Abel Gutierrez d/b/a Splice Funding Solutions v. Derek Engh

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IN THE COURT OF APPEALS OF IOWA
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No. 24-1929
Filed October 21, 2026
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Abel Gutierrez d/b/a Splice Funding Solutions,
Plaintiff–Appellee,
v.
Derek Engh,
Defendant–Appellant.
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Appeal from the Iowa District Court for Hancock County,
The Honorable Chris Foy, Judge.
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AFFIRMED AND REMANDED WITH DIRECTIONS
_______________
Shaun Thompson of Newman Thompson & Gray PC, Forest City,
attorney for appellant.
S. Luke Craven and Nicholas J. Gral of Whitfield & Eddy, P.L.C.,
Des Moines, attorneys for appellee.
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Considered without oral argument
by Schumacher, P.J., and Badding and Langholz, JJ.
Opinion by Langholz, J.

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LANGHOLZ, Judge.
Derek Engh appeals the district court’s judgment after a bench trial,
finding that he breached a consulting contract with Abel Gutierrez by failing
to pay a $12,600 fee. Engh concedes that the consulting contract “is
unquestionably a valid contract that entitled [Gutierrez] to receive such
compensation.” But he still argues that the court’s judgment was in error
because “it did not enforce” an alleged second contract between the
parties—a Small Business Administration (“SBA”) Form 159 Fee Disclosure
and Compensation Agreement that Engh and Gutierrez both signed as
required to close on the SBA loan that Gutierrez helped Engh obtain.
According to Engh, because Gutierrez certified on the Form 159 that
he would not “charge or receive any payment from” Engh “in connection
with the application for or making of the SBA loan” that was not disclosed
on the form, and the $12,600 consulting fee was not disclosed, Engh has a
contractual right to prohibit Gutierrez “from requesting or receiving
additional fees.” And he repeatedly emphasizes that his “sole argument is
that Form 159 . . . is a valid contract and should be enforced” and that he does
“not argue[] that any law or administrative code effects the outcome.”
But even if the signed Form 159 is a contract, it did not modify or
discharge Gutierrez’s right to the $12,600 fee under the consulting contract.
We see nothing in the Form 159’s text or structure that shows any mutual
agreement between Gutierrez and Engh to modify the existing consulting
agreement or to release or waive Gutierrez’s rights under that contract. To
the contrary, the Form 159 does not refer to the prior contract. And the text
on which Engh most relies is merely a certification to the SBA—not a
promise to Engh. We thus affirm and remand to the district court to
determine the reasonable amount of Gutierrez’s appellate attorney fees.

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I. Background Facts and Proceedings
In July 2020, Engh contracted with Gutierrez (doing business as Splice
Funding Solutions) to be “a loan consultant to package and assist in
introducing [Engh] to lending sources with the purpose of funding” Engh’s
purchase of a business entity. Under their “Loan Consulting & Placement
Contract,” Engh agreed to pay Gutierrez a fee of “0.50% of any financing
obtained during the term of this contract relating to this project” when he
“obtains financing from a lending institution introduced by” Gutierrez. The
contract also provides that Gutierrez “may receive other compensation from
the lender (most often based on broker/referral volume)” and that “[t]his
compensation has been earned by [Gutierrez] and will not increase the cost
of the loan or substitute the agreed consulting fee.” And it entitles Gutierrez
to seek “costs and expenses, including attorney fees, incurred by [Gutierrez]
in collecting the fees due” if Engh “fails to pay [Gutierrez] timely for the fees
provided for in this agreement,” or breaches any other term of the contract.
Gutierrez set to work finding financing for Engh. And the parties spent
much of the rest of 2020 focused on finalizing financing from a Texas bank
that Gutierrez identified. Unfortunately, that deal fell through near the end
of the process in January 2021. But the loan officer at that bank still referred
Engh and Gutierrez to a former colleague at another bank—Falcon National
Bank—that was interested in providing financing to Engh. With Gutierrez’s
assistance, this deal proved successful. Falcon National agreed to loan Engh
$2,520,000 for the purchase of the business entity. And the closing was
scheduled for mid-May 2021 at the office of Engh’s attorney in Forest City.
Because the financing was an SBA loan, Engh and his wife were
presented with an SBA Form 159 Fee Disclosure and Compensation
Agreement—which had been completed by Falcon National—to sign at the

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closing. According to the first page of the three-page form, “[t]he purpose of
this form is to identify Agents and the fees and/or compensation paid to
Agents by or on behalf of a small business applicant (‘Applicant’) for the
purpose of obtaining or expediting an application for a loan guaranteed by”
the SBA to fulfill “a statutory requirement under 15 U.S.C. 642.”1 The form
identified Gutierrez as the agent. From among several checkbox options for
the “Type of Agent,” the form identified that he was a “Referral
Agent/Broker.” The checkboxes for “Consultant” and “Independent Loan
Packager” were not selected. And the form identified that Gutierrez would
be paid $25,200 for “Broker or Referral services” that would be “Paid by
SBA Lender”—Falcon National. The form did not identify any amounts to
be “Paid by Applicant”—Engh. Nor did the form list any fees in the blanks
for the other types of services, including “Consultant services” or “Loan
packaging.” And so, the form also identified the “Total compensation paid
by . . . SBA Lender” as $25,200. This part of the completed Form 159 is
shown below:
1 See 15 U.S.C. § 642 (requiring, among other things, that “[n]o loan shall be made
. . . under this chapter to any business enterprise unless the owners . . . of such business
enterprise . . . certify to the Administration the names of any . . . agents . . . engaged by or
on behalf of such business enterprise for the purpose of expediting applications made to
the Administration for assistance of any sort, and the fees paid or to be paid to any such
persons”).

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The form noted that “[t]he Agent may not be compensated by both
Applicant and SBA Lender for the same service.” And it warned:
WARNING: False certifications can result in criminal prosecution
under 18 U.S.C. § 1001 and other penalties provided under law.
Violation of any of the SBA Loan Program Requirements regarding SBA
Form 159 and the related activities by the SBA Lender and/or an Agent
may result in SBA’s suspension or revocation of the privilege of
conducting business with the SBA under 13 CFR Part 103.
Form 159 also included three certifications to be executed by the
“Applicant” (Engh), the “Agent” (Gutierrez), and the “SBA Lender”
(Falcon National). As relevant here, the Applicant’s Certification provided:
“By signing this form, the Applicant certifies to SBA that the above
representations and amounts are the only amounts paid (or that will be paid)
by the Applicant in connection with the stated services and are satisfactory
to the Applicant.” And immediately above the spot for signing the
certification, the form admonishes, “Applicant must not sign this form until
all required services and fee information is disclosed.” The Agent’s
certification provided in relevant part:
By signing this form, the undersigned Agent certifies that: (1) it has not
and will not directly or indirectly charge or receive any payment from the
Applicant in connection with the application for or making of the SBA loan
except for services actually performed on the Applicant’s behalf and
identified in this form; (2) the information provided in this form accurately
describes the types of services (s)he/it has provided to the Applicant or
SBA Lender and the compensation described in this form is the only
compensation that has been charged to or received from the Applicant or
SBA Lender or that will be charged to the aforementioned parties for
services covered by this form; . . . (4) if SBA deems any portion or all of
the fees charged in connection with the application for or making of the
loan to be unreasonable or prohibited, the Agent agrees to refund that
amount to the Applicant. . . .
And the SBA Lender’s certification provided in relevant part:

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The undersigned SBA Lender certifies that: (1) the representations of
services rendered and the amounts charged as identified in this form are
reasonable and satisfactory to it; (2) (s)he has no knowledge that any
Agent, as defined in 13 CFR § 103.1, was engaged by, represented, or
worked on behalf of the Applicant other than as disclosed above or in
another executed compensation agreement (SBA Form 159); (3) any
referral fees described above are the only referral fees paid by the SBA
Lender to a referral agent in connection with this loan and were not
charged directly or indirectly to the Applicant; (4) if SBA deems any
portion or all of the fees charged in connection with the application for or
making of the loan to be unreasonable or prohibited, the SBA Lender
agrees to refund that amount to the Applicant; . . . .
When Engh and his wife reviewed the Form 159 completed by Falcon
National at the May 2021 closing, they were surprised to see the $25,200 fee
for broker or referral services because it was 1% of the total loan amount—
twice the 0.5% fee that he had agreed to in the consulting contract with
Gutierrez. Engh stopped the closing and called Falcon National’s loan officer
to ask about the fee. According to Engh, he told the loan officer “that we had
signed an agreement with [Gutierrez] to pay him half the amount on there,
and [the loan officer] assured me that sometimes the bank pays a half percent
and we pay a half percent and that everything that [Gutierrez] is being paid
is covered and there’s no other fees that are going to be asked for.”
Engh did not call Gutierrez—who also was not present at the closing—
to discuss the discrepancy between the Form 159 and the consulting contract.
But the loan officer called Gutierrez to let him know that Engh “was not
happy when he was disclosed that I was getting paid a referral fee as a referral
agent from the bank.” Gutierrez also testified that the loan officer “said at
this point, you know, you guys—your agreement is outside of this—of the
bank, kind of.” And according to Gutierrez, the loan officer “was just saying
that you guys go and figure it out yourselves outside of it.” The loan officer
did not testify at trial.

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After the conversation with the loan officer, Engh and his wife
electronically signed the applicant’s certification. According to Engh, he did
so in reliance on his review of the Form 159 and the conversation with the
loan officer, explaining that “the reason of me stopping the closing was to
verify to make sure that everything—all agreements—were being taken care
of with this payment which was double that we agreed.” About half an hour
later, Gutierrez electronically signed the agent’s certification. And roughly
half an hour after that, Falcon National’s loan officer electronically signed the
SBA lender’s certification.
The loan thus successfully closed. The loan proceeds were disbursed
to complete Engh’s purchase of the business. And Falcon National paid
Gutierrez the $25,200 fee for broker or referral services disclosed on the
Form 159. This fee was paid from Falcon National’s funds—not the proceeds
of the loan to Engh.2
Later that same month, Gutierrez emailed Engh to congratulate him
on the loan closing and attached an invoice for $12,600. The invoice
described that amount as the “Agreed Loan Placement fee of 0.50% of final
loan amount per agreed contract.” Engh responded that he “would be happy
to pay our agreement” but only if Gutierrez would “refund the proceeds that
you were paid at closing” back to Falcon National “and then we can pay you
our arranged amount.” The parties’ email communications escalated over
the next few months. And in January 2023, Gutierrez sued Engh for breach
2 Gutierrez explained his understanding that a “referral fee comes from the bank’s
marketing budget. So instead of them . . . having loan officers out there booking business,
. . . the banks that are set out to work with loan consultants like me, they have a marketing
budget.” And during Engh’s testimony, the district court asked Engh directly, “[D]id the
money for that $25,200 check come out of your loan proceeds or did it come from other
funds that the bank had?” Engh answered, “I don’t believe it came out of loan proceeds.”

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of contract and other related claims, seeking payment of the $12,600 fee,
attorney fees, costs, expenses, and interest under the contract.
At a one-day bench trial in February 2024, the district court heard
testimony from four witnesses—Gutierrez, a Des Moines area commercial
banker to whom Gutierrez had pitched Engh’s loan, Engh, and Engh’s wife.
And it received documentary evidence, including the consulting contract,
the Form 159, and many emails between the parties or related to Gutierrez’s
consulting services for Engh.
The district court eventually found that Gutierrez proved his breach-
of-contract claim, reasoning that the consulting contract was a valid contract,
that Gutierrez had performed his duties under the contract resulting in Engh
obtaining a $2,520,000 loan, that Gutierrez was thus entitled to a $12,600
fee, and that Engh had breached the contract by failing to pay. The court also
rejected Engh’s argument that the Form 159 “prohibit[s] Gutierrez from
seeking compensation for the services he provided under the Consulting
Contract.” And so, the court entered judgment in favor of Gutierrez for
$12,600 plus interest, costs, and attorney fees. Engh unsuccessfully moved
to enlarge or amend the ruling under Iowa Rule of Civil Procedure 1.904. And
after considering Gutierrez’s attorney-fees affidavit and Engh’s objections,
the court awarded $24,392.70 in attorney fees and expenses. Engh appeals.
II. Breach of Contract
Engh challenges the district court’s judgment that he breached the
consulting contract with Gutierrez by failing to pay the $12,600 fee under
that contract. The parties agree that this breach-of-contract case was tried to
the court at law and that we thus review for correction of errors at law. See
CMT Highway, LLC v. Logan Contractors Supply, Inc., 34 N.W.3d 508, 514
(Iowa 2026). The district court’s “factual findings have the force of a special

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verdict,” and “bind our review if supported by substantial evidence.” Id.
(cleaned up). But where, as here, the court interpreted a contract without the
use of extrinsic evidence, we are not bound by the court’s interpretation or
construction of a contract and “review the construction and interpretation of
a contract as a matter of law.” Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797
(Iowa 1999).
On appeal, Engh concedes that the consulting contract “is
unquestionably a valid contract” and that under its terms, Gutierrez “was
entitled to receive compensation of $12,600.00 from Engh at closing
regardless of whether [Gutierrez] received compensation from another
party.” Instead of attacking that consulting contract, Engh rests his appeal
solely on the legal effect of the Form 159 that was signed by Engh, Gutierrez,
and Falcon National. He argues that the Form 159 was also “a valid contract
and should be enforced” according to its “unambiguous” terms and without
considering “any extrinsic evidence.” And he contends that those terms
“clearly state[] that all fees related to the transaction would be included in
the [Form 159] and that no fees undisclosed on the form would be sought
after closing.” Engh thus urges that Gutierrez contracted away his right to
the $12,600 fee to which he was otherwise entitled by signing the Form 159.
But even assuming that Engh is correct that the signed Form 159 is a
contract between Engh and Gutierrez, we disagree with his interpretation
that its terms discharge Gutierrez’s right to the $12,600 fee under the
consulting contract.
True, a later contract between the parties can modify or entirely
discharge the duties of an earlier contract. See Klipp v. Iowa Grain Indem. Fund
Bd., 502 N.W.2d 9, 11–12 (Iowa 1993) (discussing the related doctrines of
substitution and novation of a contract—describing discharge of the earlier

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duties by either the same parties or a new party, respectively—and holding
that the later contract at issue there was merely a modification); Iowa
Arboretum, Inc. v. Iowa 4-H Found., 886 N.W.2d 695, 706–07 (Iowa 2016)
(holding that later agreement modified the contract). Yet “[s]ubstitution (or
novation) of the contract is not easily established”—it “is never presumed,
but must be proved” by the party asserting it. Klipp, 502 N.W.2d at 11
(cleaned up). And “[w]here two contracts are made at different times, but
where the later is not intended to entirely supersede the first, but only to
modify it in certain particulars, the two are to be construed as parts of one
contract, the later superseding the earlier one wherever it is inconsistent.”
Iowa Arboretum, 886 N.W.2d at 706 (cleaned up). As always, when
interpreting a contract, we look for “the parties’ mutual intent”—not “some
secret, undisclosed intention they may have had in mind, or which occurred
to them later.” Peak v. Adams, 799 N.W.2d 535, 544 (Iowa 2011) (cleaned up).
We see nothing in the signed Form 159’s text or structure that shows
any mutual agreement between Gutierrez and Engh to modify the existing
consulting agreement or to release or waive Gutierrez’s rights under that
contract. For starters, it does not refer to the prior contract. Cf. Iowa
Arboretum, 886 N.W.2d at 706–07 (holding that later contract modified
earlier contract where it expressly referenced prior agreement and included
inconsistent term). It contains no agreement by Gutierrez purporting to
discharge any obligation by Engh to pay Gutierrez even in generic terms, such
as undisclosed prior contracts. And it contains no text giving Engh the right
to raise a defense if Gutierrez seeks to collect an undisclosed fee.
Engh points to Gutierrez’s certification that “the information
provided in this form accurately describes the types of services [he] has
provided to [Engh] or [Falcon National] and the compensation described in

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this form is the only compensation that has been charged to or received from
[Engh] or [Falcon National] or that will be charged to the aforementioned
parties for services covered by this form.” 3 But this was only a
“certification,” using the words that Gutierrez “certifies” the statements
contained in it “[b]y signing this form”—not that he “agrees” to new duties
to Engh or that he “releases” or “waives” existing duties. See Certify,
Merriam-Webster’s Collegiate Dictionary 188 (10th ed. 1997) (defining certify
as “attest[ing] authoritatively,” “present[ing] in formal communication,” or
“attest[ing] as being true”). And consistent with the form’s stated purpose
of providing information to the SBA in compliance with a statutory mandate,
this text is thus best understood not as an enforceable promise to Engh that
modifies existing contractual obligations between two private parties but as a
regulatory report to the SBA.
This does not render the certifications superfluous as Engh contends.
They remain important for the Form 159’s stated purpose. And the form
spells out the consequences of a false certification. That includes potential
criminal prosecution, the “SBA’s suspension or revocation of the privilege
of conducting business with the SBA,” or the SBA’s ordering the refund of
any “unreasonable or prohibited” fees. Indeed, the one use of “agrees” in
the agent’s certification is for that last remedy—“if SBA deems any portion
or all of the fees charged in connection with the application for or making of
the loan to be unreasonable or prohibited, the Agent agrees to refund that
amount to the Applicant” (emphasis added). But that term does not apply in
3 Although Engh does not emphasize it, we note that Gutierrez made another
similar certification that he “has not and will not directly or indirectly charge or receive
any payment from the Applicant in connection with the application for or making of the
SBA loan except for services actually performed on the Applicant’s behalf and identified
in this form.” Our analysis would not differ if we focused on this certification.

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this dispute because the SBA has not made any determination that
Gutierrez’s consulting fee is unreasonable or prohibited. Notably absent
from these consequences identified in the form is any other automatic
forfeiture of an existing private contract right.
What’s more, when we look to the original consulting contract for
more context, it expressly anticipates the situation here, where Gutierrez was
paid for broker or referral services by the eventual lender. That contract
provides: “[Gutierrez] may receive other compensation from the lender
(most often based on broker/referral volume). This compensation has been
earned by [Gutierrez] and will not increase the cost of the loan or substitute
the agreed consulting fee.” This further suggests that the disclosure of the
fee for broker or referral services is not inconsistent with the consulting fee
in the consulting contract and thus that the Form 159 did not extinguish the
consulting contract. See Klipp, 502 N.W.2d at 11.
Finally, a word about what we do not decide. Gutierrez has argued, and
the district court seemed to agree, that he was not required to disclose his
consulting fee on the Form 159 based on its terms and instructions and the
underlying SBA regulations and statute. We express no opinion on this issue
because it makes no difference in this contract dispute whether the fee should
have been disclosed under our interpretation of the Form 159. Similarly,
because Engh has disclaimed any argument based on the SBA regulations or
statute, we do not consider whether enforcement of the consulting contract
should be affected by that federal law. We decide only the issue Engh has
presented us: whether the court failed to enforce the Form 159.
And because the Form 159 did not discharge Gutierrez’s right to the
$12,600 fee under the consulting contract, the court did not fail to enforce it.
We thus affirm the district court’s judgment.

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III. Appellate Attorney Fees
In his appellate brief defending the district court judgment, Gutierrez
also asks for an award of appellate attorney fees under the consulting
contract. Engh does not respond to this request.
The consulting contract indeed provides that “[i]n the event that
[Engh] fails to pay [Gutierrez] timely for the fees provided for in this
agreement, . . . then [Engh] shall be responsible for and shall pay [Gutierrez]
all of [Gutierrez’s] costs and expenses, including attorney fees, incurred by
[Gutierrez] in collecting the fees due.” And because we have affirmed the
district court’s judgment for Gutierrez, we agree that Gutierrez is also
entitled to an award of appellate attorney fees under that contract. See Iowa
Code § 625.22(1) (2023) (“When judgment is recovered upon a written
contract containing an agreement to pay an attorney fee, the court shall allow
and tax as a part of the costs a reasonable attorney fee to be determined by
the court.”); Bankers Tr. Co. v. Woltz, 326 N.W.2d 274, 278 (Iowa 1982)
(awarding appellate attorney fees under section 625.22 when “the written
agreement provided for attorney fees and in no way limited them to costs in
the trial court”).
“[W]e prefer that parties requesting appellate fees do so in their briefs
and submit an attorney-fee affidavit immediately after oral argument or after
the case is submitted without oral argument,” so that we can decide the
amount of the award without requiring further proceedings. In re Marriage of
Samuels da Fonseca Silva, 15 N.W.3d 801, 808–09 (Iowa Ct. App. 2024).
Unfortunately, Gutierrez did not do so here. Because we do not have an
attorney-fee affidavit, we remand to the district court with directions to
decide the reasonable amount of appellate attorney fees to award. See id.
AFFIRMED AND REMANDED WITH DIRECTIONS.