Omaha Municipal Land Bank v. Ekwen , 30 Neb. Ct. App. 209 ( 2021 )


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    OMAHA MUNICIPAL LAND BANK v. EKWEN
    Cite as 
    30 Neb. App. 209
    Omaha Municipal Land Bank and County of Douglas,
    appellees, v. Vitaly Ekwen, appellant, and
    Vandelay Investments, L.L.C.,
    et al., appellees.
    ___ N.W.2d ___
    Filed October 12, 2021.   No. A-20-679.
    1. Judicial Sales: Real Estate: Appeal and Error. Upon an appeal from
    an order confirming a judicial sale of real estate, an appellate court
    reviews the matter de novo.
    2. Statutes: Appeal and Error. Statutory interpretation is a question of
    law, which an appellate court resolves independently of the trial court.
    3. Records: Appeal and Error. It is incumbent upon the appellant to
    present a record supporting the errors assigned; absent such a record,
    an appellate court will affirm the lower court’s decision regarding
    those errors.
    4. Judicial Sales: Property: Foreclosure: Taxes. Under 
    Neb. Rev. Stat. § 77-1912
     (Reissue 2018), a sheriff’s sale of real property after a fore-
    closure order for delinquent taxes is governed by the provisions for sales
    on execution under 
    Neb. Rev. Stat. § 25-1501
     et seq. (Reissue 2016 &
    Cum. Supp. 2020).
    5. Actions: Notice: Affidavits: Proof. Pursuant to 
    Neb. Rev. Stat. § 25-520.01
     (Reissue 2016), where a notice by publication is given, the
    party instituting or maintaining the action or proceeding must, within 5
    days after the first publication of notice, send a copy of the published
    notice to each party appearing to have a direct interest in the action or
    proceeding and whose name and address are known to him or her. Proof
    by affidavit of the mailing of the notice must be made within 10 days.
    6. Judicial Sales: Notice. The requirements of 
    Neb. Rev. Stat. § 25-520.01
    (Reissue 2016) apply to a publication of notice given under 
    Neb. Rev. Stat. § 25-1529
     (Reissue 2016) governing sales on execution.
    7. Public Officers and Employees: Presumptions. In the absence of
    evidence to the contrary, it may be presumed that public officers
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    OMAHA MUNICIPAL LAND BANK v. EKWEN
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    30 Neb. App. 209
    faithfully performed their official duties and that absent evidence
    showing misconduct or disregard of law, the regularity of official acts
    is presumed.
    8. Mortgages: Foreclosure: Notice. Under 
    Neb. Rev. Stat. § 25-1531
    (Cum. Supp. 2020), a court errs in confirming a mortgage foreclosure
    sale when the facts show that the mortgagee did not comply with the
    notification requirements of 
    Neb. Rev. Stat. § 25-520.01
     (Reissue 2016).
    Appeal from the District Court for Douglas County: Gary
    B. Randall, Judge. Affirmed in part, and in part reversed and
    remanded with directions.
    Thomas C. Dorwart, of Goosmann Law Firm, P.L.C., for
    appellant.
    Matthew G. Munro, of McGrath, North, Mullin & Kratz,
    P.C., L.L.O., for appellees Omaha Municipal Land Bank and
    County of Douglas.
    Riedmann, Bishop, and Arterburn, Judges.
    Bishop, Judge.
    INTRODUCTION
    Vitaly Ekwen appeals the Douglas County District Court’s
    order confirming a sheriff’s sale of real property under a decree
    of foreclosure on a tax lien. Ekwen claims that because of
    improper or insufficient service and notice, the court should
    have vacated and set aside the sale, its previous order on a
    motion for service by publication, and the decree of fore­
    closure. We affirm the district court’s decision not to vacate
    and set aside its previous order on the motion for service by
    publication and the decree of foreclosure. However, we reverse
    the district court’s decision to confirm the sale, and we remand
    the cause to the district court with directions.
    BACKGROUND
    On February 23, 2018, Omaha Municipal Land Bank
    (Bank) and the County of Douglas, Nebraska (County), filed
    a complaint against several defendants seeking the payment
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    OMAHA MUNICIPAL LAND BANK v. EKWEN
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    30 Neb. App. 209
    of delinquent real estate taxes or, if payment was not made,
    an order that the real estate be sold in a tax lien foreclosure
    proceeding. Both Ekwen and the “Real Property located at
    3525 North 28th Avenue Omaha, NE 68111” (real property)
    were among the named defendants. The Bank and the County
    alleged the County was the owner and holder of a tax sale
    certificate issued by the Douglas County treasurer in 2014,
    which constituted “a first and superior lien” on the real prop-
    erty legally described as “Lot 22, Block 2, Redicks Park, an
    addition to the city of Omaha, in Douglas County, Nebraska.”
    The Bank and the County further alleged that the tax sale
    certificate had not been redeemed, nor subsequent taxes paid,
    and that because 3 years had elapsed since the issuance of the
    tax sale certificate, they were now entitled to foreclose the
    lien for taxes represented by the tax sale certificate, as well as
    for subsequent years’ taxes paid by the County. The Bank and
    the County alleged that certain named defendants, including
    Ekwen, had a claim or interest in the real property. The Bank
    and the County’s praecipe requested that the clerk of the court
    “issue a Summons directed to the Defendants listed below and
    return to the undersigned for service upon said Defendants by
    CERTIFIED MAIL as provided by law”; Ekwen was listed at a
    specified post office box (P.O. Box) in Omaha.
    On July 2, 2018, the Bank and the County filed a motion for
    service by publication, alleging that Ekwen, the real property,
    and some of the other defendants could not be served by any
    other means. The affidavit of Martin A. Barnhart was said to
    be “filed contemporaneously” in support of the motion; how-
    ever, the affidavit does not appear in our transcript, nor was
    it requested in the praecipe for transcript. The “Certificate
    of Service” stated that a copy of the motion was served by
    “United States mail” on Ekwen at the P.O. Box in Omaha.
    Although both parties reference the district court’s order on
    the motion for service by publication, which was apparently
    granted, the order does not appear in our transcript, nor was it
    requested in the praecipe for transcript.
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    OMAHA MUNICIPAL LAND BANK v. EKWEN
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    30 Neb. App. 209
    Nearly 1 year later, on June 20, 2019, the Bank and the
    County filed a motion for default judgment against the defend­
    ants, including Ekwen and the real property, for failure to
    answer the complaint. The Bank and the County stated that in
    support of the motion, they intended to rely on the affidavit of
    Barnhart. Barnhart’s May affidavit in support of the motion for
    default judgment stated that he is the executive director of the
    Bank; on February 23, 2018, the Bank and the County filed
    the complaint in this action; the Bank and the County served
    the summons and complaint on the defendants by certified mail
    or publication, as indicated in the court file; and the defendants
    failed to file an answer or other responsive pleading within
    30 days of service. Barnhart also set forth the amounts due
    and owing related to the tax sale certificate and the case. The
    “Notice of Hearing” stated that the motion for default judg-
    ment would be called for hearing on June 25. Additionally,
    the “Certificate of Service” stated that a copy of the motion
    was served by “First Class Mail” on Ekwen at the P.O. Box in
    Omaha. It also stated that “No Service” was provided to “Lot
    22 Block 2 Redicks Park.”
    On June 25, 2019, the district court entered an “Order
    Granting Default Judgment/Decree of Foreclosure.” The court
    found that the defendants had been validly served but had not
    filed an answer or otherwise pled. The court further found
    that the Bank and the County had a valid first lien on the real
    property and were entitled to foreclose their lien against the
    real property. The court ordered that in the event that the sums
    due as set forth in the decree were not paid within 20 days
    from the entry of the decree, an order of sale would be issued
    and the real property sold for the satisfaction of the Bank and
    the County’s lien. Upon confirmation of the sale, the default
    defend­ants would be foreclosed and forever barred of all
    right, title, and interest in the real property. The “Certificate of
    Service” does not show that Ekwen was served a copy of the
    court’s order, but it does show that service was sent via U.S.
    mail to “Lot 22 Block 2 Redicks Park an addi 3525 North 28th
    Ave. Omaha, NE 68111.”
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    OMAHA MUNICIPAL LAND BANK v. EKWEN
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    30 Neb. App. 209
    The Bank and the County’s “Praecipe for Order for Sale”
    was filed on July 26, 2019; it asked the clerk of the district
    court to issue an order of sale directing the Douglas County
    sheriff to sell the property, because “[n]one of the real estate
    has been redeemed from the Decree of Foreclosure and the stat-
    utory period for redemption has expired.” The “Certificate of
    Service” stated that a copy of the praecipe was served by “reg-
    ular, first class mail” on Ekwen at the P.O. Box in Omaha.
    On October 18, 2019, a deputy sheriff filed a document
    stating:
    Received this order of sale on August 7, 2019, and
    thereupon on September 16, 2019, I caused a notice to be
    published in the Daily Record, a newspaper printed and
    in general circulation in [Douglas] County, that I would
    offer said property for sale at 1616 Leavenworth Street,
    Omaha, Nebraska on October 16, 2019, at 11:00 a.m., of
    said day. After having so advertised the same for more
    than thirty days, and at the time and place stated in said
    notice I offered the said lands and tenements for sale at
    public auction, and sold the same as follows to-wit:
    Lot 22, Block 2, Redicks Park, an Addition to the
    City of Omaha, in Douglas County, Nebraska.
    Sold to: Omaha Municipal Land Bank and County
    of Douglas[.]
    For the sum of: . . . $12,942.49[.]
    On December 4, 2019, the Bank and the County filed a
    motion to confirm the sale of the real property. The “Certificate
    of Service” stated that a copy of the motion was served by
    “regular United States mail” on Ekwen at the P.O. Box in
    Omaha. It also stated that “No Service” was provided to “Lot
    22 Block 2 Redicks Park.”
    On December 12, 2019, Ekwen filed an “Objection to
    Motion to Confirm and Motion to Vacate and Set Aside.”
    Ekwen stated he objected to the motion to confirm, and he
    also moved for an order vacating and setting aside the order
    on the motion for service by publication, the decree of fore-
    closure, and the sheriff’s sale. He alleged that the judgment
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    OMAHA MUNICIPAL LAND BANK v. EKWEN
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    30 Neb. App. 209
    was rendered without service of process upon him other than
    by publication. Ekwen further alleged that the Bank and the
    County failed to make diligent investigation and inquiry into
    his whereabouts; there was no return of service showing any
    attempts to serve him in any manner prior to the order for
    service by publication; notice of the sheriff’s sale was not pub-
    lished in accordance with 
    Neb. Rev. Stat. §§ 77-1912
     (Reissue
    2018) and 25-1501 et seq. (Reissue 2016 & Cum. Supp. 2020);
    the motion for default judgment and the motion to confirm
    were not served upon him at his last known address; and a sub-
    stantial injustice would result from the denial of due process
    if the motion to confirm was not denied and the order on the
    motion for service by publication, the decree of foreclosure,
    and the sheriff’s sale were not vacated and set aside.
    A hearing on the motion to confirm sale, as well as Ekwen’s
    objection and his motion to vacate and set aside, was held on
    July 27, 2020. On August 19, the district court entered an order
    and a nunc pro tunc order confirming the sale of the real prop-
    erty and for issuance of a deed to the Bank. The court found
    that the sale had been “conducted in all respects according to
    law” and that the real property was sold for its fair value under
    the circumstances and conditions of the sale. The court further
    found that the order on the motion for service by publica-
    tion and the decree of foreclosure were “issued in all respects
    according to law.” The “Certificate of Service” shows that
    Ekwen’s counsel was served via email and that service was
    sent to “Lot 22 Block 2 Redicks Park an addi 3525 North 28th
    Ave. Omaha, NE 68111.”
    Ekwen appeals.
    ASSIGNMENTS OF ERROR
    Ekwen assigns, restated, that the district court erred in (1)
    finding that the Bank and the County made sufficient diligent
    investigation and inquiry into his whereabouts by executing
    service by publication and (2) failing to affirmatively find
    that proper notice of the time and place of the foreclosure sale
    of his property was not provided to him in accordance with
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    OMAHA MUNICIPAL LAND BANK v. EKWEN
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    Nebraska law and the principles of due process. Accordingly,
    Ekwen claims that the court erred in granting the motion to
    confirm the sale of his real property and in denying his motion
    to vacate and set aside the sale and the court’s previous order
    on the motion for service by publication and the decree of
    foreclosure.
    STANDARD OF REVIEW
    [1] Upon an appeal from an order confirming a judicial sale
    of real estate, an appellate court reviews the matter de novo.
    See Federal Farm Mtg. Corporation v. Popham, 
    137 Neb. 529
    ,
    
    290 N.W. 423
     (1940).
    [2] Statutory interpretation is a question of law, which an
    appellate court resolves independently of the trial court. In re
    Estate of Loder, 
    308 Neb. 210
    , 
    953 N.W.2d 541
     (2021).
    ANALYSIS
    Motion for Service by Publication
    and Decree of Foreclosure
    Ekwen claims the district court’s order on the motion for
    serv­ice by publication and the decree of foreclosure should
    have been vacated and set aside because service was not
    properly perfected upon him. He contends the court erred in
    finding the Bank and the County “made sufficient diligent
    investigation and inquiry” into his whereabouts “by executing
    service by Certified Mail and publication without any attempt
    to execute personal service upon [him].” Brief for appellant
    at 7. He argues that when a party fails to comply with 
    Neb. Rev. Stat. § 25-520.01
     (Reissue 2016), the court lacks personal
    jurisdiction over the defendant, and a “judgment . . . entered
    by a court without personal jurisdiction . . . is void.” Brief for
    appellant at 9.
    Although § 25-520.01 has been recently amended, the ver-
    sion applicable here states:
    In any action or proceeding of any kind or nature, as
    defined in section 25-520.02, where a notice by publica-
    tion is given as authorized by law, a party instituting
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    or maintaining the action or proceeding with respect to
    notice or his attorney shall within five days after the first
    publication of notice send by United States mail a copy of
    such published notice to each and every party appearing
    to have a direct legal interest in such action or proceeding
    whose name and post office address are known to him.
    Proof by affidavit of the mailing of such notice shall be
    made by the party or his attorney and shall be filed with
    the officer with whom filings are required to be made in
    such action or proceeding within ten days after mailing
    of such notice. Such affidavit of mailing of notice shall
    further be required to state that such party and his attor-
    ney, after diligent investigation and inquiry, were unable
    to ascertain and do not know the post office address of
    any other party appearing to have a direct legal interest
    in such action or proceeding other than those to whom
    notice has been mailed in writing.
    (Emphasis supplied.) See Francisco v. Gonzalez, 
    301 Neb. 1045
    , 
    921 N.W.2d 350
     (2019) (father of children not mailed
    copy of publication notice in compliance with § 25-520.01;
    district court lacked personal jurisdiction, and appeal dismissed
    for lack of jurisdiction). The relevant documents showing com-
    pliance with § 25-520.01 were not requested in the praecipe for
    transcript and do not appear in our record. However, Ekwen
    makes no claim that the Bank and the County failed to comply
    with the 5-day and 10-day requirements of § 25-520.01 after
    the first publication of notice. Rather, Ekwen argues that he
    should not have been served by publication without a showing
    that personal service was attempted first. We address that argu-
    ment now.
    We initially note that in his brief, Ekwen states that he lives
    in California and there was no attempt to personally serve him
    at his California residence. However, there is nothing in our
    record to suggest that Ekwen was an out-of-state resident, and
    no mention of California appears in either the transcript or the
    bill of exceptions that are before us on appeal. He also claims
    there is “no evidence that any attempt at service was made
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    upon the address of the property at issue in the foreclosure pro-
    ceedings, despite [the Bank and the County] having knowledge
    that [he] was the owner of the property.” Brief for appellant at
    10. We therefore proceed to address Ekwen’s general claim that
    he should not have been served by publication.
    Pursuant to 
    Neb. Rev. Stat. § 25-508.01
    (1) (Reissue 2016), an
    individual party, other than a person under the age of 14 years,
    may be served by personal, residence, certified mail, or desig-
    nated delivery service. However, “[u]pon motion and showing
    by affidavit that service cannot be made with reasonable dili-
    gence by any other method provided by statute, the court may
    permit service to be made . . . by publication . . . .” 
    Neb. Rev. Stat. § 25-517.02
     (Reissue 2016) (emphasis supplied). See,
    also, 
    Neb. Rev. Stat. § 25-518.01
     (Reissue 2016) (service may
    be made by publication when ordered by court).
    In the praecipe attached to their February 2018 complaint,
    the Bank and the County requested that the clerk of the court
    issue a summons directed to the defendants, including Ekwen
    at a specified P.O. Box, and “return to the undersigned [plain-
    tiffs’ counsel] for service upon said Defendants [including
    Ekwen] by CERTIFIED MAIL as provided by law.” In its July
    motion for service by publication, the Bank and the County
    alleged that certain defendants, including Ekwen and the real
    property, could not be served by any other means. The affidavit
    of Barnhart was said to be “filed contemporaneously” in sup-
    port of the motion; however, as stated previously, the affidavit
    does not appear in our transcript, nor was it requested in the
    praecipe for transcript. Moreover, although both parties refer-
    ence the district court’s order on the motion for service by
    publication, which was apparently granted, the order does not
    appear in our transcript, nor was it requested in the praecipe
    for transcript.
    On June 25, 2019, the district court entered an “Order
    Granting Default Judgment/Decree of Foreclosure.” The court
    found that the defendants had been validly served but had not
    filed an answer or otherwise pled. And in its August 2020
    order on Ekwen’s motion to vacate and set aside, the district
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    court found that the order on the motion for service by publica-
    tion and the decree of foreclosure were “issued in all respects
    according to law.”
    [3] As a general proposition, it is incumbent upon the appel-
    lant to present a record supporting the errors assigned; absent
    such a record, an appellate court will affirm the lower court’s
    decision regarding those errors. Ginger Cove Common Area
    Co. v. Wiekhorst, 
    296 Neb. 416
    , 
    893 N.W.2d 467
     (2017).
    Ekwen claims that the Bank and the County “did not conduct
    reasonable diligence in accordance with . . . § 25-517.02 prior
    to filing their Motion for Service by Publication” and that
    “[t]herefore, service by publication was improper and service
    was never properly executed upon [him].” Brief for appellant
    at 9-10. He further claims that because service was not per-
    fected, the court lacked personal jurisdiction over him and the
    decree of foreclosure was void. Because Barnhart’s affidavit in
    support of the motion for publication and the district court’s
    order on the motion for service by publication are not included
    in our appellate record, Ekwen has not presented this court
    with a record supporting his claim that the order on the motion
    for service by publication and the decree of foreclosure should
    be vacated and set aside. Accordingly, we affirm the district
    court’s findings that the “Default Defendants” had been validly
    served and that the order on the motion for service by publica-
    tion and the decree of foreclosure were “issued in all respects
    according to law.”
    Order Confirming Sale
    Next, Ekwen claims the district court erred in granting the
    Bank and the County’s motion to confirm the sale of the real
    property and in denying his motion to vacate and set aside the
    sale. He contends the court erred in finding that proper notice
    of the time and place of the foreclosure sale was provided
    to him.
    [4] Under § 77-1912(1), a sheriff’s sale of real property after
    a foreclosure order for delinquent taxes is governed by the
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    provisions for sales on execution under § 25-1501 et seq. KLH
    Retirement Planning v. Okwumuo, 
    263 Neb. 760
    , 
    642 N.W.2d 801
     (2002). Pursuant to § 25-1529:
    Lands and tenements taken in execution shall not be
    sold until the officer causes public notice of the time and
    place of sale to be given. The notice shall be given by
    publication once each week for four successive weeks
    in some newspaper printed in the county, or, in case no
    newspaper be printed in the county, in some newspaper
    in general circulation therein, and by posting a notice on
    the courthouse door, and in five other public places in
    the county, two of which shall be in the precinct where
    such lands and tenements lie. All sales made without such
    notice shall be set aside on motion, by the court to which
    the execution is returnable.
    (Emphasis supplied.)
    [5,6] As set forth previously, § 25-520.01 requires that where
    a notice by publication is given, the party instituting or main-
    taining the action or proceeding must, within 5 days after the
    first publication of notice, send a copy of the published notice
    to each party appearing to have a direct interest in the action
    or proceeding and whose name and address are known to him
    or her. Proof by affidavit of the mailing of the notice must be
    made within 10 days. See id. Section 25-520.01 applies to a
    publication of notice given under § 25-1529 governing sales
    on execution. KLH Retirement Planning v. Okwumuo, 
    supra.
    Thus, the party requesting the order of sale has the duty to mail
    a copy of the published notice to other parties with an interest
    in the property being sold. See 
    id.
    Section 25-1531 requires a court to carefully examine the
    proceedings and be “satisfied that the sale has in all respects
    been made in conformity to the provisions of this chapter”
    before confirming such sale. See KLH Retirement Planning v.
    Okwumuo, 
    supra.
     See, also, 
    Neb. Rev. Stat. § 77-1913
     (Reissue
    2018) (court shall examine proceedings and find they are cor-
    rect before entering order of confirmation of sale).
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    [7] Ekwen claims that “there was never any evidence, other
    than the Sheriff’s Return regarding the Order of Sale, show-
    ing that publication was made in accordance with the relevant
    statutes.” Brief for appellant at 12. As set forth in more detail
    previously, in October 2019, a deputy sheriff filed a document
    stating that on September 16, he caused a notice to be pub-
    lished in a newspaper printed in general circulation in Douglas
    County that the property would be sold at a specified time and
    place, and that the sale was advertised for more than 30 days
    before the sale took place. In the absence of evidence to the
    contrary, it may be presumed that public officers faithfully per-
    formed their official duties and that absent evidence showing
    misconduct or disregard of law, the regularity of official acts
    is presumed. KLH Retirement Planning v. Okwumuo, 
    supra.
    Without evidence to the contrary, we find that the sheriff pub-
    lished notice in accordance with § 25-1529.
    However, Ekwen also claims that a copy of the pub-
    lished notice of sale was not sent to him in accordance with
    § 25-520.01. He asserts that the Bank and the County “had
    the requisite knowledge of both [his] name and his post office
    address.” Brief for appellant at 12 (emphasis in original). He
    notes that he was named in the complaint and that the Bank
    and the County “had knowledge of at least two post office
    addresses for [him]: (1) the P.O. Box at which [they] origi-
    nally attempted service by Certified Mail; and (2) the mailing
    address of the real property at issue.” Id.
    In response, the Bank and the County assert that Ekwen’s
    claim that they were required to mail notice of the sale to
    him “is unfounded, because [his] address was not known to
    [them],” and that under the circumstances, § 25-520.01 “clearly
    states that notice by mail is not required.” Brief for appellees at
    6. The Bank and the County point out that they were originally
    granted permission to serve the complaint on Ekwen via pub-
    lication because he could not be served by any other means.
    And “[a]fter the ineffective attempt at service sent to the P.O.
    Box address, and subsequent inability to determine [Ekwen’s]
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    whereabouts, it was clear to [the Bank and the County] that the
    address of [Ekwen] was not known to them.” Id. at 10.
    Section 25-520.01 required the Bank and the County to mail
    Ekwen a copy of the published notice of the sale if his address
    was “known to [them].” “This language has been interpreted to
    require that notice be sent to the ‘last known address’ of persons
    with an interest in the proceeding.” Francisco v. Gonzalez, 
    301 Neb. 1045
    , 1050, 
    921 N.W.2d 350
    , 354 (2019). Additionally,
    the Nebraska Supreme Court has stated that § 25-520.01
    requires the party serving by publication to file an affi-
    davit stating that the party and his or her attorney, “after
    diligent investigation and inquiry,” were unable to ascer-
    tain and do not know the address of any parties having
    an interest who were not mailed a copy of the pub-
    lished notice.
    Francisco v. Gonzalez, 
    301 Neb. at 1046
    , 921 N.W.2d at 351.
    The Bank and the County did not comply with the require-
    ments of § 25-520.01.
    At the July 2020 hearing on the motion to confirm the sale
    and Ekwen’s objection thereto, the Bank and the County stated
    that Ekwen’s last known address was a P.O. Box in Omaha.
    They stated, “We attempted service [of the complaint] by certi-
    fied mail on the defendant’s last known address, which accord-
    ing to Douglas County Treasury records, property records, was
    a PO Box [in Omaha], and still is, on those treasury records.”
    In order to comply with § 25-520.01, the Bank and the County
    were required to mail a copy of the published notice of the
    sheriff’s sale to Ekwen’s P.O. Box within 5 days after the first
    publication of notice, as that was his last known address. The
    Bank and the County were then required to file proof by affi-
    davit of the mailing of such notice within 10 days after mailing
    such notice.
    [8] The district court’s finding that the sale had been “con-
    ducted in all respects according to law” was in error. We
    determine that the district court should not have confirmed
    the sale when the facts showed that the Bank and the County
    - 222 -
    Nebraska Court of Appeals Advance Sheets
    30 Nebraska Appellate Reports
    OMAHA MUNICIPAL LAND BANK v. EKWEN
    Cite as 
    30 Neb. App. 209
    did not comply with the requirements of § 25-520.01 to mail
    a copy of the published notice of the sale to Ekwen at his last
    known address. Under § 25-1531, a court errs in confirm-
    ing a mortgage foreclosure sale when the facts show that the
    mortgagee did not comply with the notification requirements
    of § 25-520.01. KLH Retirement Planning v. Okwumuo, 
    263 Neb. 760
    , 
    642 N.W.2d 801
     (2002) (district court abused dis-
    cretion in confirming judicial sale under decree of foreclosure
    when facts showed bank did not comply with requirements
    of § 25-520.01). Accordingly, we reverse the district court’s
    decision to confirm the sale, and we remand the cause to the
    district court with directions to order another sale of the real
    property as provided by law.
    CONCLUSION
    For the reasons stated above, we affirm the district court’s
    decision not to vacate and set aside its previous order on the
    motion for service by publication and the decree of foreclosure.
    However, we reverse the district court’s decision to confirm
    the sale, and we remand the cause to the district court with
    directions to order another sale of the real property as provided
    by law.
    Affirmed in part, and in part reversed
    and remanded with directions.
    

Document Info

Docket Number: A-20-679

Citation Numbers: 30 Neb. Ct. App. 209

Filed Date: 10/12/2021

Precedential Status: Precedential

Modified Date: 11/2/2021