First Nat. Bank North Platte v. Cardenas , 299 Neb. 497 ( 2018 )


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    FIRST NAT. BANK NORTH PLATTE v. CARDENAS
    Cite as 
    299 Neb. 497
    First National Bank North Platte, a national banking
    association, appellee, v. Jose A. Cardenas and
    Christina Cardenas, husband and wife, and
    Joya de A ndalucia Farms, LLC, a Nebraska
    limited liability company, appellants.
    ___ N.W.2d ___
    Filed March 30, 2018.    No. S-17-360.
    1.	 Verdicts: Juries: Appeal and Error. An appellate court will set aside
    a jury verdict because of insufficient evidence only if the verdict is
    clearly wrong.
    2.	 Verdicts: Appeal and Error. In determining the sufficiency of the evi-
    dence to sustain a verdict in a civil case, an appellate court considers the
    evidence most favorably to the successful party and resolves evidential
    conflicts in favor of such party, who is entitled to every reasonable
    inference deducible from the evidence.
    3.	 ____: ____. A jury verdict will be upheld if there is competent evidence
    presented to the jury upon which it could reasonably find for the suc-
    cessful party.
    4.	 Jury Instructions: Appeal and Error. Whether a jury instruction
    is correct is a question of law, which an appellate court indepen-
    dently decides.
    5.	 Motions for New Trial: Damages: Appeal and Error. Pursuant to
    Neb. Rev. Stat. § 25-1912.02(2) (Reissue 2016), when an action has
    been tried before a jury, a motion for a new trial shall be a prerequi-
    site to obtaining appellate review of the issue of inadequate or exces-
    sive damages.
    6.	 Jury Instructions: Pleadings: Evidence. A litigant is entitled to have
    the jury instructed upon only those theories of the case which are
    presented by the pleadings and which are supported by competent
    evidence.
    7.	 Jury Instructions: Proof: Appeal and Error. To establish reversible
    error from a court’s failure to give a requested jury instruction, an
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    appellant has the burden to show that (1) the tendered instruction is a
    correct statement of the law, (2) the tendered instruction was warranted
    by the evidence, and (3) the appellant was prejudiced by the court’s
    failure to give the requested instruction.
    8.	 Jury Instructions: Appeal and Error. It is not error for a trial court to
    refuse a requested instruction if the substance of the proposed instruc-
    tion is contained in those instructions actually given.
    9.	 ____: ____. If the instructions given, which are taken as a whole, cor-
    rectly state the law, are not misleading, and adequately cover the issues
    submissible to a jury, there is no prejudicial error concerning the instruc-
    tions and necessitating a reversal.
    10.	 Statutes: Intent. When interpreting a statute, the starting point and
    focus of the inquiry is the meaning of the statutory language, understood
    in context.
    11.	 ____: ____. A court ascertains the meaning of a statute by reading it
    in pari materia, in light of the broader structure of the relevant act and
    related statutes.
    12.	 Juries: Verdicts: Presumptions. Because a general verdict does not
    specify the basis for an award, Nebraska law presumes that the winning
    party prevailed on all issues presented to the jury.
    Appeal from the District Court for Lincoln County: Donald
    E. Rowlands, Judge. Affirmed.
    Luke T. Deaver and Taylor A. L’Heureux, of DeWald Deaver,
    P.C., L.L.O., for appellants.
    David W. Pederson and Matthew D. Pederson, of Pederson
    & Troshynski, for appellee.
    Heavican,        C.J.,    Miller-Lerman,           Cassel,     Stacy,      and
    Funke, JJ.
    Cassel, J.
    I. INTRODUCTION
    After a bank lender exercised powers of sale under deeds
    of trust, it sought to recover a deficiency owed by the borrow-
    ers. The borrowers appeal from a jury verdict in favor of the
    bank. Because the borrowers failed to move for a new trial,
    we cannot review their assertion that excessive damages were
    awarded, but we examine and reject their argument that the
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    evidence was insufficient to support the jury’s verdict. We also
    find no error in the trial court’s refusal to give the borrowers’
    requested jury instructions. Accordingly, we affirm.
    II. BACKGROUND
    1. Move to North Platte
    In 2006, Jose A. Cardenas and Christina Cardenas moved
    to North Platte, Nebraska, where Jose began working as a
    neurologist. Jose and Christina purchased 127 acres of land
    on which to build a house. They obtained a loan from First
    National Bank North Platte (FNBNP) for the purchase of the
    land. The 127 acres were ultimately divided into three parcels:
    a 57-acre tract (the pasture tract), a 20-acre tract (the house
    tract), and a 50-acre tract (the barn tract). After purchasing the
    land, Jose and Christina obtained a loan from FNBNP for the
    construction of their house.
    Christina purchased two Andalusian horses. She planned to
    provide horse riding and polo lessons and to operate a horse
    breeding business. Jose and Christina formed a Nebraska lim-
    ited liability company to conduct their horse business (the LLC).
    Christina was the sole member of the LLC. Jose, Christina,
    and the LLC (collectively the Cardenases) constructed on
    their property a barn, indoor stable, and horse breeding area,
    financed by FNBNP. The Cardenases also financed the pur-
    chase of Andalusian breeding stallions and a horse trailer.
    The Cardenases obtained multiple loans from FNBNP, which
    were refinanced multiple times. These promissory notes were
    secured by a variety of collateral, including their real property
    through several deeds of trust.1 The details of these notes and
    deeds of trust will be expanded later in this opinion.
    2. Move to K entucky
    The LLC never became profitable. The Cardenases’ tax
    returns showed a loss from the LLC of over $100,000 most
    1
    See Neb. Rev. Stat. §§ 76-1001 to 76-1018 (Reissue 2009) (Nebraska
    Trust Deeds Act).
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    years. Jose’s annual income as a neurologist increased to
    over $400,000.
    In 2012, Jose and Christina moved from Nebraska to
    Kentucky. They decided that the climate in Nebraska was not
    conducive to the Andalusian breed of horses and that the LLC
    was unlikely to be successful in Nebraska. Jose was able to
    obtain employment as a neurologist in Kentucky.
    The Cardenases listed for sale all of their real property—
    the house tract, the barn tract, and the pasture tract—for
    $855,000. After receiving no written offers, they relisted the
    house tract and the barn tract (not including the pasture tract)
    for $774,000. The Cardenases received only one offer for the
    property at $300,000, which they did not accept.
    3. FNBNP Trustee’s Sales
    In February 2013, the president of FNBNP demanded that
    the Cardenases pay their loans in full within 10 days due to
    their failure to make installment payments. As a statutory pre-
    requisite to exercising its power of sale under the trust deeds
    that secured the Cardenases’ real property, FNBNP sent them
    a notice of default in March. This first notice of default per-
    tained to the trust deeds securing the house tract. It provided
    the Cardenases 1 month to cure the default by repaying their
    debt in full. In May, FNBNP sent a second notice of default
    to the Cardenases with regard to the trust deeds securing the
    barn tract and the pasture tract, giving them 2 months to cure
    the default.
    In May 2013, FNBNP exercised its power of sale as trustee
    under the trust deed and sold the house tract at auction. The
    bank bid $380,000 and was the only bidder. The bank issued
    itself a trustee’s deed from the sale.
    In September 2013, FNBNP sold the barn tract and the
    pasture tract. The bank purchased the property at auction for
    $100,000.
    4. Litigation Ensues
    In April 2013, FNBNP filed a replevin action in Kentucky
    to recover horses and other personal property collateral that
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    had been moved to Kentucky. In August, the Kentucky court
    granted FNBNP’s motion for summary judgment, based on
    three of the loans from FNBNP to the Cardenases, in the
    amount of $476,612.02.
    In July 2013, following the trustee’s sale of the house tract,
    FNBNP filed a deficiency action against the Cardenases in the
    district court for Lincoln County, Nebraska. In September, after
    the remaining property was sold separately by trustee’s sale,
    FNBNP filed a second deficiency action. The two cases were
    consolidated prior to trial.
    The consolidated cases were tried to a jury. The jury returned
    a verdict for FNBNP in the amount of $171,162.66—the
    amount it had requested. The district court entered judgment
    in accordance with the jury verdict. The Cardenases did not
    file a motion for new trial, but they filed a timely appeal from
    the judgment.
    III. ASSIGNMENTS OF ERROR
    The Cardenases assign that the district court erred by (1)
    “awarding an excessive verdict for [FNBNP] that was unsup-
    ported by the evidence” and (2) refusing their requested jury
    instructions on (a) FNBNP’s duty to comply with the Farm
    Mediation Act,2 (b) FNBNP’s failure to comply with § 76-1012
    and the terms under the deed of trust by denying the Cardenases
    their right to cure the defaults, and (c) whether FNBNP “bid
    the fair market value of each of the properties at both of the
    foreclosure sales as required under . . . § 76-1013.”
    IV. STANDARD OF REVIEW
    [1-3] An appellate court will set aside a jury verdict because
    of insufficient evidence only if the verdict is clearly wrong.3
    In determining the sufficiency of the evidence to sustain a ver-
    dict in a civil case, an appellate court considers the evidence
    2
    See Neb. Rev. Stat. §§ 2-4801 to 2-4815 (Reissue 2012).
    3
    See ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 
    296 Neb. 818
    , 
    896 N.W.2d 156
    (2017).
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    most favorably to the successful party and resolves evidential
    conflicts in favor of such party, who is entitled to every rea-
    sonable inference deducible from the evidence.4 A jury verdict
    will be upheld if there is competent evidence presented to
    the jury upon which it could reasonably find for the success-
    ful party.5
    [4] Whether a jury instruction is correct is a question of law,
    which an appellate court independently decides.6
    V. ANALYSIS
    1. Sufficiency of Evidence to
    Support A mount of Damages
    The Cardenases assign that the district court “erred in
    awarding an excessive verdict for [FNBNP] that was unsup-
    ported by the evidence.” They argue that FNBNP’s calculation
    of the amount they still owed was inaccurate because it failed
    to offset the second trustee’s sale in the amount of $100,000.
    However, the Cardenases’ failure to file a motion for new trial
    precludes review for excessive damages and limits our exami-
    nation to the sufficiency of the evidence. As we explain below,
    the evidence was sufficient.
    (a) Additional Facts
    At trial, FNBNP introduced into evidence the five different
    notes signed by the Cardenases on which it based its claims.
    It presented multiple bank records showing amounts still
    owing. Jose admitted that they could not keep up with pay-
    ments and did not make any payments after February 2013.
    FNBNP presented the testimony of multiple bank employees
    who stated that the amount due and owing after the trustee’s
    sales, calculated with interest as of the time of trial, was
    $171,162.66.
    4
    Pierce v. Landmark Mgmt. Group, 
    293 Neb. 890
    , 
    880 N.W.2d 885
    (2016).
    5
    See ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 3.
    6
    In re Estate of Clinger, 
    292 Neb. 237
    , 
    872 N.W.2d 37
    (2015).
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    After the jury returned a verdict in favor of FNBNP, the
    court entered judgment accordingly. The Cardenases did not
    move for a new trial.
    (b) Application
    [5] Neb. Rev. Stat. § 25-1912.01(2) (Reissue 2016) provides:
    When an action has been tried before a jury a motion
    for a new trial shall not be a prerequisite to obtaining
    appellate review of the sufficiency of the evidence, but a
    motion for a new trial shall be a prerequisite to obtain-
    ing appellate review of the issue of inadequate or exces-
    sive damages.
    (Emphasis supplied.) The Cardenases’ first assignment of error
    melds a claim of insufficient evidence with one that dam-
    ages were excessive. Because “a motion for a new trial [is]
    a prerequisite to obtaining appellate review of the issue of
    . . . excessive damages,”7 that issue is not properly before us.
    Thus, we review only the sufficiency of the evidence to sup-
    port the jury’s verdict in favor of FNBNP.
    There was undoubtedly sufficient evidence upon which the
    jury could find in favor of FNBNP. The Cardenases did not
    dispute that they borrowed money from FNBNP. They did not
    dispute that they failed to pay those loans. What they disputed
    was the amount still due. Viewing the evidence in the light
    most favorable to FNBNP and giving it the benefit of every
    reasonable inference deducible from the evidence, FNBNP
    clearly presented sufficient evidence upon which the jury could
    have reasonably found that a deficiency was still owed by the
    Cardenases after the trustee’s sale. Under our clear error stan-
    dard of review, this assignment of error fails.
    For the sake of completeness, we note the Cardenases’
    argument relies upon a misunderstanding. The $100,000
    from the second trustee’s sale, which the Cardenases claim
    is unaccounted for in FNBNP’s requested damages, was in
    7
    § 25-1912.01(2).
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    fact credited to the accounts of two of the notes on which the
    Kentucky court granted judgment. After $6,000 was withheld
    for estimated sales expenses, a $47,000 credit for the sale was
    included on the accounts of each of these two notes. Thus, the
    $100,000 from the second trustee’s sale has been credited in
    partial satisfaction of the Kentucky judgment. FNBNP did not
    reduce its calculation of the amount it was due in the Nebraska
    deficiency action by $100,000, because it had already reduced
    its calculation by the amounts owed on the notes subject to
    judgment from the Kentucky litigation, which notes those pro-
    ceeds were credited toward.
    2. Jury Instructions
    The Cardenases’ remaining assignments of error all address
    jury instructions that they proposed and the district court
    refused. The legal rules governing these assignments are well
    settled, and as they apply to all three assignments, we begin by
    recalling them.
    [6-9] A litigant is entitled to have the jury instructed upon
    only those theories of the case which are presented by the
    pleadings and which are supported by competent evidence.8
    To establish reversible error from a court’s failure to give
    a requested jury instruction, an appellant has the burden to
    show that (1) the tendered instruction is a correct statement
    of the law, (2) the tendered instruction was warranted by the
    evidence, and (3) the appellant was prejudiced by the court’s
    failure to give the requested instruction.9 It is not error for a
    trial court to refuse a requested instruction if the substance
    of the proposed instruction is contained in those instructions
    actually given.10 If the instructions given, which are taken
    as a whole, correctly state the law, are not misleading, and
    adequately cover the issues submissible to a jury, there is no
    8
    Armstrong v. Clarkson College, 
    297 Neb. 595
    , 
    901 N.W.2d 1
    (2017).
    9
    
    Id. 10 Id.
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    prejudicial error concerning the instructions and necessitating
    a reversal.11
    (a) Farm Mediation Act
    The Cardenases assign that the district court “erred by fail-
    ing to instruct the jury on [FNBNP’s] duty to comply with
    the Farm Mediation Act.” Specifically, they claim that the
    court should have given the jury their requested instruction on
    FNBNP’s alleged failure to provide them notice of the avail-
    ability of mediation as required by § 2-4807(1).
    However, Jose and Christina do not meet the statutory
    definition of “[b]orrower”12 for purposes of § 2-4807(1). And
    only three notes were in the record on which the LLC was a
    borrower. These three notes were subject to judgment from
    the litigation in Kentucky, but were not the basis of the defi-
    ciency judgment sought by FNBNP in the case before us. Thus,
    the evidence did not support the giving of the Cardenases’
    requested jury instruction.
    (i) Additional Facts
    The Cardenases refinanced multiple times their loans for the
    land, residence, barn, horses, and other expenses and equip-
    ment. There were approximately 31 separate notes between the
    Cardenases and FNBNP. These notes were secured by a variety
    of collateral, including the Cardenases’ real property, which
    was secured by various deeds of trust. However, FNBNP’s
    complaints and the evidence presented at trial identify five
    outstanding loans:
    • note No. xxx243, a $399,000 note executed on January 25,
    2008, on which Jose was the sole borrower;
    • 
    note No. xxx521, a $215,700 note executed on January
    2, 2009, which was a Small Business Administration loan
    made to the LLC with separate guarantees by Jose and
    Christina;
    11
    
    Id. 12 See
    § 2-4802(2).
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    • note No. xxx541, a $110,000 note executed on January
    2, 2009, which was also a Small Business Administration
    loan made to the LLC with separate guarantees by Jose and
    Christina;
    • note No. xxx332, a $118,977 note executed on January 13,
    2009, which listed Jose and Christina as borrowers; and
    • note No. xxx261, a $174,305 note executed on November 30,
    2010, which listed the Cardenases as borrowers.
    FNBNP’s complaints state that as a result of the Kentucky
    litigation, they received summary judgment on notes Nos.
    xxx521, xxx541, and xxx261. Its complaints and testimony at
    trial were that the $171,162.66 it claimed was owed it by the
    Cardenases was based on the amount due on note No. xxx332,
    plus accrued interest. The borrowers on that note were Jose
    and Christina only.
    At trial, FNBNP introduced tax returns from the Cardenases.
    The gross income of the LLC was never greater than the gross
    income from Jose’s wages.
    The Cardenases requested that the court instruct the jury
    that the failure to provide notice of the availability of media-
    tion pursuant to § 2-4807 of the Farm Mediation Act was
    an affirmative defense. The court did not give this requested
    instruction, but instead told the jury that it must accept as true
    the court’s legal conclusion that FNBNP “was not required to
    participate in mediation with the [Cardenases] under the Farm
    Mediation Act.”
    (ii) Application
    The Farm Mediation Act at § 2-4807(1) provides:
    At least thirty days prior to the initiation of a proceeding
    on an agricultural debt in excess of forty thousand dol-
    lars, a creditor, except as provided in subsection (2) or (3)
    of this section, shall provide written notice directly to the
    borrower of the availability of mediation and the address
    and telephone number of the farm mediation service in
    the service area of the borrower.
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    “Creditor” is defined as “any individual, organization, coop-
    erative, partnership, limited liability company, trust, or state
    or federally chartered corporation to whom an agricultural
    loan is owed.”13 “Borrower” is defined as “an individual, lim-
    ited liability company, corporation, trust, cooperative, joint
    venture, or other entity entitled to contract who is engaged in
    farming or ranching, who derives more than fifty percent of
    his or her gross income from farming or ranching, and who
    holds an agricultural loan.”14 Section 2-4802 does not define
    “agricultural loan” or “agricultural debt.”
    While creditors subject to § 2-4807 are required to provide
    notice of the availability of mediation, participation in media-
    tion is optional. The Farm Mediation Act at § 2-4808(2) pro-
    vides in part:
    The parties shall not be required to attend any mediation
    meetings under this section, and failure to attend any
    mediation meetings or to participate in mediation under
    this section shall not affect the rights of any party in
    any manner. Participation in mediation under this section
    shall not be a prerequisite or a bar to the institution of or
    prosecution of legal proceedings by any party.
    We have never held that the failure to provide notice of
    the availability of mediation as required by § 2-4807(1) is
    an affirmative defense to enforcement of agricultural debt
    subject to this notice requirement. And we need not, and
    do not, reach this question here, because we conclude that
    the instruction requested by the Cardenases was not war-
    ranted by the evidence. We also do not address whether Jose
    and Christina were “engaged in farming or ranching” with
    the LLC.15
    FNBNP sought a deficiency judgment on the amount owed
    on note No. xxx332. Thus, that note is the relevant “debt”
    13
    § 2-4802(3).
    14
    § 2-4802(2).
    15
    See 
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    in this “proceeding” for purposes of § 2-4807. Jose and
    Christina—not the LLC—were the borrowers on this note.
    Jose and Christina, with or without the inclusion of the gross
    income from the LLC, do not meet the definition of borrower
    for purposes of § 2-4807(1), because they do not “derive[]
    more than fifty percent of [their] gross income from farming
    or ranching.”16
    Because Jose and Christina were not borrowers for purposes
    of the notice requirement of § 2-4807(1), the Cardenases’
    requested jury instruction was not warranted by the evidence.
    Thus, it was not error for the trial court to refuse to give this
    instruction. If the Cardenases wanted to raise the failure of
    FNBNP to provide notice as required by § 2-4807(1) before
    seeking to enforce those notes on which the LLC was a bor-
    rower, they should have done so in the Kentucky litigation.
    This assignment of error lacks merit.
    (b) Right to Cure
    The Cardenases argue that the district court erred by refus-
    ing to give their proposed jury instructions on the affirma-
    tive defense that FNBNP refused to allow them to cure their
    default. We conclude that the Cardenases’ requested instruc-
    tions were not correct statements of law and that they were not
    warranted by the evidence.
    (i) Additional Facts
    Many of the notes and trust deeds contained acceleration
    clauses allowing FNBNP, in the event of a default, to declare
    immediately due the entire amount owed. The first notice of
    default stated that FNBNP as trustee “has elected to and does
    declare the entire unpaid principal balance, together with the
    interest thereon, immediately due and payable.” The second
    notice of default provided a section entitled “Notice of Right
    to Cure Default,” which provided 2 months to cure the default
    16
    See 
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    and notified the Cardenases of the amount of the entire prin-
    cipal and the amount of principal that would not be due had
    there been no default.
    At trial, Christina admitted that she and Jose did not tender
    or offer to tender money to cure the default.
    The Cardenases’ first requested instruction addressing the
    first notice of default read:
    The [Cardenases] raised an affirmative defense that
    [FNBNP] failed to comply with the Nebraska Trust Deeds
    Act by failing and refusing to allow [the Cardenases] their
    right to cure the default in the Notice of Default filed on
    March 11, 2013.
    In connection with this affirmative defense, the
    [Cardenases] have the burden of proving, by the greater
    weight of the evidence, each and all of the following:
    1. That [FNBNP] failed to comply with the Nebraska
    Trust Deeds Act by allowing [the Cardenases] to cure
    the default in the Notice of Default filed on March 11,
    2013; and
    2. That the [Cardenases] were willing and able to
    exercise their right [to] cure the default in the Notice of
    Default filed on March 11, 2013 had [FNBNP] allowed
    them to do so.
    If [the Cardenases] have met this burden of proof, then
    [FNBNP] is barred from recovery of any alleged dam-
    ages on its deficiency action and your verdict must be for
    [the Cardenases].
    The requested jury instruction with regard to the second notice
    of default was identical other than the date of the notice.
    The district court did not give these requested instructions.
    Instead, the court instructed the jury that it must accept the
    court’s legal conclusion that “[FNBNP] as trustee of the deeds
    of trust filed notices of default pursuant to Nebraska law, and
    served those notices of default on all parties as required by
    Nebraska law.”
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    (ii) Application
    a. Not Correct Statement of Law
    or Warranted by Evidence
    First, we note that the requested instructions stated that
    FNBNP’s refusal to allow the Cardenases to cure their default
    was a violation of the Nebraska Trust Deeds Act (the Act).
    But the Cardenases’ assignment of error and brief argue that
    this also violated the terms of the deeds of trust. However,
    because the Cardenases did not request a jury instruction about
    a violation of the terms of the trust deed, we will consider this
    assignment of error only as it relates to the claimed violation
    of the Act.
    The Act authorizes a trust deed to be used as a security
    device and provides that real property can be conveyed by
    trust deed to a trustee as a means to secure the performance
    of an obligation.17 The Act includes detailed procedures that,
    in the event of a breach of the underlying obligation, permit
    the trust property to be sold without the involvement of any
    court.18 Specifically, the Act allows a trust deed to expressly
    confer upon a trustee the power of sale.19 Pursuant to this
    power of sale, a trustee can sell the property conveyed by
    a trust deed without any court’s authorization or direction,
    though the trustee must comply with procedural requirements
    contained in the Act.20 Because the Act allows the property
    securing an obligation to be sold without the judicial involve-
    ment that would be required to foreclose upon a mortgage, the
    proceedings surrounding a trustee’s sale pursuant to the Act
    are sometimes referred to as “‘nonjudicial foreclosure’” or
    “‘trustee foreclosure.’”21
    17
    See First Nat. Bank of Omaha v. Davey, 
    285 Neb. 835
    , 
    830 N.W.2d 63
          (2013).
    18
    
    Id. 19 Id.
    20
    
    Id. 21 Id.
    at 
    838, 830 N.W.2d at 66
    .
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    The Act includes detailed requirements that a trustee must
    satisfy prior to exercising the power of sale in a trust deed.
    A trustee must file with the county register of deeds a notice
    of default identifying the trust deed, stating that a breach of
    the obligation secured by the trust deed has occurred, setting
    forth the nature of the breach, and stating its election to sell
    the property to satisfy the obligation.22 A notice of default with
    regard to property used in farming operations has additional
    requirements, including a 2-month period to cure the default
    and that the trustee provide “[a] statement of the amount of
    the unpaid principal which would not then be due had no
    default occurred.”23
    Although § 76-1006 imposes the requirement for notices of
    default, § 76-1012 provides the means by which a trustor may
    cure the default of an obligation secured by a trust deed. It
    states, in relevant part:
    Whenever all or a portion of the principal sum of any
    obligation secured by a trust deed has . . . become due
    or been declared due by reason of . . . a default in the
    payment . . . of any installment of principal . . . the
    trustor . . . may pay to the beneficiary . . . the entire
    amount then due under the terms of such trust deed and
    the obligation secured thereby . . . other than such por-
    tion of the principal as would not then be due had no
    default occurred, and thereby cure the default theretofore
    existing and thereupon all proceedings theretofore had
    or instituted shall be dismissed or discontinued, and the
    obligation and trust deed shall be reinstated and shall be
    and remain in force and effect the same as if no accelera-
    tion had occurred.24
    22
    § 76-1006(1). See, also, 24th & Dodge Ltd. Part. v. Acceptance Ins. Co.,
    
    269 Neb. 31
    , 
    690 N.W.2d 769
    (2005); Gilroy v. Ryberg, 
    266 Neb. 617
    , 
    667 N.W.2d 544
    (2003).
    23
    § 76-1006(2).
    24
    § 76-1012(1).
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    The Cardenases’ requested jury instructions were not cor-
    rect statements of law, because they required the Cardenases
    to prove only that they “were willing and able to exercise their
    right [to] cure the default.” But § 76-1012 provides that in
    order to cure a default, the trustor must “pay to the beneficiary
    . . . the entire amount then due.” Thus, a default must be cured
    by paying the beneficiary, i.e., by tendering payment.
    A tender of payment is more than being “willing and able”
    to pay. It is “an offer to perform, coupled with the present
    ability of immediate performance, which, were it not for the
    refusal of cooperation by the party to whom tender is made,
    would immediately satisfy the condition or obligation for
    which the tender is made.”25
    And even if the Cardenases’ requested instructions correctly
    stated the law, they would not be warranted by the evidence.
    The Cardenases do not claim that they did, in fact, tender
    payment to cure the default, but only that they desired and
    intended to do so. But a desire is not a tender.
    b. FNBNP’s Notice of Default
    Complied With Act
    The Cardenases argue that FNBNP did not allow them the
    right to cure based on the notices of default, which they argue
    showed a “firm resolve”26 to accelerate the debt and deny
    them the right to cure the default by paying the amount due
    “other than such portion of the principal as would not then
    be due had no default occurred,”27 i.e., the nonaccelerated
    amount due. But this argument melds together the separate
    provisions regarding notices of default in § 76-1006 and the
    right to cure in § 76-1012.
    [10,11] When interpreting a statute, the starting point and
    focus of the inquiry is the meaning of the statutory language,
    25
    Graff v. Burnett, 
    226 Neb. 710
    , 716, 
    414 N.W.2d 271
    , 276 (1987).
    26
    Brief for appellants at 29.
    27
    See § 76-1012(1).
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    understood in context.28 We ascertain the meaning of a statute
    by reading it in pari materia, in light of the broader structure of
    the relevant act and related statutes.29
    Section 76-1012 provides a trustor the ability to cure a
    default on an obligation secured by a trust deed prior to a
    trustee’s sale and have the trust deed reinstated. This section
    contemplates and references the filing of a notice of default,
    but does not itself require the notice of default or specify the
    necessary contents of a notice of default. These requirements
    are set forth in § 76-1006. Section 76-1012 adds no additional
    requirements for notices of default to those in § 76-1006.
    The notices of default satisfied the requirements of
    § 76-1006. The first notice stated that a default had occurred,
    that the nature of the default was “[f]ailure to pay install-
    ment payments when due,” and that FNBNP had elected
    to sell the property to satisfy the obligation. We have held
    that under § 76-1006(1), “for nonagricultural property, the
    notice of default need not contain information on how to cure
    the default.”30
    The second notice of default met the additional require-
    ments of § 76-1006(2), which applies to property used for
    farming operations. It included “[a] statement of the amount
    of the unpaid principal which would not then be due had
    no default occurred.”31 Thus, the district court was correct
    to instruct the jury that the notices of default were made in
    accord­ance with the Act.
    c. Conclusion
    In sum, the district court did not err by refusing to give
    the Cardenases’ requested jury instructions on the right to
    cure. The right to cure in § 76-1012 does not add additional
    28
    Robinson v. Houston, 
    298 Neb. 746
    , 
    905 N.W.2d 636
    (2018); Kozal v.
    Nebraska Liquor Control Comm., 
    297 Neb. 938
    , 
    902 N.W.2d 147
    (2017).
    29
    Kozal v. Nebraska Liquor Control Comm., supra note 28.
    30
    Gilroy v. Ryberg, supra note 
    22, 266 Neb. at 629
    , 667 N.W.2d at 556.
    31
    § 76-1006(2).
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    requirements to the requirements for notices of default in
    § 76-1006. And the requested instructions were not cor-
    rect statements of law, because they required only that the
    Cardenases be “willing and able” to cure, not that they actu-
    ally tender payment. The instructions were not warranted by
    the evidence, because it is undisputed that the Cardenases did
    not tender payment to cure the default. This assignment of
    error lacks merit.
    (c) Fair Market Value
    The Cardenases argue that the district court erred by not
    instructing the jury to determine the fair market value of the
    property sold at the foreclosure sales. The court did not err,
    because the requested instruction was not a correct state-
    ment of law and because the court did instruct the jury to
    determine fair market value as part of its calculation of dam-
    ages, although not in the particular language the Cardenases
    requested.
    (i) Additional Facts
    At trial, the Cardenases requested that the district court give
    the following jury instruction on the affirmative defense that
    FNBNP purchased the property at the trustee’s sales at below
    fair market value:
    The [Cardenases] affirmatively allege that [FNBNP]
    has failed to ascertain and bid the Fair Market Value of
    the subject real estate at one or both of the Trustee’s Sales
    and has waived its right to, and is further barred from
    claiming a deficiency, if any, as a result of its actions in
    purchasing the properties at one or both of the Trustee’s
    Sales at a value below the Fair Market Value.
    In connection with this affirmative defense, the
    [Cardenases] have the burden of proving, by the greater
    weight of the evidence, the following:
    1. That [FNBNP’s] bid and purchase of the properties
    at the Trustee’s Sale held on May 28, 2013 was at a value
    below their Fair Market Value; or
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    2. That [FNBNP’s] bid and purchase of the properties
    at the Trustee’s Sale held on September 9, 2013 was at a
    value below their Fair Market Value.
    If [the Cardenases] have met this burden of proof, then
    [FNBNP] is barred from recovery of any alleged dam-
    ages on its deficiency action and your verdict must be for
    [the Cardenases].
    However, the court did give the following jury instruction on
    the issue of damages:
    If you return a verdict for [FNBNP], then you must
    determine how much money will fairly compensate
    [FNBNP] for its damages. [FNBNP] in [this] deficiency
    action under the . . . Act can recover the difference
    between the total indebtedness with interest and the costs
    and expenses of sale, including trustee’s fees, and the
    greater of the sale price or the fair market value of the
    property as of the date of sale.
    (Emphasis supplied.) The court also gave a jury instruction
    defining the term “fair market value.”
    (ii) Application
    The content of the court’s instruction was driven by
    § 76-1013. It provides a mechanism for creditors to recover
    a deficiency judgment for amounts still due and owing after a
    trustee’s sale. Section 76-1013 states:
    Before rendering judgment, the court shall find the fair
    market value at the date of sale of the property sold. The
    court shall not render judgment for more than the amount
    by which the amount of the indebtedness with interest and
    the costs and expenses of sale, including trustee’s fees,
    exceeds the fair market value of the property or interest
    therein sold as of the date of the sale . . . .
    We find no error regarding refusal of the requested instruc-
    tion, for three reasons.
    First, the requested jury instruction was not a correct state-
    ment of law. It stated that if the Cardenases proved that FNBNP
    bid below fair market value, the bank would be “barred from
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    recovery of any alleged damages on its deficiency action.”
    But the proposition that selling property at a trustee’s sale for
    below fair market value is an absolute bar to recovery in a defi-
    ciency action has no basis in § 76-1013. Rather, a below fair
    market value sale would reduce the amount the creditor could
    recover in a deficiency action. Depending upon the mathemat-
    ics of the transaction, a below market sale would not necessar-
    ily be a total bar to a recovery of a deficiency.
    Second, the instructions given included the substance of
    the requested instruction. The district court instructed the jury
    to determine the fair market value of the property. The court
    instructed the jury that FNBNP could recover “the difference
    between the total indebtedness with interest and the costs and
    expenses of sale, including trustee’s fees, and the greater of
    the sale price or the fair market value of the property as of the
    date of sale.” This language tracks the language of § 76-1013.
    Thus, the substance of the Cardenases’ proposed instruction, or
    at least the portion that was not an incorrect statement of law,
    was contained in the instructions actually given.
    [12] Finally, the general verdict rule applies here. Because
    a general verdict does not specify the basis for an award,
    Nebraska law presumes that the winning party prevailed on all
    issues presented to the jury.32 By rendering a verdict for FNBNP
    in the amount it claimed it was still owed, $171,162.66, the
    jury necessarily determined that the properties sold at or above
    fair market value. The district court did not err in refusing to
    give the Cardenases’ requested jury instruction on fair mar-
    ket value.
    VI. CONCLUSION
    Because we find no merit to any of the Cardenases’ assign-
    ments of error, we affirm the judgment of the district court.
    A ffirmed.
    Wright and K elch, JJ., not participating.
    32
    Heckman v. Burlington Northern Santa Fe Ry. Co., 
    286 Neb. 453
    , 
    837 N.W.2d 532
    (2013).