S-11-1101, Mutual of Omaha Bank v. Sam Murante (Appellant)
Douglas County, Judge Gary B. Randall
Attorneys: Steven J. Olson (Brown & Brown PCLLO)---Patrick B. Griffin, Alison M. Gutierrez (Kutak Rock LLP)
Civil: Guaranty; deficiency judgment; application of the Nebraska Trust Deeds Act
Proceedings below: The district court granted Mutual of Omaha Bank (the Bank’s) motion for summary judgment finding breach of a written guaranty contract for the full amount of the indebtedness then owed by Sutherlands Plaza LLC to the Bank, including interest. The court found that Neb. Rev. Stat. § 76-1013 did not apply to the guaranty contract at issue. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The district court erred in (1) granting the motion for summary judgment; (2) finding Neb. Rev. Stat. § 76-1013 was not applicable to the case; (3) finding the sales price at the trustee’s sale was the correct amount to credit against the debt; (4) failing to recognize Appellant’s affirmative defense invoked the equitable power of the court to perform an accounting; (5) failing to hold that it had the equitable power to impose a fair market value credit to prevent a windfall where circumstances require equitable relief in the interests of justice; (6) overruling Appellant’s motion for leave to amend the answer; (7) holding that Neb. Rev. Stat. § 76-1013 contains a typical statute of limitation; (8) finding that pursuant to the Guaranty’s terms, the fact the Bank can no longer bring a deficiency action against the Borrower does not extinguish the “indebtedness” that Appellant has agreed to pay.