First Nat. Bank North Platte v. Cardenas , 299 Neb. 497 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FIRST NAT. BANK NORTH PLATTE v. CARDENAS
Cite as 299 Neb. 497
First National Bank North Platte, a national banking
association, appellee, v. Jose A. Cardenas and
Christina Cardenas, husband and wife, and
Joya de A ndalucia Farms, LLC, a Nebraska
limited liability company, appellants.
___ N.W.2d ___
Filed March 30, 2018. No. S-17-360.
1. Verdicts: Juries: Appeal and Error. An appellate court will set aside
a jury verdict because of insufficient evidence only if the verdict is
clearly wrong.
2. Verdicts: Appeal and Error. In determining the sufficiency of the evi-
dence to sustain a verdict in a civil case, an appellate court considers the
evidence most favorably to the successful party and resolves evidential
conflicts in favor of such party, who is entitled to every reasonable
inference deducible from the evidence.
3. ____: ____. A jury verdict will be upheld if there is competent evidence
presented to the jury upon which it could reasonably find for the suc-
cessful party.
4. Jury Instructions: Appeal and Error. Whether a jury instruction
is correct is a question of law, which an appellate court indepen-
dently decides.
5. Motions for New Trial: Damages: Appeal and Error. Pursuant to
Neb. Rev. Stat. § 25-1912.02(2) (Reissue 2016), when an action has
been tried before a jury, a motion for a new trial shall be a prerequi-
site to obtaining appellate review of the issue of inadequate or exces-
sive damages.
6. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have
the jury instructed upon only those theories of the case which are
presented by the pleadings and which are supported by competent
evidence.
7. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an
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FIRST NAT. BANK NORTH PLATTE v. CARDENAS
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appellant has the burden to show that (1) the tendered instruction is a
correct statement of the law, (2) the tendered instruction was warranted
by the evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction.
8. Jury Instructions: Appeal and Error. It is not error for a trial court to
refuse a requested instruction if the substance of the proposed instruc-
tion is contained in those instructions actually given.
9. ____: ____. If the instructions given, which are taken as a whole, cor-
rectly state the law, are not misleading, and adequately cover the issues
submissible to a jury, there is no prejudicial error concerning the instruc-
tions and necessitating a reversal.
10. Statutes: Intent. When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language, understood
in context.
11. ____: ____. A court ascertains the meaning of a statute by reading it
in pari materia, in light of the broader structure of the relevant act and
related statutes.
12. Juries: Verdicts: Presumptions. Because a general verdict does not
specify the basis for an award, Nebraska law presumes that the winning
party prevailed on all issues presented to the jury.
Appeal from the District Court for Lincoln County: Donald
E. Rowlands, Judge. Affirmed.
Luke T. Deaver and Taylor A. L’Heureux, of DeWald Deaver,
P.C., L.L.O., for appellants.
David W. Pederson and Matthew D. Pederson, of Pederson
& Troshynski, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
Cassel, J.
I. INTRODUCTION
After a bank lender exercised powers of sale under deeds
of trust, it sought to recover a deficiency owed by the borrow-
ers. The borrowers appeal from a jury verdict in favor of the
bank. Because the borrowers failed to move for a new trial,
we cannot review their assertion that excessive damages were
awarded, but we examine and reject their argument that the
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FIRST NAT. BANK NORTH PLATTE v. CARDENAS
Cite as 299 Neb. 497
evidence was insufficient to support the jury’s verdict. We also
find no error in the trial court’s refusal to give the borrowers’
requested jury instructions. Accordingly, we affirm.
II. BACKGROUND
1. Move to North Platte
In 2006, Jose A. Cardenas and Christina Cardenas moved
to North Platte, Nebraska, where Jose began working as a
neurologist. Jose and Christina purchased 127 acres of land
on which to build a house. They obtained a loan from First
National Bank North Platte (FNBNP) for the purchase of the
land. The 127 acres were ultimately divided into three parcels:
a 57-acre tract (the pasture tract), a 20-acre tract (the house
tract), and a 50-acre tract (the barn tract). After purchasing the
land, Jose and Christina obtained a loan from FNBNP for the
construction of their house.
Christina purchased two Andalusian horses. She planned to
provide horse riding and polo lessons and to operate a horse
breeding business. Jose and Christina formed a Nebraska lim-
ited liability company to conduct their horse business (the LLC).
Christina was the sole member of the LLC. Jose, Christina,
and the LLC (collectively the Cardenases) constructed on
their property a barn, indoor stable, and horse breeding area,
financed by FNBNP. The Cardenases also financed the pur-
chase of Andalusian breeding stallions and a horse trailer.
The Cardenases obtained multiple loans from FNBNP, which
were refinanced multiple times. These promissory notes were
secured by a variety of collateral, including their real property
through several deeds of trust.1 The details of these notes and
deeds of trust will be expanded later in this opinion.
2. Move to K entucky
The LLC never became profitable. The Cardenases’ tax
returns showed a loss from the LLC of over $100,000 most
1
See Neb. Rev. Stat. §§ 76-1001 to 76-1018 (Reissue 2009) (Nebraska
Trust Deeds Act).
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FIRST NAT. BANK NORTH PLATTE v. CARDENAS
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years. Jose’s annual income as a neurologist increased to
over $400,000.
In 2012, Jose and Christina moved from Nebraska to
Kentucky. They decided that the climate in Nebraska was not
conducive to the Andalusian breed of horses and that the LLC
was unlikely to be successful in Nebraska. Jose was able to
obtain employment as a neurologist in Kentucky.
The Cardenases listed for sale all of their real property—
the house tract, the barn tract, and the pasture tract—for
$855,000. After receiving no written offers, they relisted the
house tract and the barn tract (not including the pasture tract)
for $774,000. The Cardenases received only one offer for the
property at $300,000, which they did not accept.
3. FNBNP Trustee’s Sales
In February 2013, the president of FNBNP demanded that
the Cardenases pay their loans in full within 10 days due to
their failure to make installment payments. As a statutory pre-
requisite to exercising its power of sale under the trust deeds
that secured the Cardenases’ real property, FNBNP sent them
a notice of default in March. This first notice of default per-
tained to the trust deeds securing the house tract. It provided
the Cardenases 1 month to cure the default by repaying their
debt in full. In May, FNBNP sent a second notice of default
to the Cardenases with regard to the trust deeds securing the
barn tract and the pasture tract, giving them 2 months to cure
the default.
In May 2013, FNBNP exercised its power of sale as trustee
under the trust deed and sold the house tract at auction. The
bank bid $380,000 and was the only bidder. The bank issued
itself a trustee’s deed from the sale.
In September 2013, FNBNP sold the barn tract and the
pasture tract. The bank purchased the property at auction for
$100,000.
4. Litigation Ensues
In April 2013, FNBNP filed a replevin action in Kentucky
to recover horses and other personal property collateral that
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FIRST NAT. BANK NORTH PLATTE v. CARDENAS
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had been moved to Kentucky. In August, the Kentucky court
granted FNBNP’s motion for summary judgment, based on
three of the loans from FNBNP to the Cardenases, in the
amount of $476,612.02.
In July 2013, following the trustee’s sale of the house tract,
FNBNP filed a deficiency action against the Cardenases in the
district court for Lincoln County, Nebraska. In September, after
the remaining property was sold separately by trustee’s sale,
FNBNP filed a second deficiency action. The two cases were
consolidated prior to trial.
The consolidated cases were tried to a jury. The jury returned
a verdict for FNBNP in the amount of $171,162.66—the
amount it had requested. The district court entered judgment
in accordance with the jury verdict. The Cardenases did not
file a motion for new trial, but they filed a timely appeal from
the judgment.
III. ASSIGNMENTS OF ERROR
The Cardenases assign that the district court erred by (1)
“awarding an excessive verdict for [FNBNP] that was unsup-
ported by the evidence” and (2) refusing their requested jury
instructions on (a) FNBNP’s duty to comply with the Farm
Mediation Act,2 (b) FNBNP’s failure to comply with § 76-1012
and the terms under the deed of trust by denying the Cardenases
their right to cure the defaults, and (c) whether FNBNP “bid
the fair market value of each of the properties at both of the
foreclosure sales as required under . . . § 76-1013.”
IV. STANDARD OF REVIEW
[1-3] An appellate court will set aside a jury verdict because
of insufficient evidence only if the verdict is clearly wrong.3
In determining the sufficiency of the evidence to sustain a ver-
dict in a civil case, an appellate court considers the evidence
2
See Neb. Rev. Stat. §§ 2-4801 to 2-4815 (Reissue 2012).
3
See ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896
N.W.2d 156 (2017).
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most favorably to the successful party and resolves evidential
conflicts in favor of such party, who is entitled to every rea-
sonable inference deducible from the evidence.4 A jury verdict
will be upheld if there is competent evidence presented to
the jury upon which it could reasonably find for the success-
ful party.5
[4] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides.6
V. ANALYSIS
1. Sufficiency of Evidence to
Support A mount of Damages
The Cardenases assign that the district court “erred in
awarding an excessive verdict for [FNBNP] that was unsup-
ported by the evidence.” They argue that FNBNP’s calculation
of the amount they still owed was inaccurate because it failed
to offset the second trustee’s sale in the amount of $100,000.
However, the Cardenases’ failure to file a motion for new trial
precludes review for excessive damages and limits our exami-
nation to the sufficiency of the evidence. As we explain below,
the evidence was sufficient.
(a) Additional Facts
At trial, FNBNP introduced into evidence the five different
notes signed by the Cardenases on which it based its claims.
It presented multiple bank records showing amounts still
owing. Jose admitted that they could not keep up with pay-
ments and did not make any payments after February 2013.
FNBNP presented the testimony of multiple bank employees
who stated that the amount due and owing after the trustee’s
sales, calculated with interest as of the time of trial, was
$171,162.66.
4
Pierce v. Landmark Mgmt. Group, 293 Neb. 890, 880 N.W.2d 885 (2016).
5
See ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 3.
6
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
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FIRST NAT. BANK NORTH PLATTE v. CARDENAS
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After the jury returned a verdict in favor of FNBNP, the
court entered judgment accordingly. The Cardenases did not
move for a new trial.
(b) Application
[5] Neb. Rev. Stat. § 25-1912.01(2) (Reissue 2016) provides:
When an action has been tried before a jury a motion
for a new trial shall not be a prerequisite to obtaining
appellate review of the sufficiency of the evidence, but a
motion for a new trial shall be a prerequisite to obtain-
ing appellate review of the issue of inadequate or exces-
sive damages.
(Emphasis supplied.) The Cardenases’ first assignment of error
melds a claim of insufficient evidence with one that dam-
ages were excessive. Because “a motion for a new trial [is]
a prerequisite to obtaining appellate review of the issue of
. . . excessive damages,”7 that issue is not properly before us.
Thus, we review only the sufficiency of the evidence to sup-
port the jury’s verdict in favor of FNBNP.
There was undoubtedly sufficient evidence upon which the
jury could find in favor of FNBNP. The Cardenases did not
dispute that they borrowed money from FNBNP. They did not
dispute that they failed to pay those loans. What they disputed
was the amount still due. Viewing the evidence in the light
most favorable to FNBNP and giving it the benefit of every
reasonable inference deducible from the evidence, FNBNP
clearly presented sufficient evidence upon which the jury could
have reasonably found that a deficiency was still owed by the
Cardenases after the trustee’s sale. Under our clear error stan-
dard of review, this assignment of error fails.
For the sake of completeness, we note the Cardenases’
argument relies upon a misunderstanding. The $100,000
from the second trustee’s sale, which the Cardenases claim
is unaccounted for in FNBNP’s requested damages, was in
7
§ 25-1912.01(2).
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fact credited to the accounts of two of the notes on which the
Kentucky court granted judgment. After $6,000 was withheld
for estimated sales expenses, a $47,000 credit for the sale was
included on the accounts of each of these two notes. Thus, the
$100,000 from the second trustee’s sale has been credited in
partial satisfaction of the Kentucky judgment. FNBNP did not
reduce its calculation of the amount it was due in the Nebraska
deficiency action by $100,000, because it had already reduced
its calculation by the amounts owed on the notes subject to
judgment from the Kentucky litigation, which notes those pro-
ceeds were credited toward.
2. Jury Instructions
The Cardenases’ remaining assignments of error all address
jury instructions that they proposed and the district court
refused. The legal rules governing these assignments are well
settled, and as they apply to all three assignments, we begin by
recalling them.
[6-9] A litigant is entitled to have the jury instructed upon
only those theories of the case which are presented by the
pleadings and which are supported by competent evidence.8
To establish reversible error from a court’s failure to give
a requested jury instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction.9 It is not error for a
trial court to refuse a requested instruction if the substance
of the proposed instruction is contained in those instructions
actually given.10 If the instructions given, which are taken
as a whole, correctly state the law, are not misleading, and
adequately cover the issues submissible to a jury, there is no
8
Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).
9
Id.
10
Id.
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prejudicial error concerning the instructions and necessitating
a reversal.11
(a) Farm Mediation Act
The Cardenases assign that the district court “erred by fail-
ing to instruct the jury on [FNBNP’s] duty to comply with
the Farm Mediation Act.” Specifically, they claim that the
court should have given the jury their requested instruction on
FNBNP’s alleged failure to provide them notice of the avail-
ability of mediation as required by § 2-4807(1).
However, Jose and Christina do not meet the statutory
definition of “[b]orrower”12 for purposes of § 2-4807(1). And
only three notes were in the record on which the LLC was a
borrower. These three notes were subject to judgment from
the litigation in Kentucky, but were not the basis of the defi-
ciency judgment sought by FNBNP in the case before us. Thus,
the evidence did not support the giving of the Cardenases’
requested jury instruction.
(i) Additional Facts
The Cardenases refinanced multiple times their loans for the
land, residence, barn, horses, and other expenses and equip-
ment. There were approximately 31 separate notes between the
Cardenases and FNBNP. These notes were secured by a variety
of collateral, including the Cardenases’ real property, which
was secured by various deeds of trust. However, FNBNP’s
complaints and the evidence presented at trial identify five
outstanding loans:
• note No. xxx243, a $399,000 note executed on January 25,
2008, on which Jose was the sole borrower;
• 
note No. xxx521, a $215,700 note executed on January
2, 2009, which was a Small Business Administration loan
made to the LLC with separate guarantees by Jose and
Christina;
11
Id.
12
See § 2-4802(2).
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• note No. xxx541, a $110,000 note executed on January
2, 2009, which was also a Small Business Administration
loan made to the LLC with separate guarantees by Jose and
Christina;
• note No. xxx332, a $118,977 note executed on January 13,
2009, which listed Jose and Christina as borrowers; and
• note No. xxx261, a $174,305 note executed on November 30,
2010, which listed the Cardenases as borrowers.
FNBNP’s complaints state that as a result of the Kentucky
litigation, they received summary judgment on notes Nos.
xxx521, xxx541, and xxx261. Its complaints and testimony at
trial were that the $171,162.66 it claimed was owed it by the
Cardenases was based on the amount due on note No. xxx332,
plus accrued interest. The borrowers on that note were Jose
and Christina only.
At trial, FNBNP introduced tax returns from the Cardenases.
The gross income of the LLC was never greater than the gross
income from Jose’s wages.
The Cardenases requested that the court instruct the jury
that the failure to provide notice of the availability of media-
tion pursuant to § 2-4807 of the Farm Mediation Act was
an affirmative defense. The court did not give this requested
instruction, but instead told the jury that it must accept as true
the court’s legal conclusion that FNBNP “was not required to
participate in mediation with the [Cardenases] under the Farm
Mediation Act.”
(ii) Application
The Farm Mediation Act at § 2-4807(1) provides:
At least thirty days prior to the initiation of a proceeding
on an agricultural debt in excess of forty thousand dol-
lars, a creditor, except as provided in subsection (2) or (3)
of this section, shall provide written notice directly to the
borrower of the availability of mediation and the address
and telephone number of the farm mediation service in
the service area of the borrower.
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“Creditor” is defined as “any individual, organization, coop-
erative, partnership, limited liability company, trust, or state
or federally chartered corporation to whom an agricultural
loan is owed.”13 “Borrower” is defined as “an individual, lim-
ited liability company, corporation, trust, cooperative, joint
venture, or other entity entitled to contract who is engaged in
farming or ranching, who derives more than fifty percent of
his or her gross income from farming or ranching, and who
holds an agricultural loan.”14 Section 2-4802 does not define
“agricultural loan” or “agricultural debt.”
While creditors subject to § 2-4807 are required to provide
notice of the availability of mediation, participation in media-
tion is optional. The Farm Mediation Act at § 2-4808(2) pro-
vides in part:
The parties shall not be required to attend any mediation
meetings under this section, and failure to attend any
mediation meetings or to participate in mediation under
this section shall not affect the rights of any party in
any manner. Participation in mediation under this section
shall not be a prerequisite or a bar to the institution of or
prosecution of legal proceedings by any party.
We have never held that the failure to provide notice of
the availability of mediation as required by § 2-4807(1) is
an affirmative defense to enforcement of agricultural debt
subject to this notice requirement. And we need not, and
do not, reach this question here, because we conclude that
the instruction requested by the Cardenases was not war-
ranted by the evidence. We also do not address whether Jose
and Christina were “engaged in farming or ranching” with
the LLC.15
FNBNP sought a deficiency judgment on the amount owed
on note No. xxx332. Thus, that note is the relevant “debt”
13
§ 2-4802(3).
14
§ 2-4802(2).
15
See id.
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in this “proceeding” for purposes of § 2-4807. Jose and
Christina—not the LLC—were the borrowers on this note.
Jose and Christina, with or without the inclusion of the gross
income from the LLC, do not meet the definition of borrower
for purposes of § 2-4807(1), because they do not “derive[]
more than fifty percent of [their] gross income from farming
or ranching.”16
Because Jose and Christina were not borrowers for purposes
of the notice requirement of § 2-4807(1), the Cardenases’
requested jury instruction was not warranted by the evidence.
Thus, it was not error for the trial court to refuse to give this
instruction. If the Cardenases wanted to raise the failure of
FNBNP to provide notice as required by § 2-4807(1) before
seeking to enforce those notes on which the LLC was a bor-
rower, they should have done so in the Kentucky litigation.
This assignment of error lacks merit.
(b) Right to Cure
The Cardenases argue that the district court erred by refus-
ing to give their proposed jury instructions on the affirma-
tive defense that FNBNP refused to allow them to cure their
default. We conclude that the Cardenases’ requested instruc-
tions were not correct statements of law and that they were not
warranted by the evidence.
(i) Additional Facts
Many of the notes and trust deeds contained acceleration
clauses allowing FNBNP, in the event of a default, to declare
immediately due the entire amount owed. The first notice of
default stated that FNBNP as trustee “has elected to and does
declare the entire unpaid principal balance, together with the
interest thereon, immediately due and payable.” The second
notice of default provided a section entitled “Notice of Right
to Cure Default,” which provided 2 months to cure the default
16
See id.
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and notified the Cardenases of the amount of the entire prin-
cipal and the amount of principal that would not be due had
there been no default.
At trial, Christina admitted that she and Jose did not tender
or offer to tender money to cure the default.
The Cardenases’ first requested instruction addressing the
first notice of default read:
The [Cardenases] raised an affirmative defense that
[FNBNP] failed to comply with the Nebraska Trust Deeds
Act by failing and refusing to allow [the Cardenases] their
right to cure the default in the Notice of Default filed on
March 11, 2013.
In connection with this affirmative defense, the
[Cardenases] have the burden of proving, by the greater
weight of the evidence, each and all of the following:
1. That [FNBNP] failed to comply with the Nebraska
Trust Deeds Act by allowing [the Cardenases] to cure
the default in the Notice of Default filed on March 11,
2013; and
2. That the [Cardenases] were willing and able to
exercise their right [to] cure the default in the Notice of
Default filed on March 11, 2013 had [FNBNP] allowed
them to do so.
If [the Cardenases] have met this burden of proof, then
[FNBNP] is barred from recovery of any alleged dam-
ages on its deficiency action and your verdict must be for
[the Cardenases].
The requested jury instruction with regard to the second notice
of default was identical other than the date of the notice.
The district court did not give these requested instructions.
Instead, the court instructed the jury that it must accept the
court’s legal conclusion that “[FNBNP] as trustee of the deeds
of trust filed notices of default pursuant to Nebraska law, and
served those notices of default on all parties as required by
Nebraska law.”
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(ii) Application
a. Not Correct Statement of Law
or Warranted by Evidence
First, we note that the requested instructions stated that
FNBNP’s refusal to allow the Cardenases to cure their default
was a violation of the Nebraska Trust Deeds Act (the Act).
But the Cardenases’ assignment of error and brief argue that
this also violated the terms of the deeds of trust. However,
because the Cardenases did not request a jury instruction about
a violation of the terms of the trust deed, we will consider this
assignment of error only as it relates to the claimed violation
of the Act.
The Act authorizes a trust deed to be used as a security
device and provides that real property can be conveyed by
trust deed to a trustee as a means to secure the performance
of an obligation.17 The Act includes detailed procedures that,
in the event of a breach of the underlying obligation, permit
the trust property to be sold without the involvement of any
court.18 Specifically, the Act allows a trust deed to expressly
confer upon a trustee the power of sale.19 Pursuant to this
power of sale, a trustee can sell the property conveyed by
a trust deed without any court’s authorization or direction,
though the trustee must comply with procedural requirements
contained in the Act.20 Because the Act allows the property
securing an obligation to be sold without the judicial involve-
ment that would be required to foreclose upon a mortgage, the
proceedings surrounding a trustee’s sale pursuant to the Act
are sometimes referred to as “‘nonjudicial foreclosure’” or
“‘trustee foreclosure.’”21
17
See First Nat. Bank of Omaha v. Davey, 285 Neb. 835, 830 N.W.2d 63
(2013).
18
Id.
19
Id.
20
Id.
21
Id. at 838, 830 N.W.2d at 66.
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The Act includes detailed requirements that a trustee must
satisfy prior to exercising the power of sale in a trust deed.
A trustee must file with the county register of deeds a notice
of default identifying the trust deed, stating that a breach of
the obligation secured by the trust deed has occurred, setting
forth the nature of the breach, and stating its election to sell
the property to satisfy the obligation.22 A notice of default with
regard to property used in farming operations has additional
requirements, including a 2-month period to cure the default
and that the trustee provide “[a] statement of the amount of
the unpaid principal which would not then be due had no
default occurred.”23
Although § 76-1006 imposes the requirement for notices of
default, § 76-1012 provides the means by which a trustor may
cure the default of an obligation secured by a trust deed. It
states, in relevant part:
Whenever all or a portion of the principal sum of any
obligation secured by a trust deed has . . . become due
or been declared due by reason of . . . a default in the
payment . . . of any installment of principal . . . the
trustor . . . may pay to the beneficiary . . . the entire
amount then due under the terms of such trust deed and
the obligation secured thereby . . . other than such por-
tion of the principal as would not then be due had no
default occurred, and thereby cure the default theretofore
existing and thereupon all proceedings theretofore had
or instituted shall be dismissed or discontinued, and the
obligation and trust deed shall be reinstated and shall be
and remain in force and effect the same as if no accelera-
tion had occurred.24
22
§ 76-1006(1). See, also, 24th & Dodge Ltd. Part. v. Acceptance Ins. Co.,
269 Neb. 31, 690 N.W.2d 769 (2005); Gilroy v. Ryberg, 266 Neb. 617, 667
N.W.2d 544 (2003).
23
§ 76-1006(2).
24
§ 76-1012(1).
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The Cardenases’ requested jury instructions were not cor-
rect statements of law, because they required the Cardenases
to prove only that they “were willing and able to exercise their
right [to] cure the default.” But § 76-1012 provides that in
order to cure a default, the trustor must “pay to the beneficiary
. . . the entire amount then due.” Thus, a default must be cured
by paying the beneficiary, i.e., by tendering payment.
A tender of payment is more than being “willing and able”
to pay. It is “an offer to perform, coupled with the present
ability of immediate performance, which, were it not for the
refusal of cooperation by the party to whom tender is made,
would immediately satisfy the condition or obligation for
which the tender is made.”25
And even if the Cardenases’ requested instructions correctly
stated the law, they would not be warranted by the evidence.
The Cardenases do not claim that they did, in fact, tender
payment to cure the default, but only that they desired and
intended to do so. But a desire is not a tender.
b. FNBNP’s Notice of Default
Complied With Act
The Cardenases argue that FNBNP did not allow them the
right to cure based on the notices of default, which they argue
showed a “firm resolve”26 to accelerate the debt and deny
them the right to cure the default by paying the amount due
“other than such portion of the principal as would not then
be due had no default occurred,”27 i.e., the nonaccelerated
amount due. But this argument melds together the separate
provisions regarding notices of default in § 76-1006 and the
right to cure in § 76-1012.
[10,11] When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language,
25
Graff v. Burnett, 226 Neb. 710, 716, 414 N.W.2d 271, 276 (1987).
26
Brief for appellants at 29.
27
See § 76-1012(1).
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understood in context.28 We ascertain the meaning of a statute
by reading it in pari materia, in light of the broader structure of
the relevant act and related statutes.29
Section 76-1012 provides a trustor the ability to cure a
default on an obligation secured by a trust deed prior to a
trustee’s sale and have the trust deed reinstated. This section
contemplates and references the filing of a notice of default,
but does not itself require the notice of default or specify the
necessary contents of a notice of default. These requirements
are set forth in § 76-1006. Section 76-1012 adds no additional
requirements for notices of default to those in § 76-1006.
The notices of default satisfied the requirements of
§ 76-1006. The first notice stated that a default had occurred,
that the nature of the default was “[f]ailure to pay install-
ment payments when due,” and that FNBNP had elected
to sell the property to satisfy the obligation. We have held
that under § 76-1006(1), “for nonagricultural property, the
notice of default need not contain information on how to cure
the default.”30
The second notice of default met the additional require-
ments of § 76-1006(2), which applies to property used for
farming operations. It included “[a] statement of the amount
of the unpaid principal which would not then be due had
no default occurred.”31 Thus, the district court was correct
to instruct the jury that the notices of default were made in
accord­ance with the Act.
c. Conclusion
In sum, the district court did not err by refusing to give
the Cardenases’ requested jury instructions on the right to
cure. The right to cure in § 76-1012 does not add additional
28
Robinson v. Houston, 298 Neb. 746, 905 N.W.2d 636 (2018); Kozal v.
Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 (2017).
29
Kozal v. Nebraska Liquor Control Comm., supra note 28.
30
Gilroy v. Ryberg, supra note 22, 266 Neb. at 629, 667 N.W.2d at 556.
31
§ 76-1006(2).
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requirements to the requirements for notices of default in
§ 76-1006. And the requested instructions were not cor-
rect statements of law, because they required only that the
Cardenases be “willing and able” to cure, not that they actu-
ally tender payment. The instructions were not warranted by
the evidence, because it is undisputed that the Cardenases did
not tender payment to cure the default. This assignment of
error lacks merit.
(c) Fair Market Value
The Cardenases argue that the district court erred by not
instructing the jury to determine the fair market value of the
property sold at the foreclosure sales. The court did not err,
because the requested instruction was not a correct state-
ment of law and because the court did instruct the jury to
determine fair market value as part of its calculation of dam-
ages, although not in the particular language the Cardenases
requested.
(i) Additional Facts
At trial, the Cardenases requested that the district court give
the following jury instruction on the affirmative defense that
FNBNP purchased the property at the trustee’s sales at below
fair market value:
The [Cardenases] affirmatively allege that [FNBNP]
has failed to ascertain and bid the Fair Market Value of
the subject real estate at one or both of the Trustee’s Sales
and has waived its right to, and is further barred from
claiming a deficiency, if any, as a result of its actions in
purchasing the properties at one or both of the Trustee’s
Sales at a value below the Fair Market Value.
In connection with this affirmative defense, the
[Cardenases] have the burden of proving, by the greater
weight of the evidence, the following:
1. That [FNBNP’s] bid and purchase of the properties
at the Trustee’s Sale held on May 28, 2013 was at a value
below their Fair Market Value; or
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2. That [FNBNP’s] bid and purchase of the properties
at the Trustee’s Sale held on September 9, 2013 was at a
value below their Fair Market Value.
If [the Cardenases] have met this burden of proof, then
[FNBNP] is barred from recovery of any alleged dam-
ages on its deficiency action and your verdict must be for
[the Cardenases].
However, the court did give the following jury instruction on
the issue of damages:
If you return a verdict for [FNBNP], then you must
determine how much money will fairly compensate
[FNBNP] for its damages. [FNBNP] in [this] deficiency
action under the . . . Act can recover the difference
between the total indebtedness with interest and the costs
and expenses of sale, including trustee’s fees, and the
greater of the sale price or the fair market value of the
property as of the date of sale.
(Emphasis supplied.) The court also gave a jury instruction
defining the term “fair market value.”
(ii) Application
The content of the court’s instruction was driven by
§ 76-1013. It provides a mechanism for creditors to recover
a deficiency judgment for amounts still due and owing after a
trustee’s sale. Section 76-1013 states:
Before rendering judgment, the court shall find the fair
market value at the date of sale of the property sold. The
court shall not render judgment for more than the amount
by which the amount of the indebtedness with interest and
the costs and expenses of sale, including trustee’s fees,
exceeds the fair market value of the property or interest
therein sold as of the date of the sale . . . .
We find no error regarding refusal of the requested instruc-
tion, for three reasons.
First, the requested jury instruction was not a correct state-
ment of law. It stated that if the Cardenases proved that FNBNP
bid below fair market value, the bank would be “barred from
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recovery of any alleged damages on its deficiency action.”
But the proposition that selling property at a trustee’s sale for
below fair market value is an absolute bar to recovery in a defi-
ciency action has no basis in § 76-1013. Rather, a below fair
market value sale would reduce the amount the creditor could
recover in a deficiency action. Depending upon the mathemat-
ics of the transaction, a below market sale would not necessar-
ily be a total bar to a recovery of a deficiency.
Second, the instructions given included the substance of
the requested instruction. The district court instructed the jury
to determine the fair market value of the property. The court
instructed the jury that FNBNP could recover “the difference
between the total indebtedness with interest and the costs and
expenses of sale, including trustee’s fees, and the greater of
the sale price or the fair market value of the property as of the
date of sale.” This language tracks the language of § 76-1013.
Thus, the substance of the Cardenases’ proposed instruction, or
at least the portion that was not an incorrect statement of law,
was contained in the instructions actually given.
[12] Finally, the general verdict rule applies here. Because
a general verdict does not specify the basis for an award,
Nebraska law presumes that the winning party prevailed on all
issues presented to the jury.32 By rendering a verdict for FNBNP
in the amount it claimed it was still owed, $171,162.66, the
jury necessarily determined that the properties sold at or above
fair market value. The district court did not err in refusing to
give the Cardenases’ requested jury instruction on fair mar-
ket value.
VI. CONCLUSION
Because we find no merit to any of the Cardenases’ assign-
ments of error, we affirm the judgment of the district court.
A ffirmed.
Wright and K elch, JJ., not participating.
32
Heckman v. Burlington Northern Santa Fe Ry. Co., 286 Neb. 453, 837
N.W.2d 532 (2013).