§ 25-2140 — Decree; effect upon right to recover for debt

Nebraska § 25-2140

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

After a complaint for foreclosure or satisfaction of a mortgage is filed, while the same is pending, and after a decree is rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court.

Legislative History

Source: R.S.1867, Code § 848, p. 542; R.S.1913, § 8257; C.S.1922, § 9210; C.S.1929, § 20-2142; R.S.1943, § 25-2140; Laws 2002, LB 876, § 35. Annotations: 1. Scope 2. Deficiency judgment 3. Action at law 4. Miscellaneous 1. Scope Purpose of this section is to prevent the prosecution of proceedings at law to recover the debt concurrently with proceedings to foreclose mortgage, and to eliminate the possibility of two judgments being rendered against the debtor for the same debt. Federal Farm Mtg. Corp. v. Claussen, 138 Neb. 518, 293 N.W. 424 (1940). Conditional allowance of mortgagee's claim against mortgagor's estate did not preclude foreclosure. Quesner v. Novotny, 116 Neb. 84, 215 N.W. 796 (1927). "After a decree rendered thereon" refers to the decree of foreclosure on the mortgage. Armstrong v. Patterson, 97 Neb. 229, 149 N.W. 408 (1914). Filing claim against mortgagor's estate pending foreclosure does not operate as a release or discharge of mortgage. National Life Ins. Co. v. Fitzgerald, 61 Neb. 692, 85 N.W. 948 (1901). Purpose is to avoid two actions being in progress at same time. Meehan v. First Nat. Bank of Fairfield, 44 Neb. 213, 62 N.W. 490 (1895). 2. Deficiency judgment The general saving statute preserves right of action on claim for a deficiency judgment in suit to foreclose a mortgage not due nor in litigation at time the Legislature, without a special saving clause, passed the act of 1933 repealing the statutory provision permitting deficiency judgments. Stowers v. Stuck, 131 Neb. 409, 268 N.W. 310 (1936). Mortgagee's petition for deficiency judgment, filed in same court where mortgage was foreclosed and sale had thereunder, is continuation of foreclosure suit, and court order authorizing prosecution thereof is not required. Scottsbluff Nat. Bank v. Pfeifer, 120 Neb. 445, 233 N.W. 255 (1930). Application for deficiency judgment as continuation of original foreclosure suit does not require leave of court. Bennett v. Winegar, 103 Neb. 843, 174 N.W. 512 (1919). Party is not entitled to deficiency judgment when foreclosure proceedings commenced prior thereto remain undisposed of. Wolff v. Phelps, 3 Neb. Unof. 511, 92 N.W. 143 (1902). 3. Action at law In an action in equity for reinstatement of a mortgage where relief is denied because of laches, the court may nonetheless render judgment on the note where such alternative relief is included in the prayer. Rutt v. Frank, 186 Neb. 842, 186 N.W.2d 911 (1971). Burden rests on mortgagee to establish that no proceedings at law have been had to recover on the mortgage indebtedness. Bankers Life Co. v. Peterson, 178 Neb. 205, 132 N.W.2d 377 (1965). Failure to amend this section shows legislative intent to permit suit at law for deficiency after mortgage foreclosure proceeding is completed. Federal Farm Mtg. Corp. v. Thiele, 137 Neb. 626, 290 N.W. 471 (1940). Recovery on note is allowed after foreclosure of mortgage has been completed, where plaintiff obtains leave of the court to withdraw the note. Federal Farm Mtg. Corp. v. Cramb, 137 Neb. 553, 290 N.W. 440 (1940). It is not necessary to obtain leave of court to commence action at law on note secured by real estate mortgage where pleadings and proof show that no action has been filed in district court of county where mortgaged premises are situated to foreclose the mortgage. National Fidelity Life Ins. Co. v. Gordon, 130 Neb. 130, 264 N.W. 155 (1936). Granting motion to dismiss application for deficiency judgment is not authority to sue. Mann v. Burkland, 68 Neb. 269, 94 N.W. 116 (1903). After dismissal, holder of note may sue for debt. Kendall v. Selby, 66 Neb. 60, 92 N.W. 178 (1902). Action at law is not abated by action to enforce lien in equity. Garneau v. Kendall, 61 Neb. 396, 85 N.W. 291 (1901). There is no inhibition against the prosecution of proceedings at law to recover a debt other than the one the mortgage was given to secure. Maxwell v. Home Fire Ins. Co., 57 Neb. 207, 77 N.W. 681 (1898). Creditor may proceed at law without having exhausted his remedy by foreclosure. Grable v. Beatty, 56 Neb. 642, 77 N.W. 49 (1898). Pendency of proceedings against garnishees, upon judgment for the debt, stays foreclosure. Hargreaves v. Menken, 45 Neb. 668, 63 N.W. 951 (1895). Plaintiff must plead authority to sue at law. Brayton v. Oaks, 2 Neb. Unof. 593, 89 N.W. 646 (1902). 4. Miscellaneous A construction lien is not a mortgage for purposes of applying this section. Tilt-Up Concrete, Inc. v. Star City/Federal, Inc., 261 Neb. 64, 621 N.W.2d 502 (2001).