Twin Towers Condo. Assn. v. Bel Fury Invest. Group
290 Neb. 329
| Neb. | 2015Background
- Bel Fury Investments (owner of Unit SCB in Twin Towers Condominium) stopped full payment of condominium assessments after heating/AC issues; Association recorded liens in Oct 2010 and sued to foreclose for unpaid assessments.
- The Association had been calculating assessments by square footage but the master deed/bylaws required apportionment by each unit’s pro rata share of the condominium’s basic value; the Association discovered and corrected the miscalculation (retroactive to 2009) during the litigation.
- The district court found the Association had a lien and entered judgment for $26,467.44, allowing the Association to foreclose if Bel Fury did not pay within 90 days; the court denied interest and attorney fees and dismissed Bel Fury’s counterclaim for damages.
- Bel Fury appealed, arguing (inter alia) the lien was invalid because assessments were levied improperly, notice/adequate-remedy defects existed, and the judgment was ineffective; the Association cross-appealed seeking attorney fees, interest, additional post-2013 assessments, and a more definite decree.
- The Nebraska Supreme Court held the Association’s temporary miscalculation did not void the lien, but remanded to award the Association mandatory attorney fees and costs, to include February–March 2013 assessments in the secured debt, and to supply a legal description for Unit SCB in the decree.
Issues
| Issue | Plaintiff's Argument (Bel Fury) | Defendant's Argument (Association) | Held |
|---|---|---|---|
| Validity of lien given miscalculated assessments | Lien invalid because assessments were levied by square footage and nonuniformly | Temporary miscalculation was corrected; lien valid if assessments ultimately levied according to governing documents | Held: Initial miscalculation did not invalidate lien; decree enforces assessments calculated by unit’s basic-value share |
| Notice & procedural adequacy | Association failed to give required notice of default/Notice to Cure | NCA §76-874 requires notice to other lienholders, not owner; foreclosure procedure proper | Held: No notice defect shown that voids lien; litigation had proceeded with opportunity to be heard |
| Adequate remedy at law / ability to foreclose without personal judgment | Foreclosure improper because money damages available | Statutory lien may be foreclosed like a mortgage without prior personal judgment | Held: Foreclosure permitted; holder of lien need not first obtain personal judgment |
| Entitlement to attorney fees & costs | Bel Fury sought fees under NCA for Association’s alleged failures | Association sought fees under §76-874(f) as prevailing party | Held: Association entitled to mandatory attorney fees and costs on remand; Bel Fury not entitled to fees |
Key Cases Cited
- Travelers Indem. Co. v. Heim, 218 Neb. 326 (statutory rule on appellate review in equity)
- Robertson v. Jacobs Cattle Co., 288 Neb. 846 (appellate de novo review for equity matters where appropriate)
- West Town Homeowners Assn. v. Schneider, 231 Neb. 100 (foreclosure enforces, not creates, a lien)
- Oronoque Shores Condo. Ass’n v. Smulley, 114 Conn. App. 233 (incorrect apportionment does not necessarily void an otherwise valid assessment)
- Walker Land & Cattle Co. v. Daub, 223 Neb. 343 (burden on party enforcing a lien to prove all essential facts)