Omaha Municipal Land Bank v. Ekwen
30 Neb. Ct. App. 209
| Neb. Ct. App. | 2021Background
- Omaha Municipal Land Bank and Douglas County sued to foreclose a 2014 tax-sale lien on real property listed with defendant Vitaly Ekwen among the named parties.
- Plaintiffs attempted certified-mail service to a listed P.O. Box, then moved for service by publication; the district court apparently granted publication (supporting affidavit and order not included in the record on appeal).
- The court entered default judgment and a decree of foreclosure after no answer was filed; plaintiffs procured an order of sale and the sheriff conducted a published sale, with the Bank and County as purchasers.
- Ekwen objected to confirmation, arguing (1) service by publication was improper because plaintiffs did not attempt personal service with reasonable diligence, and (2) plaintiffs failed to mail him the required copy of the published sale notice to his last-known address before the sheriff’s sale.
- The district court denied relief, finding the publication and foreclosure were lawful and then confirmed the sheriff’s sale; on appeal the court affirmed the service-by-publication and foreclosure decree but reversed confirmation of the sale for failure to comply with mailing requirements and remanded for a new sale.
Issues
| Issue | Plaintiff's Argument (Bank/County) | Defendant's Argument (Ekwen) | Held |
|---|---|---|---|
| Whether the court properly allowed service by publication (diligent inquiry requirement) | Plaintiffs alleged inability to serve by other means and submitted affidavit; publication was therefore proper | Publication was improper because plaintiffs did not attempt personal service with reasonable diligence and did not genuinely try to locate him | Affirmed: appellate record lacked the affidavits/entries to overturn the service-by-publication order; appellant failed to supply record showing error |
| Whether plaintiffs mailed a copy of the published notice of sale to defendant’s last-known address as required by § 25-520.01 (notice of execution sale) | Plaintiffs argued defendant’s address was not "known," so mailing was not required after failed certified-mail attempt | Ekwen argued plaintiffs knew his P.O. Box (and property address) and thus were required to mail the published sale notice to that last-known address | Reversed as to confirmation: court found plaintiffs did not comply with § 25-520.01 and thus sale confirmation erred; remanded for another sale |
Key Cases Cited
- Federal Farm Mtg. Corporation v. Popham, 137 Neb. 529, 290 N.W. 423 (1940) (order confirming judicial sale reviewed de novo)
- In re Estate of Loder, 308 Neb. 210, 953 N.W.2d 541 (2021) (statutory interpretation is a question of law reviewed independently)
- Francisco v. Gonzalez, 301 Neb. 1045, 921 N.W.2d 350 (2019) (§ 25-520.01 requires mailing published notice to last-known address; failure deprives court of personal jurisdiction)
- KLH Retirement Planning v. Okwumuo, 263 Neb. 760, 642 N.W.2d 801 (2002) (sale under tax lien governed by execution-sale rules; failure to comply with § 25-520.01 bars confirmation)
- Ginger Cove Common Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (2017) (appellant must present record supporting assigned errors)