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 tax-sale lien on property listed with Vitaly Ekwen as a named defendant; plaintiffs’ praecipe listed a P.O. Box for Ekwen and requested service by certified mail.
- Plaintiffs moved for service by publication (supported by an affidavit of Martin Barnhart that is not in the appellate record); the district court apparently granted publication and later entered a default-judgment decree of foreclosure.
- Sheriff’s process included a published notice of sale and a sheriff’s return showing the Bank and County purchased the property at auction; plaintiffs filed to confirm the sale.
- Ekwen objected, asking the court to vacate the service-by-publication order, the foreclosure decree, and the sheriff’s sale for lack of proper service and notice (arguing plaintiffs did not mail the published sale notice to his last known address).
- The district court found service by publication and the foreclosure decree valid and confirmed the sale; on appeal the Nebraska Court of Appeals affirmed the service/publication and foreclosure decree (due to record deficiencies) but reversed confirmation of the sale for failure to comply with the statutory mailing requirement and remanded for a new sale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service by publication / diligent investigation | Bank/County asserted they attempted certified mail and sought publication after inability to effect other service; district court ordered publication | Ekwen argued no reasonable diligence or personal-service attempts, Barnhart affidavit/order not in record, so no personal jurisdiction | Affirmed: appellate court refused to vacate service/publication and foreclosure decree because appellant failed to include the supporting affidavit and order in the record to rebut district court findings |
| Mailing of published notice of sheriff's sale (§ 25-520.01) and confirmation of sale | Plaintiffs relied on sheriff's return and argued publication occurred and that they lacked a known address requiring no mailing | Ekwen argued his P.O. Box (last known address) was known and plaintiffs thus were required to mail a copy of the published notice but did not | Reversed as to confirmation: court presumed sheriff published notice but held plaintiffs failed to comply with § 25-520.01 (mailing/proof) to the last known address; sale confirmation vacated and case remanded for a new sale |
Key Cases Cited
- Federal Farm Mtg. Corp. v. Popham, 137 Neb. 529, 290 N.W. 423 (Neb. 1940) (de novo review of order confirming judicial sale of real estate)
- Francisco v. Gonzalez, 301 Neb. 1045, 921 N.W.2d 350 (Neb. 2019) (mailing published notice to last known address is required; failure deprives court of personal jurisdiction)
- KLH Retirement Planning v. Okwumuo, 263 Neb. 760, 642 N.W.2d 801 (Neb. 2002) (sheriff’s sale after tax foreclosure governed by execution-sale statutes; sale confirmation requires compliance with § 25-520.01)
- Ginger Cove Common Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (Neb. 2017) (appellant must present record supporting assigned errors)
- In re Estate of Loder, 308 Neb. 210, 953 N.W.2d 541 (Neb. 2021) (statutory interpretation is a question of law reviewed de novo)