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Wintroub v. Nationstar Mortgage LLC

Supreme Court of Nebraska

May 3, 2019

Edward Wintroub, appellant,
v.
Nationstar Mortgage LLC, appellee.

         1. Summary Judgment. Summary judgment is to be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

         2. ___ . Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

         4. Contracts. The interpretation of a contract and whether the contract is ambiguous are questions of law subject to independent review.

         5. Mortgages. The priority of a mortgage may be changed by agreement of the parties, rendering subordination agreements enforceable in mortgages under Nebraska law.

         6. Contracts: Mortgages: Intent. If an instrument executed by parties is intended by them as security for a debt, whatever may be its form or name, it is in equity a mortgage.

         7. Contracts: Mortgages: Words and Phrases. As with the terms used in describing a mortgage, the Nebraska Supreme Court has repeatedly termed a purchaser's interest under an executory land contract as both a "security" and a "lien" upon the land.

         8. Contracts: Mortgages: Title: Liens. Because a seller in a land contract retains the title as security for the unpaid purchase money and has an equitable lien on the land to the extent of the debt, a seller has, for all intents and purposes, a purchase-money mortgage.

         [303 Neb. 16] 9. Contracts: Mortgages. Subordination agreements are enforceable in land contracts.

         10. ___: ___ . Nebraska courts apply basic contract principles to determine the enforceability, validity, and meaning of a subordination agreement.

         11. Contracts. In interpreting contracts, the court as a matter of law must first determine whether the contract is ambiguous.

         12. Contracts: Words and Phrases. An instrument is ambiguous if a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.

         13. Contracts: Intent. If a contract is unambiguous, the intent of the parties must be determined from the contents of the contract.

          Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

          Melvin C. Hansen and Edward L. Wintroub for appellant.

          Brian D. Nolan and Elizabeth Gasaway, of Nolan, Olson & Stryker, PC, L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Freudenberg, J..

         NATURE OF CASE

         Purchasers of property entered into a land contract with a seller-trust for the purchase of a residence. Both parties agreed to a provision in the contract that stated: "Until all amounts due hereunder are paid in full, this Land Contract shall be subordinated to any rights held by Seller's Lender." Subsequently, after the purchasers took possession, the seller-trust signed a promissory note and a deed of trust to a bank for a sum of money in order to pay a previously existing mortgage on the purchased property. The note and deed of trust were subsequently assigned to various entities, eventually being assigned to its current holder, a mortgage company who appears as the appellee in this case. At ...


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