Deutsche Bank Nat. Trust Co. v. Siegel

intentionally adopted a less stringent test for the “adaptive
skills” component of the definition for determining whether to
put a person to death.
I believe that the district court’s adoption of the “signifi-
cant limitations” standard for adaptive behavior impermissibly
increased Vela’s burden of proving mental retardation under
§ 28-105.01(3). The court’s alteration of the statutory standard
was inconsistent with both the plain language of the statute and
its legislative history, and invaded the Legislature’s prerogative
to set policy and declare the law. I would reverse the district
court’s order that found Vela was not mentally retarded and
remand the cause for a determination from the present record
whether Vela was mentally retarded under the standard set
forth in § 28-105.01(3).
D eutsche Bank national trust company, as trustee ,
unDer the pooling anD servicing agreement DateD as
of septemBer 1, 2002, morgan stanley D ean Witter
capital i inc., trust 2002-nc4, By anD through its
loan servicing agent, litton loan servicing , lp,
appellee , v. max D. siegel anD angela m.
siegel , husBanD anD Wife , appellants , anD
platte valley state Bank & trust company,
trustee anD Beneficiary, appellee .
777 N.W.2d 259
Filed January 8, 2010. 	No. S-08-1314.
1. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law
for the court, which requires an appellate court to reach a conclusion independent
of the lower court’s decision.
2. Judicial Sales. It is the general rule that confirmation of judicial sales rests
largely within the discretion of the trial court, and will not be reviewed except for
manifest abuse of such discretion.
3. Principal and Agent. A power of attorney authorizes another to act as
one’s agent.
4. Principal and Agent: Words and Phrases. Agency is the fiduciary relation
which results from the manifestation of consent by one person to another that
the other shall act on his behalf and subject to his control, and the consent of the
other to so act.
174 	279 NebrASkA reporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

5. ____: ____. In the relationship of principal and agent, an agent’s actual authority
is the power to act on the principal’s behalf in accordance with the principal’s
consent to the agency.
6. Partition: Judicial Sales. Generally, an upset bid following a judicial sale and
before a final confirmation should be considered only when it affords convinc-
ing proof that the property was sold at an inadequate price and that a just
regard for the rights of all concerned and the stability of judicial sales permits
its acceptance.
7. Foreclosure: Appeal and Error. When a defendant requests a stay of sale pursu-
ant to Neb. rev. Stat. § 25-1506 (reissue 2008), the defendant is precluded from
appealing from the foreclosure decree.
8. Foreclosure: Waiver: Appeal and Error. A request for a stay of sale is a waiver
of any prior error in the proceedings.
Appeal from the District Court for buffalo County: John p.
icenogle, Judge. Affirmed.
Michael J. Synek for appellants.
eric H. Lindquist, p.C., L.L.o., and Harvey b. Cooper, of
Abrahams, kaslow & Cassman, L.L.p., for appellee Deutsche
bank National Trust Company.
heavican, 	c.J., 	Wright, 	connolly, 	gerrarD, 	stephan,
mccormack, and miller-lerman, JJ.
Wright, J.
NATUre oF CASe
Deutsche bank National Trust Company (Deutsche bank),
by and through its loan servicing agent, Litton Loan Servicing,
Lp (Litton), sought judicial foreclosure of real estate owned by
Max D. Siegel and Angela M. Siegel. The district court con-
firmed a judicial sale of the property, and the Siegels appeal.
SCope oF reVIeW
[1] Subject matter jurisdiction is a question of law for the
court, which requires an appellate court to reach a conclusion
independent of the lower court’s decision. Gilbert & Martha
Hitchcock Found. v. Kountze, 275 Neb. 978, 751 N.W.2d
129 (2008).
[2] It is the general rule that confirmation of judicial sales
rests largely within the discretion of the trial court, and will
DeUTSCHe bANk NAT. TrUST Co. v. SIeGeL 	175
Cite as 279 Neb. 174

not be reviewed except for manifest abuse of such discretion.
Michelson v. Wagner, 170 Neb. 28, 101 N.W.2d 498 (1960).
FACTS
The Siegels owned residential real estate in buffalo County,
Nebraska. on June 11, 2002, they refinanced their home loan
in a consumer credit transaction by executing an adjustable
rate note to New Century Home Mortgage, secured by a deed
of trust on the real estate. New Century Home Mortgage
assigned the note in blank to Deutsche bank, as trustee, under
the “pooling and Servicing Agreement Dated as of September
1, 2002, Morgan Stanley Dean Witter Capital I, Inc., Trust
2002-NC4.” New Century Home Mortgage also assigned the
deed of trust to Deutsche bank. Litton was Deutsche bank’s
loan servicer.
The Siegels defaulted on the note by failing to pay install-
ments due on May 1, 2005, and thereafter. pursuant to the
terms of the note, the balance of the loan was accelerated and
was due and payable in full. Litton notified the Siegels of the
acceleration and filed a complaint on behalf of Deutsche bank
seeking judicial foreclosure of the Siegels’ right, title, lien,
and equity of redemption in the real estate under the deed
of trust.
In November 2006, the Siegels hired an auditing firm to
determine if Litton violated the Truth in Lending Act (TILA),
15 U.S.C. § 1601 et seq. (2006). They sought leave to file a
counterclaim based on alleged TILA violations, but the district
court denied their request. on March 13, 2007, the Siegels
informed Deutsche bank of their intent to rescind the loan
transaction, based on the alleged TILA violations.
on March 21, 2007, the district court entered a decree of
foreclosure. It also granted Deutsche bank’s motion for sum-
mary judgment, determined that the Siegels owed $174,538.26
on the note, and appointed a master commissioner to sell the
real estate. Upon the Siegels’ motion, the court stayed the order
of sale for 9 months pursuant to Neb. rev. Stat. § 25-1506
(reissue 2008).
The master commissioner conducted a public sale of the prop-
erty on November 4, 2008. Deutsche bank’s bid of $154,050
176 	279 NebrASkA reporTS

was the only bid submitted. Deutsche bank moved for confir-
mation of the sale, and a hearing was held for that purpose. The
Siegels offered evidence that the property had been appraised
at $206,000 and an affidavit of brett Weis, who stated that if
he had been aware of the judicial sale of the property, he would
have placed a bid to purchase the property for a sum greater
than $154,050. on December 1, Deutsche bank increased its
bid from $154,050 to $206,000.
At the hearing on confirmation of the sale, the district court
concluded that nothing in the evidence indicated the prop-
erty was not sold for fair value under the circumstances and
conditions of the public sale. It determined there was no evi-
dence that a subsequent sale would realize an amount greater
than the original sale price or the appraised value. The court
accepted Deutsche bank’s subsequent bid of $206,000, but
stated that it did so for the protection of the Siegels and not
because it believed the original bid did not represent the fair
market value of the property. Accordingly, the court confirmed
the sale of the property to Deutsche bank for $206,000. The
Siegels appeal.
ASSIGNMeNTS oF error
The Siegels allege, summarized and restated, that the buffalo
County District Court lacked jurisdiction to conduct the confir-
mation of sale proceedings and that the court erred in con-
firming the judicial sale and failing to find that the Siegels
rescinded the transaction prior to confirmation of the sale.
ANALYSIS
real party in interest anD JurisDiction
The Siegels claim that the district court did not have juris-
diction because Litton did not have authority to commence this
action or to act on behalf of Deutsche bank and, therefore, was
not the real party in interest. They assert that Deutsche bank
should have brought the claim in its own behalf.
Subject matter jurisdiction is a question of law for the
court, which requires an appellate court to reach a conclusion
independent of the lower court’s decision. Gilbert & Martha
Hitchcock Found. v. Kountze, 275 Neb. 978, 751 N.W.2d
DeUTSCHe bANk NAT. TrUST Co. v. SIeGeL 	177
Cite as 279 Neb. 174

129 (2008). The record shows that Litton had authority to
bring the foreclosure action against the Siegels on behalf of
Deutsche bank. Accordingly, this assignment of error is with-
out merit.
Deutsche bank was a party to the “pooling and Servicing
Agreement” (pSA), which designated Deutsche bank as trustee
and authorized a servicer to initiate foreclosure proceedings on
behalf of Deutsche bank. The Siegels asked for information in
the pSA in discovery requests. At Deutsche bank’s request, the
district court entered a protective order to keep the documents
confidential, and Deutsche bank then filed the pSA with the
court on February 22, 2007.
The pSA became part of the district court’s file at the time
of Deutsche bank’s filing. The court took judicial notice of the
entire court file on two occasions. on November 24, 2008, at
the hearing on Deutsche bank’s motion to confirm the sale of
the real estate, the court stated that it would take judicial notice
of all of the pleadings, the court file, attachments contained
thereto, and all exhibits. The November 24 hearing was con-
tinued to December 1, at which time Deutsche bank’s attorney
stated, “Judge, I first want to confirm that you have taken
judicial notice of your entire file . . . .” The court responded,
“Well, if I haven’t, I will.” The pSA was filed with this court as
a second supplemental transcript pursuant to Deutsche bank’s
request on october 20, 2009.
The pSA contains a section titled “Administration and
Servicing of Mortgage Loans,” which provides: “[T]he Servicer
in its own name or in the name of a Subservicer is hereby
authorized and empowered by the Trustee [Deutsche bank]
to institute foreclosure proceedings or obtain a deed-in-lieu
of foreclosure so as to convert the ownership of such proper-
ties . . . on behalf of the Trustee.” To carry out these powers,
the pSA states: “[T]he Trustee hereby grants to the Servicer,
and this Agreement shall constitute, a power of attorney to
carry out such duties including a power of attorney to take
title to Mortgaged properties after foreclosure on behalf of
the Trustee.” An employee of Litton stated in her affidavit that
Litton was the servicer for Deutsche bank.
178 	279 NebrASkA reporTS

[3-5] A power of attorney authorizes another to act as one’s
agent. First Colony Life Ins. Co. v. Gerdes, 267 Neb. 632,
676 N.W.2d 58 (2004). Agency is the fiduciary relation which
results from the manifestation of consent by one person to
another that the other shall act on his behalf and subject to his
control, and the consent of the other to so act. Equilease Corp.
v. Neff Towing Serv., 227 Neb. 523, 418 N.W.2d 754 (1988). In
the relationship of principal and agent, an agent’s actual author-
ity is the power to act on the principal’s behalf in accordance
with the principal’s consent to the agency. Oddo v. Speedway
Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989).
The pSA granted power of attorney to Litton and created
an agency relationship between Litton and Deutsche bank.
As Deutsche bank’s agent, Litton acted within the scope of
its authority in bringing this action against the Siegels. Litton
had the authority to commence the action in Deutsche bank’s
name pursuant to the power of attorney and agency agreement.
This arrangement is not improper. The pSA authorizes Litton
to initiate foreclosure proceedings on behalf of Deutsche bank;
therefore, the district court properly concluded that it had juris-
diction to decide this case.
JuDicial sale of real estate
The Siegels next claim that the district court should have
ordered a resale of the property and that the court improperly
accepted Deutsche bank’s second bid of $206,000 after the
judicial sale.
Nebraska law provides that a court shall confirm a judicial
sale if the court is satisfied that the sale “has in all respects
been made in conformity to the provisions of [chapter 25 of
the Nebraska revised Statutes] and that the said property was
sold for fair value, under the circumstances and conditions of
the sale, or, that a subsequent sale would not realize a greater
amount.” Neb. rev. Stat. § 25-1531 (reissue 2008). It is the
general rule that confirmation of judicial sales rests largely
within the discretion of the trial court, and will not be reviewed
except for manifest abuse of such discretion. Michelson v.
Wagner, 170 Neb. 28, 101 N.W.2d 498 (1960).
DeUTSCHe bANk NAT. TrUST Co. v. SIeGeL 	179
Cite as 279 Neb. 174

The hearing to confirm the judicial sale of the property took
place on two different days. on the first day, the Siegels offered
an appraisal that valued the property at $206,000. on the sec-
ond day, they offered Weis’ affidavit stating his willingness to
bid an unknown amount greater than $154,050 at a resale. They
claim this is evidence that the sale price was inadequate and
that a subsequent sale would realize a greater amount.
Whether the court should confirm a judicial sale is deter-
mined on the facts of each case. evidence that another party
who did not bid at the original judicial sale would pay more
for the property is not sufficient to prevent the court from
confirming the sale. In Kleeb v. Kleeb, 210 Neb. 637, 316
N.W.2d 583 (1982), property was sold at judicial sale to a
purchaser for $181,440. After the sale, an anonymous bidder
offered an “upset bid” of $189,540, good for 1 day only. The
court determined that the amount of the new offer was not a
substantial increase and that there was no evidence that a new
sale could start at the point of the upset bid, which was only
open for that day. It confirmed the judicial sale. on appeal, this
court affirmed the decision of the trial court and stated that
the court was well within its discretion in refusing to set aside
the alleged upset bid made by the unknown party, particularly
because there was no evidence that a resale would result in a
higher price.
In the present case, the district court was within its discre-
tion to refuse to order a resale based on the Siegels’ evidence.
Weis’ affidavit does not indicate how much he would bid if
there were a resale, and there is no evidence that his theoretical
bid would be substantially more than Deutsche bank’s bid of
$154,050. The court was within its discretion in declining to
speculate that Weis or any other bidder would pay significantly
more than $154,050 at a resale.
[6] The Siegels characterize Deutsche bank’s second bid
of $206,000 as an upset bid and claim that it should not have
been accepted and that the district court should have held a
resale instead. Generally, an upset bid following a judicial
sale and before a final confirmation should be considered only
when it affords convincing proof that the property was sold at
an inadequate price and that a just regard for the rights of all
180 	279 NebrASkA reporTS

concerned and the stability of judicial sales permits its accept-
ance. Destiny 98 TD v. Miodowski, 269 Neb. 427, 693 N.W.2d
278 (2005) (citing Kleeb v. Kleeb, supra). However, when the
upset bid is offered by the original bidder, it is not error for the
court to allow the bidder to increase his bid at the hearing for
confirmation of the sale if the property owner is not injured.
See Gordon State Bank v. Hinchley, 117 Neb. 211, 220 N.W.
243 (1928).
In Gordon State Bank, following the judicial sale, the court
stated its opinion that the winning bid was not a fair value
for the real estate. The winning bidder increased its bid, and
the court confirmed the sale. on appeal, we noted that with
respect to a judicial sale, the court may exercise its discretion.
Considering that the appellants were not prejudiced and that
any error was in their favor, we determined the court did not
err in allowing the bidder to increase his bid at the hearing for
confirmation of the sale.
Deutsche bank was the only bidder at the sale and the only
party to offer a subsequent bid. The amount of the second bid,
$206,000, was equal to the Siegels’ proffered appraisal value of
the property. In accepting the upset bid, the district court stated:
“Solely for the protection of the defendants, and not because
the court believes the original bid offer by the plaintiff does not
represent fair value of the property, the court will accept the
subsequent bid of the plaintiff of $206,000.00 for the property.”
The Siegels have not offered any evidence that the property
was not sold for fair value under the circumstances or that a
subsequent sale would have realized an amount greater than
$206,000. rather, the court’s acceptance of Deutsche bank’s
increased bid was in conformity with the value of the property
asserted by the Siegels.
Typically, the concern regarding acceptance of upset bids
is that the practice would render judicial sales meaningless
because bidders could skip the judicial sale and place their bids
with the court right before the confirmation hearing. Michelson
v. Wagner, 170 Neb. 28, 101 N.W.2d 498 (1960). Here, this is
not a concern because the upset bidder was Deutsche bank,
which merely outbid itself. There were no other bidders. The
second bid matched the property value asserted by the Siegels
DeUTSCHe bANk NAT. TrUST Co. v. SIeGeL 	181
Cite as 279 Neb. 174

and was a significant benefit to them. The district court did not
abuse its discretion in accepting Deutsche bank’s second bid of
$206,000 and confirming the sale.
truth in lenDing act
Lastly, the Siegels allege that the district court erred in fail-
ing to find that they rescinded the loan transaction based on
Deutsche bank’s alleged unspecified TILA violations. because
the Siegels received a stay of sale, this assignment of error
is waived.
prior to the foreclosure decree, the Siegels sought leave
to file a counterclaim based on alleged TILA violations. The
district court denied the motion. Subsequently, the Siegels
informed Deutsche bank of their intent to rescind the loan
based on TILA violations. Nonetheless, the district court
entered a decree of foreclosure.
[7,8] After the foreclosure decree was entered, the Siegels
requested and were granted a 9-month stay of sale in accord-
ance with § 25-1506. When a defendant requests a stay of
sale pursuant to § 25-1506, the defendant is precluded from
appealing from the foreclosure decree. Production Credit Assn.
of the Midlands v. Schmer, 233 Neb. 785, 448 N.W.2d 141
(1989); Federal Farm Mtg. Corporation v. Ganser, 145 Neb.
589, 17 N.W.2d 613 (1945); Ohio Nat. Life Ins. Co. v. Baxter,
139 Neb. 648, 298 N.W. 530 (1941); Carley v. Morgan, 123
Neb. 498, 243 N.W. 631 (1932); Ecklund v. Willis, 42 Neb.
737, 60 N.W. 1026 (1894); McCreary v. Pratt, 9 Neb. 122, 2
N.W. 352 (1879). A request for a stay of sale is also a waiver
of any prior error in the proceedings. Id. The unspecified
TILA violations alleged by the Siegels occurred prior to the
order of foreclosure and prior to their request for a stay of
sale. Accordingly, the Siegels’ claims regarding TILA viola-
tions are waived.
CoNCLUSIoN
We conclude that the district court had jurisdiction over
the parties, as Litton properly brought this action on behalf
of Deutsche bank, and that the court did not abuse its discre-
tion in confirming the judicial sale of the Siegels’ property.
182 	279 NebrASkA reporTS

because the Siegels stayed the judicial sale of their prop-
erty, their claims relating to TILA violations were waived.
Accordingly, we affirm the district court’s confirmation of the
judicial sale.
affirmeD.
STATe ex reL. CoUNSeL For DIS. v. CHAVez 	183
Cite as 279 Neb. 183
state of neBraska ex rel . counsel for D iscipline
of the neBraska supreme court, relator ,
v. Bart a. chavez , responDent.
776 N.W.2d 791
Filed January 8, 2010. 	No. S-09-643.
original action. Judgment of public reprimand.
heavican, 	c.J., 	Wright, 	connolly, 	gerrarD, 	stephan,
mccormack , and miller-lerman, JJ.
per curiam.
INTroDUCTIoN
respondent, bart A. Chavez, was admitted to the prac-
tice of law in the State of Nebraska on September 8, 1992,
after having been previously admitted to the practice of law
in the State of kansas. respondent is also admitted to the
practice of law before the U.S. immigration courts and the
board of Immigration Appeals. At all times relevant, respond-
ent was engaged in the private practice of law in omaha,
Nebraska, with the primary focus of his practice being immi-
gration matters.
on July 1, 2009, the office for the Counsel for Discipline of
the Nebraska Supreme Court filed a motion for reciprocal dis-
cipline pursuant to Neb. Ct. r. § 3-321. The motion stated that
on August 21, 2008, the bar counsel for the U.S. Department
of Justice executive office for Immigration review (eoIr)
filed a notice of intent to discipline respondent. In April 2009,
respondent and the eoIr entered into a settlement agreement
agreeing to resolve the disciplinary allegations against respond-
ent. on May 4, 2009, respondent received a public censure