Nebraska Revised Statute 25-1531

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Chapter 25

25-1531.

Mortgage foreclosure; confirmation of sale; grounds for refusing to confirm; time; motion; notice.

If the court, upon the return of any writ of execution or order of sale for the satisfaction of which any lands and tenements have been sold, after having carefully examined the proceedings of the officer, is satisfied that the sale has in all respects been made in conformity to the provisions of this chapter and that the property was sold for fair value, under the circumstances and conditions of the sale, or that a subsequent sale would not realize a greater amount, the court shall enter upon the record an order that the court is satisfied of the legality of such sale, and an order that the officer make the purchaser a deed of such lands and tenements. Prior to the confirmation of sale pursuant to this section, the party seeking confirmation of sale shall, except in the circumstances described in section 40-103, provide notice to the debtor informing him or her of the homestead exemption procedure available pursuant to Chapter 40, article 1. The notice shall be given by certified mailing at least ten days prior to any hearing on confirmation of sale. The officer on making such sale may retain the purchase money in his or her hands until the court has examined his or her proceedings as aforesaid, when he or she shall pay the same to the person entitled thereto, agreeable to the order of the court. If such sale pertains to mortgaged premises being sold under foreclosure proceedings and the amount of such sale is less than the amount of the decree rendered in such proceedings, the court may refuse to confirm such sale, if, in its opinion, such mortgaged premises have a fair and reasonable value equal to or greater than the amount of the decree. The court shall in any case condition the confirmation of such sale upon such terms or under such conditions as may be just and equitable. The judge of any district court may confirm any sale at any time after such officer has made his or her return, on motion and ten days' notice to the adverse party or his or her attorney of record, if made in vacation, and such notice shall include information on the homestead exemption procedure available pursuant to Chapter 40, article 1. When any sale is confirmed in vacation the judge confirming the same shall cause his or her order to be entered on the record by the clerk. Upon application to the court by the judgment debtor within sixty days after the confirmation of any sale confirmed pursuant to this section, such sale shall be set aside if the court finds that the party seeking confirmation of sale failed to provide notice to the judgment debtor regarding homestead exemption procedures at least ten days prior to the confirmation of sale as required by this section.

Source

Annotations

  • 1. Adequacy of price

  • 2. Notice

  • 3. Confirmation

  • 4. Grounds for refusing to confirm

  • 5. Miscellaneous

  • 1. Adequacy of price

  • Confirmation of a mortgage foreclosure sale will not be reversed for inadequacy of price, in the absence of a showing of fraud, or shocking discrepancy between the value and sale price, or prospects of a higher bid on resale. Nebraska Federal Savings & Loan Assn. v. Patterson, 212 Neb. 29, 321 N.W.2d 71 (1982); Forsythe v. Bermel, 138 Neb. 802, 295 N.W. 693 (1941); Lincoln Nat. Life Ins. Co. v. Curry, 138 Neb. 741, 295 N.W. 282 (1940).

  • Confirmation of tax sale should be vacated during same term where sale price was inadequate. County of Scotts Bluff v. Bristol, 159 Neb. 634, 68 N.W.2d 197 (1955).

  • Where sale price is inadequate, it is duty of court to deny confirmation of execution sale. Ehlers v. Campbell, 147 Neb. 572, 23 N.W.2d 727 (1946).

  • Confirmation of sale should be reversed where plaintiff offers no positive evidence as to value and defendant's evidence shows sale price was far below the land's value. Federal Farm Mtg. Corp. v. Popham, 137 Neb. 529, 290 N.W. 423 (1940).

  • Inadequacy of price will not prevent confirmation of a sheriff's sale of land under a decree foreclosing a mortgage thereon, unless the price is so low as to shock the conscience of the court or to evidence fraud. Home Owners' Loan Corporation v. Smith, 135 Neb. 618, 283 N.W. 371 (1939); Conservative Savings & Loan Assn. v. Mancuso, 134 Neb. 779, 279 N.W. 725 (1938).

  • Mere inadequacy of price will not preclude a confirmation of a judicial sale, unless it is so inadequate as to shock the conscience of the court or amount to evidence of fraud. Department of Banking v. Modrow, 134 Neb. 336, 278 N.W. 559 (1938); Buchanan v. Rahmeyer, 134 Neb. 331, 278 N.W. 558 (1938); United States Nat. Bank of Omaha v. Pamp, 83 F.2d 493 (8th Cir. 1936).

  • On motion to confirm sale, a finding that a subsequent sale would not realize a greater amount is sufficient to sustain decree of confirmation without a further finding that said property sold for fair value. Erwin v. Brunke, 133 Neb. 745, 277 N.W. 48 (1938).

  • There are no restrictions upon the means by which the trial court may satisfy itself that a fair price was obtained. Occidental Bldg. & Loan Assn. v. Beal, 122 Neb. 40, 239 N.W. 202 (1931).

  • 2. Notice

  • Court should refuse to confirm sale upon proper objections, where it is evident sale was not conducted in substantial conformance with the notice and with decree. Farmers Security Bank of Maywood v. Wood, 132 Neb. 175, 271 N.W. 349 (1937).

  • Notice is not necessary to confirmation at chambers of administrator's sale to pay debts. Brusha v. Phipps, 86 Neb. 822, 126 N.W. 856 (1910).

  • Ten days' notice is jurisdictional to confirmation in vacation. Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W. 151 (1888).

  • 3. Confirmation

  • Confirmation of judicial sales rests largely within the discretion of the trial court and will not be reviewed except for manifest abuse of such discretion. Deutsche Bank Nat. Trust Co. v. Siegel, 279 Neb. 174, 777 N.W.2d 259 (2010).

  • Only matters which can be inquired into upon confirmation of sale are the steps which the law requires shall be had for satisfaction of the decree. Scotts Bluff County v. Frank, 144 Neb. 512, 13 N.W.2d 900 (1944).

  • A bid at an execution sale, made to be effective upon confirmation of sale and possession, is an unconditional bid, and is properly confirmed. Holferty v. Wortman, 135 Neb. 732, 283 N.W. 855 (1939).

  • Confirmation of a mortgage foreclosure sale of realty will not be disturbed unless there is such inadequacy of price as to show fraud or mistake. Lorenzen v. Stobbe, 134 Neb. 796, 279 N.W. 774 (1938).

  • Allowing bidder to increase bid on hearing for confirmation of mortgage foreclosure sale was not error, if owner is not injured. Gordon State Bank v. Hinchley, 117 Neb. 211, 220 N.W. 243 (1928).

  • Sale should be confirmed though order of sale was not returned within sixty days of issuance. Siwooganock Guaranty Sav. Bank v. Feltz, 84 Neb. 706, 121 N.W. 967 (1909).

  • Ordinarily duty is to confirm sale. Omaha Loan & Building Assn. v. Hendee, 77 Neb. 12, 108 N.W. 190 (1906); Strode v. Hoagland, 76 Neb. 542, 107 N.W. 754 (1906).

  • Interest runs until confirmation. Trompen v. Hammond, 61 Neb. 446, 85 N.W. 436 (1901).

  • Confirmation should be made by court only after careful examination of proceedings, and being satisfied that law has been complied with. Penn Mut. Life Ins. Co. v. Creighton Theatre Bldg. Co., 54 Neb. 228, 74 N.W. 583 (1898).

  • Adjudicates only regularity of proceedings by sheriff in levy, appraisement, advertising, making and returning sale. Best v. Zutavern, 53 Neb. 619, 74 N.W. 81 (1898).

  • Confirmation may be had at chambers. Beatrice Paper Co. v. Beloit Iron Works, 46 Neb. 900, 65 N.W. 1059 (1896).

  • Confirmation may be made at adjourned term. Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 281, 58 N.W. 695 (1894).

  • Confirmation cures all irregularities in proceedings. O'Brien v. Gaslin, 20 Neb. 347, 30 N.W. 274 (1886).

  • Conditional confirmation is unauthorized. Fitch & Co. v. Minshall, 15 Neb. 328, 18 N.W. 80 (1883).

  • Purchaser is bound by confirmation; entitled to order to compel sheriff to make deed and may be compelled to take same. Phillips v. Dawley, 1 Neb. 320 (1871).

  • At chambers, authority is limited to confirmation of sale; cannot grant writ of assistance. Hartsuff v. Huss, 2 Neb. Unof. 145, 95 N.W. 1070 (1901).

  • 4. Grounds for refusing to confirm

  • Defect of parties defendant was not ground for refusing confirmation of mortgage foreclosure sale. Prudential Ins. Co. v. Diefenbaugh, 129 Neb. 59, 260 N.W. 689 (1935).

  • Confirmation by judge who as attorney commenced foreclosure is void. Harrington v. Hayes County, 81 Neb. 231, 115 N.W. 773 (1908).

  • Confirmation does not validate void sale. Jenkins Land & Live Stock Co. v. Attwood, 80 Neb. 806, 115 N.W. 305 (1908).

  • 5. Miscellaneous

  • An appellate court reviews a court’s order confirming an execution sale or a judicial sale for abuse of discretion. Fox v. Whitbeck, 286 Neb. 134, 835 N.W.2d 638 (2013).

  • Unless a judgment creditor shows that a judgment debtor has fraudulently transferred real property to avoid creditors, the relevant question for the remedy of execution is whether the debtor has any interest in the property. Fox v. Whitbeck, 286 Neb. 134, 835 N.W.2d 638 (2013).

  • A court retains jurisdiction after confirmation of a judicial sale when there are special situations which have worked an injustice unknown to the complaining party, such as fraud, accident, or mistake. Travelers Indemnity Co. v. Heim, 223 Neb. 75, 388 N.W.2d 106 (1986).

  • Decree complied with requirements of the statute. Curyea v. Fry, 133 Neb. 894, 277 N.W. 598 (1938).

  • Amendatory act of 1915 was not unconstitutional; appraisal is no longer prerequisite to sale of land under execution of foreclosure decree. Conservative Savings & Loan Assn. v. Anderson, 116 Neb. 627, 218 N.W. 423 (1928); Norris v. Tower, 102 Neb. 434, 167 N.W. 728 (1918).

  • Court is vendor and may reject any bid or vacate any erroneous or improvident order. Prudential Real Estate Co. v. Hall, 79 Neb. 808, 116 N.W. 40 (1908).

  • Plaintiff is not entitled to proceeds until sale is confirmed. Craw v. Abrams, 68 Neb. 546, 94 N.W. 639 (1903), affirmed on rehearing 68 Neb. 553, 97 N.W. 296 (1903).

  • Finding that sale was conducted legally was substantial compliance with this section. Nebraska Land, Stock-Growing and Investment Co. v. Cutting, 51 Neb. 647, 71 N.W. 312 (1897).

  • Statute contemplates that officer making sale shall distribute proceeds. Fire Association of Philadelphia v. Ruby, 49 Neb. 584, 68 N.W. 939 (1896).

  • Must affirmatively appear that all statutory provisions have been complied with or sale is invalid. Gundry v. Brown, 1 Neb. Unof. 877, 96 N.W. 610 (1901).

  • Farm debtor was entitled to injunction restraining sheriff from executing writ of assistance, where debtor, after sale, filed petition for composition or extension. In re Kalina, 9 F.Supp. 170 (D. Neb. 1934).