Mutual of Omaha Bank v. Murante, 285 Neb. 747

Sutherlands Plaza, L.L.C. development in Omaha; Mutual of Omaha Bank lent four notes secured by four deeds of trust on borrower real estate.
Murante executed a commercial guaranty (Oct 31, 2005) guaranteeing Sutherlands’ debt to Mutual, independent of the borrower’s obligations.
Default occurred in 2010; Mutual accelerated; Sutherlands filed bankruptcy; Murante was served with default and acceleration notices but did not pay.
Trustee’s sale of the encumbered real estate occurred in 2011; Mutual bid $1,658,000 and acquired the property by trustee’s deed.
Murante sued to avoid deficiency exposure under § 76-1013; the district court granted Mutual summary judgment for the full amount less the bid; Murante appealed and the case was expressly bypassed to the Nebraska Supreme Court.
Supreme Court held the Trust Deeds Act § 76-1013 does not apply to actions against guarantors on a guaranty, affirming the district court’s judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 76-1013 applies to guaranty actions.	Murante contends guaranty falls under § 76-1013.	Mutual argues guaranty is outside § 76-1013 because the guaranty is an independent contract not secured by a deed of trust.	No; § 76-1013 does not apply to guaranties.
Whether the guaranty liability is extinguished by deficiency limitations for the deed of trust.	Murante seeks credit for fair market value under the Act.	Mutual contends the Act does not limit guarantor liability; no deficiency action against Murante.	Act does not limit guarantor liability; no deficiency credit required.
Whether the district court abused its discretion in denying amendment and granting summary judgment.	Murante sought amendment based on § 76-1013.	Mutual contends amendment would be futile given the § 76-1013 ruling.	No abuse; district court properly denied amendment and granted summary judgment.

Sports Courts of Omaha v. Meginnis, 242 Neb. 768 (Neb. 1993) (deficiency action within 3 months after trustee’s sale when deed of trust used)
Boxum v. Munce, 16 Neb. App. 731 (Neb. App. 2008) (guaranty not subject to § 76-1013 when guaranty not secured by deed of trust)
Builders Supply Co. v. Czerwinski, 275 Neb. 622 (Neb. 2008) (guaranty is an independent contract; interpret under general contract rules)
In re Interest of Erick M., 284 Neb. 340 (Neb. 2012) (plain statutory language governs; avoid extrinsic interpretation)
Department of Banking v. Keeley, 183 Neb. 370 (Neb. 1968) (quoting rule on guaranty defenses and defenses of debtor are separate from guarantor)