Audio Odyssey, Ltd. v. Brenton First National Bank (284 F. Supp. 2d 1159, 2003)

ORDER ON CROSS MOTIONS FOR • SUMMARY JUDGMENT

GRITZNER, District Judge.

This matter comes before the Court on Cross Motions for Summary Judgment. A hearing on the motions was held August 29, 2003. Representing Audio Odyssey were Dale Haake and Stephen Fieweger of Katz, Huntoon & Fieweger. Representing Defendants Bernard J. Hofmann and Anderson & Nelson (“Law Firm”) was Diane Kutzko of Shuttleworth & Ingersoll. Representing Brenton Bank, John Bradley, Chris Pieper, and Merchants Bonding (“Bank”) was Stephanie Hinz of Pickens, Barnes & Abernathy. Representing Scott County Sheriffs Michael Bladel, John Norris, and Charles Barton (“Scott County”) was Michael Walton of the Scott County Attorney’s Office.

FACTS

In 1977, Dogan Dincer began working at Audio Odyssey, Ltd. (“Audio Odyssey”), an electronics store located in Davenport, Iowa. He eventually became manager and part-owner of the business. In October 1991, Dincer bought out the majority shareholder’s interest in the company and thereby became Audio Odyssey’s sole shareholder. To finance the purchase, a $200,000 loan was negotiated with Brenton Bank, 85 percent of which was guaranteed by the Small Business Administration (“SBA”).

A Security Agreement (“SA”) signed by Dogan and Ann Dincer gave Brenton a security interest in Audio Odyssey’s accounts, general intangibles, contracts, instruments, chattel paper, documents, inventory, furniture, machinery, equipment (including motor vehicles, trucks, and trailers), and fixtures located on the property. Audio Odyssey’s loan obligations included making a monthly principal and interest payment, maintaining insurance on the collateral, and keeping current on tax obligations. In the event of default, the SA allowed Brenton, to accelerate the loan, enter the premises and take the collateral. The loan documents included a lease assignment (“Lease Assignment”) which provided that in the event of default, the Bank could, without notice, enter the leased premises and, inter alia, remove all Audio Odyssey’s property, sell all Audio Odyssey’s property, and/or transfer and assign the lease.

In late 1994, Audio Odyssey began experiencing financial difficulties and fell behind on its loan obligations, including the loan mortgage, taxes, and insurance payments. Brenton agreed to accept interest only payments on the loan mortgage from November 1994 through February 1995. Despite this arrangement, by March 1995, Audio Odyssey’s financial situation had not improved. In addition to being behind on its mortgage and taxes, Audio Odyssey was overdrawn on its business checking account. Brenton paid checks written on insufficient funds but informed Audio Odyssey not to perceive this as a willingness to cover overdrafts on an ongoing basis. In a letter dated March 27, 1995, John Bradley, Brenton’s Vice President of Commercial Banking Services, warned Audio Odyssey that if it failed to cover the overdrafts and bring the mortgage into current status, Brenton may accelerate the entire principal balance on the loan. Around this time, in an attempt to remedy its financial problems, Audio Odyssey requested a line of credit from Brenton to purchase more merchandise; ultimately, the request was denied.

By mid-July 1995, Audio Odyssey was behind on its mortgage and tax obligations, and its business checking account was overdrawn. On July 13, 1995, John Bradley contacted Roger Hoffman (R. Hoffman) of the SBA and informed him of the condition of Audio Odyssey’s account. Bradley told Hoffman he feared the collateral was at risk. R. Hoffman verbally agreed that if a satisfactory workout could not be arranged, Brenton could seek a replevin action. That same day, Dincer made a $6,983 deposit at Brenton, telling Vice President Chris Pieper he wanted the deposit applied to Audio Odyssey’s overdue mortgage and van payments. However, Brenton applied the funds to the overdrawn checking account instead.

At 8:50 a.m., July 14,1995, Bradley hand delivered a letter to Dincer informing him that Brenton was accelerating the loan and demanded the remaining balance of $126,000 by 9:00 a.m. Dincer told Bradley he could not come up with that amount in ten minutes and referred Bradley to his attorney, Steven Wing. At 12:00 p.m., Wing faxed Brenton a letter arguing Audio Odyssey was not in default. That afternoon, Brenton’s attorney, Bernard Hof-mann (“Hofmann”) of Anderson & Nelson, filed an ex parte replevin action in Scott County District Court. The petition alleged (1) Audio Odyssey was delinquent on its loan payments, failed to maintain insurance on the collateral, and failed to pay tax assessments which may be levied against the collateral; (2) in the event of default, the SA gave Brenton the right of possession of the collateral; and (3) without immediate action, the collateral was at risk of being destroyed, concealed, removed from the state, sold, transferred, or assigned. Hofmann filed the petition and posted a $300,000 bond.

Scott County District Judge James Hav-ercamp reviewed the petition and discussed it with Hofmann. Hofmann explained that Audio Odyssey planned an “annual sale” that weekend and that the Bank feared the collateral would be sold or removed. Judge Havercamp also asked if notice was required. Hofmann explained Iowa’s replevin statute gave the court discretion with regard to notice.

After reviewing the petition, Judge Hav-ercamp signed the replevin order Hofmann had prepared. Pursuant to that order, a writ of replevin was issued by the Clerk of the Scott County District Court directing the Scott County Sheriff to deliver into Brenton’s possession

All inventory, fixtures, accounts, furniture, equipment and machinery on property described as follows:

4050 square feet located at 1718 E. Kimberly Road, Davenport, Iowa, legally described as: part of the northwest quarter of the southwest quarter of section 18, township 78, range 4, east of the 5th p.m.... to the city of Davenport, Scott County, Iowa.

By this time it was late Friday afternoon. Hofmann took the writ to the Scott County Sheriff and told Sergeant Charles Barton he wanted the writ executed immediately. Barton explained that the deputies’ shifts would be over soon, and there was no way to execute the writ that afternoon. Barton then asked if moving trucks and personnel were ready to remove the collateral. Hofmann told Barton those preparations had not been made. After calling and discussing the situation with Bradley, Hofmann asked Barton if the premises could be locked over the weekend and the property removed on Monday when trucks would be available. Barton reviewed the writ and said he could. Barton instructed Hofmann to fill out the “Directions to Sheriff’ form. On that form, Hofmann directed the sheriff “if possible serve Dogan Dincer, President of Corporation — contact John Bradley at Brenton Bank, 323-3368 — he will meet with you at store with a locksmith.”

The paperwork was given to Deputy John Norris. Hofmann told Norris a locksmith would meet him at the store. Norris compared the directions with the court order and found no discrepancies, so he left for the store. About 4 p.m., Norris served the writ upon Dincer at Audio Odyssey. Dincer and the employees in the store were asked to leave, the inventory and other collateral was secured, the locks were changed, and “No Trespassing” signs were posted on the front and back doors. Norris testified that he kept the keys to the premises. That night, Dincer called Judge Havercamp at his home and told the judge he disputed the replevin action. Judge Havercamp advised Dincer to hire an attorney.

Monday morning, under Norris’ supervision, the moving company began removing and inventorying the items described in the writ. By the middle of the week, the inventory was complete. The premises were locked, and Norris handed the keys over to Brenton representatives.

On August 2, 1995, after discussions between Audio Odyssey’s newly appointed counsel and Brenton proved unproductive, Audio Odyssey sent a certified letter to the Scott County Sheriff demanding surrender of the premises. Without a response by August 4, 1995, Audio Odyssey moved to dismiss the replevin action and to return the real estate. A hearing scheduled for August 22, 1995, was continued and never completed. On August 31, 1995, a court order was entered and a writ was issued ordering removal of the No Trespassing signs and allowing Audio Odyssey to enter the premises.

On May 16,1997, Audio Odyssey and the Dincers commenced several lawsuits stemming from the replevin action on July 14, 1995. A lawsuit against Brenton, certain Brenton employees, the bonding company, Scott County Sheriff Michael Bladel, Sergeant Barton, and Deputy Norris was consolidated with a lawsuit against Brenton’s attorney, Hofmann, and the law firm, Anderson & Nelson. The complaints allege the Scott County Sheriff, Sergeant Barton, and Deputy Norris, along with private individuals, committed an unreasonable seizure of Audio Odyssey’s real property when they changed the locks and posted the No Trespassing signs on the premises. Plaintiffs further allege Iowa’s replevin statute was unconstitutional and therefore Defendants’ seizure of Plaintiffs’ personal property violated due process. The complaint also includes ten pendent state law claims.

PROCEDURAL HISTORY

On December 15, 1997, the district court dismissed federal claims against R. Hoffman of the SBA for failure to state a claim and on June 2, 1998, dismissed the Dincers for lack of standing. In two subsequent orders, the district court granted summary judgment in favor of all Defendants on all § 1988 claims finding (1) no constitutional violation; (2) Iowa’s replevin statute comports with due process; (3) the conspiracy claims necessarily failed because the underlying constitutional claims failed; and (4) the district court dismissed the pendent state claims. On appeal, a divided panel affirmed in part, denied in part, and remanded for further proceedings. Judge Loken dissented, stating he would have affirmed the district court’s decision. Audio Odyssey, Ltd. v. Brenton First Nat’l Bank, et al., 245 F.3d 721, 741 (8th Cir.2001) [hereinafter Audio Odyssey (panel opinion)].

The Eighth Circuit vacated the panel opinion, granted a rehearing en banc, and heard additional arguments. Audio Odyssey, Ltd. v. Brenton First Nat’l Bank, et al., 245 F.3d 721 (8th Cir.2001) vacated, reh’g en banc granted and opinion reinstated, 286 F.3d 498 (8th Cir.2002). The nine judge en banc court rendered a 4-1-4 decision and reinstated the panel opinion “in its entirety”. Audio Odyssey, Ltd. v. Brenton First Nat’l Bank, et al., 286 F.3d 498, 500 (8th Cir.2002) [hereinafter Audio Odyssey (en banc opinion)]. However, Judge Hansen wrote the following special concurrence:

I concur in the court’s reinstatement of the prior panel opinion, which affirmed in part, reversed in part, and remanded the case to the district court, except I do not concur in those portions of Part IV A and Part IV B of the prior panel opinion which hold that the initial execution of the writ of replevin by the deputy sheriff on Friday afternoon by closing the store and changing its locks constituted an unreasonable seizure of Audio-Odyssey’s leasehold interest in violation of the Fourth Amendment. In my view, the initial seizure was constitutionally reasonable, and the sheriffs department’s seizure of the premises only became unreasonable under the Fourth Amendment when the inventorying deputy turned the newly minted keys to the store over to the Bank on the following Wednesday afternoon after he had inventoried the personal property for the purposes of the writ. To the extent the court’s opinion can be read otherwise, I do not concur in it. In order to make my position more clear, I join the dissent’s factual recitation, chronology, and the analysis Judge Loken makes in Part A of that dissent; however, I do not join the balance of the dissent.

Id. at 501-02 (Hansen, J., specially concurring). Therefore, Part IV A and B of the panel opinion was overruled and Part A of Judge Loken’s en banc dissent is the opinion of the court. See id. (“Chief Judge Hansen’s special concurrence joins Part A of this dissent, which is therefore the opinion of the court overruling Part IV A of the panel opinion.”).

To summarize, the Eighth Circuit affirmed the district court on the following points: (1) the Dincers lack standing; (2) Iowa’s replevin statute is constitutional on its face and as applied in this case; (3) the initial seizure was constitutional until Wednesday July 19, 1995, when the collateral inventory was complete and the keys were given to the Bank; (4) the § 1983 claim against Roger Hoffman of the SBA fails; (5) the § 1983 claims against Sheriff Bla-del in his individual and supervisory capacity fail; and (6) the § 1983 supervisory claim against Sergeant Barton fails.

The Eighth Circuit reversed and remanded portions of the district court’s order finding genuine issues of material fact existed over (1) which party was responsible for the extended seizure; (2) the foreseeability of damages due to Audio Odyssey’s extended lockout; (3) whether Audio Odyssey could have mitigated its damages by acting sooner; (4) whether state officials conspired with the Bank and the Law Firm to extend the seizure; and if so (5) whether the state officials or private individuals were entitled to qualified immunity-

STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) states “the judgment sought shall be rendered forthwith 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.” Fed. R.Civ.P. 56(c). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

“To preclude the entry of summary judgment, the nonmovant must make a sufficient showing on every essential element of its case on which it has the burden of proof at trial.” Cont’l Grain Co. v. Frank Seitzinger Storage, 837 F.2d 836, 838 (8th Cir.1988). Rule 56(e) requires “the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)).

The court’s function on a motion for summary judgment is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt. Pension Fund, 800 F.2d 742, 746 (8th Cir.1986). “‘On summary judgment the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); Econ. Housing Co. v. Cont’l Forest Prods., Inc., 757 F.2d 200, 203 (8th Cir.1985). “[Sjummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 257, 106 S.Ct. 2505. On the other hand, “[wjhen a motion for summary judgment is made and properly supported, the nonmoving party may not rely on bare allegations but must set forth specific facts showing that there is a genuine issue for trial.” LeBus v. Northwestern Mut. Life Ins. Co., 55 F.3d 1374, 1376 (8th Cir.1995).

DISCUSSION

All Defendants have moved for summary judgment arguing there are no genuine issues of material fact and they are entitled to judgment as a matter of law.

I. SCOTT COUNTY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The Eighth Circuit affirmed summary judgment on (1) all § 1983 claims against Sheriff Bladel in his individual capacity; (2) all § 1983 supervisory claims against Bladel and Barton; and (3) the due process claims finding due process was observed in the execution of the writ. The claims which remain are the § 1983 individual capacity and conspiracy claims against Norris and Barton, as well as the trespass and conversion claims against Norris. Scott County argues in light of the Eighth Circuit en banc opinion there are no genuine issues of material fact to support Audio Odyssey’s § 1983 trespass or conversion claims.

First, Scott County argues that although the Eighth Circuit found the seizure became unreasonable when Norris gave the keys to the Bank on July 19, Norris is entitled to qualified immunity. Second, Scott County argues the § 1988 claim against Barton in his individual capacity must fail as a matter of law because Barton was not involved after July 14. Third, Scott County reasons Audio Odyssey was not deprived of a property right because the Lease Assignment allowed the Bank to take over the real estate in the event of default. Fourth, Scott County asserts there is no basis for a § 1983 claim because there was no state action in the continued possession of the premises after July 19. Fifth, Scott County argues the trespass and conspiracy claims were dismissed in the previous district court order which was not disturbed on appeal. Sixth, Scott County asserts Iowa Rule of Civil Procedure 1.257 protects the officers even if judgment were to be entered against them.

A. Qualified Immunity

Audio Odyssey resists Scott County’s motion arguing that Judge Loken did not discuss qualified immunity and Judge Hansen made no attempt to include qualified immunity as part of his joinder. Therefore, according to Audio Odyssey, the discussion of qualified immunity in Part IV B must be the holding of the court. Audio Odyssey asserts a jury must decide whether Norris acted reasonably in handing the keys over to the Bank on July 19.

This argument fails for two reasons. First, Judge Hansen explicitly rejected Part IV A and B of the panel opinion, as well as any other portion of the opinion which suggests the seizure was unreasonable 'prior to the time the inventory wás completed. Audio Odyssey (en banc opinion), 286 F.3d at 503 (“In my view, the initial seizure was constitutionally reasonable, and ... only became unreasonable ... the following Wednesday afternoon after [the deputy] had inventoried the personal property for the purposes of the writ. To the extent the court’s opinion can be read otherwise, I do not concur in it.”). Therefore, the reinstated panel opinion must be read excluding all of Part IV A and B (including the qualified immunity discussion) and any other portion which reasons or implies that any state conduct was unreasonable before the inventory was complete.

In addition, Audio Odyssey’s qualified immunity argument fails because Part A of Judge Loken’s “dissent” is the law of the case. Audio Odyssey (en banc opinion), 286 F.3d at 502 (“Judge Hansen’s special concurrence joins Part A of this dissent, which is therefore the opinion of the court overruling Part IV A of the panel opinion.”).

In Part A, Judge Loken states, “I put qualified immunity aside, because the merits of the Fourth Amendment issue are more important. It is clear that the sheriffs’ faulty interpretation of the writ of replevin is not dispositive — the Fourth Amendment issue turns on the objective reasonableness of their conduct, not on their subjective intent.” Id. at 503. He goes on to find “there are two distinct reasons why the initial seizure was objectively reasonable.” Id. First, “it was constitutionally reasonable for the sheriffs to construe the writ as authorizing them to close the store for a reasonable period while the replevied property was inventoried and removed.” Id. Next, Judge Lo-ken addresses the Lease Assignment signed by Audio Odyssey as a condition of the 1991 loan.

[T]he lease assignment forecloses Audio Odyssey’s claim that the initial entry violated its Fourth Amendment rights— because the Bank as assignee had the right to take possession of the leased premises ‘using such force as may be necessary,’ the deputy sheriffs acted in an objectively reasonable manner in helping the Bank take possession peaceably, at least for the purpose of removing its collateral.

Id.

Furthermore, and contrary to Audio Odyssey’s assertion, Judge Loken does address qualified immunity. Id. at 503. Judge Loken states, “I do not share the court’s view that deputy sheriffs who fail to parse a state court order with the legal acumen of lawyers and federal judges thereby lose the benefit of qualified immunity.” Id. at 503 (citing Saucier v. Katz, 533 U.S. 194, 205-06, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

Judge Loken continued his reasoning in Part B of his dissent and found the extended seizure was likewise constitutional. Audio Odyssey (en banc opinion), 286 F.3d at 504-505 (Loken, J., dissenting). However, Judge Hansen did not join the dissent in that conclusion. Id. at 502 (Hansen, J., specially concurring). Rather, he reasoned that a violation did occur when the keys were given to the Bank after the inventory was complete. Id. (Hansen, J., specially concurring). Therefore, the issue of whether Norris is entitled to qualified immunity for giving the keys to the Bank is before the Court and requires an application of the Saucier two-prong inquiry.

“Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of litigation.’ ” Saucier, 533 U.S. at 200, 121 S.Ct. 2151. “In a suit against an officer for an alleged violation of a constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence.” Id. The first inquiry is whether, taken in the light most favorable to the party alleging injury, the facts alleged show the officer violated a constitutional right. Id. at 201, 121 S.Ct. 2151. If no constitutional right would have been violated even if the alleged facts were proven, then the inquiry ends. Id.

On the other hand, if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable.

Id.

In Saucier v. Katz, the plaintiff brought a § 1983 claim against Saucier, a military police officer, alleging Saucier used excessive force to arrest him. Id. at 199, 121 S.Ct. 2151. Saucier moved for summary judgment, pleading the affirmative defense of qualified immunity. Id. The district court denied the motion, finding “a dispute on a material fact existed concerning whether excessive force was used.” Id. In arriving at that decision, the court concluded “the law governing excessive force claims was clearly established at the time of the arrest,” and for Fourth Amendment purposes, “ ‘the qualified immunity inquiry is the same as the inquiry made on the merits.’ ” Id. at 199, 121 S.Ct. 2151 (citation omitted) (quoting App. to Cert. at 29a-30a).

The Ninth Circuit Court of Appeals affirmed, reasoning qualified immunity is a two-step analysis. Id. at 199, 121 S.Ct. 2151 (citing Katz v. United States, 194 F.3d 962, 967 (9th Cir.1999)). First, the court considers “ ‘whether the law governing the official’s conduct was clearly established.’ ” Id. at 199, 121 S.Ct. 2151 (quoting Katz, 194 F.3d at 967). If the law was clearly established, the “second step is to determine if a reasonable officer could have believed, in fight of the clearly established law, that his conduct was lawful.” Id. The Ninth Circuit “concluded that the second step of the qualified immunity inquiry and the merits of the Fourth Amendment excessive force claim are identical, since both concern the objective reasonableness of the officer’s conduct in light of the circumstances the officer faced on the scene.” Id. at 200, 121 S.Ct. 2151 (citing Katz, 194 F.3d at 968).

The Supreme Court reversed, holding the violative conduct inquiry and the qualified immunity inquiry were distinct. Id. at 204, 121 S.Ct. 2151. For example, the excessive force standard requires the consideration of several factors including “the severity of the crime at issue, whether the suspect posed an immediate threat ... and whether he is actively resisting arrest.” Id. at 205, 121 S.Ct. 2151.

The qualified immunity inquiry, on the other hand, has a further dimension. The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.

Id.

The Supreme Court did not limit this analysis to “excessive force” cases; rather, the Court reasoned “[qualified immunity operates in this case, then, just as it does in [other Fourth Amendment cases], to protect officers from the sometimes ‘hazy border between excessive and acceptable force,’ and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” Id. at 206, 121 S.Ct. 2151 (quoting Priester v. Riviera Beach, 208 F.3d 919, 926-927 (11th Cir.2000)). Accordingly, it is the court’s role to first determine whether an officer’s mistaken belief about the legality of his conduct was reasonable, thereby entitling the officer to qualified immunity. Id. at 201, 121 S.Ct. 2151 (“ ‘[W]e repeatedly have stressed the importance of resolving the immunity questions at the earliest possible stage in litigation.’ ”) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).

The first step in the Saucier analysis is to determine whether a constitutional violation occurred. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. In the present case, Audio Odyssey asserts a constitutional violation occurred because its real property was wrongfully seized. Scott County refutes this argument, stating no wrongful seizure of property occurred because the Lease Assignment gave the Bank the right to enter the premises.

The majority of the Eighth Circuit agrees that the Lease Assignment gave the Bank the right of initial entry. Audio Odyssey (en banc opinion), 286 F.3d at 504 (“[T]he lease assignment forecloses Audio Odyssey’s claim that the initial entry violated its Fourth Amendment rights ... the deputy sheriffs acted in an objectively reasonable manner in helping the Bank take possession peaceably, at least for the purpose of removing its collateral.”) (emphasis added).

However, the majority does not agree the Lease Assignment gave the Bank the right to continue the seizure after the inventory was complete. Id. at 501 (“To the extent the lease assignment may be read to permit the Bank to take possession of the store premises in order to remove or sell the personalty, this right would not extend further than the writ of replevin the Bank actually obtained and executed.”). Therefore, this Court is directed to find that a fact-finder could conclude a constitutional violation occurred when the Bank was left in possession of the real property after the inventory was completed. The next question in the qualified immunity analysis is whether the mistaken belief of the official or officials involved in that constitutional violation was reasonable under the circumstances. Saucier, 533 U.S. at 201, 121 S.Ct. 2151.

B. Sergeant Barton’s Qualified Immunity Argument

Scott County argues Sergeant Barton cannot be liable under § 1983 in his individual capacity since the Eighth Circuit found no constitutional violation occurred during Barton’s involvement. Attempting to resurrect an argument which has been foreclosed upon by the Eighth Circuit, Audio Odyssey argues that on July 14, Barton was aware he was being asked to act beyond the scope of the court order because he admits he did not stop to think about the scope of the replevin order. Since the Eighth Circuit determined the execution of the replevin order was reasonable, Barton’s state of mind in executing the order is no longer relevant.

The undisputed facts show Barton was only involved with the replevin action on July 14. The Eighth Circuit found no constitutional violation occurred until the keys were given to the Bank on July 19. Since no constitutional violation occurred as a result of Barton’s conduct, he is entitled to summary judgment. Id. at 201, 121 S.Ct. 2151 (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”).

Audio Odyssey also argues Barton was involved after July 14 because he instructed Norris to post the No Trespassing signs which remained posted until August 31. Barton was not somehow continually linked to the replevin simply by instructing Norris to post the signs any more than he was linked by handing Norris the paperwork. Furthermore, this allegation forms the basis of a supervisory claim against Barton, and the Eighth Circuit affirmed summary judgment on all supervisory claims. See Audio Odyssey (panel opinion), 245 F.3d at 742 (“As explained above, there is no showing of previous illegalities that place Sheriff Bla-del on the requisite notice. The supervisory claim against him necessarily fails. A similar claim against Sergeant Barton for improperly supervising Deputy Norris fails for the same reason.”).

For the above stated reasons, Defendant Barton’s motion for summary judgment must be granted.

C. Deputy Norris’ Qualified Immunity Argument

Scott County argues Norris is entitled to qualified immunity because under the circumstances, a reasonable official in his position would not have known that giving the keys to the Bank after the inventory was completed would violate Audio Odyssey’s constitutional rights. Audio Odyssey argues this is question for the jury. However, Saucier requires that the court must first determine as a matter of law whether the official’s mistaken belief regarding the law was reasonable in light of the circumstances. Saucier, 533 U.S. at 207-08, 121 S.Ct. 2151.

In determining whether Norris’ mistake was reasonable, it is important to consider the events leading up to July 19. The following occurred during the initial seizure, which the law of the case holds was reasonable: (1) Norris posted the No Trespassing signs; (2) Norris carried out the Bank’s replevin instructions on Friday, July 14; (3) Norris allowed the Bank’s locksmith to change the locks on July 14; and (4) Norris allowed the Bank to oversee the collateral inventory through Wednesday, July 19. The question is whether, in light of these events, it was also reasonable for Norris to believe he was not violating Audio Odyssey’s constitutional rights when he turned the keys over to the Bank on July 19!

Handing the keys to the Bank was consistent with the reasonable events of the previous six days; therefore, it is illogical to find Norris made an unreasonable mistake in doing so. As stated at the hearing, if the nine judges of the Eighth Circuit were split 4-1-4 on whether handing the keys to the Bank was reasonable, how can the Court ever find that Norris, a deputy sheriff, had to recognize it was unreasonable as a matter of law? Compare Duluth News-Tribune v. Medure, 808 F.Supp. 671, 675 (D.Minn.1992) (finding the deputy sheriff was entitled to qualified immunity because “[a] reasonable official would not have understood that retrieving the transcript, to which no one other than a court official was entitled, would operate as a prior restraint or violate any other clearly established first amendment law”), with Dixon, 302 F.3d at 864-65 (finding officers were not entitled to summary judgment based on qualified immunity because reasonable officers would have known plaintiffs constitutional rights were being violated where the off-duty officers commandeered the premises without a writ to the exclusion of the owner and personally occupied the premises for more than three weeks).

The Court finds, under the circumstances known to Norris on July 19, including the reasonable events of the preceding six days, Norris’ mistaken belief that he was not violating Audio Odyssey’s constitutional rights by giving the keys to the Bank was reasonable. Norris is entitled to qualified immunity as a matter of law.

Deputy Norris’ motion for summary judgment on all remaining counts against him must be granted.

II. LAW FIRM DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The Law Firm Defendants (“Law Firm”) renew their motion for summary judgment, arguing that in light of the Eighth Circuit opinion, they are entitled to judgment as a matter of law on all remaining counts. Two § 1983 claims against the Law Firm remain, one against Hofmann in his individual capacity and the other against Hofmann for conspiracy.

The Law Firm is a private rather than a state actor, and as the Eighth Circuit reasoned in the Audio Odyssey panel opinion,

Private conduct is actionable under section 1983 under two conditions. First, the constitutional deprivation at issue ‘must be caused by the exercise of some right or privilege created by the State .... ’ Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (describing the right to seek a garnishment or attachment as qualifying). Second, the private party must have ‘acted together with or ... obtained significant aid from state officials’ or engaged in conduct that is ‘otherwise chargeable to the State.’ Id.; Wyatt v. Cole, 504 U.S. 158, 162, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). The second element requires more than the private misuse of a state statute (as alleged in the taking of the personal property in this case); a plaintiff must show that the private party acted in concert with or obtained significant aid from state officials who were themselves involved in a constitutional violation. See Hassett v. Lemay Bank & Trust Co., 851 F.2d 1127, 1129-30 (8th Cir.1988); Apostol v. Landau, 957 F.2d 339, 343 (7th Cir.1992). Otherwise stated, there must be a ‘meeting of the minds’ or a ‘mutual understanding’ between a private party and public officials to engage in conduct that violates the plaintiffs federal rights.

Miller v. Compton, 122 F.3d 1094, 1098 (8th Cir.1997).

Audio Odyssey (panel opinion), 245 F.3d at 739-40.

The Law Firm argues no triable issues remain because the Eighth Circuit ruled the initial seizure on July 14 was constitutional and the Law Firm had no involvement after that date. Alternatively, the Law Firm argues that as a private actor, they are not liable under § 1983 where there was no continuing state action after July 19.

Audio Odyssey resists this motion, arguing Part IV C of the panel opinion was reinstated, and therein the panel found Audio Odyssey’s conspiracy claims survived summary judgment.

Audio Odyssey has clearly made a sufficient showing to survive summary judgment. A reasonable jury could find a ‘meeting of the minds’ between Bank’s loan officer and vice-president Bradley and attorney Hofmann, on one hand, and Sergeant Barton and Deputy Norris, on the other, to seize Audio Odyssey’s real estate even though the state court ordered no such thing. Indeed, on the present record, the idea appears to have been Bradley’s to begin with.

Audio Odyssey (panel opinion), 245 F.3d at 740.

Audio Odyssey’s reliance on this portion of the panel opinion is unjustified. Therein, the panel reasons the initial seizure was unreasonable, therefore, that portion of the panel opinion was not reinstated per Judge Hansen’s special concurrence. Id. (Hansen, J., specially concurring).

I concur in the court’s reinstatement of the prior panel opinion, ... except I do not concur in those portions of Part IV A and Part IV B of the prior panel opinion which hold that the initial execution of the writ of replevin ... constituí-ed an unreasonable seizure .... To the extent the court’s opinion can be read otherwise, I do not concur in it.

Id. (Hansen, J., specially concurring) (emphasis added).

As an alternative argument for attaching liability to the Law Firm, Audio Odyssey advances its “freight train” theory. Therein, Audio Odyssey argues the Law Firm defendants cannot “start the train down the track and then claim that they had no involvement with the ensuing train wreck.” Audio Odyssey suggests that by representing the Bank in the state court replevin action, the Law Firm was involved in the extended seizure of the real estate.

The Court disagrees because, to extend the freight train illustration, the train wreck would have to occur prior to July 19 to be connected to the actions of the Law Firm. The presence of the Law Firm in the continuing litigation related to the replevin was separate from the seizure and did not constitute new acts on the part of the Law Firm, apart from representing the interests of a client, to extend the possession of the premises. Nothing in the Eighth Circuit opinions suggests differently. Audio Odyssey does not point to any affirmative conduct on the part of the Law Firm in maintaining the seizure of the real estate. It was the extended seizure, not the replevin litigation, the Eighth Circuit found to be a constitutional violation. Therefore, Audio Odyssey cannot attach an unconstitutional act to the Law Firm. Audio Odyssey’s allegations and suppositions regarding the Law Firm are simply not enough to survive a motion for summary judgment. LeBus, 55 F.3d at 1376 (“the nonmoving party may not rely on bare allegations but must set forth specific facts showing that there is a genuine issue for trial”).

The facts are undisputed; the only evidence in the record or advanced by Audio Odyssey of the Law Firm’s involvement in the replevin action took place on July 14. This Court cannot conclude that by maintaining some presence in continuing, related litigation, on behalf of a client, the Law Firm was taking additional actions to extend the possession of the premises by the Bank. The Eighth Circuit found the initiation and execution of the replevin action was constitutionally permissible. Therefore, the Law Firm was cut off from any unconstitutional act and Audio Odyssey’s “freight train” theory fails. As the Eighth Circuit reasoned, “[i]f the state actors did not violate the Fourth Amendment, then Audio Odyssey has no § 1983 claim against their alleged private conspirators, the [sic] Brenton Bank and its officers and attorney.” Audio Odyssey (en banc opinion), 286 F.3d at 502 (Loken, J., dissenting) (citing Johnson v. Outboard Marine Corp., 172 F.3d 531, 536 (8th Cir.1999)).

For the reasons stated above, the Law Firm Defendants’ motion for summary judgment must be granted.

III. THE BANK DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The following claims remain against the Bank Defendants: Count I (§ 1983 claim against Brenton Bank); Count II (§ 1983 claim against Bradley); Count III (§ 1983 claim against Pieper); Count X (§ 1983 conspiracy claim against Brenton, Bradley, and Pieper); and Counts XI-XXI (various state law claims). The Bank Defendants renew their motion for summary judgment, arguing they are entitled to judgment as a matter of law because the § 198B and the state law claims fail.

Audio Odyssey advances several theories in resistance to the Bank’s motion, most of which have been foreclosed by the Eighth Circuit. As the Court explained at the hearing, it matters not whether Audio Odyssey agrees with the Eighth Circuit rulings, this Court must follow them.

A. The Dincers’ Standing

Audio Odyssey argues the Dincers do have standing based on their contractual relationship with the Bank. This argument clearly fails. The very first holding of the Eighth Circuit was that the Dincers lacked standing. “As a threshold matter, we hold that the Dincers lack individual standing to sue defendants for the replevin. It is well established that a shareholder or officer of a corporation cannot recover for legal injuries suffered by the corporation.” Audio Odyssey (panel opinion), 245 F.3d at 729.

B. Defective Original Notice

Next, Audio Odyssey argues: (1) the state court never had personal jurisdiction in the replevin action because the original notice was not properly served; (2) the Bank did not have the right to possess either Audio Odyssey’s personal property nor their premises on July 14 because it was not properly served; (3) Judge Haver-camp’s issuance of the replevin order had the effect of rendering a judgment against Audio Odyssey; and (4) the Bank did not have a contractual right to enforce the SA because the SBA never gave written consent to accelerate the loan.

Audio Odyssey’s arguments regarding original notice fail. First, neither Iowa nor federal law require service of original notice prior to a prejudgment writ of replevin as long as other procedures to guarantee protection against erroneous seizures are in place. See Mitchell v. W.T. Grant Co., 416 U.S. 600, 605-06, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) (“ ‘It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination.’”); Iowa Code § 643.1 (2001). See Thorp Credit, Inc. v. Barr, 200 N.W.2d 535, 536 (Iowa 1972) (finding re-plevin defendant did not have standing to challenge the original notice because he moved to dismiss the action and participated in the trial). The Eighth Circuit found Iowa’s replevin statute provided these protections and was constitutional. See Audio Odyssey (panel opinion), 245 F.3d at 735. Furthermore, the Eighth Circuit also found the replevin order was properly issued; therefore, these arguments have been settled. Id.

C. No Exigent Circumstances

Audio Odyssey next argues there were no exigent circumstances necessitating an ex parte replevin action. This issue was addressed by the Eighth Circuit. It found that Hofmann presented a sufficient explanation to the state court judge as to why an ex parte action was necessary. Audio Odyssey (panel opinion), 245 F.3d at 733-34 (“The Bank knew that Audio Odyssey was planning an ‘annual sale’ the following day, and that much or all of the collateral was in danger of being sold. Hofmann’s oral statement adequately apprised the judge of this exigent circumstance.”)

D. Written Permission Required to Accelerate the Loan

Audio Odyssey next argues the Bank did not follow federal law because the SBA’s prior written authorization was required before the Bank could accelerate the loan. In the companion to this case, Audio Odyssey, Ltd. v. United States, this Court ruled that written consent was not required. Audio Odyssey, Ltd. v. United States, 243 F.Supp.2d 951, 969 (S.D.Iowa 2003).

In the present case, Brenton, as holder of the note, could have required SBA to provide written consent to foreclose on the loan. However, Brenton did not require written consent; rather, it acted upon the oral consent given it by the SBA (Hoffman) during the July 12,1999, telephone conversation. Because Audio Odyssey is a third-party beneficiary to the 1978 Loan Guaranty, it steps into the shoes of Brenton; Brenton waived its right.

Id.

Furthermore, the Eighth Circuit found the initial replevin action was constitutional, which forecloses upon Audio Odyssey’s argument regarding the initiation of the replevin.

E.§ 1983 Claims

On remand, the § 1983 claims against the Bank have a different posture than the § 1983 claims against the Law Firm. The Bank, unlike the Law Firm, was involved in the extended seizure which the Eighth Circuit found to be unconstitutional. As reasoned in Part II supra, Norris was entitled to qualified immunity because his mistake in giving the keys to the Bank was reasonable under the circumstances; however, this does not insulate the Bank.

Nonetheless, the Bank argues it is entitled to summary judgment because the Lease Assignment allowed Brenton to enter the premises and remove all property listed as collateral for the loan. Therefore, the Bank asserts Audio Odyssey’s § 1983 claims must fail since the Bank’s possession of the premises did not constitute a seizure under the Fourth Amendment.

The Lease Assignment states in pertinent part:

4. In the event of any default by Borrower [Audio Odyssey] in the performance of any of the obligations of [its] note to Assignee [the Bank] evidencing the aforesaid loan, any renewal or extension thereof, or any other agreement made in connection therewith, including [its] agreements herein, then, Assignee, at its option, may, without notice, using such force as may be necessary, enter said leased premises and do any one or more of the following:

a. Remove all property of Borrower therefrom that is hypothecated as collateral for its aforementioned loan.

b. Sell the property referred to in paragraph a. on said premises.

c. Transfer and assign said lease and Borrower’s rights therein to parties satisfactory to Assignee ....

Audio Odyssey (en banc opinion), 286 F.3d at 503-04.

Audio Odyssey disputes that the Bank has rights pursuant to this Lease Assignment for two reasons. First, the landlord did not sign or consent to the Lease Assignment and second, the Eighth Circuit suggested that this same argument failed in Fuentes v. Shevin, 407 U.S. 67, 94, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

1. Landlord’s Consent

The majority of the Eighth Circuit found the absence of the landlord’s signature did not defeat the Lease Assignment:

Audio Odyssey argues that the Assignment of Real Estate Lease was invalid because the store’s landlord never signed it. I disagree. In general, ‘an express restriction against an assignment does not render an assignment void as between the lessee and the as-signee, and as between such parties it is still effectual to carry the interest of the lessee.’ 49 Am.Jur.2d, Landlord & Tenant § 1110 (1995). That principle should certainly apply here, because Audio Odyssey’s promise to assign the lease in the event of default was a precondition to obtaining the bank loan and SBA guarantee. Moreover, a landlord who is entitled to reject a lease assignment waives that right and consents to the assignment if he does not object promptly. See Restatement (Second) of Property: Landlord & Tenant § 15.2 cmt. f (1977). Here, the store’s landlord knew no later than July 24 that the Bank had taken possession. Rather than object, the landlord billed the Bank for unpaid rent in October, consistent with a waiver of any right to object.

Audio Odyssey (en banc opinion), 286 F.3d at 504.

Furthermore, Audio Odyssey’s own Business Property Lease Agreement (“BPLA”) with landlord Frank Brown did not preclude such assignments. The BPLA states in pertinent part:

ASSIGNMENT AND SUBLETTING. Any assignment of this lease or subletting of the premises or any part thereof, without the Landlord’s written permission shall, at the option of the Landlord, make the rental for the balance of the lease term due and payable at once. Such written permission shall not be unreasonably withheld.

Clearly, Audio Odyssey had the . right to assign the lease without written permission. Although Audio Odyssey states Frank Brown did not consent and in fact was outraged when the Bank seized the premises, Brown’s outrage did not stop him from billing and collecting rent from the Bank. Audio Odyssey’s argument that the Lease Assignment did not give the Bank the right to initially enter and possess the premises fails.

2. Fuentes

Audio Odyssey bases its second argument on the panel’s suggestion that a similar argument failed in Fuentes. See Audio Odyssey (panel opinion), 245 F.3d at 741 n. 22 (“We observe that Fuentes rejected an argument similar to Hofmann’s.”) (citing Fuentes, 407 U.S. at 95-96, 92 S.Ct. 1983). However, Audio Odyssey does not argue or even attempt to reason how the facts of Fuentes apply to the present case.

Fuentes is, in fact, distinguishable from the present case. TnFuentes, the Supreme Court considered the constitutionality of the Pennsylvania and Florida prejudgment replevin statutes. Fuentes, 407 U.S. at 69-70, 92 S.Ct. 1983. Fuentes, the Florida plaintiff, purchased appliances pursuant to a conditional sales contract. Id. at 70, 92 S.Ct. 1983. When the outstanding balance of Fuentes’ loan was about $200, a dispute arose between Fuentes and the lender, and Fuentes stopped making payments. Id. Without providing Fuentes prior notice, the lender obtained a writ of replevin and had the sheriff seize the appliances. Id.

Fuentes filed an action challenging Florida’s replevin statute as an unconstitutional deprivation of her right to due process. Id. One of the arguments advanced in defense of the action was that Fuentes had waived her right to due process by signing the conditional sales contract. Id. at 94, 92 S.Ct. 1983. The Supreme Court found that under the circumstance, the debtor could not have known she was waiving her constitutional right. Id.

First, the Court found there was “no bargaining over contractual terms” and the contracting parties “were far from equal in bargaining power.” Id. at 95, 92 S.Ct. 1983. Second, the Court found the default provisions were vague, in fine print, and part of a preprinted form. Id. Third, the Court reasoned that the provision did not put the consumers on notice they were waiving their constitutional rights. Id.

Those concerns are not present in this case. First, there was not “great disparity in bargaining power” between Audio Odyssey and the Bank. Id. Dincer stated that Audio Odyssey’s gross sales had been between $700,000 to $1.3 million. In addition, Audio Odyssey was a retail electronics store which sold top end, big ticket electronics equipment. Dincer undoubtedly negotiated many contracts and credit applications which themselves had default provisions. Second, the Lease Assignment was a separate document and required a separate signature. Third, although the Lease Assignment was on a preprinted form, specific provisions were typed in, including the parties names, Audio Odyssey’s property description, and the loan amount. The print was not exceptionally small, and the terms were not vague. Fourth, the provisions dearly put Audio Odyssey on notice that in the event Audio Odyssey defaulted in the performance of the terms of its note, the Bank “at its option, may, without notice, using such force as may be necessary, enter said leased premises.” The contract at issue in Fuentes is demonstrably different than the Lease Assignment at issue here. Furthermore, in Fuentes, the sales contract argument was advanced to demonstrate that even if the Florida statute did not provide due process, plaintiff had waived her right by signing the contract. Id. Here, the Iowa replevin statute was found to provide due process, so no such argument was necessary.

However, these arguments, though persuasive to this Court, cannot obtain summary judgment for the Bank. Rather, the law of the case precludes this Court from finding the Lease Assignment necessarily allowed the Bank to continue the seizure after the inventory was completed on July 19. Judge Hansen parted company at Part B of the en banc dissent wherein Judge Loken found that the Lease Agreement allowed the extended seizure. See Audio Odyssey (en banc opinion), 286 F.3d at 504 (Loken, J., dissenting). Therefore, Judge Hansen necessarily joined the other four judges in the en banc opinion, reasoning:

To the extent the lease assignment may be read to permit the Bank to take possession of the store premises in order to remove or sell the personalty, this right would not extend further than the writ of replevin the Bank actually obtained and executed. And even if the lease assignment permitted the Bank to transfer possessory interest to another party, the facts of this case reveal the Bank never took such action. Thus, the arguments advanced above explain adequately why the defendants’ seizure under that writ was constitutionally impermissible.

Audio Odyssey (en banc opinion), 286 F.3d at 501.

The panel did not reach the issue of whether private actors were entitled to good faith immunity in § 1983 actions. See Audio (panel opinion), 245 F.3d at 740 (“We need not decide whether to recognize such a defense, or define its scope, because doing so would not assist the private defendants. Any immunity that might apply would be no broader than the qualified immunity accorded public officials”) (citing Wyatt, 504 U.S. at 167-69, 112 S.Ct. 1827). The panel also stated, “[w]e have not squarely addressed this question, although other circuits have answered it affirmatively.” Id. (citing Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir.1996)); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1276 (3d Cir.1994); Wyatt v. Cole, 994 F.2d 1113, 1118 (5th Cir.1993).

Although this would be a case of first impression, after reconciling the Eighth Circuit opinions, the Court finds it is unnecessary to decide whether a good faith immunity defense is available to the Bank Defendants. The Bank accomplished its goal of securing the collateral on July 19. Norris gave the Bank the keys and had no more involvement. The Bank fingered on the premises without adequate explanation in this record. Although it has had the opportunity to explain to the Court why it was necessary to extend its occupation of the premises, it has not done so. As the en banc opinion pointed out, the Lease Assignment allowed the Bank to enter the premises and do one or all of three things: remove the collateral, sell the collateral, and/or assign the lease. The Bank only chose to do the first. It has not presented to the Court evidence that it was in the process of selling other inventory that could not be removed, or attempting to assign or transfer the lease. Rather, it simply occupied the premises for six weeks to the exclusion of the Plaintiffs.

The remaining question is whether by extending the seizure, the Bank “ ‘acted together with or ... obtained significant aid from state officials’ or engaged in conduct that is ‘otherwise chargeable to the State.’ ” Lugar, 457 U.S. at 937, 102 S.Ct. 2744. Clearly the Bank initially received aid from the state and receiving the keys from Norris certainly constitutes aid from the state. Although the Court found Norris’ mistake in giving the keys to the Bank under the circumstances was reasonable, nonetheless it was a mistake. The record also shows the Bank, not the Sheriffs officers, maintained the No Trespassing signs. At the bottom of the No Trespassing signs appear the words, “By Order of Mike Bla-del, Sheriff Scott County, Iowa”. By leaving these signs in the door, the Bank created the appearance that the Sheriff, who posted those signs originally, was still involved in the seizure. Although this seems a minimal showing, the Court cannot find, as a matter of law, the Bank was not benefitting from state authority in extending the seizure of Audio Odyssey’s real property. This Court is unable to reconcile a contrary conclusion with the opinion of the Circuit Court, which this Court must follow.

The Court cannot find, on these facts, the Bank had any good faith reason for believing the Lease Assignment entitled it to indefinitely occupy the premises. The Court finds even if good faith immunity were an available legal argument for the Bank Defendants, on the facts in the record and in accord with the directions from the Eighth Circuit, such a defense is not available to them.

In the light most favorable to Audio Odyssey, the Court finds there are genuine issues of fact on the § 1983 claims. The Bank Defendant’s motion for summary judgment on Counts I, II, III, and X must be denied.

F. Pendent State Claims

In addition to the § 1983 claims, Audio Odyssey asserts ten pendant state law claims against the Bank. The Bank has moved for summary judgment on all those claims.

1. Trespass

Trespass is the “[ejntering or remaining upon or in property without justification after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner, lessee, or person in lawful possession, ...” Iowa Code § 716.7(2)(b). “The gist of a claim for trespass on land is the wrongful interference with one’s possessory rights in property.” Robert’s River Rides, Inc. v. Steamboat Dev. Corp., 520 N.W.2d 294, 301 (Iowa 1994).

The Court has assumed, as it must given the Eighth Circuit opinions, that Audio Odyssey’s rights were violated when the real estate seizure was extended. As reasoned above, questions of material fact exist whether the Lease Assignment allowed the Bank to continue occupying the real estate six weeks after the replevin was completed. In this case, the § 1983 claims and the trespass claim are conceptually inseparable as they both regard Audio Odyssey’s right to possess the real estate. A question of fact remains regarding the Bank’s responsibility in the extended seizure of Audio Odyssey’s real property interest; similarly, a question of fact exists regarding the tort trespass claim.

The Court finds a genuine issue of material fact exists; therefore, the Bank Defendants’ motion for summary judgment on the trespass claim must be denied.

2. Conversion

“Conversion is the act of wrongful control or dominion over another’s personal property in denial of or inconsistent with that person’s possessory right to the property.” Ezzone v. Riccardi, 525 N.W.2d 388, 396 (Iowa 1994). Audio Odyssey argues that the Eighth Circuit found conversion. See Audio Odyssey (en banc opinion), 286 F.3d at 500-01 (discussing Audio Odyssey’s interest in the leasehold over which the Bank did not have a security interest nor did the replevin apply).

The Bank- replies that Audio Odyssey has misstated the Eighth Circuit’s findings; it did not find the Bank unreasonably deprived Audio Odyssey of personal property. Instead, the Bank claims the Eighth Circuit affirmed the district court’s grant of summary judgment on the federal claims regarding Audio Odyssey’s personal property. See Audio Odyssey (panel opinion), 245 F.3d at 729 (“We also agree with the district court’s grant of summary judgment on the federal claims regarding Audio Odyssey’s personal property.”).

The SA gave the Bank the right to seize Audio Odyssey’s personal property upon default. The Bank argues Audio Odyssey was in default on July 14 because Audio Odyssey’s mortgage payments were past due, its insurance policy covering the collateral had been cancelled, and it was behind in its taxes.

Audio Odyssey argues if the Bank had properly applied the deposit made by Dincer on July 13, the mortgage would have been current. Audio Odyssey also argues the insurance policy was not set to cancel until July 27, 1995. However, Audio Odyssey admits that it was clearly in default with regard to its taxes.

The Court finds the Bank did not cause a wrongful interference with Audio Odyssey’s personal property because it had a contractua