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Twin Towers Condo. Ass'n v. Bel Fury Invs. Group, L.L.C.

Supreme Court of Nebraska

March 13, 2015

TWIN TOWERS CONDOMINIUM ASSOCIATION, INC., A NEBRASKA NONPROFIT CORPORATION, APPELLEE AND CROSS-APPELLANT,
v.
BEL FURY INVESTMENTS GROUP, L.L.C., A NEBRASKA LIMITED LIABILITY COMPANY, APPELLANT AND CROSS-APPELLEE, AND CREDIT BUREAU SERVICES, INC., A NEBRASKA CORPORATION, AND DOMINA LAW GROUP PCPC, LLOLLOLLO, A NEBRASKA PROFESSIONAL CORPORATION, APPELLEES

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Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.

Brian J. Muench for appellant.

Thomas J. Young for appellee Twin Towers Condominium Association, Inc.

HEAVICAN, C.J., CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

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[290 Neb. 330] Connnnolly, J.

I. SUMMARY

Bel Fury Investments Group, L.L.C. (Bel Fury), owns property located in the Twin Towers Condominium in Omaha, Nebraska. After Bel Fury failed to pay assessments for this property (Unit SCB), the Twin Towers Condominium Association, Inc. (the Association), recorded two notices of lien and filed a foreclosure action. When the Association filed the notices of lien and the complaint, it was levying assessments against Unit SCB in a manner prohibited by the Association's governing documents. The Association discovered the error while the foreclosure action was pending and recalculated the assessments. The district court found that the Association had a lien against Unit SCB for delinquent assessments and stated that the Association could foreclose its lien if Bel Fury did not pay the back assessments within 90 days.

On appeal, Bel Fury argues that the Association does not have a lien because it failed to levy assessments in the manner [290 Neb. 331] required by its governing documents. On cross-appeal, the Association argues that the court did not award all the relief the Association is entitled to and failed to make all the findings necessary for a foreclosure decree.

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We conclude that the Association's initial miscalculation of assessments did not invalidate its lien. We further conclude that the court erred by not awarding the Association attorney fees, not including several installments as part of the debt secured by the lien, and failing to include a legal description of Unit SCB in its decree.

II. BACKGROUND

1. Factual Background

The Twin Towers Condominium was created by a master deed recorded on December 30, 1983. The " condominium regime" consisted of two 10-story towers: the " South Tower" and " North Tower." The master deed provides that the Association serves as " a vehicle for the management of the condominium." Each unit owner is automatically a member of the Association.

The master deed authorizes the Association to levy assessments against the units under terms set forth in the bylaws. Paragraph 12 of the bylaws provides:

Assessments against each apartment owner for such common expenses shall be made annually on or before the fiscal year end preceding the year for which assessments are made. The annual assessments shall be due in 12 equal, monthly payments on the first day of each month. The assessments to be levied against each apartment shall be such apartment's pro rata share of the total annual budget based upon the percentage share of the such apartment's basic value as set forth in the Master Deed . . . . Assessments delinquent more than 10 days after the due date shall bear interest at the highest legal contract rate from the due date until paid. The delinquency of one installment of an assessment shall cause all remaining installments to immediately become due, payable and delinquent.

[290 Neb. 332] The master deed states that Unit SCB represents 1.42 percent of the condominium's basic value.

Bel Fury is a business engaged in real estate sales and rentals. Bel Fury bought Unit SCB--windowless commercial space in the basement of the " South Tower" --in July 2004.

In February 2010, the Association hired a property management company to help manage the condominium regime. The company's owner, David Davis, testified that his company's responsibilities included collecting assessments for the Association and keeping records of payments made by unit owners.

Davis testified that when his company " came on board" in February 2010, the Association was levying assessments " based on a square footage amount." In October or November 2012, Davis discovered that the master deed required assessments to be calculated according to each unit's proportional share of the regime's basic value. Davis informed the Association, which " decided to go back to 2009 and make everything . . . ...


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