First Neb. Ed. Credit Union v. U.S. Bancorp
293 Neb. 308
| Neb. | 2016Background
- Jack and Vickie Cotton owned Sarpy County real estate; U.S. Bank recorded a senior deed of trust on Feb. 10, 2006.
- On April 2, 2007, the Cottons executed a junior note and deed of trust to First Nebraska Educators Credit Union (First Nebraska); that deed was recorded April 5, 2007.
- First Nebraska’s deed contained boilerplate/request-for-notice language asking to be mailed copies of any notice of default and sale, but many required fields (recording date, book/page reference) were left blank.
- U.S. Bank’s trustee recorded a notice of default May 17, 2009, and foreclosed by trustee’s sale Sept. 21, 2009; First Nebraska did not receive notice and its junior lien was extinguished by the sale.
- First Nebraska sued U.S. Bank for failure to provide notice under Neb. Rev. Stat. § 76-1008 and sought damages; the district court granted U.S. Bank’s motion to dismiss for failure to state a claim.
- First Nebraska appealed, arguing its request-for-notice language in its own trust deed satisfied § 76-1008(3) and/or substituted for a § 76-1008(1) recorded request as to U.S. Bank’s senior deed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether U.S. Bank had to mail notice of default and sale to First Nebraska under § 76-1008 | First Nebraska argued its request-for-notice language in its own trust deed satisfied § 76-1008(3) and thereby required notice as if a separate § 76-1008(1) request had been filed | U.S. Bank argued § 76-1008(3) requires that the request appear in the same trust deed being foreclosed and does not grant notice rights to non-parties to that deed; only a proper § 76-1008(1) recorded request entitles a non-party to notice | Court held U.S. Bank had no obligation to mail notice to First Nebraska: § 76-1008(3) applies to parties to the particular trust deed, and First Nebraska’s deed language did not comply with § 76-1008(1)’s required content |
Key Cases Cited
- First Nat. Bank of Omaha v. Davey, 285 Neb. 835 (statutory construction of trust-deed notice requirements)
- SID No. 1 v. Adamy, 289 Neb. 913 (procedural standards for pleading and appeals)
- Stick v. City of Omaha, 289 Neb. 752 (statutory interpretation principles)
- Hauxwell v. Henning, 291 Neb. 1 (statutory construction under Nebraska Trust Deeds Act)
- DMK Biodiesel v. McCoy, 290 Neb. 286 (ordinary meaning of statutory language)