IN THE COURT OF APPEALS OF IOWA

No. 21-0996

Filed March 30, 2022

CAVALRY SPV I, LLC,

Plaintiff-Appellee,

vs.

KENNETH W. BROWN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Fremont County, Margaret Reyes, 

Judge.

Kenneth Brown appeals the district court’s order granting summary 

judgment in favor of Cavalry SPV I, LLC. AFFIRMED.

Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellant.

Christopher Low of Blitt & Gaines, P.C., Des Moines, for appellee.

Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
2

VAITHESWARAN, Judge.

Debt collector Cavalry SPV I, LLC, purchased a credit card account from

Citibank, N.A. Cavalry sued Kenneth W. Brown alleging he had “a revolving credit 

card account”; Brown “failed to pay the amount due and owing” even after receiving 

a “demand”; and judgment should be entered against him for $7096 and court 

costs. Brown filed an answer denying Cavalry’s allegations and affirmatively 

stating he “never had a credit card from Citibank” and he “never held a Citibank 

credit account” with the designated number. Cavalry moved for summary 

judgment. Brown resisted, attesting to the affirmative statements he raised in his 

answer. Following an unreported hearing, the district court granted the motion and 

entered judgment in favor of Cavalry “in the amount of $7096, plus interest after 

date of judgment, and for the costs of this action.” Brown appealed.

Summary judgment is appropriate when “the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). Our 

review is for correction of errors at law. See Barker v. Capotosto, 875 N.W.2d 157, 

161 (Iowa 2016). 

Iowa Code section 537.5114 (2020) states:

1. In an action brought by a creditor against a consumer 

arising from a consumer credit transaction, the complaint shall allege 

the facts of the consumer’s default, the amount to which the creditor 

is entitled, and an indication of how that amount was determined.

2. No default judgment shall be entered in the action in favor 

of the creditor unless the complaint is verified by the creditor, or 
3

unless sworn testimony, by affidavit or otherwise, is adduced 

showing that the creditor is entitled to the relief demanded.[1]

The court of appeals interpreted this consumer credit code provision in Capital One 

Bank (USA), N.A. v. Denboer, 791 N.W.2d 264 (Iowa Ct. App. 2010). We 

concluded a common law “account stated” action could coexist with section 

537.1114. Denboer, 791 N.W.2d at 280. We held:

[A] creditor seeking to recover a credit card debt from a consumer 

must either:

(1) Meet the requirements of account stated, by providing an 

account agreement with the consumer, a final or “charge-off”

statement with the consumer’s address, and a sworn statement from 

a person with knowledge that regular monthly account statements 

were sent to the consumer at the address provided by the consumer, 

the charge-off statement is the sum total of those statements, the 

consumer used the credit card, and the consumer never objected to 

the monthly statements. If the creditor cannot prove the consumer 

never objected to any item, as an alternative the creditor may provide 

a sworn statement detailing the objections and demonstrating they 

were resolved without further objection by the customer, or a 

statement establishing that during the last 90 days before the chargeoff statement (or during any longer period of time leading up to the 

charge-off statement), the customer used the credit card and made 

no objections during that time.

(2) Provide an itemization of the debt it is seeking to recover, 

by filing an account agreement with the customer and a transaction 

history ending at a recent charge-off statement, together with a 

sworn statement from a person with knowledge authenticating these 

two items. In this event, the creditor is limited to recovering any 

increase in debt shown on the transaction history, plus ongoing 

interest.

Id. at 282 (emphasis in original). 

Applying Denboer, the district court made the following determinations:

. . . Cavalry submits a number of statements in Brown’s name 

showing charges on the account and showing that interest was 

calculated for both purchases and a balance transfer. This is 

 

1 Although the provision refers to a “default judgment,” the requirements imposed 

upon a creditor seeking to collect a debt are equally applicable in the summary 

judgment context.
4

sufficient evidence that Brown use[d] the account and thereby 

agreed to the terms of the Citibank agreement. While Brown denies 

using the account or receiving any monthly statements, Cavalry 

provided twelve (12) Citibank monthly statements mailed to Brown 

at addresses that Brown doesn’t dispute were his addresses. Three 

of those statements show that online payments were made on the 

account. And one statement shows the resolution of a disputed 

charge on the account. This is evidence that Brown was aware of 

the account and used the account. Brown admits in his answer that 

he received the “Notice to Cure” prior to the filing of the petition.[2]

In light of the documents provided by Cavalry set out above, 

the court finds that Cavalry has established the elements of the 

account stated recovery under the ICCC and Denboer and is entitled 

to summary judgment in this matter. Brown’s affidavit of denial 

alone, without more, fails to create a genuine issue of material fact 

for trial.

Brown argues the district court erred in (1) “finding that there was a binding 

agreement” with Citibank, N.A. “because there is no signed agreement or evidence 

of an oral or implied agreement” and (2) “awarding compensation for the claims in 

an amount that was not determinable.” He concedes the district court “correctly”

stated that “a factual issue does not arise simply from the claim that one exists”

and he “must set forth specific evidentiary facts showing the existence of a genuine 

issue of material fact.” In his view, he did so with his attestation that he “never had 

a Citibank, N.A. credit card” and Cavalry’s failure to provide “credit card documents 

signed by” him. He also points to the absence of transactions for a period of time 

before Cavalry sent him a copy of the credit card agreement.3

 

2

Iowa Code section 537.5110(1) states, “Notwithstanding any term or agreement 

to the contrary, the obligation of a consumer in a consumer credit transaction is 

enforceable by a creditor only after compliance with this section . . . .” Section 

537.5110(2)(a) requires the creditor to give a consumer who has a right to cure a 

default “the notice of right to cure provided in section 537.5111.” 

3 Cavalry responds that Brown failed to preserve error. We disagree, and we 

address the merits.
5

As the district court noted, the consumer credit code defines “[a]greement”

as “the oral or written bargain of the parties in fact as found in their language or 

by implication from other circumstances including course of dealing or usage of 

trade or course of performance.” Iowa Code § 537.1301(4). The definition does 

not require a document signed by the consumer. Id.; Citibank S. Dakota, NA v.

Machleid, No. 63409–7–I, 2010 WL 428006, at *2 (Wash Ct. App. Feb. 8, 2010)

(in debt collection action by Citibank, stating the bank was “not required to provide 

the initial agreement or the application that [the debtor] signed” and was only 

required to show that the debtor “was bound by the terms of the amended card 

agreement”); see also Citibank South Dakota, N.A. v. Johnson, 220 S.W.3d 894, 

895 (Tenn. Ct. App. 2006) (“Both federal law and State law provide that a signed 

agreement/application is not always required to obtain a credit card.”). 

Cavalry attached a credit card agreement to its summary judgment motion. 

The stock agreement stated it was the consumer’s “contract with [Citibank].” 

Cavalry also attached credit card statements listing Brown as the account holder 

and listing two addresses including the one at which he was served with process. 

The statements noted that Brown was a “[m]ember [s]ince 2017.” They showed 

a balance transfer and “standard purchases.” See Portfolio Recovery Assocs.,

LLC v. Eldred, No. 2 CA-CV 2020-0164, 2021 WL 3160436, at *3 (Ariz. Ct. App. 

July 26, 2021) (“Although the record did not include an express agreement 

between the bank and [the debtor], [a] cardholder’s acceptance of the terms and 

conditions of a credit card account may be established by a showing that [a]ny 

cardholder or authorized user use[d] the credit card account.” (internal quotations 

omitted)). One statement indicated that a billing dispute was “now considered 
6

resolved.” A “final” statement showed a balance of $7096, the identical amount 

sought by Cavalry. An authorized agent of Calvary attested she reviewed the 

account and “periodic statements were provided to [Brown]” as was a “final

statement . . . evidencing the sum total of all previous amounts due and owing as 

of the closing date of the statement.”

True, the attached statements did not go back to the moment the account 

was opened with a zero balance. But as the court stated in Denboer, “the Iowa 

statute does not explicitly require a full itemization or a transaction history. It only 

requires ‘an indication of how [the amount claimed by the creditor] was 

determined.’” 791 N.W.2d at 278 (quoting Iowa Code § 537.5114(1)). In any 

event, Cavalry’s authorized agent attested that “at no time prior to the 

commencement of this action did [Brown] communicate to [Cavalry], either orally

or in writing, of any unresolved dispute with the account.” See ITT Fin. Servs. v.

Zimmerman, 464 N.W.2d 486, 489 (Iowa Ct. App. 1990) (reversing default 

judgment in favor of creditor but stating “[s]worn testimony adduced at trial 

showing that a creditor is entitled to the relief demanded would also allow this 

computation” of the amount claimed by the creditor); Citibank, N.A. v. Surber, No. 

14-0190, 2015 WL 5278952, at *1 (Iowa Ct. App. Sept. 10, 2015) (noting debtor 

“failed to contradict—with supporting authority or legally cognizable claims—any 

of [the bank’s] evidence, nor did he show he ever objected to any of the monthly 

statements”); Eldred, 2021 WL 3160436, at *3 (“[T]he lack of timely response to 

[the creditor’s] letter shows the [debtor’s] assent to the amount claimed—and that 

amount is consistent with the provided bank statements.”). 
7

We conclude Brown did not generate an issue of material fact precluding 

entry of summary judgment and the district court did not err in granting summary 

judgment in favor of Cavalry.

AFFIRMED.