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Federal National Mortgage Association v. Marcuzzo

Supreme Court of Nebraska

October 17, 2014

FEDERAL NATIONAL MORTGAGE ASSOCIATION, APPELLEE,
v.
BRIAN S. MARCUZZO AND DONNNNA M. MARCUZZO, APPELLANTS

Page 775

[Copyrighted Material Omitted]

Page 776

Appeal from the District Court for Sarpy County, William B. Zastera, Judge, on appeal thereto from the County Court for Sarpy County, Jeffrey J. Funke, Judge.

Douglas W. Ruge, P.C., L.L.O., for appellants.

Dustin J. Kessler, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for appellee.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, AND CASSEL, JJ.

OPINION

Page 777

[289 Neb. 303] Cassel, J.

INTRODUCTION

Our case law requires a court to dismiss a forcible entry and detainer action upon receiving evidence of the existence of a title dispute. We must decide whether the rule applies where, after the defendants had merely alleged the existence of a title dispute, the plaintiff obtained a continuance without confessing the nature of a pending district court action. Thus, by the time the county court was presented with evidence regarding a title dispute, the district court action had been decided. Because no evidence of the dispute was presented to the county court until after it had been resolved, we conclude the county court was not divested of jurisdiction.

BACKGROUND

Brian S. Marcuzzo and Donna M. Marcuzzo purchased property in Sarpy County, Nebraska, financed in part by a promissory note secured by a deed of trust. They subsequently ceased making payments on the note and received a notice of default and notice of sale. The property was later conveyed to Federal National Mortgage Association (FNMA) by trustee's deed.

[289 Neb. 304] FNMA filed a forcible entry and detainer complaint against the Marcuzzos in the county court for Sarpy County. On April 11, 2012, the Marcuzzos entered an " Appearance for Jurisdictional Challenge Only." They alleged that they had filed an action in the district court for Sarpy County, case No. CI 12-116, which challenged title in FNMA. The Marcuzzos therefore claimed that the county court lacked jurisdiction pursuant to Cummins Mgmt. v. Gilroy.[1] No parties appeared for a hearing on April 17. Thus, no evidence was presented at that hearing.

On November 7, 2012, FNMA filed a motion to continue the county court case. FNMA requested to continue the matter " until such time as the Sarpy County District Court action, Case No. CI 12-116, has been decided. Such action in the District Court has prevented this County Court action from proceeding." The bill of exceptions does not contain a hearing on this motion. In an order prepared by FNMA's counsel, which repeated the above-quoted language of the motion, the court ...


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