DESTINY 98 TD v. Miodowski
| Decision Date | 11 March 2005 |
| Docket Number | No. S-03-1393.,S-03-1393. |
| Citation | 693 N.W.2d 278,269 Neb. 427 |
| Parties | DESTINY 98 TD, appellee and cross-appellee, and Bel Fury Investments Group, L.L.C., appellant and cross-appellee, v. John J. MIODOWSKI et al., appellees, and Empire Title of Nebraska, Inc., intervenor-appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
Michael F. Kivett, James J. Bemis, Jr., and Betty L. Egan, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.
Jay A. Ferguson, Omaha, for intervenor-appellee Empire Title of Nebraska, Inc.
James H. Monahan, of Monahan & Monahan, Omaha, for appellees John J. Miodowski and Naomi Miodowski.
This appeal presents the issue of whether a party seeking confirmation of a judicial sale in a tax sale certificate foreclosure proceeding is required to give notice of statutory homestead exemption procedures pursuant to Neb.Rev.Stat. § 25-1531 (Reissue 1995). We conclude that there is no such requirement.
On March 1, 1999, Destiny 98 TD (Destiny 98) purchased Douglas County treasurer's certificate of tax sale No. 99-01220, representing a tax lien on Lot 7, Block 4, Burlington Place Addition, in Douglas County, Nebraska. On September 11, 2002, Destiny 98 filed an amended petition to foreclose liens represented by various tax sale certificates. John J. Miodowski and "____ Miodowski" were alleged to be the owners of the property and were named as defendants in the third cause of action, which pertained to the real property and tax sale certificate described above. On February 21, 2003, Destiny 98 filed a motion for judgment by default with respect to the third cause of action, alleging that the Miodowskis had been properly served with summons but had failed to respond with a timely responsive pleading. On March 7, the district court entered a default judgment and decree ordering a sheriff's sale of the property. Notice of the sale was published in The Daily Record, a legal newspaper in Douglas County, on June 27 and July 4, 11, and 18, 2003. At the sheriff's sale held on July 29, Bel Fury Investments Group, L.L.C. (Bel Fury), purchased the property for $6,360. On August 21, the district court confirmed the sale of the property and ordered that a sheriff's deed be delivered to Bel Fury. Subsequent to execution and delivery of a sheriff's deed dated September 3, 2003, Bel Fury filed a praecipe for writ of assistance.
Several days thereafter, Empire Title of Nebraska, Inc. (Empire Title), filed an ex parte application seeking to intervene in the proceeding and for other relief. In its application, Empire Title represented that it had served as trustee and closing agent in a refinancing of the Miodowski property in August 2003 and that it believed it had distributed funds to satisfy the tax liens represented by the tax sale certificates in foreclosure, but that through "error, omission or misunderstanding," this may not have occurred. The district court quashed the writ of assistance as it related to the property in question and scheduled an evidentiary hearing for October 1, 2003. On September 23, the Miodowskis filed an application to set aside the confirmation of the sale and the sheriff's deed based on Destiny 98's failure to provide them with a notice of homestead exemption pursuant to § 25-1531. Upon being granted leave to intervene during the hearing on October 1, Empire Title filed a motion to vacate confirmation of the sale on grounds that "the property was not sold in conformity to the provisions of Chapter 25 [of the Nebraska Revised Statutes] for fair value under the circumstances and conditions of the sale, and subsequent sale would realize a greater amount."
In an order entered on October 8, 2003, the district court ruled that § 25-1531 did not apply to proceedings to foreclose tax sale certificates pursuant to Neb.Rev.Stat. § 77-1902 (Reissue 2003) and denied the relief sought by the Miodowskis and Empire Title. However, after conducting a hearing on October 10, the court changed its ruling and concluded in an order entered on November 10 that § 25-1531 was applicable. The district court therefore vacated its prior order confirming the sale because the Miodowskis had not been given notice of the homestead exemption procedures in accordance with § 25-1531. A notice of redemption prior to confirmation accompanied by the payment of $7,198.86 to the clerk of the district court was then filed on behalf of the Miodowskis. In a separate order entered on November 26, the court denied Bel Fury's oral motion for attorney fees, stating that there was no statutory authority or recognized custom whereupon attorney fees would be allowable. Bel Fury then perfected this timely appeal, which we moved to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
Bel Fury assigns that the district court erred in (1) determining that § 25-1531 and Neb.Rev.Stat. § 40-103 (Reissue 2004) are applicable to the sale of real estate pursuant to the foreclosure of a tax sale certificate under Neb.Rev.Stat. § 77-1901 et seq. (Reissue 2003) and (2) determining that Bel Fury is not entitled to attorney fees.
On cross-appeal, Empire Title assigns that the court committed plain error by failing to find that (1) Destiny 98 did not personally serve the necessary parties with notice of publication of the sheriff's sale as statutorily required and (2) there was a shocking discrepancy in the sale price of the property.
Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. KLH Retirement Planning v. Okwumuo, 263 Neb. 760, 642 N.W.2d 801 (2002).
An appellate court will reverse a decision on a motion to vacate or modify a judgment only if the litigant shows that the district court abused its discretion. Roemer v. Maly, 248 Neb. 741, 539 N.W.2d 40 (1995).
In a tax sale certificate foreclosure proceeding, "final confirmation of sale may be had immediately after the sheriff's sale." § 77-1903(2). Section 77-1913 provides that upon a timely motion to confirm a sheriff's sale in a tax sale foreclosure proceeding, "[t]he court shall ... examine the proceedings and, if they are found to be correct ... make and enter an order of confirmation of the sale" and "direct the disposition of the proceeds of the sale and order the sheriff to make and deliver to the purchasers, without further cost to them, a sheriff's deed for any real estate not redeemed," subject to certain conditions not relevant here. Section 77-1917, which confers the right to redeem real property which is subject to a tax foreclosure "at any time after the decree of foreclosure and before the final confirmation of the sale," includes no reference to a homestead exemption.
Bel Fury argues that because the tax foreclosure statutes codified at chapter 77 of the Nebraska Revised Statutes do not require notice of a homestead exemption, there is no such requirement in a proceeding to foreclose a tax sale certificate. On the other hand, the Miodowskis and Empire Title argue that because § 77-1902 directs that a tax sale certificate foreclosure is to be conducted "in the same manner and with like effect as in the foreclosure of a real estate mortgage," except where §§ 77-1903 to 77-1917 specifically provide otherwise, the homestead exemption notice requirement set forth in § 25-1531 is applicable.
Bel Fury's argument that statutory procedures for the foreclosure of a tax sale certificate are "separate and distinct" from those governing mortgage foreclosures and execution sales ignores the plain language of §§ 77-1902 and 77-1912, which language establishes a partial linkage between tax foreclosure and mortgage foreclosure procedures. For example, in KLH Retirement Planning v. Okwumuo, 263 Neb. 760, 642 N.W.2d 801 (2002), which was commenced as a tax foreclosure proceeding, we construed...
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