S-11-0817, Westin Hills West Three Townhome Owners Association (Appellant) v. Federal National Mortgage Association d/b/a Fannie Mae
Douglas County, Judge Thomas A. Otepka
Attorneys: Ben Thompson (Thompson Law PCLLO) (for Appellant) --- Donald J. Pavelka, Patricia D. Schneider (Locher Pavelka Dostal Braddy & Hammes LLC)
Civil: Foreclosure of liens
Proceedings below: The trial court granted Fannie Mae’s motion for summary judgment finding all junior liens and encumbrances on the property in question, including Appellant’s assessment liens, were effective extinguished and terminated when the trustee exercised the power of sale (Trustee’s Sale) as set forth in Neb. Rev. Stat. § 76-1005. Appellees filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: The trial court erred in (1) finding the Association’s statutory assessment lien was extinguished by the earlier Trustee’s Sale from which Fannie Mae acquired title but before Fannie Mae became delinquent in the payment of assessments; (2) finding that the Association’s contractual assessment lien did not arise until a notice of delinquency was recorded and was therefore junior to U.S. Bank’s trust deed and extinguished by the trustee’s sale; (3) applying Neb. Rev. Stat. § 52-2001retroactively, when the Association’s contractual assessment lien both attached and became perfected prior to the law’s effective date of March 4, 2010; (4) finding Neb. Rev. Stat. § 52-2001 controlled lien priorities as between the contractual assessment lien and the trust deed, when there is nothing in the statute’s language or the record that suggests any legislative intent to preempt or reprioritize assessment liens arising independently of section 52-2001.