers. The most dramatic injury for the plaintiff has been resultant from the i1:71.111Elta -11fS CatCatTr.Lr la Fi 7111. :?:CM: L7T. : T::l fu3 L Gi `t� 3 S��t: � D 'T used 're this dav, to express homophoebia/hatred directed at the p1 liatiff. Defendant, Meta ? rcella, did alt!ga;r discriminate against the r ia.intiff and conspired to participate in the antigay hate crime activity ass()ciated as well as aiding and abetting the sexual har'ras6men t d.ix ccted at the plaintiff. Defendant, Dorothy Rowland, did antigay discriminate against the Plaintiff - as laintiff -as well as aiding .ane abetting the sexual harrassment directed at the plaintiff Defend-nth � Oswalt, idiscriminate ;nst • ::e ...:..� Tom did 3I1%i.Gal� clt:ii� i. plaintiff, did 'play a conspiratorial role . elated" _to the antigav hate' crime activity, did very activei_v aid and ayett the sexual :arias:.:sae it directed at the plaintiff. Defendant, Dr. Robert Mclain, did antiaav discriminate agat'ti the plaintiff conspiratorially, did sexually harrass the plaintiff, did conspire to participate within the antiaav nate crim2 activity directed against the plaintiff. Defendant, Dr. Randy Wrobble did conspire to antiaav discriminate.!aaaJinst ,7the, plaintiff, did conspire to sexually harrass and mAdeA ana abetted tha't. `sexua1 iiarrassmenf d. tectesi at the p3aIntiffr and conspired to participate within the haze crime acL:iv tV .;:quint the pial-ntjM befendant, Dr. Hugus, did antigay discriminate against the plaintiff, did conspire to sexually harrass, aid and abett in that sexual harrassment directed at the plaintiff, did conspire to participate within the hate crime activity t rested at the plaintiff. Defendant, Dr. i!zpola, did antiaav discriminate against the plaintiff, did conspire to aid and abett the sexual harrassment direcat the plaintiff, and did conspire to participate within th© EffitigdY hato p iino activity directed against the plaintiff. Defendant, Iowa Civil Rights Commission, did conspire to participate in the antiaay discrimination, sexual harrassment, and antiaav hate crime directed at the plaintiff by denying jurisdiction to the plaintiff. Defendant. Iowa City Human Relations Commission, did Conspire to Participate in the antiaay discrimination, the sex.sal harrassment, and nt_ anticav hate crime directed at the plaintiff by denying :;urissdict.ion to the piair�.tir. Ail of the above Defendants did violate my constitutional. civil riontes aS u Lilian bei n'_', a gay person, and a citizen of the United States Of America. The statute of of limitations does need to be told- in this case as the ex' eptic.i is so obvious, such an ironic testimony itself about the ucay and stupid hatred bial.entiv treacherous in his case. The post traul.ati`- stress dio Del has recurred as a result of the discrimination at U c. I has made uraanizina impossible an:i V..i:tl. ` __'' r,'_E:vo (A the i ] s nt_i1 f from fiair:;a until. the iLrPsent. Further, that the fallout- from all of the_LT o:f . _I disc_ir inatio i vc.t_ cc•nt.i..:u. i and pari I.culal l)", the hate cline activity n u 1 t ' r the �.._ 1.1.I1 S r:`) f�'r_ tj "f?-t_.i�.. t._. p__ain_4 .ffs el:'?iounmmr.t, t ere . re, or is 't='_1 d_.sc=i inat_no against tha plaintiff yet t:-;•day. The rava,les and dau;aares of this ?-.+le ant 3isc„ �,;nri±..ic•,1 re treat::(}cols . The piaintif`S life has ben tf._iit?: t S" i:I.:rT=Y emotionally, . ► physically, career and educat?Onui e, timewise, financially, etc. ;he pl ai; C ;`f is left with the stark reality of the mer.s his life has become. Fr the plaintiff continues to be iublically innt i ridated and ba:r_r_assed whereever he goes. Pecause he is gay a deaf ear has been turned. For the insurmountable damages the plaintiffs. wreck of a life has been left in due to the verso i l. _._.. — directed at him, the pla_ntiff wouldiniury resulting from tha discrimination like financial compensation for damages in the amount c,f t ti n million United States dollars. This actio:: i9 flied at law. LC) C.) D c-a - Qr7 END OF CASE FILE THE IOWA STATE BAR ASSOCIATION FOR THE LEGAL EFFECT OF THE USE Offlclal Form No.301 OF THIS FORM,CONSULT YOUR LAWYER THE IOWA DISTRICT COURT 92 MAY 26 El 2: 25 JOHNSON COUNTY CITY CLERK IOWA CIT 1. 10 WA DEBRA THUMMA, f/k/a DEBRA KALLAUS, LAW E3 Plaintiff, ��i Z� EQUITY ❑ No. vs. MARY G. KALLAUS, individually, and in her capacity as Executor of the Estate of Kenneth E. Kallaus; ORIGINAL NOTICE WILLIAM J. KALLAUS; THE CITY OF IOWA CITY, IOWA; ELWOOD D. YODER; AND GAYLE RENEE KING, Defendants. TO THE ABOVE-NAMED DEFENDANT(S): You are hereby notified that there is now on file in the office of the clerk of the above court a petition in the above-entitled action, a copy of which petition is attached hereto. The plaintiff's(s') attorney is Michael W. Kennedy whose address is 920 S. Dubuque St. , P.O. Box 2000, Iowa City , Iowa 52244 You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court for Johnson County, at the courthouse in Iowa City , Iowa, judgment by default will be rendered against you for the relief demanded in the petition. • EDWARD F. STEINRRECH (SEAL) /.co5 CLERK OF THE ABOVE COURT V Johnson • County Courthouse Iowa City 52240 , Iowa NOTE:The attorney who is expected to represent the defendant should be promptly advised by defendant of the service of this notice. - TThe Iowa State Bar Association 301 ORIGINAL NOTICE FOR PERSONAL SERVICE This Pnnting February,1991 Revised January,1991 25 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNT' 5 r� f-. DEBRA THUMMA, f/k/a ) 2� � 26 �'i i Z: DEBRA KALLAUS, NO. 591z-Z-- PLAINTIFF, ) CITY�(���� `�.� t;tl ) PETITION IN EQUITY" vs. ) ) MARY G. KALLAUS, individually, ) and in her capacity as ) Executor of the Estate of ) Kenneth E. Kallaus; WILLIAM J. ) KALLAUS; THE CITY OF IOWA CITY) -A IOWA; ELWOOD D. YODER; AND ) GAYLE RENEE KING, ) DEFENDANTS. ) �C COMES NOW Plaintiff and Petitions the Court for parti- tion of certain real property, stating as follows: 1. Plaintiff is an individual residing in Cedar County, Iowa. 2. Defendant Mary G. Kallaus is an individual re- siding in Johnson County, Iowa. On July 31, 1991, said Defendant was appointed Executor of the Estate of Kenneth E. Kallaus, which estate is being probated in Johnson County probate number 22299 . 3 . Defendant William J. Kallaus is an individual residing in Johnson County, Iowa. 4. Defendant The City of Iowa City, Iowa is a munici- pal corporation organized under the laws of the State of Iowa and is located in Johnson County, Iowa. 5. Defendant Elwood D. Yoder is an individual whose current address is unknown. -2- 6. Defendant Gayle Renee King is an individual 92 f Y 26 PH 2: 25 believed to be residing in Johnson County, Iowa. 7 . Plaintiff and Defendants Mary G. Kallaus and/'fC f T"�0+ p, William J. Kallaus are the owners jointly and in common of certain real estate located in Johnson County, Iowa, and described as follows: Lot 6, except the East 40 feet thereof, in Block 14, in Iowa City, Iowa, according to the recorded plat thereof. Plaintiff and Defendants Mary G. Kallaus and/or William J. Kallaus own said property as tenants in common, and Plain- tiff is the owner of an undivided one-third interest in said property, with said Defendants being the owners of an undi- vided two-thirds interest in said property. 8. Defendant The City of Iowa City, Iowa claims a lien against the above-described real estate by reason of a Rental Rehabilitation Lien dated June 13 , 1986 and recorded June 19, 1986 in Book 854 , page 95, Records of Johnson County, Iowa, given by Kenneth E. Kallaus to The City of Iowa City, Iowa. 9. Defendant Elwood D. Yoder may claim a lien against the above-described property by reason of a small claims judgment entered in his favor in Johnson County Small Claims case number 16716 on May 4, 1983 against the Plaintiff in the amount of $600. 00. 10. Defendant Gayle Renee King may claim a lien against the above-described property by reason of a judgment entered in her favor in Johnson County District Court case -3- - number 48057 on July 26, 1984 against Plaintiff int e 2 2 n amount of $911. 65 court costs plus $1, 357. 50 of aeyi court costs. / Y. ©k � 11. Plaintiff and Defendants Mary G. Kallaus and William J. Kallaus, the co-owners of the above-described real estate, are unable to mutually agree upon a division of the real estate and Plaintiff claims that the real estate cannot be equitably divided in kind and therefore there must be a sale of the real estate and the proceeds thereof prop- erly distributed to those entitled thereto. 12 . Plaintiff believes that a portion of said premises is now and has previously been rented to a tenant and that the rents previously paid and to be paid by said tenant must be accounted for in connection with the distribution of the proceeds in such manner as the Court may direct. WHEREFORE, Plaintiff Debra Thumma, formerly known as Debra Kallaus, requests that the Court enter a Judgment and Decree establishing the rights of the Plaintiff and Defendants Mary G. Kallaus and William J. Kallaus to the above-described real estate, and rents as alleged, and con- firming their shares therein as above and herein alleged; that the rights of the other Defendants as to liens, if any, be determined and settled; that an Order be entered ordering that partition of said real estate be made and that the pro- ceeds of said sale, and of the rents, be divided among the Plaintiff and Defendants Mary G. Kallaus and William J. Kallaus according to their respective interests and shares -4- after a proper establishment and settlement of all liens. 'ang pt, like items from that part of the proceeds subject there' C z - iii that Plaintiff's attorney be allowed statutory attorney fees *4 for his services in these proceedings and that the same be made a lien upon the shares of the respective parties or the proceeds therefrom as required by law, that a Referee be ap- pointed as may be found necessary, and that such other and further general and equitable relief be rendered in the premises and Orders made, from time to time, as the Court may find proper and just and that the Order also grant the Plaintiff judgment for costs. BARKER, CRUISE, KENNEDY, HOUGHTON AND FOSTER 1 By /k4 C,� MichaelW. Kenned 000002912 920 South Dubuqu' Street P.O. Box 2000 Iowa City, Iowa 52244 Attorney for Plaintiff STATE OF IOWA ) ss: JOHNSON COUNTY ) The undersigned, Debra Thumma, f/k/a Debra Kallaus being first duly sworn on oath, depose and state that I have read the foregoing Petition in Equity and that the facts stated therein are true and correct to the best of my belief. €� I L4- I i �I I (l,n,, Debra Thumma, f/k/a Debra Kallaus -5- Subscribed and sworn to before me by the said Debra Thumma, f/k/a Debra Kallaus this 1-=.,:1h day of May, 1992. esiri my ,-r.mulls..41ANN ,,,--),._ ,w; January 21,1995 _ Notary Public in and for the State of Iowa v: 36a9079.1tg LoN Q * G .kd N a N N -.2' c3% IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DEBRA THUMMA, f/k/a ) DEBRA KALLAUS, ) NO. PLAINTIFF, ) ) PETITION IN EQUITY vs. ) MARY G. KALLAUS, individually, ) and in her capacity as ) Executor of the Estate of ) Kenneth E. Kallaus; WILLIAM J. ) p 3. KALLAUS; THE CITY OF IOWA CITY) `�? '�'� 1 IOWA; ELWOOD D. YODER; AND ) n 1 N GAYLE RENEE KING, ) cm b DEFENDANTS. ) rn N E * N C71 STATE OF IOWA ) ss: JOHNSON COUNTY ) I Michael W. Kennedy, being first duly sworn on oath do depose and state that I am a regular practicing attorney at law and the attorney for the Plaintiff in the above entitled matter; that there has been, and is, no agreement between me and any other person for any division or sharing of the fee to be taxed and said fee is as compensation for services actually rendered in this action. Michael W. Kenn Y Subscribed anol., sworn to before me by the said Michael W. Kennedy this day of April, 1992 . (\A-(''jai Notary Public in and for the State of Iowa v: 36a9080. 1tg o•" `'« N.R.LODGE MY COMMISSION EXPIRES December 31, 1992 END OF CASE FILE IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY CITY OF IOWA CITY ) ) Plaintiff, ) CASE NO. 92 TR 6181 ) N O a vs. ) ANSWER lc° -3 tra ) __� c N ) JOANNE L. KOLENDA ) MOTION FOR CONTINLRE -o ) r _� Defendant ) L^ •• o COMES NOW, the Defendant, JOANNE L. KOLENDA, and answers the above-captioned motion for continuance, stating: (1) By order of the clerk of the court, Johnson County, the trial set in the above matter is scheduled for May 5 , 1992 , at 11 a.m. , Court 2B. (2) Notices in the above matter received at the Defendant's address specifying different dates are not official and will not be regarded. (3) The Defendant plans to leave the state of Iowa on or shortly after May 8, 1992. WHEREFORE, the Defendant promises to appear in the above stated matter by order of the Iowa District Court, In and For Johnson County, dated April 13 , 1992,. scheduled for May 5, 1992. J nne L. Kolenda Defendant m o N !Golan- p A+•*uay Clerk cis fthe Court, Iowa City o o b Clerk of the Court, Johnson County IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY CITY OF IOWA CITY, ) ) CASE NO. 92 TR 6181 Plaintiff, ) ) MOTION TO RESCIND vs. ) ) CONTINUANCE JOANNE L. KOLENDA, ) ) Defendant ) ) COMES NOW, the Defendant, JOANNE L. KOLENDA, and requests the above-captioned action be made following the City of Iowa City' s action for continuance from the trial date of May 5 , 1992.. In support of this action, the Defendant states: 1. The Defendant' s presence in Iowa City is as a student for a special session ending on May 8 , 1992. 2 . The University registration for the student' s out-of- town vehicle was plainly visible to the officer on 4/3/92. 3 . That following the university session, the student has made travel plans and ticket purchases which are non- refundable, in the week following the University session. 4. That a timely response was made therein to the City' s motion for continuance, which response was made in two days. 5 . That as the party of the first right, a continuance in this matter is arbitrary, punitive, and damaging to the right of the Defendant for a hearing in this matter. WHEREFORE, the Defendant requests that the motion for con- tinuance be rescinded, or that the City of Iowa City dismiss any charges in this matter. Joanne L. Kolea, z. Defendant �. n- N CTERICOT-nrirISTRItrZtRIRT -r b m CLERK OF THE CITY COURT t- 0 END OF CASE FILE • IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY IOWA STATE BANK & TRUST COMPANY, ) Plaintiff, ) EQUITY NO. .5�9a,� vs. ) W. A. GAY & COMPANY, INC. a/k/a ) ORIGINAL NOTICE W. A. GAY & CEMPANY, MICHAEL E. GAY, ) TIMOTHY F. GAY, RICHARD A. GAY, and ) tea THE CITY OF IOWA CITY, IOWA, ) C' 2 Defendants. ) c�- LD c ) TO THE ABOVE-NAMED DEFENDANT: �a YOU ARE HEREBY NOTIFIED that there is now on file in the office of the Clerk of the above Court, a Petition in the above-entitled action, a copy of which Petition is attached hereto. The Plaintiff's attorney is Gregg Geerdes, whose address is 321 E. Market Street, Iowa City, Iowa, 52245. YCXJ ARE FURTHER NOTIFIED that unless, within 20 days after service of this Original Notice upon you, you serve, and within a reasonable time thereafter file, a Motion or Answer, in the Iowa District Court for Johnson County, at the county Courthouse in Iowa City, Iowa, judgment by default will be rendered against you for the relief demanded in the Petition. EDWARD F. S � r +� CLERK OF THE ABOVE COURT (SEAL) BY: i/ ri•.-- DEPUTY Johnson County Courthouse Iowa City, IA 52240 NOTE: The attorney who is expected to represent the Defendants should be prciptly advised by Defendants of the service of this notice. FILED o IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY IOWA STATE BANK & TRUST COMPANY, ) Plaintiff, ) EQUITY NO. vs. ) W. A. GAY & COMPANY, INC. a/k/a ) PL'i'ITION W. A. GAY & COMPANY, MICHAEL E. GAY, ) TIMOTHY F. GAY, RICHARD A. GAY, and ) THE CITY OF IOWA CITY, IOWA, ) Defendants. ) NOTICE THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL TWELVE MONTHS (or SIX MONTHS if the petition includes a waiver of deficiency judgment) FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS YOUR RESIDENCE BUT NOT A ONE-FAMILY OR TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASE AT THE SALE. IF YOU DO NOT FILE A WRITTEN DEMAND TO DELAY THE SALE AND IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING, THEN A DEFICIENCY JUDGMENT WILL NOT BE ENTERED AGAINST YOU. IF YOU DO FILE A WRITTEN DEMAND TO DELAY THE SALE, THEN A DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST YOU IF THE PROCEECE FROM THE SALE OF THE MORTGAGED PROPERTY ARE INSUFFICIENT TO SATISFY THE AMOUNT OF THE MORTGAGE DEBT AND COSTS. IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS NOT A ONE-FAMILY OR TWO-FAMILY DWELLING, THEN A DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST YOU WHETHER OR NOT YOU FILE A WRITTEN DEMAND TO DELAY THE SALE. ES c_ Ql _..gas ES P COMES NOW the Plaintiff and for a cause of action against Defendants states the following: JURISDICTIONAL ALLEGATIONS AS TO ALL COUNTS 1. Plaintiff is an Iowa banking corporation with its principal place of business located in Johnson County, Iowa. 2. Defendant W. A. Gay & Company is an Iowa Corporation located in and otherwise doing business in Johnson County, Iowa. 3. Defendants Michael E. Gay, Timothy F. Gay, and Richard A. Gay are residents of Johnson County, Iowa. 4. The City of Iowa City is a municipal corporation located in Johnson County, Iowa and is named as a Defendant in this action for title clarification purposes only. 5. This action seeks foreclosure of real estate mortgages held by Plaintiff which encumber the following described property located in Johnson County, Iowa: Lot 1 and Outlot A, all in the Resubdivision of a Portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the 5th P.M. , Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 30, Page 116, Plat Records of Johnson County, Iowa, excepting the following portion of Outlot A: Commencing at the southerly most point of said Outlot A; thence north 00°21'22" west 175.11 feet along the easterly boundary of said Outlot A; thence westerly, parallel to the northerly boundary of said Outlot A to the westerly boundary up of said Outlot A; thence southerly along the westerly ry boundary of said Outlot A to the point of beginning. `'in Also excepting the following portion of Lot 1: Beginniti It c the Northwest Corner of Lot 1, of a Resubdivision of a portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the Fifth Principal Meridian, Iowa City, Iowa, according to the Plat recorded in Plat Book 130, at 2 Page 116, of the Records of the Johnson County Recorder's Office; Thence N89°56'23"E, along the North Line of said Lot 1, 208.03 feet, to the Northeast Corner of said Lot 1: Thence Southeasterly, along the Easterly Line of said Lot 1, 26.77 feet, on a 502.67 foot Radius Curve, Concave Southwesterly, whose 26.77 foot Chord Bears S21°00'02"E; Thence S89°56'23"W, 217.60 feet, to a Point on the West Line of said Lot 1; Thence N00°03'39"W, along said West Line, 25.00 foot, to the Point of Beginning. Said Tract of Land Contains 5,324 square feet, more or less. The above-described property is hereafter referred to as the "Mortgaged Premises." 6. Defendant W. A. Gay & Company, Inc. is the holder of title to the Mortgaged Premises. COUNT I CLAIM AGAINST W. A. GAY & COMPANY 1. On or about April 26, 1990, Defendant W. A. Gay & Company executed in favor of Plaintiff its Promissory Note in the principal amount of $540,000.00. A true copy of this note is attached as Exhibit "A". Plaintiff remains holder of this note. 2. On or about April 26, 1990, Defendant W. A. Gay & Company executed in favor of Plaintiff a second Promissory Note in the principal amount of $75,000.00. A true copy of this note is attached as Exhibit "B". Plaintiff remains holder of this note. 3. On or about January 23, 1989, Defendant W. A. Gay & Company, Inc. executed in favor of Plaintiff a mortgage encumbering the following described property: Lot 1 and Outlot A, all in the Resubdivision of a Portion of Lo Government Lot 4 of Section 15, Township 79 North, Range 6 NJ West of the 5th P.M. , Addition to the City of Iowa City, ._ c., S71. .7111 07-7 �� Iowa, according to the plat thereof recorded in Book 30, Page 116, Plat Records of Johnson County, Iowa, excepting the following portion of Outlot A: Commencing at the southerly most point of said Outlot A; thence north 00°21'22" west 175.11 foot along the easterly boundary of said Outlot A; thence westerly, parallel to the northerly boundary of said Outlot A to the westerly boundary of said Outlot A; thence southerly along the westerly boundary of said Outlot A to the point of beginning. This mortgage was subsequently recorded on January 27, 1989, in Book 1044, page 424 of the Records of Johnson County, Iowa. A true copy of this mortgage is attached as Exhibit "C". Plaintiff remains holder of this mortgage. 4. All amounts owed under the two Promissory Notes described above up to the amount of $330,000.00 in principal plus interest and other costs are secured by the mortgage described in the above paragraph three. 5. On or about September 8, 1989, Defendant W. A. Gay & Company, Inc. executed in favor of Plaintiff a second mortgage encumbering the following described property: Lot 1 and Outlot A, all in the Resubdivision of a Portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the 5th P.M. , Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 30, Page 116, Plat Records of Johnson County, Iowa, excepting the following portion of Outlot A: Commencing at the southerly most point of said Outlot A; thence north 00°21'22" west 175.11 foot along the easterly boundary of said Outlot A; thence westerly, parallel to the northerly boundary of said Outlot A to the westerly boundary of said Outlot A; thence southerly along the westerly boundary of said Outlot A to the point of beginning. This mortgage was subsequently recorded on September 12, 1989, in Book 1081, page 521 of the Records of Johnson County, Iowa. A true copy of this mortgage is attached as Exhibit "D". Plaintiff remains holder of this 4,o r) r c-- . mortgage. c-, 4 .< CJS 712 370 w N 6. All amounts owed under the two Promissory Notes described above up to the principal amount of $440,000.00 plus interest and other costs are secured by the mortgage described in the above paragraph five. 7. Plaintiff has previously released the following-described property from any lien of the mortgages described in this Petition: Beginning at the Northwest Corner of Lot 1, of a Resubdivision of a portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the Fifth Principal Meridian, Iowa City, Iowa, according to the Plat recorded in Plat Book 130, at Page 116, of the Records of the Johnson County Recorder's Office; Thence N89°56'23"E, along the North Line of said Lot 1, 208.03 feet, to the Northeast Corner of said Lot 1: Thence Southeasterly, along the Easterly Line of said Lot 1, 26.77 feet, on a 502.67 foot Radius Curve, Concave Southwesterly, whose 26.77 foot Chord Bears S21°00'02"E; Thence S89`56'23"W, 217.60 feet, to a Point on the West Line of said Lot 1; Thence N00°03'39"W, along said West Line, 25.00 feet, to the Point of Beginning. Said Tract of Land Contains 5,324 square feet, more or less. Documentation showing these partial releases is attached as Exhibits "E" and "F". 8. Defendant W. A. Gay & Company has defaulted under the terms of the Promissory Note described in the above paragraph one of this Count by failing to pay the periodic payments specified in this note. Plaintiff hereby affirmatively elects to accelerate the entire unpaid amount owed under this note because of this default. As of the 3rd day of January, 1992 the amount owed under this Note consisted of $592,932.03, including all principal and interest. For each day after the 3rd day of January, 1992 that this amount remains unpaid additional interest accrues thereon at the rate of $132.83 per day. Qo N © L n--� � •'ra 5 ";n -o j';: fV 9. Defendant W. A. Gay & Company has defaulted under the terms of the Promissory Note described in the above paragraph two of this Count by failing to pay the periodic payments specified in this note. Plaintiff hereby elects to accelerate the full unpaid balance owed under this note because of this default. As of the 3rd day of January, 1992 the amount owed under this Note consisted of $85,355.22, including all principal and interest. For each day after this 3rd day of January, 1992 that this amount remains unpaid additional interest accrues thereon at the rate of $22.50 per day. 10. The mortgages described in this Count I contain a provision whereby Defendant W. A. Gay & Company agreed to pay all property taxes on the mortgaged premises before the same became delinquent. Defendant W. A. Gay & Company has failed to pay these property taxes, and the same are now delinquent. This failure to pay property taxes constitutes a default under the terms of the mortgages and notes described above, and Plaintiff has affirmatively elected to accelerate the remaining unpaid amounts owed under these notes and mortgages. These amounts are described in the above two paragraphs of this Count. 11. The notes and mortgages described above contain provisions by which the makers of these notes and mortgages agree to pay all costs of collecting the amounts owed under the same, including the cost of attorney fees, abstracting expenses, and court costs. Plaintiff hereby demands these costs and other expenses. Attached to this Petition as E<hibit "G" is the affidavit required by Code §625.22 concerning the awarding of attorney w a 6 - :n xb C")— "72. --1 C) tea. o w N fees. Attached to this Petition as Exhibits "H-1" through "H-8" is documentation showing that Defendants have had sufficient opportunity to repay this debt prior to the commencement of this legal action. 12. Any right, claim, and interest of Defendant W. A. Gay & Company in and to the Mortgaged Premises is junior to the interest of Plaintiff in the same and as described in this Petition. 13. The Mortgaged Premises in this Petition is not the personal residence of any of the Defendants, is not a one-family or two-family dwelling, and is not used for agricultural purposes as defined in Iowa Code §535.13. 14. Plaintiff specifically retains any right to a deficiency judgment which it may have against any one or more of the Defendants. 15. The names W. A. Gay & Company and W. A. Gay & Company, Inc. refer to one and the same entity. Wherever these two names appear in the chain of title to the Mortgage Premises. WHEREFORE, Plaintiff requests the following relief: 1. That the lien of its mortgage recorded in Book 1044, page 424, of the Records of Johnson County, Iowa, be declared a first lien on the following described property and that all principal amounts of up to $330,000.00 plus interest and other costs, including attorney fees, be found to be secured by the same: Lot 1 and Outlot A, all in the Resubdivision of a Portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the 5th P.M. , Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 30, Page 116, Plat Records of Johnson County, Iowa, excepting the 4,0 following portion of Outlot A: fro C7•r 7 zr r- f t `t7 Lw77 j CD "" nJ Commencing at the southerly most point of said Outlot A; thence north 00°21'22" west 175.11 feet along the easterly boundary of said Outlot A; thence westerly, parallel to the northerly boundary of said Outlot A to the westerly boundary of said Outlot A; thence southerly along the westerly boundary of said Outlot A to the point of beginning. Also excepting the following portion of Lot 1: Beginning at the Northwest Corner of Lot 1, of a Resubdivision of a portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the Fifth Principal Meridian, Iowa City, Iowa, according to the Plat recorded in Plat Book 130, at Page 116, of the Records of the Johnson County Recorder's Office; Thence N89°56'23"E, along the North Line of said Lot 1, 208.03 feet, to the Northeast Corner of said Lot 1: Thence Southeasterly, along the Easterly Line of said Lot 1, 26.77 feet, on a 502.67 foot Radius Curve, Concave Southwesterly, whose 26.77 foot Chord Bears S21°00'02"E; Thence S89°56'23"W, 217.60 feet, to a Point on the West Line of said Lot 1; Thence N00°03'39"W, along said West Line, 25.00 feet, to the Point of Beginning. Said Tract of Land Contains 5,324 square feet, more or less. 2. That the lien of its mortgage recorded in Book 1081, page 521, of the Records of Johnson County, Iowa, be declared a second lien on the following described property and that principal amounts of up to $440,000.00 plus interest and other costs, including attorney fees, be found to be secured by the same: Lot 1 and Outlot A, all in the Resubdivision of a Portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the 5th P.M. , Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 30, Page 116, Plat Records of Johnson County, Iowa, excepting the following portion of Outlot A: Commencing at the southerly most point of said Outlot A; thence north 00°21'22" west 175.11 feet along the easterly boundary of said Outlot A; thence westerly, parallel to the northerly boundary of said Outlot A to the westerly boundary of said Outlot A; thence southerly along the westerly boundary of said Outlot A to the point of beginning. Also excepting the following portion of Lot 1: Beginning at co the Northwest Corner of Lot 1, of a Resubdivision of a Es ry Hca ��, zz u273 8 C7 portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the Fifth Principal Meridian, Iowa City, Iowa, according to the Plat recorded in Plat Book 130, at Page 116, of the Records of the Johnson County Recorder's Office; Thence N89°56'23"E, along the North Line of said Lot 1, 208.03 feet, to the Northeast Corner of said Lot 1: Thence Southeasterly, along the Easterly Line of said Lot 1, 26.77 feet, on a 502.67 foot Radius Curve, Concave Southwesterly, who:c 26.77 foot Chord Bears S21°00'02"E; Thence S89°56'23"W, 217.60 feet, to a Point on the West Line of said Lot 1; Thence N00°03'39"W, along said West Line, 25.00 feet, to the Point of Beginning. Said Tract of Land Contains 5,324 square feet, more or less. 3. That any interest in or claim to the property described in the above paragraphs one and two which is held or claimed by or through any of the Defendants be declared junior to and inferior to the liens of Plaintiff's mortgages described in the above paragraphs one and two of this prayer for relief. 4. That Plaintiff have judgment against Defendant W. A. Gay & Company in the amount of $678,287.25 as of the 3rd day of January, 1992 and for each thereafter that this amount remains unpaid the amount of $155.33 because of accrued interest, and additional amounts, as determined by the Court, for Plaintiff's attorney fees, court costs, abstracting and other expenses. 5. That the liens of Plaintiff's mortgages described in this Petition be foreclosed and that the rights of the Defendants and any person or entity claiming under, by or through them be forever foreclosed and cutoff, other than any right that any Defendant may have to delay the Sheriff's sale in this matter. 6. That Plaintiff be entitled to have an execution issue by this Court and that this execution, if Plaintiff so elects, be satisfied in full or';as c c :: W• ---4 C7 9 C rn 7, O:? ca L ra much as possible by Sheriff's sale of the above-described property and that a deed to this property be delivered to the highest bidder at this sale. 7. That this Court confirm and enter joint and several deficiency judgments against the Defendants, as hereafter requested by subsequent Counts of this Petition, if the Mortgage Premises is sold and if the net proceeds of this sale are insufficient to satisfy the amount owed to Plaintiff under its mortgages and notes as described above. 8. That this Court retain jurisdiction to enter further relief to Plaintiff as it deems just and appropriate from time to time. COUNT II RECOVERY OF PERSONAL PROPERTY 1-15. Plaintiff realleges paragraphs one through fifteen of the above Count I as paragraphs one through fifteen of this Count II. 16. On or about July 11, 1989, Defendants W. A. Gay & Company, Inc. , Michael E. Gay, Timothy F. Gay, and Richard A. Gay, executed in favor of Plaintiff a Security Agreement which provided Plaintiff with a security interest in all business assets owned by this company and these persons. This security interest secured all amounts owed under the Promissory Notes described in Count I of Plaintiff's Petition. A true copy of the Security Agreement which created this security interest is attached to this Petition as Exhibit "I". These Defendants have also executed two financing statements which have been properly placed of record by Plaintiff, thereby perfecting this security interest. True copies of these financixxl statements are attached as Exhibits "J-1" and "J-2". C)-< rn 10 r 17. Because of the default described in Count I of this Petition, Plaintiff should be permitted, if it so elects, to recover, repossess, and/or obtain a execution authorizing or directing the sale of the personal property described in the above-described Security Agreement, and that the proceeds of this sale, less the cost of any sale, be applied to the indebtedness described in Count I of Plaintiff's Petition. WHEREFORE, Plaintiff requests that this Court determine that it holds a first lien on the business assets described in the above-described security agreement and that, if Plaintiff so elects, an execution issue directing the sale of the same. COUNT III CLAM PI AIIST MICHAEL E. GAY, TIMOTHY F. GAY, AND RICHARD A. GAY 1-15. Plaintiff realleges paragraphs one through fifteen of Count I as paragraphs one through fifteen of this Count III. 16. The promissory notes described in Count I of Plaintiff's Petition have been executed by and agreed to by Defendants Michael E. Gay, Timothy F. Gay, and Richard A. Gay in their individual capacities. The obligation of these individual debtors is joint and several as among themselves and joint and several with W. A. Gay & Company, Inc. 17. Defendants Michael E. Gay, Timothy F. Gay, and Richard A. Gay have defaulted under the terms of these notes in the same manner as has Defendant W. A. Gay & Company, Inc. 18. The above described notes allow Plaintiff to have personal judgment against Defendants, Michael E. Gay, Timothy F. Gay, and Richard A. Gay for all amounts owed under these two notes. cn 4 — ca mom,.., 11 rR CD C.J PU WHEREFORE, Plaintiff requests that it have joint and several judgment, in their personal capacities, against Michael E. Gay, Timothy F. Gay, and Richard A. Gay in the amount of $678,287.25 as of the 3rd day of January, 1992, and for each day thereafter that this amount remains unpaid an additional amount of $155.33 per day as accrued interest, plus attorney fees, court costs, abstracting and other expenses as appropriate, and that this Court enter further relief as it deems appropriate from time to time. COUNT IV TITLE CORRECTION CLAIM AGAINST THE CITY OF IOWA CITY, IOWA 1. The chain of title to the mortgaged premises indicates that the City of Iowa City may hold a possible claim to the Mortgaged Premises by virtue of this City of Iowa City being successor in interest in and to the former territorial road right-of-way now approximately covered by Waterfront Drive. 2. The City of Iowa City, Iowa in fact has at no time held any claim or interest in or to the Mortgaged Premises. 3. Plaintiff makes no claim against the City of Iowa City for any monetary damages and seeks title clarification relief only. 4. A judicial ruling establishing that the City of Iowa City holds no interest in the Mortgaged Premises is appropriate. WHEREFORE, Plaintiff requests that this Court in its decree rule and determine that the City of Iowa City, Iowa holds no interest in or to the Mortgaged Premises. E5=0 ca 12 DATED this /Y day of , 1992. Respectfully submitted, IOWA STATE BANK & TRUST COMPANY (/Lee BY: GREGG GEERDES 321 E. Market Iowa City, Iowa 52240 (319) 337-3197 ATTORNEY FOR PLAINTIFF h3 ii -I C) z<r- - rm ;?73 ca ti 13 EXHIBIT "A" . For Use in all simple Merest business•commerce'and ay .rel bans (Variable Rate) and for as simple interest loans to organizations. 1 Name W A Gay and Conpanv • Date April 26. 1990 Amount $540.000.00 Note&Act.No. 5 I 1!0557 Term5 Years Due Date April 26, 1995 Renew Note #S125174, 5115166, 5162508, and 5111/64 Purpose plus nPW money to payoff debt_ TMPAYMFN'L`• Tnrrm+P - • • PROMISSORY NOTE • FOR VALUE RECEIVED the undersigned jointly and severally,as principals,promise to pay to the order of • ICWA STI�'"y.8.1t72.." F.it_UST CO' A:iS.Tr, Cr—tr.'neva S=4Th at its principal place of business,'or at such other place as may be designated from time to time by the holder of this note,the principal sum of - Five Hundred Forty Thousand and No/100--- - -- Dollars (g 540,000.00 )with interest to maturity at the variable rate as set forth below on the balance remaining from time to time - unpaid and after either maturity of default the rate of interest shall be 11/2 times the interest rate computed from time to time as provided below or,at holder's option,at 11/2 times the interest rate as computed at the time of maturity or default: . Said principal and interest to be paid at the above indicated due date or as follows: or in 59 equal installments of 55.102.02 each and one final installment of $515.778.58 ,all payable on the same day of each successive month beginning on the 26th .day of MAY 19 90 .with any then remaining principal balance and interest due on maturity,each such payment to be applied first in payment of interest due on the unpaid principal and the remainder in reduction of the principal. VARIABLE RATE PROVISIONS-The interest-rate will be adjusted according to the New York Prime Floating Rate to be equal to: (Check one only) g .50 percentage points above the publicly announced prime rate of New York Prime Floating, ate ,as the same may be on dates of adjustment.Such announced prime rate as of the date of this note is 10.00 %.The publicly announced prime rate is not necessarily the best rate offered to its customers. • 0 percentage points above • ` ' (base rate)as the same may be on dates of adjustment.Such base rate as of the date of this note is ;•. Changes in the interest rate will not change the number of installments,but may or may not,at the option of the holder,result in changes in the amount of the installments,or any of them,to reflect the changes in the interest rate.Prior to matunty or default,the interest rate on the unpaid balance shall not exceed 12-00 °i or bo loos than 9.00 .%. In no event shall the rate stated herein, either prior to or after default,exceed the maximum rate permitted by law for transactions of this type. • If default is made in the payment of this note.or if Debtor fails to perform any convenant.promise or condition of any other note,obligation or agreement with the holder,or if holder believes itself insecure,the entire principal and accrued interest shall at once become due and payable without notice at the option of the holder of this note-and thereupon the undersigned agree to pay all costs of lection,including attorney fees.Failure to exercise these options shall not constitute a waiver of the nght to declare the entire principal amo nt ht ote and interest thereon due and payable at once at any subsequent.time_._ _----._. _ . This note is secured by all existing aridfuture ecumy iriferesfs co-.t"' 1 agr ents between the maker(s)and holder;or holder and'any----._ endorser,surety or-guarantor of this note,and payment m lerat.• cotarng to y of them.Holder may,without notice or demand,setoff against any credit balance or other money now or hereafte •••wed th. nde .44 by holder any amount unpaid under this note. Without affecting the liability of any maker.endorser.surr g�r. .l ' e holder may,without notice,renew or extend the time for payment,accept partial payments,release or impair any collateral which is se Wraa.r•r the payment of this note or agree not to sue any party liable.Any maker,endorser, -surety or guarantor further agrees that the holder is not required to first resort for payment to any collateral. • Presentment.demand,protest-notice and diligence in bringing suit against any party are hereby-waived by all persons signatory hereto,either as _makers,endorsers.sureties or guarantors. — -•- Maker represents and warrants that the extension of credit evidenced by this note is for business,commercial or agricultural purposes,or is.to an — organization. - - •------------ -- ..___.. —... • -- The security agreement(s)by which this note is secured include,but are not limited td,security agreement(s)`dated'--7-1;x99 -- ' Additional provisions- RE Mortgage dated 9-8-89 and 1-23-89 `-• '" — —� y,, - =The undersigned borrower(s)admowled t r gn ge(s)recei py of this instrument. "Y3 .. .. —_ADDRESS OF BORROWER ,. _-..___ _ .— ;—W A Gay-and Company 't t = - • • ' ,(Marne at- Pipraum. .Lr �'�C � .,‘,....0,-7.:3 • - 1421 Waterfront Dr. • Diet • ;B2. ((`/i,/i/ •• (No.a Street or Rural Row No. ) . -lie chae E.-.Ga r-=idenj Iowa City, IA 52240 �/ : INDIV: . - 11 _.J - i . _ ..----- _(Town) tslare) (bp Cow) I •(EYP.Name Michael. E.- -STddo•, (Soc.Sec.No.) BY: -- •BY:-_�. - -- (Rip1B) Tchard A. Gay,(t+lefcretary - Tre ter_. ($ignaue)-'''V".`.flit, • _ •'ice President INDIV: = ./ 1'� -!> ,-inDI. " . •.. .. � __�fichard-A. .Ga .L'7.-:. . .._-__.:7_1-27._ -, :�rypa-Name ,•D. � y - ---- ------ y F.� -li'_) - . - ._ispp,Sec.No.) oe IBA No.11 Promissory Note • Iowa Bankers•Associatlon-Copyright March,1983-Revise Match,1988-Maynard Printing .,Des Moines-• • ' - - TRIPLICATE-FILE - EXHIBIT "B" . ' Name V //A Gay and Company I Date April 1 1990 Amount $7 4,non_nn ` T Note 8 Acct.No. J --/ -).52y. . Term fl o Vpmr Due Date prrr4 2 76. -L l • Purpose Working Capital R7PAyt/FMr. Tnr .omr. ' - PROMISSORY NOTE • . FOR VALUE RECEIVED the undersigned jointly and severally,as principals,promise to pay to the order of •^...A. r.P•vr. n1,y-1C a: m7:11-,;1-{ ` r7'.xrir Tn-u Citi T--,V751 MO - . at its principal place of business,or at such other place as may be designated from time to time by the holder of this note,the principal sum of Seventy Five Thousand and NmJl no___________________________________________ Dollars ($ 75,000.00 )with interest to maturity at the variable rate as set forth below on the balance remaining from time to time unpaid and after either maturity or default the rate of interest shall be 11/2 times the interest rate computed from time to time as provided below or,at holder's option,at 11/2 times the interest rate as computed at the time of maturity or default: Said principal and interest to be paid at the above indicated due date or as follows: ` • Lnterest payable quarterly beginning July 26, 1990, with any remaining ha,ancr cif . principal and interest due at naturit, on April 26. 1991_ t equal installments of $ or in each and one final installment of $ all payable on the same day of each successive month beginning on the day of , 19 - -with any then remaining principal balance and interest due on maturity,each such payment to be applied first in payment of interest due on the unpaid principal and the remainder in-reduction of the principal. VARIABLE RATE PROVISIONS-The interest rate will be adjusted wit's every change in the Tris c. t nest Company Base RAte _ to be equal to: • (Check one only) 0 percentage points above the announced prima rate of ,as the same may be on dates of adjustment Such announced prime rate as of the date of this note is %. g -0- percentage points above the Iowa Stat.. Bank & Truat ro_ , Town ri t r (base rate)as the same may be on dates of adjustment.Such base rate as of the date of this note is 11_9n - Changes in the interest rate will not change the number of installments,but may or may not,at the option of the holder,result in changes in the amount of the installments,or any of them,to reflect the changes in the interest rate.Prior to maturity or default,the interest rate on the unpaid bal- ance shall not exceed %or be less than %. In no event shall the rate stated herein,either prior to or after default,exceed the maximum rate permitted by law for transactions of this type. •The principal sum shown in this promissory note represents: (Check one only) 0 The total amount which holder has agreed to advance from time to time to maker(s)or X The total unpaid principal balance which may be outstanding at any time,regardless of whether such amount is reduced and thereafter increased,_ • - ,' Holder may require any and all documentation and additional confirmations to authorization for any requested advance. Failure to provide said ' data in form(s)satisfactory to holder or a default on any note,obligation or agreement with holder or if holder deems itself insecure shall cause the -- =holder,at its option.to refuse to honor the request for an advance.of funds.---—____ -= •--'=.------------------- Holder's determ, ation as to the outstanding balance owed by maker(s) hereupon shall be conclusive'on--alt parties whomsoever and'holder'S - documentation to support said outstanding balance will be sufficient to establish and sustain maker's obligation hereunder. • If default is made in the payment of this note, or if Debtor fails to perform any covenant,promise or condition of any other note,obligation or - agreement with the holder,or if holder believes itself insecure,the entire principal and accrued interest shall at once become due and payable with- out notice at the option of the holder of this note,and thereupon the undersigned agree to pay all costs of collection,including attorney fees.Failure to exercise these options shall not constitute a waiver of the right to declare the entire principal amount of this note and interest thereon due and payable at once at any subsequent time. This note is secured by all existing and future security interests contained in security agreements between the maker(s)and holder,or holder and - any endorser,surety or guarantor of this note,and payment may be accelerated according to any of them.Holder may,without notice or demand, setoff against any credit balance or other money now or hereafter owed the undersigned by holder any amount unpaid under this note. • Without affecting the liability of any maker,endorser,surety or guarantor,the holder may,without notice,renew or extend the time for payment, accept partial payments, release or impair any collateral which is secured for the'payment of this note or agree not to sue any party liable. Any ( maker,endorser,surety or guarantor further agrees that the holder is not required to first resort for payment to any collateral. __ _. _.. Presentment,demand,protest,notice and diligence in bringing suit against any party are hereby waived by all persons signatory hereto,either as . makers,endorsers,sureties or guarantors. - - • • . • Maker represents and warrants that the extension of credit evidenced by this note is for business,commercial or agricultural RuToses,or is to an organization. ---- -._. _ ._- .- The security agreement(s)by which this note is secured include,but-are not limited to,security agreements)dated) • 7 -R -�4 19 r_- -- ----- ----- .._ 19 - •-._., ._.. _ --____ f"� Additional provisions: RE Mortgage Dated....9-4-E39 and: -23-R9 - L -- -- - J --~1 , - The undersigned borrower(s)acknowledge(s)'rec of a cop of this instrument.-- -.7--------•:---..--7•-----.---7-'-,-•---,:----,-:"� • ----.- - ADDRESS OF BORROWER .. ...._. . _ ._- _- - . W A Gay and Comnanv -....4C-1:::.-__• ._ ._. .... _ - -- .'1tHen.d Corporation.Pertrrrdep«organixaom) j - ' J 7 142/ waterfront Dr. - .-- _ _--P - COMM . BY %/, /f .� --- .,,..,— (Na a Street or Awed No.) (S g�ourer l'iIcha-- :Gay i¢ent Iowa City, IA 52240 -- DIDt. frown) - - - - . -(sratel .... (Zip Cods) --.-- -(TTypepe rdrr�-16.onaZ'I.i'4 y(Tioe. ._ • •. BY:/-. _,.,.„:%/. i j . -- tsoe t+o., _ lF chard A. Gay, Se �Jtary and Treast ) - fsigmwo p 1, _ .Vice President INDIV: �1 _ /2 �!` .. D4'"1,. .a a 'ca.. ."- ---' . r. (Type Nerngrs.a.. •c.: 1 (Soc.Sec.No.) IBA No.21—Irro•sr Note(Void* )b low&Ways Amodalion—Comp 1Aara41963—Msd Proem%Inc_or raotire TRIPLICATE — FILE EXHIBIT "C" , - IOWA STATE BAR ASSOCIATION I . , /•p t FOR THE LEGAL EFFECT OF THE USE r 011LaI Form No.127 `.. -i —( OF THIS FORM.CONSULT YOUR LAWYER 2. • '4.4.5'4" MORTGAGE I ��'�! " (Open-End) I • THIS MORTGAGE('Mortgage-)encumbers both real and personal property,contains an after-acquired property clause and secures present and future bans and advances. • NOTICE:This Mortgage secures credit in the amount of§ 330,000.00 loans and advances up to this amount.together with interest are senior to indebtedness to other creditors under subsequently recorded or filed mortgages and Gens. ®If this box is checked,this Mortgage also constitutes a Construction Mortgage as defined in the Iowa Code. 1 THIS Mortgage ismadebelween W.A. GAY AND COMPANY. INC IOWA STATE BANK AND TRUST 'COMPANY ("Mortgagors')-Mortgagee"). 1.Grant of Mortgage and Security Interest Mortgagors hereby sell,conveyand mortgage unto Mortgagee, a security interest to Mortgagee in the following described proper gages,and grant a • -- a.Land and Buildings.All of Mortgagors' property: ! 9right, title and interest in and to the hallowing described real estate situated in Johnson County,Iowa(the"Lard"): Lot 1 and Outlot A, all in the Resubdivision of a Portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the 5th P.M., Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 30, page 116, plat Records of Johnson County, Iowa, excepting the following portion of Outlot A: !' Commencing at the southerly most point of said Outlot A; thence nort 00021'22. west 175.11 feet along the easterly boundary of said!.Outlot A; thence westerly, parallel to the northerly boundary of said Outlot A to the westerly boundary off��QQ said Outlot A; thence southerly along the westerly boundary of s t t A to_ 8VV1J� the point of beginning. „�° BOOK/0"PLPAGE _ '4 09 JAN 27 AH 8: 10 and all buildings.structures and improvements now standing or at any lime hereafter constructed ofp cedfupon.lherland,()te "Buildings•),including all hereditaments,easements,appurtenances,riparian rights,mineral rights,walei'flghts ngfhtS iiiftid to the lands lying in streets,alleys and roads adjoining the land,estates and other rights and interests now or hereafter belonging to or in any way pertaining Io the Land. • b.Personal Property.All fixtures and other personal property integrally belonging lo.or hereafter becoming an integral Darr of the Land or Buildings,whether attached or detached,including but not limited to.light fix!ores.shades.rods,blinds.venetian blinds,awnings,storm windows,screens,linoleum,water softeners,automatic heating and air-conditioning equipment and all proceeds, products, increase, issue, accessions, attachments, accessories, parts, additions, repairs, replacements and substitutes of,to,and for the foregoing(the'Personal Property-). c.Revenues and Income.All rents,issues,profits,leases.condemnation awards and insurance proceeds now or hereafter arising from the ownership,occupancy Or use of the Land.Buildings and Personal Property,or any part thereof(the'Revenues _ ___ ___ -and Income"). - - —- — TO HAVE AND TO HOLD the Land.Buildings,Personal Property and Revenues and Income(collectively called the"Mortgaged rrOperty),together wilh all privileges.hereditaments hereunto now or hereafter belonging,or in any way appertaining and the products -,0rd proceeds thereof,unto Mortgagee.its successors and assigns. 2.Obligations.This Mortgage secures the following(hereinafter collectively referred to as the"Obligations'): a.The payment of the loan made by Mortgagee t0 W.A. GAY AND COMPANY. INC. t evidenced by a promissory nose dated Januar�2 . $ by a roma ,19 as_in the principal amount of 1 • with a due date of May 23 modifications or refinancing thereof and any promissory 9 _B-9' renewals. extensions,spry notes issued in substitution thereft or;and b.Alt other obligations of Mortgagors to Mortgagee,now existing or hereafter arising,whether direct or indirect,contingent or absolute and whether as maker or surely,including,but not limited to,future advances and amounts advanced and expenses incurred by Mortgagee pursuant to this Mortgage. i. C. is y-1t5 PARAGRAPH SHALL NOT CONSTITUTE A COMMITMENT TO MAKE ADDITIONAL LOANS IN ANY AMOUNT. 3.Representations and Warranties of Mortgagors.Mortgagors represent,warrant and covenant to Mortgagee that(i) Mortgagors hold clear title to the Mortgaged Property and title in fee simple in the Lend;(ii)Mortgagors have the right aurvority to execute this Mortgage and to mortgage,and grant a security interest in the Mortgaged P is lee and clear of all liens and encumbrances,ex iarid exceptx;(ias otherwise Mortgaged P 3 ' sept for real estate taxes not yet delinquent as otherwistay iff-' '^- r-.zea ___ sur_iparagraph ta.herein;(iv)Mortgagors will warrant and defend title to the Mortgaged Property and the lien and puny a I--- .:::a 1_ " Mortgage against all claims and demands of all dYtthis persons,whether now existing or hereafter arising;and(v)at bwldrtg I j fmrxovements now or hereafter located on the Land are,or will be,located entirely within the boundaries of the Land, •"� 4.Payment and Performance of the Obligations.Mortgagors well pay all amounts payable under the Obliga (� "O " ' aU�Crdance with the terms of the Obligations when and as due and till timely perform all other obligations of Mortgagors and r'fl ---Gtoi,gations.The provisions of the Obligations are hereby incorporated by reference into this Mortgage as if fully set forth herein. cD 7r1 5.Taxes.Mortgagors shall pay each installment of all taxes and special assessments of every kind,now or hereafter levied agatoet:. W tisk Mortgaged Property before the same become delinquent,without notice or demand,and shall deliver to Mortgagee proof of shell- 'V paiyment within fifteen(15)days after the date in which such tax or assessment becomes delinquent. 1 6.Liens.Mortgagors shall not create,incur or suffer to exist any ten,encumbrance,security interest or charge on the Mortgaged^ PrW erty Or any part thereof which might or could be hey to be equal or prior to the lien of this Mortgage,other than the lien of current real ae taxes and installments of special assessments with respect to which no penalty is yet payable.Mortgagors shall pay when due, ths-claims of all persons supplying labor or materials to or in connection with the Mortgaged Property. 7.Compliance with Laws.Mortgagors that comply with all present and future statutes,laws,rules,orders,regulations and • ormknances affecting the Mortgaged Property any part thereof or the use thereof. •I 3.Permitted Contests.Mortgagors shall not be required to(i)pay any tax,assesiment or other charge referred to in paragraph 5 li i MOR7GAGEI(OPE 14......stat.Bear Assocaalan y T� 1 I - - It ~wog MN.i9" I 27 I�FENOI II ' Raged Se'pernb .1906 1I • i; 12.Protection of Mortgagee's Security.Subject to the rights'o)Mortgagors under paragraph 8 hereof.it Mortgagors fail to perform any of the covenants and agreements contained in this Mortgage or if any action or proceeding is commenced which affects the Mortgaged Property or the interest of the Mortgagee therein,or the title thereto,then Mortgagee,at Mortgagee's option,may perform such covenants and agreements.defend against or investigate such action or proceeding,and take such other action as Mortgagee • deems necessary to protect Mortgagee's interest.Any amounts or expenses disbursed or incurred by Mortgagee in good faith pursuant • to this paragraph 12 with interest thereon at the rate of 16.0 h per annum,shall become an Obligation of Mortgagors secured by this Mortgage.Such amounts advanced or disbursed by Mortgagee hereunder shall be immediately due and payable by Mortgagors unless Mortgagors and Mortgagee agree in writing to other terms of repayment.Mortgagee shall,al its option,be subrogated to the lien of any mortgage or other lien discharged in whole or in part by the Obligations or by Mortgagee under the provisions hereof,and any such subrogation rights shall be additional and cumulative security for this Mortgage.Nothing contained in this paragraph shall require T— ' Mortgagee to incur any expense or do any act hereunder,and Mortgagee shall not be liable to Mortgagors for any damage or claims arising out of action taken by Mortgagee pursuant to this paragraph. it ) 13.Condemnation.Mortgagors shall give Mortgagee prompt notice of any action,actual or threatened,in condemnation or eminent domain and hereby assign,transfer and set over to Mortgagee the entire proceeds of any award or claim for damages for all or any part of the Mortgaged Property taken or damaged under the power of eminent domain or condemnation.Mortgagee is hereby •• authorized to intervene in any such action in the names of Mortgagors,to compromise and settle any such action or claim,and to collect and receive from the condemning authorities and give proper receipts and acquittances for such proceeds.Any expenses incurred by Mortgagee in intervening in such action or compromising and settling such action or claim,or collecting such proceeds shall be reimbursed to Mortgagee first out of the proceeds.The remaining proceeds or any part thereof shall be applied to reduction of that portion of the Obligations then most remotely to be paid,whether due or not,or to the restoration or repair of the Mortgaged Property,the choice of application to be solely at the discretion of Mortgagee. 14.Fixture Filing.From the date of its recording,this Mortgage shall be effective as a financing statement filed as a fixture filing with • respect to the Personal Property and for this purpose the name and address of the debtor is the name and address of Mortgagors as set forth in paragraph 20 herein and the name and address of the secured party is the name and address of the Mortgagee as set forth in paragraph 20 herein. !• 15.Events of Default.Each of the following occurrences shall constitute an erint of default hereunder('Event of Default"): a.Mortgagors shall default in the due observance or performance of or breach its agreement contained in paragraph 4 hereof or shall default in the due observance or performance of or breach any other covenant,condition or agreement on its part to be observed or performed pursuant to the terms of this Mortgage. b.Mortgagors shall make an assignment for the benelits of its creditors,or a petition shall be filed by or against Mortgagors under the United States Bankruptcy Code or Mortgagors shall seek or consent to or acquiesce in the appointment of any trustee,receiver or liquidator of a material part of its properties or 0f the Mortgaged Property or shalt not,within thirty(30)days after the appointment of a trustee,receiver or liquidator of any material part 01 its properties or of the Mortgaged Property,have such appointment vacated. C.A judgment.writ or warrant of attachment or execution,or similar process shall be entered and become a lien on or be issued or levied against the Mortgaged Property or any part thereof which is not released,vacated or fully bonded within thirty(30)days after its entry,issue or levy. d.An event of default,however defined.shall occur under any other mortgage,assignment or other security document constituting a lien on the Mortgaged Property or any part thereof. . e. 16.Acceleration;Foreclosure.Upon the occurrence of any Event of Default and at any time thereafter white corh Event of Default exists,Mortgagee may,at its option,exercise one or more of the following nghts and remedies(and any other rights and remedies available to it): a.Mortgagee may declare immediately due and payable all Obligations secured by this Mortgage,and the same shalt thereupon • be immediately due and payable.without further notice or demand. b.Mortgagee shall have and may exercise with respect to the Personal Property,all the nghts and remedies accorded upon - • default to a secured party under the Iowa Uniform Commercial Code.It notice to Mortgagors c .mended disposition of such —--'- wooer ty is required by law in a particular instance,such notice shall be deemed commercially reasonable i(given to Mortgagors at least ten(10)days pear to the date of intended disposition. • c.Mortgagee may(and is hereby authorized and empowered to)foreclose this Mortgage in accordance with the law of the State of Iowa,and at any time alter the commencement of an action in foreclosure,or during the period of redemption,the court having jurisdiction of the case shall at the request of Mortgagee appoint a receiver to take immediate possession of the Mortgaged Property and of the Revenues and Income accruing therefrom,and to rent or cultivate the same as he may deem best for the interest of all parties concerned.and such receiver shad be liable to account to Mortgagors only for the net profits,atter application of rents,issues and profits upon the costs and expenses of the receivership and foreclosure and upon the Obligations. 17.Redemption.It is agreed that if this Mortgage covers less Than ten(10)acres of land,and in the event of the foreclosure of this Mortgage and sale of the property by sheriff's sale in such lorectosure proceedings,the time of one year for redemption from said sale provided by the statues of the State of Iowa shall be reduced to six(6)months provided the Mortgagee,in such action files an election to waive any deficiency judgment against Mortgagors which may arise out of the foreclosure proceedings;ail to be consistent with the provisions or Chapter 628 of the Iowa Code.II the redemption period is so reduced,for the first three(3)months after sale such right of redemption shall be exclusive to the Mortgagee,and the time periods in Sections 628.5,628.15 and 628.16 of the Iowa Code shall be reduced to four(4)months. It is further agreed that the period of redemption after a foreclosure of this Mortgage shall be reduced to sixty(60)days it all of the three following contingencies develop:(1)The real estate is less than ten(10)acres in size;(2)the Coiut finds affirmatively that the said real estate has been abandoned by the owners and those persons personally liable under this Mortgage at the time of such foreclosure; f..- and(3)Mortgagee in such action files an election to waiver any deficiency judgment against Mortgagors or their successor in interest in„, such action.If the redemption period is so reduced,Mortgagors or their successors in interest or the owner shad have the g,XClysive rghtr"0 to redeem for the first thirty(30)days after such sale,and the time provided for redemption by creditors as provided in Sections 628.5,C.—. _ 628.15 and 628.16 of the lowaCode shall bereduced tofa forty s.Entof appearance entrybyoFd"fiehaH-��' 6*' of Mortgagors shall be a presumption that the property is not abandoned.My such redemption period shall be consistent with 2fl of the•_."' „-s • provisions of Chapter 628 of the Iowa Code.This paragraph shall not be construed to limit or otherwise affect any other redemption a provisions contained in Chapter 628 of the Iowa Code. - • J.% 18.Attorneys'Fees.Mortgagors shall pay on demand all costs and expenses incurred by Mor tgageeinenforcing orprotettiogits r rights and remedies hereunder,including,but not limited to.reasonable attorneys'fees and legal expenses. rJ j °1 19.Forbearance not a Waiver,Rights and Remedies Cumulative.No delay by Mortgagee in exercising any right'orrpmedy ` 701 provided herein or otherwise afforded by law or equity shall be deemed a waiver of or preclude the exercise of such right or remedy and r,, no waiver by Mortgagee of any particular provisions of this Mortgage shall be deemed effective unless in writing signed by Mortgagee. All such rights and remedies provided for herein or which Mortgagee or the holder of the Obligations may have otherwise,at law or in ^J equity,shall be distinct,separate and cumulative and may be exercised Concurrently,independently or successively in'any order whatsoever,and as often asJM occasionlherefor arises. . .- • 'JCt 10411 PA4L•Otis` -, j. u � i F._ . i Il . • jl • a • hereof,(ii)discharge or remove any lien,encumbrance or charge referred to in paragraph 6 hereof,or-(iii)comply with any statute,law, •/. rule,regulation or ordinance referred to in paragraph 7 hereof,so long as Mortgagors shall contest,in good faith,the existence,amount or the validity thereof,the amount of damages caused thereby or the extent of Mortgagors'liability therefor,by appropriate proceedings which shall operate during the pendency thereof to prevent(A)the collection of,or other realization upon the tax,assessment,charge or Tien,encumbrances or charge so contested,(B)the sale,forfeiture or loss of the Mortgaged Property or any part thereof,and(C)any interference with the use or occupancy of the Mortgaged Property or any part thereof.Mortgagors shall give prompt written notice to Mortgagee of the commencement of any contest referred to in this paragraph 8. • 9.Care of Property.Mortgagors shall take good care of the Mortgaged Property;shall keep the Buildings and Personal Property • now or later placed upon the Mortgaged Property in good and reasonable repair and shall not injure,destroy or remove either the Buildings or Personal Properly during the term of this Mortgage.Mortgagors shall not make any material alteration to the Mortgaged • Property without the prior written consent of Mortgagee. 10.Insurance. j a.Risks to be Insured.Mortgagors,at their sole cost and expense,shall maintain insurance as follows: i.If this is a Construction Mortgage.dung the period of cosntruction,Mortgagors will maintain builder's risk insurance, written on the so-called'builder's risk-completed value basis',in an amount equal to 100%of the insurable value of the Mortgaged Property at the date of completion,and with coverage available on the so-called'all risk',non-reporting form of policy;provided that,to the extent that any contractor for such construction shall provide a duplicate insurance policy or builder's risk policy or certificate of insurance showing that the same coverage as is herein required is being carved by such Contractor and adequately protects the interest of Mortgagee and Mortgagors with respect to the Mortgaged Property or a part thereof.Mortgagee shall not be required to maintain separate coverage.The insurance provided for by this subparagraph(i) with respect to the Mortgaged Property or such part thereof shalt not be required while the Mortgaged Property or part thereof is so insured.Mortgagee's interest shall be protected in accordance with a standard mortgagee clause. ii.It this is a Construction Mortgage,during the period of construction,Mortgagors will maintain comprehensive general liability insurance(including operations,contingent liability,operations of subcontractors,complete operations and contractual liability insurance)against bodily injury and property damage in amounts satisfactory to Mortgagee.If this isnot a Construction Mortgage,or upon completion of construction.Mortgagors will maintain comprehensive general public liability insurance and property damage lability insurance in.amounts satisfactory to Mortgagee to protect Mortgagors from claims(including all costs and expenses of defending the same)for personal injury,sickness,disease or death or for damage or injury to or destruction of property(including loss of use thereof)ocu.rring in.on or about the Mortgaged Property. iii.II this is not a Construction Mortgage,or upon completion of construction,Mortgagors will maintain insurance on the Buildings and other improvements now existing or hereafter erected on the Land and on the Personal Property included in the Mortgaged Property against loss by lire,extended coverage perils and such other hazards as Mortgagee may from time to time require,such insurance to have a'Replacement Cost'endorsement attached thereto,with the amount of the insurance - at least equal to the halance of the Obligations.At Mortgagors'option.such policy may have a coinsurance Ciause of not less than 90%of replacement cost provided the policy contains an appropriate form of cost escalation endorsement.Mortgagors will at their sole cost and expense,from time to time,and at any time at the request of Mortgagee,provide Mortgagee with evidence satisfactory to Mortgagee of the replacement cost of Mortgaged Property. iv.If this is a Construction Mortgage,during the period of construction,Mortgagors will maintain worker's compensation insurance with respect to allemployeesi Mortgagors and each contractor;and.it Ihis isnot is not a Construction Mortgage,or upon completion of construction,Mortgagors will maintain worker'srespect to- employees of Pcompensation insurance with - -__ -- Mortgagors. v At all times.Mortgagors will maintain such other insurance as Mortgagee may reasonably require. b.Policy Provisions.All insurance policies and renewals thereof maintained by Mortgagors pursuant to this Mortgage shall be written by an insurance carrier satisfactory to Mortgagee,contain a mortgagee clause in favor of and in form acceptable to Mortgagee,contain an agreement of the insurer that it will not amend,modify or cancel the policy except after thirty(30)days prior written notice to Mortgagee,and be reasonably satisfactory to Mortgagee in all other respects. c.Delivery of Policy or Certificate.If requested by Mortgagee, Mortgagors wit!deliver to Mortgagee original policies satisfactory to Mortgagee evidencing the insurance which is required under this Mortgage,and Mortgagors shall promptly furnish to Mortgagee all renewal notices and,upon request of Mortgagee,evidence of payment thereof.At least ten(10)days prior to the expiration date of a required policy,Mortgagors shall deliver to Mortgagee a renewal policy in form satisfactory to Mortgagee. d.Assignment of Policy.If the Mortgaged Property is sold at a foreclosure sale or if Mortgagee shall acquire title to the Mortgaged Property,Mortgagee shall have all of the right,title and interest of Mortgagors in and to any insurance policies required hereunder,and the unearned premiums thereon,and in and to the proceeds thereof resulting from any damage to the Mortgaged Property prior to such sale or acquisition. e.Notice of Damage or Destruction;Adjusting Loss.If the Mortgaged Property or any part thereof shall be damaged or destroyed by fire or other casualty,Mortgagors will,within five(5)calendar days after the occurrence of such damage or s. �.� destruction,give written notice thereof to the insurance carrier and to Mortgagee and will not adjust any damage or loss which is • ' rb t estimated by Mortgagors in good faith to exceed$25.000 unless Mortgagee shall have joined in or concurred with such adjustment; but if there has been no adjustment of any such damage or loss within four(4)months from the date of occurrence thereof and if an Event of Default shall exist at the end of such four(4)month period or at any time thereafter,Mortgagee may alone make proof 0� loss,adjust and compromise any claim under the policies,and appear in and prosecute any action arising from socio policies.fns connection therewith,Mortgagors do hereby irrevocably authorize,empower and appoint Mortgagee as attome'y-in-(act ' Mortgagor(which appointment is coupled with art interest)to do any and all of the foregoing in the name arae orl::behalf el. 1.1 Mortgagors. I.Application of Insurance Proceeds.All sums paid under any insurance policy required by this Mortgage shah be paid f ' "'x. . Mortgagee,which shall,at its option,apply the same(after first deducting therefrom Mortgagee's expenses incurredin collectin2�' U the same including but not limited to reasonable attorney's fees)to the reduction of the Obligations or to the payrtment..of the.,O "'•' restoration•repair,replacement or rebuilding of Mortgaged Property that is damaged or destroyed in such manner asMor - " L . shall determine and secondly to the reduction of the Obligations.Arty application of insurance proceeds to Pnnei)Sal bf the Oblgations shall not extend or postpone the due date of the installments payable under the Obligations or change the'amount such installments. ,, - --t g.Reimbursement of Mortgagee's Expenses.Mortgagors shall promptly reimburse Mortgagee upon demand for all of Mortgagee's expenses incurred in connection with the collection of the insurance proceeds,including but not limited to reasonable-' attorneys'fees,and all such expenses shall be additional amounts secured by this Mortgage. - . 11.Inspection.Mortgagee,gages,and its agents,shall have the right at all reasonable times,to enter upon the Mortgaged Property for the purpose of inspecting the Mortgaged Propertyor any part thereof.Mortgagee shall,however,have noduty to make such inspection. Any inspection of the Mortgaged Property by Mortgagee shall be entirely for its benefit and Mortgagors shall in no way rely or claim reliance thereon. _ {I • tl } r i -.-.'-- 20.Notices.All notices required to be given hereunder shall be m writing and deemed given when personalty delivered Ofdeposited in the United States mail,postage prepaid,sent certified ified or registered,addressed as follows: i a.If to Mortgagors,to: W.A. GAY AND COMPANY. INC. • 1421 WATERFRONT DRIVE IOWA CITY. IOWA 52290 b.It to Mortgagee,to: r IOWA STATE BANK AND TRUST COMPANY PO BOX 1700 • IOWA CITY IA 52244 . 1l Of to such other addressor person as hereafter designated in writing by the applicable parry in the manner provided in this paragraph for the giving of notices. 1 21.Severability.In the event any portion of this Mortgage shall,la any reason,be held to be invalid,illegal or unenforceable in —_r while or in part,the remaining provisions shall not be affected thereby and shall continue to be valid and enforceable and if,lot any reason,a court finds that any provision of this Mortgage is invalid,illegal,a unenforceable as written,but that by limiting such provision it would become valid,legal and enforceable then such provision shall be deemed to be written,construed and enforced as so limited. 22.Further Assurances.At any time and from time to time until payment in full of the Obligations,Mortgagors will,at the request of Mortgagee,promptly execute and deliver to Mortgagee such additional instruments as may be reasonably required to wilier evidence • the lien of this Mortgage and to further protect the secunty interest ol Mortgagee with respect to the Mortgaged Property,including,but —�� not limited to,additional secunty agreements,financing statements and continuation statements.My expenses incurred by Mortgagee in connection with the recordation of any such instruments shall become additional Obligations of Mortgagors secured by this Mortgage. Such amounts shall be immediately due and payable by Mortgagors to Mortgagee. 23.Successors and Assigns bound; Number;Gender;Agents;Captions.The rights,covenants and agreements contained herein shall be binding upon and inure to the benefit of the respective legal representatives,successors and assigns of the parties.Words and phrases contained herein,including acknowledgement hereof,shall be construed as in the singular or plural number, ' and as masculine,feminine or neuter gender according to the contexts.The captions and headings of the paragraphs of this Mortgage are for convenience only and are not to be used to interpret or define:he provisions hereof. 24.Governing Law.This Mortgage shall be governed by and construed in accordance with the laws of the State of Iowa • - 25.Release of Rights of Dower,Homestead and Distributive Share.Each of the undersigned hereby relinquishes all rights t of dower,homestead and distributive share in and to the Mortgaged Property and waives all rights of exemption as to any ol the Mortgaged Property. 26.Acknowledgement of Receipt of Copies of Debt Instrument.Mortgagors hereby acknowledge the receipt of a copycat this Mortgage together with a copy of each promissory note secured hereby. 27.Additional Provisions. I 'c� ---1y I • Dated: January 23 J 19 89 ( `k�.. L �.. ..r„r ,. wc=--_G�E Gay6/President .�t Jt a. i•1 Time h F. Gay, e Pre nt �„ II , _ Cichard A. Gay, ecretary d Trr bA5rs 1 Cos cot .�.......ti 45�'IC Kra TNI LULU-vrett of me vac 1 Or,rO1 POe..CONSULT YOUR LANYee .l STATE OF IOWA. .InHN Ol COUNTY,ss: • Onthie 23rd days January 19..2`,2____", me,the undersigned, • a Notary Public In and for the State of Iowa,personally appeared Michael E. Gay, Timothy P. Gay and Bi chard A. Gay ,to me personally known,who being by me•--} duly sworn,dtdsay that they are the President; Vice President and Secretary and Treasurer respectively, of the corporation executing the within and foregoing instrument to which this Is attached, that (gtp06Ral I. 6t=c:ttatsxtaXxaFedcbrttha) (the seal affixed thereto is the seal of the) corporation; that said instrument was signed , (and sealed) on behalf of the corporation by authority of its Board of Directors;and that Michael E. Gay, Timothy F. Gay and Richard A. Gay as officers ac ed the execution of the for i instrument to be the ' voluntary act and deed of the corporation.Dlfilanif by them voluntari x ted. IOWA STATE BAR ASSOCIATION • ,Notary Public in and for said State. q ' .ONiclal Form No.172 - I -, tseowxeSNUB.s � SNUB.Cam rWoe) TM Pm.,s.rWw e .Mr I Acknowledgment:For use in the case of corpotation4 '1' '.• EXHIBIT 11D" .OIOWA STATE BAR ASSOCIATION i FORIHE LEGAL EFFECT OF THE USE Official Farm No.127 .-. ; OF THIS FORM.CONSULT YOUR LAWYER • C ¢w w• MORTGAGE X30. (Open-End) THIS MORTGAGE('Mortgage)encumbers both real and personal property contains an atter-acquired property clause and secures present and future loans and advances. NOTICE:This Mortgage secures credit in the amount of 5 440,000.00 .Loans and advances up to this amount,together with interest are senior to indebtedness to other creditors under Subsequently recorded or filed mortgages and Gens. If this box is checked,this Mortgage also constitutes a Construction Mortgagen T ® as defined in the Iowa Code. r -nits mortgage ismade between W A. Gay and Company. Inc. (•Mortgagors')and A._... _ • Iowa State Rank and Tr❑at fmmnany .. (•Mortgagee') - 'i 1.Grant of Mortgage and Security Interest.Mortgagors hereby sell,convey and mortgage unto Mortgagee,and grant a - security interest to Mortgagee in the following described property: - h • a.Land and Buildings.Al of Mortgagors'right,title and interest in and to the following described real estate situated in Johnson Count%Iowa(the'Land); Lot 1 and Out lot A, all in the Resubdivision of a Portion of Govertheient Lot 4 of Section 15, • Township 79 North. Range 6 West of the 5th P.M., Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 30. Page 116, Plat Records of Johnson County, Iowa , excepting the fallowing portion of Outlot A: - Commencing at the southerly most point of said Outlet A; thence north 00'21'22'west 175.11 feet • along the easterly boundary of said Outlot A; thence westerly, parallel to the northerly boundary . of said Outlot A to the westerly boundary of said Outlet A; thence southerly along the westerly • boundary of said Outlot A to the point of beginning. i t . � � . ooFIc�EO_�$F..FtO �: E �Z"f 89 SEP 12 kir 8:26 r D -41202 and as build' structures and enplaced axJs. improvements now standing or at any time hereafter constructed asplacedipQOAtX'Rgd(Ifhe •Bulklirgs'),including aa hereditaments,easements,appurtenances.riparian rights,mineral rights,water igfhttrr(gfid IkaiVil to the lands lying in streets,alleys and roads adjoining the land,estates and other rights and interests now or hereafter belonging toot in any way pertaining to Ihhe Land. b.Personal Property All fixtures and other personal property integrally belonging lo.or hereafter becoming an integral part of the Land or&ridings,whether attached or detached,including but not limned to,tight fixtures,shades,rods,blinds,venetian blinds.awnings,stoma windows•screens,linoleum,water softeners,automahC healing andair-condi lorxng equipment and all proceeds. products, increase. issue, accessions. attachments. accessories, parts,additions, repairs, replacements and substitutes of,to,and for the foregoing(the'Personai Property'). C.Revenues and Income.All rents,issues,profits.leases.condemnation awards and insurance proceeds now or hereafter arising from the ownership,occupancy or use of the Land.Buildings and Personal Property,or any part thereof(the'Revenues and Income". TO HAVE AND TO HOLD the Lard.Buildings.Personal Property and Revenues and Income(collectively called the'Mortgaged Property,,together with ad privileges.hereditaments thereunto now or hereafter belo ging,or In any way appertaining and the products _. and proceeds thereof,unto Mortgagee.its successors and assigns. • -_ .,_.:.._ _ I - 2 ObNgatlons.TMs Mortgage secures thx following(hereinafter coRectiv_.y referred b as one'Obkgatiors�: - ---- -=1I a.The payment of the loan made by Mortgagee to M. A. Gay and Company. Inc. evidenced by a promissory note dated September 8, 19 89 in the principal amount of S 390,000.00 with a due date of September 8 i994 •ahy renewals extensions, •.1 . modifications or refinancng thereof and arty promissory notes issued in substitution therefor;and b.All other obligations of Mortgages to Mortgagee.now existing or hereafter arising,whether direct or indirect.contingent or absolute and whether as maker or surety including,but not limited lo,future advances and amounts advanced and expenses incurred by Mortgagee pursuant to this Mortgage. o 1. THIS PARAGRAPH SHALL NOT CONSTITUTE A COMMITMENT TO MAKE ADDITIONAL LOANS IN ANY AMOUNT. 3.Representations and Warranties of Mortgagors.Mortgagors represent,warrant and covenant to Mortgagee that(i) Mortgagors hold clear title to the Mortgaged Property and title in lee simple in the Land;(„I Mortgagors have the right,power and authority to execute this Mortgage and to mortgage,and grant a secunty interest in the Mortgaged Property;(ik)the Mortgaged Property is tree and dear of all liens and encumbrances,except for real estate taxes not yet delinquent and except as otherwise stated in subparagraph la.herein;(iv)Mortgagors will warrant and defend tele to the Mortgaged Property and the lien and priority of This 4 — Mortgage against aft claims and demands of all persons,whether now existing or hereafter arising:and(v)all buildings and • i' improvements now or hereafter located on the Land are,or will be.kcated entirely within the boundaries of the Land. I 4.Payment and Performance of the Obligations.Mortgagors are pay all amounts payable under the Obligations in ) accordance with the terns of the Obligations when and as due and will timely perform all other obligations of Mortgagors under the Obligations.The provisions of the Obligations are hereby incorporated by reference into this Mortgage as if fully set forth herein. 5.Taxes.Mortgagors shall pay each installment of all taxes and special assessments of every kind.now or hereafter levied agaust the Mortgaged Property belore the same become delinquent,without notice or demand,and shall deliver to Mortgagee proof of such. payment within fifteen(15)days after the date in which such tax or assessment becomes delinquent l"� 6.Liens.Mortgagors shall not create.incur or suffer to exist any lien,encumbrance,security interest or charge on the MortgagedC,.,r -" Property or any part thereof which might or could be held to be equator prior to the lien ol this Mortgage,other than the lienrofturrent real',.-,: ,. estate taxes and installments of special assessments with respect to which no penalty is yet payable.Mortgagors shah pay,whjendue, the claims of as perss supplying labor or materials to or in connection with the Mortgaged Property. - .. a , 7.Compliance with Laws.Mortgagors shall comply with all present and future statutes,laws,rules,orders,regulations and ON Ordinances affecting the Mortgaged Property,any part thereof or the use thereof. - . , ' 8.Permitted Contests.Mortgagors shall not be required to(i)pay any lax,assessment or other charge referred to in paragraph 5 .-- ' 1081 r 6,-.)1 .... .. to..Slain Oar Axsxalan - 127 MORTGAGE(OFEN.ENQ) C -Ti- - Por,Mar,19e7 ` Reroen Sarxenasr.l des G 1 4 s e • F li • • t • • .... - • ' i hereof,(ii)discharge or'remove any lien,encumbrance or charge referred to in paragraph 6 hereof,or(ill)comply with any statute,taw, , . w rule,regulation or ordinance referred to in parai-]ph 7 hereof,so long as Mortgagors shall contest,in good faith,the existence,amount or the validity thereof,the amount of damages caused thereby or the extent of Mortgagors'lability therefor,by appropriate proceedings which shall operate during the pendency thereof to prevent(A)the collection of.or other realization upon the tax,assessment,charge or lien,encumbrances or charge so contested.(B)the sale,forfeiture or loss of the Mortgaged Property or any part thereof,and(C)any • . interference with the use or occupancy of the Mortgaged Property or any part thereof.Mortgagors shall give prompt written notice to • Mortgagee of the commencement of any contest referred to in this paragraph B. 9.Care of Property.Mortgagors shall take good care of the Mortgaged Property;shall keep the Buildings and Personal Property now or later placed upon the Mortgaged Properly in good and reasonable repair and shall riot injure,destroy or remove either the , Buildings or Personal Property dunng the term of this Mortgage.Mortgagors shall not make any material alteration to the Mortgaged . Property without the prior written consent of Mortgagee. 10.Insurance. a.Risks to be Insured.Mortgagors.at their sole cost and expense,shall maintain insurance as follows: r • I.If Nis is a Construction Mortgage,during the period of cosnlruction.Mortgagors will maintain builder's risk insurance, 1 written on the so-called"builder's risk-completed value basis',in an amount equal to 100%0l the insurable value of the � Mortgaged Property al the date of completion,and with coverage available on the so-called-alt risk',non-reporting form of , policy;provided that,to the extent that any contractor for such construction shall provide a duplicate insurance policy or builder's risk policy or certificate of insurance showing that the same coverage ass herein required is being carried by such . contractor and adequately protects the interest of Mortgagee and Mortgagors with respect to the Mortgaged Property or a part thereof.Mortgagee shall not be required t0 maintain Separate coverage.The insurance provided for by This subparagraph 0) • with respect to the Mortgaged Property or such part thereof shall not be required while the Mortgaged Property or part thereof --____, is so insured.Mortgagee's interest shall be protected in accordance with a standard mortgagee clause. ii.It this is a Construction Mortgage,during the period of construction,Mortgagors will maintain comprehensive general lability insurance(including operations.contingent liability,operations of subcontractors,complete operations and contractual liability insurance)against bodily injury and property damage in amounts satisfactory to Mortgagee.If this is not a Construction Mortgage,or upon completion of construction.Mortgagors will maintain comprehensive general public liability insurance and property damage liability insurance in amounts satisfactory to Mortgagee to protect Mortgagors from claaims(including alt costs and expenses of defending the same)for personal injury.sickness,disease or death or for damage or injury to or destruction of property(including loss of use thereof)occurring in,on or about the Mortgaged Property. iii.If this is not a Construction Mortgage,or upon completion of construction.Mortgagors will maintain insurance on the r Buildings and other improvements now existingor hereafter erected on the Land and on the Personal Property roperry mctuded in the Mortgaged Property against loss by fire.extended coverage perils and such other hazards as Mortgagee may from time to time require,such insurance to have a'Replacement Cost'endorsement attached thereto,with the amount of the insurance at least equal to the balance of the Obligations-Al Mortgagors'option,such policy may have a coinsurance clause of not less than 90%of replacement cost provided the policy cont.'ins an appropriate form of cost escalation endorsement.Mortgagors will at thew sole cost and expense.from time to lime,aid at arty time at the request of Mortgagee,provide Mortgagee with evi0ence satisfactory to Mortgagee of the replacement cost of Mortgaged Property. iv If this is a Construction Mortgage,during the period of connstructon.Mortgagors will maintain worker's compensation insurance with respect to ad employees of Mortgagors and each contractor:and.if this isnot a Construction Mortgage.or upon completion of construction.Mortgagors will maintain worker's compensation insurance with respect to all employees of Mortgagors. v.At all times.Mortgagors wit maintain such other insurance as Mortgagee may re4sonahiy require. _. b.Policy Provisions.All insurance policies and renewals thereof maintained by Mortgagors pursuant to this Mortgage shall be written by an insurance carrier satisfactory to Mortgagee,contain a mortgagee clause in favor of and in lone acceptable to Mortgagee,contain an agreement of the insurer that it will not amend,modify or cancel the policy except atter thirty(30)days pnor written notice to Mortgagee.and be reasonably satisfactory to Mortgagee in at other respects. c Delivery of Policy or Certificate.If requested by Mortgagee,Mortgagors will deliver to Mortgagee original policies satisfactory to Mortgagee evidencing the insurance which is required under this Mortgage,and Mortgagors shall promptly furnish . .___ -- - - _ to Mortgagee at renewal notices and,upon request of Mortgagee,evidence of payment thereof.At least ten(10)days prior to the_ __.__.-__ expiration date of a required policy,Mortgagors shall cy deliver to Mortgagee a renewal poein form satlslactory to Mortgagee. -- -- —- - d.Assignment of Policy.If the Mortgaged Property is sold at a foreclosure sale or if Mortgagee shat acquire title to the Mortgaged Property,Mortgagee snail have all of the right,title and interest of Mortgagors in and to any insurance polices required hereunder,and the unearned premiums thereon,and in and to the proceeds thereof resulting from any damage to the Mortgaged Property prior to such sale or acquisition. . e.Notice of Damage or Destruction;Adjusting Loss.If the Mortgaged Property or any part thereof shall be damaged or destroyed by lire or other casualty,Mortgagors will,within five(5)calendar days after the occurrence of such damage or destruction,give written notice thereof to the insurance tamer and to Mortgagee and will not adjust any damage or loss which is - ' estimated by Mortgagors in good faith to exceed 525,000 unless Mortgagee shat have pined in or concurred with such adjustment; but if there has been no adjustment of any such damage or loss within four(4)months from the dale of occurrence thereof and if art Event of Default shall exist at the end of such lour(4)month period or at any time thereafter.Mortgagee may alone make proof of loss.adjust and compromise any claim under the policies.and appear in and prosecute any action arising Iron such policies.In connection therewith,Mortgagors do hereby irrevocably authorize,empower and appoint Mortgagee as attorney-in-tact for • Mortgagor(which appointment a coupled with an interest)to do any and all of the foregoing in the name and on behalf of Mortgagors. 1 . f.Application of Insurance Proceeds.-A5 sums paid under any insurance policy required by this Mortgage shall be pad to Mortgagee,which shall,at its option,apply the same(after first deducting therefrom Mortgagees expenses incurred in collecting - the same including but not limited to reasonable attorney's lees)to the reduction or the Obligations or to Ute payment of the restoration,repair,replacement or rebuilding of Mortgaged Property that is damaged or destroyed in such mariner as Mortgagee . • Shall determine and secondly to the reduction of the Obligations.Any application of insurance proceeds to pnnapal of the Obligations shall not extend or postpone the due date of the installments payable under the Obligations or change the amount of such installments. 7 - - --} g.Reimbursement of Mortgagee's Expenses.Mortgagors shall promptly reimburse Mortgagee upon demand tor all of Mortgagee's expenses incurred in connection with the collection of the insurance proceeds,including but not limited to reasonable attorneys'lees,and al such expensesby Mortgage. ys shall be additional amounts securednus Mort a e. 11.Inspection.Mortgagee.and its agents,shat have the rght at all reasonable times,to enter upon the Mortgaged Property for the purpose of inspecting the Mortgaged Properly or any part thereof.Mortgagee shall,however,have no duty to make such inspection. Any inspection of the Mortgaged Property by Mortgagee shall t e entirety lot its benefit and Mortgagors shall in no way rely or claim reliance thereon. ' • . .. 7:r. IV`1 iia: r622 __ N r t... j ,5 `v„ "u'w • co'r W .moi, .. a e i . E ii i t.. - li • 12.Protection of Mortgagee's Security.Subject to the rights of Mortgagors under paragraph 8 hereof,if Mortgagor's fail to r. perform any of the covenants and agreements contained in this Mortgage or if any action or proceeding is commenced which affects the Mortgaged Property or the interest of the Mortgagee therein,or the title thereto,then Mortgagee,at Mortgagee's option,may perforin • such covenants and agreements,defend against or investigate such action or proceeding,and take such other action as Mortgagee deems necessary to protect Mortgagee's interest.Any amounts or expenses disbursed or incurred by Mortgagee o good fah pursuant to this paragraph 12 with interest thereon at the rate of.1.6-1:10.%per annum,shall become an Obligation o1 Mortgagors secured by this i Mortgage.Such amounts advanced or disbursed by Mortgagee hereunder shall be immediately due and payable by Mortgagors unless • Mortgagors and Mortgagee agree in wining to other terms of repayment.Mortgagee shalt,at its option,be subrogated to the lien of any r mortgage or other lien discharged in whole or in part by the Obligations or by Mortgagee under the provisions hereof,and any such subrogation rights shall be additional and cumulative security for this Mortgage.Nothing contained in this paragraph shall require Mortgagee to incur any expense or do any acthereunder,and Mortgagee shall not be liable to Mortgagors for any damage or claims r arising out of action taken by Mortgagee pursuant to this paragraph. 13.Condemnation.Mortgagors shall give Mortgagee prompt notice of any action,actual or threatened,in condemnation or eminent domain and hereby assign,transfer and set over to Mortgagee the entire proceeds of any award or claim for-damages for all or I any part of the Mortgaged Property taken or damaged under the power of eminent domain or condemnation.Mortgageeis , hereby __7 authorized to intervene in any such action in the names of Mortgagors,to compromise and settle any such action or claim,and to collect and receive from the condemning authonties and give proper receipts and acquittances for such proceeds.My expenses incurred by Mortgagee in intervening in such action or compromising and settling such action or claim,or collecting such proceeds shall be reimbursed to Mortgagee first out of the proceeds.The remaining proceeds or any part thereof shall be applied to reduction of that portion of the Obligations then most remotely lobe paid,whether due or not.or to the restoration or repair of the Mortgaged Property,the choice of application to be solely at the discretion of Mortgagee. 14.Fixture Filing.From the date of its recording,this Mortgage shall be effective as a financing statement filed as a fixture filing with respect to the Personal Property and for this purpose the name and address of the debtor is the name and address of Mortgagors as set forth in paragraph 20 herein and the name and address of the secured party is the name and address of the Mortgagee as set forth in paragraph 20 herein. 15.Events of Default.Each of the following occurrences shall constitute an event of default hereunder("Event of Default"): a.Mortgagors shall default in the due observance or perlormance of or breach its agreement contained in paragraph 4 hereof or Shall default in the due observance or performance of or breach any other covenant,condition or agreement on its part to be observed or performed pursuant to the terms of this Mortgage. b.Mortgagors shall make an assignment tor the benefits al its creditors,or a petition shall be filed by or against Mortgagors under t the United Stales Bankruptcy Code or Mortgagors gas shall seek or consent to or acquiesce in the appointment of any trustee,receiver t or liquidator of a material part of its properties or of the Mor igaged Property or shall not,within thirty130)days after the appointment of a trustee,receiver or liquidator of any material part of its properties or of the Mortgaged Property,have such appointment vacated. - C.A judgment,writ Of warrant of attachment or execution,or similar process shalt be entered and became a lien on or be issued Or levied against the Mortgaged Property or any par thereof which is not released.vacated or fully bonded weber'thirty 130)days • atter its entry,issue or levy O.An event of default.however defined.shat occur under any other mortgage,assignment or other security document constituting a lien on the Mortgaged Property or any part thereof. e. • • • 16.Acceleration;Foreclosure.Upon tie occurrence of any Event of Default and at any time thereafter while such Event of Default exists,Mortgagee may.at its Option,exercise one or more of the following rights and remedies(and any other rights and remedies available to it): 1 a.Mortgagee may declare immediately due and payable all Obligations secured by this Mortgage,and the same shalt thereupon -..-be unmedratety due and payable.without further notice or demand. :---" _..._ .. _--_-.• . b.Mortgagee shall have and may exercise with respect to the Personal Property,all the nghts and remedies accorded upon default to a secured party under the Iowa Untorm Commercial Code.If notice to Mortgagors of intended disposition of such property is required by law in a particular instance,such notice shat be deemed commercially reasonable if given to Mortgagors at least ten(10)days prior to the date of intended disposition. . C.Mortgagee may(and is hereby authonzed and empowered to)foreclose this Mortgage in accordance with the law of the State of Iowa,and at any time alter the commencement of an action in foreclosure,or during the period of redemption,the court having junsdfiction of the case shall at the request of Mortgagee appoint a receiver to take immediate possession of the Mortgaged Property and of the Revenues and Income accruing therefrom,and to rent or Cutivate the same as he may deem best for the interest of all parties concerned,and such receiver shall be liable to account to Mortgagors only tor Me net profits,atter application of rents,issues and profits upon the costs and expenses of the receivership and foreclosure and upon the Obligations. 17.Redemption.II is agreed that if this Mortgage covers less than len(10)acres of land,and in the event of the foreclosure of This Mortgage and sale of the property by sheriff's sale In such foreclosure proceedings,the time of one year tor redemption from said sale provided by the statues of the State of Iowa shall be reduced to six(6)months provded the Mortgagee,in such action tiles an election to waive any deficiency judgment against Mortgagors which may anse out of the foreclosure proceedings;all to be consistent vfit,(he provisions of Chapter 628 of the Iowa Code.If the redemption period is so reduced,for the first three(3)months ate!sale such hight of - redemption shat be exclusive to the Mortgagee,and the time periods in Sections 628.5,628.15 and 628.16 of '-4a6ra Codesepilbe ,�.,",..n reduced to tour(4)months. . a r • Itis furtherO day ti agreed that the period of redemption atter a foreclosure of this Mortgage shat be reduced to si tyY®0)days if all of the .m . ri: three following contingencies develop:(1)The real estate is less than ten(t0)acres in size;(2)the Court finds affirrria8vefythat the said ...<zel . real estate has been abandoned by the owners and those persons personally liable under this Mortgage at the tune efsucdi foreclosure; u actionand(3)Mortgagee in such tiles an election Io waver any deficiency judgment against Mortgagors or their vrr .n interest in ,....,,...1f such action.If the redemption period is so reduced.Mortgagors or thew successors in interest or the owner shat have the exclusive ago) ;; ,( to redeem for the first thrty(30)days atter such sale,and the time provided for redemption by creditors as provdednSections 628.3; 628.15and 628.16ofthe Iowa Code shall bereduced toferry(40)days.Entryofappearance bypleading ordorJietentryb Or on behalf V. I of Mortgagors shall be a presumption that the property is not abandoned.My such redemption period shall be consistenj with all of Ire) provisions of Chapter 628 of the Iowa Code.This paragraph shat not be construed to limit or otherwise affect any puler fedemplidf; ' provisions contained in Chapter 628 of the Iowa Code. fJ r -` 113.Attorneys'Fees.Mor tgagors shall pay ondemand all costs and expenses incurred byMortgagee Inenforcrrng'orprotecting iJi rights and remedies hereunder,including,but not limited to,reasonable attorneys'fees and legal expenses. `-=`�_ 19.Forbearance not a Waiver,Rights and Remedies Cumulative.No delay by Mortgagee in exercising arty fight or remedy _„F+ provided herein or otherwise afforded by law or equity shall be deemed a waiversuch of or preclude the exercise of right or remedy,and • : -' nd waiver by Mortgagee of any particular provisions of this Mortgage shat be deemed effective unless in wntrg signed by Mortgagee. Al)such rights and remedies provided for herein or which Mortgagee or the holder of the Obligations may have otherwise-at law or in fix..-, , '-' " '- equity,shall be distinct,separate and cumulative and may be exercised concurrently,independently or successively t1 any order I 1, ;'a,.' - - whatsoever.and as often as the occasion therefor'arises. . /'moi - -� 4. O r , `f-.4.::: '.'i: • r ' 20.Notices.All notices required to be given hereunder shad be in writing and deemed given when personally delivered or deposited ' ' in the United States mail,postage prepaid,sent certified or registered,addressed as follows: a.It to Mortgagors,to: W. A..Gay and Company, Inc. • 1421 Waterfront Drive • Iowa CIty, IA 52240 b.It to Mortgagee.to: Iowa State Bank and Trust Company 'I P.O. Box 1700 I Iowa City, IA 52244-.• or to such other address or person as hereafter designated in writing by the applicable party in the manner provided in this paragraph for the giving of notices. • 21.Severability.In the event any portion of this Mortgage shad,for any reason,be held to be invalid,illegal or unenforceable in whole or in part,the remaining provisions shalt not be affected theretry and shad continue to be valid and enforceable and if,for any ' reason,a court finds thataprovision of this Mortgage is invalid.illegal.or unenlorceable as written.but that limiting such provision it ' any eg by. ^9 • would become valid.legal and enforceable then such provision shall be deemed to be written,construed and enforced as so limited. 22.Further Assurances.At any time and from time to time until payment in lull of the Obligations.Mortgagors will,at the requestot _ Mortgagee,promptly execute and deliver to Mortgagee sucfsadditionat instruments as may be reasoriabty required to further evidence the lien of this Mortgage and to further protect the security interest of Mortgagee with r, .pest to the Mortgaged Property including.but not limited to,additional security agreements,financing statements and continuation statements.Any expenses incurred by Mortgagee in connection with the recordation of any such instruments shad become additional Obligations of Mortgagors seared by this Mortgage. Such amounts shall be immediatey due and payable by Mortgagors to Mortgagee. 23.Successors and Assigns bound;Number;Gender;Agents;Captions.The rights,covenants and agreements contained herein shall be binding upon and inure to the benefit of the respective legal representatives,successors and assigns of the parties.Words and phrases contained herein.including acknowledgement hereof.shalt be construed as in the singular or plural number, ' and as masculine,feminine or neuter gender according to the contexts.The captions and headings of the paragraphs of this Mortgage are for convenience only and are not to be used to interpret or define'he provisions hereof. 24.Governing Law.This Mortgage shad be governed by and construed in accordance with the laws of the State of Iowa. 25.Release of Rights of Dower,Homestead and Distributive Share.Each of the undersigned hereby relinquishes all rights of dower,homestead and distributive share in and to the Mortgaged Properly and waives all nghts of exemption as to any of the Mortgaged Property. 26.Acknowledgement of Receipt of Copies of Debt Instrument.Mortgagors hereby acknowledge the receipt of a copy of this Mortgage together with a copy of each promissory note secured hereby. 27.Additional Provisions. • • u Dated: September B. 1• %�,! 4 P ` ( �a x 'dent .,. r"� . L 711 Tfroojy) �ayy Y e P est Mortgagors 1 .............._�...�..1....»�._�— Richard.A:-Gay. Sc- tafya�reasurer - " ---- POO TIORSOa4[MOT Or MME US! OP TM roan COMM youawyu STATE OF IOWA, Johnson COUNTY,ss: On this 8th day of September I 19 A6 before me,the undersigned, a Notary Public in and for the State of Iowa,personally appeared Michael E. Gay. Timothy F. Gav and Richard A Say ,to me personally known,who being by me duly sworn,did say that they are the President, Vice President and Secretary and Treasurer respectively, of the corporation executing the within and foregoing instrument to which this Is attached, that (ricasaat tiaXXIa etszpa'Jadird 1XeyXXxi4X(the seal affixed thereto is the seal of the) corporation; that said instrument was signed (and sealed)on behalf of the corporation by authority of its Board of Directors;and that Michael E. Gay, Timothy, J Gay Richard A. Gay i J and as officers acknowledged the execution of the foregoing irlffirment to lite the voluntary act and deed of the corporation,by it and by them voluntarily executed CC....77 STATE Notary Public in and1.7 el o[said State. Y IOWAA STATE ASSOCIATION Melte Form No,No.172 r6atto-wis..].rod see a.Coeoa lw.l This Printing May,1986 •t Jt Acknowledgment For in the case of corporations• • J«. . �'S?r r: 7:1 F,. • • • • 1 • EXHIBIT "E" PSI. $5°r- PARTIAL RELEASE OF MORTGAGE ON REAL ESTATE IN CONSIDERATION of One Dollar ($1.00) and other valuable consideration, the receipt whereof is hereby acknowledged, the Iowa State Bank & Trust Company, a corporation organized under the laws of the State of Iowa with its principal place of business in Iowa City,Johnson County,Iowa,hereby releases the follow- ing described real estate to-wit: Beginning at the Northwest Corner of Lot 1, of a Resubdivision of a portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the Fifth Principal Meridian, Iowa City, Iowa, according to the Plat recorded in Plat Book 130, at Page 116, of the Records of the Johnson County Recorder's Office; Thence N89°56'23"E, along the North Line of said Lot 1, 208.03 feet, to the Northeast Corner of said Lot 1; Thence Southeasterly, along the Easterly Line of said Lot 1, 26.77 feet, on a 502.67 foot Radius Curve, Concave Southwesterly, whose 26.77 foot Chord Bears S21°00'02"E; Thence 589'56'23"W, 217.60 feet, to a Point on the West Line of Said Lot 1; /ft. Thence NOO°03'39"W, along said West Line, 25.00 feet, to the Point of Beginning. Said Tract of Land Contains 5,324 square feet, more or less, and is subject to easements and restrictions of record. 11 44 0 FIT pn „0.- . ::._:/_// L1 -- “ a . , .- , , from the lien of a certain mortgage executed by W. A. Gay and Company, Inc. 90 HAR 29 PH 1: 15 to said Iowa State Bank&Trust Company, which said mortgage was dated September 8, 1989 _. ' ._ i(XP, and filed for record on September 12, 1989 and recorded in Book 1°81 y II Page. 5 ^' of the Mortgage Records in the office of the Recorder of Johnson County,'Iowa; the intention of this partial release being to release from the lien of said mortgage the real estate above described, but in no manner to release the balance or remainder of the real estate described in said mortgage from the lien thereof. DATED at Iowa City, Johnson County, Iowa, this 28th day of March , 19 90 IOWA STA E ANK & TRi sri•ANY, Iowa City, o / BY // , ___ __ ------•-. -- ___. . -- -----------K tL._Je� *ce - ATT : ' : 44 Crai• ,, . 'dt, Second Vice President aiX}iYAK CO t\F U 4\ATE SEAL STATE e F IOWA, COUNTY OF JOHNSON Ss: On this 28th day of March , 19 90 , before me, a Notary Public in and for Johnson County, Iowa, personally appeared Kent L. Jehle and Craig A. Schmidt , both to me personally known, who being by me duly sworn, Vice Second Vice President did say that they are the president andxr respectively of the Iowa State Bank & Trust Company, of Iowa City, Iowa,and that the seal affixed to this instrument is the seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors,and the said..._ Kent L. Jehle and Craig A. Schmidt Vice Second Vice President as president and cashier respectively of said corporation, acknowledged said instrument to be the voluntary act and deed of said Iowa State Bank& Trust Company,Iowa City, Iowa,by it voluntarily done and executed. WITNESS my hand and notarial seal this .._ 28th day of 4arch _ fj 19 90 . i `i . .' ohne Count-,Iowa ��°' 9 Notary c (SEATO . 4 KAY L9ffEs i..»-- EAT) MY COMAIIilly •Commicaioa eapir41 i �. / l - D c/a 1 r . EXHIBIT "F" 4.5 4i PARTIAL RELEASE OF MORTGAGE ON REAL ESTATE IN CONSIDERATION of One Dollar ($1.00) and other valuable consideration, the receipt whereof is hereby acknowledged, the Iowa State Bank & Trust Company, a corporation organized under the laws of the State of Iowa with its principal place of business in Iowa City,Johnson County,Iowa,hereby releases the follow- ing described real estate to-wit: Beginning at the Northwest Corner of Lot 1, of a Resubdivision of a portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the Fifth Principal Meridian, Iowa City, Iowa, according to the Plat , recorded in Plat Book 130, at Page 116, of the Records of the Johnson County Recorder's Office; Thence N89.56'23"E, along the North Line of said Lot 1, 208.03 feetsto the Northeast Corner of said Lot 1; Thence Southeasterly, along the Easterly Line of said Lot 1, 26.77 feet, on a 502.67 foot Radius Curve, Concave Southwesterly, whose 26.77 foot Chord Bears 521'00'02"E; Thence S89956'23"W, 217.60 feet, to a Point on the West Line of said Lot 1; Thence NOO°03139"W, along said West Line, 25.00 feet, to the Point of Beginning. Said Tract of Land Contains 5,324 square feet, more or less, and is subject to easements and restrictions of record. -- F,,CO ',di-111441 11./ / . .__ from the lien of a certain mortgage executed by W. A, Gay and Company, Inc. Su 1. 2 9 PH 1= 15 to said Iowa State Bank&Trust Company, which said mortgage was dated January 23, 1989 _-__. , r'+�, i'2,x,1.02 QL.. and filed for record on January 27, 1989 and recorded in Book 1044 at Page 4_ of the Mortgage Records in the office of the Recorder of Johnson County, Iowa; the intention of this partial release being to release from the lien of said mortgage the real estate above described, but in no manner to release the balance or remainder of the real estate described in said mortgage from the lien thereof. DATED at Iowa City, Johnson County, Iowa, this 28th day of March , 19 90 IOWA S A E BANK & TR;o. COMPANY, Iowa C. owa. BY / ...- .. ent L. Jeh'... ,r/ Vice President . ATTE Craig A. S hmidt, Second Vice President x$63( RPO STATE O�IOWA, CORPORATE SEAL COUNTY OF JOKNSON Ss: On this 28th day of March , 19 90 , before me, a Notary Public in and for Johnson County, Iowa, personally appeared Kent L. Jehle and Craig A. Schmidt , both to me personally known, who being by me duly sworn, Vice ice President did say that they are the president and 6 ir respectively of the Iowa State Bank &Trust Company, of Iowa City, Iowa,and that the seal affixed to this instrument is the seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors,and the said.............-- Kent L. JehleandA.Craig A Schmidt _....._......__�...._._...----------....._... ....._.....-------- ..---••----...__ . as president and sxgsa respectively o tsaid corporation, acknowledged said instrument to be the voluntary act and deed of said Iowa State Bank& Trust Company, Iowa City, Iowa,by it voluntarily done and executed. WITNESS my hand and notarial seal this ._2191.... day of .. Mar19 90 akiFh dahnsit:CO e----i- Iowa i KAY .Notary Bublie - - I.-- (SEAL) _G / My commission expires-2"`- C1 "Q//--.- °�SK 1114 sn of CO I EXHIBIT "G" IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY IOWA STATE BANK & TRUST COMPANY, ) Plaintiff, ) EQUITY NO. vs. ) W. A. GAY & COMPANY, INC. a/k/a ) AFFIDAVIT REGARDING W. A. GAY & COMPANY, MICHAEL E. GAY, ) ATTORNEY FEES TIMOTHY F. GAY, RICHARD A. GAY, and ) THE CITY OF IOWA CITY, IOWA, ) Defendants. ) STATE OF IOWA ) ss: COUNTY OF JOHNSON ) The undersigned, upon being first duly sworn, states that he is the attorney for Plaintiff in this matter and that there is not and has not been any agreement between the undersigned attorney and the attorney's client or any other person, expressed or implied, for any division or sharing of the fee to be taxed as attorney fees in favor of Plaintiff in this matter other than an agreement with a practicing attorney engaged with the attorney as an attorney in this cause. The undersigned further states than any fees taxed as attorney fPPs in this matter shall only be in favor of a regular practicing attorney and as compensation for services actually rendered in this action. DATED this is( day of , 1992. GREGG GEERDES '�' Subscribed and sworn to before me by Gregg Geerdes this _ day of 4% , 1992. ` UB Notary Public • EXHIBIT "H-1" TSB IOWA STATE BANK & TRUST COMPANY July 16, 1991 Michael E. Gay, President W.A. Gay and Company 1421 Water Front Drive P.O. Box 254 Iowa City, Iowa 52244 NOTICE AND DEMAND Re: Iowa State Bank & Trust Company Iowa City, Iowa Loan #5176524 Dear Mr. Gay: This is to inform you that, by reason of the default on the obliga- tion of a certain promissory note, executed by Michael E. Gay as President on April 26, 1990 in the amount of $75,000.00 payable to Iowa State Bank & Trust Company, the above referenced note is due and payable. There is now immediately due and payable to the Iowa State Bank & Trust Company at the above address, the- sum of $75,000.00 principal -- plus all accrued interest now owing and hereafter accruing at the present rate of eleven and 70/100 percent (11.70%) to date of receipt of payment in full at this office. DEMAND IS HEREBY MADE UPON YOU for payment within ten (10) days from the date of this letter of all said indebtedness, together with all interest thereon as above specified, plus any and all additional expenses which may be incurred in connection with the care and preservation of the property and the collection of said indebtedness. IOWA STATE BANK & TRUST COMPANY Iowa City, Iowa By: Jerry L. Vanni Vice President ..L c. crs P.O. Box 1700.Iowa City,IA 52244-1700 'Telephone 319-356-5800 FAX 319-356-5849 • EXHIBIT "H7.2" TSB &T IOWA STATE BANK & TRUST COMPANY July 16, 1991 Michael E. Gay, President W.A. Gay and Company 1421 Water Front Drive P.O. Box 254 Iowa City, Iowa 52244 • NOTICE AND DEMAND Re: Iowa State Bank & Trust Company Iowa City, Iowa Loan #5176557 Dear Mr. Gay: This is to inform you that, by reason of the default on the obliga- tion of a certain promissory note, executed by Michael E. Gay as President on April 26, 1990 in the amount of $540,000.00 payable to Iowa State Bank & Trust Company, the above referenced note is due and payable. There is now immediately due and payable to the Iowa State Bank & Trust Company at the above address, the sum of $538, 681.77 ' principal plus all accruel interest now owing and hereafter accruing at the present rate of nine percent (9%) to date of receipt of payment in full at this office. • DEMAND IS HEREBY MADE UPON YOU for payment within ten (10) days from the date of this letter of all said indebtedness, together with all interest thereon as above specified, plus any and all additional expenses which may be incurred in connection with the care and preservation of the property and the collection of said indebtedness. :4;-; IOWA STATE BANK & TRUST COMPANY .2 Iowa City, Iowa B Jerry L. Vanni CT Vice President r- Cr' P.O. 77 Box 1700,Iowa City,IA 52244-1700 Telephone 319-356-5800 FAX 319-356-5849 • • , EXHIBIT "H-3" TSB &T IOWA STATE BANK & TRUST COMPANY July 16, 1991 Richard A. Gay 1421 Water Front Drive P.O. Box 254 Iowa City, Iowa 52244 NOTICE AND DEMAND Re: Iowa State Bank & Trust Company Iowa City, Iowa Loan #5176557 Dear Mr. Gay: This is to inform you that, by reason of the default on the obliga- tion of a certain promissory note, executed by Richard A. Gay as an individual on April 26, 1990 in the amount of $540, 000.00 payable to Iowa State Bank & Trust Company, the above referenced note is due and payable. There is now immediately due and payable to the Iowa State Bank & Trust Company at the above address, the sum of $538, 681.77 -principal plus-all accrued interest now owing and hereafter accruing at the present rate of nine percent (9%) to date of receipt of payment in full at this office. DEMAND IS HEREBY MADE UPON YOU for payment within ten (10) days from the date of this letter of all said indebtedness, together with all interest thereon as above specified, plus any and all additional expenses which may be incurred in connection with the care and preservation of the property and the collectiozof d indebtedness. c,) IOWA STATE BANK & TRUST COMPANY n-C Iowa City, Iowa ;<r— -17 '=w By: Jerry L. Vanni Vice President N on 142. ist P.O. Box 1700,Iowa City,IA 52244-1700 ,Tlephone 319-356.5800 '. *. FAX 319-356-5849 EXHIBIT "H-4" TSB 1.&T IOWA STATE BANK & TRUST COMPANY July 16, 1991 Richard A. Gay 1421 Water Front Drive P.O. Box 254 Iowa City, Iowa 52244 NOTICE AND DEMAND Re: Iowa State Bank & Trust Company Iowa City, Iowa Loan 45176524 Dear Mr. Gay: This is to inform you that, by reason of the default on the obliga- tion of a certain promissory note, executed by Richard A. Gay as an individual on April 26, 1990 in the amount of $75, 000.00 payable to Iowa State Bank & Trust Company, the above referenced note is due and payable. There is now immediately due and payable to the Iowa State Bank & Trust Company at the above address, the sum of $75, 000.00 principal - plus all a' crued interest now owing and hereafter accruing at the present rate of eleven and 70/100 percent (11.70%) to date of receipt of payment in full at this office. DEMAND IS HEREBY MADE UPON YOU for payment within ten (10) days from the date of this letter of all said indebtedness, together with all interest thereon as above specified, plus any and all additional expenses which may be incurred in connection with the care and preservation of the property and the collection of said indebtedness. IOWA STATE BANK & TRUST COMPANY p tv Iowa City, Iowa )>=.4 ` J By: 9-G ON , Jerry L. Vanni "fin :Cr Vice President m Ce? N ON P.O. Box 1700, Iowa City, IA 52244-1700 Telephone 319-356-5800 FAX 319-356-5849 y EXHIBIT "11-5" TSB &T IOWA STATE BANK & TRUST COMPANY July 16, 1991 Timothy F. Gay 1421 Water Front Drive P.O. Box 254 Iowa City, Iowa 52244 NOTICE AND DEMAND Re: Iowa State Bank & Trust Company Iowa City, Iowa Loan #5176557 Dear Mr. Gay: This is to inform you that, by reason of the default on the obliga- tion of a certain promissory note, executed by Timothy F. Gay as an individual on April 26, 1990 in the amount of $540, 000.00 payable to Iowa State Bank & Trust Company, the above referenced note is due and payable. There is now immediately due and payable to the Iowa State Bank & Trust Company at the above address, the sum of $538,681.77 principal plus all accrued interest now owing_ and hereafter accruing at the present rate of nine percent (9%) to date of receipt of payment in full at this office. DEMAND IS HEREBY MADE UPON YOU for payment within ten (10) days from the date of this letter of all said indebtedness, together with all interest thereon as above specified, plus any and all additional expenses which may be incurred in connection with the care and preservation of the property and the collection of said indebtedness. IOWA STATE BANK & TRUST COMPANY Iowa City, Iowa By: Jerry L. Vanni Vice President N Ca C.Y. C7'1 rn O 70 _' P.O.Box 1700, Iowa City,IA 52244-1700 ,Telephone 319-356-5800 p1 FAX 319-356-5849 • - EXHIBIT "11-6" TSB • .18al IOWA STATE BANK & TRUST COMPANY July 16, 1991 Timothy F. Gay 1421 Water Front Drive P.O. Box 254 Iowa City, Iowa 52244 NOTICE AND DEMAND Re: Iowa State Bank & Trust Company Iowa City, Iowa Loan #5176524 Dear Mr. Gay: This is to inform you that, by reason of the default on the obliga- tion of a certain promissory note, executed by Timothy F. Gay as an individual on April 26, 1990 in the amount of $75,000.00 payable to Iowa State Bank & Trust Company, the above referenced note is due and payable. There is now immediately due and payable to the Iowa State Bank & Trust Company at the above address, the sum of $75,000.00 principal plus all accrued interest now owing and hereafter accruing at the __ present rate of-eleven and 70/100 percent (11.70%) to date of receipt of payment in full at this office. DEMAND IS HEREBY MADE UPON YOU for payment within ten (10) days from the date of this letter of all said indebtedness, together with all interest thereon as above specified, plus any and all additional expenses which may be incurred in connection with the care and preservation of the property and the collection of said indebtedness. IOWA STATE BANK & TRUST COMPANY Iowa City, Iowa By: 1i Jerry L. Vanni Q �. Vice President i,� --1 C) .t! r- w,. 71 o ca Ft to cry P.O. Box 1700.Iowa City, IA 52244-1700 ,Telephone 319-356-5800 i', . FAX 319-356-5849 ` EXHIBIT "H-7" �-SB • ' &T; IOWA STATE BANK & TRUST COMPANY July 16, 1991 Michael E. Gay 1421 Water Front Drive Iowa City, Iowa 52244 NOTICE AND DEMAND Re: Iowa State Bank & Trust Company Iowa City, Iowa Loan #5176557 Dear Mr. Gay: This is to inform you that, by reason of the default on the obliga- tion of a certain promissory note, executed by Michael E. Gay as an individual on April 26, 1990 in the amount of $540,000.00 payable to Iowa State Bank & Trust Company, the above referenced note is due and payable. There is now immediately due and payable to the Iowa State Bank & Trust Company at the above address, the sum of $538, 681.77 principal plus all accrued interest now owing and hereafter a -cruing at the_prnsent rate of nine percent (9%) to date of receipt of payment in full at this office. DEMAND IS HEREBY MADE UPON YOU for payment within ten (10) days from the date of this letter of all said indebtedness, together with all interest thereon as above specified, plus any and all additional expenses which may be incurred in connection with the care and preservation of the property and the collection of said indebtedness. IOWA STATE BANK & TRUST COMPANY Iowa City, Iowa c.I'7 By: ry Jerry L. Vanni a � ' Vice President c)-gym. 0, rrh c..l P.O.Box 1700,Iowa City,IA 52244-1700 Telephone 319-356-5800 FAX 319-356-5849 EXHIBIT "H-8" TSB T IOWA STATE BANK & TRUST COMPANY July 16, 1991 Michael E. Gay 1421 Water Front Drive P.O. Box 254 Iowa City, Iowa 52244 NOTICE AND DEMAND Re: Iowa State Bank & Trust Company Iowa City, Iowa Loan #5176524 Dear Mr. Gay: This is to inform you that, by reason of the default on the obliga- tion of a certain promissory note, executed by Michael E. Gay as an individual on April 26, 1990 in the amount of $75, 000.00 payable to Iowa State Bank & Trust Company, the above referenced note is due and payable. There is now immediately due and payable to the Iowa State Bank & Trust Company at the above address, the sum of $75,000.00 principal plus all accrued interest now owing and here.:fter accruing-at-the - -----= present rate of eleven and 70/100 percent (11.70%) to date of receipt of payment in full at this office. DEMAND IS HEREBY MADE UPON YOU for payment within ten (10) days from the date of this letter of all said indebtedness, together with all interest thereon as above specified, plus any and all additional expenses which may be incurred in connection with the care and preservation of the property and the collection of said indebtedness. IOWA STATE BANK & TRUST COMPANY Iowa City, Iowa By: r`' Jerry L. Vanni C� o Vice President ---a W G"' P.O.Box 1700.Iowa City,IA 52244-1700 Telephone 319-356-5800 FAX 319-356-5849 4 -- EXHIBIT "I" Date. (July 11 ,19 89 I - BUSINESS SECURITY AGREEMENT I I.PARTIES-COLLATERAL-The undersigned Debtor thereinafter conectivelY ith Co-Debtor it any,called"Debtor�,jenny and severally, for value received herebygrahl.to IOWA STATE BANK&TRUST COMPANY,Iowa City,Iowa 53240 (hereinafter Called"Bank's a security interest under the Uniform Commercial Code of Iowa In the following described collateral: A. ant...en ne Semi te Celt in w u,.er v,,. a.w acres. et encu teem. Cle reel he ra... 1 1 -• 8.And in addition thereto a security inretest in the?allowing described Collateral It additional space is needed,see at cached schedule and check here 0): • • ' FIRST security on all accounts, contract rights, general Intangibles, and the proceeds arising therefrom: furniture. If fixtures, inventory, machinery and equipment now owned and hereafter acquired by the debtor including all products of,- additions to and replacements thereof and all accessories, t accessions, parts and equipment now or hereafter affixed I thereto or used in connection therewith and the proceeds {,.. • of all property set forth above. PV ' 0-1 a cr,. • • B C.And as additional collateral all additions to and replacements of all such collateral.and all accessories.accessrog$,.peels Cud egljla; 'ai.$y Meet now or nereafter allured thereto Or used in connection Inerewuh and the proceeds from all Such Collateral(including,.negollable or nettle negotiable warehouse receipts now or hereafter issues lar storage 01 C011aterall.If INa Agreement includes li.hores,it is ted-will be 10CafeN on In.lollowmg described property U7 SFT Ar'AC9 EILLEGAL_DESf:AIPTT(IN County.Iowa.(II adanr0nal space is needed,see attached schedule and Cheek her,LA.)II other than Debtor.the record owner Of the land described is — All collateral described in Suboaragraphs A.B a C above is referred t0 in INS Agreement Collecllrely as the"Collateral,"and snail include all such Collateral wherever located and whether now owned Or nereafter acquired. 2.REPRESENTATIONS AND WARRANTIES OF DEBTOR-Debtor represents and warrants That the estenSiOn 01 Credit secured by this Agreement is for business or commercial purposes.Or is t0 an organization,and is theeelore an memo,transaction under the Federal TrutNin- Lending Act and not sublect In the Iowa Consumer Credit fr. Code.snail be deemed continuously to...resent and warrant that la)Debtor is the .. - _ _ _ __ _ Owner 01 the Collateral frOI all security interests Other Vm Cor Other : hranCes.Omer than the security interest created Oy this Agreement and -- --- (b)Debtor is authorized to enter into this Agreement:(c)Debtor is engaged in business operations and Deblois business is earned on at the adores.specified below;and(dl The Colialeral is and win oe located al the address specified below,or.it not.at —1421aaterfront_Oce.-20wa_Cf.ty,_1A32248 3.OBLIGATIONS SECURED-This Agreement is continuing until specifically terminated in writing by Bank and the security interest granted herein is given to secure the performance on the covenants and agreements hevem set lore,and the payment of the indebtedness evidenced by the promissory notetsi Or other instruments executed by Debtor to the order 01 Bank and any Other indebtedness of Debtor to Bonk, whether now existing or nereal ter incurred,of every kind and charts ler,direct or indirect,whether as maker,endorser,guarantor or surety and whether Such indebtedness is from time to time reduced and(nereafter increased or entirely eatinguisned and lherealler ieincurred,in. eluding,without limitation,any sums advanced by Bank in the performance of Nolo.•'ligations hereunder,any license lees,insurance, and repair,with respect to the Collateral,and any attorney lees and Other charges and esoenses incurred in the collection of the obligations secured hereby;provided.however,that indebtedness incurred in a"Consumer Credit Transaction"as mel inert in the Iowa Consumer Credit Code shall not be Secured by this Agreement. A ACCELERATION OF OBLIGATIONS AND DEFAULT-(loon the occurrence OI any at the following events.Bank may,at its option,with or without notice,declare the*note unpaid balance 01 any Obligation Secured by this Agreement immediately due and payable and may declare Debtor to be in default under this Agreement.said events being as tallows lal Debtor tails to make timely payments on any obligation secured hereby;ihi Debtor fails to perform any other convenant,promise or condition agreed lobe by Debtor performed in any paragraph of this Agree. meet W any Other note,obligation or agreement with In.Bank:le)Debtor Oe OebrOe's agent gave or turnrshed to Bank a laise statement, representation or warranty in a material respect(d)Debtor dies or tails in nosiness:or it there occurs the dissolution or termination oh the en lslence of Debtor's business;or it any proceedings under any bankruplcy Or insolvency law by or against the Debtor or by or against any guarantor or surety hereon for the Debtor is commenced:or it the Debtor shall make an assignment for the benefit of Creditors:(el occurrence of loss,Melt,damage or destruction of the Collateral not covered by adequate insurance conlarning a loss payable clause Ida the protection of Bank:Il)Bank believes itself insecure. 5.THIS SECURITY AGREEMENT SPECIFICALLY INCLUDES ALL THE ADDITIONAL PROVISIONS SET FORTH ON THE THE REVERSE SIDE HEREOF.THE SAME BEING INCORPORATED HEREIN BY REFERENCE. Debtor authorizes Secured party to file 8 Copy 01 INS Security Agreement wilt apcenphate authorities at any tine alter signature by the Debtor on a!inaMSrig slatement 10 perfect the secured party.Security agreement.Debtor acknowledges receipt Of a Copy Of The instrument. In witness whereof,,,aaadm Debtor has executedivarr 5Iho Agreement on IM date first above written. ADfft SS JDEBT 1,p a N. A. C Y AND 1•A INDI i�HT'.'l�if xe t,[.lC�-q_'t�fl^loth . Ga tea .cor. .t,..P. ,. P.D. Box 254 Michael t 'Gay y By' •ic ae ._ay re.' Iuse.ne we Sr*.oere Aare.Owl IS.... , �•__._ Iara City, IA 52244 9xivwr - •J TI. by F ayy"Y a • esie sec.set • r aa. • • I Ide."°. Richard A. Ga9""" 72..,.... m.co.. s's.e'est Richard A. Gay, Secretary and 7Feesurer ' carr aa_name.So..,bawi.rr13 w..a....0i.. Soe ,uo, -Ceerne.we.ivIND-ami.en..eo.kw.Om Man. Ir•ORIGINAL -OFFICE�.t •• tf) et C...1 •• --- to,6.-2.:• ........ 1•43 . .• • ...... ....i>PP • - . ' . •,.•1 r; .• C:1-" . .0 t--- • .' . .• . . .• • " ''..) 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"'".-'' ‘i."' .'...i.....N.' •. . . • ' NOV,Z 1.5 3 14.,;./..if 6 ,,s., ..1 LI r':S. • -, ..„.1 • • _ - . .. 4,, 00 •10 ' Lot 1 and Outlot A. all in the Resubdivision of a Portion of goverment Lot 4 of Section 15, Township 79 North, Range 6 West of the 5th P.N., Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 30, page 116, Mat Records of Johnson County, Iowa, excepting the following portion of Outlot A: Commencing at the southerly most point of said Outlot A; thence north 00.21'22' west 175.11 feet along the easterly boundary of said Outlot A; thence westerly, parallel to the northerly boundary of said Outlot A to the westerly boundary of said Cutlot A; thence southerly along the westerly boundary of said Outlet A to the point of beginning. • E • 4z4. N `' EXHIBIT "J—ltt ,,, • • This FINANCING STATEMENT is presented to THE FILING OFFICER for filing pursuant to the Uniform Commercial Code: 1 Debtor(s) (Last Name First) and addresses) 2 Secured Party(les) and address(es) 3 For Filing Officer (Date,Time,Numt)er, id:A. GAY AND CCdiPAHY, Inc. :r�, t _ and Flltng Officer). P.O. Box 254 B3WA QTS BANK& 4C Iowa City, IA 52244 • COMPANY Iowa Cab.Iowa 52244 PO Bose 1700 utt f= il1 10 �f et, •_. h:c r nr . :zoo.' a74i_ _ 4 This Financing Statement covers the following types - 5 Name and Address of Assignee (or items)of property: FIRST security on all accounts, contract rights, general intangibles, and the proceeds arising therefrom: furnitur , — fixtures, inventpty, machinery and equipment now creed and hereafter acquired by the debtor including"a1I"pr nets of < additions to and replacements thereof and all accessories, accessions, parts and equipment now or hereafter affixed thereto or.used in connection therewith and the proceeds of all property set forth above. , 6 Description of Real Estate(see instruction 4). . Lot 1 and Cutlot A, all in the Resubdivision of a Portion of Government Lot 4 of Section 15, Township 79 North, Range 6 West of the 5th P.M., Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 30, page 116, Plat Records of Johnson County, Iota, excepting the following portion of Cutlet A: Commencing at the iuut eri most1 Y point of said Outlet. A; thence north 00'21,22' west 175.11 feet along the [I easterly boundary of said Gutlot A; thence t)esterly, parallel to the northerly boundary of said Outlet A R to the +msterly boundary cksaid Outlot A; thence southerly along the westerlLy boundary of said Cutlet A to the point of beginning, c o, v[ -C-"a , st ? I 8-O Products of Collateral Debtor tranemittliig utility IOWA STATE RS."Sll. AND TRUST CCN,PA 3�/9 are CovBred )aa defin ,UCC s 105(1) er Stgrtatureof ,!' " " , 9nY.et��• L!t/Yfd C < 1 /r Signature of Debtor '`` _l 1.ithae Gay, President i.t .}erry 1 Vanni. ial ,l Sat Officer BY: c:TX r paq S r- Type or Print mit names (Iowa Code 3352) tignature of Debto� r (Secured party or other appropriate signature may be substituted l Timothy F bay, Y1Ce e5i tient ft for debtors)signature only in cases covered by UCC 9-402(2),and °i Drtn names (Iowa C 3352) . 9-408,ancrMust be identified as suck when used.) i TERMINATION STATEMENT: This Statement of Termination of Financing is presented to a Filing Officer for filing pursuant to the Uniform Commercial Code. The Secured PartytheoParty no longer claims a security interest under the financing No fee is required for filing a termination statement. y ... statement bearing the file number shown above. Date 19 . . i By • I . - - (Signature of Secured Party or Assignee of Record.Not Valid Unless Signed) i i Form Approved(7-1-81)By:MARY JANE O'DELL.Secretary of State 3. FILING OFFICER COPY — EVIDENCE OF FILING V . y a• f EXHIBIT "J-2" . This FINANCING STATEMENT is presented to THE FILING OFFICER for filing for record in the real estate records: 1 Debter(s)(Wt Name First)and addressles) -12 Secured Party(ies)and addreseles) 3 nti•Filing Meer(Date,Time,Number.and Filing IL A. GAY AND COMPANY, I1 C. IOIIA STATE BANK AHD TRUST COMPANY CC P.O. BOX 254 IOWA CITY, IOiiA 5224 ,:.i.1 i i i:^,_ V eJ Iowa City, IA 52243C "�/;�F. 1700 l PO Box V V��/) .. E.3,12. I G fi>i is t;;j - . • .%w 203n 4 This Financing Statement coven the following types or items of property: .. . 5 Name and Addreae of Amigo. •...T, .-. 9 • FIRST security on all accounts, contract rights, general - -, I intangibles, and the proceeds arising -therefrom: furniture, fixtures, inventory, machinery and equipment now owned and - - hereafter acquired by the debtor including all products of, a. additif+na to and replacements thereof and all accessories, . accessions, parts and'equipment now or hereafter affixed thereto or used in connection therewith and the proceeds of all property set forth above. • . 6 Check appropriate box(es).The above goods are or are to become n:tures on❑The above timber is standing on 0 The above mineral,or the like(including oil and • ( gas)or mineral accounts will be financed at the wellbeed or minehead located ons(Describe real estate below.See instruction#4): ( Lot 1 and Outlot A, all in the Resubdivision of a Portion of Goverment Lot 4 of Section 15, Township 79 forth, Rang- I-- 6 Hest of the 5th P.K., Addition to the City of Iola City, Ioua, according to the plat thereof recorded In Book 30, t page 115, Plat Records of Johnson County, Iowa. excepting the following portion of Outlot A: i I i Cocmencing at the southerly most point of said Outlot A; thence north 00521:22= west 175.11 feet ales tilt ca_iarly boundary of slid Gutlot A; thence westerly, parallel to the northerly boundary of said Outlet A tof`te sesterly boundary of said Outlot A: thence southerly along the westerly boundary of said Outlot A ifo';t?eypo of c•-'°'� 1 beginning. - .-•• _ �.l • - ------__ - --- --a i V Ga • _1 I . o E- _ i _ .The name of a record owner is If is, G.Y AND criippr,fy InC {- 7 4 Products of collateral are covered. i Z ,1irge7,,,,,,,t i 8 SG • ' • ! Signature of Debtor n /,d _. ,gnatnrsaf Nisei' Gay, dent � Qic�3rd A Gay. 5ec>•etary}md Treasurer . BY: �A.NT /i 4+) I1"flTV 8Y• /�� s� !lir / . Type or Priat all names hews Code 335.2))) Type or Print all names(Iowa Code 335.2) ~ imaybe F Tice President { chard i4i Secured party or a propniate rs may be s rte or debtensr signature only in cases covered by UCC 9-402121,9.608 and 11105.an- eat be iden�(ied when substituted. •' �0 prf s trot' ren to a F''n glutei for filing for record pursuant t the Uniform Commercial Code.The Secured Party certifies that a.security :.7 t; ist lDd N_-seyA��5..-•,• ri..� ,—•rte number shown above.No fee ie required for filing a termination statement - 911 • INBY: .:j- Of-1'). .7..• ICS STALE 3Ar. YI, .e a : TiraOh oy F. Gay_ _.- ��- .. FDate of Secured Party or Assignee of Record Not Valid Unless Signed.) 4..._ . ...Form ApprotlU -21 WBy E BAXTER Secretary of State � _ •a FIUNO OFFICER COPY—EVIDENCE OF HUNG • t - END OF CASE FILE BEFORE THE IOWA CITY HUMAN RIGHTS COMMISSION RANDY F. JOHNSON, ) Complainant, ) Case No. E/SOR 8-29-8802 vs. ) Dia No. : 90ICHRC-1 HOLIDAY INN, DAN FUNKE, ) COMPLAINANT'S APPLICATION FOR and TONY WENDT, ) AWARD OF ATTORNEY FEES Respondents. ) COMES NOW the Complainant, and in support of his Application for Award of Attorney Fees, states: 1. In the Findings of Fact, Conclusions of Law, Decision and Order of Administrative Law Judge Jenny J. Flaherty, dated February 19, 1992, Judge Flaherty held that the Complainant is entitled to an award of reasonable attorney's fees. 2. Said Findings, Conclusions, and Order were adopted by the Iowa City Human Rights Commission as its own Findings of Fact, Conclusions of Law, Decision and Order on March 2, 1992. 3 . The award of reasonable attorney fees is authorized by §601A. 15 (8) (a) (8 ) , Code of Iowa, and by §18-§40(e) (8) and §18- §43(a) , Code of Ordinances of the City of Iowa City, Iowa. 4. The undersigned attorney represented the Complainant in these proceedings as an agent of the City Attorney pursuant to §18-§42 (c) , Code of Ordinances of the City of Iowa City, Iowa. 5 . The Iowa Supreme Court has held that Iowa Code §601A. 15 (8) (a) (8) "clearly anticipates that when a claimant prevails the attorney fees will be paid by the losing iitrtynot by the claimant or the Commission. " Hamer v. Iowa Civ,rJ Rf'hts4 d Commission, 472 N.W.2d 259 ( Iowa 1991) . :<►"` �„ � ` q - 2 - 6. Attached hereto and incorporated herein as Exhibit "A" is an itemization of attorney's fees and expenses incurred on behalf of the Complainant and paid for by the City of Iowa City in this case, as of March 2, 1992. WHEREFORE, Complainant requests that this Application for Award of Attorney Fees be set for hearing and that upon such hearing, the Commission grant Complainant's application for award of reasonable attorney's fees to be paid to the City of Iowa City by the Respondents. AM _' 1 L, i avi o�-E. s ro n aye , H- ek Brown B em= r B ' ldi g 129 East Was ington Street Iowa City, a 52240 (319) 337-9606 ATTORNEY FOR COMPLAINANT Original: Filed. Copy To: Emmit J. George, Jr. 500 South Dubuque Street P. O. Box 3090 Iowa City, IA 52244 %.D N Richard Zimmermann o =,. 1902 Broadway - P. O. Box 3400 n,,< Iowa City, Iowa 52244 ;<r' a Holiday Inn of Iowa City ._,m c/o General Manager S''Va a+nw-'' 210 South Dubuque Street re. harecY "ea '""" Iowa City, Iowa 52240 d me xwrnrl=of rsead of.r tMr a �I..eta 9fltGt.d C eesia wrwbMr�p tM..ms Linda Newman Gentry rhMwMrro�p°d_ pr eM ph.dlnpo d r�oerd h.rNn.w ith City Attorney pak.ge fully paidand by&working"w c,wtop.In United Stews Pool O111, Civic Center d°pa.ltwy rn •• Iow on fM dr- 410 East Washington Street ds d u ' �A�• �I Iowa City, Iowa 52240 � ITEMIZATION OF ATTORNEYS FEES AND COSTS ADVANCED RE: JOHNSON v. HOLIDAY INN, ET AL. DAVID E. BROWN: 03/19/90: Telephone conference with Alice Harris regarding preparation for public hearing; Conference with Alice Harris regarding review of file. . 3 hrs. 03/27/90: Review of investigator's file. . 6 hrs. 04/12/90: Telephone conference with Randy Johnson regarding Public Hearing. . 3 hrs. 04/20/90: Preparation of transmittal slip; Dictation of letter to John Terrell regarding appointment of hearing officer. .2 hrs. 05/04/90: Review of file regarding preparation for hearing; Dictation of letter to complainant regarding public hearing; Dictation of letter to Alice Harris regarding amending complaint. 2 .2 hrs. 05/07/90: Telephone conference with Alice Harris regarding Johnson Complaint and probable cause report. . 3 hrs. - n 05/14/90: Review of Holiday Inn file. 1. 2 hrs . A.:,4 =c C`) I 05/15/90: Telephone conference with --+c`) irm Amy Couch regarding hearing =<ir- Til date and amendment to complaint; Telephone '"` o conference with Randy Johnson regarding amendment to complaint; Review of witness statements; Dictation of Motion to Amend Complaint. 1. 5 hrs. - 2 - 05/16/90: Telephone conference with Alice Harris regarding public hearing. . 2 hrs . 05/21/90: Review of Notice of Public Hearing; Dictation of letter to Randy Johnson regarding preparation for public hearing. . 3 hrs . 05/21/90: Conference with Randy Johnson regarding preparation for hearing; Dictation of letter to Duane Rohovit regarding Job Service Appeal; Dictation of letter to Randy Johnson regarding Damages Claimed. 2 .2 hrs. 05/22/90: Dictation of letter to Marshall, Dunbar, Williams, and Randy regarding witness testimony; Dictation of letter to Randy Johnson regarding locating witnesses; Telephone conference with Alice Harris regarding subpoenas. 1.2 hrs. 05/26/90: Telephone conference with Telementry Williams and Rick Campbell regarding discrimination complaint. .4 hrs. 05/31/90: Telephone conference with Ed Dunbar regarding Judy Dunbar's location; Dictation of letter to Martin Diaz regarding Judy Dunbar. . 3 hrs. 06/06/90: Review of Job Service file regarding witness testimony. . 6 hrs. 06/09/90: Dictation of letter to Randy `o Johnson regarding preparation ry for hearing. . 2 hrs t. c CD a -<r_., v- u c cD - 3 - 06/11/90: Review of Order Granting Amendment to Complaint; Dictation of letter to Randy Johnson regarding order. . 3 hrs . 06/12/90: Review of Respondent's Request to Intervene. .2 hrs. 06/13/90: Review of Job Service hearing file. . 5 hrs. 06/26/90: Review of order by Hearing Officer Couch regarding intervention request. . 1 hrs. 07/05/90: Dictation of Subpoena Forms. . 3 hrs. 07/09/90: Telephone conference with Alice Harris regarding signing of subpoenas by Chairperson; Review and preparation of Subpoena Forms for signing. . 5 hrs. 07/13/90: Preparation of Subpoenas for service upon witnesses; Dictation of letter to Harris regarding service of Subpoenas; Telephone conference with Judy Dunbar regarding testimony. . 8 hrs. 08/03/90: Telephone conference with Rick Autry regarding State Civil Rights Commission ' -0 711 File. Conference with Randy -t t^=70 Johnson regarding preparation C)" � a' for hearingTelephone �B`' conference with Emmit George r7 °.: regarding deposition of Tony CD3?. E5 Wendt. Telephone conference with Alice Harris regarding :7- subpoenas. subpoenas. Dictation of letter to Alice Harris regarding subpoenas for Ray and Dunbar. 2 . 3 hrs. 08/09/90: Review State Civil Rights Commission file. Review Job Service file. 1. 8 hrs. - 4 - 08/10/90: Conference with Randy Johnson regarding preparation for hearing. Preparation for deposition of Tony Wendt. Telephone deposition of Tony Wendt. 2 .0 hrs. 08/13/90: Telephonic deposition of Michelle Godfrey; Review of taped interview of Ron Nott; Conference with client regarding preparation for hearing; Conference with Alice Harris regarding copies from file. 2 . 6 hrs. 08/14/90: Conference with Randy Johnson regarding preparation for hearing; Telephone conference with Alice Harris regarding (,o testimony; Conference with o Emmit George regarding •ca ' review of City file; Preparation of damages ..a ° exhibit; Review of City7.��-• �„ J:- file and State Civil rn Rights File. 6.4 hrs o S o ' CD 08/15/90: Public hearing at Civic Center. 7.0 hrs. 08/16/90: Conference with Lisa Oxley regarding research for brief. . 5 hrs. 08/17/90: Telephone conference with Emmit George regarding possible stay of proceedings because of bankruptcy. .2 hrs. 09/06/90: Conference with Lisa Oxley regarding brief. .2 hrs. 09/11/90: Revision of Brief; Conference with Lisa Oxley regarding brief. . 6 hrs. - 5 - 09/18/90: Review of Respondent's application for extension of time; Dictation of letters to Randy Johnson and Alice Harris regarding application for extension. . 3 hrs. 09/26/90: Telephone conference with Amy Couch and Emmit George regarding Stay of Proceedings because of Bankruptcy action. . 3 hrs. 10/04/90: Review of order granting extension of time; Dictation of letters to Johnson and Harris regarding order. .4 hrs. 11/13/90: Review of Respondent's Motion to Stay. . 1 hrs . 11/20/90: Telephone conference with Amy Couch and Emmit George regarding filing Motion to Lift Bankruptcy Stay. .4 hrs. 11/21/90: Review of Bankruptcy Law regarding Stay; Conference with Lisa Oxley regarding filing Pleading to Clarify CDt`N) whether this discrimination ' w c...3 case is subject to Stay in _ V Bankruptcy Court. . 5 hrs.C) 11/27/90: Review of order by Law Judge Couch; Dictation 6 " of letter to Johnson �"� regarding order. .2 hrs.'' 11/30/90: Research bankruptcy issue at Law School. 2 .0 hrs. 12/19/90: Telephone call to Mike Meyer, Attorney for Holiday Inn/Dr. Johnson; Telephone call from Mike Meyer regarding Automatic Stay on Judicial Proceedings. .2 hrs. - 6 - 12/26/90: Telephone call to Mike Meyer, Attorney for Dr. Johnson, Holiday Inn Bankruptcy, regarding employment discrimination case as exception to Automatic Stay. .2 hrs. 01/08/91: Conference with Lisa Oxley regarding Motion for Relief from Bankruptcy Stay. .3 hrs. 01/18/91: Telephone conference with Randy Johnson regarding Bankruptcy Stay. .2 hrs. 01/31/91: Draft Motion for Relief of Automatic Stay. . 6 hrs. 04/01/91: Conference with Randy Johnson regarding status of discrimination case against Holiday Inn. . 3 hrs. 05/17/91: Telephone conference with Randy Johnson regarding status of case. .2 hrs. 05/20/91 : Telephone conference with Mike Meyer regarding status of bankruptcy. .2 hrs. 06/25/91: Conference with Oxley regarding Motion for Relief from Stay. . 3 hrs. 06/28/91: Telephone conference with Amy Couch regarding status of case and bankruptcy issue; Telephone conference with Alice Harris regarding status of N case; Dictation of lettertEc, .371 a�• to Couch regarding bankruptcy issue. . 4 hrs. C)-< i °r"1"*, —9C? 07/02/91: Conference with Oxley � ". regarding filing Motion for o "-, Relief from Stay; Dictation of letter to Johnson regarding 1' cm.. filing Motion; Conference with Joe Holland regarding Motion for Relief from Stay. . 8 hrs . - 7 - 07/03/91: Conference with Randy Johnson regarding bankruptcy action. . 7 hrs . 07/11/91: Revision of Memorandum Brief in Support of Motion to Proceed to Judgment; Dictation of Motion to Proceed to Judgment; Dictation of letter to Couch regarding Bankruptcy Stay. . 7 hrs. 07/29/91 : Review of letter from Administrative Law Judge Couch regarding Motion to Proceed to Judgment; Dictation of letter to Johnson regarding status of case. . 3 hrs . 07/30/91 : Review of correspondence from Couch to George and Larson regarding Motion to Proceed to Judgment. .2 hrs. 08/01/91 : Review of Zimmerman letter regarding Holiday Inn not a legal entity. .2 hrs. 08/06/91 : Review of letter from Zimmerman to Couch regarding Holiday Inn. .2 hrs. 08/12/91 : Dictation of letter to Gentry regarding Motion to Proceed to Judgment. .2 hrs. 08/26/91 : Conference with Randy Johnson regarding status of case; Dictation of letter to Couch regarding legal status of Holiday ti Inn. . 6 hrs. 09/04/91 : Two telephone conferences with Administrative Law Judge Flaherty regarding ' rrn status of case; Dictation CD,Z�,7 of letter to Johnson regarding hearing on Sept. 26th. .4 hrs. - 8 - 09/06/91 : Review of Notice of Meeting; Dictation of letter to Johnson regarding notice. .2 hrs . 09/26/91 : Conference with Administrative Law Judge at Zimmerman's Office regarding Motion to Proceed to Judgment. 1. 3 hrs . 10/21/91 : Conference with Johnson regarding status of case. . 5 hrs. 10/28/91 : Telephone conference with Harris regarding status of this and other pending cases . . 3 hrs. 10/29/91: Review of Holiday Inn Bankruptcy file; Dictation of letter to Administrative Law Judge Flaherty regarding status of bankruptcy and Holiday Inn. 1. 7 hrs. 11/16/91 : Review of order granting Motion to Proceed to Judgment; Dictation of letters to Harris & Zimmerman regarding order. . 3 hrs . 12/07/91 : Review of Notice of Deposition of Gatlin & Holzman; Telephone conference with Johnson regarding depositions. .4 hrs. 12/09/91 : Review of previous orders regarding depositions of Gatlin and Holzman; Dictation of Motion for Response to Depositions of Gatlin and Holzman; ..-- IN) Dictation of letter to Judge n Flaherty regarding �.J depositions; Dictation of ...- letter letter to Harris regarding --1C status of case. 1.0 hrs.=_rn 7= CD - 9 - 12/10/91: Preparation of Depositions of Gatlin and Holzman; Telephone conference with Zimmerman regarding depositions; Dictation of letter to Johnson regarding depositions and Motion for opportunity to respond to Deposition testimony. 1 .2 hrs . 12/12/91 : Deposition of Ken Gatlin at Zimmerman's Office. 2 .0 hrs. 12/12/91 : Conference with Randy Johnson regarding preparation for depositions of Gatlin and Holzman. 1 . 5 hrs. 12/19/91 : Review of order granting extension of time; Dictation of letter to Harris regarding order. . 3 hrs . 12/31/91: Dictation of letter to Johnson regarding deposition of Holzman. .2 hrs. 01/09/92 : Review of Gatlin Deposition; Telephone conference with Zimmerman regarding telephonic deposition of Holzman; 23 N Telephone conference with "Av Johnson regarding Holzman deposition; Dictation of c"-C I "'"' letter to Johnson regarding --{c'� Holzman deposition; Legal ;ern research regarding Section o RR E5 7D 601A. 6. 1 . 8 hrs. - cnx- 01/13/92 : Preparation for Holzman deposition. . 5 hrs. 01/14/92 : Conference with Randy Johnson regarding preparation for Holzman deposition; Telephonic deposition of Mike Holzman. 2 . 0 hrs . 01/24/92 : Review of Respondent's Motion to Continue. .2 hrs. — 10 — 01/30/92 : Review of Respondent 's Motion for Declaratory Judgment; Dictation of letter to Johnson regarding Motion for Declaratory Judgment. . 4 hrs . 01/31/92 : Review of order denying Motion to Continue; Dictation of letter to Johnson and Harris regarding order. . 3 hrs . 02/05/92 : Review of Respondent's Brief; Dictation of Response to Motion for Declaratory Judgment . . 5 hrs. 02/06/92 : Telephone conference with Judge Flaherty regarding filing resistance to Motion for Declaratory Judgment; Legal review regarding resistance to Motion for Declaratory Judgment . 1.0 hrs . 02/06/92 : Dictation of letter to Johnson regarding filing N response to Motion for T"o Declaratory Judgment. . 3 hrs r„;,r,.� C1-4- 3 02/07/92 : Dictation of letter to tr) 71 Johnson regarding = - 11 - 02/12/92 : Review of Title VI cases regarding resistance to Motion for Declaratory Judgment. 1.4 hrs. 02/13/92 : Preparation and dictation of resistance to Motion for Declaratory Judgment; Telephone conference with Zimmerman regarding Brief and Resistance; Dictation of letters to Flaherty, Harris, and Johnson regarding resistance. 2 . 0 hrs . 02/14/92 : Telephone conference with Burnside regarding definition of Employer in Chapter 18 of City Code; Dictation of Final Revisions to Resistance to Motion for Declaratory Judgment. . 5 hrs. 02/20/92 : Review of letter from Judge Flaherty and review of denial of Motion for Declaratory Judgment; Dictation of letters to Johnson and Harris regarding denial . . 4 hrs. N 02/21/92 : Review of A.L. J. Flaherty's �w. decision; Telephone n conference with Johnson n regarding proposed order; :Gr'" v a Dictation of letter to O n o Johnson regarding proposed �-:--` cn ' order. . 8 hrs. 02/28/92 : Telephone conference with Harris regarding filing commission' s decision. .2 hrs. 03/02/92 : Review of Commission's Order of March 2, 1992; Dictation of letter to Johnson regarding final order. . 3 hrs . TOTAL HOURS 77 . 6 hrs. TOTAL ATTORNEYS FEES $5, 960. 00 - 12 - C. JOSEPH HOLLAND: (Partner) 07/02/91: Conference with Lisa Oxley and David Brown regarding remedies regarding bankruptcy and Hear .g Officer determinati.:n. . 5 hrs. TOTAL HOURS . 5 hrs. TOTAL ATTORNEY'S FEES $ 42 . 50 LISA A. OXLEY: (Associate) 07/18/90: Two phone calls with Amy Couch discussing setting up conference call with ra Emit George; Quick review pFoi of file to see how many witnesses there might be. . 2 hrs . �C.)-` . 3� 07/18/90: Scheduling conference call y ' 1 with Amy Couch and memo to 757"'• ca David. .2 hrs. y c,, 07/23/90: Conference call with Amy Couch and Emit George. . 1 hrs. 07/23/90: Call from ALJ Amy Couch. . 1 hrs . 08/27/90: Research and work on brief. 2 . 5 hrs . 08/29/90: Work on brief. 1 . 5 hrs. 08/30/90: Work on brief. 1 .0 hrs. 08/31/90: Research Law Library regarding issue employer liability. 1 .0 hrs . 08/28/90: Work on brief; Research at Law Library. 1 .0 hrs. 09/05/90: Work on brief. 2 .0 hrs. 09/06/90: Work on brief. 2 . 0 hrs . 09/07/90: Work on brief. 2 . 0 hrs. 09/10/90: Research at Law Library regarding case. 1 . 0 hrs . - 13 - 09/11/90: Work on brief; Research at Law Library. Make copies of Cases. 4.0 hrs. 09/13/90: Revise brief. . 5 hrs . 09/13/90: Research at Law Library on issue of employer liability. . 5 hrs. 04/11/91 : Dictate Motion to Lift Automatic Stay in Bankruptcy Court. . 6 hrs. 06/24/91: Dictate Motion for Relief from Automatic Stay. 1 .0 hrs. 07/09/91: Dictate Brief. 2 . 0 hrs . TOTAL HOURS 23 . 2 hrs . TOTAL ATTORNEYS FEES $1,421 . 00 ANGELINE WISE : (Law Clerk) 07/10/91 : Made copies at Law School regarding Johnson case. .2 hrs. TOTAL HOURS .2 hrs . TOTAL LAW CLERK'S FEES $ 5.00 COSTS ADVANCED: 05/21/90: Photocopies $ 1 . 20 05/21/90: Photocopies $ 2 .40 05/15/90: Long distance telephone chrge $ . 94 07/18/90: Long distance E5 rvo telephone chrge . 65 c-) 08/03/90: Long distance :73 telephone chrge $ 2 .09 n"< 08/14/90: Photocopies $ 5 . 60 Photocopies $ 3 . 00 r- ,4, Photocopies $ 3 .00 0 Photocopies $ 6 .28 09/11/90: Photocopies $ 2 . 82 09/14/90: Photocopies $ 14 . 40 Postage $ 3 . 30 - 14 - 11/19/90: Long distance telephone chrge $ . 65 05/17/91: Long distance telephone chrge $ .23 Long distance telephone chrge $ .23 Fax $ 3 .00 07/10/91 : Photocopies $ . 84 07/12/91 : Photocopies $ 4. 80 Postage $ 1.90 07/29/91 : Photocopies $ 5 . 60 07/30/91: Postage $ 1 .21 10/30/91: Postage $ 7 . 77 Photocopies $ 25.08 12/10/91: Postage $ 2 . 75 01/10/92 : Copy of Deposition $ 49. 50 01/14/92 : Long distance telephone chrge $ 16.44 01/31/92 : Photocopies $ 3 .20 02/03/92 : Copy of Deposition $ 36. 10 02/07/92 : Photocopies $ 5.20 02/14/92 : Photocopies $ 10. 80 Postage $ 3 .21 02/21/92 : Photocopies $ 2 . 60 03/02/92 : Postage $ . 75 TOTAL COSTS ADVANCED $ 227. 54 TOTAL ATTORNEYS FEES & COSTS ADVANCED $7,656.04 6.Q _ N © C) Cl X19 BEFORE THE IOWA CITY HUMAN RIGHTS COMMISSION qAM '� ISABELLE M. KITTRELL, ) /0 /1' 4/ Complainant, ) No. E/A11-19-8601C/J' �(�/ O 0 6- ) D. I.A. No. 90ICHRC-2 / 9- C4 v. ) COMPLAINANT'S APPLICATION KIRLIN'S HALLMARK, ) FOR AWARD OF ATTORNEY FEES Respondent. ) COMES NOW the Complainant, and in support of her Application for Award of Attorney Fees, states: 1. In the Findings of Fact, Conclusions of Law and Recommended Order of Administrative Law Judge Amy Christiensen Couch, dated March 12, 1991, Judge Couch held that the Complainant had been unlawfully discriminated against because of her age and ordered the Respondent to pay money damages to the Complainant. 2. Said findings, conclusions, decision and order were adopted by the Iowa City Human Rights Commission as its own findings of fact, conclusions of law, and decision and order on March 29, 1991. 3 . The Respondent filed a petition for judicial review in this case in Johnson County District Court on May 29, 1991. 4. On or about February 20, 1992, the Respondent filed a voluntary dismissal of its petition for judicial review. 5. The award of reasonable attorney fees is authorized in this case by §601A. 15(8) (a) (8 ) , Code of Iowa, and by §18-40(e) (8) and §18-43 (a) , Code of Ordinances of the City of Iowa City, Iowa. 6. The undersigned attorney represented the Complainant in these proceedings as an agent of the City Attorney pursuant to - 2 - X18-42(c) , Code of Ordinances of the City of Iowa City, Iowa. 7. The Iowa Supreme Court has held that Iowa Code §601A. 15(8 ) (a) (8) "clearly anticipates that when a claimant prevails the attorney fees will be paid by the losing party, not by the Claimant or the Commission" . Hamer v. Iowa Civil Rights Commission, 472 N.W.2d 259 (Iowa 1991) . 8. Attached hereto and incorporated herein as Exhibit A is an itemization of attorney's fees and expenses incurred on behalf of the Complainant and paid for by the City of Iowa City, in this case, as of March 20, 1992. WHEREFORE, Complainant requests that this Application for Award of Attorney Fees be set for hearing and that upon such hearing, the Commission grant Complainant's application for award of reasonable attorney fees to be paid to the City of Iowa City by the Respondent. All ' i t AL i avi., E. Br', .yek Haye =rown Br="" = Builu w 1201 East W. . ngton Street Iowa City, Iowa 52240 (319) 337-9606 ATTORNEY FOR RESPONDENT Original: Filed. Copy To: Kelly Baier Bradley & Riley, P.C. 100 First Street, S.W. w Ei ry P. O. Drawer 2804n -o Cedar Rapids, IA 52406-2804 y� 7 r. --1 C") -4 Ea R 3 73 O Cat - 3 - Linda Newman Gentry City Attorney Civic Center 410 East Washington Street Iowa City, Iowa 52240 CERTIFICATE OF SERVICE The undersigned a member of the bar of this state, hereby certifies that a true copy of the foregoing instrument was served upon each of the attorneys of record of all parties to the above-entitled cause by enclosing same in an envelope addressed to each such attorney at his or her respective address as disclosed by the pleadings of record herein, with postage fully paid, and by depositing said envelope in a United States Post Office depository in Iowa City, Iowa, on the4to day of MA.-edi.,_ , 1992. AM . A 111 UD NJ C� x,. 7,:„D F^4 J 1-1"1 e� A d ;J CD a, BEFORE THE IOWA CITY HUMAN RIGHTS COMMISSION ISABELLE M. KITTRELL, ) Complainant, ) No. E/A11-19-8601 D. I .A. No. 90ICHRC-2 v. ) ) AFFIDAVIT OF ATTORNEY KIRLIN'S HALLMARK, ) DAVID E. BROWN Respondent. ) STATE OF IOWA ) )SS: JOHNSON COUNTY ) I, David E. Brown, being first duly sworn, on oath, depose and state that the services set out on Exhibit A, which is attached hereto and, by this reference, made a part hereof, have been rendered by me to Complainant Isabelle Kittrell in connection with this action, to date. A • fit D• . E. Br• 1111 Subscribed and sworn to before me by Da id E. Brown, this 26th day of March, 1992. Pub 2 U. 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'buTapaq oTTgnd buTggas buTpapbaa gonop Ault' og aeggaT Jo uoTgp.oTQ :06/t0/b0 .saq S - '8TTI S,JO;pbT;SaAUT JO MaTAag :06/9Z/E0 -sag E . 'aTTT 30 MaTAa.] buTpaPbaa sTaapH aoTTV gq.TM aOuaaaJuop :buTapaq oTTgnd 101 uoTgeapdaad buTp.Ipbe1 ST.LIEH aoTTV q�TM aouaaaJuoo auogdaTay : 06/61/E0 :NMOH3 '3 QIAVQ mumnavil S,N I'Ilh I M 'A 17I3HII I)I :3H 4230NVAQK SZSOO (INV 333A S,A3NHOSSK .3O NOISYZII'I3ZI Y LIHIHX� - 2 - 05/15/90 : Telephone conference with Amy Couch and Kelly Baier regarding hearing date. . 3 hrs. 05/21/90: Review of Notice of Public Hearing; Dictation of letter to Kittrell regarding preparation for public hearing. . 3 hrs. 05/22/90: Telephone conference with Isabelle Kittrell regarding Public Hearing; Telephone conference with Assistant City Attorney Kay Hennessey regarding subpoenas. . 4 hrs. 06/04/90: Telephone conference with Clarence Briskey regarding preparation for public hearing. . 2 hrs. 06/05/90: Conference with Isabelle Kittrell and Clarence Briskey regarding discrimination complaint. 2. 5 hrs. Telephone conference with b ..n Alice Harris regardingr:e _� contacting Phyllis n-( .L Alexander; Dictation of =-tc") letters to Jacki Roe :gym 74 and Barb Osmundson o71° o 0 regarding Public Hearing Testimony; Telephone tr conference with Jacki Roe regarding testimony. 1.0 hrs. 06/08/90: Telephone conference with Isabelle Kittrell regarding Darcey Ackley and Dorothy Augustine. . 3 hrs. 06/09/90: Dictation of letters to Ackley and Augustine regarding public hearing; Dictation of letter to Alexander regarding investigation. . 5 hrs. - 3 - 06/16/90: Telephone conference with Barb Osmundson regarding Witness Testimony. .5 hrs. 06/21/90: Telephone conference with Phyllis Alexander regarding Sue Rawlings; Dictation of letter to Alexander regarding Sue Rawlings; Dictation of letter to Kelly Baier regarding Sue Rawlings. . 6 hrs. 07/05/90: Dictation of letter to Kittrell regarding contacting Augustine and Ackley; Dictation of letter to Osmundson regarding termination letter. .4 hrs. 07/11/90: Telephone conference with Isabelle Kittrell regarding contacting Augustine and Ackley. . 2 hrs. 07/12/90: Telephone conference with Kittrell regarding locating witnesses. .2 hrs. 07/30/90: Review of letter of resignation from Barb Osmundson; Dictation of letter to Kittrell N regarding Osmundson IS °" I letter. . 3 hrs. �a n"< d 08/03/90: Review of letter from icy Kelly Baier regarding ::4r- depositions; Telephone jV"? ca conference with Baier '' regarding depositions. Dictation of letters to Baier and Kittrell regarding depositions. . 5 hrs. 08/06/90: Telephone conference with Clarence Briskey regarding depositions; Telephone conference with Kelly Baier regarding re- scheduling depositions. - 4 - Continued from Pg. 3 . . . 08/06/90: Dictation of letters to Baier and Kittrell regarding depositions. .5 hrs. 08/08/90: Review letter from Kelly Baier regarding revised notice of depositions; Telephone conference with Clarence Briskey regarding depositions. Dictation of letter to Kittrell regarding depositions. .4 hrs. 08/20/90: Review of file regarding preparation for hearing. .5 hrs. 08/21/90: Telephone conference with .iD Dorothy Augustine regarding N testimony; Telephone pst, -VI conference with Kelly Baier000 regarding deposition of ,� Rawley; Telephone conference 7-qe'� with Clarence Briskey :G�" •'G rri regarding depositions; � o Dictation of Subpoenas to o Augustine, Roe, and a' Osmundson; Dictation of letters to Augustine and Harris regarding Subpoenas; Review of Interview file. 2 . 7 hrs. 08/22/90: Telephone conference with Barb Osmundson regarding subpoena; Dictation of letter to Osmundson regarding subpoena and testimony. .4 hrs. Telephone conference with Amy Couch regarding Subpoena for Sue Rawley; Review of Rawley's statement; Telephone conference with Kelly Baier regarding deposition of Sue Rawley; Dictation of letter to Baier regarding Rawley, Ackley, and Alexander depositions. .8 hrs. - 5 - 08/24/90: Telephone conference with Phyllis Alexander regarding telephonic deposition; Conference with Isabelle Kittrell and Clarence Briskey regarding preparation for depositions; Preparation of Damages exhibit. 4.0 hrs. 08/25/90: Dictation of letter to Darcey Ackley regarding telephonic deposition. . 2 hrs. 08/27/90: Depositions of Kittrell and Briskey in Cedar Rapids; Review of materials from Briskey. 4.5 hrs. 08/28/90: Telephone conference with Kelly Baier regarding copies of documents; Dictation of letter to Baier regarding documents; Telephone conference with Clarence Briskey regarding Testimony; Review of commission file regarding processing and conciliation of complaint. 2. 6 hrs. 08/29/90: Telephone conference with Darcey Ackley regarding testimony at hearing. .4 hrs. 08/30/90: Telephone conference with Hearing Officer i0 Couch and Kelly Baier ry regarding scheduling C) a testimony for Scott =+ . Cooper; Review of Answer c-)"( filed by Respondent and _sn mrr of letter to Couch from crl Baier; Dictation of letter o to Kittrell regarding 3 answer; Dictation of `J letter to Baier regarding legal P.C. finding; Dictation of letter to Osmundson regarding testimony. 1. 9 hrs. - 6 - 08/30/90: Telephone conference with Kelly Baier regarding continuance; Telephone conference with Kittrell regarding Baier's request for continuance. . 5 hrs. 08/31/90: Telephone conference with Kelly Baier regarding discovery request. .3 hrs. Telephone conference with Darcey Ackley regarding testimony at hearing. . 3 hrs. 09/04/90: Conference with Kittrell and Briskey regarding preparation for public hearing; Dictation of damages exhibit; Outlining examination questions for witnesses; Telephone conference with Sue Rawley and Kelly Baier regarding testimony at hearing. 4. 5 hrs. Review of witness interviews in preparation for public hearing. . 8 hrs. 09/05/90: Public hearing at Civic Center. 8 . 5 hrs. 2:30 09/06/90: Public hearing at Civic �. Center. 3 . 5 hrs. - Gt- a• 09/07/90: Dictation of letter to '73 Alice Alice Harris regarding Augustine witness fee. .2 hrs. o 09/13/90: Review of letter from Baier to Couch regarding additional evidence; Telephone conference with Couch regarding hearing on October 30th; Dictation of letter to Kittrell regarding October 30th hearing. .4 hrs. - 7 - 09/17/90: Telephone conference with Amy Couch and Kelly Baier regarding public hearing; Telephone conference with Sueppel regarding investigation file. .5 hrs. Dictation of letters to Alexander and Darcey Ackley regarding testimony on October 30; Dictation of letter to Kittrell regarding Power of Attorney Form. . 6 hrs. 09/18/90: Review of letter from Baier regarding notes by Willis made on October 28, 1986; Dictation of letter to Kittrell regarding Willis' notes; Telephone conference with Clarence Briskey regarding Power of Attorney Form. . 3 hrs. 09/19/90 : Review of order re-setting hearing; Dictation of letter to Kittrell regarding order. .2 hrs. 09/20/90: Telephone conference with Baier regarding settlement. . 2 hrs. N Dictation of letter to y, ill Kittrell regarding - settlement. .2 hrs. ,1000 --: -A 09/21/90: Dictation of letter to sA ' Baier regarding Power of cr Attorney Form (Kittrell Q to Briskey) . .2 hrs. d 09/27/90: Telephone conference with Kelly Baier regarding settlement offer and Power of Attorney Form. .2 hrs. Dictation of letter to Couch regarding hearing on October 30th and 31st. . 2 hrs. - 8 - 10/01/90: Telephone conference with Phyllis Alexander regarding telephonic testimony. . 2 hrs. 10/02/90: Review of order re-setting hearing; Dictation of letter to client regarding order. .2 hrs. 10/10/90 : Telephone conference with Kittrell and Briskey regarding hearing on Oct. 30th, 1990; Dictation of letter to Baier regarding hiring records. Dictation of letter to Darcey Ackley regarding telephonic testimony; Telephone conference with Ackley; Review of Coopers interview. 1. 1 hrs. 10/17/90: Telephone conference with Darcey Ackley regarding testimony at hearing; Dictation of letter to Ackley regarding hearing; Dictation of letter to Baier regarding settlement offer. . 6 hrs. 10/24/90: Telephone conference with N Kittrell regarding a resumption of hearing; ,®. Dictation of letter to n !i r�"' Kittrell regarding hearing. . 3 hrs. - u r..r`' 10/26/90: Conference with Kittrell � o and Briskey regarding .2 d preparation for hearing; -4 Telephone conference with Darcey Ackley regarding testimony; Telephone conference with Phyllis Alexander regarding testimony. 1.5 hrs. 10/29/90 : Telephone conference with Kelly Baier regarding scheduling of witnesses; Telephone conference with Kittrell regarding testimony at hearing; Preparation for hearing. 2. 3 hrs. - 9 - 10/30/90: Conference with Kittrell regarding preparation for hearing; Hearing at Civic Center. 6 . 5 hrs. 10/31/90 : Telephone conference with Darcey Ackley regarding termination interview; Telephone conference with Kelly Baier regarding Ray Haines; Telephonic hearing regarding testimony from Alida Willis; Dictation of letter to Ackley regarding Exhibit N. 1.2 hrs. 11/02/90: Two telephone conferences with Darcey Ackley regarding termination interview memo; Telephone conference with Ray Haines regarding P.C. Report; Telephone conference with Kelly Baier regarding Haines P.C. Report. . 6 hrs. 11/05/90: Conference with Lisa Oxley regarding preparing brief. . 6 hrs. ca 1 Conference with Amy Couch regarding no ► =y further evidence. . 6 hrs. 12/04/90: Review of Respondent's Brief; Telephone •• conference with Amy Couch regarding reply brief; Telephone conference with Kittrell regarding briefs; Dictation of letter to Kittrell regarding briefs. .5 hrs. 12/11/90: Telephone conference with Clarence Briskey regarding briefs. .2 hrs. 12/12/90: Legal review regarding cases cited by respondent's brief; Preparation and dictation of complainant's reply brief. 2.5 hrs. - 10 - 12/13/90 : Revision of reply brief; Dictation of additional argument for reply brief. 1. 2 hrs. 12/14/90 : Telephone conference with Kelly Baier regarding reply briefs; Dictation of letter to Couch regarding reply briefs. . 3 hrs. 12/17/90 : Telephone conference with Amy Couch regarding reply briefs; Dictation of letter to Baier regarding extension to file reply brief. .2 hrs. 12/18/90 : Preparation of Addition to Reply Brief. . 6 hrs. 12/28/90: Dictation of Addition to Reply Brief regarding procedural issues; Dictation of letter to Kittrell regarding Reply Brief. 1.0 hrs. 01/02/91 : Review of Respondent's Reply Brief; Dictation of letter to client regarding reply brief. . 4 hrs. 01/08/91 : Telephone conference with 4.13 Clarence Briskey regarding ra Reply Brief. . 3 hrs. on S 01/31/91: Review of letter from n Administrative Law Judge, =ice J Amy Couch regarding Joint :<�-n =- Exhibit 8; Dictation of p letter to Couch regardingcD �� Joint Exhibit 8 . .3 hrs. 02/01/91: Review of recent first circuit age discrimination case; Telephone call to Law Journal to order first circuit case. .2 hrs. 02/05/91: Review of letter from Baier regarding Joint Exhibit 8. .2 hrs. - 11 - 02/12/91: Review of recent first circuit age discrimination case. .2 hrs. 03/13/91: Review of findings of fact, conclusions of law, and recommended order; Dictation of letter to Kittrell regarding proposed order. . 6 hrs. 03/29/91: Review of minutes of Human Rights Commission meeting regarding approving Administrative Law Judge Ruling; Review of letter from Baier regarding proposed decision. . 2 hrs. 04/04/91: Review of Commissions Adoption of Ruling; Telephone conference with Kittrell regarding Commission's findings. . 3 hrs. 04/17/91: Review of Respondent's Request for Re-hearing; Telephone conference with Alice Harris regarding re-hearing request. . 5 hrs. Telephone conference with Kittrell regarding N Application for Re-hearing; © _0 win Dictation of letter to yo Kittrell regardingn � 'a re-hearing. .4 hrs. c-) rrn 04/18/91: Telephone conference with o� Burnside regarding Respondent's Application -� for Re-hearing; Dictation of Resistance to Application for re-hearing; Dictation of Response to Respondent's Motion for Extension of Time to File for Judicial Review. 1. 0 hrs. - 12 - 04/19/91 : Revision of Resistance to Application for Re- hearing; Dictation of letters to Harris and Kittrell regarding Resistance. . 5 hrs. 04/22/91: Telephone conference with Isabelle Kittrell regarding Application for Re-hearing; Telephone conference with Alice Harris regarding Application for Re-hearing. . 2 hrs. 04/29/91: Telephone conference with Kelly Baier regarding Application for Re-hearing. . 2 hrs. 05/02/91: Telephone conference with Kittrell regarding decision of Human Rights Commission denying Respondent's Application for Re-hearing; Dictation of letter to Kittrell %xi regarding decision. .3 hrs. N Ira411 05/07/91: Review of Baier's letter �-en regarding settlement n�.t � proposal. Dictation of �n letter to Kittrell .0�► regarding settlement. . 3 hrs. opo O 05/10/91: Telephone conference with Kittrell regarding letter from Baier regarding settlement. . 2 hrs. 05/13/91: Conference with Kittrell and Briskey regarding settlement proposal and Judicial Review; Dictation of letter to Baier regarding rejection of settlement proposal. 1.2 hrs. 05/15/91: Telephone conference with Kittrell regarding letter to Baier. .2 hrs. - 13 - 05/29/91: Review of Petition for Judicial Review; Telephone Conference with Briskey regarding Petition. . 4 hrs. 05/30/91: Review of Petition for Judicial Review; Dictation of Answer to Petition; Dictation of letter to Harris regarding trans- mitting certified copy of record; Dictation of letter to Baier regarding certified copy of record. . 8 hrs. 05/31/91: Telephone conference with Kelly Baier regarding transmitting certified copy of record; Dictation of Motion for Additional Time to Transmit Record; Dictation of letter to Harris regarding certified copy of record. . 4 hrs. 06/04/91: Telephone conference with Delmar Mitchell regarding settlement; Telephone conference with Kittrell regarding settlement; Dictation of letter to Kittrell regarding settlement. .5 hrs. 4.0 N 06/06/91: Dictation of letter to C5 'I'S vo Delmar Mitchell regarding p _� ti ,, settlement. .2 hrs. 0--4 -a 06/07/91: Telephone conference with Briskey and Kittrell --vi �? regarding settlement. . 2 hrs. a 06/19/91: Telephone conference with Del Mitchell regarding settlement; Review of Order Granting Additional Time to Compile Certified Copy of Record; Dictation of letter to Harris regarding compiling record. . 5 hrs. - 14 - 06/26/91: Conference with Kittrell regarding status of Judicial Review. . 2 hrs. 06/28/91: Telephone conference with Harris regarding compiling certified copy of record for Judicial Review. . 2 hrs. 07/05/91: Legal review regarding recent Iowa Supreme Court Case in Appellate Review under Chapter 17A. . 3 hrs. 07/10/91: Telephone conference with Alice Harris regarding compiling certified copy of record. .2 hrs. 07/29/91: Review of copies of record of proceeding; Telephone conference with Baier regarding Request for Additional Time; Dictation of Request for Additional Time to Transmit Record. .5 hrs. ro 08/14/91: Preparation of record for 9oci Certification. 1.0 hrs. ! ;v on: 37 08/16/91: Telephone conference with 0'4 J '4r11 Barb Coffey regarding -54n v 7,79 preparation of transcript � of hearing; Preparation and compilation of record. . 7 hrs. A 08/19/91: Preparation of record for certification; Review of Order Granting Additional Time to Transmit Record; Dictation of letter to Harris regarding order. 1.4 hrs. 08/23/91: Review of transcript of hearing regarding preparation of certified copy of record. . 7 hrs. - 15 - 08/27/91 : Review of draft of transcript; Preparation of record for certification. 1 . 3 hrs. 08/29/91: Telephone conference with Harris regarding certified copy of record; Dictation of Transmission of Certified Copy of Record; Trip to Word Processing regarding revision of transcript of hearing. . 7 hrs. 08/30/91: Conference with Alice Harris regarding certification of record; Preparation of certified record for filing. .8 hrs. 09/12/91 : Telephone conference with Kittrell and Briskey regarding status of case. .2 hrs. 12/11/91: Telephone conference with Briskey and Kittrell regarding status of Judicial Review. .4 hrs. N 12/12/91: Review of file; Dictation „� 0111 of letters to Baier and , Kittrell regarding scheduling deadlines. .4 hrs. . VA 117, 12/18/91 : Telephone conference with p Kelly Baier regarding 0 5 scheduling deadlines in 77 ._1 Judicial Review; Dictation of Application for Date for Oral Arguments; Dictation of letter to Kittrell regarding status of case. .6 hrs. 12/19/91: Telephone conference with Roeder regarding closure of State Commission's file; Dictation of letters to Roeder and Bailey regarding closure of files. .3 hrs. - 16 - 01/08/92: Review of Order Setting Oral Arguments; Dictation of letter to Kittrell regarding Briefs schedule and order setting hearing. .3 hrs. 01/27/92: Telephone conference with Kittrell regarding status of case and notice of administrative closure by State Commission. .3 hrs. 01/31/92: Review of letter from State Civil Rights Commission regarding administrative closure of file; Dictation of letter to Harris regarding State Commission letter. .2 hrs. 02/05/92: Legal research and preparation of brief regarding Judicial Review. 1. 2 hrs. 02/06/92: Review of Hamer case regarding Attorney Fees; Dictation of N Motion for Leave to CD110 Amend Answer regarding 00° Attorney Fees; c1.4c1.441 Dictation of letters to Gentry and Kittrell ; rn regarding Motion for Leave to Amend. . 6 hrs. s� c, 'y J 02/10/92: Revision of Motion to Amend Answer. . 3 hrs. 02/12/92 : Preparation of brief regarding Judicial Review. 2.0 hrs. 02/13/92: Telephone conference with Baier regarding Motion to Amend Answer and settlement; Review of letter from Baier regarding settlement. .5 hrs. - 17 - 02/14/92: Dictation of letter to Kittrell and Harry regarding settlement. . 3 hrs. 02/17/92: Telephone conference with Kittrell and Briskey regarding settlement; Dictation of letter to Baier regarding settlement; Telephone conference with Baier regarding settlement; Preparation of Brief in Judicial Review Case; Telephone conference with Baier regarding settlement. 1. 5 hrs. 02/18/92 : Telephone conference with Baier regarding settlement; Review of record and preparation of brief regarding Judicial Review. 1 . 8 hrs. 02/19/92 : Telephone conference with Baier regarding settlement; Dictation of letter to Kittrell regarding settlement; Review of record and preparation of brief. 2. 3 hrs. 02/20/92: Preparation and dictation of brief; Telephone conference with Baier rV regarding Respondent's © .�� .71 decision to dismiss 'fin Petition for Judicial n 's ° Review; Legal review -4c", r-- regarding interest onrn award; Telephone o23 o conference with Briskey and Kittrell regarding �'.► dismissal by Kirlins; Telephone conference with Harris regarding dismissal. 3.4 hrs. 02/21/92: Review of voluntary dismissal filed by Kirlins; Dictation of letter to Baier regarding interest on award; Dictation of letter to Gentry regarding dismissal and Attorney's fees; - 18 - /00'S�/ Continued from Pg. 17 . . . i' p�� 4, 02/21/92: Dictation of letters to 7,i-' 0y Harris and Kittrell . eir regarding dismissal, interest, and Attorney's fees. . 6 hrs. 03/20/92: Dictation of letter to Baier regarding interest on damages award and Attorney fees. .2 hrs. TOTAL HOURS 111. 6 hrs. TOTAL FEES $8,494. 50 LISA A. OXLEY: 11/28/90 : Completely review file and write post-trial brief. 8. 9 hrs. 12/04/90 : Review Respondent's Brief. .3 hrs. TOTAL HOURS 9.2 hrs. TOTAL FEES $ 630.50 COSTS ADVANCED: 04/09/90: Long distance telephone charge. $ 1.52 05/21/90: Photocopies $ 1.80 06/05/90: Photocopies $ 3.40 Photocopies $ 1.20 Long distance telephone charge. $ .23 Long distance telephone charge. $ .50 Long distance telephone charge. $ .32 06/16/90: Long distance telephone charge. $ .68 06/21/90: Long distance telephone charge. $ 2.02 06/22/90: Photocopies $ 3. 60 08/03/90: Long distance telephone charge. $ .27 08/06/90: Long distance telephone charge. $ . 64 - 19 - 08/21/90: Long distance telephone charge. $ .23 Long distance telephone charge. $ 6.80 Long distance telephone charge. $ 1.24 Long distance telephone charge. $ .32 Long distance telephone charge. $ .36 08/22/90 : Long distance telephone charge. $ 2.09 Long distance telephone charge. $ 1.00 08/24/90 : Long distance telephone charge. $ .23 08/27/90: Postage $ 2.00 Mileage $ 14. 40 Long distance telephone charge. $ .23 08/28/90: Long distance telephone charge. $ .23 Long distance telephone charge. $ .27 08/29/90: Long distance telephone charge. $ 3.09 08/30/90: Long distance telephone charge. $ 1. 36 Long distance telephone charge. $ . 27 Long distance telephone charge. $ 4. 97 09/04/90: Long distance telephone o charge. $ . 27Cp g 09/13/90: Long distance telephone �--� i charge. $ . 65 E2 '-� 09/27/90: Long distance telephone 7.<1-- �a ' charge. $ .27 ...rl 10/02/90: Long distance telephone charge. $ .23 j 10/17/90: Long distance telephone charge. $ 1.33 10/26/90: Long distance telephone charge. $ 1. 12 10/29/90: Long distance telephone charge. $ . 15 10/31/90: Long distance telephone charge. $ . 23 Long distance telephone charge. $ . 23 Long distance telephone charge. $ 4. 64 - 20 - 10/31/90: Long distance telephone charge. $ . 23 11/02/90 : Long distance telephone charge. $ . 89 Long distance telephone charge. $ .89 12/04/90 : Photocopies $ 6.00 Postage $ 1. 65 Postage $ 1 . 65 12/13/90: Long distance telephone charge. $ . 65 12/14/90: Long distance telephone charge. $ .27 12/17/90: Long distance telephone charge. $ . 36 12/31/90 : Postage $ 1.05 01/02/91: Photocopies $ 8. 80 02/01/91: Long distance telephone charge. $ . 68 02/08/91: Photocopies $ 5.00 03/14/91: Photocopies $ 6 . 20 Postage $ 1. 44 03/22/91: Long distance telephone charge. $ 3.04 04/04/91 : Photocopies $ 3.20 Long distance telephone charge. $ 1. 71 04/17/91: Photocopies $ 4. 20 Postage $ 1 . 21 04/19/91: Photocopies $ 1. 20 04/29/91: Long distance telephone charge. $ .52 06/04/91: Long distance telephone charge. $ 3 . 19 08/30/91: Photocopies $ 16 . 46 Photocopies $ 52. 40 Postage $ 5. 70 Photocopies $ 47. 67 01/28/92: Long distance telephone charge. $ 1. 71 02/14/92: Federal Express charge. $ 23.00 02/19/92: Federal Express charge. $ 9. 00 TOTAL COSTS $ 274. 36 TOTAL ATTORNEY'S FEES AND COSTS $9, 3e.36 cD m. D.:.4 no 71 -►c) o� o 0 c , v END OF CASE FILE FYx City of Iowa City MEMORANDUM Date: December 7, 1993 To: The Honorable Darrel G. Courtney and Members of the City Council From: Linda Newman Gentry, City Attorney • Re: New Lawsuit William Tod Fry v. Sylvia Melia, Equity No. 55361, Johnson County Attached please find a new lawsuit received last week and concerning the same subject matter as is already in litigation between Tod Fry and the City of Iowa City, Fire Department. Because Anne Burnside will be a witness in this case, I am referring the matter to David Brown, outside counsel. It is my firm belief that the attorney in this case is "walking on thin ice," since the lawsuit is likely in violation of Rule 80, Iowa Rules of Civil Procedure (because not based on an investigation showing the claim is legitimately grounded in fact or law), but is also possibly an abuse of process by use of a lawsuit intended to harass City employees. Moreover, this "new lawsuit" may be a violation of other Iowa Rules of Civil Procedure, namely compulsory joinder of parties and claims. In any event, David Brown and I intend to take a very aggressive, indeed outraged, approach to this latest "volley" sent out by the plaintiff's attorneys, see attached. We will continue to keep you informed, and at the present time the lawsuit concerning the original termination is scheduled for February 7, 1994. cc: City Manager City Clerk Assistant City Manager David Brown, Outside Counsel Sylvia Mejia Attachment n:'anemos\fry.Ing g. s N6 • IN IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WILLIAM TOD FRY ) EQUITY NO. 5S154, 1 ) Plaintiff, ) v. ) ORIGINAL NOTICE SYLVIA MEJIA ) ) ) Defendants . ) R� . CC ten �Y� 0 4 C/ry094, es VE-NAMED DEFENDANT (S) : f TO THE ABO You are hereby notified that there is now on file in the office of the clerk of the above court a petition in the above- entitled action, a copy of which petition is attached hereto. The plaintiff' s (s1 ) attorney is (are) Wiiliam F. Olinger and John A. Stitely, whose address is the Wiliam F. Olinger Law Office, 1120 2nd Ave. S.E. , Cedar Rapids, Iowa, 52403. You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file, a motion or answer, in the Iowa District Court for Johnsop County, at the courthouse in Iowa City, Iowa, judgment by default will be rendered against you for the relief demanded in the petition. (SEAL) ` the A At et/� the Clerk of Above Court Johnson County Courthouse Iowa City, Iowa, 52403 NOTE: The attorney who is expected to represent the defendant should be promptly advised by the defendant of the service of this notice. IN IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WILLIAM TOD FRY ) EQUITY NO. 55541 Plaintiff, ) v. ) PETITION ) SYLVIA MEJIA ) Defendants . ) c-) �^ C LP On ) nQ /-•i' i� �G CQ Gag 43 COMES NOW, The Plaintiff, Tod Fry and for Cause of action states : 1 . In January or February of 1992, Iowa City terminated the employment of Tod Fry, as a firefighter. 2. The reasons for that termination were set forth in a letter of Termination dated February 14 , 1992 . 3 . , Sylvia Mejia, reviewed and participated in the preparation of that letter. 4 . The allegations contained therein were false and Sylvia Mejia knew or should have known that they were false. 5 . The letter of Termination has alleged that Tod Fry does not possess strong work habits and initiative as a failure to make adequate performance on his six and nine month evaluations. 6 . This allegation is false, and defamatory as to Mr. Fry' s fitness for his Trade. 7 . The letter of Termination alleged that Tod Fry has "a difficulty with females" . 8. This allegation is false, and defamatory as to Mr. Fry' s fitness for his Trade. 9 . The letter of Termination alleged that Tod Fry has demonstrated a "poor attitude" in Tod's behavior and demeanor. 10 . This allegation is false, and defamatory as to Mr. Fry' s fitness for his Trade. 11. These allegations have been published to the detriment of Tod Fry. y 12. Sylvia Mejia knew or should have known that these allegations were false 13. These allegations are the real and proximate cause of damage to Tod Fry. 14 . Tod Fry has been damaged by this defamation. WHEREFORE, Tod Fry, the Plaintiff prays that the Court will enter an order against Sylvia Mejia to compensate him for his damages, the costs of this action and such other relief as the court deems equitable. PUNITIVE DAMAGES COMES NOW Tod Fry, the plaintiff and for further cause of action states: 1 . Plaintiff hereby repleads paragraphs 1-10 of his defamation claim against Sylvia Mejia. 2. Sylvia Mejia' s defamation was reckless, intentional or willful. 3 . Sylvia Mejia should compensate Tod Fry for his damages including exemplary damages. WHEREFORE, Plaintiff prays that the court will enter an order against Sylvia Mejia to compensate Plaintiff for his damages including exemplary damages in an amount that is equitable. Respectful y submitt:d, r /i Ate// John A. Stitely for WILLIAM OLING •W OFFICE X1120 2nd Avenue S.E. Cedar Rapids, Iowa 50403 #LI 1008312 (319) 364-0113 IN IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WILLIAM TOD FRY ) EQUITY NO. 55301 ) Plaintiff, ) v. ) JURY DEMAND SYLVIA MEJIA ) �l�G� Defendants. ) 'o,G 0 �4 ' t `'CG �.D COMES NOW the Plaintiff Tod Fry and Demands a jury trial in the above captioned cause of action. Respectfu ly submitted, lode[. John A. Stitely for WILLIAM OLINGERI.A OFFICE / 1120 2nd Avenue S.E. (/ =Cedar Rapids, Iowa 50403 #LI 1008312 (319) 364-0113 THE.IOWA STATE BAR ASSOCIATION FOR THE LEGAL EFFECT OF THE USE Official Form No.301 OF THIS FORM,CONSULT YOUR LAWYER THE IOWA DISTRICT COURTCD No JOHNSON � COUNTY =i'=-� ''�1.r4. —+r7 N WILLIAM TOD FRY, ' :1 m CD-- n) Plaintiff(s), LAW ❑ v EQUITY ® No. S 99 13 vs. IOWA CITY, a Municipal ORIGINAL NOTICE Coporation of the State of Iowa; and JAMES E. PUMFREY, personally, Defendant(s). TO THE ABOVE-NAMED DEFENDANT(S): You are hereby notified that there is now on file in the office of the clerk of the above court a petition in the above-entitled action, a copy of which petition is attached hereto. The plaintiff's(s) attorney is WILLIAm F. OLINGKR whose address is 1120 _Second Avenue SE, Cedar Ba-pits - - , Iowa 52403 You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court for Johnson County, at the courthouse in Iowa City- , Iowa, judgment by default will be rendered against you for the relief demanded in the petition. (SEAL) CATAA/A44,-1474;-644U,x,/lt6i:TA-ck CLERK OF THE ABOVE COURT Johnson County Courthouse Iowa City , Iowa 52240 NOTE:The attorney who is expected to represent the defendant should be promptly advised by defendant of the service of this notice. 'The Iowa State Bar Association 301 ORIGINAL NOTICE FOR PERSONAL SERVICE This Prinllno December.1981 Revieed January,1991 T`,) IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTYac-, -;1 N WILLIAM TOD FRY, ) Equity No. S 1-19 13 Plaintiff, ) r`? ) PETITION IOWA CITY, a Municipal ) `i N(n. Corporation of the State of ) p Iowa; and JAMES E. PUMFREY, ) personally, ) ` % cA. r c Defendants. ) DIVISION I GENERAL ALLEGATIONS COMES NOW the Plaintiff, William Tod Fry, and for general allegations, states: 1. William Tod Fry is a resident of Iowa County, Iowa. 2. Iowa City is a municipal corporation chartered under the laws of the state of Iowa and located in Johnson County. 3. The Iowa City Fire Department is a department of Iowa City. 4. William Tod Fry was employed by the Iowa City Fire Department (hereinafter "the Department" ) from April 8, 1991 to February 14, 1992 . 5. On January 3, 1992, William Tod Fry and some other employees, of less than three years with the Department, were offered the opportunity to attend a special class in Illinois that would be six weeks in duration. 6 . This program would require those who attend from the Iowa City area to spend six weeks in Illinois in March and April . 7. That Memorandum requested that those employees indicate their availability by January 20, 1992. 8. On January 18, 1992, William Tod Fry informed his superiors in writing that he would be unavailable for this training. 9. On January 29, 1992, Chief Pumfrey called him into his office and demanded to know the reasons for his inability to attend . 10. This was the first suggestion that William Tod Fry had that the request had not been for volunteers. 11 . William Tod Fry explained the personal reasons that had made him unwilling to spend substantial time away from home at that time of year which included concern about his income taxes and that damage could occur to his home if he was absent for that length of time during the "heating season. " 12. He was then told that his attendance would be mandatory. 13. William Tod Fry was selected from the "pool" of newer employees to take this six weeks absence from his home because he was single. 14 . On January 31 , 1992 , William Tod Fry again requested to speak with Chief Pumfrey to verify his understanding and request some clarification of the situation. y r ti -2- cD rt 15. When William Tod Fry noted that the Memorandum appeared to make the attendance voluntary, William Tod Fry was told that "things change, " and Chief Pumfrey noted parentheti- cally, "Your pay changes, doesn't it?" 16. Perceiving this as a legitimate opening for: the subject, William Tod Fry inquired about the possibility of over- l time for this period. ;-' 17. It was William Tod Fry' s understanding that the Department usually paid overtime for special training and this training in Illinois would require him to be engaged full-time for six weeks. 18 . He was told he would receive only his regular pay. 19. William Tod Fry also requested clarification of the Department' s policy of notice, as this appeared to him to be contrary to the Departmental requirements. 20. Chief Pumfrey expressed the view that the notice he had been given was adequate. 21. On February 10, 1992, the Department issued a Memorandum which indicated that William Tod Fry would be attending the Illinois course. 22. On February 12, 1992 , William Tod Fry, encouraged by some discussion of anti-harassment policy in a departmental- required lecture on sexual harassment, requested an appointment with Anne Burnside of the City Attorney's office to discuss his situation and verify that this was within policy. 23. The appointment with the City Attorney's office was scheduled for 3:00 p.m. on February 14 , 1992. -3- 24 . On the morning of February 14 , 1992 ,. William Tod Fry was called and ordered to appear in Chief Pumfrey' s office at 1 :00 p.m. 25 . William Tod Fry was terminated at that meeting . 26. Chief Pumfrey personally carried the paperwork between the various offices to expedite that dismissal . 27 . Chief Pumfrey believed that William Tod Fry ' s attempts to clarify his rights were grounds for his termination . 28 . William Tod Fry' s discharge was in retaliation for one or more of the inquiries he made with regard to his rights and obligations . 29. To discharge an employee for the exercise or the request to be informed as to his rights and obligations is vio- lative of public policy. WHEREFORE, William Tod Fry, the Plaintiff, prays that the Court issue judgment in his favor, compelling Iowa City to reinstate him to his position as a Firefighter, pay him the back wages and benefits that he would have earned, plus interest as provided by law, and the costs of this action. DIVISION II CLAIM UNDER 29 USC § 215(a) (3) COMES NOW the Plaintiff, William Tod Fry, and for cause of action states : 1 . Plaintiff repleads Paragraphs 1-29 of Division I. 2 . Iowa City had a duty under the Federal Fair Labor u.) C...; ti C)-�1 r.j . -4- _r) rTt '� rV f`J and Standards Act, 29 USC § 2l5 (a) ( 3) , not to discharge an employee or take other reprisal for reporting or attempting to report what he reasonably believed were violations of the wage and hour regulations . 3 . 29 USC § 2166 (b) confers jurisdiction to hear this complaint on "any Federal or State court of competent jurisdic- tion . . . " . 4 . William Tod Fry reported, or attempted to report, what he reasonably believed were violations of policies concern- ing overtime compensation. 5. William Tod Fry was terminated for expressing his concerns. 6 . Iowa City and Chief James E. Pumfrey acted under color of state law in discharging William Tod Fry. WHEREFORE, William Tod Fry, the Plaintiff , prays that the Court will grant judgment against the Defendants, Iowa City and James E. Pumfrey, in an amount sufficient to compensate him for his damages and lost wages and benefits, plus interest as provided by law, and the costs of this action. Further, William Tod Fry, the Plaintiff, prays that the Court issue judgment in his favor, compelling Iowa City to reinstate him to his position as Firefighter, pay him the back wages and benefits that he would have earned, plus attorney fees , interest as provided by law, and the costs of this action. a C) rn DIVISION III n-; r BREACH OF CONTRACT :<� -'.1) COMES NOW the Plaintiff, William Tod Fry, and foi\?CBifde N of action states: -5- 1 . Plaintiff repleads Paragraphs 1-29 of Division I . 2. The employment of William Tod Fry is a contractual relationship consisting of oral and written parts . 3 . Part of the requirements of his contract of em- ployment was that he avoid "willful violations of departmental or City rules or policies. " 4 . William Tod Fry reported, or attempted to report, what he reasonably believed were violations of policy, rules and an abuse of authority by his superiors. 5 . William Tod Fry was required by the terms of his employment to refrain from participating in or being a party to such violations. 6. William Tod Fry was terminated for expressing his concerns. 7 . Iowa City has violated its contract with William Tod Fry. 8 . William Tod Fry has been damaged . WHEREFORE, William Tod Fry, the Plaintiff, prays that the Court will grant judgment against the Defendants, Iowa City and James E. Pumfrey, in an amount sufficient to compensate him for his damages and lost wages and benefits, plus interest as provided by law, and the costs of this action. Further, William Tod Fry, the Plaintiff , prays that the Court issue judgment in his favor, compelling Iowa City to reinstate him to his position as Firefighter, pay him the back wages and benefits that he would have earned, plus attorney fees, interest as provided by law, and the costs of this action . U . j 77 C) N) r c. CJ=2:3 —'� -6- N v.) T DIVISION IV WRONGFUL DISCHARGE/RETALIATORY CONDUCT IN VIOLATION OF I.C. 19A.19 , COMES NOW the Plaintiff, William Tod Fry, and for- caue of action states: 1. Plaintiff repleads Paragraphs 1-29 of Division I . 2. Iowa City had a duty under 19A.19 of the Iowa Code not to discharge an employee or take other reprisal for reporting or attempting to report what he reasonably believed were viola- tions of policy, rules and an abuse of authority by his superiors. 3. William Tod Fry reported, or attempted to report, what he reasonably believed were violations of policy, rules and an abuse of authority by his superiors. 4. William Tod Fry was required by the terms of his employment to refrain from participating in or being a party to such violations. 5. William Tod Fry was terminated for expressing his concerns. 6. Iowa City breached its duty to William Tod Fry. 7. William Tod Fry has been damaged. 8. Said breach of duty is the actual and proximate cause of William Tod Fry's damages. WHEREFORE, William Tod Fry, the Plaintiff, prays that the Court will grant judgment against the Defendants, Iowa City and James E. Pumfrey, in an amount sufficient to compensate him -7- for his damages and lost wages and benefits, plus interest as provided by law, and the costs of this action. Further, William Tod Fry, the Plaintiff , prays that the Court issue judgment in his favor, compelling Iowa City to reinstate him to his position as Firefighter, pay him the back wages and benefits that he would have earned, plus attorney fees, interest as provided by law, and the costs of this action. DIVISION V DISCRIMINATION BASED ON MARITAL STATUS COMES NOW the Plaintiff, William Tod Fry, and for cause of action states : 1. Plaintiff repleads Paragraphs 1-29 of Division I . 2. Iowa City had a duty, under its affirmative action policy, of avoiding differential treatment based on marital status. 3. Chief Pumfrey, as Department head , has the duty of implementing this policy. 4. Chief Pumfrey willfully and wantonly violated the rights of William Tod Fry . 5. William Tod Fry reported , or attempted to report, his objection to being unfairly singled out due to his status. 6. William Tod Fry was terminated for expressing his concerns and expecting equal treatment. 7. Iowa City breached its duty to William Tod Fry. 8. William Tod Fry has been damaged. G .0 v o-8- :Cts .7v 9. Said breach of duty is the actual and proximate cause of William Tod Fry's damages . WHEREFORE, William Tod Fry, the Plaintiff, prays that the Court will grant judgment against the Defendants, Iowa City and James E. Pumfrey, in an amount sufficient to compensate him for his damages and lost wages and benefits, plus interest as provided by law, and the costs of this action. Further, William Tod Fry, the Plaintiff, prays that the Court issue judgment in his favor, compelling Iowa City to reinstate him to his position as Firefighter, pay him the back wages and benefits that he would have earned, plus attorney fees , interest as provided by law, and the costs of this action. c r1-1 , DIVISION VI n- r\" ry WRONGFUL DISCHARGE/RETALIATORY CONDUCT ``b, COMES NOW the Plaintiff , William Tod Fry, and for cause of action states: 1 . Plaintiff repleads Paragraphs 1-29 of Division I . 2. Iowa City had a duty, under its affirmative action policy, not to discharge an employee or take other reprisal for reporting or attempting to report what he reasonably believed were violations of the affirmative action policy. 3 . Under the Iowa City Affirmative Action Program, retaliation is viewed as a separate grievance than discriminatory discharge. 4 . William Tod Fry reported , or attempted to report, what he reasonably believed were violations of policy of the -9- affirmative action policy . 5. William Tod Fry was terminated for expressing his concerns. 6 . Iowa City breached its duty to William Tod Fry. 7. William Tod Fry has been damaged. 8 . Said breach of duty is the actual and proximate cause of William Tod Fry ' s damages . WHEREFORE, William Tod Fry, the Plaintiff, prays that the Court will grant judgment against the Defendants, Iowa City and James E. Pumfrey, in an amount sufficient to compensate him for his damages and lost wages and benefits , plus interest as provided by law, and the costs of this action. Further, William Tod Fry, the Plaintiff, prays that the Court issue judgment in his favor, compelling Iowa City to reinstate him to his position as Firefighter, pay him the back wages and benefits that he would have earned, plus attorney fees , interest as provided by law, and the costs of this action. `'D ry C.0 Cn � C3 -0 2;,-; ---i IY' �. v DIVISION VII —IC) WRONGFUL DISCHARGE/RETALIATORY CONDUCT eD FOR WAGE AND HOUR COMPLAINT •• COMES NOW the Plaintiff, William Tod Fry, and for cause of action states ; 1. Plaintiff repleads Paragraphs 1-29 of Division I . 2. Iowa City had a duty, under the Federal Fair Labor -10- and Standards Act, not to discharge an employee or take other reprisal , for reporting or attempting to report what he reason- ably believed were violations of the wage and hour regulations. 3. William Tod Fry reported, or attempted to report, what he reasonably believed were violations of policies concern- ing overtime compensation. 4 . William Tod Fry was terminated for expressing his concerns. 5 . Iowa City breached its duty to William Tod Fry. 6 . William Tod Fry has been damaged. 7 . Said breach of duty is the actual and proximate cause of William Tod Fry's damages. WHEREFORE, William Tod Fry, the Plaintiff, prays that the Court will grant judgment against the Defendants, Iowa City and James E. Pumfrey, in an amount sufficient to compensate him and benefits for his damages and lost wages' plus interest as provided by law, and the costs of this action. Further, William Tod Fry, the Plaintiff, prays that the Court issue judgment in his favor, compelling Iowa City to reinstate him to his position as Fire- and benefits fighter, pay him the back wages/ that he would have earned, plus attorney fees, interest as provided by law, and the costs of this 7 7 action. („/.:41, WILLI F. OLINGE #LI1000014 1120 Second Avenue SE Cedar Rapids, IA 52403 (319) 364-0113 ATTORNEY FOR PLAINTIFF e..o r tNa -11- , '? ' n N END OF CASE FILE . IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY FEDERAL NATIONAL MORTGAGE ASSOCIATION, ) EQUITY NO. 53cf �a1 Plaintiff, ) vs. ) GERALD D. BRIDENSTINE, ) ORIGINAL NOTICE MARGARET P. BRIDENSTINE a/k/a Margaret Pauline Bridenstine a/k/a ) Margaret Bridenstine, LENOCH AND CILEK, INC. , ) CITY OF IOWA CITY, IOWA, _ UD STATE OF IOWA, ex rel. Iowa College ) o "1\'Student Aid Commission, and Zric, x* rn LAREW COMPANY, INC. ) c")-< Defendants . ) :<r- -7) Fri 37-70 TO THE ABOVE-NAMED DEFENDANTS: GERALD D. BRIDENSTINE, MARGAnzT P. BRIDENSTINE a/k/a Margaret Pauline Bridenstine a/k/a 44argazret Bridenstine, LENOCH AND CILEK, INC. , CITY OF IOWA CITY, IOWA, and LAREW COMPANY, INC. YOU ARE HEREBY NOTIFIED that there is now on file in the office of the Clerk of the above Court, a Petition in the above-entitled action, a copy of which Petition is attached hereto. The Plaintiff' s attorney is Robert C. Griffin of the firm of Swisher & Cohrt, whose address is 528 West Fourth Street, P.O. Box 1200 , Waterloo, Iowa 50704 . YOU ARE FURTHER NOTIFIED that unless, within 20 days after service of this Original Notice upon you, you serve , and within a reasonable time thereafter file, a written Motion or Answer, in the Iowa District Court for Johnson County, at the County Courthouse in Iowa City, Iowa, judgment by default will be rendered against you for the relief demanded in the Petition. F. STEINBREC � Clerk of the above court BY: ALA Al Johnson County Courthouse _ Iowa City, Iowa 52240 NOTE: The attorney who is expected to represent the Defendants should be promptly advised of the service of this Notice. IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY FEDERAL NATIONAL MORTGAGE ASSOCIATION, ) EQUITY NO. 53,5:11.91 Plaintiff, ) vs . ) GERALD D. BRIDENSTINE, ) PETITION IN EQUITY MARGARET P . BRIDENSTINE a/k/a Margaret Pauline Bridenstine a/k/a ) Margaret Bridenstine , LENOCH AND CILEK, INC . , ) CITY OF IOWA CITY, IOWA, STATE OF IOWA, ex rel. Iowa College ) Student Aid Commission , and - c ' LAREW COMPANY, INC . ) rr .O Defendants . ) c c7 COMES NOW the Plaintiff and for cause of action states: NOTICE THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL TWELVE MONTHS (OR SIX MONTHS IF THE PETITION INCLUDES A WAIVER OF DEFICIENCY JUDGMENT) FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING OR UNTILL: iJ r--• C TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPI ' Y 15 NOT YOUR RESIDENCE OR IS YOUR RESIDENCE BUT NOT A ONE-Fil LY--0R TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPT AFER rte. THE SALE . THE PURCHASER AT THE SALE WILL BE ENTITLED T5:: — IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASE AT THE SALE . 1 . That at all times material hereto, Plaintiff Federal National Mortgage Association was engaged in the business of mortgage banking. 2 . That on December 19 , 1978 , Defendants Gerald D. Bridenstine and Margaret P. Bridenstine were the owners of the following-described premises located in Johnson County, Iowa, to-wit: Lot Three Hundred Thirty-eight (338) in Part Five, Hollywood Manor Addition to Iowa City, Iowa, according to the plat thereof recorded in Plat Book 13 , Page 18, Plat Records, Johnson County, Iowa. 3 . That on December 19 , 1978, Defendants Gerald D. Bridenstine and Margaret P. Bridenstine made , executed and delivered unto Banco Mortgage Company their Mortgage Note in the principal sum of Fifty-two Thousand Two Hundred Dollars ($52 , 200. 00) with interest thereon at the initial rate of Nine and One-half Percent (9 . 5%) per annum, payable both principal and interest in monthly installments according to Schedule "A" shown on the attached Mortgage Note commencing on the first day of February, 1979 . A true copy of said Mortgage Note is attached hereto, marked Exhibit "A" , and made a part hereof by this reference. 4 . That to secure the payment of said Mortgage Note, N cp Defendants Gerald D. Bridenstine and Margaret P. Briderrs 'An made, executed and delivered unto Banco Mortgage Companytcthei.r Mortgage in writing of even date therewith encumbering ama w J7 premises hereinbefore described, which Mortgage was redorded.�in -2- Book 265 , Page 27 of the Mortgage Records in the office of the Johnson County Recorder on the 21st day of December, 1978 . A true copy of said Mortgage is attached hereto, marked Exhibit "B" , and made a part hereof by this reference. 5 . That subsequent to the conveyance of said Mortgage Note and Mortgage to Banco Mortgage Company, said Banco Mortgage Company did assign the subject Mortgage to Plaintiff Federal National Mortgage Association, said Assignment being dated December 19 , 1978 and filed for recording December 21 , 1978 in Book 533 , Page 335 of the Assignment records on file with the Recorder of Johnson County, Iowa. A copy of said Assignment is attached hereto, marked Exhibit "C" , and made a part hereof by this reference. tsD 6 . That the Plaintiff herein elects to pursue for closure without redemption as provided by the terms and provisi: c$ Chapter 654 . 20 , the Code of Iowa. -C7 7711 7 . That said Mortgage Note and Mortgage, being p6P-ET2alui J parcel of the same transaction, provide that in the case ofco default of the mortgagors in any particular in the payment of any installment under the Note not made good prior to the due date of the next such installment, or any part of the interest thereon promptly on maturity, or if there shall be a failure to comply with any and every condition of this Mortgage, then the Note, and the whole of the indebtedness secured by the Mortgage, including all payments for ground rents, taxes, assessments or insurance premiums, shall at the option of the mortgagee become -3- due and collectible at once by foreclosure or by otherwise and without notice of broken conditions . 8 . That Defendants Gerald D. Bridenstine and Margaret P. Bridenstine have failed to make certain payments on said Mortgage Note and Mortgage and that said default has existed for more than thirty (30) days last passed, and that demand has been made on said Defendants and that said Note is now declared immediately due and payable . 9 . That the Plaintiff has advanced the sum of One Hundred Seventy-two Dollars ($172 . 00) for abstracting fees preparatory to commencement of this suit, which sum is secured by said c, Mortgage . c? 10 . That there is due and owing Plaintiff Federal atiQ a1 , ' -t Mortgage Association on said Note and Mortgage the sum 154G O W Forty-nine Thousand Sixty-nine Dollars and Seventy-three" '-' "ent.S Co ($49 , 069 . 73) which is principal due and owing, together with interest thereon at the rate of Nine and One-half Percent (9 . 5%) per annum from April 1 , 1991 until paid, and escrow account overdraft in the amount of Five Hundred Forty-six Dollars and Sixty-three Cents ($546 . 63) , as well as late charges which have accrued on the subject loan in the amount of Two Thousand Two Hundred Dollars and Four Cents ($2 , 200 . 04 ) and preservation expense which has been incurred by the Plaintiff in preserving the subject premises in the amount of One Hundred Dollars ($100 . 00) , together with abstracting fees advanced by the Plaintiff in preparation and litigation of this matter and the costs of this action , including attorney' s fees for Plaintiff ' s -4- attorney; that an Affidavit for said attorney' s fees is filed herewith, marked Exhibit "D" , and made a part hereof by this reference. 11 . That Defendant Lenoch and Cilek, Inc. claims or may claim some right, title or interest in and to the subject premises arising out of a Judgment in a matter styled Lenoch and Cilek, Inc. vs. Margaret Bridenstine, said matter being filed in the Iowa District Court for Johnson County as Small Claims No. 15480 . Said Judgment was rendered on September 8, 1982 in the amount of $344 . 70 plus $20 . 00 costs and accrued costs in the amount of $40 . 20 . Any such right, title or interest claimed by said Defendant is junior and inferior to othe t. claim of Plaintiff under its said Mortgage. 12 . That Defendant City of Iowa City, Iowa claims @fir-1na2„s claim some right, title or interest in and to the subjer , t4 CD.-72 premises arising out of a Judgment in a matter styled Ci of;;. co Iowa City vs. Margaret Pauline Bridenstine, said matter being filed in the Iowa District Court for Johnson County as No. 84TR8200 . Said Judgment was rendered on August 10 , 1984 in the amount of $33 . 00 plus $8 .00 in costs. Any such right, title or interest claimed by said Defendant is junior and inferior to the claim of Plaintiff under its said Mortgage. 13 . That Defendant State of Iowa, ex rel. Iowa College Student Aid Commission claims or may claim some right, title or interest in and to the subject premises arising out of a Judgment rendered in its favor in a matter styled State of - Iowa, ex rel. Iowa College Student Aid Commission vs. Margaret -5- P. Bridenstine, said matter being filed in the Iowa District Court for Johnson County as Case No. 53570 . Said Judgment was entered on August 5 , 1991 in the amount of $7 , 462 . 58 plus $81 . 50 in costs. Any such right, title or interest claimed by said Defendant is junior and inferior to the claim of Plaintiff under its said Mortgage. 14 . That Defendant Larew Company, Inc. claims or may claim some right, title or interest in and to the subject premises arising out of a Judgment in its favor in a matter styled Larew Company, Inc. vs. Margaret Bridenstine, said matter being filed in the Iowa District Court for Johnson County as Small Claims No. 33573 . Said Judgment was rendered on November 14 , 1991 in the amount of $248 . 68 plus court costs in the amount of $47 . 29 . Any such right, title or interest claimed by said Defendant is junior and inferior to the claim of Plaintiff under its said Mortgage. 15. That the Mortgage Note and Mortgage aforesaid provide for attorney' s fees in case of suit thereon. 16 . That Plaintiff alleges that whatever right, titp, N claim, interest or lien Defendants, or any of them, may i!?ave against said mortgaged premises, said right, title, clai r-- -u interest or lien is junior and inferior to the lien of 5 Plaintiff' s Mortgage. co WHEREFORE, Plaintiff prays judgment in rem against the premises hereinbefore described in the amount of Forty-nine Thousand Sixty-nine Dollars and Seventy-three Cents ($49 , 069 :73) which is principal due and owing, together with interest thereon -6- • at the rate of Nine and One-half Percent (9. 5%) per annum from April 1 , 1991 until paid, and escrow account overdraft in the amount of Five Hundred Forty-six Dollars and Sixty-three Cents ($546 . 63) , as well as late charges which have accrued on the subject loan in the amount of Two Thousand Two Hundred Dollars and Four Cents ($2, 200 . 04) and preservation expense which has been incurred by the Plaintiff in preserving the subject premises in the amount of One Hundred Dollars ($100 . 00) , together with abstracting fees advanced by the Plaintiff in preparation and litigation of this matter and the costs of this action, including attorney' s fees for Plaintiff' s attorney. Plaintiff further prays judgment and decree against all Defendants herein establishing and foreclosing Plaintiff' s Mortgage against the real property hereinbefore described for the amount of said judgment, interest and costs, and thatsai2 judgment be decreed to be a first lien against said mort 'pdz= (5-) premises from the date of said Mortgage, December 19 , 19 intil :L., ri `1 JY paid. C? ca Plaintiff further prays that the lien, claim, title and/®r interest of each of the Defendants herein in and to said mortgaged premises be adjudged and decreed to be junior and inferior to the lien of Plaintiff' s Mortgage; that the Plaintiff hereby waives any rights to deficiency judgment against the mortgagors arising out of the foreclosure proceedings so that sale of the subject premises will occur promptly after entry of judgment unless a written demand for delay of sale is filed; - that the special execution for the sale of the mortgaged -7- • premises, or so much thereof as may be necessary to satisfy said judgment, interest and costs , issue, and that if any part of said property be sold under said special execution the Sheriff shall immediately issue a Sheriff' s Deed in favor of the purchaser under said foreclosure sale, or its successor in interest or its grantee; and for such other and further relief as may seem just and equitable under the premises. Plaintiff further prays that in the event the property is abandoned by the mortgagors, a receiver should be appointed to take charge thereof with the usual powers of receivers in foreclosure action. SWISHER & COHRT Attorneys for Plaintiff 528 West Fourth Street P.O. Box 1200 Waterloo, Iowa 50704 (319) 232-6555 ry By: il-C%-),f'1 C^. Robert C. Griffin -c -s 1711"2° --i `G r`C.) -o STATE OF IOWA ) 37o C:'a s s: Vit;. -- BLACK HAWK COUNTY ) I , Robert C. Griffin, being first duly sworn, on oath, depose and say that I am the attorney for Plaintiff in the foregoing action; that I have in my possession the Mortgage Note and Mortgage sued upon and am familiar with the facts in this matter; that I prepared the foregoing Petition in Equity and that the statements and allegations contained therein are true as I verily believe. Robert C. Griffin �J Attorney for Plaintiff -8- Subscribed and sworn to before me this 10 day of January, 1992. Notary Public in and for the State of Iowa a.n N L• r`11 n O%? co ) •^M%\ •• -9- r i' .»a...°::• 1011Exhibit. rtArr a. i ''''. .. t.._t.a... t. ......a.. MORTGAGE NATE 7:1e-40'71 574. .1".16•- t..•.se.11,r•y.•to oe of 761-07S24h1f70 II! .:' ( w a.. ..l M.ww A. • ...�• j WITI DRPTRRIDD rwrnzS? MSP INCREASING 1$01RTQ.Y rItITAUJSrl , ..'9A r 1 52.200.00 • • IONA CITY Joo+i.. • . ` DECZII[R 11. 197$ ♦ • Frim VAI.A Y Rr[rilly rt. the cadersigned, jointly and severally.plowlnels)to pay to i I. . BANCO MORTGAGE COMPANY o ..i.... tin-pr.cipal sumo of PITY TWO THOUSAND NO HUNDRED AND NO/100- Ibllium ' '• • 1$ 52,200.00 1, with tnterr.t from OW the rote of 1111" MIj12 AND R NMJ •r ale a per r.•Atuet( 9 1/I %)per rumor on the►•!sate rewsinitrp Imam tine to time wlpsid TGr• said priaripal and iato(•at shall by payable at the office of IIANCO Nt7RTGAf COWAN! ., in ' WATERLOO, IOWA , or at sotreof m I other place as tie holder hesydesiNts tt is i writing, moa woalhly'last animists gi ACCORDING TO SCHEDULE "A" IIL1OW . .;-• 11113111EXIIEXXICCOCOOCCXXXXCEXER rowatraci.R on th. first day of PYIRUARY , 19 79. .ad ..n the first day of each Hoath tjteresfter until the principal sad inter'st are fully pnid, *sculpt that the . final payesest of principal and iatereat. if not sootier paid,shall be due and payable os the first di,of JANUARY, 2009. DEFERRED INTEREST SHAM BE ADDED.TO THE PRINCIPAL BALANCE MOT LY AND SHALL IWIZ A$Z THE PRINCIPAL SALAMIS TO NOT MORE THAN $54,754.91. ' If*fresh 61 is the payawat of say iestallsteat ender:his note. sad if the default is sot.oatli good prior to-the dos data of the eau such iasullawnowt nt, the noe principal atm and accrued later. t a►all at oars become doe sad payable witloet •cure at the option of the holder of this note. Fallew to eaeerise this option shall sot coastllete a waiver of the right Ao declare the restore piaci/mil a.ottatof thia'ttote sad latereat thermos, dee sad payable at nice, in the event of say embargoes,default. If moil should be coessteaced (or the collectioe of this note the snderaigned hereby ',reefs) to pay ctatapry attorneys fees sed coats of collectioe. Prosest.sat, dem sad, protest and sober are hereby waived by all permits who .hall be sipasery . hereto either sa makers, sadprsers or sureties. t. M • Tlus note is motored by a first mortgage oi real estate is JOHNSON Coasty,-lo.a, SCHIDULA "A" • $332.62 during the lit note year %S7 • $157.56 during the Ind note year (v N. k... '' )11)l_tkapl1/4411A.Vairiiictiarr . • $413.21 during the 4th ants year .0-;:.C) ► '; 1444.19 during the 5th note year • L ,, "iduring or • Margaret . "r -,-;—)• -.< �`iF u . fit`) , ' •. • j .0 e ao es.u..wt mama awes. ..•'°.c•4,-' . . I 4 A .-1,.f'31 •• • ./ • • ♦ f 1S J4 4' a ... _ e }� .. I. 1 ISI l! mol !1 \F yr 4 ' �trt?nrr ittil ton. ' Ex h i b i• "Bir • 'I ,nwmw�aetas'I tit= ewes nee.v» MORTG' E • r WITH IID Il4LRISAND I*REASI M( Y INSTAII1TS I l t. • THIS MORTUAOI male this 19,th ' day of Detetaser . ID. 19 74 , ietwrea • GERALD D. RRIDENSTTNE AND MARGARET P. RRIDENSTINE, HUSIAND AND WWI of the County cat JOHNSON ,and State of Iowa,hereinafter called the Mortgagee,eat . RANCO MORTGAGE COMPANY . d . ca9nUmutated laed and existing .ale ting tinder the laws of IOWA . Karmg ite principal place of business and post-office address at WATERLOO, IOWA , .hereinafter called the Martger e: WITNL+SSFTH•Tlut the Morttayor,ip conaidentwn of FIFTY TWO THOUSAND TWO Hl1NDRRD AID X110/100 Doran(S S2,200.00 • 1,tho receipt6whereof Y hereby acknowledged,110w,by these present".SELL AND CONVEY unto the Mortgages,forever,the followmgdescnbed real estate rituallid in the Carty of JOHNSON ,State of Iowa,50 vent: - • " /7 =uC..aZa45 47 THIS,IS A PURCHASE mom MORTGAGE. 1978 DEC 21 P I2.ti I , • ttKGJi. .;. JOHNSOd CO.�i0h';. Lot Three hundred thirty eight (338) in Part Five, Boll pwod . 1 Manor Addition to lova City, Iowa, according to the platthereof recorded in Plat Rook 13, Page 18, Plat Records, Johnson County, Iowa ' . , t L _ ; , 4 Lt �fa � a/ including all budding'and improvements thereon,or that may hereafter be erected thereon,and,so far al they now are or . may hereafter belong to or be used with said real estate or buildings thereon and whether attached,ot'delached,all elevate°, all sal. steam. electric, or other heating.lighting, plumbing,ventilating.sprinkling, irrigating, water and power system's, appliances, fixtures and apparatus, all storm and screen windows and doors,and all other fixtures.together with all reats, • ream and profits thereof wall the debt secured hereby is paid at full,as well's all the revFrsion and reveraiona,reminder and remainde s. hereditaments. appurtenances and all other rights thereunto belonging of in a wise now or hpeahae appertaining And the Mortgasof hereby covenants that he is tested of the said premises in fee simple,and the he'vas good right to sell r and convey the mime,that the premises are free from all encumbrance's and that he will warrant and defend fhe Utk,to the some unto the Mortgagee against the lawful claims of all persons whorrdoever. - CONDITIONED.HOWEVER,That I!the Mortgagor.hall pay or c ' be paid to the Mortgagee.u if provided In a certain promaaory note of even date beiewilh,the terms of which are °corpora trete by reference;the'riacigal sum of rirry TWO THOUSAND TWO HUNDRED AND NO/100 , Dollen IS 52,200.04 .1,with Interest from date at the ate of NINE AND ONt MALI per centum ( • 9 1/2 S-)iter annum on the balance remaining from time to time unpaid,principal and intereef be,mg payable at the office of, RANCO 43RTGAGE COMPANY Is WATERLOO, IOWA ,or vetch otiir • plate is the holder of the Note may designate a writing,us monthly installments I( ACCORDING TO APPEARING ON THE MORT'GAIGE NOTE X C11,commencing on , the first ■y of FEBRUARY .19 79.and on the first day of each month thereafter untiltbe-pelncipal . and interest are fully paid,except that the finalayyment of p,nnci�ppal and interest, If not sooner sed,shall an g die d payable on the fust day of :JANUARY, 2009. DEFERRAL OF INTEREST MAY INCREASE TFK ,and scar.Me fully perform all the covenar.ts,conditsons'and terms of thu mortgage,then these presents shall be void.Misery/Me to rem'aia in full force and effect p� The Mortgynr covenants and agrees that. P I Hs will pay the pripcipal of and the Interest on the indebtedness evidenced by the note secured Mosby,at the tames and in the manner therein provided.Privilege a reserved to pay the debt in whole,of In an amount equal to one sir rate • monthly payments ore tine principal that are gest due on the note.on the first day of any month prior to maturity;provided. , - however.that written notice of an mtestaon to exercise such privilege u given at least thirty(301 days prior to timpanist. 2 la order mote filly to protect the security o(this mortgage,together with,and in addition to,the monthly payments of principal and interest under the terms of the note secured hereby,he will pay,,o the Mortgagee on the first day of each month until the note IS tully'peid the following wets ' la) An amount sufficient to provide the holder hereof with funds to pay the nest mortgage insurance premium if tits cj, instrument and the note secured hereby are insured,or a monthly chary lin lieu of a elortgage uwteacapnwhew) .....,.7..--. Y. if they are held by the Secretary of Housing and,Urban Development,as follows .c,y (1111 and no long as said sole of even date and this mitrument are insured or are reuseutad under the provYbooa of '" !`• the National Housing Act,an amount sufficient to accumulate in the hands of the holder one(I)Iaari mute leo C') ' Its due ce rtlannual mortgage Insuranpremium,ma lh order� to provide such holder with funds to pry lash -..— ` pc* to 'wary of Hosanna nod Urban ucopment pursuant to the National Hour*Ant,r --{ amended,and applicable Regulation thereunder;or 4l1)If,and so long as said more of even date and Ibis instrument are held by the Sei stagy of Hasa*W Uths. i Dmelopmeot,a monthly charge lin lieu of a mortgage insurance premium)which shall be le an unbent open he •:.1„. t: no-twelfth(1/12)of one-half(Mt pm' tum of the average outstanding balance'due oil the nae cangat d „,—,,---- +" without taking Ito account delinquencies or prepayments: :mM" **PRINCIPAL 1ALANCE TO $54.784.98. a%=+'.y 2ta� . e_ e,l,1 I I-1 (7 I I 1 I 11 1 1 I Wit'` ,.r; i .-, i i t LI L _ '' !. pe 5 p Lp sessem Alias")poplar ens pr snpsop'aap o ads Pi'APS 1141 S Jo Jgls�elp NO galigirMI sip - log=PS P/ooad s5 moo Irnr+p gulag'allifM°a gin pre Moo M eds.M*Rr1pip'sM*M Wig M MN _ r A Mall NM l hip 06 Mn o/ r PIM IrMbNsea'grfl p�}IMaif 1» • .f, Asnewq ass p wdi peataogsNg so tesmdow•ajJ mown peg lnssolf Jo ae.stsrd.Q 1141 Jo1souks Are to grirraarpg Ms 34$i). .. press pm 141 a i ALB - 1, W1414*s?V tagy'°H l'.Oc'N mil sept. , 8101.8.8101.8.777.1naM ars lea g sow Assam paminm slog aqpa 1 t./rllaon wvl (Twee,SSsus sass;i0/dltoM ...L -01 • •'t a/etuos 5141 to sash Nr 1111,1111 iii3oe ion 114 • 1 serTaeipis agle mi/o pug ita a Agus*Igap ay)ss t.arA.d nit of aa/poid h.eogpadp Agsuq an Myoid pus sural'suss. . - . ss+MJ5MM a1 sup,we•Apa5•e ars woo Jo Ig *so'gowns'n o kande e /ro •AnadOid-ql e taIngo sag10 pus rseiss .wsara19 . . 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MS- .. '. r. G e. e I I. his thrill Y S slab le w 1a/r�aM WayM w pit its k • mewky,or if Meme MOM a bible M oe *silk w ed may — '---Mak et■w.fes ti'611 ;` f '."' ,. of the kat illtel ata treMmd by Ike•atyep.Wirtlfttg d pageants for ylomed labra,MMI. '.ress .lac peeoYmt,shag at t�maim of than 1Mrtgege,become deo sad eogafkl of amiss yvr" rt .?, neem of broken oo.11 lo..:rad N bray thee after a.ooamamomgt et so'Mama ie rte. 41 tali.++�3• ,. nd+aptlo., the comet Imam ladedlatbo of the woe+a,et mks request of the$abiape.MOW• " . intuedtstep,ii. eapfsaid mad.of deemai andprofits.octuYlitbwfrose,adaRmlellewe•1g/, 7. •'.'*Y/�t f • Aare fa the interest of se oats mad,mad shad bis babe ho the oast of the peruse of ant to die dap Alstlae sea iia . :• - tl 1 t agpltwtica at amnia teases goats epos i duffles sod expenses oscura sed bombs aeatio.od. v �S • 12. If the sot. aorya/s,or either of than,shag be geoid M hails the of en o stary for etdhal lata mar . ",: • iat other Meal his et Mortgagor wpay a reroasb)t Wor.ey%is far say service modeled lir ass tYitit „333��� , i cw comenion herl end rsh expenses lectured. AmmanprocudeAmmanof the title les .f puma= Ike M rscl.�re ,....,,.. ! . moth sttorsey's f ad expeeess,shag be:oeeide ed as part of the Isd.beasecured this m daeas d by lMad •'i.. i`. s . ..:w/„y U. Fallen o the Mottppe to enetaba bre y option inroad area shall pot M Meats a entree of els der{ ae Mee s :.,e. .. , . suck optic*at any Bar: ! is-:''V . . i 14. If the pre or any pahahatof,be condNnawieder ea d der say power,of Wat gamma,or.puma g ,.fur . ry' r..,the damages,prucaeda and co.sNunioa from suck acquisition,to the exact of the full mama of the r upon this mortppa and the note secured hereby rematotp unpaid,ere hereby saga by W Mortgagor to ileiMar'srgik+tV end shall be paid forthwith to the Martgeg ,to be applied by it on account of the Met Yataiiwt steeds YMYte_ya► It u Naha agreed ear Chapter 62$,Code 1966,r amended.that wM thirst of the forearms a of r.ya�ep4`'. • t in the event of the failing by cowl germ a suck foreclowrn that the real estate hena laabe set out hes Ka►ehdriattl�by , .'t the owners and peewee peno.illy liable Wer the mortgages the time of fawcleswre and in tar east the,mrlpgse MOM '' my right to a deficiency judpaent spinet the mortassor de his to Menet,then the period,f ndeasplae 4sri; ' foreclosure sale will be reduced to sixty(60)days,subject to the other provrtoes of the abowtifaasord law as sett_. It is father agreed that M the meet of thr'deedosure of this mortgage sad ase of the paper*by sheriff's Ni M epi , t lorecioare prooeNy,the time of one year for t'edesspdee from laid rale provided by the aerie's of the Stale el 14114• . shall be reduced to 6 months, provided the Mortgagee waives in said foreclosure proeedtefr,any robin to a defldenay ailment against the Mortptpor which may arise out of the foteeieeer*proceedtaps. The'Mins of thle mortpp and the note-wound hereby by the moms at,the*weer le lot only to the peeped el releasing dower or distributive situs,but also for the purpose of cleating a personal liablirty for the idebtedaaw evlda*Mld by said note and secured by this mortppr. ' If more than one joie in the execution hereof at Mortppor.or say be of the feminism ea,the pn.saest Niss1pgem words herein used shag be read es If written art the plural or,the feminine rnper:nety.The covenants Mona contained dt/R . bind,and the benefits tad dventaga re i eto,the respective ha executor.,administrators.succsoae sed acres of the . parties hereto. IN WITNESS WHEREOF,the Mortiapoe(a)hes hereunto s chili hait(tt the day and yew first abeam wtitten. A • e I C t♦. AWARE*. 'fl/tAil daQJ Ma tarot P. Rridmnetine. STATE OF IOWA if---- . }s`s: COUNTY OF JOHIISON , On this 19th day of Doc ; A.D.Nineties Hundred and �aebenty eight ,before sew,a Notary in and for JOHNSON Comedy,Stage all . town,personally appeared GERALD D. SRIDE TINE Aim MARGARET P. RRIDellfffIRR, HUlRJ1MD_itlm Utla.. . to me nown to be the persorsosl nand aid who etwated ilio r foregoing instrume.t and acknon{Mdpsd that thy/ tyhm a t vahsetary at • -•Z�., and deed : ��� >_1 l 'I• ll.' l Homy Pu6fk 1444410?read Ca.." '� Del V. Royle v -.� t • 7 STATE OF IOWA_ ' COUNTY OF �r a Thu, treTw fn, s, nl /lied for Record the 4r el ' f 1 A.D. 19 s et o•oioek It.sad fib' recorded In Book of ' , at Pori • Cowrtt,Recorder •• aye•••••11J MUOmurl.$R. • • i43 dial : 2 i ` - .. ,� • ‘. - r_ ,- 0 /-1 1l t.. L. r ; l'i 1. 1% ,• 4 Exhibit "C" • IP' !�'( E14t i � ' .r�' tet ,.!i?.,...,, r For Value Received, Banco Mor ge Company. an Iowa oorPormiO^WOW f>rt•lg ii and trine,"in !OEM RATION& ICBM= ABUUCIATId1, A Corporation err .q-. ;`. _ organised and s:iatimoos: ase by virtue of the laws of`the Upitrd state sif Merita `` x' us ell Its right title and intermit in and to a certain mortppe executed by ____ D. DDIMOt» ,: ) MARGARET P. BRIDENSTINE, HUSBAND AND WIFE to Banco MbrtgegI Company, and bearing data the_ 19th day of_ Daeeebsr A D. 19 ,and recorded In r'`• 7 . . . JOHNSON County,State of IQU ' - ttte office of the Recorder of /, in Book No on Pa44- --wDocument No. � i on the 21St day of December A. D. 1418_ Signed the rqs, day of kOltlit nir.k. ' ,� A.0. 1i.L�- BANC', ��'"•' s1 By / , r Ir-,,,,FEL Richard E. Abel '"t ce President ��+ P,.t . C`rU'). FILEN`i. _ Wl0 nv^;\\C. JI-. BDOI;.S�t.LrA:-., 3;K', G� ,'►' _ . 1,71,pg 21 Ply 122 I . , STATE OF IOWA NEfi . IOWA • COUNTY OF On this 19 t+1 day of A. D. 10Z_,before me,the undersigned,a Notary Public in and for LINN ' County,personally sppaired RICHARD E. AUL. to me personally known,who being duly sworn,did say that(hn/*ttrkis the vier. PI.LRTtwtrf of Banco Monger Company and that the seal affixed to the foregoing instrument is the corporate seal of mid • corporation and Alit said instrument was signed and sealed on behalf of said corporation by authority of .. RICHARD E.ABEL acknowledged the e�+icutfon Its Board of Directors,and the said • - of said instrument to be the voluntary act and deed of said Banco Mortgage Company,by it voluntarily done'and executed. r. Witness my hand and notarial anal the day end. last above written. r: ': ary • IA mind for said County.&Stew r • . A�-SA • • sic-v • > '1', . y, a . Exhibit "D" AFFIDAVIT FOR ATTORNEY FEES sons co ,,,o,,oc on. 021 P-lo96 Form 110 Iowa Official form No. 119 (Sec.625.24) IN THE IOWA DISTRICT COURT, JOHNSON COUNTY FEDERAL NATIONAL MORTGAGE ASSOCIATION TERM, 19 vs. AFFIDAVIT OF PLAINTIFF'S ATTORNEY GERALD D. BRIDENSTINE, ET AL FOR ATTORNEY'S FEES Robert C. Griffin , being duly sworn, do depose and say that I am a regular attorney, and one of the attorneys of Plaintiff, and that the fee claimed herein is for services actually rendered in this cause. That there has been and is no agreement, expressed or implied, between me and my client, or between me and any other person, unless a practicing attorney engaged as such with me in this cause, for any division, or sharing of the fee to be taxed. That the Defendant had information of the whereabouts of the contract sued on, and reasonable opportunity to pay the same before suit was brought therein. Robert C. Griffin STATE OF IOWA, JOHNSON COUNTY, ss. Subscribed and sworn to by Robert C. Griffin , before me, this day of January , A. D. 19 92 Th J313 AII5c 14d LI 11111E6 r_�. ui -nom Oz : Notary Public in and for the State of Iowa Uzi lid 14, END OF CASE FILE IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY CRAIG DEMMON, ) LAW NO. 54570 Plaintiff, ) vs. ) ORIGINAL NOTICE CITY OF IOWA CITY, ANTHONY JAMES) WORRELL, ) ) Defendants. ) TO THE ABOVE-NAMED DEFENDANTS: You are hereby notified that there is now on file in the office of the Clerk of the above Court, a Petition in the above- entitled cause of action, a copy of which Petition is attached hereto. The Plaintiff ' s attorney is Eleanor M. Dilkes of the law firm of Weideman & Dilkes, whose address is 310 Savings & Loan Building, P.O. Box 1576, Iowa City, Iowa 52244 . You are further notified that unless, within 20 days after service of the original notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court in and for Johnson County, at the County Courthouse in Iowa City, Iowa, judgment by default will be rendered against you for the relief demanded in the Petition. 1"11^ A .4 AAA". ADA LAJEAIME -/4 CLERK • THE ABOVE COURT Johnson County Courthouse Iowa City, Iowa NOTE: The attorney who is expected to represent the Defendant should be promptly advised by the Defendant of the service of this notice. ‘,FC4-12 i2 :'1_13 :Z 330 Zo .. .5.. ¢ a 1992 CO, IN THE DISTRICT COURT OF IOWA IN AND FOR JOHNSON COUNTY (•00),T ;1QOART CRAIG DEMMON, ) LAW NO. Plaintiff, ) vs. ) PETITION CITY OF IOWA CITY AND ANTHONY JAMES ) WORRELL, ) Defendants. ) COMES NOW, Plaintiff, Craig Demmon, and for his cause of action against Defendants, states: 1. Craig Demmon is a resident of Johnson County, Iowa. 2 . Defendant City of Iowa City (hereinafter referred to as "City") is a municipal corporation located in Johnson County, Iowa. 3 . Defendant Anthony James Worrell (hereinafter referred to as "Worrell") is a resident of Johnson County, Iowa. At all times herein mentioned, Defendant Worrell was the duly appointed, qualified and acting servant and employee of Defendant City and was acting within the course and scope of his employment. 4. On or about December 4, 1990, Plaintiff was traveling southbound in the left southbound lane of Dubuque Street in Iowa City, Iowa. Defendant Worrell was operating a snow plow and was traveling southbound in the right southbound lane of Dubuque f ' 2 Street. Defendant Worrell lost control of said vehicle and the snow plow traveled into the left lane of traffic, and struck Plaintiff's vehicle. 5. On or about December 4, 1990, the snow plow being driven by Defendant Worrell was owned by Defendant City of Iowa City and Defendant Worrell was operating, the motor vehicle with the permission of Defendant City of Iowa City. 6. On or about December 4, 1990, Defendant Worrell was an employee of the City of Iowa City and in operating said snow plow he was acting within the course and scope of his employment. 7 . At the time and place of said accident, Defendant Worrell owed Plaintiff a duty to operate said snow plow in a manner required of a reasonable and prudent person under the circumstances. 8. Defendant Worrell breached his duty to Plaintiff in allowing the accident to occur because of one or more of the following acts or omissions: A. Defendant failed to have control of his vehicle in violation of Section 321. 288 of the Iowa Code. B. Defendant failed to have his vehicle under control because he was unable to guide and direct its movement, control its speed and stop it reasonably fast, as required by the common law. C. Defendant failed to keep a proper lookout. D. Defendant failed to operate his vehicle as a reasonable__and' prudent person would operate his vehicle. {i3 =Z k!d 'i- 330 Z6 3 9 . As a direct and proximate result of one or more of the negligent acts or omissions set forth above, Plaintiff suffered severe and permanent injuries which caused him to sustain a loss of the function of his full body, physical impairment, pain, physical and mental pain and suffering; which caused him to incur expenses for medical treatment of his injuries; and which caused him loss of earnings. 10. Plaintiff's injuries will continue in the future to cause him a loss of the function of his full body, physical impairment, and physical and mental pain and suffering. His injuries will continue to cause him to incur expenses for medical treatment and his injuries may cause him a loss of earning capacity in the future. 11. Plaintiff's claims meet or exceed any applicable jurisdictional requirements of the Iowa District Court for amount in controversy. 12 . Pursuant to Iowa Code Section 321.493, and the doctrine of respondeat superior, Defendant City of Iowa City is responsible for the damage caused by the negligence of Defendant Worrell. WHEREFORE, Plaintiff respectfully requests that judgment be -entered against Defendants City of Iowa City and Anthony James Worrell, jointly and severally, for damages sustained in such amount as is reasonable and just, for interest thereon at the maximum rate allowable by law, and that the costs of this action be taxed to. the -Defendants. id 3113-&13 `3 ' 7 - Ti cs:Y 4 r 4 0-)s V/At./4/k . Eleanor M. Dilkes Weideman & Dilkes 310 Savings and Loan Building P.O. Box 1576 Iowa City, Iowa 52244 (319) 337-6444 Attorney for Plaintiff • 113 'z i.Ed 17- 330 es . . . 1 1 1,92 ot.„ p IN THE DISTRICT COURT OF IOWA IN AND FOR JOHNSON CQUNTY�U � 3:04 sr `'oHksp4°jST tier RECH CpurrT OotiRT CRAIG DEMMON, ) LAW NO. Plaintiff, ) vs. ) DEMAND FOR JURY TRIAL CITY OF IOWA CITY, ANTHONY JAMES ) WORRELL, ) Defendants. ) COMES NOW, Plaintiff, Craig Demmon, by and through his undersigned attorney, and hereby demands that trial in this action be by jury. • Eleanor M. Dilkes Weideman & Dilkes 310 Savings and Loan Building P.O. Box 1576 Iowa City, Iowa 52244 (319) 337-6444 Attorney for Plaintiff ViCit \lig0J-11 110 0313 .l7 :L 333 ZS - t END OF CASE FILE AO 440 IRav 1501 Summon,m a Cnii Action nifeb States ! istrirt (Court Southern DISTRICT OF Iowa DARRYL DAVIS SUMMONS IN A CIVIL ACTION CASE NUMBER: 4-92-cv-10552 V. IOWA CITY, IOWA; R. J . • WINKLEHAKE, SGT. CUMMINGS; UNKNOWN IOWA CITY POLICE OFFICERS, o :c n C c-c TO:Name .me and MICROS Clof Defendant) t CITY CLERK O(n —ri N "J OF CITY, IA CITY CIVIC CENTER curl 410 E. WASHINGTON IA CITY, IA 52240 YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon PLAINTIFF'S ATTORNEY Inane and address) DARRYL DAVIS, PRO SE IOWA MEN' S REFORMATORY BOX B ANAMOSA, IA 52205 an answer to the complaint which is herewith served upon you, within 20 days _days after service of this summons upon you, exciusiv.1 of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. freny 442(2.L.....„....„ AUG 2 01992 CLERK DATE _ BY D uTY CLERK NOTICE AND ACKNOWLEDGMENT FOR SERVICE BY MAIL United States District Court for the Southern District of Iowa-Central Division DARRYL DAVIS Civil Action 4-92-cv-10552 v. ) Notice and Acknowledgment IOWA CITY, IOWA; ) of Receipt of Summons R. J. WINKLEHAKE; ) and Complaint SGT. CUMMINGS; ) UNKNOWN IOWA CITY POLICE OFFICERS NOTICE o tai To: CITY CLERK >--, o OF CITY, IA CITY oN `=m CIVIC CENTER —1n - 4i0 E. WASHINGTON IA CITY, IA 52240 0-73 The enclosed summons and complaint are served pursuanVtb Rule cri 4 (c) (2) (C) (ii) of the Federal Rules of Civil Procedure. You must complete the acknowledgment part of this form and return one copy of the completed form to the sender within 20 days. You must sign and date the acknowledgment. If you are served on behalf of a corporation, unincorporated association (including a partnership) , or other entity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority. If you do not complete and return the form to the sender within 20 days, your (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons and complaint in any other manner permitted by law. If you do complete and return this form, you (or the party on whose behalf you are being served) must answer the complaint within 20 days. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. I declare, under penalty of perjury, that this Notice and Acknowledgment of Receipt of Summons and Complaint will have been mailed on August 20 , 1992 f fLC- a .� S'gnature '-t u�y Date o Signature ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT I declare, under penalty of perjury, that I received a copy of the summons and of the complaint in the above-captioned matter at (insert address) . Signature Relationship to Entity/Authority to Receive Service of Process Date of Signature (Added Pub. L. 97-462 , Sec. 3 , Jan. 12 , 1983 , 96 Stat. 2529, and amended Apr. 29 , 1985, eff. Aug. 1, 1985. ) ro N J' N -C _O O� N j ci AO aa0114.1901 Summon,in,Civil Morn 1niteb States fjistrirt Clint Southern DISTRICT OF Iowa DARRYL DAVIS SUMMONS IN A CIVIL ACTION V CASE NUMBER: 4-92-cv-10552 IOWA CITY, IOWA; R. J. WINKLEHAKE, SGT. CUMMINGS; UNKNOWN IOWA CITY POLICE N OFFICERS, o :a.n ccs 1 —I0 -Cr- - TO:(Mame and a.dmaas of Defandanif —m —`` CITY CLERK o N OF CITY, IA CITY i_n CIVIC CENTER 410 E. WASHINGTON IA CITY, IA 52240 YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon PLAINTIFF'S ATTORNEY inn and address) DARRYL DAVIS, PRO SE IOWA MEN' S REFORMATORY BOX B ANAMOSA, IA 52205 an answer to the complaint which is herewith served upon you, within 20 days days after service of this summons upon you, exciusiv.; of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. AUG 201992 CLERK DATE _ 07&q.44-2_1-e2 BY DEPUTY CLERK NOTICE AND ACKNOWLEDGMENT FOR SERVICE BY MAIL United States District Court for the Southern District of Iowa-Central Division DARRYL DAVIS Civil Action 4-92-cv-10552 v. ) Notice and Acknowledgment IOWA CITY, IOWA; ) of Receipt of Summons and Complaint N R. J. WINKLEHAKE; p SGT. CUNNINGS; ) tin C: 'c-i UNKNOWN IOWA CITY POLICE -NOTICE c> N � u OFFICERS To: CITY CLERK �r- OF CITY, IA CITY ry al CIVIC CENTER �` •• 410 E. WASHINGTON cn a% IA CITY, IA 52240 The enclosed summons and complaint are served pursuant to Rule 4 (c) (2) (C) (ii) of the Federal Rules of Civil Procedure. You must complete the acknowledgment part of this form and return one copy of the completed form to the sender within 20 days. You must sign and date the acknowledgment. If you are served on behalf of a corporation, unincorporated association (including a partnership) , or other entity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority. If you do not complete and return the form to the sender within 20 days, your (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons and complaint in any other manner permitted by law. If you do complete and return this form, you (or the party on whose behalf you are being served) must answer the complaint within 20 days. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. I declare, under penalty of perjury, that this Notice and Acknowledgment-of Receipt of Summons and Complaint will have been mailed on August 20, 1992 . / c� l/�x)le Si nature Yl u/ YL— Date LDate of Signature ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT I declare, under penalty of perjury, , that I received a copy of the summons and of the complaint in the above-captioned matter at (insert address) . Signature Relationship to Entity/Authority to Receive Service of Process Date of Signature (Added Pub. L. 97-462, Sec. 3 , Jan. 12 , 1983 , 96 Stat. 2529, and amended Apr. 29, 1985, eff. Aug. 1, 1985. ) ..o N • 7 c tV -- CJ 1 n .-r O!. ?Z cn 01 � � � ' n FILED 92 AUG 2!+ PH 12: 56 AUG 1 8 19a CITY CLEN IN THE UNITED STATES DISTRICT COURT IOWA CI T Y. I O VIA SOUTHERN DISTRICT OF IOWA CLERK U.S, DISTRICT COURT CENTRAL DIVISION SOUTHERN DISTRICT OF IOWA DARRYL DAVIS, * NO. * (Control No. 255) Plaintiff, vs. 4 - 92 - ] 0552 IOWA CITY, IOWA; R. J. WINKLEHAKE, Sgt. CUMMINGS; * INITIAL REVIEW ORDERS Unknown Iowa City POLICE OFFICERS, * Defendants. The court has before it for initial review a pro se complaint submitted by an inmate of the Iowa Men's Reformatory. The complaint is brought under 42 U.S.C. §1983 and jurisdiction is predicated on 28 U. S.C. §1343. Plaintiff seeks injunctive and declaratory relief and damages and requests leave to proceed in forma pauperis. To state a claim under §1983 , a plaintiff must allege that he was deprived of his constitutional rights by defendants while acting under color of state law. A pro se complaint in a proceeding in -forma pauperis must be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) . However, it can be dismissed on initial review if the claim is malicious or frivolous. 28 U. S.C. §1915 (d) ; Horsey v. Asher, 741 F.2d 209, 211 (8th Cir. 1984) . A claim is "frivolous" if it "lacks an arguable basis in law or in fact. " Neitzke v. Williams, 109 S. Ct. 1827 , 1831 (1989) . Thus, the term "frivolous" includes "not only the inarguable legal conclusion, but also the fanciful factual allegation. " Id. Plaintiff is a black man. He contends that defendants falsely arrested him in July and August of 1990 on two separate charges. He asserts that he was acquitted on burglary and assault charges, and that the charge was dismissed. Apparently plaintiff's present incarceration is not a result of the charges which underlie this complaint. Plaintiff asserts that the two events which underlie this case were merely part of a series of actions taken by the Iowa City Police Department to harass and persecute him because of his race. He also asserts that these actions were taken at the behest of defendant Winklehake, Chief of Police of Iowa City. These contentions do not appear to be frivolous. The complaint shall be filed without the prepayment of costs. Permission to proceed in forma pauperis is granted. Service of process shall issue by mail to defendants according to law. The clerk need not serve any defendant identified only by description or incomplete name. Plaintiff should provide full names and addresses of any such defendant if they become available to him. Plaintiff request a preliminary injunction. Plaintiff has alleged that he presently resides at the Iowa Men's Reformatory at Anamosa, Iowa. There is no reasonable poGaibi,Vty D C-) S c-) r 2m .d N : J cn rn that he will be subjected to further false arrests or harassment by the Iowa City Police while he is a resident at the Reformatory. The request for a preliminary injunction is denied. See City of Los Angeles v. Lyons, 461 U.S. 95, 105, 111-13 (1983) (no "case or controversy" as to injunctive relief claim when future exposure of plaintiff to misconduct is speculative; no irreparable injury when future damage speculative) ; Dataphase Systems, Inc. v. C L Systems, Inc. , 640 F.2d 109, 114 (8th Cir. 1981) . IT IS SO ORDERED. Dated this r $ 'day of August, 1992. 'ON- D E.'4t• s in • , PIC Gre Sou hen District of/low . CD 9-1 7� N •o Cr< s • cn 3 AO 240 (Rev.6/86) Application to Proceed xtitrb States pistrirt C�uixreft; Rb Soup � � ] o uLR.N DISTRICT OF LA�JEN PO R��:",:r•„ Z •. ti7i,` APPLICATION TO PROCEffi/, J A P VI L L P V S FORMA PAUPERIS, SUPPORTING v. DOCUMENT TION AND ORDER .LOO_ CITY IOWA CASE NUMBER: R. WINkLE i{AVf , EI",AL. I, L�ARR`(L DAVIS• , declare that I am the (check appropriate box) ® petitioner/plaintiff ❑ movant (filing 28 U.S.C. 2255 motion) ❑ respondent/defendant ❑ other in the above-entitled proceeding; that, in support of my request to proceed without being required to prepay fees, cost or give security therefor, I state that because of my poverty, I am unable to pay the costs of said proceeding or give security therefor; that I believe I am entitled to relief. The nature of my action,defense, or other proceeding or the issues I intend to present on appeal are briefly stated as follows: koO ti 0 G7 (i i -‹ N = —i CJ In further support of this application, I answer the following questions. err , O ;J 1. Are you presently employed? Yes 0 Y'No a. If the answer is "yes," state the amount of your salary or wages per month, A8 give the name and address of your employer. (list both gross and net salary) 1 PER DAti 5.10 PEQ MCNTI4 b. If the answer is "no," state the date of last employment and the amount of the salary and wages per month which you received. 2. Have you received within the past twelve months any money from any of the follow- ing sources? a. Business, profession or other form of self-employment Yes 0 No Qv b. Rent payments, interest or dividends? Yes ❑ No [' c. Pensions, annuities or life insurance payments? Yes 0 No da, d. Gifts or inheritances? y Yes r: No ler E�/ e. Any other sources? Yes 0 No . f• kLcD IN ULtsnv. • •-- DATE IN THE UNITEll STATES DISTRICT 4C-,.:;;.,L4.1".,. A Pe COURT' SOUTHERN: DISTRICT •si DAVENPORT DIVISION »Q2crao DARRYL DAVIS 0D1�S/ # CAUSE NO#-� 9 2 - 10 5 5°��' PLAINT IFF # :CAR # COMPLAIN T FOR: * * VS . * -FALSE ARREST * -FALSE IMPRISONMENT IOWA CITY,IOWA * MALISIOUS PROSECUTION R.J. WINKLEHAKE, i -DENIAL OF EQUAL PROTECTION SGT . CUMMINGS,AND * UNDER THE LAWS OTHER UNKNOWN IOWA * -CONSPIRACY TO VIOLATE KNOWN CITY POLICE OFFICERS, * CONSTITUTIONAL RIGHTS DEFENDANI TS. * DISCRIMINATION AGAI4ST * PLAINTIFF AS A BLACK MALE * ENFORCING A FALSE ARREST * POLICY * -INTENTIONAL INFLICTION OF * UNDUE EMOTIONAL DISTRESS , * PHYSICAL INJURY AND PAIN. # # # l0 # _ N # 0-: C ;� # :• F- # Cr rn # p N l # g DIVISION I Comes now, the above-n aimed plaintiff Darryl Davis,and states this is a civil rights complaint under title 12 U.S.C. section 1983 for damages and violations of known constitutional rights with an assortment of other actions and claims as herein described and complained of. DIVISION! II JURISDICTION 1).. This court has jurisdiction under title 2& section-- 1391-- general jurisdiction and 130, and plaintiff does hereby invoke the pendent jurisdiction of this court. PLEASE PLACE NE FOLLOWING CONTROL NUMBER ON ALL CORRESPONDENCE SENT ("1) TiiIS OFFICE UNTIL SUCH TIME AS THE :'. ) ; 1 ORDERS THE CASE FLED AND A NUMBERASSIGNEE//D. CONTROL N0 SLS • 2') . Plaintiff Darryl Davis was a citizen of the state of and a student at the University of Iowa majorifg in journalism and media communications and a resident of Iowa City,Iowa when this action arose but presently an inmate in- carcerated here at the Iowa Mens Reformatory at Anamosa Iowa and at all times mentioned is material and relevent to this action. 3) . Defendant Iowa City,Iowa is a municipality incor- porated under the laws of the state of Iowa at Johnson county Iowa, which establishes the rules,regulations,guidelines,pol icies and procedures of which plaintiff complains of and at all times mentioned is material and relevent to this action. 4) . Defendants Winklehake ,Cummings and unknown officers are police chiefs,police officers and agent of the defendant Iowa City,Iowa and are the direct participants and principals involved in this matter. The acts,conduct and practices of these defendants are undertaken at the direction of and in the furth- erance of the official policies. Practices and objectives of Iowa City,Iowa and police chief Winklehake all of which plain- . tiff makes complaint of and as a direct result of these defen- dants acts plaintiff and him rights have been injured and violin ated,and at all times mentioned these defendants are material and relevent to this action. 5) . Each defendant above-named was acting under color of state law ,under an official policy and joined in this action In in their official capacities and at times' each defendant was -acct- "a ing under an unofficial policy and are joined in this action T%-, their individual capacities and are held liable in each. _• G' c)-<1c=- 6) . Plaintiff seeks declaratory and injunctive relief =�n � °-fl pursuant to title 28 U.S.C. sections 2201 and 2202, 7). Plaintiff does hereby demand trial byf' n jury 8) . This action meets jurisdictional requirements and exceeds exclusive of interest and costs the sum of 50, 000. 9) . Plaintiff seeks 84 million dollars in damages and other compensation. DIVISION III FACTS This action arises from a continuous conspiracy by the Iowa City, Police Dept. , to falsely arrest Blacks and other minorities in Iowa City, Iowa. There is a series and continrious pattern of falsely arres- ting Plaintiff--these two transpired in July and August of 1990. On or about July 10th 1990 Plaintiff was falsely arrested by Defendants for 1st DegeecBurglary and an Assault. Sometime thereafter in August 1990, Defendants, ('2) • arrested plaintiff falsely on a theft charge. Plaintiff re- mained in jail 814 days under a 23,000 thousand dollars bond on these charges. On September 25, 1990 plaintiff went to trial by jury and was found not guilty and &quitted of both the 1st degree burg-lary and assault charges. Thereafter the other theft charge was dismissed. During this 84 day period that plaintiff was under fal- se arrest and false imprisonment plaintiff lost his apart- ment and living space. His employment with Sheller Globe - ((II'..T'.A_ !bchnologies ),his pedigree pit bull was put to sleep because he was unable to pay the bills at Julia s Kennel, and plaintiff' s privacy,character and reputation was invaded, labeled and defamed and subjected to public ridcule,because of published media accounts reported. Plaintiff has filed numerous complaints with the Iowa City Police Dept. Complaining of illegal arrests,beatings by officers,harrassment and other racist tactics leveled against him by Iowa City Police officers all of which no act- ion was taken and ignored by the defendants. In an unrelated arrest that also resulted in the charges being dismissed and only stated here to show the continuing false arrest practice and the active conspiracy to falsl9y: arrest plaintiff and abuse him and his rights--In August 1989 plaintiff suffered a severe beating by the Iowa City Police and several exaggerated charges were falsley filed against plaintiff. All of those charges were dismissed when none of the six(6) or eight(8) Iowa City Police officers showed up at trial to testify. Plaintiff had taken pictures of himself after this Rodney King -Type-of-attack and secured his medic cal records discribing those tortures. . .When defendant (in this instant case ) affected this false arrest. They confis- cated plaintiff's briefcase which contained those pictures o and medical records supporting his other complaints and ref- n used and continue to refuse to return plaintiff's property c�� N and evidence and medical records. By this withholding def- r r endants attempt to conceal and cover-up those as well as r -o (-1 y other illegal police activities. o ry _-. s'• rn Ql There are a number of arrests, incidents and confront- ations all initiated by the Iowa City Police involving plain- tiff over a short period of time that will show a long and historic pattern of the abuses of plaintiff and show an act ive conspiracy under the direction and guidance of police cheif Winklehake instructing his officers and these defen- dants to Paisley arrest plaintiff and falsley imprison him. (3) Plaintiff has suffered at least 20 arrests by the Iowa City Police Dept. With numerous of these arrests being dis- missed land it appears that Iowa City,Iowa and the defendants have an active false arrest policy or an unofficial false ar- rest policy that officers enforce thattas resulted in a num- ber of false arrests of the plaintiff.Plaintif£ believes that with no action taken after he complains and the officers still employed,that under this silence these practices of fal- sley arresting persons is the accepted and authorized as well as instructed daily routine and policy of the named defendants recommanddde"and enforced. After these arrests no evidence,witnesses or facts are produced to support then and some are just outright dismissed. plaintiff will produce evidence ,witnesses,facts ana other in- formation to show the Iowa City Police DEpt. actively con- spires to not only false arrest, ''alsley imprison and mali- ciously prosecute plaintiff but also a number of other blacks and minorities living in Iowa City,Iowa. ''Plaintiff as a citizen and plaintiff as a black man should be able to live his life in Iowa City,Iowa without the fear that every few months he may be beaten or falsely ar- rested,falsely imprisoned in jail for several weeks under ex- cessive bails only to have the charges dismissed.Plaintiff further believes that he does not need this arbitrary racist harrassment and discrimination leveled against him by the Iowa City Police Dept. and the defendants herein. Plaintiff needs to emphasize to the defendants that they can not just go around arresting black people,put them in jail for weeks,without evidence,witnesses or facts to support the charges and then dismiss the charges only to arrest blacks again and again dismiss the charges this policy,practice and pattern is unconstitutional and violates a blackman's rights. Because plaintiff suffered arrests under the policy,prac- tice and pattern herein described in July and August of 1990 and thereafter maliciously prosecuted by the named defendants and remained falsely imprisoned until October 2nd 1990 until the chargeweredismissed and because plaintiff suffered the loses and injury herein described during those 84- tTdf?piain-- N tiff seeks 84-million dollars in damages from the named and o unnamed defendahts. n : N _ (4) cr 2-1 o x � cn DIVISION IV CLAIMS Plaintiff makes claim that the actions herein described are racist endsdiscriminatory and contrary to the United States Constitution and this states bill of rights and has denied plaintiff equal protection under the laws and has violated plain- tiff's; rights.The conduct practice,policy and pattern violates plaintiff's 4th,5th,8th,and 14th amendment::rights. AO) .Plsintiff alleges the intentional infliction of emotion- al distress, BO).Plaintiff alleges false arrest and false imprisonment, CO) .Plaintiff alleges malicious prosecution and abuse of pro- cess, DO) .Plaintiff alleges racism and discrimination. E0) .Plaintiff alleges a false arrest policy. F0) .Plaintiff alleges a conspiracy to violate his rights and falsely arrest him and a conspiracy to illegally convict him of false charges and a conspiracy to con- ceal illegal police activities. RELIEF COUNT I • Because of the content of this complaint,the claims above and the allegations in A-F above plaintiff,his property and his rights have been violated,injured and destroyed because of the same plaintiff is entitled to the damages as herein en- N umerated. o -c- c >= G n RELIEF REQUESTED ry s- 7 1) . GRANT PLAINTIFF: ;<rn a A) . Actual and punitive damages in the amount of o? N 84.-million and enter judgement against the nam ' �- and unnamed defendants for the same and such other relief plaintiff is entitled to. 2) . GRANT PLAINTIFF: A) . A declaratory judgement that plaintiff,his property and his rights have been violated injured and destroyed, B) . A declaratory judgement that defendants caused the violations,injury and deprivation.Plaintiff complains of, C) . A declaratory judgement that plaintiff is en- titled to the relief requested and sought. (5) 3) . GRANT PLAINTIFF: A) . A declaratory preleminary injunctions direct- ing defendants to stop enforcing their false arrest policy or stop falsely arresting Blacks and minorities and stop doing what plaintiff complains of, B) , Issue a permanent injunction against the named defendants and bar them from ever doing what plaintiff complains of now and in the future. WREREFORE,plaintiff prays that judgement be entered against the defendants. WHEREFORE, this action is prayerfully sought. Respectfully submitted, /44-L- D R DA IS El- DATED: -DATED: JULY 30,1992 PO BOX B. ANAMOSA,IOWA 52205 ff.:-19 d y cL. r-Iq.-- , 19 92- fdc PublicF. Q.�e h QR^J O -� `n C C7 N r -a _m N u7 J • END OF CASE FILE AO 440 May.5/85) Summons In a Civil Action #� #a#rz pistrirt Qltntrt SOUTHERN DISTRICT OF IOWA - DAVENPORT DIVISION NATHANIEL C. BURGS , SUMMONS IN A CIVIL ACTION Plaintiff, CASE NUMBER: V. CITY OF IOWA CITY, IOWA; R. J. Winkleheke , Police Chief, ICPD; Paul Suepple , Detective, ICPD; Jerry Knock, Detective , ICPD; Officer Kibbee , ICPD; Sgt . Widmer, ICPD; Officer Steffen , ICPD; RECEIVED TO;Nam*and Address of wtandano FEB 1 2 1992 C!?Y ATTOR'dEY'S Obi(CE 511J YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon PLAINTIFF'9{ATTORNETr YniCNADNAii)x at : Nathanial C. Burgs 700851b ISP-Ft .Madison Box 316 Ft . Madison , Iowa 52627 an answer to the complaint which is herewith served upon you, within twenty ( 20 ) days after service of this summons upon you, exclusive of the day of service. If you fail to do so, Judgment by default will be taken against you for the relief demanded in the complaint. ry r -.r N -,r -n o P.%) C11 .G" JAMES R. ROSENBAUM February 11 , 1992 CLERK DATE 011°0 , ‘,1/•— a'C� BY 9' - CLERK 3: 37 IN THE UNITED STATES DISTRICT COURT c._ �E -G Pi i SOUTHERN DISTRICT OF IOWA DAVENPORT DIVISION _ . NATHANIEL L. BURGS, * NO. 3-91-cv-70093 * Plaintiff, * vs. * IOWA CITY, IOWA; IOWA CITY POLICE DEPARTMENT; CHIEF R. J. WINKLEHEKE; PAUL SUEPPLE; * FURTHER INITIAL JERRY KNOCK; DAN MOORE; * REVIEW ORDER Officer DUFFY; PATRICK HARNEY; * Officer KIBBEE; Officer STEFFEN; MAGISTRATE SLADEK; H. DELANOIT; LINDA McGUIRE; ,_o J. PATRICK WHITE; MIKE WALLACE; TOM MILLER; Sgt. * _ ` , WIDMER; * ''� * G3 Defendants. * '� 3: This is an action brought by an inmate pro se under 42 U.S.C. §1983 . In the court' s initial review order plaintiff was instructed to shorten his 25 page complaint and delete superfluous detail . Plaintiff has filed what he captions a "Supplemental Complaint. " To state a claim under §1983 , a plaintiff must allege that he was deprived of his constitutional rights by defendants while acting under color of state law. A pro se complaint in a proceeding in forma pauperis must be construed liberally. See Haines v. Kerner, 404 U.S. 519 , 520 (1972) (per curiam) . However, it can be dismissed on initial review if the claim is malicious or frivolous. 28 U.S.C. §1915 (d) ; Horsey v. Asher, 741 F. 2d 209, 211 (8th Cir. 1984) . A claim is "frivolous" if it "lacks an arguable basis in law or in fact. " Neitzke v. Williams, 109 S.Ct. 1827 , 1831 (1989) . Thus, the term "frivolous" includes "not only the inarguable legal conclusion, but also the fanciful factual allegation. " Id. Plaintiff' s "Supplemental Complaint" will be treated as an amended and substituted complaint. In the substituted complaint plaintiff does not mention defendants Sladek, a Judicial Magistrate; Delanoit, an Assistant County Attorney; McGuire, an Assistant County Attorney; White, the Johnson County Attorney; Wallace, an assistant Attorney General of the State of Iowa; and Thomas Miller, formerly Attorney General of Iowa. The claims against these defendants shall be dismissed, and their names removed from further captions. The allegations in the complaint involve events associated with plaintiff' s arrest on August 2 , 1989 . Plaintiff contends that defendants engaged in two or more illegal searches and seizures, falsely imprisoned him, and maliciously filed criminal charges against him. The charges were eventually dropped. Based on what is presently before it, the court cannot say that the complaint as a whole is frivolous. Plaintiff also names as a defendant "Iowa City Police Department, " an agency of defendant Iowa City, Iowa. It serves no purpose to retain as a defendant the police department, when plaintiff' s complaint alleges responsibility on the part of the City. The claim against Iowa City Police Department shall be dismissed as frivolous, and the department removed from the caption. The substituted complaint adds Sergeant Widmer as a defendant. He shall be added to the caption. Plaintiff' s complaint contains no facts which would support the liability of defendants Moore and Harney:E-ThClclims against them shall be dismissed and their names shall by removed N from the caption. See 28 U.S.C. § 1915 (d) . _ -� t-n C mw r" 2 Plaintiff claims that during a search of his apartment defendant Officer Duffy went back to the police station to check the files listing stolen property, then returned to the apartment and seized items under the plain view doctrine. This is not sufficient to state a constitutional violation. The claim against Duffy will be dismissed and his name removed from the caption. Plaintiff's request for permission to proceed in forma pauperis is GRANTED. IT IS ORDERED that the complaint be filed without the payment of costs. IT IS FURTHER ORDERED that the claims as to defendants Sladek, Delanoit, McGuire, White, Wallace, Miller, Iowa City Police Department, Moore, and Harney shall be dismissed as frivolous. See 28 U.S.C. §1915 (d) . IT IS FURTHER ORDERED that service of process issue by mail to defendants Iowa City, Iowa; Winkleheke; Suepple; Knock; Kibbee; Widmer; and Steffen. Dated this day of February, 1992 . (ot-10-(-0--) b. HA fOLD D. VIETOR, Chief Judge Southern District of Iowa NJ -n rrl r-71 -e' N r cn o-- 3 , ;c t?;Ga -06•. IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA ;.�, v? DAVENPORT DIVISION ,*,t;: •""O Nathaniel L. Burgs , * Cause No . 3-91-CV-70093 Plaintiff , * SUPPLEMENTAL Vs . * COMPLAINT FOR : * Iowa City, Iowa, * -Illegal Search and Seizure Iowa City Police Dept . , * -Invasion of Privacy Police Chief R. J .Winkleheke , * -Intentional Infliction of Sgt . Widmer, * Emotional Distress Det . Paul Suepple , * -Conspiracy To Conceal I1- Det . Jerry Knock, * legal Police Activities Det . Dan Moore , * -Conspiracy Motivated By I11- Officer Duffy, * Will To Misuse the Legal Pro- Capt . Patrick Harney, * cess for Illegal Purposes Officer Kibbee„ and * -False Arrest & False Imprisonment Officer Steffen, * -Malicious Prosecution/Abuse of Defendants . * Process * -Defamation/Libel and Slander * -Violation of Known Constitu- * tional Rights Comes Now the above-named Plaintiff , Nathaniel L. Burgs , and states this i: an interrelated Title 42 U. S . C. , § 1983 and § 1985 ( 3 ) action, with assorated other claims for damages as hereinafter described and complained of . Each Defendant named herein is joined in this action in his/her individual and official capacities and held liable in the same. JURISDICTION: This Court has jurisdiction under Title 28 U. S. C. , §s 1391 --general and 1343 and Plaintiff does hereby request and invokes the pendent jurisdiction of thi Court . PARTIES : PLAINTIFF, Nathaniel L. Burgs , is a prisoner held at the Iowa *tate Prison at Ft . Madison, Iowa and at all times mentioned is relevant at32dmaerial to this action . DEFENDANT : Iowa City, Iowa , is a municipality incorporated the State of Io at Johnson County, Iowa, which establishes the rules, regul �io , guidelines policies and procedures of which Plaintiff complains of anti at W. times ment ioned is relevant and material to this action. r r DEFENDANT: Iowa City Police Dept. , is a municipality incorporated in the State of Iowa , at Johnson County, Iowa and is a contracting-agent for the Defendant Iowa City, Iowa and is its executive policy enforcer, which enforces the rules regulations , guidelines , policies and procedures of which Plaintiff makes com- plaint of and at all times mentioned is relevant and material to this action . DEFENDANTS : Winkleheke , Widmer , Sueplle, knock, Moore , Duffy , Harney, Kibbee , and Steffen are police officers and agents of the Defendants Iowa City , Iowa and Iowa City Police Dept . , and are the direct Principals and participants in- volved in this matter. The acts and conduct of these Defendants are under- taken at the direction of and in the furtherance of the official policies ,prac tices and objectives of Iowa City, Iowa and the Iowa City Police Dept . , all of which Plaintiff makes complaint of and as direct result of these Defendants ' acts Plaintiff and his rights have been injured and violated, and at all times mentioned, these Defendants are relevant and material to this action . STATEMENTS: 1 ) . Each Defendant above-named was acting under color of state law under official policy and joined in their official capacity and at times each Defen- dant was acting under an unofficial policy and joined in this action in their individual capacity and held liable in each. 2 ) . Plaintiff seeks Declaratory and Injunctive relief pursuant to Title 2f U. S. C. , §s 2201 and 2202 . 1,0 3 ) . Plaintiff does hereby demand a trial by jury . "= cq �$ 4 ) . This action exceeds the 50 , 000 thousand dollar juricrt`ion requiremei exclusive of interests and costs . 5 ) . Plaintiff seeks 250 million dollars in damages and compensations . 6 ) . This action arose in Iowa City, Iowa under the Southern District of Iowa and it appears that the Davenport Division is the appropriate Court under Title 28 U. S. C. , § 1404(a ) and venue is properly laid . INTRODUCTION: The basis of this action arises from an illegal search and seizure of Plal] tiffs ' Apartment and car located at 618 Burlington #2 in Iowa City Iowa on August 2nd 1989 and Plaintiffs ' false arrest on 11-Burglary charges and there after Plaintiffs ' false imprisonment for 71/2 months until those charges were dismissed on March 16th 1990--and throughout and during the course the named Defendants did conspire to conceal illegal police activities and did conspire to convict Plaintiff of illegal charges and did misuse the legal process for purposes otherthan what it was designed for. 1 ) . On July 23rd 1989, Defendants Kibbee and steffen did illegally stop an search Plaintiff in front of his residence at 618 Burglington without a warra. these officers wanted to look at the bottom of Plaintiffs ' Nike tennis shoes ; which they did with flashlights . Officer Kibbee then went over to Officer Steffen and said : "Maybe we can get a match on that Print" They then attempt -2- ed to gain access to Plaintiffs ' apartment and repeatedly asked for the key; Plaintiff refused--this incident lasted 20-30 minutes and Plaintiff was then allowed to leave. 2 ) . On July 27th 1989, Four(4)days later, Defendant Iowa City Police arr- ested Plaintiff for a purported parole violation. After the handcuffs were placed on Plaintiff : Officer Kibbee came up and shone his flashlight on Plaintiffs ' Nike tennis shoes and said : "Good" ! Plaintiff was then taken to the Johnson County Jail . 1' ° C� 3) . Between July 27th 1989 and August 1st 1989, Det . Suepple ` called the Johnson County Jail and asked : "If Plaintiff was wearing tennis shoes--He then came to the jail and searched Plaintiffs ' jail property 1.6ker without a warrant and handled and looked at Plaintiffs ' shoes . Also d- ringnthis same period Det . Suepple had been monitoring, electronically recording ail inter- cepting Plaintiffs ' phone and visiting communications illegally. 4 ) . On the evening of August 1st 1989 , after intercepting a call said Det Supple and Knock went to a Magistrate and attempted to secure a warrant to search Margaret Hutchinsons ' Apt . #2 ( Plaintiffs ' Apartment) , the magistrate r fused to issue a warrant--because of the illegality involved . 5 ) . The next day August 2nd 1989, Det . Supple preparesfalse documents an information and falsifies that Plaintiffs ' tennis shoes are involved in a Bur glary and they want to search Plaintiff ' s jail locker and seize them--Suepple then falsifies facts to indicate that Margaret Hutchinsons ' Apt . 618 Burling- ton is to be searched with the same warrant--The affidavit contained three( 3 ) stale situations that had no nexus to Plaintiff , the crimes or the property sought, that had no connection to Margaret Hutchinson, her apartment or the property sought; and there are no facts , reasons or indications why they want to search her apt . , there is no connection in the Application, Affidavit or warrant to Plaintiff , Margaret Hutchinson or to apt. , #2 or 618 Burlington; the Defendants do no even allege that I live at this address or that I was ever seen entering the complex, or even seen going into apt. #2 or that I was observed carrying, the magistrate is simply mislead with the false informatio and Margaret Hutchinson name is typed in on the warrant to indicate that her name is on the mailbox for the apt . in this 12-Unit Apt . Complex. 6 ) . The information about were Plaintiff was illegally obtained and rath than admit to the unconstitutional violations, the Defendants simply omitted all reference to how the information was obtained and did not include any in the application, affidavit or warrant . None of the property described in the warrant was found at 618 Burlington Apt . #2 , and all items seized were items not listed or not known to be stolen and illegally seized and all for offense prior to any information in the warrant . Plaintiff car was not described, mentioned or listed in the affidavit and police go out in the 12-Unit complex parking lot and illegally search it with the same illegal warrant and confis- cate property. 7 ) . No legal action was ever taken against Plaintiff on the purported pa role violation--the three(3)charges the affidavit was based on were never fil Plaintiffs ' shoe print never matched, and his shoes were returned to him. Th three( 3 )situations in the affidavit were falsely created from stale informati by Defendants in order to unlawfully obtain a search warrant to do an illegal fishing expedition in Margaret Hutchinsons ' apt. and to illegally seize evi- -3- dence so that some type of charge could be brought against Plaintiff while being held under the false pretexts in jail . Plaintiffs ' Attorneys Philip Mears and Tyler Johnston, did in fact, discover that the parole arrest was a pretext and subterfuge concocted by the Iowa City Police Dept . (Named De- fendants ' ) and Plaintiffs ' parole officer . It was done to arrest Plaintiff , place him in jail , and to use the elaborate investigation system built in- to the Johnson County Jail that monitors „ intercepts , and electronically re- cords , the cells , phone calls , visiting area , attorney client room and librar and also censors the mail to collect evidence--it was also done to illegally gain access to Margaret Hutchinsons ' Apt . 8 ) Within two( 2 )weeks of this illegal activity , the County %4torney of- fered to allow Plaintiff to plea to one charge and all other cha ,,ges would be dismissed--Plaintiff believe that , early on it was clear to th:A. Defendants and the State that the charges were unsupported by evidence, ritnesses or fac that the charges were insufficiently plead; and that it had conducted and il- legal search of a car and apartment leased and registered to Margaret Hutchin son. Plaintiff believes the Defendants and the State knew that if it proceed ed to prosecute all of its charges , the illegal practices would be reviewed t the District Court , if not by the Iowa Supreme Court . The Defendants and the State realized that the property seized was actually in possession and under the control of Ms . Hutchinson . It knew that said property , not known to be stolen, was illegally seized . It understood that no connection could or woul be made as to how Plaintiff possessed or exercised control over property in N Hutchinsons ' apt . five( 5 )days after Plaintiff was in jail--it further under- stood that its warrant, affidavit and application failed to state where Plain tiff lived--knowing the same, the 11-Burglary charges were dismissed. 9) . Defendants attempted a number of different justification including a major and intensive investigation, confidential informants and a host of other cover-ups . However, at the beginning of the search Det . Supple indicated to N Hutchinson that he had illegally intercepted our phone communications and ask Ms . Hutchinson questions about this information he had picked up--that alone was damaging to the above cover-up attempts in addition to: At the start of t search all serial numbers were recorded, officer Duffy left the search, retur ed to the PD, to check files to determine if property was matching; he returr later and indicated--during his false testimony, that he left to get flashlic ( For a well lighted apt . ? ) ; however , when he returned, he claims to now recoc nize stolen property under the plainview doctrine, as part of his cover for why certain property not named was seized. Defendants take well over 250 pic tures of every room in the apt . , and car. Defendants take a pair of Plaintif shoes, pants, his tie, his shirt, and his scarf( do not list it and its not nz med) , Defendants tell Ms . Hutchinson that they need her permission, she signE the paper with this list of items; Defendants then produce a forged consent form that Ms . Hutchinson indicates , she never signed , and that the handwritir is not hers( It is filled in completely by Det . Suepple time 10 : 00p.m. , the search was at8 : 00antYat morning) --Defendants indicate that the whole search of the apt . and car was premised on Ms. Hutchinsons ' consent now, and not on the warrant: Although the Return of service indicates all property was sei2 pursuant to the warrant--This idea -- materializes after the issue is raised; Defendants further fail to inform the Magistrate that the Majority of the prc perty was illegally seized from the car not named in the warrant. After the facts surfaced , Defendants abandoned their cover-ups and then began offering Plaintiff deals to enter a plea to one charge , and all other would be dismiss -4- CONSPIRACY FACTS : 10) . The conspiracy by Defendants and others is set in motion first conspir ing to cover-up illegal police activities--secondly ,by not charging Ms . Hutch- inson with possession of stolen property( Suepple attempts to taint her and to make her a witness against Plaintiff ) , thirdly, the affidavit, Application and warrant was filed under Cr. No. 23437 and all that information and the basis of the warrant is hid from Plaintiff and that filed destroygd ,and the 3-stale incidents the affidavit was based on disappeared from the record and never surfaced--and a whole new case file under Cr . No. 23438 is opened excluding the above information. Det . Suepple then alters and changes police reports from theft charges and lost property items reports and changes them to burglar ies and then files burglary charges against , police reports that indicate Peggy Lou Bouska stole a diamond ring from Ada Wyatt is changed by Suepple to indicate that Plaintiff stole the ring--a police report filed with the Hiawa- tha , Iowa Police Dept . , by Elodie Grief , is altered by Suepple to look like the report was filed in Iowa City , Iowa and then Suepple files false charges against Plaintiff--Suepple then takes tools from Ms . Hutchinsons ' car trunk, adds in some work gloves, adds in the Nike tennis shoes that he illegally con- fiscated from Plaintiffs ' jail property locker, takes a picture of this design and then files a false charge of possession of burglar tools against Plaintiff the County attorney Linda McGuire desiring to prove these false charges back dates the trial information to indicate that certain property was possessed ir. June and July and certain other property was possessed on June 24th 1989 ( al- though it was not discovered until August 2nd 1989 , when in the possession of Ms . Hutchinson) ; so Defendants ' exclude the date of discovery to give the false impression that Plaintiff possessed the property and to make the charges appear legal . Defendants employed every deceptive tactic imaginable in their conspiratorial efforts to maliciously prosecute Plaintiff, from filing false police reports , to having the named Defendants come to hearing and prejure thE selves , they attempted to grant Ms . Hutchinson immunity to testify against thE Plaintiff , they withheld evidence, police reports , police files and other ma- terial , they returned evidence to the purported victims before Plaintiff coulc discover; Defendants even attempted to fabricate new evidence and continuously coached and instructed their witness ' to provide false testimony in this coves up effort . ALLEGATIONS : Defendants Iowa City, Iowa , Iowa City Police Dept . , and Police Chief R. J . Winkleheke have accepted the practices described under the three ( 3 ) sets of facts herein and are made aware and kept informed of the same , These Defendant have accepted these practices Plaintiff complains of by remaining silent and failing to sanction employees for their continued pattern of misconduct and b] their continued inaction in the face of these known and widespread historic constitutional deprivations ; thereby it is the accepted official policy and the accepted unofficial informal custom because of such long duration, it ha the same force of the law and as such has violated Plaintiffsivil and con- stitutional rights as described and complained of herein. :n `t `. - "`� co N cp N -5- :i nt DEFAMATION FACTS 21 ) . Along with these above described illegal activities and these false arrests Police Chief R. J. Winkleheke, Det. Supple, Det . Knock and Sgt . Widmer all of the Iowa City Police Dept . , slandered , defamed and libeled Plaintiff on the radios, televisions and throughout the news papers in order to engender favorable local publicity and to make an example of Plaintiff--and in the end analysis all information and facts they spread were false and untrue and this defamation, slander and libel and invasion of privacy is the intentional infliction of emotional distress and is di- rectly associated with and connected to this false and unconstitutional arrest and all charges they referenced to Burglary Rashes and Burglary Investigations were dismissed--such is a deprivation of liberty interest and part of the facts supporting Plaintiffs allegations and claims . 22 ) . On October 23rd 1989 during hearings on various motions , the illegal nature and genesis of these activities became known to Plaintiff by way of discovery made by Attorneys Philip Mears and Tyler Johnston. DIVISION I 1 ) . Defendant Iowa City Iowa and Iowa City Police Dept . , fails to adequately supervise , train and regulate all of the named Defendants , de- partments, divisions , officers , and agent-employees and actively encour- ages the misconduct as described herein and authorizes its continuation by remaining silent to the same. 2 ) . Defendants named herein while acting under the above authorizati and direction of, and in the furtherance of the official policies , practic and objectives of the State of Iowa , Iowa City, Iowa and the Iowa City Police Dept. , are responsible for the this misconduct and deprivations Plaintiff suffered due to their : a ) . Failure to provide adequate supervision and training in: 1 ) . Investigation and prosecution procedures, 2) . Search and seizure techniques , and 3) . Due Process Procedures , b) . Failure to adequately screen and evaluate perforin' , and c) . For their active encouragement : 1 ) . To abandon proper police procedures , N 2) . To abandon proper prosecutorial procedure's, and 3) . To abandon legal and precedent authority :aad procedures , d) . Inducement and instruction: `. r:? 1 ) . To fabricate, falsify and misrepresent facts , iiformation and statements , 2 ) . To file false reports, narratives, and documents , 3 ) . To testify falsely and to perjure themselves, and 4) . To cover-up, conceal , hide, and destroy information, evi- dence and facts , and e) Condoning and fostering racism and discrimination -6- f ) . Establishing a false arrest policy , and g) . Designing protections of all of the above under an malicious prosecution and abuse of process practice concealed under the guise of authority and color of state law and a real legal process , that is motivated by ill motives in invoking the same , and using it for an illegal purpose for which such legal proces was not designed for. 3 ) . Suepple , Knock, Moore, Duffy, Harney, Kibbee and Steffen are agent and employees of the above named Defendants and acting under authorization direction and in the furtherance of the official policies , practices and objectives of the State of Iowa , Iowa City , Iowa and Chief R. J. Winkleheke did act , conduct and participate in and are responsible for the misconduct and deprivations as described herein by their active roles in carrying out what is described above in Division I . ._o 4 ) . All of the acts and conduct as described and complaiAed of at tim is beyond the scope of authority, at times beyond the sc6p6, of their dutie and at times beyond the scope of the search and thereby no:tyw4hin the realm of good faith or qualified immunity as Plaintiffs ' ght,S were clear established at the time , thereby certain acts are in indi? tuai.= capacities of the named Defendants . p ri? c� DIVISION II J� 1 ) . Plaintiffs ' first cause of action, Plaintiff restates the conter of this complaint and alleges and claims an illegal search and seizure and invasion of privacy and the intentional infliction of emotional distress and violations of Plaintiffs ' 1st, 4th, 5th 6th 9th and 14th Amendment Rights , because these deprivations , injuries and violations Plaintiff suf- fered, damages should be granted in the amount requested/against Defendant 2 ) . Plaintiffs ' second cause of action , Plaintiff restates the contE of this complaint and alleges and claims and illegal surveillance, intercE tion , monitoring and recording of phone-communication , wire-tap, invasion of privacy and the intentional infliction of emotional distress and viola- tions of Plaintiffs ' 1st , 4th 5th, 6th 9th and 14th Amendment Rights , be- cause these deprivation , injuries and violations Plaintiff suffered, damac should be granted in the amount requested & against Defendants . 3 ) . Plaintiffs ' third cause of action, Plaintiff restates the conter of this complaint and alleges and claims all of the following : a ) . A conspiracy to falsely arrest Plaintiff , b) . a conspiracy to vio- late Plaintiffs ; rights , c) . a conspiracy to discriminate against Flair tiff , d ) . a conspiracy to deny Plaintiff equal protection under the lay e ) . a conspiracy to cover-up illegal police/prosecutorial activities ar to protect the named Defendants, f ) . a conspiracy to deny Plaintiff a fair trial and prevent him from preparing a defense, and g) . a conspire to convict Plaintiff and to convict him of false and illegal charges , because Plaintiff is a Black male and a member of the Black race, and t intentional infliction of emotional distress and violations of Plaintiffs ' 1st , 4th, 5th 6th 8th 9th and 14th Amendment rights , because of the depri- vations , injuries and violations Plaintiff suffered , damages should be granted in the amount requested and against the Defendants -7- 4 ) . Plaintiffs ' fourth cause of action, Plaintiff restates the content of this complaint and alleges and claims all of the following: a ) . False arrest , b) . False Imprisonment for 71 months , c) . Malicious prosecution, d ) . Abuse of process , f ) . Use of the legal process for oth( than what it was designed for and the intentional infliction of emotion, distress and violations of Plaintiffs ' 4th, 5th, 6th 8th 9th and 14th Amend- ment Rights , because of the deprivations , injuries and violations Plaintif: suffered , damages should be granted in the amount requested and against the Defendants . 5 ) . Plaintiffs ' fifth cause of action, Plaintiff restates the conten of this complaint and alleges and claims defamation , libel and slander , in vasion of privacy and the intentional infliction of emotional distress and violations of Plaintiff 4th, 5th 6th, 8th, 9th and 14th Amendment Rights , b cause of the deprivations , injuries and violations Plaintiff suffered , dam ages should be granted in the amount requested and against the Defendants . DIVISION III 1 ) . Wherefore , Plaintiff requests this Court to grant the following relief : a ) . Issue a declaratory judgment that Defendants violated the Unite States Constitution and this States laws when they did what was described above in Divisions I , II , and III , b) . Issue an injuction ordering and preventing the Defendants from continuing the practices and to stop the practices described herein and co plained of and enumerated in Divisions I , II and III above , c) . Grant compensatory damages in the sum of 250 million dollars against the named Defendants , d ) . Grant punitive damages in the sum the Court deems appropriate and such other relief as it may appear Plaintiff is entitled to , e) . Enter of record an order expunging all police records , FBI filE finger-prints , mug-shots and all other such information pertaining to thoE 11-dismissed charges . And also order Defendants to make retractions and to publish an apology in reference to all of the slanderous , defamatory and other libelous matter they smeared Plaintiff with in the media ( s ) . Respectfully Sub �' P ted Area s/ Na haniel L.,0Burgs Dated : July 31st 1991 P 0. Box 316ry Filed: August 1st 1991 t . Mad:isPn, owa� 52627 00 Received August 2nd 1991 File-stamped August 30th 1991 c)--C r Re-typed September 29th 1991 '- -' Re-mailed : September 30th 1991 CD ry . IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA - ' • DAVENPORT DIVISION Q v,n Nathaniel L. Burgs, * Cause No. 3-91-CV-70093 Plaintiff , * PLAINTIFF REQUEST TO PROCEEtrIN /O Vs . * FORMA PAUPERIS AND AFFIDAVIT OF * POVERTY ra Iowa City, Iowa Et . al . , Defendants . * C!•c: r Comes Now the above-named Plaintiff and does hereby request to proceed in forma pauperis in this matter; in support Plaintiff states : I , Nathaniel L. Burgs , Plaintiff in this matter requests to proceed without being first required to prepay fees, costs or give security therefor , pursuant to 28 U. S . C. A. , § 1915(a) . Because of my poverty I am unable to pay the costs of said proceedings or to give security therefor. I further declare that I believe I am enti- tled to the relief . I am presently unemployed here at the Prison and I have not worked at a paying job since January 1989 MCI of Iowa City at $5 . 00 per hour . I have not received any money from a business , profession or self-employment, rent payments , interests or dividends , pensions , an- nuities or life insurance , nor have I received any inheritances . I do not own any cash or have any money in a checking or savings account . I do not own any real estate , stocks , bonds , notes automobiles or other valuable property . I do not have any real persons who are dependent upon me for support. I declare under the penalty of perjury that the foregoing is true and correct as I verily do believe . I Presently have$ _ , in my prison account . SEAL 41. ounsel_ or`--C`Pier Subscribed and sworn to before me by , Nathaniel L. Burgs on this 30th day of S:•tember 1991 at Ft . Mad ' •n, Iowa . .11111 Na aniel L. Burgs Public/State of Iowa n�V. END OF CASE FILE 92 APR -2 PI1 2: 1-;6 CITY CLERK IOWA CITY. IOWA IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY AMERICAN REPUBLIC INSURANCE COMPANY, • EQUITY NO. 5`105 f Plaintiff, vs. JAMES ALCAYDE and MARGARET ALCAYDE, also known as MARGARET A. ALCAYDE, husband and wife; AMERICAN FINANCE CORPORATION; •• ALLIANCE REALTY CO. ; SCOTCH PINE APTS. ; CITY OF IOWA CITY; STATE OF IOWA, and ORIGINAL NOTICE JOHNSON COUNTY, IOWA, • • • Defendants. • TO THE ABOVE-NAMED DEFENDANTS: JAMES ALCAYDE and MARGARET ALCAYDE, also known as MARGARET A. ALCAYDE, husband and wife; AMERICAN FINANCE CORPORATION; ALLIANCE REALTY CO. ; SCOTCH PINE APTS. ; CITY OF IOWA CITY; STATE OF IOWA, and JOHNSON COUNTY, IOWA: YOU ARE HEREBY NOTIFIED that there is now on file in the office of the Clerk of the above Court, a petition in the above-entitled cause of action, a copy of which petition is attached to the notice being served on the defendant. The plaintiff's attorney is Harold J. Crawford of the law firm of Harold J. Crawford & Associates, whose address is 850 Insurance Exchange Building, Des Moines, Iowa 50309. a 92 APR -2 PIA 2: G 6 CITY CLERK t0\!A CITY. IOV P YOU ARE FURTHER NOTIFIED that unless, within twenty (20) days after service of this original notice upon you, you serve and within a reasonable time thereafter, file a written special appearance, motion or answer, appear thereto and defend in the Iowa District Court for Johnson County, at the County Court House in Iowa City, Iowa, judgment by default will be rendered against you for the relief demanded in the petition. EDWARD F. STEINBRECH, CLERK JOHNSON COUNTY DISTRICT COURT By Cielial,1/154/1,11244.-al-Gf., ---- Deputy Johnson County Court House P. 0. Box 2510 Iowa City, Iowa 52244 NOTE: The attorney who is expected to represent the defendant should be promptly advised by defendant of the service of this notice. 17-: n Pzt 92 APR -2 P}1 2: 46 CITY CLERK,. IOWA C1TY, 10`:: % IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY AMERICAN REPUBLIC INSURANCE COMPANY, Plaintiff, EQUITY NO. vs. JAMES ALCAYDE and MARGARET ALCAYDE, also known as MARGARET A. ALCAYDE, husband and • wife; AMERICAN FINANCE CORPORATION; PETITION IN EQUITY ALLIANCE REALTY CO. ; SCOTCH PINE APTS. ; CITY OF IOWA CITY; STATE OF IOWA and JOHNSON COUNTY, IOWA, Defendants. • Comes now the plaintiff and for cause of action against the above-named defendants, respectfully states to the Court as follows, to wit: PAR. I. That the plaintiff is a corporation duly organized and existing under and by virtue of the laws of the State of Iowa, with its principal place of business in the City of Des Moines, County of Polk and State of Iowa, and is the assignee of the note and mortgage upon which this cause of action is based. Margaret Alcayde, also known as PAR. II. That the defendants, James Alcayde and/Margaret A. Alcayde, are natural persons, husband and wife, and reside in the City of Iowa City, County of Johnson and State of Iowa; that the defendant American Finance Corporation, is a corporation whose whereabouts is unknown; that the defendant Alliance Realty Co. , is an Iowa Corporation located in the City of Des Moines, County of Polk and State of Iowa; that the defendant • X11 92APR -2 PH 2: 46 - 2 - CITY CLERK IOWA CITY, iOWA Scotch Pine Apts. , is an Iowa corporation, located in the City of Coralville , County of Johnson and State of Iowa; that the defendant City of Iowa City, is a legal political entity and is one of the cities making up the County of Johnson and State of Iowa; that the defendant State of Iowa, is a legal political entity and is one of the fifty states making up the United States of America; that the defendant Johnson County, Iowa, is a legal political entity and is one of the counties making up the State of Iowa. PAR. III. That on or about the 27th day of October, 1970, the defendants James Alcayde and Margaret A. Alcayde, made, executed and delivered unto General Mortgage Corporation of Iowa, a certain promissory note in the principal sum of Twenty-one Thousand and No/100 Dollars ($21,000.00) payable in monthly installments of One Hundred Sixty-one and 49/100 Dollars ($161.49) including interest at the rate of Eight and one- half per cent (8 1/2%) per annum on the unpaid balance, which note further provides that in the event of default in the payment of any installment or if the default is not made good prior to the date of the next installment, the holder may declare all of the remainder of said note due and collectible together with all charges, costs of foreclosure and reasonable attorney fees; and that a copy of said note is attached hereto marked Exhibit "A" and by this reference made a part of this petition. PAR. IV. That as a part of the same transaction and in order to secure said note, Exhibit "A", the defendants, James Alcayde and Margaret A. Alcayde, husband and wife, did on or about the 27th day of October, 1970, make, execute and deliver unto General Mortgage Corporation of Iowa, the said real estate mortgage whereby they conveyed unto the said General Mortgage Corporation of Iowa, the following described property, situated in Johnson County, Iowa, to wit: 92 SPR -2 Ph 2: 46 - 3 - CITY CLERK Lot Fifty-seven (57) in Linden Park Addition to IOWA CITY. IOA Iowa City, Iowa, according to the recorded plat thereof, and locally known as: 125 Shrader Road, Iowa City, Iowa 52240 which mortgage is filed in the office of the Johnson County Recorder on the 28th day of October, 1970. at 10:34 A.M. , and duly recorded in Book 172, Page 382; a copy of said mortgage is attached hereto marked Exhibit "B", and by this reference made a part of this petition. PAR. V. That thereafter and on or about 28th day of October, 1970, the said General Mortgage Corporation of Iowa, sold, assigned and delivered to the plaintiff, American Republic Insurance Company, the said note and mortgage referred to as Exhibits "A" and "B", being endorsed upon the back of said note, Exhibit "A", the following: PAY TO THE ORDER OF AMERICAN REPUBLIC INSURANCE COMPANY WITHOUT RECOURSE GENERAL MORTGAGE CORPORATION OF IOWA By: W. H. Kovecevich Vice President-Treasurer and by assigning to the said plaintiff, American Republic Insurance Company the said mortgage by a written instrument dated the 28th day of October, 1970, and said instrument being filed for record in the office of the Johnson County Recorder on the 28th day of October, 1970, at 10:35 A.M. , and duly recorded in Book 349, Page 180; a copy of said instrument assigning said mortgage is attached hereto marked Exhibit "C", and by this reference made a part of this petition. PAR. VI. That the defendant, American Finance Corporation, has or claims to have some right, title, interest, claim or lien in and to the property herein described by virtue of a mortgage executed in its favor by JAmes and Margaret Alcayde, husband and wife • a+ i, Li 92APR —2 Pi 2: L - 4 - CITY CLEM to American Financel 'c►Pp040ated October 6, 1975, filed October 10, 1975, and recorded in Book 215, Page 313; but whatever right, title, interest, claim or lien that this defendant has or claims to have in and to the property herein described, the same is junior and inferior to plaintiff's first mortgage note and first real estate mortgage lien referred to herein as Exhibits "A" and "B". PAR. VII. That the defendants Alliance Realty Co. and Scotch Pine Apts. , have or claim to have some right, title, interest, claim or lien in and to the property herein described by virtue of a small claims judgment rendered in their favor in the case entitled Alliance Realty Co. and Scotch Pine Apts. , plaintiff, vs. James Alcayde, Jr. , and Sandra Kay Alcayde, 207 - 6th Street, #9, Coralville, Iowa 52241, defendants, designated as Small Claims Case No. 31000 and found in Small Claims Docket 49, Page 200, dated June 5, 1990; but whatever right, title, interest, claim or lien that these defendants have or claim to have in and to the property herein described, the same is junior and inferior to plaintiff's first mortgage note and first real estate mortgage lien referred to herein as Exhibits "A" and "B". PAR. VIII. That the defendant, City of Iowa City, has or claims to have some right title, interest, claim or lien in and to the property herein described by virtue of the following: (a) Rehabilitation Agreement for Rehabilitation Loans executed by James Alcayde and Margaret Alcayde, owners, to City of Iowa City, Grantee, dated September 6, 1991, filed September 19, 1991, and recorded in Book 1280, Page 318; (b) Housing Rehabilitation Program Low Interest Loan Promissory Note executed by James and Margaret Alcayde, to City of Iowa City, dated September 6, 1991, filed September 19, 1991, and recorded in Book 1280, Page 322; f i L - 5 - 92 APR -2 2: tr (c) Mortgage executed by James and Margaret Alcayde, to City of Iowa ei#y!, EW IOWA CITY. I0 '.' September 6, 1991, filed September 19, 1991, and recorded in Book 1280, Page 323; (d) Judgment entitled City of Iowa City, plaintiff, vs. James Alcayde, Jr. , (date of birth March 30, 1970) , defendant, designated as Case No. 91 TR 69694, dated December 17, 1991; but whatever right, title, interest, claim or lien that this defendant has or claims to have in and to the property herein described, the same is junior and inferior to plaintiff's first mortgage note and first real estate mortgage lien referred to herein as Exhibits "A" and "B". PAR. IX. That the defendant State of Iowa, has or claims to have some right, title, interest, claim or lien in and to the property herein described by virtue of the following: (a) Judgment entitled State of Iowa, plaintiff, vs. James Alcayde, Jr. , (date of birth March 30, 1970) , defendant, designated as Case No. 90 TR 5869, dated April 2, 1990; (b) Judgment entitled State of Iowa, plaintiff, vs. James Alcayde, Jr. , (date of birth March 30, 1970) defendant, designated as Case No. 90 TR 5870, dated April 2, 1990; (c) Judgment for costs in small claims judgment entitled Alliance Realty Co. , and Scotch Pine Apts. , plaintiff, vs. James Alcayde, Jr. , and Sandra Kay Alcayde, 207 - 6th Street. #9, Coralville, Iowa 52241, defendants, designated as Small Claims Case No. 31000, found in Small Claims Docket 49, Page 200, dated June 5, 1990; - 6 - (d) Judgment for costs in the case entitled City ,,of.:I a,_C, .py, plaintiff, vs. James U 1iniArri ��ITT.1-4,!i t1 Alcayde, Jr. (date of birth March 30, 1970T; ' daan'C',���designated as Case No. 91 TR 69694, dated December 17, 1991; but whatever right, title, interest, claim or lien that this defendant has or claims to have in and to the property herein described, the same is junior and inferior to plaintiff's first mortgage note and first real estate mortgage lien referred to herein as Exhibits "A" and "B". PAR. X. That the defendant Johnson County, Iowa, has or claims to have some right, title, interest, claim or lien in and to the property herein described by virtue of personal taxes and/or court costs which have been assessed against the defendants; but whatever right, title, interest, claim or lien that this defendant has or claims to have in andto the property herein described, the same is junior and inferior to plaintiff's first mortgage note and first real estate mortgage lien referred to in plaintiff's petition as Exhibits "A" and "B", except the real estate taxes and special assessments assessed against the herein described mortgage premises by defendant Johnson County, Iowa, and the City of Iowa City, Iowa, or anyone claiming by, through or under them for said taxes, are senior and superior to the plaintiff's mortgage and lien thereof upon said mortgage premises. PAR. XI. That any right, title, or interest that the defendants, each and all of them have or claim to have in and to the property herein described, the same is junior and inferior to plaintiff 's firstmortgage note and first real estate mortgage lien dated the 27th day of October, 1970, and said first real estate mortgage lien filed on the 28th day of October, 1970, at 10:34 A.M. , and duly recorded in Book 172, Page 382, which (! - / - 92 APR -2 PH 2: 46 CITY CI FRI' are referred to in plaintiff 's petition as Exhibits "A" and "B", excepti2ate taxes and special assessments assessed against the herein described premises by defendant Johnson County, Iowa, and the City of Iowa City, Iowa, or anyone claiming by, through, or under them for said taxes are senior and superior to the plaintiff's mortgage and lien thereof upon said mortgage premises. PAR. XII. That the defendants, James Alcayde and Margaret Alcayde, also known as Margaret A. Alcayde, have made default in the terms of said mortgage note, Exhibit "A" and said default has existed for more than thirty (30) days last past, and that demand has been made on said defendants, and that said note has been declared due and there is due to the plaintiff the sum of Twenty-one Thousand and No/100 Dollars ($21,000.00) principal, against which the defendants are entitled to a credit of Eight Thousand Four Hundred Eighty-three and 74/100 Dollars ($8,483 .74) , or a principal indebtedness due of Twelve Thousand Five Hundred Sixteen and 26/100 Dollars ($12,516.26) , together with interest at the rate of Eight and one-half per cent (8 1/2%) per annum, from June 30, 1991, to April 1, 1992, in the sum of Eight Hundred Forty-one and 80/100 Dollars ($841.80) , which claim is still the property of the plaintiff and is wholly unpaid. PAR. XIII. That the plaintiff's mortgage further provides that the note and mortgage above referred to is insured under the provisions of the National Housing Act and so long as it continues to be insured, the defendants are obligated to pay one- twelfth (1/12) of the taxes, special assessments and fire and hazard insurance premiusm, to be made with each of the monthly installments, together with principal and interest due each and every month as is required under the first real estate mortgage lien referred to herein as Exhibit "B", and plaintiff has advanced the sum of One Thousand Two HundredFourteen and20/100Dollars ($1,214.20) tomake up the deficiency in the defendants ' ! P f"-+ r1 rn - - 8 - 92 -2 Pry 2: ti5 trust account and will be further required to advance sums for real estat�rtaxeei -jve, CiY windstorm and hail insurance premiums, and FHA mortgage guaranty insurance'premiumIO'grid plaintiff is entitled to recover the same with interest at the rate of Eight and one-half per cent (8 1/2%) per annum, fromthe dates of said advancements. PAR. XIV. That the plaintiff's mortgage further provides that the owners or mortgagors agree to pay late charges not to exceed two cents (2c) for each dollar for each payment in arrears, to cover the extra expense of handling delinquent payments and the defendant is now indebted to the plaintiff for nine (9) months late charges at the rate of Five and 24/100 Dollars ($5.24) per month, plus accrued late charges of Nineteen and 41/100 Dollars ($19.41) , for a total amount due plaintiff in the sum of Sixty-six and 57/100 Dollars ($66.57) . PAR. XV. That the plaintiff's mortgage further provides for the payment of all costs incidental to foreclosure and this plaintiff has further paid the sum of One Hundred Ninety-nine and No/100 Dollars ($199.00) for continuation of abstract of title and is entitled under the terms of this mortgage to recover the same with interest at the rate if Eight and one-half per cent (8 1/2%) . PAR. XVI. That paragraph 14 of the plaintiff 's mortgage herein referred to as Exhibit "B", states among other things as follows, to wit: "It is further agreed that in the event of the foreclosure of this mortgage and sale of the property by Sheriff 's Sale on special execution in said foreclosure proceedings, the time of one year for redemption from said sale provided by the statutes of the State of Iowa, shall be reduced to six months, provided the mort- gagee waives in said foreclosure proceedings any rights to a deficiency judgment against the mortgagors which may arise out of the foreclosure proceedings,", and that plaintiff hereby waives its right to a deficiency judgment against the mortgagors which may arise out of these foreclosure proceedings, and elects to take advantage of the i - 9 - 92 APP -2 PM 2: 46 reduction of the period of redemption from one year to six O "`fiotet ;€rom the date 0 I I l I of the Sheriff's Sale. PAR. XVII. That Paragraph 14 of the plaintiff's mortgage herein referred to as Exhibit "B", states among other things as follows, to wit: "It is further agreed, under Chapter 628, Code 1966, as Amended, that in the event of the foreclosure of this mortgage and in the event of the finding by Court Decree in such foreclosure that the real estate hereinabove set out has been abandoned by the owners and persons personally liable under the mortgage at the time of foreclosure and in the event the mortgagee waives any right to a deficiency judgment against the mortgagor or his successors in interest, then the period of redemption from foreclosure sale will be reduced to sixty (60) days, subject to the other provisions of the above-referenced law as amended.", and that plaintiff further states that if on the examination of the premises, it finds that defendants have abandoned the premises and plaintiff has presented proof to the Court of this abandonment and plaintiff continues to waive its right to a deficiency judgment as it has elected in Patagraph XVI above, will continue to waive its deficiency judgment and will elect to take advantage of the reduction of the period of redemption to six (6) months from the date of the Sheriff's Sale as above set out and further asks that the said six (6) months statutory period of redemption be reduced to sixty (60) days as provided for in the statute above. PAR. XVIII. That the plaintiff's mortgage further provides that the rents and profits of the mortgage premises are pledged as part of the security and in the event of foreclosure, a Receiver shall be appointed to take possession of the premises, collect the rents and profits and to pay reasonable costs for the care and maintenance, and to pay taxes, fire insurance premiums, and interest on the indebtedness, and to turn over any balance to apply on any amount that may be due plaintiff, and the plaintiff further alleges that the premises is insufficient security for the indebtedness due plaintiff. • 10 - 92 APR —2 Pi1 2: 1,6 PAR. XIX. That the defendants, James Alcayde and Margaret Alcayd4 a IO as IOWA CITY, a i-, Margaret A. Alcayde, the titleholders, had information of and a reasonable opportunity to pay the indebtedness before this cause of action was brought as provided in Sections 654.2D and 625.25 of the Code of Iowa. WHEREFORE, Plaintiff, American Republic Insurance Company, prays for a judgment in rem against the real estate herein described, in the sums as follows, to wit: On account of unpaid principal on note, Exhibit "A" $12,516.26 On account of interest at 8 1/2% from June 1, 1991, to April 1, 1992 841.80 On account of deficiency in Trust Account 1,214.20 On account of late charges provided by terms of mortgage 66.57 On account of amount paid for abstract continuation 199.00 Or a total amount due of $14,837.83 together with interest thereon from March 31, 1992, at the rate of Eight and One-half per cent (8 1/2%) per annum, and for costs of this action, including reasonable attorney fees for plaintiff's attorney, Harold J.Crawford & Associates, and thatplaintiff prays its judgment and costs may be found and decreed to constitute a valid, existing first lien against the real estate herein described, situated in Johnson County, Iowa, to wit: Lot Fifty-seven (57) in Linden Park Addition to Iowa City, Iowa, according to the recorded plat thereof, and locally known as: 125 Shrader Road, Iowa City, Iowa 52240 from the date of plaintiff's mortgage, to wit: October 27, 1970, and that the said mortgage be ordered foreclosed and the premises or so much thereof as shall be necessary be sold at Sheriff 's Sale under special execution and from and after the date of such Fiq 77' - 11 - 92 APR -2 PH 2: 1. sale, all right, title and interest of the defendants may be forever baeaYL JE E►6- IDVAC(!Y. f0 closed, save only the statutory right of redemption, and if the premises not be redeemed as provided by law, the purchaser at such foreclosure sale or his assignees have a writ of possession directing the Sheriff to put the purchaser or his assignees in peaceable possession. Plaintiff further prays that the Court upon the presentation of this petition enter an Order immediately appointing a Temporary Receiver to take charge of the mortgage premises, to rent the same, collect the rents and profits, and to pay reasonable expenses maintenance and taxes on the mortgage premises, fire insurance premiums, and plaintiff further prays that if the premises shall not sell for sufficient to make the amount of plaintiff's judgment with interest and costs, then the Temporary Receiver be reappointed as Receiver to take possession of the premises in accordance with the terms of plaintiff's mortgage and to rent the same and to collect the rents and profits and to pay reasonable expenses and maintenance, and taxes on the mortgage premises, fire insurance premiums, and to turn over any balance that may remain to apply on any amount due plaintiff. Plaintiff further prays for general and other equitable relief. HAROLD J. C •WFORD & ASSOCIATES 011 111 By WO211 Harold J. .kiw o • AIN #000001055 •ttorneys or 'laint'ff 850 Insurance Exchange :wilding Des Moines, Iowa 50309 Phone: 243-4254 (515) - 12 - STATE OF IOWA ) 92 ASR -2 PH 2. 4,, ) ss COUNTY OF POLK ) CITY CLER't a IOWA CITY. WWI% I. Harold J. Crawford of the law firm of Harold J. Crawford & Associates, being first duly sworn on oath, depose and state that I am the attorney for plaintiff in the above and foregoing cause of action; that I have in my possession the note and mortgage and assignment sued on in this case; that I am also informed as to the state- ments and allegations set out in this petition; that all of such statements and allega- tions contained in said petition are true and correct as I verily believe; that there is no agreement, expressed or implied, between me or any other person for a division or share of the attorney fees in said case; that the defendants knew of the whereabouts of the instruments sued upon, and they have had reasonable opportunity to pay the same before suit was commenced, all of which is true and correct as I verily believe, acting on knowledge, information and belief. 14411tal 411,02., J._. , P, _ Harold 3. Cr_ Subscribed and sworn to before me, a Notary Public, this 27th day of March 19 92 Notary Public in and for said County and State. ORIGINAL VERIFIED 1 It is further agreed, under Chapter 628, Code 1966, as amended, that in the event of the foreclosure of this mortgage and in the event of the finding by court decree in such foreclosure that the real estate hereinabove set out has been abandoned by the owners and persons personally liable under the mortgage at the time of foreclosure and in the event the mortgagee waives any right to a deficiency judgment against the mortgagor or his successors in interest, then the period of redemption from foreclosure sale will be reduced to sixty.(60)days, subject to the other provisions of the above-referenced law as amended. It is further agreed that in the event of the foreclosure of this mortgage and sale of the property by sheriff's sale in said foreclosure proceedings, the time of one year for redemption from said sale provided by the statutes of the State of Iowa shall be reduced to 6 months, provided the Mortgagee waives in said foreclosure proceedings any rights to a deficiency judgment against the Mortgagor which may arise out of the foreclosure proceedings. The signing of this mortgage and the note secured hereby by the spouse of the owner is not only for the pur- pose of releasing dower or distributive share, but also for the purpose of creating a personal liability for the in- debtedness evidenced by said note and secured by this mortgage. If more than one joins in the execution hereof as Mortgagor, or any be of the feminine sex, the pronouns and relative words herein used shall be read as if written in the plural or the feminine respectively. The covenants herein contained shall bind„and the benefits and advantages inure to, the respective heirs, executors, adminis- trators, successors and assigns of the parties hereto. IN WITNESS WHEREOF, the Mortgagors) have hereunto set their hand(s) the day and year first above written. s sL lid �i4Cr-�f J es Alcayde `J 92' i;t0.--,--e""k i._. L - LO L�Margaret A. Alcayde STATE OF IOWA l ss: COUNTY OF Johnson 1111 • On this 27th day of October , A.D. Nineteen Hundred and Seventy , before me, a Notary Public in and for Johnson County, State of Iowa. personally appeared James Alcayde and Margaret A. Alcayde, Husband and Wife , to me known to be the person(s) named in and who executed the foregoing instrument and acknowledged that they executed the same as their voluntary act and deed. C'=r'`� / NOTARIAL SEAL Notary PuLI�rn' an, or s County —_© N ..e. C) -0 4703 .C71 1 r= --I n ..<r- -0 r. a rr, = 4 "d 3 o ." ." �; fu .. .. This form may be used as the security instru- ment in connection with mortgages to be insured under Sections 203 and 222, and is connection with "individual mortgages" to be insured under Sections 213, 220, 221, 233, 809 and 810 of the National (lousing Act. QJ v m 0 • • ?-. .1, C a C -o N. ' O 1 n y N N Q U �-^-�. 0 a • r CO ;° < O } o Ls O ��n� o q d 0 ` `\� w+11ns -. ci Q1 +i •, t _0 x w U a L W O 00 4e, '- Rr O N S Q CO \� M z g f o 3 ti e u T yO.� al N I. - u U �i I.0 F 4 G CZ' O O ry p ,o .. art Gco a .. u ` ., W a +j Q. r a •c b _A s� Is. 0 t~ f 01 ,...i0 e O -- And the Mortgagor hereby covenants that he is seized of the said premises in fee simple, and that lie has good right to sell and convey the same; that the premises are free from all encumbrances and that he will warrant and defend the title to the same unto the Mortgagee against the lawful claims of all persons whomsoever. CONDITIONED, HOWEVER, That if the Mortgagor shall pay or cause to be paid to the Mortgagee, as is pro- vided in a certain promissory note of even date herewith, the terms of which are incorporated herein by reference, the principal stun of Twenty One Thousand and No/100 Dollars($ 21,000.00 ), with interest from date at the rate of Eight and One-Half per centum( 81/2 %)per annum on the balance remaining from time to time unpaid, principal and interest being payable at the office of General Mortgage Corporation of Iowa, 202 Fleming Building in Des Moines, Polk County, Iowa , or at such other place as the holder of the note may designate in writing, in monthly installments of One Hundred Sixty-One and 49/100 Dollars (S 161.49 ), commencing on the first day of December , 19 7Q and on the first day of each month thereafter until the prin- cipal and interest are fully paid, except that the final payment of principal and interest, if not sooner paid, shall be due and payable on the first day of November, 2000 ,and shall also fully perform all the covenants, conditions and terms of this mortgage,then these presents shall be void,otherwise to remain in full force and effect. The Mortgagor covenants and agrees that: 1. He will pay the principal of and the interest on the indebtedness evidenced by the note secured hereby,at the times and in the manner therein provided. Privilege is reserved to pay the debt in whole, or in an amount equal to one or more monthly payments on the principal that are next due on the note,on the first day of any month prior to maturity; provided, however, that written notice of an intention to exercise such privilege is given at least thirty j;30)days prior to prepayment; and provided further that in the event the debt is paid in full prior to maturity r and'6t-that time it is insured under the provisions of the National Housing Act, he will pay to the Mortgagee an adjrtsteti premium charge of one per centum (1%) of the original principal amount thereof, except that in no event ",;1 shut: adjusted premium exceed the aggregate amount of premium charges which would have been payable if the mi i a-ge had continued to be insured until maturity; such payment to be applied by the Mortgagee upon itsobliga- • tion-�e Secretary of Housing and Urban Development on account of mortgage insurance. Cs- - 2.1 order more fully to protect the security of this mortgage, together with, and in addition to, the monthly Cpayaients,pf principal and interest under the terms of the note secured hereby, he will pay to the Mortgagee on the first liar*.each month until the note is fully paid the following sums: Cr- • (rlJ•�A-,. ount sufficient to provide the holder hereof with funds to pay the next mortgage insurance premium if this in- �'�::- stent and the note secured hereby are insured, or a monthly charge (in lieu of a mortgage insurance premium)if CV they are held by the Secretary of Housing and Urban Development,as follows: c..." (I) It and so long as said note of even date and this instrument are Insured or are reinsured under the provisions of the National Housing Act, an amount sufficient to accumulate in the hands of the holder one(1)month prior to Ito due date the annual mortgage Insurance premium, in order to provide such holder with funds to pay such premium to the Secretary of Housing and Urban Development pursuant to the National Housing Act, as amended,' and applicable Regulations thereunder;or , (II)If and so long as said note of even date and thio instrument are held by the Secretary of Housing and Urban Development, a monthly charge (in lieu of a mortgage insurance premium)which shall be.in an amount equal to • one-twelfth(1/12)of one-half eh)per centum of the average outstanding balance due un the note computed with- out taking Into account delinquencies or prepayments; (b)A sum equal to the ground rents, if any, and the taxes and special menta next due on the premises covered by this mortgage, plus the premiums that will next become due and payable on policies of fire and other hazard insurance on the premises covered hereby(all as estimated by the Mortgagee)less all sums already paid therefor divided by the number of months to elapse before one(I)month prior to the dale when such ground rents,premiums,taxes,and wants will become delinquent, such■uma to be held by Mortgagee in trust to pay said ground rents, premiums, taxes, and special assessments, before the same become delinquent;and (c) All payments mentioned in the two preceding subsections of this paragraph and alt payments to be made under the note secured hereby shalt be added together, and the aggregate amount thereof shall be paid by the Mortgagor each month in a single payment to be applied by the Mortgagee to the following items in the order set forth; (1)premium charges under the contract of Insurance with the Secretary of Housing and Urban Development,or monthly charge(in lieu of mortgage insurance premium), as the case may be; (I1)ground rents, taxes, special assessments, fire and other hazard insurance premiums; (111)interest on the note secured hereby;and (IV)amortization of the principal of said note. Any deficiency in the amount of such aggregate monthly payment shall, unless made good by the Mortgagor prior to the due date of the next such payment, constitute an event of default under this mortgage. The Mortgagor agrees to pay a "late charge"not to exceed two cents(2e)for each dollar(51)for each payment more than fifteen(15)daysln arrears, to cover the extra expense Involved in handling delinquent payments. 3. If the total of the payments made by the Mortgagor as hereinabove in subsection(b)of paragraph 2 provided, shall exceed the amount of the payments actually made by the Mortgagee for ground rents,taxes and assessments or insurance premiums, as the case may be, such excess shall be credited by the Mortgagee on subsequent payments to be made by the Mortgagor. If, however, the monthly payments made by the Mortgagor under such subsection shall not be sufficient to pay ground rents, taxes and assessments or insurance premiums, as the case may be, when the same shall become due and payable, then the Mortgagor shall pay to the Mortgagee any amount necessary to make up the deficiency, on or before the date when payment of such ground rents, taxes, assessments or insur- ance premiums shall be due. If at any time the Mortgagor shall tender to the Mortgagee in accordance with the provisions of the note secured hereby, full payment of the entire indebtedness represented thereby,the said Mort- gagee shall, in computing the amount of such indebtedness, credit to the account of the Mortgagor all payments made under the provisions of subsection (a)of paragraph 2 above, which the Mortgagee has not become obligated to pay to the Secretary of Housing and Urban Development and any balance remaining in the funds accumulated under the provisions of subsection (b)of such paragraph. If there shall be a default under any of the provisions of this mortgage resulting in a public sale of the premises covered hereby or if the Mortgagee acquires the prop- erty otherwise after default, the Mortgagee shall apply at the time of the commencement of such proceedings, or at the time the property is otherwise acquired, the balance then remaining ip the.funds accumulated under such subsection (b)of paragraph 2 as a credit against the amount of principal then remaining unpaid under the note and shall properly adjust any payment! ich have been made under subsection(a) uch paragraph. 0 C O ! G" C�}- • l 3CLCD CJ N • PAY TO THE ORDER OF AMERICAN REPUBLIC INSURANCE COMPANY Without recourse: GENERAL MORTGAGE CO' •ORATION OF IOWA A 'V. `Pre-ide t-Treasurer ALL PPTmr' L AND INTEREST PAY''. CL'R71.ENT,Pgl-NOL AL BAT,A:';i:i 21,000.00 ----• • - , -- -- ._ ' .17 , .; _ • , , , __.:.2411.;.: 5411 4 io t FOR RF.CORD.20.:39;tNIS—.1-Z-DAY OF :- - ASSIGNMENT OF MORTGAGE=CORFORATION. .11, _esMolee RECORDED RI BOOdgfrAGE,Lied Approved br du:D ; nReal Estate Board.04itabst'UM : -7t —'_ :f :::: '--. — 1 -...'- a F. FEE" , •-- J011;1401 " That ENERALlifoRTGAGE CORPORATION OF IOWA, a Corporation oii1ed and existing; under the ‘" •", ' . an . • 4 •4;,, • .-..- .0:- L.; ,- .1 ..:, laws of Iowa of the County of Polk, State of Iowa, foralue received doe's`-hereby sell and assign unto...' ..... American Republic Insurance Company - , 1 - - - all its right, title, andinterest in '.. • • - ; ' s -'r _ 7 and to a certain mortgage.bearing date . 27th - . day of. October ' , 19 70, _„., • - — executed by -,, Jaites.'kidaYde and Margaret A. Alcayde, Husband and Wife : • 1 to GENERAL.MORTGAGE CORPORATION OF IOWA and recorded in the records oL Johnson . County, _ I Iowa, in BOok4_7_2entof Mortgages, Page.,32kon the_________. ..r _;day of _______ScC913_e!_2 _ _....„ 19_1P, ,.., .....•", and authorize .said assignee to collect, enforce or cancel the same:: - - - • r. i .• _ . 7 0 --• ' Dated the_________2,..Z_____slay of - - October ' - -, ---- 4", A CORPORATE SEAL - ' 41 . ' GENE' • j RTGAGE ......,:&;ed• • TION OF IOWA PP1.1.1.11.Pri Ogfir(?* — STATE OF IOWA, inabffc COUNTY, ss. By . . eg. - _ ___ _41,,,,,... - - 1 1- . z, - • , it" 1 rarl - 017, raTr- On this____—.)-T__________day of__ Oc tober before me Linda....L,C1.examens _• a Notary Public in and for L inn County, Iowa, personally appeared N. Rumb 1 ey and Pa t r iSia......1.....Sweeney , to me personally known, who being by me duly sworn did say, that they are respectively the Vice President and XXIBIGEM Assistant Sec.rAtary of said GENERAL MORTGAGE CORPORATION OF IOWA and that the seal affixed to said instrument is the seal of the said GENERAL MORT- GAGE CORPORATION OF IOWA and that said instrument was signed and sealed • in behalf of said GENERAL MORTGAGE CORPORATION OF IOWA by au- ,, , ) •, ey_______ __________ _______ ___ thority of its Board of Directors and saici_______N-__ ' •-• 14°TARIA ' • • fi k SEAL • : • . .,..- and_ Patricia J. Sweeney • _ . acknowledged the execution of said instrument to be the voluntary act and deed of said corporation by it voluntarily executed. . , •,., ,,••,-. ,' ..• ' I . 5...;, ,i'/ .\\ , ,0'. 8 0 „.... coco .:.-z: eez...a...a.,.....ri,f ,:---r-4-1) mNotary Public in and foON:w1X County, Iowa p.ol'” Linda L. Clemmens Linn -- LO r...) C) 7"-• _ ..1,-..c..2. EXHIBIT Cu ..-;•-. ,....,..,4; ¶ ....... l. • --, N, '..4 •"..".1 C...) .^r3 '7'%:,1"1 " <rn : j,...--, C)73- r,•,) NOTICE OF NONJUDICIAL FORECLOSURE OF NONAGRICULTURAL MORTGAGE TO: JAMES ALCAYDE and MARGARET ALCAYDE, also known as MARGARET A. ALCAYDE, husband and wife; AMERICAN FINANCE CORPORATION; ALLIANCE REALTY CO. ; CAD SCOTCH PINE APTS. ; CD N CITY OF IOWA CITY; and rn STATE OF IOWA: � --= cJ VD YOU AND EACH OF YOU ARE HEREBY NOTIFIED: ri O:z7 That the real estate note and real estate mortgage lien were execu€ d by,,31ames -J Alcayde and Margaret A. Alcayde, to General Mortgage Corporation of Iowa, dated October 27, 1970, and said real estate mortgage recorded on October 28, 1970, at 10:34 A.M. , and duly recorded in Book 172, Page 382, which was assigned by General Mortgage Corporation of Iowa, to American Republic Insurance Company, by written assignment dated October 28, 1970, filed 0ctober28, 1970 at 10:35 A.M. , and duly recorded in Book 349, Page 180, all filed in the office of the Recorder for Johnson County, Iowa, which real estate mortgage did sell, assign and convey unto the mortgagee or its assigns, the following described property, situated in Johnson County, Iowa, to wit: Lot Fifty-seven (57) in Linden Park Addition to Iowa City, Iowa, according to the recorded plat thereof, and locally known as: 125 Shrader Road, Iowa City, Iowa 52240 That you have failed to make the monthly payments due for the months of July, 1991, through and including February 1992, in the sum of $268.28 per month, late charges and accrued late charges totaling $61.33, moneys advanced for taxes and insurance in the sum of $255.40, abstract charges involving this foreclosure of $199 .00, and attorney fees for foreclosure of $650.00, making a total due of $3,311.97, which must be submitted in the form of certified funds payable to Metropolitan Federal Bank, (Servicing Agent for American Republic Insurance Company) , to the office of Harold J. Crawford & Associates, 850 Insurance Exchange Building, Des Moines, Iowa 50309. That unless within thirty (30) days after the completed service of this notice, the mortgagors, James Alcayde and Margaret A. Alcayde, also known as Margaret Alcayde, or junior lienholders, perform the terms in default or file with the Johnson County Recorder, a rejection of the notice pursuant to Section 655A.6 of the 1991 Code of Iowa, and serve a copy of this rejection upon the mortgagee, American Republic - 2 - Insurance Company, 6th and Keo, Des Moines, Iowa 50309, with a copy of said rejection forwarded to the undersigned, Harold J. Crawford, Attorney for American Republic Insurance Company, the mortgage will be foreclosed. Further it is stated: WITHIN THIRTY DAYS AFTER YOUR RECEIPT OF THIS NOTICE YOU MUST EITHER CURE THE DEFAULTS DESCRIBED IN THIS NOTICE OR FILE WITH THE RECORDER OF THE COUNTY WHERE THE MORTGAGED PROPERTY IS LOCATED A REJECTION OF THIS NOTICE AND SERVE A COPY OF YOUR REJECTION ON THE MORTGAGEE IN THE MANNER PROVIDED BY THE RULES OF CIVIL PROCEDURE FOR SERVICE OF ORIGINAL NOTICES. IF YOU WISH TO REJECT THIS NOTICE, YOU SHOULD CONSULT AN ATTORNEY AS TO THE PROPER MANNER TO MAKE THE REJECTION. IF YOU DO NOT TAKE EITHER OF THE ACTIONS DESCRIBED ABOVE WITHIN THE THIRTY-DAY PERIOD, THE FORECLOSURE WILL BE COMPLETE AND YOU WILL LOSE TITLE TO THE MORTGAGED PROPERTY. AFTER THE FORECLOSURE IS COMPLETE THE DEBT SECURED BY THE MORTGAGED PROPERTY WILL BE EXTINGUISHED. That the interest of American Finance Corporation is by virtue of a real estate mortgage executed by James and Margaret Alcayde, husband and wife, to American Finance Corporation, dated October 6, 1975, filed October 10, 1975, and recorded in Book 215, Page 313, which is junior to the lien of American Republic Insurance Company. That the interest of Alliance Realty Co. and Scotch Pine Apts. , is by virtue of a Case No. 31000, judgment rendered in its favor in Small Claims/entitled Alliance Realty Co. and Scotch Pine Apts., plaintiff, vs. James Alcayde, Jr., and Sandra Kay Alcayde, (207 - 6th Street, #9, Coralville, Iowa 52241), defendants, dated June 5, 1990, found in Small Claims Docket 49, Page 200, which is junior to the lien of American Republic Insurance Company. That the interest of City of Iowa City is by virtue of two Rehabilitation Agreement for Rehabilitation Loans executed by James Alcayde and Margaret Alcayde, to City of Iowa City, dated September 6, 1991, and recorded September 19, 1991, in Book 1280, Pages 318 and 322 respectively, and by virtue of a mortgage executed by James and Margaret Alcayde, to City of Iowa City, dated September 6, 1991, recorded September 19, 1991, and recorded in Book 1280, Page 323, and by virtue of a judgment rendered in the case entitled City of Iowa City, plaintiff, vs. James Alcayde, Jr. , defendant, dated December 17, 1991, in Case No. 91 TR 69694, which are junior to the lien of American Republic Insurance Company. ro C7-^C ZE; rn ::-.:,1 G? ? N .. • - 3 - That the interest of State of Iowa, is by virtue of the judgment rendered in its favor in the case entitled State of Iowa, plaintiff, vs. James Alcayde, Jr. , defendant, designated as Case No. 90 TR 5869, dated April 2, 1990; in case entitled State of Iowa, plaintiff, vs. James Alcayde, Jr. , designated as Case No. 90 TR 5870, dated April 2, 1990; for costs in case entitled Alliance Realty Co. and Scotch Pine Apts. , plaintiff, vs. James Alcayde, Jr. and Sandra Kay Alcayde, defendants, designated as Small Claims Case No. 31000, found in Small Claims Docket 59, Page 200, dated June 5, 1990; and for costs in case entitled City of Iowa City, plaintiff, vs. James Alcayde, Jr. , defendant, designated as Case No. 91 TR 69694, dated December 17, 1991, which are junior to the lien of American Republic Insurance Company. That the real estate herein described is not used as agricultural property, and is residential property located in Iowa City, Johnson County, Iowa. AMERICAN REPUBLIC INSURANCE COMPANY likk LD J. CRAWFORD & ASSOCIATES gir BY :p�r•0`��I � Harold J. Pit A orneys fo .rt :gi erica Republic Insurance Compan 850 Insurance Exchange Building Des Moines, Iowa 50309 Phone: 243-4254 (515) u0 c+.a CD zzcl rn �. 2-,m 370 N END OF CASE FILE