IN THE COURT OF APPEALS OF IOWA

No. 14-1862

Filed April 6, 2016

RONALD C. BROWNLEE, GLENDA F. 

BROWNLEE, DANIEL R. BROWNLEE,

MEGAN L. BROWNLEE, d/b/a 

BROWNLEE FARM PARTNERSHIP,

Plaintiffs-Appellees, 

vs. 

JAMES D. JAMISON, Individually, JEFF 

JAMISON, Individually and Jointly, d/b/a 

JAMISON & SONS, a/k/a JAMISON & 

SONS AG SERVICES, a/k/a J&S AG 

SERVICES, and MARVIN MITCHELL, 

a/k/a RUSS MITCHELL d/b/a MITCHELL 

CONSULTING, a/k/a MARK HENDRICHS,

and JAMES D. JAMISON IRREVOCABLE

TRUST, RONALD GALE MCDOWELL, 

Trustee of the James D. Jamison Irrevocable Trust,

Defendants-Appellants.

________________________________________________________________

Appeal from the Iowa District Court for Clarke County, Sherman W. 

Phipps, Judge. 

Defendants appeal from an adverse grant of summary judgment on the 

plaintiffs’ claim for equitable mortgage. REVERSED AND REMANDED.

John P. Roehrick of Gaudineer & George, L.L.P., West Des Moines, for 

appellants.

Jeff W. Wright and Joel D. Vos of Heidman Law Firm, L.L.P., Sioux City, 

for appellees.

Heard by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

The defendants appeal from an adverse grant of summary judgment in 

this action involving the equitable mortgage doctrine. The district court held the 

plaintiffs had established an equitable mortgage as a matter of law. We conclude 

there is a triable issue of fact regarding whether the parties intended a sale of 

real property of only an equitable mortgage. We thus reverse and remand for 

further proceedings.

I.

The summary judgment record establishes the following. Ronald, Glenda, 

Daniel, and Megan Brownlee d/b/a Brownlee Farm Partnership owned and

operated a family farm. By 2009-2010, the farming operation was in financial 

straits. Between November 25, 2009, and March 2, 2010, Ronald and Daniel 

forged the endorsement of Farmer’s Trust and Savings Bank (hereinafter 

“FTSB”) on certain checks made payable jointly to the bank and the Brownlees 

and deposited the checks into the farm’s accounts. FTSB was a creditor of the 

farming operation. 

In July of 2010, FTSB commenced foreclosure proceedings on the farm. 

Around the same time, the Brownlees saw an advertisement in the Des Moines 

Register offering “refinancing/operating lending help.” The advertisement was 

placed in the Des Moines Register by Marvin Mitchell. The Brownlees met with 

Mitchell to discuss their financial situation. 

On March 28, 2011, the Brownlees entered into a Consulting Agreement 

with Mitchell through Jamison & Sons Ag Services. The agreement provided 
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Mitchell would provide consultation and other services to the Brownlees, 

including advice on reorganization, efforts to renegotiate and restructure the 

debt, efforts to obtain new financing, and efforts to obtain loan approval. The 

agreement also required the Brownlees to purchase their seed, herbicide, 

fungicide, and insecticide from Jamison & Sons Ag Services. The agreement 

also provided the “Client shall pay Consultant . . . an additional sum of 2% of the 

gross loan amount or amount of credit applied for/restructured amount/reduced 

amount arranged for, obtained by or obtained from efforts of the Consultant for 

Client.” All late fees incurred a 1.5 percent late charge. The agreement also 

stated “unpaid fees . . . attach as 1st secured party to loans to be dispersed to 

Client and property of Client used to receive the loan(s) or restructuring.” On 

March 28, 2011, the Brownlees signed an information release to give Jamison & 

Sons Ag Services access to the Brownlees’ financial information. 

The decrees of foreclosure were entered on April 4, 2011. On April 19, 

2011, FTSB sent Mitchell the Brownlees’ current payoff schedule in the mail. By 

this time, the bank was aware the Brownlees had forged FTSB’s endorsements 

on certain checks and misappropriated the funds. In the payoff schedule 

provided to Mitchell, there was a line item documenting the amount still owed to 

satisfy the claim of the insurance company that compensated the bank on the 

forgery loss. It was identified in the schedule as “Forgery Ins.” 

On April 27, 2011, the Brownlees entered into a Repurchase Agreement. 

The Repurchase Agreement provided the Brownlees would sell their farm 

property to James Dean Jamison in exchange for him “settling all current debts 
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and/or current fees due [FTSB]” The settlement amount was not to “exceed the 

amounts as represented in attachments N, O & P or $1,800,000.00 whichever is 

less.” The agreement stated: 

This amount will be paid by buyer as follows. $10,000.00 paid upon 

execution of this agreement to the David Leitner Law Firm Trust 

account, $121,522.76 paid upon agreement between buyer and 

Farmer’s Trust & Savings Bank of clear lien free possession of the 

above named property to farm by the buyer in 2011, balance to be 

paid in full upon Farmer’s Bank & Trust and sellers providing 

agreeable payoffs and clear and merchantable title free of any and 

all liens or claims to buyer and transferring any 1st mortgage rights 

to buyer along with all satisfaction of buyer’s closing request 

including but not limited to buyers due diligence addendum 

Attachment Q and requested closing information.

The Repurchase Agreement stated, “Sellers agree to offer to repurchase the 

above named property on or before December 31, 2011 from the buyer for all of 

the amounts paid in regards to the above property by the buyer, plus 1% per 

month interest on all monies paid by buyer.” The repurchase agreement also 

gave Jamison & Sons Ag Services a “1st secured interest in favor of the buyer 

from the sellers on the above named property for all crops, crop insurance or 

proceeds of crops grown or intended to be grown on the above property in 2011.” 

The agreement allowed the Brownlees to remain on the property as renters until 

December 2011, with rent of $135,000 due on November 15, 2011.

On August 16, 2011, Mitchell sent the Brownlees an invoice for debt 

restructuring services in the amount of $36,102.47 due by August 19, 2011. On 

August 19, 2011, the Brownlees executed warranty deeds conveying their 

property to the James D. Jamison Irrevocable Trust. On November 26, 2011, 

Mitchell sent the Brownlees a letter stating the money due to J&S Ag Services 
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was past due. In the letter Mitchell stated: “You are way delinquent with J & S Ag 

Services (Jamison). Be aware that another foreclosure will more likely be

coming from Jamison should your debts to him be let go much longer. Mr. 

Jamison has been more patient and accommodating to you people than any of 

your past creditors.” The Brownlees did not satisfy the debt or make an offer to 

repurchase the property. On February 3, 2012, the James D. Jamison 

Irrevocable Trust sold the farmland to a third party for $3.25 million. 

As the Brownlees were attempting to resolve their financial situation, the 

federal government was investigating the Brownlees’ check forgeries. Daniel 

was indicted on March 21, 2012. In September 2012, Daniel pleaded guilty to 

bank fraud. In October 2012, Ronald pleaded guilty to bank fraud. He deceased 

prior to his sentencing. 

The plaintiffs filed their petition on July 30, 2012, against James D. 

Jamison, Jeff Jamison, Jamison & Sons, Jamison & Sons Ag Services, Marvin 

Mitchell, Mitchell Consulting, the James D. Jamison Irrevocable Trust, and 

Ronald Gale McDowell, Trustee of the James D. Jamison Irrevocable Trust. The 

plaintiffs’ petition was in two counts: (1) equitable mortgage; and (2) fraudulent 

inducement and misrepresentation. The parties filed cross motions for summary 

judgment. The plaintiffs contended they had established an equitable mortgage 

as a matter of law. The defendants contended there was an issue of fact on the 

equitable mortgage claim or that they were entitled to judgment as a matter of 

law because the Brownlees acted with unclean hands. Specifically, the 

Brownlees had misled the defendants regarding the forgeries. The district court 
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denied summary judgment on the defendants’ motion. The court concluded 

“there is a material fact as to whether or not the forgeries in any way impacted or 

influenced the parties in entering into the Repurchase Agreement.” The district 

court granted the plaintiffs’ motion for summary judgment on count one, holding 

the Brownlees established an equitable mortgage as a matter of law. This is a 

timely interlocutory appeal from the district court’s ruling on the parties’ motions 

for summary judgment. 

II.

We review the district court’s summary judgment ruling for the correction 

of legal error. See Osmic v. Nationwide Agribusiness Ins. Co., 841 N.W.2d 853, 

858 (Iowa 2014). Summary judgment should be granted only “if 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). The party seeking summary judgment has the burden of 

establishing that the facts are undisputed and that the party is entitled to a 

judgment as a matter of law. See Estate of Harris v. Papa John’s Pizza, 679 

N.W.2d 673, 677 (Iowa 2004). The party resisting the motion “cannot rely on the 

mere assertions in his pleadings but must come forward with evidence to 

demonstrate that a genuine issue of fact is presented.” Stevens v. Iowa 

Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). 

The court reviews the summary judgment record in the light most 

favorable to the party resisting the motion for summary judgment and “indulge[s] 
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in every legitimate inference that the evidence will bear in an effort to ascertain 

the existence” of a genuine issue of material fact. See Crippen v. City of Cedar 

Rapids, 618 N.W.2d 562, 565 (Iowa 2000). If the summary judgment record 

shows that the “resisting party has no evidence to factually support an outcome 

determinative element of that party’s claim, the moving party will prevail on 

summary judgment.” Wilson v. Darr, 553 N.W.2d 579, 582 (Iowa 1996). Our 

court “can resolve a matter on summary judgment if the record reveals a conflict 

concerning only the legal consequences of undisputed facts.” Boelman v. 

Grinnell Mut. Reins. Co., 826 N.W.2d 494, 501 (Iowa 2013).

III.

We turn to the merits of the issue. An equitable mortgage is a lien on 

property to secure the payment of money that lacks the essential features of a 

legal mortgage. Our courts “have always recognized that ‘a conveyance 

absolute on its face may, by proper evidence, be shown to be but a mortgage.’” 

Steckelberg v. Randolph, 404 N.W.2d 144, 148 (Iowa 1987) (alterations omitted) 

(quoting Trucks v. Lindsey, 18 Iowa 504, 504 (Iowa 1865)); see also Lovlie v. 

Plumb, 250 N.W.2d 56, 59 (Iowa 1977) (“It is well settled a transfer of title 

absolute on its face, if intended as security alone, will be deemed a mortgage. 

And such intent may be shown by parol.”). In determining whether a conveyance 

or mortgage was intended, each case must be decided “on the totality of its own 

facts.” Koch v. Wasson, 161 N.W.2d 173, 178, 178 (Iowa 1968). The court may 

look beyond the instrument itself and at the relationship between the parties. 

Steckelberg, 404 N.W.2d at 149; Koch, 161 N.W.2d at 178; Brown v. Hermance, 
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10 N.W.2d 66, 68 (Iowa 1943). Parol evidence may be reviewed to determine 

the intent of the parties. See Steckelberg, 404 N.W.2d at 149. The reason the 

court admits parol evidence is to “show that an absolute deed is in reality . . . a 

mortgage . . . [so] that a court of equity will not construe a statute designed to 

prevent fraud in such a manner as to produce fraud.” Bigler v. Jack, 87 N.W. 

700, 701 (Iowa 1901). The ultimate question is “whether [the parties] intended

for the deed to serve as security for some obligation; if they did, the courts will 

convert the transaction into a mortgage by operation of law.” Restatement 

(Third) of Mortgages § 3.2 cmt. a (Am. Law Inst. 1996). 

The grantor “carries the burden to show by clear and convincing evidence 

that the deed was intended to be something other than what it purports to be.” 

Koch, 161 N.W.2d at 178. See, e.g., Steckelberg, 404 N.W.2d at 148-49 (“If, 

however, a deed is to be construed as a security instrument, ‘the supportive 

evidence must be clear, satisfactory, and convincing.’” (quoting Lovlie, 250 

N.W.2d at 59)); Collins v. Isaacson, 158 N.W.2d 14, 18 (Iowa 1968) (“In order 

that a deed be held a mortgage the evidence must be clear, satisfactory and 

convincing.”). 

The summary judgment record reveals several facts that could show the 

parties intended only a security arrangement. First, inadequate consideration 

tends to show the “transaction was intended to be a mortgage.” Koch, 161 

N.W.2d at 178; Bigler, 87 N.W. 702 (“If such inadequacy appeared, it would, no 

doubt, be strong evidence in support of [a] contention.”); Hughes v. Sheaff, 19 

Iowa 335, 341 (Iowa 1865) (stating it is strong evidence a security was intended 
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when “the consideration for the conveyance was much less than the value of the 

property”). In this case, the Brownlees transferred their property to the James D. 

Jamison Irrevocable trust for $1.8 million in exchange for settling their debts. 

Shortly thereafter, the Jamison Trust sold the property to a third party for $3.25 

million. This could be evidence of inadequate consideration, but given the 

Brownlees’ issues with the bank and financial distress, it may also be evidence of 

a purchaser taking a risk in a messy real estate transaction. Regardless, the 

“mere inadequacy of consideration is not sufficient to justify the conclusion that a 

deed absolute in form is intended as a mortgage.” Fort v. Colby, 144 N.W. 393, 

403 (Iowa 1913). Inadequacy of consideration is a material fact that should be 

considered along with other circumstances. Id. 

Another indicator the parties intended a mortgage is the grantor retains 

possession of the property. Koch, 161 N.W.2d at 178. This “is considered a 

circumstance consistent with the claim of creditor-debtor relationship and 

inconsistent with the theory of absolute conveyance.” Id. Here, the Brownlees 

retained possession of the deeded property. As with the prior factor, 

relinquishment of the property, however, is not conclusive. Id. “‘[I]t is not at all 

an unusual circumstance that a deed given as a mortgage is accompanied or 

followed by a surrender of possession or by a lease to the grantor.’” Id. (citation 

omitted). 

Another circumstance evidencing a security interest rather than a 

conveyance is the creation or existence of a debtor-creditor relationship. See 

Steckelberg, 404 N.W.2d at 149 (“A telltale sign that a deed, absolute on its face, 
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amounts only to an equitable mortgage appears where the transaction of which it 

is a part operates to create or continue as between the parties the relation of 

obligor and obligee.”). Here, the Jamisons had a creditor-debtor relationship with 

the Brownlees. For example, in the collection letter sent to the Brownlees, 

Mitchell stated “Mr. Jamison has been more patient and accommodating to you 

people than any of your past creditors.” As with the other factors, however, this 

fact is just one of many relevant considerations. 

The right to redeem the property is another circumstance that shows the 

parties intended a mortgage. “If the deed was intended as security, the settled 

policy of the law accords [the mortgagor] the right to redeem.” Brown, 10 N.W.2d 

at 68. When a “mortgagor deeds the property to the mortgagee, the deed is 

presumed to be but a continuation of the security and the right of redemption is 

presumed to continue.” Koch, 161 N.W.2d at 176 (citation omitted). Here, the 

Brownlees had the right to repurchase the property on certain conditions. The 

repurchase agreement stated the “Sellers agree to offer to repurchase the above 

named property on or before December 31, 2011 from the buyer for all of the

amounts paid in regards to the above property by the buyer, plus 1% per month 

interest on all monies paid by buyer.” It is not disputed the Brownlees did not 

repurchase the property or make an offer to repurchase the property on the 

terms and conditions provided.

There is also evidence, the defendants argue, the parties intended an 

absolute conveyance. First, the Jamison Trust was a third party and was not a 

party to the prior agreements. Second, the Jamisons argue there was no 
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landlord-tenant relationship. The defendants contend the rent referenced in the 

parties’ repurchase agreement was repayment for the rent advanced by Jim 

Jamison to FTSB for the Brownlee’s farming operation in 2011. The defendants 

argue there was no debtor-creditor relationship between the Brownlees and the 

Jamison Trust. 

The ultimate inquiry in determining whether the parties intended a 

mortgage or conveyance is the parties’ intent. “The conduct of the parties 

leading up to the making of a deed from mortgagor to mortgagee is frequently of 

great weight in determining whether the intent was to buy and sell or merely give 

security in a new form.” Davis v. Wilson, 21 N.W.2d 553, 557 (Iowa 1946). 

“Likewise their subsequent conduct frequently throws light upon their 

understanding and intent in entering into the transaction.” Id. Given the rather 

unique circumstances of this case, including the complicated transactional 

history, the interconnectedness of the defendants and their business operations, 

and the convictions of the Brownlees for forgery related to the financing of the 

farming operation, we cannot conclude the Brownlees established the existence 

of an equitable mortgage as a matter of law. See Harper v. Kaczor, No. 10-1833, 

2011 WL 3925435, at *6 (Iowa Ct. App. Sep. 8, 2011) (“When, as here, the 

interpretation of a contract depends upon the credibility of extrinsic evidence, the 

question of interpretation should be determined by the finder of fact.”); see also 

Robinson v. Builders Supply & Lumber Co., 586 N.E.2d 316, 323 (Ill. Ct. App. 

1991) (reversing summary judgment and remanding for trial on equitable 

mortgage claim); New York TRW Title Ins. v. Wade's Canadian Inn & Cocktail 
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Lounge, Inc., 605 N.Y.S.2d 139, 141 (N.Y. App. Div. 1993) (“While an equitable 

mortgage thus cannot be ruled out as a matter of law, we cannot say on this 

record that it is warranted as a matter of law either. Rather, we discern the 

presence of factual issues with regard to the parties' intent.”); Pearson v. Gray, 

954 P.2d 343, 346 (Wash. Ct. App. 1998) (summarizing evidence tending to 

support the existence of an equitable mortgage but reversing grant of summary 

judgment where the “issue of the parties’ intent is sufficiently presented” to create 

a triable issue of fact).

IV.

For the foregoing reasons, we reverse the district court’s grant of 

summary judgment and remand this matter for further proceedings.

REVERSED AND REMANDED.