Invictus Residential Pooler Trust 1A v. Ziemba et al

Filing 33

ORDER - that the plaintiff's claim (filing 32 ) is denied. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
INVICTUS RESIDENTIAL POOLER
TRUST 1A,
Plaintiff,
vs.

4:19-CV-3036
ORDER

CYNTHIA J. ZIEMBA, et al.,
Defendants.
As set forth in the Court's previous disbursement order (filing 31), the
foreclosure sale of the property at issue in this case left a surplus of $5,433.19.
The plaintiff now seeks to claim the surplus. Filing 32. Its claim will be denied.
Ordinarily, the result of a foreclosure sale is that when the sale is
confirmed, the proceeds are applied to the costs of the sale and satisfaction of
the judgment, with any surplus going to the mortgagor. See Neb. Rev. Stat. §
25-2146; Hatch v. Shold, 87 N.W. 908, 908-09 (Neb. 1901). And as a general
matter, "[t]he plaintiff at the time of confirmation has no right to demand of
the proceeds of the sale of the mortgaged property more than a sum sufficient
to pay the amount then due on the decree." Hatch, 87 N.W. at 909.
Here, the plaintiff's claim to the surplus is simply that, after the
judgment was entered but before the property was sold and the sale confirmed,
it apparently incurred more costs. But the plaintiff has not directed the Court
to any authority permitting it to claim more in costs than it had claimed at the
time the sale was confirmed. Nor has the plaintiff directed the Court to any
authority allowing it to claim more from the sale of the property than it was
due under the judgment. See id. And in the absence of such authority, the

plaintiff hasn't provided the Court with anything establishing that it has a
legal entitlement to the sale surplus. Accordingly,
IT IS ORDERED that the plaintiff's claim (filing 32) is denied.
Dated this 23rd day of November, 2021.
BY THE COURT:

John M. Gerrard
United States District Judge

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