1. Summary Judgment. Summary judgment is to be granted when

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Nebraska supreme Court advaNCe sheets

303 Nebraska reports

WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

edward wiNtroub, appellaNt, v.

NatioNstar mortgage llC, appellee.

___ N.W.2d ___

Filed May 3, 2019. No. S-18-142.

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, deposi-

tions, 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 judg-

ment, 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 mort-

gages 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/30/2024 01:00 AM CDT

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Nebraska supreme Court advaNCe sheets

303 Nebraska reports

WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

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, P.C., 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 sub-

ordinated 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 subse-

quently assigned to various entities, eventually being assigned

to its current holder, a mortgage company who appears as the

appellee in this case. At issue is whether the quoted provision

in the land contract effectively subordinated the rights of the

purchasers to the rights held by later assignees of the note and

deed of trust.

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Nebraska supreme Court advaNCe sheets

303 Nebraska reports

WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

FACTS

Appellant, Edward Wintroub, filed an appeal from an order

dated January 23, 2018, by the Douglas County District Court,

which granted a motion for summary judgment in favor of

appellee, Nationstar Mortgage LLC (Nationstar).

Wintroub and his wife entered into a purchase agreement

with Landmark Enterprises on January 6, 2006, to purchase

a residence being built by Landmark Enterprises on Harney

Street in Omaha, Douglas County, Nebraska, for $610,000. At

that time, the house had been under construction for about 1

year and the Wintroubs were involved in the design and con-

struction decisions of this house.

On February 23, 2006, the house was completed and the

Wintroubs entered into a land contract with the Steve Faller

Revocable Trust (Faller Trust) to purchase the residence.

On the same day and just prior to the transfer, Landmark

Enterprises transferred its interest in this property to the

Faller Trust.

Also on February 23, 2006, Steve Faller, as trustee of the

Faller Trust, signed a promissory note to Lehman Brothers

Bank for $488,000, which was used to pay the existing mort-

gage on the property with Great Western Bank and a con-

struction lien. The Great Western Bank mortgage had been

previously recorded with the Douglas County register of deeds

in 2004.

On February 24, 2006, Faller, individually and as trustee

of the Faller Trust, signed a deed of trust to Lehman Brothers

Bank to secure the above-noted promissory note. The deed of

trust was dated February 23, 2006. The deed of trust was filed

and recorded with the Douglas County register of deeds on

March 8.

The note and deed of trust were assigned to various enti-

ties, and the current holder of the note and deed of trust is

Nationstar, the appellee in this case. Nationstar filed and

recorded its assignment on September 25, 2012, with the

Douglas County register of deeds.

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WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

According to the February 2006 land contract, the Faller

Trust was the grantor of the property and the Wintroubs

were the grantees. Pursuant to the terms of the contract, the

Wintroubs were required to pay the contract price in full by

March 1, 2008. The contract provided: “Until all amounts due

hereunder are paid in full, this Land Contract shall be subordi-

nated to any rights held by Seller’s Lender.” Timely payment

was not made by the Wintroubs. Consequently, the parties

entered into a new land contract with the same above-quoted

provision on August 30, 2010. The new contract explicitly

canceled the prior contract and required the Wintroubs to pay

the full contract price by July 1, 2012. Timely payment was

again not made by the Wintroubs. Neither of the land contracts

was recorded.

The Faller Trust eventually defaulted on its loan, and based

on this default, a sale of the property was scheduled for June

8, 2015. Wintroub filed suit to enjoin a trustee sale of the

property, asserting that his claim to the property was supe-

rior to that of Nationstar. Nationstar moved for summary

judgment.

Nationstar asserted four different legal theories in support

of its motion for summary judgment. The lower court agreed

that based on the evidence submitted at the hearing, there was

no issue of fact that Nationstar had superior title as a result

of the March 2006 deed of trust in favor of its predecessor,

Lehman Brothers Bank. The court did not address Nationstar’s

other theories.

Wintroub argued that because he was in actual possession of

the property, Nationstar had a duty to inspect the property to

determine if someone was in actual possession of it. He relied

on Grand Island Hotel Corp. v. Second Island Development

Co.,

where we held that a purchaser is charged with notice of

a tenant’s right when the latter is in actual possession of the

Grand Island Hotel Corp. v. Second Island Development Co., 191 Neb. 98,

214 N.W.2d 253 (1974).

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WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

real estate at the time it is sold. This notice, Wintroub argued,

would negate the original bank’s status as a “good faith pur-

chaser” under Nebraska’s race-notice statute, see Neb. Rev.

Stat. § 76-238 (Reissue 2018). In support of this argument,

Wintroub submitted an affidavit that affirmed that he and his

wife took possession of the property at issue on February

23, 2006.

Nationstar disagreed and argued that this inspection

requirement applies only to a landlord-tenant situation, not

a purchase-money mortgage transaction such as this one.

Nationstar noted that Nebraska has never applied this require-

ment to the purchase and sale of private residential buildings.

Ultimately, the district court found that it need not deter-

mine whether the rule in Grand Island Hotel Corp. might

apply in this case, because the two land contracts in question

have a similar provision: “Until all amounts due hereunder

are paid in full, this Land Contract shall be subordinated to

any rights held by Seller’s Lender(s).” The court held that this

clearly meant that if there were any lenders of the Faller Trust,

then those lenders take precedence over and rights or interest

of Wintroub. In addition, the court found:

Because the second Land contract cancelled the first

Land Contract, the new interest of [Wintroub] began on

August 30, 2010. Thus, the filing with the Register of

Deeds of the Lehman Brothers mortgage in March of

2006 takes precedent over any priority the 2010 Land

Contract provided to [Wintroub]. This precedence also

extends to all of the assignees, which [Nationstar] is such

an assignee.

As a result, the court sustained Nationstar’s motion for

summary judgment and dismissed the case accordingly.

Wintroub appeals.

ASSIGNMENT OF ERROR

Wintroub assigns that the district court erred in granting

Nationstar’s motion for summary judgment where genuine

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Nebraska supreme Court advaNCe sheets

303 Nebraska reports

WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

issues of material fact, and the ultimate inferences that may

be drawn from those facts, exist.

STANDARD OF REVIEW

[1-3] 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.

Under this court’s standard

of review, summary judgment is proper only when the plead-

ings, 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.

In reviewing a summary judgment, an appel-

late 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] The interpretation of a contract and whether the con-

tract is ambiguous are questions of law subject to indepen-

dent review.

ANALYSIS

On appeal, Wintroub contends that the district court erred

in sustaining Nationstar’s motion for summary judgment.

Wintroub primarily argues that genuine issues of material

fact remain as to (1) whether Wintroub’s interest in the land,

pursuant to the land contract, had priority over Nationstar’s

interest and (2) whether the subordination clause is enforceable

against him.

[5-9] We have never specifically addressed the enforceabil-

ity of subordination agreements in land contracts. However,

Vilcinskas v. Johnson, 252 Neb. 292, 562 N.W.2d 57 (1997).

Id.

Timberlake v. Douglas County, 291 Neb. 387, 865 N.W.2d 788 (2015).

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WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

we have held that the priority of a mortgage may be changed

by agreement of the parties, rendering subordination agree-

ments enforceable in mortgages under Nebraska law.

We have

also noted that it is generally accepted that 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.

As with the terms used in describing a mortgage, this court has

repeatedly termed a purchaser’s interest under an executory

land contract as both a “security” and a “lien” upon the land.

Further, as in a mortgage, the vendor under an installment land

contract agrees to accept payments from the purchaser, gener-

ally by a series of installments over time, until the purchase

price as established by the contract has been paid. When the

contract price has been paid, the vendor must deliver a deed of

title to the purchaser.

Based on these principles and observa-

tions, this court has uniformly recognized that 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.

Therefore, it would follow that

subordination agreements are enforceable in land contracts, as

such agreements are enforceable in mortgages. We hold that

generally, a subordination agreement set forth within a contract

for the sale and purchase of land is enforceable.

[10-13] We turn next to the terms of the subordination

agreement at issue in this case. In construing subordination

agreements, many courts have frequently indicated that the

principles and rules governing the construction, application,

and enforceability of contracts apply to mortgage subordination

See Meek v. Gratzfeld, 223 Neb. 306, 389 N.W.2d 300 (1986).

Mackiewicz v. J.J. & Associates, 245 Neb. 568, 514 N.W.2d 613 (1994).

Id.

See id.

Id.

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agreements.

Nebraska courts take the same approach, apply-

ing basic contract principles to determine the enforceabil-

ity, validity, and meaning of a subordination agreement.

interpreting contracts, the court as a matter of law must first

determine whether the contract is ambiguous.

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.

If a contract is unambiguous, the

intent of the parties must be determined from the contents of

the contract.

The interpretation of a contract and whether the

contract is ambiguous are questions of law subject to indepen-

dent review.

Both the 2006 and the governing 2010 land contracts between

the Wintroubs and the Faller Trust similarly provide: “Until all

amounts due hereunder are paid in full, this Land Contract shall

be subordinated to any rights held by the Seller’s Lender(s).”

Applying the foregoing rules of construction or interpretation

of a document, we conclude that this subordination clause is

unambiguous. Indeed, Wintroub does not assert otherwise.

With regard to the relevant contract property, the above-quoted

subordination clause plainly means that the rights of any exist-

ing lenders of the Faller Trust would take precedence over the

Wintroubs’ rights or interest in the property until the Wintroubs

have paid the contract price “in full.”

The Faller Trust’s first lender after the 2006 land contract

was Lehman Brothers Bank. Any interest or rights that the

See, e.g., In re Stambaugh, 532 B.R. 572 (2015); Wells Fargo Bank, NA v.

SBC IV REO, LLC, 318 Mich. App. 72, 896 N.W.2d 821 (2016); KeyBank

Natl. v. Southwest Greens of Ohio, 2013 Ohio 1243, 988 N.E.2d 32 (2013).

See, Meek v. Gratzfeld, supra note 6; Reitz v. Petersen, 131 Neb. 706, 269

N.W. 811 (1936).

Porter v. Smith, 240 Neb. 928, 486 N.W.2d 846 (1992).

Id.

Timberlake v. Douglas County, supra note 5.

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Wintroubs may have had pursuant to the 2006 land con-

tract were subordinated to the lien of Lehman Brothers Bank,

which would pass to its successors and assignees, which now

includes Nationstar.

Wintroub does not argue that he paid the amounts due and

owing as required by the land contract. There is no evidence

in the record suggesting a material issue of whether Wintroub

has paid the amounts due and owing as required by the land

contract. Wintroub simply argues on appeal that he has “equi-

table title” pursuant to the land contract and Nebraska law.

Wintroub fails to explain how having an “equitable title”

affects the enforcement of the plain language of the subordina-

tion clause.

Even viewing the evidence in the light most favorable to

Wintroub and giving him the benefit of all reasonable infer-

ences deducible from the evidence, we find no genuine issues

of material fact remaining in this case. As such, the district

court did not err in granting Nationstar’s motion for sum-

mary judgment.

We note, as the court below correctly ascertained, that the

merits of any additional issues or arguments raised by the par-

ties on appeal need not be addressed or determined; the unam-

biguous terms of the subordination clause expressly apply and

govern in this case. There is no genuine issue that under the

subordination clause, Nationstar’s mortgage has priority over

Wintroub’s interest.

CONCLUSION

Based on the analysis above, we find that the district court

did not err in sustaining Nationstar’s motion for summary judg-

ment. We therefore affirm the decision of the district court.

aFFirmed.