Omaha Municipal Land Bank v. Ekwen , 30 Neb. Ct. App. 209 ( 2021 )

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www.nebraska.gov/apps-courts-epub/
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OMAHA MUNICIPAL LAND BANK v. EKWEN
Cite as 30 Neb. App. 209Omaha Municipal Land Bank and County of Douglas,
appellees, v. Vitaly Ekwen, appellant, and
Vandelay Investments, L.L.C.,
et al., appellees.
___ N.W.2d ___
Filed October 12, 2021. No. A-20-679.
1. Judicial Sales: Real Estate: Appeal and Error. Upon an appeal from
an order confirming a judicial sale of real estate, an appellate court
reviews the matter de novo.
2. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
3. Records: Appeal and Error. It is incumbent upon the appellant to
present a record supporting the errors assigned; absent such a record,
an appellate court will affirm the lower court’s decision regarding
those errors.
4. Judicial Sales: Property: Foreclosure: Taxes. Under Neb. Rev. Stat.
§ 77-1912 (Reissue 2018), a sheriff’s sale of real property after a fore-
closure order for delinquent taxes is governed by the provisions for sales
on execution under Neb. Rev. Stat. § 25-1501 et seq. (Reissue 2016 &
Cum. Supp. 2020).
5. Actions: Notice: Affidavits: Proof. Pursuant to Neb. Rev. Stat.
§ 25-520.01 (Reissue 2016), where a notice by publication is given, the
party instituting or maintaining the action or proceeding must, within 5
days after the first publication of notice, send a copy of the published
notice to each party appearing to have a direct interest in the action or
proceeding and whose name and address are known to him or her. Proof
by affidavit of the mailing of the notice must be made within 10 days.
6. Judicial Sales: Notice. The requirements of Neb. Rev. Stat. § 25-520.01(Reissue 2016) apply to a publication of notice given under Neb. Rev.
Stat. § 25-1529 (Reissue 2016) governing sales on execution.
7. Public Officers and Employees: Presumptions. In the absence of
evidence to the contrary, it may be presumed that public officers
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OMAHA MUNICIPAL LAND BANK v. EKWEN
Cite as 30 Neb. App. 209faithfully performed their official duties and that absent evidence
showing misconduct or disregard of law, the regularity of official acts
is presumed.
8. Mortgages: Foreclosure: Notice. Under Neb. Rev. Stat. § 25-1531(Cum. Supp. 2020), a court errs in confirming a mortgage foreclosure
sale when the facts show that the mortgagee did not comply with the
notification requirements of Neb. Rev. Stat. § 25-520.01 (Reissue 2016).
Appeal from the District Court for Douglas County: Gary
B. Randall, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Thomas C. Dorwart, of Goosmann Law Firm, P.L.C., for
appellant.
Matthew G. Munro, of McGrath, North, Mullin & Kratz,
P.C., L.L.O., for appellees Omaha Municipal Land Bank and
County of Douglas.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
INTRODUCTION
Vitaly Ekwen appeals the Douglas County District Court’s
order confirming a sheriff’s sale of real property under a decree
of foreclosure on a tax lien. Ekwen claims that because of
improper or insufficient service and notice, the court should
have vacated and set aside the sale, its previous order on a
motion for service by publication, and the decree of fore­
closure. We affirm the district court’s decision not to vacate
and set aside its previous order on the motion for service by
publication and the decree of foreclosure. However, we reverse
the district court’s decision to confirm the sale, and we remand
the cause to the district court with directions.
BACKGROUND
On February 23, 2018, Omaha Municipal Land Bank
(Bank) and the County of Douglas, Nebraska (County), filed
a complaint against several defendants seeking the payment
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OMAHA MUNICIPAL LAND BANK v. EKWEN
Cite as 30 Neb. App. 209of delinquent real estate taxes or, if payment was not made,
an order that the real estate be sold in a tax lien foreclosure
proceeding. Both Ekwen and the “Real Property located at
3525 North 28th Avenue Omaha, NE 68111” (real property)
were among the named defendants. The Bank and the County
alleged the County was the owner and holder of a tax sale
certificate issued by the Douglas County treasurer in 2014,
which constituted “a first and superior lien” on the real prop-
erty legally described as “Lot 22, Block 2, Redicks Park, an
addition to the city of Omaha, in Douglas County, Nebraska.”
The Bank and the County further alleged that the tax sale
certificate had not been redeemed, nor subsequent taxes paid,
and that because 3 years had elapsed since the issuance of the
tax sale certificate, they were now entitled to foreclose the
lien for taxes represented by the tax sale certificate, as well as
for subsequent years’ taxes paid by the County. The Bank and
the County alleged that certain named defendants, including
Ekwen, had a claim or interest in the real property. The Bank
and the County’s praecipe requested that the clerk of the court
“issue a Summons directed to the Defendants listed below and
return to the undersigned for service upon said Defendants by
CERTIFIED MAIL as provided by law”; Ekwen was listed at a
specified post office box (P.O. Box) in Omaha.
On July 2, 2018, the Bank and the County filed a motion for
service by publication, alleging that Ekwen, the real property,
and some of the other defendants could not be served by any
other means. The affidavit of Martin A. Barnhart was said to
be “filed contemporaneously” in support of the motion; how-
ever, the affidavit does not appear in our transcript, nor was
it requested in the praecipe for transcript. The “Certificate
of Service” stated that a copy of the motion was served by
“United States mail” on Ekwen at the P.O. Box in Omaha.
Although both parties reference the district court’s order on
the motion for service by publication, which was apparently
granted, the order does not appear in our transcript, nor was it
requested in the praecipe for transcript.
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Cite as 30 Neb. App. 209Nearly 1 year later, on June 20, 2019, the Bank and the
County filed a motion for default judgment against the defend­
ants, including Ekwen and the real property, for failure to
answer the complaint. The Bank and the County stated that in
support of the motion, they intended to rely on the affidavit of
Barnhart. Barnhart’s May affidavit in support of the motion for
default judgment stated that he is the executive director of the
Bank; on February 23, 2018, the Bank and the County filed
the complaint in this action; the Bank and the County served
the summons and complaint on the defendants by certified mail
or publication, as indicated in the court file; and the defendants
failed to file an answer or other responsive pleading within
30 days of service. Barnhart also set forth the amounts due
and owing related to the tax sale certificate and the case. The
“Notice of Hearing” stated that the motion for default judg-
ment would be called for hearing on June 25. Additionally,
the “Certificate of Service” stated that a copy of the motion
was served by “First Class Mail” on Ekwen at the P.O. Box in
Omaha. It also stated that “No Service” was provided to “Lot
22 Block 2 Redicks Park.”
On June 25, 2019, the district court entered an “Order
Granting Default Judgment/Decree of Foreclosure.” The court
found that the defendants had been validly served but had not
filed an answer or otherwise pled. The court further found
that the Bank and the County had a valid first lien on the real
property and were entitled to foreclose their lien against the
real property. The court ordered that in the event that the sums
due as set forth in the decree were not paid within 20 days
from the entry of the decree, an order of sale would be issued
and the real property sold for the satisfaction of the Bank and
the County’s lien. Upon confirmation of the sale, the default
defend­ants would be foreclosed and forever barred of all
right, title, and interest in the real property. The “Certificate of
Service” does not show that Ekwen was served a copy of the
court’s order, but it does show that service was sent via U.S.
mail to “Lot 22 Block 2 Redicks Park an addi 3525 North 28th
Ave. Omaha, NE 68111.”
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Cite as 30 Neb. App. 209The Bank and the County’s “Praecipe for Order for Sale”
was filed on July 26, 2019; it asked the clerk of the district
court to issue an order of sale directing the Douglas County
sheriff to sell the property, because “[n]one of the real estate
has been redeemed from the Decree of Foreclosure and the stat-
utory period for redemption has expired.” The “Certificate of
Service” stated that a copy of the praecipe was served by “reg-
ular, first class mail” on Ekwen at the P.O. Box in Omaha.
On October 18, 2019, a deputy sheriff filed a document
stating:
Received this order of sale on August 7, 2019, and
thereupon on September 16, 2019, I caused a notice to be
published in the Daily Record, a newspaper printed and
in general circulation in [Douglas] County, that I would
offer said property for sale at 1616 Leavenworth Street,
Omaha, Nebraska on October 16, 2019, at 11:00 a.m., of
said day. After having so advertised the same for more
than thirty days, and at the time and place stated in said
notice I offered the said lands and tenements for sale at
public auction, and sold the same as follows to-wit:
Lot 22, Block 2, Redicks Park, an Addition to the
City of Omaha, in Douglas County, Nebraska.
Sold to: Omaha Municipal Land Bank and County
of Douglas[.]
For the sum of: . . . $12,942.49[.]
On December 4, 2019, the Bank and the County filed a
motion to confirm the sale of the real property. The “Certificate
of Service” stated that a copy of the motion was served by
“regular United States mail” on Ekwen at the P.O. Box in
Omaha. It also stated that “No Service” was provided to “Lot
22 Block 2 Redicks Park.”
On December 12, 2019, Ekwen filed an “Objection to
Motion to Confirm and Motion to Vacate and Set Aside.”
Ekwen stated he objected to the motion to confirm, and he
also moved for an order vacating and setting aside the order
on the motion for service by publication, the decree of fore-
closure, and the sheriff’s sale. He alleged that the judgment
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Cite as 30 Neb. App. 209was rendered without service of process upon him other than
by publication. Ekwen further alleged that the Bank and the
County failed to make diligent investigation and inquiry into
his whereabouts; there was no return of service showing any
attempts to serve him in any manner prior to the order for
service by publication; notice of the sheriff’s sale was not pub-
lished in accordance with Neb. Rev. Stat. §§ 77-1912 (Reissue
2018) and 25-1501 et seq. (Reissue 2016 & Cum. Supp. 2020);
the motion for default judgment and the motion to confirm
were not served upon him at his last known address; and a sub-
stantial injustice would result from the denial of due process
if the motion to confirm was not denied and the order on the
motion for service by publication, the decree of foreclosure,
and the sheriff’s sale were not vacated and set aside.
A hearing on the motion to confirm sale, as well as Ekwen’s
objection and his motion to vacate and set aside, was held on
July 27, 2020. On August 19, the district court entered an order
and a nunc pro tunc order confirming the sale of the real prop-
erty and for issuance of a deed to the Bank. The court found
that the sale had been “conducted in all respects according to
law” and that the real property was sold for its fair value under
the circumstances and conditions of the sale. The court further
found that the order on the motion for service by publica-
tion and the decree of foreclosure were “issued in all respects
according to law.” The “Certificate of Service” shows that
Ekwen’s counsel was served via email and that service was
sent to “Lot 22 Block 2 Redicks Park an addi 3525 North 28th
Ave. Omaha, NE 68111.”
Ekwen appeals.
ASSIGNMENTS OF ERROR
Ekwen assigns, restated, that the district court erred in (1)
finding that the Bank and the County made sufficient diligent
investigation and inquiry into his whereabouts by executing
service by publication and (2) failing to affirmatively find
that proper notice of the time and place of the foreclosure sale
of his property was not provided to him in accordance with
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Cite as 30 Neb. App. 209Nebraska law and the principles of due process. Accordingly,
Ekwen claims that the court erred in granting the motion to
confirm the sale of his real property and in denying his motion
to vacate and set aside the sale and the court’s previous order
on the motion for service by publication and the decree of
foreclosure.
STANDARD OF REVIEW
[1] Upon an appeal from an order confirming a judicial sale
of real estate, an appellate court reviews the matter de novo.
See Federal Farm Mtg. Corporation v. Popham, 137 Neb. 529,
290 N.W. 423 (1940).
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. In re
Estate of Loder, 308 Neb. 210, 953 N.W.2d 541 (2021).
ANALYSIS
Motion for Service by Publication
and Decree of Foreclosure
Ekwen claims the district court’s order on the motion for
serv­ice by publication and the decree of foreclosure should
have been vacated and set aside because service was not
properly perfected upon him. He contends the court erred in
finding the Bank and the County “made sufficient diligent
investigation and inquiry” into his whereabouts “by executing
service by Certified Mail and publication without any attempt
to execute personal service upon [him].” Brief for appellant
at 7. He argues that when a party fails to comply with Neb.
Rev. Stat. § 25-520.01 (Reissue 2016), the court lacks personal
jurisdiction over the defendant, and a “judgment . . . entered
by a court without personal jurisdiction . . . is void.” Brief for
appellant at 9.
Although § 25-520.01 has been recently amended, the ver-
sion applicable here states:
In any action or proceeding of any kind or nature, as
defined in section 25-520.02, where a notice by publica-
tion is given as authorized by law, a party instituting
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Cite as 30 Neb. App. 209or maintaining the action or proceeding with respect to
notice or his attorney shall within five days after the first
publication of notice send by United States mail a copy of
such published notice to each and every party appearing
to have a direct legal interest in such action or proceeding
whose name and post office address are known to him.
Proof by affidavit of the mailing of such notice shall be
made by the party or his attorney and shall be filed with
the officer with whom filings are required to be made in
such action or proceeding within ten days after mailing
of such notice. Such affidavit of mailing of notice shall
further be required to state that such party and his attor-
ney, after diligent investigation and inquiry, were unable
to ascertain and do not know the post office address of
any other party appearing to have a direct legal interest
in such action or proceeding other than those to whom
notice has been mailed in writing.
(Emphasis supplied.) See Francisco v. Gonzalez, 301 Neb.
1045, 921 N.W.2d 350 (2019) (father of children not mailed
copy of publication notice in compliance with § 25-520.01;
district court lacked personal jurisdiction, and appeal dismissed
for lack of jurisdiction). The relevant documents showing com-
pliance with § 25-520.01 were not requested in the praecipe for
transcript and do not appear in our record. However, Ekwen
makes no claim that the Bank and the County failed to comply
with the 5-day and 10-day requirements of § 25-520.01 after
the first publication of notice. Rather, Ekwen argues that he
should not have been served by publication without a showing
that personal service was attempted first. We address that argu-
ment now.
We initially note that in his brief, Ekwen states that he lives
in California and there was no attempt to personally serve him
at his California residence. However, there is nothing in our
record to suggest that Ekwen was an out-of-state resident, and
no mention of California appears in either the transcript or the
bill of exceptions that are before us on appeal. He also claims
there is “no evidence that any attempt at service was made
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Cite as 30 Neb. App. 209upon the address of the property at issue in the foreclosure pro-
ceedings, despite [the Bank and the County] having knowledge
that [he] was the owner of the property.” Brief for appellant at
10. We therefore proceed to address Ekwen’s general claim that
he should not have been served by publication.
Pursuant to Neb. Rev. Stat. § 25-508.01(1) (Reissue 2016), an
individual party, other than a person under the age of 14 years,
may be served by personal, residence, certified mail, or desig-
nated delivery service. However, “[u]pon motion and showing
by affidavit that service cannot be made with reasonable dili-
gence by any other method provided by statute, the court may
permit service to be made . . . by publication . . . .” Neb. Rev.
Stat. § 25-517.02 (Reissue 2016) (emphasis supplied). See,
also, Neb. Rev. Stat. § 25-518.01 (Reissue 2016) (service may
be made by publication when ordered by court).
In the praecipe attached to their February 2018 complaint,
the Bank and the County requested that the clerk of the court
issue a summons directed to the defendants, including Ekwen
at a specified P.O. Box, and “return to the undersigned [plain-
tiffs’ counsel] for service upon said Defendants [including
Ekwen] by CERTIFIED MAIL as provided by law.” In its July
motion for service by publication, the Bank and the County
alleged that certain defendants, including Ekwen and the real
property, could not be served by any other means. The affidavit
of Barnhart was said to be “filed contemporaneously” in sup-
port of the motion; however, as stated previously, the affidavit
does not appear in our transcript, nor was it requested in the
praecipe for transcript. Moreover, although both parties refer-
ence the district court’s order on the motion for service by
publication, which was apparently granted, the order does not
appear in our transcript, nor was it requested in the praecipe
for transcript.
On June 25, 2019, the district court entered an “Order
Granting Default Judgment/Decree of Foreclosure.” The court
found that the defendants had been validly served but had not
filed an answer or otherwise pled. And in its August 2020
order on Ekwen’s motion to vacate and set aside, the district
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Cite as 30 Neb. App. 209court found that the order on the motion for service by publica-
tion and the decree of foreclosure were “issued in all respects
according to law.”
[3] As a general proposition, it is incumbent upon the appel-
lant to present a record supporting the errors assigned; absent
such a record, an appellate court will affirm the lower court’s
decision regarding those errors. Ginger Cove Common Area
Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (2017).
Ekwen claims that the Bank and the County “did not conduct
reasonable diligence in accordance with . . . § 25-517.02 prior
to filing their Motion for Service by Publication” and that
“[t]herefore, service by publication was improper and service
was never properly executed upon [him].” Brief for appellant
at 9-10. He further claims that because service was not per-
fected, the court lacked personal jurisdiction over him and the
decree of foreclosure was void. Because Barnhart’s affidavit in
support of the motion for publication and the district court’s
order on the motion for service by publication are not included
in our appellate record, Ekwen has not presented this court
with a record supporting his claim that the order on the motion
for service by publication and the decree of foreclosure should
be vacated and set aside. Accordingly, we affirm the district
court’s findings that the “Default Defendants” had been validly
served and that the order on the motion for service by publica-
tion and the decree of foreclosure were “issued in all respects
according to law.”
Order Confirming Sale
Next, Ekwen claims the district court erred in granting the
Bank and the County’s motion to confirm the sale of the real
property and in denying his motion to vacate and set aside the
sale. He contends the court erred in finding that proper notice
of the time and place of the foreclosure sale was provided
to him.
[4] Under § 77-1912(1), a sheriff’s sale of real property after
a foreclosure order for delinquent taxes is governed by the
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Cite as 30 Neb. App. 209provisions for sales on execution under § 25-1501 et seq. KLH
Retirement Planning v. Okwumuo, 263 Neb. 760, 642 N.W.2d
801 (2002). Pursuant to § 25-1529:
Lands and tenements taken in execution shall not be
sold until the officer causes public notice of the time and
place of sale to be given. The notice shall be given by
publication once each week for four successive weeks
in some newspaper printed in the county, or, in case no
newspaper be printed in the county, in some newspaper
in general circulation therein, and by posting a notice on
the courthouse door, and in five other public places in
the county, two of which shall be in the precinct where
such lands and tenements lie. All sales made without such
notice shall be set aside on motion, by the court to which
the execution is returnable.
(Emphasis supplied.)
[5,6] As set forth previously, § 25-520.01 requires that where
a notice by publication is given, the party instituting or main-
taining the action or proceeding must, within 5 days after the
first publication of notice, send a copy of the published notice
to each party appearing to have a direct interest in the action
or proceeding and whose name and address are known to him
or her. Proof by affidavit of the mailing of the notice must be
made within 10 days. See id. Section 25-520.01 applies to a
publication of notice given under § 25-1529 governing sales
on execution. KLH Retirement Planning v. Okwumuo, supra.Thus, the party requesting the order of sale has the duty to mail
a copy of the published notice to other parties with an interest
in the property being sold. See id.Section 25-1531 requires a court to carefully examine the
proceedings and be “satisfied that the sale has in all respects
been made in conformity to the provisions of this chapter”
before confirming such sale. See KLH Retirement Planning v.
Okwumuo, supra. See, also, Neb. Rev. Stat. § 77-1913 (Reissue
2018) (court shall examine proceedings and find they are cor-
rect before entering order of confirmation of sale).
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Cite as 30 Neb. App. 209[7] Ekwen claims that “there was never any evidence, other
than the Sheriff’s Return regarding the Order of Sale, show-
ing that publication was made in accordance with the relevant
statutes.” Brief for appellant at 12. As set forth in more detail
previously, in October 2019, a deputy sheriff filed a document
stating that on September 16, he caused a notice to be pub-
lished in a newspaper printed in general circulation in Douglas
County that the property would be sold at a specified time and
place, and that the sale was advertised for more than 30 days
before the sale took place. In the absence of evidence to the
contrary, it may be presumed that public officers faithfully per-
formed their official duties and that absent evidence showing
misconduct or disregard of law, the regularity of official acts
is presumed. KLH Retirement Planning v. Okwumuo, supra.Without evidence to the contrary, we find that the sheriff pub-
lished notice in accordance with § 25-1529.
However, Ekwen also claims that a copy of the pub-
lished notice of sale was not sent to him in accordance with
§ 25-520.01. He asserts that the Bank and the County “had
the requisite knowledge of both [his] name and his post office
address.” Brief for appellant at 12 (emphasis in original). He
notes that he was named in the complaint and that the Bank
and the County “had knowledge of at least two post office
addresses for [him]: (1) the P.O. Box at which [they] origi-
nally attempted service by Certified Mail; and (2) the mailing
address of the real property at issue.” Id.
In response, the Bank and the County assert that Ekwen’s
claim that they were required to mail notice of the sale to
him “is unfounded, because [his] address was not known to
[them],” and that under the circumstances, § 25-520.01 “clearly
states that notice by mail is not required.” Brief for appellees at
6. The Bank and the County point out that they were originally
granted permission to serve the complaint on Ekwen via pub-
lication because he could not be served by any other means.
And “[a]fter the ineffective attempt at service sent to the P.O.
Box address, and subsequent inability to determine [Ekwen’s]
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Cite as 30 Neb. App. 209whereabouts, it was clear to [the Bank and the County] that the
address of [Ekwen] was not known to them.” Id. at 10.
Section 25-520.01 required the Bank and the County to mail
Ekwen a copy of the published notice of the sale if his address
was “known to [them].” “This language has been interpreted to
require that notice be sent to the ‘last known address’ of persons
with an interest in the proceeding.” Francisco v. Gonzalez, 301
Neb. 1045, 1050, 921 N.W.2d 350, 354 (2019). Additionally,
the Nebraska Supreme Court has stated that § 25-520.01
requires the party serving by publication to file an affi-
davit stating that the party and his or her attorney, “after
diligent investigation and inquiry,” were unable to ascer-
tain and do not know the address of any parties having
an interest who were not mailed a copy of the pub-
lished notice.
Francisco v. Gonzalez, 301 Neb. at 1046, 921 N.W.2d at 351.
The Bank and the County did not comply with the require-
ments of § 25-520.01.
At the July 2020 hearing on the motion to confirm the sale
and Ekwen’s objection thereto, the Bank and the County stated
that Ekwen’s last known address was a P.O. Box in Omaha.
They stated, “We attempted service [of the complaint] by certi-
fied mail on the defendant’s last known address, which accord-
ing to Douglas County Treasury records, property records, was
a PO Box [in Omaha], and still is, on those treasury records.”
In order to comply with § 25-520.01, the Bank and the County
were required to mail a copy of the published notice of the
sheriff’s sale to Ekwen’s P.O. Box within 5 days after the first
publication of notice, as that was his last known address. The
Bank and the County were then required to file proof by affi-
davit of the mailing of such notice within 10 days after mailing
such notice.
[8] The district court’s finding that the sale had been “con-
ducted in all respects according to law” was in error. We
determine that the district court should not have confirmed
the sale when the facts showed that the Bank and the County
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Cite as 30 Neb. App. 209did not comply with the requirements of § 25-520.01 to mail
a copy of the published notice of the sale to Ekwen at his last
known address. Under § 25-1531, a court errs in confirm-
ing a mortgage foreclosure sale when the facts show that the
mortgagee did not comply with the notification requirements
of § 25-520.01. KLH Retirement Planning v. Okwumuo, 263
Neb. 760, 642 N.W.2d 801 (2002) (district court abused dis-
cretion in confirming judicial sale under decree of foreclosure
when facts showed bank did not comply with requirements
of § 25-520.01). Accordingly, we reverse the district court’s
decision to confirm the sale, and we remand the cause to the
district court with directions to order another sale of the real
property as provided by law.
CONCLUSION
For the reasons stated above, we affirm the district court’s
decision not to vacate and set aside its previous order on the
motion for service by publication and the decree of foreclosure.
However, we reverse the district court’s decision to confirm
the sale, and we remand the cause to the district court with
directions to order another sale of the real property as provided
by law.
Affirmed in part, and in part reversed
and remanded with directions.