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Security State Bank, Ansley, Nebraska, A Nebraska Banking Corporation v. Bopp

Court of Appeals of Nebraska

May 14, 2013

Security State Bank, Ansley, Nebraska, a Nebraska banking corporation, appellee,
v.
Tim Bopp and Yvonne Bopp, appellants, and 4-Jen, Inc., appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Custer County: Karin L. Noakes, Judge. Reversed and remanded.

Tim Bopp, pro se, and Yvonne Bopp, pro se.

Christopher P. Wickham, of Sennett, Duncan & Jenkins, P.C., L.L.O., for appellee Security State Bank, Ansley, Nebraska.

Sievers, Pirtle, and Riedmann, Judges.

Pirtle, Judge.

INTRODUCTION

Security State Bank (Bank), Ansley, Nebraska, brought a replevin action against Tim Bopp, Yvonne Bopp, and 4-Jen, Inc., for the delivery of personal property covered under security agreements. The security agreements were connected with promissory notes executed by the Bopps and 4-Jen in favor of the Bank, on which the Bopps and 4-Jen defaulted. The district court for Custer County granted summary judgment in favor of the Bank and entered judgment against the Bopps and 4-Jen. The Bopps appeal. Because we find that the Bopps presented sufficient evidence to create a genuine issue of material fact, we reverse the judgment and remand the matter as to the Bopps only. The district court's ruling as to 4-Jen was not appealed, and therefore, it is not before us and we need not address it further.

BACKGROUND

From 2008 to 2010, the Bopps and 4-Jen executed promissory notes in favor of the Bank. Tim Bopp is the registered agent of 4-Jen, which is a Nebraska corporation with its principal place of business in Westerville, Custer County, Nebraska. The promissory notes were secured by security agreements granting the Bank a security interest in personal property covered under the security agreements. The Bopps and 4-Jen failed to pay the promissory notes when they were due, and the promissory notes were in default.

On August 22, 2011, the Bank filed a petition in replevin seeking a judgment against the Bopps and 4-Jen for the return of personal property covered under the security agreements.

On May 30, 2012, the Bank filed a motion for summary judgment. On June 12, the Bopps filed a "Dispute of Alleged Debt, " which stated that they were disputing the debt alleged to be owed to the Bank because the parties had negotiated and agreed to a settlement of the Bopps' complete debt which involved the Bopps' transferring a parcel of land to the Bank by quitclaim deed in October 2011.

On July 5, 2012, the trial court held a hearing on the Bank's motion for summary judgment. The Bank offered into evidence an affidavit of Brad Parliament, the vice president of the Bank, which affidavit set forth information regarding the promissory notes executed by the Bopps and 4-Jen and the security agreements that secured those promissory notes. The affidavit also stated that the Bank had perfected its security interest in the personal property covered under the security agreements by filing certain documents with the Nebraska Secretary of State. The affidavit stated that the Bopps and 4-Jen had failed to pay the promissory notes when due and they were in default and that by virtue of the terms of the security agreements, the Bank was entitled to bring a replevin action, as it did, in order to repossess the personal property pledged as collateral for the promissory notes. The affidavit stated that the total debt owed by the Bopps and 4-Jen as of June 8, 2012, including interest and late charges, was $288, 811.01. The promissory notes and security agreements were attached to the affidavit and entered into evidence along with the affidavit.

The Bopps, representing themselves, offered two exhibits into evidence. The first was a "Response to Affidavit of . . . Parliament, " in which the Bopps alleged the parties had agreed that the quitclaim deed executed in October 2011 released the Bopps from all debt owed to the Bank. The second exhibit was a motion for summary judgment previously filed by the Bopps and 4-Jen, with ...


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