County of Hitchcock v. Barger

872 	275 NeBrASkA rePOrTS
Poindexter did not have a liberty interest in having his sentence
commuted for an April 17, 1988, release. His argument that
April 17, 1988, was his “defacto [sic] mandatory release date”
is without merit.
3. P oindexteR’ s additional assignments of
eRRoR aRe without meRit
We have considered Poindexter’s remaining assignments of
error, and we conclude they are without merit.
VI. CONCLUSION
We conclude that under both the statutes in place when
Poindexter 	committed 	his 	crime 	and 	the 	current 	statutes,
Poindexter is not eligible for parole until the Board of Pardons
commutes his life sentence to a term of years. We further con-
clude that Poindexter did not have a liberty interest in having
his sentence commuted to obtain an April 17, 1988, release. The
district court did not err in quashing the writ of habeas corpus
and dismissing Poindexter’s case.
affiRmed .
county of hitchcock , nebRaska , a Political subdivision of
the state of nebRaska , aPPellant , v . william m. baRgeR,
also known as bill baRgeR, et al ., aPPellees .
750 N.W.2d 357
Filed June 13, 2008. 	No. S-07-105.
1. Summary Judgment. Summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue regarding any material fact
or the ultimate inferences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the 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.
3. Judgments: Appeal and Error. An appellate court reviews questions of law inde-
pendently of the lower court’s conclusion.
4. Actions: Foreclosure: Liens: Real Estate: Tax Sale: Time. Under Neb. rev. Stat.
§ 77-1902 (reissue 2003), an action to foreclose a lien for taxes represented by a
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

tax sale certificate shall only be brought within 6 months after the expiration of 3
years from the date of sale of any real estate for taxes or special assessments.
5. Bankruptcy: Service of Process: Notice: Time. Neb. rev. Stat. § 25-510.02(2)
(reissue 1995) is not relevant to whether a county is properly served with a bank-
ruptcy dismissal notice for purposes of determining whether the 30-day period in
11 U.S.C. § 108(c)(2) (2000) is triggered.
6. Bankruptcy: Notice: Time. When deciding whether purported notice of a bank-
ruptcy dismissal is sufficient to trigger the 30-day time limit in 11 U.S.C.
§ 108(c)(2) (2000), a court should determine whether the notice was reasonably
calculated to apprise the claimant that the stay terminated or expired.
Appeal from the district Court for Hitchcock County: david
uRbom, Judge. Affirmed.
d. eugene Garner, Hitchcock County Attorney, for appellant.
George G. Vinton for appellees William M. Barger and
randee L. Barger.
heavican, 	C.J., 	wRight, 	connolly, 	geRRaRd, 	stePhan,
mccoRmack, and milleR-leRman, JJ.
connolly, J.
County of Hitchcock, Nebraska (the County), brought this
action to foreclose two tax sale certificates issued for delinquent
taxes on real estate owned by William M. Barger and randee
L. Barger. After the Hitchcock County treasurer issued the
certificates to the County, but before the County petitioned for
foreclosure, the Bargers filed for chapter 13 bankruptcy. Under
11 U.S.C. § 362(a) (2000), the County was automatically stayed
from enforcing its liens when the Bargers filed their bankruptcy
petition. Under 11 U.S.C. § 108(c) (2000), the County had 30
days after receiving notice of the bankruptcy dismissal to file
its petition in foreclosure. The Bargers argued that the County
failed to timely file its petition. The district court agreed and
granted the Bargers’ motion for summary judgment.
The issue is, When did the County receive notice of the bank-
ruptcy dismissal? The Bargers argue that the County received
notice when the bankruptcy court sent notice to the County
treasurer in March 2002. The County argues the treasurer was
not the proper party to receive notice. The County contends that
it did not receive notice until June 2002 when the Hitchcock
COUNTY OF HITCHCOCk v. BArGer 	873
Cite as 275 Neb. 872

874 	275 NeBrASkA rePOrTS
County Board of Commissioners received a letter from William
Barger notifying the board of the bankruptcy dismissal. Because
the notice to the treasurer was reasonably calculated to apprise
the County that the bankruptcy court had dismissed the Bargers’
case, we affirm.
I. BACkGrOUNd
On July 27, 1998, the County treasurer issued to the County
tax sale certificate No. 13-98 for delinquent taxes on real
estate owned by the Bargers. This certificate covered property
described as the west half of Section 9, Township 4 North, range
32 West of the 6th P.M., Hitchcock County. On October 1, the
treasurer issued to the County tax sale certificate No. 35-98 for
delinquent taxes on other real estate the Bargers owned. This
certificate covered property described as the northeast quarter
of Section 8, Township 4 North, range 32 West of the 6th P.M.,
Hitchcock County.
In december 2001, before the County petitioned to foreclose
the tax certificates, the Bargers filed for chapter 13 bankruptcy.
The U.S. Bankruptcy Court for the district of Nebraska dis-
missed the bankruptcy case in March 2002. The record reflects
that on March 22, the bankruptcy court served a notice of dis-
missal by first class mail on “Hitchcock County Treasurer, P.O.
Box 218, Trenton, Ne 69044-0218.” The record also contains
William Barger’s affidavit. The affidavit states that in “mid-
June, 2002,” he sent a certified letter to the board of commis-
sioners verifying that the notice of dismissal had been received.
The minutes of the July 1, 2002, board of commissioners meet-
ing “acknowledged receipt of a ‘Notice of dismissal of Chapter
13 Bankruptcy’ from William M. Barger, delivered by certified
mail on June 13, 2002.”
On July 15, 2002, the County filed its petition to foreclose
on tax certificates Nos. 13-98 and 35-98. In their answer,
the Bargers alleged that the certificates were void because
the County failed to timely file the petition within the time-
frame required under Neb. rev. Stat. § 77-1902 (reissue
2003), as extended by 11 U.S.C. § 108(c). The Bargers moved
for summary judgment, which the district court granted. The
County appeals.

II. ASSIGNMeNTS OF errOr
The County assigns, restated and consolidated, that the dis-
trict court erred in deciding the County’s petition was untimely
and in sustaining the Bargers’ motion for summary judgment.
III. STANdArd OF reVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.1 In reviewing a summary judg-
ment, we view the evidence in the light most favorable to the
party against whom the judgment is granted and give such
party the benefit of all reasonable inferences deducible from
the evidence.2
[3] We review questions of law independently of the lower
court’s conclusion.3
IV. ANALYSIS
1. time foR filing an action to foReclose taxes
undeR nebRaska law
[4] Under § 77-1902, an action to foreclose a lien for taxes
represented by a tax sale certificate “shall only be brought
within six months after the expiration of three years from the
date of sale of any real estate for taxes or special assessments.”
Here, the treasurer issued certificate No. 13-98 to the County
on July 27, 1998. The certificate expired on July 27, 2001.
Under § 77-1902, the County had until 6 months later, January
27, 2002, to file its foreclosure petition on No. 13-98. The
treasurer issued certificate No. 35-98 to the County on October
1, 1998. That certificate expired on October 1, 2001. Applying
§ 77-1902, the County had 6 months, until April 1, 2002, to file
its foreclosure petition on No. 35-98. But the Bargers’ filing for
bankruptcy affected these time limits.
1 Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
2 Id.
3 See id.
COUNTY OF HITCHCOCk v. BArGer 	875
Cite as 275 Neb. 872

876 	275 NeBrASkA rePOrTS
2. the baRgeRs ’ filing foR bankRuPtcy extended the time in
which the county had to file the foReclosuRe P etitions
The Bargers filed for bankruptcy in december 2001, trigger-
ing the automatic stay under 11 U.S.C. § 362(a). As a result, the
County was unable to commence the actions to foreclose the tax
liens. The stay continued until the bankruptcy court dismissed
the Bargers’ case on March 18, 2002. Under § 77-1902, the
time for filing the foreclosure petition on No. 13-98 expired on
January 27, during the automatic stay. The time for filing the
petition on No. 35-98 expired on April 1, about 14 days after
the stay terminated.
The bankruptcy code offers protection for claimants whose
claims might otherwise expire during the pendency of a bank-
ruptcy stay or before, or within a short time after, the claimant
learns of the stay’s termination. 11 U.S.C. § 108(c) provides, in
relevant part:
except as provided in section 524 of this title, if applicable
nonbankruptcy law . . . fixes a period for commencing or
continuing a civil action in a court other than a bankruptcy
court on a claim against the debtor . . . and such period
has not expired before the date of the filing of the petition,
then such period does not expire until the later of—
(1) the end of such period, including any suspension of
such period occurring on or after the commencement of
the case; or
(2) 30 days after notice of the termination or expira-
tion of the stay under section 362 . . . with respect to
such claim.
When § 108(c) applies, “any time deadline for commencing
and continuing the action is extended to 30 days after notice of
termination of the stay, if the deadline would have occurred on
an earlier date.”4 As mentioned, under § 77-1902, the period for
filing the petition on No. 13-98 expired on January 27, 2002,
before the stay terminated. The period for filing the petition
on No. 35-98 expired on April 1, 2002, 14 days after the stay
terminated. Therefore, January 27 and April 1 are the relevant
dates for § 108(c)(1). Both dates occurred before the deadline
4 2 Collier on Bankruptcy ¶ 108.04 at 108-13 (rev. 15th ed. 2008).

described in § 108(c)(2), so the extension in § 108(c)(2) applies.
Under § 108(c)(2), the County had 30 days following notice of
the stay’s termination to file the foreclosure petition for Nos.
13-98 and 35-98. Therefore, in deciding if the County’s petition
was timely, we must determine when the County received notice
of the bankruptcy dismissal.
3. the county R eceived notice of the bankRuPtcy
dismissal in maRch 2002
(a) To Trigger the 30-day Limit in § 108(c)(2), Notice Must Be
reasonably Calculated to Apprise the Claimant
That the Stay Has Terminated or expired
The County filed its foreclosure petition on July 15, 2002.
The issue is whether July 15 was within 30 days of the County’s
receiving notice that the bankruptcy court had dismissed the
Bargers’ bankruptcy. The parties disagree about when the County
received that notice. The Bargers contend that the County
received notice when the bankruptcy court sent notice of the dis-
missal to the County treasurer in March. The County contends
that it did not receive notice of dismissal when the treasurer
received notice because the treasurer was not the proper party to
receive the notice. Instead, the County contends that it did not
receive notice until it received a letter from William Barger on
June 13. Because July 13 fell on a Saturday, the County argues
that the petition was timely filed Monday, July 15.
[5] The County relies on Neb. rev. Stat. § 25-510.02(2)
(reissue 1995) to argue that the proper party to receive notice
was the Hitchcock County clerk or chief executive officer.
Section 25-510.02(2) provides, “Any county . . . of this state
may be served by personal, residence, or certified mail service
upon the chief executive officer, or clerk.” The County’s reli-
ance on this section is misplaced. Section 25-510.02(2) falls
within chapter 25, article 5, which is entitled “Commencement
of Actions; Process.” The statute is relevant for determining how
to serve a county when commencing an action involving the
county—service of process. But the County was not served with
notice of the bankruptcy dismissal for purposes of commenc-
ing an action involving the County. Therefore, § 25-510.02(2)
is irrelevant.
COUNTY OF HITCHCOCk v. BArGer 	877
Cite as 275 Neb. 872

878 	275 NeBrASkA rePOrTS
The County also argues that the County, acting by and through
its board, was the “‘holder’” of Nos. 13-98 and 35-98 and was
the “‘creditor’” for purposes of the bankruptcy proceeding.5
Thus, according to the County, the board was the proper entity
to receive notice of the bankruptcy dismissal, and the board did
not receive notice until June 13, 2002.
[6] The Bargers argue that under a due process analysis, the
proper standard for determining whether notice to the treasurer
put the County on notice is whether that notice was “reasonably
calculated” to apprise the County of the bankruptcy dismissal.6
Generally, due process requires notice “reasonably calculated
. . . to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.”7
Although we do not engage in a due process analysis here, we
conclude that the “reasonably calculated” standard should apply
when deciding whether purported notice is sufficient to trigger
the 30-day time limit in § 108(c)(2).
The “reasonably calculated” standard helps further the pur-
pose of § 108(c). Section 108(c) protects claimants by prevent-
ing a debtor from strategically filing for bankruptcy to shorten
a limitations period and using the expiration of the limitations
period as a defense.8 But once a claimant receives proper notice
that the stay has expired or terminated, that party has only 30
days under § 108(c)(2) to commence or continue an action. We
believe the protection offered by § 108(c) would be undermined
if the 30-day limit could be triggered by something less than
notice reasonably calculated to apprise the claimant that the stay
had terminated or expired. Therefore, we will consider whether
notice to the treasurer was reasonably calculated to apprise the
County that the automatic stay had terminated.
5 Brief for appellant at 14.
6 Brief for appellees William Barger and randee Barger at 8.
7 Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L.
ed. 865 (1950). See, also, In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d
453 (1992).
8 See National Bank of Commerce v. Ham, 256 Neb. 679, 592 N.W.2d 477
(1999).

(b) Notice to the Treasurer Was reasonably Calculated to
Apprise the County That the Automatic
Stay Had Terminated
Another case addressing sufficiency of notice to an entity
within a county system is In re Riverchase Apartments, L.P.9
There, a county argued that it was not bound by the terms of a
confirmed reorganization plan because it did not receive notice
of the bankruptcy case until after the confirmation. Notice of
the events leading up to the confirmation was sent to the county
clerk’s address. The county argued that the proper address
for service of process was that of the county judge or county
attorney. The issue was whether notice to the county clerk was
reasonably calculated to apprise the county of the pendency of
the bankruptcy. The court concluded that it was. According to
the court, once the clerk received notice, “delivery to the appro-
priate person within the County system was the responsibility
of the . . . Clerk’s Office.”10 The court noted, “‘A creditor may
cho[o]se to organize its business by dividing activities into vari-
ous departments, [but] it may not use that method of operation
as a shield against notice properly sent to the creditor in its
name and place of business.’”11
We find this reasoning persuasive, given the treasurer’s duties
regarding tax sale certificates. For instance, the treasurer issues
the tax sale certificates.12 The treasurer also keeps a sale book in
which the details of the certificates are recorded.13 Most impor-
tant, when the county board is the purchaser, as it was here, the
treasurer retains custody of the certificate.14 And in such cases,
the treasurer may assign the certificate to any person wishing to
buy the certificate.15 Clearly, the treasurer has many responsi-
bilities relating to the tax sale certificates.
9 In re Riverchase Apartments, L.P., 184 B.r. 35 (M.d. Tenn. 1993).
10 Id. at 40.
11 Id., quoting In re Worthing, 24 B.r. 774 (d. Conn. 1982).
12 Neb. rev. Stat. §§ 77-1809 and 77-1818 (reissue 2003).
13 Neb. rev. Stat. § 77-1812 (reissue 2003).
14 § 77-1809.
15 Id.
COUNTY OF HITCHCOCk v. BArGer 	879
Cite as 275 Neb. 872

880 	275 NeBrASkA rePOrTS
Here, the bankruptcy dismissal notice was pertinent to the
County’s foreclosure actions: In effect, the notice announced
the termination of the stay that had prevented the County from
initiating the foreclosure of its tax sale certificates. We believe
it is reasonable to conclude that once the treasurer received the
dismissal notice, the treasurer had a responsibility to deliver
the notice to the appropriate entity within the county system.
Therefore, notice to the treasurer was reasonably calculated to
apprise the board that the bankruptcy court had dismissed the
case and that the County could initiate its foreclosure action.
In passing, we note that had a party other than the county
acquired the tax sale certificates, notice to the treasurer would
not have met the “reasonably calculated” standard. The linchpin
of our analysis is that the treasurer retained the certificates
issued to the County and the relevant parties here are all entities
within the county system. It is not unreasonable to expect the
treasurer to forward the notice to the proper entity within the
county system. Moreover, the treasurer’s office was the central
clearinghouse for the tax sale certificates.
We conclude that the bankruptcy dismissal notice sent to the
treasurer was reasonably calculated to apprise the County that
the automatic stay was terminated. Therefore, we find that for
purposes of § 108(c)(2), the County received notice of the stay’s
termination in March 2002, when the bankruptcy court sent the
dismissal notice to the treasurer.
4. the county ’ s foReclosuRe P etition was untimely
Under § 108(c)(2), the County had 30 days after notice of
the automatic stay’s termination to file its foreclosure petition.
The County received notice in March 2002 but did not file the
petition until July 2002. Therefore, the County’s foreclosure
petition was untimely. Thus, the district court did not err in
granting summary judgment for the Bargers and dismissing the
County’s petition.
V. CONCLUSION
We conclude that notice to the treasurer regarding the bank-
ruptcy dismissal was notice reasonably calculated to apprise
the County of the automatic stay’s termination. Therefore, for

purposes of § 108(c)(2), the County received notice of the stay’s
termination in March 2002. Under § 108(c)(2), the County had
30 days to file its foreclosure petition, but the County did not
file the petition until July 2002. Thus, the County’s petition was
untimely. The district court did not err in granting the Bargers’
motion for summary judgment.
affiRmed .
heavican, C.J., not participating in the decision.
state of nebRaska ex Rel . counsel foR disciPline
of the nebRaska suPReme couRt , RelatoR, v .
william l. switzeR, JR., ResPondent .
750 N.W.2d 681
Filed June 13, 2008. 	No. S-07-182.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de novo
on the record.
2. Disciplinary Proceedings: Proof. To sustain a charge in a disciplinary pro-
ceeding against an attorney, a charge must be supported by clear and convinc-
ing evidence.
3. Disciplinary Proceedings. Violation of a disciplinary rule concerning the practice
of law is a ground for discipline.
4. Disciplinary Proceedings: Appeal and Error. When no exceptions to the ref-
eree’s findings of fact are filed by either party in an attorney discipline proceeding,
the Nebraska Supreme Court may, in its discretion, consider the referee’s findings
final and conclusive.
5. Disciplinary Proceedings. The basic issues in a disciplinary proceeding against an
attorney are whether discipline should be imposed and, if so, the type of discipline
appropriate under the circumstances.
6. ____. each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances.
7. ____. For purposes of determining the proper discipline of an attorney, the
Nebraska Supreme Court considers the attorney’s acts both underlying the events
of the case and throughout the proceeding. The determination of an appropriate
penalty to be imposed on an attorney in a disciplinary proceeding also requires the
consideration of any aggravating or mitigating factors.
Original action. Judgment of suspension.
kent 	L. 	Frobish, 	Assistant 	Counsel 	for 	discipline, 	for
relator.
STATe ex reL. COUNSeL FOr dIS. v. SWITzer 	881
Cite as 275 Neb. 881