No guardian ad litem is required for in rem proceedings

Mollie Pawlosky Iowa Commercial Litigation Iowa Real Estate & Land Use

Posted on 11/03/2016 at 07:30 AM by Mollie Pawlosky

The City of Des Moines, after several inspections, brought an action to condemn a house and declare it a public nuisance.  The City originally named the owner’s estate, and the mortgage holder of record.  Four months later, the City filed an amended petition to substitute unknown heirs of the owner’s estate.  The mortgage holder was served, and all other entities were served by publication.  The City then moved for a default judgment.  The district court denied the motion for a default judgment, holding that a guardian ad litem had to be appointed, in order to represent the interests of unknown heirs.  The Iowa Supreme Court granted the City’s request for an interlocutory appeal, and referred the matter to the Iowa Court of Appeals.


Iowa Rule of Civil Procedure 1.211 states that the district court may not enter a judgment against a party who is a “minor, or confined in a penitentiary, reformatory or any state hospital for the mentally ill, or one adjudged incompetent, or whose physician certifies to the court that the party appears to be mentally incapable of conducting a defense,” without the appointment of a guardian ad litem.  The district court applied this rule to require the appointment of a guardian “to represent the interests of any potential unknown claimants in the subject real estate.”
The Court of Appeals reversed, holding, “The protections of rule 1.211 do not extend to actions in rem because ‘the defendant in a forfeiture proceeding is the property sought to be forfeited, not its owner.’”  Rule 1.211 applies only to judgments against a party; judgments in rem are entered against the property at issue and do not require the appointment of a guardian. (“No judgment…shall be entered against a party…”)
For further information regarding real estate litigation or Iowa civil procedure, contact Mollie Pawlosky.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

Mollie Pawlosky

 

 

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