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Plaintiff,
v.
And
COME NOW, Defendants Kirk J. Ferentz, Individually and as Trustee of the Kirk J.
Ferentz Revocable Trust u/d/o October 5, 2012 and Mary C. Ferentz, Individually and as
Trustee of the Mary C. Ferentz Revocable Trust u/d/o October 5, 2012, (collectively
“Ferentzes”) and for their Answer to Petition at Law and in Equity state as follows:
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1. Denied.
2. Admitted.
4. Admitted.
6. Denied.
7. Admitted.
8. Ferentzes admit that a written Agreement was executed on or about May 31,
2001 to June 25, 2001 and recorded August 7, 2001, in Book 3108, at Page 224, of the
records of the Johnson County Recorder. Ferentzes admit a true and correct copy of this
“2001 Agreement” is attached to Plaintiff’s Petition. Ferentzes admit Plaintiff has quoted a
portion of the 2001 Agreement; however, Plaintiff has omitted crucial language necessary
Association” consisting of the then owners of the real properties referenced in Paragraph 6
of Plaintiff’s Petition existed. Ferentzes deny they were ever included in any such
“unincorporated Association.”
quoted. Ferentzes have never been in privity of contract with Plaintiff and, therefore, deny
that Plaintiff was a party to such 2001 Agreement and the remaining allegations of
paragraph 9.
10. Ferentzes admit that Plaintiff accurately quotes the 2001 Agreement.
11. Ferentzes deny that the Saddle Club Homeowners Association was
incorporated pursuant to Paragraph 6(a) of the 2001 Agreement. Ferentzes admit that a true
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and correct copy of the purported “Articles of Incorporation” were attached to Plaintiff’s
12. Ferentzes admit that on or about May 23, 2015 a meeting to discuss
formation of a proposed association and proposed bylaws was attended by Ferentzes and
Third Party Defendants herein. Ferentzes admit they agreed to provide any comments or
required revisions to the bylaws to a designated Owner by June 17, 2015. Ferentzes admit
they agreed to meet again for an additional organizational meeting. Ferentzes deny the
organizational meeting was scheduled for June 24, 2015, to accommodate the Ferentzes
schedules at the Ferentzes’ request. Ferentzes affirmatively assert that paragraph 9 of the
This agreement constitutes the entire agreement related to the matters contained
herein and it shall not be altered, amended, modified, or changed unless done so in
writing, signed by all parties hereto, or their respective heirs, assigns, transferees and
successors in interest.
13. Denied. Ferentzes affirmatively assert that they made oral and written
14. The Ferentzes admit they did not attend an organizational meeting on June
24, 2015. Ferentzes deny for lack of information that such meeting occurred.
15. Denied for lack of information. Ferentzes affirmatively assert that even if a
“unanimous vote of all members present at the June 24, 2015 organizational meeting”
16. Ferentzes admit Plaintiff has quoted the Bylaws. Ferentzes deny the
Association owns or maintains Saddle Club Road N.E. Ferentzes deny the Bylaws identify
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the initial Owners and members of the Association. Ferentzes deny they are members of the
17. Ferentzes admit that section 3.01 of the Bylaws purports to require the Board
of Directors of the Association to obtain the approval of a majority of Owners to enter into
Directors of the Association or the Association itself is duly authorized to enter into any
contract on behalf of its alleged Members or the Ferentzes. All remaining allegations of
18. Ferentzes admit the Article V of the Bylaws purports to govern the
authorized to levy any assessment, including assessments against its alleged Members or the
19. Denied for lack of information. Ferentzes affirmatively assert that even if a
“unanimous vote of all members present at the June 24, 2015 organizational meeting”
occurred, such vote is not binding on Ferentzes. Ferentzes affirmatively assert that the pro
the terms of the 2001 Agreement which expressly provides, “Each member of the
homeowners Association will be entitled to one vote on all Association matters.” See
20. Denied.
21. Admitted.
22. Denied.
24. Denied.
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28. Ferentzes admit they are not members of the Association and have refused to
pay any assessment Plaintiff has attempted to levy. The remaining allegations of paragraph
28 are denied.
29. Denied.
30. Denied.
31. Denied.
33. Denied.
35. Denied.
against the Ferentz Property. The remaining allegations of paragraph 36 are denied.
37. Denied.
39. Denied.
40. Denied.
41. Denied.
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AFFIRMATIVE DEFENSES
Association is not the real party in interest pursuant to the 2001 Agreement.
2. Plaintiff has no right title or interest in the area formerly known as Saddle
4. Plaintiff’s claims are barred by the doctrine of laches, waiver and estoppel.
alleged Encroachments.
Revocable Trust and Mary C. Ferentz, trustee of the Mary C. Ferentz revocable trust pray
the Court dismiss Plaintiff’s Petition, enter a judgment in Defendants’ favor holding
Plaintiff’s purported lien is null and void, granting Defendants a judgment for their
reasonable attorney’s fees and costs and for such other and further relief as the Court deems
COME NOW, Third Party Plaintiffs Kirk J. Ferentz, Individually and as Trustee of
the Kirk J. Ferentz Revocable Trust u/d/o October 5, 2012 and Mary C. Ferentz,
Individually and as Trustee of the Mary C. Ferentz Revocable Trust u/d/o October 5, 2012,
and submit their Counterclaim and Third Party Petition to Quiet Title and for Declaratory
Judgment.
County, Iowa and is Trustee of the Kirk J. Ferentz Revocable Trust u/d/o October 5, 2012.
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Defendant and Third Party Plaintiff Mary C. Ferentz is a resident of Johnson County, Iowa
and is Trustee of the Mary C. Ferentz Revocable Trust u/d/o October 5, 2012. Collectively
Code of Iowa.
3. Third Party Defendants John M. Buatti, Ann Marie Buatti, Gary D. Watts,
Becky J. Watts, Elayne O. Sexsmith and Fred N. Page are all residents of Johnson County,
Iowa.
4. Third Party Defendants John M. Buatti, Ann Marie Buatti, Gary D. Watts,
Becky J. Watts, Elayne O. Sexsmith and Fred N. Page are all members of the Association
and are owners of real property more particularly described in the Bylaws of Saddle Club
follows:
Ferentz Revocable Trust u/d/o October 5, 2012, as may be amended (undivided ½ interest)
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and Mary C. Ferentz as trustee of the Mary C. Ferentz Revocable Trust u/d/o October 5,
7. Prior to May 31, 2001, Third Party Plaintiffs Kirk J. Ferentz and Mary C.
Ferentz, along with Richard P. Brown and Marilyn J. Brown, the predecessors in interest to
the property now owned by Third Party Defendants Elayne O. Sexsmith and Fred N. Page,
objected to the subdivision of Lot 7 Saddleback Ridge – Part Two by Third Party
Defendants John M. Buatti and Ann Marie Buatti (“Buatti Third Party Defendants”).
8. On or about May 31, 2001, Third Party Plaintiffs Kirk J. Ferentz and Mary C.
Ferentz, the Buatti Third Party Defendants, and Richard P. Brown and Marilyn J. Brown
entered into an agreement regarding the maintenance of Saddle Club Road N.E. (sometimes
referred to as “Saddleclub”); Recorded August 7, 2001 in Book 3108, Page 224 of the
9. The 2001 Agreement resulted in the subdivision of the property owned by the
Buatti Third Party Defendants and the creation of the lot now owned by Third Party
Defendants Gary D. Watts and Becky J. Watts (“Watts Third Party Defendants”).
10. On June 12, 2001 the Johnson County Board of Supervisors adopted a
“Resolution Approving the Preliminary and Final Plat and Subdivider’s Agreement of
11. A true and accurate copy of the 2001 Agreement, as filed with the Recorder
12. The parties to the 2001 Agreement agreed to certain provisions for the
maintenance of Saddle Club Road N.E. between Prairie Du Chien Road and the North
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The parties hereto will create an Iowa nonprofit corporation consisting of themselves
as well as all future owners of the property now owned by the parties hereto
including any resubdivided lots therein. The bylaws of the nonprofit corporation will
incorporate the terms of this road maintenance agreement and establish more
detailed procedures for the selection of road maintenance contractors and payment
thereof all consistent with this agreement.… Any changes in the bylaws by a super
majority vote shall not alter any rights or obligations created by this agreement.”
The surface of Saddleclub Road N.E. is now gravel. In the event any party hereto
who subdivides their property in compliance with the terms of this agreement desires
to change the roadway surface to some surface other than gravel, and such change in
surface is required by any ordinances, law, regulation or governmental body for
further subdivision by any party hereto, the cost thereof shall be paid by said party
and none of the other parties hereto or their successors in interest shall be required to
pay for and maintain over and above their current obligations for said improved
roadway surface.
15. On information and belief, Ferentzes state that following the execution of the
2001 Agreement no change in the surface of Saddle Club Road N.E. was required by any
16. On information and belief Ferentzes state that following the execution of the
2001 Agreement, there has been no further subdivision of any of the properties subject to the
2001 Agreement.
The Bylaws
17. On July 8, 2015, a certificate was filed in Book 5393 at page 602 of the
records of the Johnson County, Iowa Recorder, which included the bylaws of Saddle Club
Road Homeowners Association (“the Bylaws”). A true and accurate copy of the Bylaws is
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18. At a meeting of the Association members on or about June 24, 2015, the
individual Third Party Defendants voted to adopt the Bylaws and declared them to be
approved by a “3/4 super-majority vote of the owners in favor of the Bylaws of the
Homeowners Association, assuming disapproval as was expressed via the letter submitted
by Mary & Kirk Ferentz.” A true and accurate copy of the minutes of the Saddle Club Road
Homeowners Association dated June 24, 2015 are attached hereto as Exhibit C.
19. Section 1.03 of the Bylaws includes a statement that the initial Owners and
members of the Association include: “Trustee of the Kirk J. Ferentz Revocable Trust and
any other capacity, have agreed to be bound by the Bylaws or to be members of the
Association nor have they agreed that such Bylaws are binding in any manner on the title to
the Ferentz Property or on the title to any other property owned by them individually or as
22. The Bylaws were filed for record in the office of the Johnson County, Iowa
Recorder, without the approval or consent of Kirk J. Ferentz and Mary C. Ferentz
23. Despite the fact that the 2001 Agreement expressly prohibited any
homeowners association from adopting bylaws that altered any rights or obligations of any
party to the 2001 Agreement, the Bylaws nevertheless adopted numerous provisions
inconsistent with the 2001 Agreement and purported to alter the parties rights and
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the terms of the 2001 Agreement which contemplates the parties voting
“on all Association matters” and limits the parties’ liability to pay for
a reserve fund.
to Iowa law and was not contemplated by and is contrary to the 2001
Agreement.
member fails to do so after notice, “in the case of tree limbs needing to
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Such provision grants the Board authority far beyond the contemplation
the 2001 Agreement and the bylaws, “the terms of these Bylaws shall
govern.” The 2001 Agreement provides that the 2001 Agreement will
24. Pursuant to Iowa Code Section 504.601, “[a] person shall not be admitted as
a member [of an Iowa nonprofit corporation] without the person’s consent or affirmative
25. Because the Ferentzes did not consent to be admitted as members of the
Association and because the Bylaws were established without their consent and contrary to
the terms of the 2001 Agreement, such Bylaws are not binding upon the Ferentzes or their
successors in interest, but instead constitute a cloud on the Ferentzes’ title to their Property.
The Lien
26. At the time the 2001 Agreement was executed by the Ferentzes, the Browns
and the Buatti Third Party Defendants, the surface of Saddleclub Road N.E. was gravel.
27. In approximately 2002, the Watts Third Party Defendants elected to change
28. The Ferentzes never agreed in writing to the change and, in fact, Third Party
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29. In March 2015, prior to the formation of the Association and without the
approval of the Ferentzes, Third Party Defendant Gary Watts obtained bids from LL
Pelling Company for the purpose of scarifying, grading, and adding to the road’s sub base
30. On or about May 2015, prior to the formation of the Association and without
31. At a meeting of the Association members on or about June 24, 2015, the
individual Third Party Defendants voted to assess Ferentzes $8,449.28 for the cost of the
work performed by LL Pelling Company and to collect additional fees for road
maintenance, snow removal and maintenance in the full amount of $5,000 and assess
32. On or about June 26, 2015, the Association forwarded to Ferentzes a bill in
33. October 23, 2015 Third Party Defendants caused to be filed a “Claim of Lien
For Assessment” (the “Lien”) wherein Third Party Defendants asserted that a lien exists
against Ferentzes’ Property in the total amount of $9,599.28. A true and accurate copy of
34. The Lien is contrary to the 2001 Agreement and was not established pursuant
35. The Lien constitutes a cloud on the Ferentzes’ title to the Ferentz Property.
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Relief Requested
a. Quiet title in the Ferentz Property by having the Court declare that the
Ferentzes are not members of the Association and that the Ferentzes
and the Ferentz Property, as well as the Ferentzes’ successors in
interest, are not bound by any rules, regulations, bylaws or the like
which have been or may be promulgated by the Association, or by the
other Third Party Defendants herein.
b. Quiet title in the Ferentz Property by having the Court declare that the
Lien filed by the Association is invalid and the alleged debt
represented by the Lien is not due and owing for all the reasons set
forth herein.
c. Have the Court declare the parties’ respective rights and obligations
pursuant to the 2001 Agreement.
the Kirk J. Ferentz Revocable Trust u/d/o October 5, 2012 and Mary C. Ferentz,
Individually and as Trustee of the Mary C. Ferentz Revocable Trust u/d/o October 5, 2012
request that the Court quiet title in the Property; confirm that Third Party Plaintiffs are not
members of the Saddle Club Road Homeowners Association and that they and their
successors in interest are not bound by any rules, regulations, bylaws or the like which have
been or may be promulgated by the Association or its members; confirm that the Lien filed
by the Association is invalid and does not constitute a lien on Third Party Plaintiffs’
property and that the alleged debt represented thereby is not due and owing; and to
otherwise declare the rights of the Parties hereto pursuant to the 2001 Agreement as
necessary to resolve the issues before the Court. The Third Party Plaintiffs pray for such
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/s/Mark A. Roberts
MARK A. ROBERTS AT0006579
NICHOLAS PETERSEN AT0012570
Simmons Perrine Moyer Bergman PLC
115 3rd Street, Suite 1200
Cedar Rapids, IA 52401-1266
(319) 366-7641; Fax (319) 366-1917
mroberts@simmonsperrine.com
npetersen@simmonsperrine.com
CERTIFICATE OF SERVICE
I hereby certify that on March 18, 2016 I filed the foregoing with the Clerk of Court
using the electronic filing system which will send notification of such filing to the following:
Adam S. Tarr
atarr@pughhagan.com
Bryce K. Dalton
bdalton@pughhagan.com
/s/Mark A. Roberts_____________
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