by Camille R. Hawk, Esq.
Walentine O’Toole, LLP

USFN Member (IA, NE)

The various moratoria since March 2020 impacted residential evictions across the country, and Nebraska was not left out of that equation.  Earlier this year, Nebraska made some changes to certain provisions of the Uniform Residential Landlord-Tenant Act (Neb. Rev. Stat. §§ 76-1401 to 76-1449) (the “Act”) and the Forcible Entry and Detainer (FED) statutes (Neb. Rev. Stat. §§25-21,219 to 25-21,235). 

While we as attorneys for our clients may not deal with landlord-tenant law in a post-foreclosure world, Nebraska does not have specific post-foreclosure restitution statutes per se.  It does have FED statutes, and they provide cross-references to the Act.  Applying an often-used common law standard, judges practically review what is “customary and reasonable” in light of the Act and the FED statutes.

In 2019, prior to the moratoria, the notice to vacate (Legislative Bill 433) under various circumstances was updated from three days to seven days; however, Neb. Rev. Stat. §25-21,221 under the FED statutes still only requires a three-day notice to vacate.  The former owner arguably has been stripped of their title and the shorter timeline would apply. To be safe, however, you may want to consider adding the additional four days. 

LB 320 was signed into law and became effective August 28, 2021.  In that Bill, Neb. Rev. Stat. §76-1441 provides some additional requirements when a Complaint is filed.  It must identify the specific statutory authority under which possession is sought.  Additionally, Neb. Rev. Stat.  §76-1442.01 requires that the Affidavit filed requesting alternative/constructive service include with specificity the diligent efforts made to serve the summons, why those efforts were not successful, and that the summons was posted on the front door and mailed.  Note:  the person mailing the Summons and Complaint and the person posting the same must each file an Affidavit. See also Neb. Rev. Stat. §25-21,223 of the FED statutes, which is similar to the new law.

Previously, continuances under the Act were allowed for extraordinary cause.  Now, the first continuance is allowed by either party for good cause and does not require extraordinary cause. Neb. Rev. Stat.  §76-1443.

Again, these specific revisions are to the Act; the FED statutes do not require that the statutory authority to file the Complaint be cited.  That being said, the same or similar provisions of the Affidavit for alternative/constructive service apply to the FED statutes (Neb. Rev. Stat. §25-21,223).  The extraordinary cause requirement for continuances remains in the FED statutes (Neb. Rev. Stat. §25-21,225). 

It remains to be seen whether the judges will lean toward the greater consumer protection in light of Covid.  It is encouraged that you speak with your local counsel as to the pros and cons and best practices after a Nebraska foreclosure sale.

Copyright © 2021 USFN. All rights reserved.

December 2021 e-Update