KLH Retirement Planning, Ltd. v. Cejka

530 N.W.2d 279, 3 Neb. Ct. App. 687, 1995 Neb. App. LEXIS 138
CourtNebraska Court of Appeals
DecidedApril 18, 1995
DocketNo. A-93-564
StatusPublished
Cited by2 cases

This text of 530 N.W.2d 279 (KLH Retirement Planning, Ltd. v. Cejka) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
KLH Retirement Planning, Ltd. v. Cejka, 530 N.W.2d 279, 3 Neb. Ct. App. 687, 1995 Neb. App. LEXIS 138 (Neb. Ct. App. 1995).

Opinion

Irwin, Judge.

John D. Cejka and Ann Marie Cejka appeal from a summary judgment and decree foreclosing a real estate tax lien on their real property. The foreclosure action was brought by KLH Retirement Planning, Ltd. (KLH), as the holder of a tax sale certificate to the property. See Neb. Rev. Stat. § 77-1902 (Reissue 1990). Appellants claim, among other things, that the district court erred in finding that they were prohibited by. law from redeeming the tax certificate after KLH had filed the foreclosure action. Because a landowner may redeem a tax sale certificate at any time prior to confirmation of judicial sale, even while a foreclosure action is pending, we must reverse, and remand for further proceedings.

SUMMARY OF FACTS

Appellants are the owners of real estate described as Lot 28 [689]*689of Irregular Tracts in the northeast quarter of Section 17, Township 10 North, Range 7 East of the 6th P.M., Lincoln, Lancaster County, Nebraska. From 1988 through October 15, 1992, appellants failed to pay the real estate taxes levied on the property. On September 28, 1989, Lancaster County issued and purchased a tax sale certificate for the property, see Neb. Rev. Stat. § 77-1809 (Reissue 1990). The tax sale certificate was assigned to KLH for $7,603 on September 25, 1992.

On October 13, KLH filed a petition in the district court for Lancaster County to foreclose the lien on the property. See § 77-1902. On October 15, appellants tendered payment of the taxes and interest due on the property to the Lancaster County treasurer, who issued them a certificate of redemption in the amount of $7,664. Thereafter, the county treasurer tendered the redemption proceeds to KLH, who in turn rejected the tender.

Appellants filed an answer in the foreclosure action, claiming that they had redeemed the tax sale certificate by tendering payment of the taxes due. In a reply, KLH maintained that appellants’ redemption was invalid because redemption is not allowed by law while a foreclosure action is pending.

On March 23, 1993, KLH filed a motion for summary judgment. A hearing regarding the motion was held on March 31, after which the court took the matter under submission. The court granted the motion, and a decree was signed by the court on May 28 and filed on June 4. In the decree, the court found as a matter of law that appellants could not redeem the tax sale certificate on October 15, 1992. The court found that the amount owed on the certificate with interest, costs, and statutory attorney fees was $9,030. The court also ordered that appellants’ land be sold as upon execution unless the above amount was satisfied within 20 days of the decree. Appellants thereafter appealed to this court.

ASSIGNMENTS OF ERROR

Although appellants have assigned six errors on this appeal, our resolution of one of the assigned errors disposes of this appeal, and we thus need not address the remaining assigned errors. See Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994). In the assigned error which we shall address, appellants claim [690]*690that the trial court erred in failing to acknowledge a property owner’s right to redeem a tax sale certificate at any time prior to a decree of confirmation after sale.

STANDARD OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. LaBenz Trucking v. Snyder, 246 Neb. 468, 519 N.W.2d 259 (1994); Dalton Buick v. Universal Underwriters Ins. Co., 245 Neb. 282, 512 N.W.2d 633 (1994); Hillie v. Mutual of Omaha Ins. Co., 245 Neb. 219, 512 N.W.2d 358 (1994).

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. LaBenz Trucking, supra; Hillie, supra; Hawkins Constr. Co. v. Reiman Corp., 245 Neb. 131, 511 N.W.2d 113 (1994).

The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law. Rath v. Selection Research, Inc., 246 Neb. 340, 519 N.W.2d 503 (1994); Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994); Transamerica Commercial Fin. Corp. v. Rochford, 244 Neb. 802, 509 N.W.2d 214 (1993).

DISCUSSION

Time for Redemption.

The central issue that we address in this decision is whether a delinquent taxpayer may redeem a tax sale certificate after the holder of the certificate has filed a foreclosure action under § 77-1902.

Chapter 77 of the Nebraska Revised Statutes provides two separate and distinct methods for the handling of delinquent real estate taxes. The first method is set forth in chapter 77, article 18, and the second is set forth in chapter 77, article 19. See, Neb. Rev. Stat. §§ 77-1801 to 77-1863 and 77-1901 to [691]*69177-1941 (Reissue 1990); Brown v. Glebe, 213 Neb. 318, 328 N.W.2d 786 (1983). The method set forth in article 18 involves no judicial proceedings or judicial sale and allows an owner to redeem his property that has been sold for taxes at any time before the county treasurer delivers a “tax deed.” See § 77-1824. In this case, KLH did not pursue the method set forth in article 18.

The method set forth in article 19 involves judicial proceedings and was used by KLH in this case. See §§ 77-1901 to 77-1941. Section 77-1902 provides that the holder of a tax sale certificate may, within 6 months after the expiration of 3 years from the date of the administrative sale, surrender the certificate in the district court and foreclose the lien for the delinquent taxes. Section 77-1909 provides that costs are to be assessed against the real estate and a 10-percent attorney fee awarded to the plaintiff and taxed as part of the costs of the foreclosure action. With regard to redemption, § 77-1917 provides:

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Bluebook (online)
530 N.W.2d 279, 3 Neb. Ct. App. 687, 1995 Neb. App. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klh-retirement-planning-ltd-v-cejka-nebctapp-1995.