Nebraska Foreclosure is Judicial.
Nebraska Foreclosure Power of Sale Conferred on Trustee.
A power of sale may be conferred upon the trustee which the trustee may exercise and under which the trust property may be sold in the manner provided in the Nebraska Trust Deeds Act after a breach of an obligation for which the trust property is conveyed as security, or at the option of the beneficiary a trust deed may be foreclosed in the manner provided by the Nebraska foreclosure law of mortgages on real property. The power of sale shall be expressly provided for in the trust deed.
Nebraska Foreclosure Sale of Trust Property; Notice of Default.
According to Nebraska foreclosure law on real property, the power of sale herein conferred upon the trustee shall not be exercised until:
(1) The trustee shall first file for record in the office of the register of deeds of each county wherein the trust property or some part or parcel thereof is situated a notice of default identifying the trust deed by stating the name of the trustor named therein and giving the book and page or computer system reference where the same is recorded and a description of the trust property, containing a statement that a breach of an obligation for which the trust property was conveyed as security has occurred, and setting forth the nature of such breach and of his or her election to sell or cause to be sold such property to satisfy the obligation;
(2) If the trust property is used in farming operations carried on by the trustor, not in any incorporated city or village, the notice of default also sets forth:
(a) A statement that the default may be cured within two months of the filing for record of the notice of default and the obligation and trust deed may be thereby;
(b) A statement of the amount of the entire unpaid principal sum secured by the trust deed, the amount of interest accrued thereon to and including the date the notice of default is filed for record, and the dollar amount of the per diem interest accruing from and after such date; and
(c) A statement of the amount of the unpaid principal which would not then be due had no default occurred; and
(3) After the lapse of not less than one month, or two months if the notice of default is subject to subsection (2) of this section,
Nebraska Foreclosure Sale of Trust Property
(1) The trustee shall give written notice of the time and place of sale particularly describing the property to be sold by publication of such notice, at least five times, once a week for five consecutive weeks, the last publication to be at least ten days but not more than thirty days prior to the sale, in some newspaper having a general circulation in each county in which the property to be sold, or some part thereof, is situated.
(2) The Nebraska foreclosure sale shall be held at the time and place designated in the notice of sale which shall be between the hours of nine a.m. and five p.m. and at the premises or at the courthouse of the county in which the property to be sold, or some part thereof, is situated.
(3) The notice of sale shall be sufficient if made in substantially the following form:
Notice of Trustee’s Sale
The following described property will be sold at public auction to the highest bidder at the ………. door of the county courthouse in ………….., County of …………, Nebraska, on ………, 19…… .
Nebraska Foreclosure Notice of Default and Sale
Nebraska foreclosure law states that:
(1) Any person desiring a copy of any notice of default and of any notice of sale under any trust deed may, at any time subsequent to the filing for record of the trust deed and prior to the filing for record of a notice of default thereunder, file for record in the office of the register of deeds of any county in which any part or parcel of the trust property is situated a duly acknowledged request for a copy of any such notice of default and notice of sale. The request shall set forth the name and address of the person or persons requesting copies of such notices and shall identify the trust deed by stating the names of the original parties thereto, the date of filing for record thereof, and the book and page or computer system reference where the same is recorded and shall be in substantially the following form: Request is hereby made that a copy of any notice of default and a copy of notice of sale under the trust deed filed for record …………, 19……, and recorded in book ………., page …….., (or computer system reference ……..) Records of …………. County, Nebraska, executed by ……….as trustor, in which ………… is named as beneficiary and ………… as trustee, be mailed to……(insert name) …… at ………(insert address) ……… . Signature ……………………..
(2) Not later than ten days after recordation of such notice of default, the trustee or beneficiary shall mail, by registered or certified mail with postage prepaid, a copy of such notice with the recording date shown thereon, addressed to each person whose name and address is set forth in a request therefore which has been recorded prior to the filing for record of the notice of default, directed to the address designated in such request. At least twenty days before the date of sale, the trustee shall mail, by registered or certified mail with postage prepaid, a copy of the notice of the time and place of sale, addressed to each person whose name and address is set forth in a request therefore which has been recorded prior to the filing for record of the notice of default, directed to the address designated in such request.
(3) Each trust deed shall contain a request that a copy of any notice of default and a copy of any notice of sale thereunder shall be mailed to each person who is a party thereto at the address of such person set forth therein, and a copy of any notice of default and of any notice of sale shall be mailed to each such person at the same time and in the same manner required as though a separate request therefore had been filed by each of such persons as provided in this section.
(4) If no address of the trustor is set forth in the trust deed and if no request for notice by such trustor has been recorded as provided in this section, a copy of the notice of default shall be published at least three times, once a week for three consecutive weeks, in a newspaper of general circulation in each county in which the trust property or some part thereof is situated, such publication to commence not later than ten days after the filing for record of the notice of default.
(5) No request for a copy of any notice filed for record pursuant to this section nor any statement or allegation in any such request nor any record thereof shall affect the title to trust property or be deemed notice to any person that any person requesting copies of notice of default or of notice of sale has or claims any right, title, or interest in or lien or claim upon the trust property.
Nebraska Foreclosure Sale of Trust Property
On the date and at the time and place designated in the Nebraska foreclosure notice of sale, the trustee shall sell the property at public auction to the highest bidder. The attorney for the trustee may conduct the sale. Any person, including the beneficiary, may bid at the sale. Every bid shall be deemed an irrevocable offer, and if the purchaser refuses to pay the amount bid by him for the property struck off to him at the sale, the trustee may again sell the property at any time to the highest bidder. The party refusing to pay shall be liable for any loss occasioned thereby and the trustee may also, in his discretion, thereafter reject any other bid of such person. The person conducting the sale may, for any cause he deems expedient, postpone the sale from time to time until it shall be completed and, in every such case, notice of postponement shall be given by public declaration thereof by such person at the time and place last appointed for the sale. No other notice of the postponed sale need be given unless the sale is postponed for longer than one day beyond the day designated in the notice of sale in which event notice thereof shall be given in the same manner as the original notice of sale is required to be given.
(1) The purchaser at the sale shall forthwith pay the price bid and upon receipt of payment the trustee shall execute and deliver his deed to such purchaser. The trustee’s deed may contain recitals of compliance relating to the exercise of the power of sale and sale of the property described therein, including recitals concerning any mailing, personal delivery and publication of the notice of default, any mailing and the publication and posting of notice of sale, and the conduct of sale; and such recitals shall constitute prima facie evidence of such compliance and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.
(2) The trustee’s deed shall operate to convey to the purchaser, without right of redemption, the trustee’s title and all right, title, interest and claim of the trustor and his successors in interest and of all persons claiming by, through or under them, in and to the property sold, including all such right, title, interest and claim in and to such property acquired by the trustor or his successors in interest subsequent to the execution of the trust deed.
The trustee shall apply the proceeds of the trustee’s sale, first, to the costs and expenses of exercising the power of sale and of the sale, including the payment of the trustee’s fees actually incurred not to exceed the amount which may be provided for in the trust deed, second, to payment of the obligation secured by the trust deed, third, to the payment of junior trust deeds, mortgages, or other lien holders, and the balance, if any, to the person or persons legally entitled thereto.
Nebraska Foreclosure Deficiency Judgment
At any time within three months after any sale of property under a trust deed, as herein above provided, an action may be commenced to recover the balance due upon the obligation for which the trust deed was given as security, and in such action the complaint shall set forth the entire amount of the indebtedness which was secured by such trust deed and the amount for which such property was sold and the fair market value thereof at the date of sale, together with interest on such indebtedness from the date of sale, the costs and expenses of exercising the power of sale and of the sale. 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 Nebraska foreclosure sale, and in no event shall the amount of said judgment, exclusive of interest from the date of sale, exceed the difference between the amount for which the property was sold and the entire amount of the indebtedness secured thereby, including said costs and expenses of sale.
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