321 Neb. 409
Neb.2026Background
- American Exchange Bank sued the Topps for a deficiency judgment under guaranties securing loans to Topp’s Mechanical, after trustee sales of the Topps’ properties. 1
- The guaranties and trust deeds covered TMI’s notes and the Topps’ obligations, and the trust deeds named AEB as beneficiary. 2
- AEB conducted trustee sales of the Topps’ three properties and bought them for $310,000. 3
- At summary judgment, AEB argued the Topps had waived any fair-market-value defense, while the Topps sought credit for the properties’ fair market values under § 76-1013. 4
- The district court granted summary judgment for AEB, and the Topps appealed. 5
- The Nebraska Supreme Court reversed and remanded, with one justice dissenting. 6
- The Nebraska Supreme Court reversed and remanded, with one justice dissenting. 7
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 76-1013 apply to the Topps’ guaranties? 8 | AEB said § 76-1013 applies only to borrowers, not guarantors. | The Topps said their guarantied obligations were secured by the trust deeds. | Yes; the guarantied obligations were secured by the trust deeds. 9 |
| Is the fair-market-value waiver enforceable? 10 | AEB said the Topps validly waived the statutory defense. | The Topps said the waiver violates public policy. | No; the waiver is unenforceable. 11 |
| Did a fact issue exist on fair market value? 12 | AEB said assessed values and old appraisals were irrelevant. | The Topps said assessed values and appraisals showed higher value. | Yes; a genuine fact issue remained. 13 |
Key Cases Cited
- U.S. Specialty Ins. Co. v. D S Avionics, 320 Neb. 287, 26 N.W.3d 761 (Neb. 2025) (summary judgment is reviewed de novo 14)
- Boone River, LLC v. Miles, 318 Neb. 760, 18 N.W.3d 802 (Neb. 2025) (questions of law are reviewed independently 15)
- State ex rel. Douglas Cty. Sch. Dist. No. 66 v. Ewing, 319 Neb. 663, 24 N.W.3d 861 (Neb. 2025) (contract construction is reviewed as a question of law 16)
- Bruce Lavalleur, P.C. v. Guarantee Group, 314 Neb. 698, 992 N.W.2d 736 (Neb. 2023) (whether a contract violates public policy is a question of law 17)
- Mutual of Omaha Bank v. Murante, 285 Neb. 747, 829 N.W.2d 676 (Neb. 2013) (trust-deed antideficiency statute does not apply where the guaranty was not secured by the deed of trust 18)
- First Nat. Bank of Omaha v. Davey, 285 Neb. 835, 830 N.W.2d 63 (Neb. 2013) (trust deed trustee-sale procedures and deficiency rules under the Act 19)
- Pantano v. Maryland Plaza Partnership, 244 Neb. 499, 507 N.W.2d 484 (Neb. 1993) (no deficiency means the underlying obligation is satisfied 20)
- Sinu v. Concordia University, 313 Neb. 218, 983 N.W.2d 511 (Neb. 2023) (courts should be cautious before voiding contracts on public-policy grounds 21)
- Green Plains Trade Group v. Archer Daniels Midland Co., 320 Neb. 882, 31 N.W.3d 577 (Neb. 2026) (the Legislature declares state public policy through statutes 22)
- First Nat. Bank of York v. Critel, 251 Neb. 128, 555 N.W.2d 773 (Neb. 1996) (assessed value can be relevant circumstantial evidence of minimum market value 23)
- Estate of Block v. Estate of Becker, 313 Neb. 818, 986 N.W.2d 726 (Neb. 2023) (circumstantial evidence can prove facts and support reasonable inferences 24)