Neun v. Ewing
290 Neb. 963
| Neb. | 2015Background
- Paul and Crystal Neun owned property sold at a Douglas County tax sale on March 1, 2010; a tax sale certificate issued to Anne M. Determan.
- Determan filed a judicial foreclosure action under Neb. Rev. Stat. § 77-1902 in August 2013 seeking sale, interest, costs, and attorney fees; Neuns were served as defendants.
- On October 9, 2013, the Neuns attempted to redeem by tendering payment to the county treasurer under § 77-1824 (which does not require payment of costs/attorney fees); the treasurer refused and directed them to Determan.
- A dispute followed; the Neuns paid the amount required under § 77-1917 (which includes costs and attorney fees) to Determan, who then moved to dismiss her foreclosure action with prejudice and succeeded.
- The Neuns filed a separate mandamus action seeking (1) an order requiring the treasurer and Determan to accept redemption under § 77-1824, and (2) refund/applicability of amounts paid for costs and attorney fees. The district court granted summary judgment for the treasurer and dismissed Determan for failure to state a claim.
Issues
| Issue | Plaintiff's Argument (Neun) | Defendant's Argument (Treasurer / Determan) | Held |
|---|---|---|---|
| Whether a property owner may redeem under § 77-1824 after the holder files judicial foreclosure under § 77-1902 | § 77-1824 contains no express bar to redemption while foreclosure pending; owners can tender to treasurer at any time before deed delivery | Once holder elects judicial foreclosure under article 19 (§ 77-1902), redemption must follow article 19 procedures (§ 77-1917); § 77-1824 is in article 18 and is not available after foreclosure is commenced | Court held redemption under § 77-1824 is not available after a judicial foreclosure action is filed; redemption during foreclosure must follow § 77-1917 |
| Whether Determan is a proper defendant in mandamus and owed a duty to accept § 77-1824 redemption or refund costs/fees | Determan had a duty (argued as treasurer’s agent or holder who must honor § 77-1824 tender) and should be ordered to apply/refund payments | Determan, as private holder, has no ministerial duty to the Neuns enforceable by mandamus once she elected judicial foreclosure; Neuns’ claim implausible as a matter of law | Court dismissed Determan for failure to state a claim: no duty supporting mandamus because § 77-1824 was inapplicable once foreclosure was filed |
Key Cases Cited
- Brown v. Glebe, 213 Neb. 318, 328 N.W.2d 786 (1983) (article 18 and article 19 are distinct remedies; holder’s election to proceed under one governs rights)
- SID No. 424 v. Tristar Mgmt., 288 Neb. 425, 850 N.W.2d 745 (2014) (chapter 77, articles 18 and 19 are separate and noninterchangeable procedures for tax sale enforcement)
- INA Group v. Young, 271 Neb. 956, 716 N.W.2d 733 (2006) (tax sale certificate lapses if holder fails to act within statutory period)
- County of Seward v. Andelt, 251 Neb. 713, 559 N.W.2d 465 (1997) (timeliness limits for bringing judicial foreclosure under § 77-1902)
- KLH Retirement Planning v. Cejka, 3 Neb. App. 687, 530 N.W.2d 279 (1995) (Court of Appeals remanded on tender to treasurer but did not resolve whether § 77-1824 remains available during a pending foreclosure; Supreme Court disapproved any interpretation allowing § 77-1824 redemption after foreclosure was filed)