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TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 329

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Twin Towers Condominium Associati

a Nebraska nonprofit corporation, appel

and cross-appellant, v. Bel Fury Inve

Group, L.L.C., a Nebraska limited liabil

company, appellant and cross-appellee,

Credit Bureau Services, Inc., a Neb

corporation, and Domina Law 

PC, LLO, a Nebraska profes

corporation, appellees

___ N.W.2d ___

Filed March 13, 2015. No. S-13-1047.

1. Actions: Foreclosure: Equity. A real estate foreclosure action is an action 

in equity.

2. Equity: Appeal and Error. On appeal from an equity action, an appellate 

court resolves questions of law and fact independently of the trial court’s 

determinations.

3. ____: ____. On appeal from an equity action, when credible evidence is in conflict on material issues of fact, an appellate court considers and may give weight 

to the fact that the trial court observed the witnesses and accepted one version of 

the facts over another.

4. Statutes. Statutory interpretation presents a question of law.

5. Damages: Evidence. Whether the evidence provides a basis for determining 

damages with reasonable certainty is a question of law.

6. Appeal and Error. An appellate court reviews questions of law independently of 

the trial court’s decision.

7. Foreclosure: Liens. The purpose of a foreclosure proceeding is not to create a 

lien, but to enforce one already in existence.

8. Statutes: Liens. A lien created by statute is limited in operation and extent by the 

terms of the statute.

9. Liens: Proof. The party seeking to enforce a lien has the burden of proving every 

fact essential to the establishment of the lien.

10. Courts: Assessments. Courts enforce condominium assessments only if they are 

calculated in the manner required by the association’s governing documents.

11. Liens: Assessments. A condominium association’s temporary miscalculation of 

assessments does not invalidate its lien for unpaid assessments.

12. Foreclosure: Liens: Judgments. In general, the holder of a lien may pursue 

foreclosure without first obtaining a personal judgment on the underlying debt.

13. Foreclosure: Final Orders. A foreclosure decree is a final judgment even though 

it creates a period for redemption.

14. Damages: Proof. A plaintiff does not have to prove his or her damages beyond 

all reasonable doubt, but must prove them to a reasonable certainty.

15. Attorney Fees: Costs. Customarily, attorney fees and costs are awarded only to 

prevailing parties or assessed against those who file frivolous suits.
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16. Parties: Words and Phrases. A party is a prevailing party if it receives a judgment in its favor.

17. Acceleration Clauses: Equity. An equity court may deny enforcement of an 

acceleration clause in a condominium association’s governing documents when 

application of the clause would be inequitable.

18. Foreclosure. The necessary issues to be determined by a foreclosure decree are 

the execution of the agreement, the breach thereof, the identity of the real estate, 

and the amount remaining due.

19. Judicial Sales: Foreclosure: Property. A foreclosure decree governs which 

property is to be sold at an execution sale, regardless of the description in subsequent documents and notices.

Appeal from the District Court for Douglas County: Joseph

S. Troia, Judge. Affirmed in part, and in part reversed an

remanded with directions.

Brian J. Muench for appellant.

Thomas J. Young for appellee Twin Towers Condominium 

Association, Inc.

Heavican, C.J., Connolly, Stephan, McCormack, MillerLerman, a

Connolly,

I. SUMMARY

Bel Fury Investments Group, L.L.C. (Bel Fury), owns property located in the Twin Towers Condominium in Omaha, 

Nebraska. After Bel Fury failed to pay assessments for 

this property (Unit SCB), the Twin Towers Condominium 

Association, Inc. (the Association), recorded two notices of lien 

and filed a foreclosure action. When the Association filed the 

notices of lien and the complaint, it was levying assessments 

against Unit SCB in a manner prohibited by the Association’s 

governing documents. The Association discovered the error 

while the foreclosure action was pending and recalculated the 

assessments. The district court found that the Association had 

a lien against Unit SCB for delinquent assessments and stated 

that the Association could foreclose its lien if Bel Fury did not 

pay the back assessments within 90 days.

On appeal, Bel Fury argues that the Association does not 

have a lien because it failed to levy assessments in the manner 
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required by its governing documents. On cross-appeal, the 

Association argues that the court did not award all the relief 

the Association is entitled to and failed to make all the findings 

necessary for a foreclosure decree.

We conclude that the Association’s initial miscalculation of 

assessments did not invalidate its lien. We further conclude that 

the court erred by not awarding the Association attorney fees, 

not including several installments as part of the debt secured 

by the lien, and failing to include a legal description of Unit 

SCB in its decree.

II. BACKGROUND

1. Factual Backgr

The Twin Towers Condominium was created by a master deed recorded on December 30, 1983. The “condominium regime” consisted of two 10-story towers: the “South 

Tower” and “North Tower.” The master deed provides that the 

Association serves as “a vehicle for the management of the 

condominium.” Each unit owner is automatically a member of 

the Association.

The master deed authorizes the Association to levy assessments against the units under terms set forth in the bylaws. 

Paragraph 12 of the bylaws provides:

Assessments against each apartment owner for such common expenses shall be made annually on or before the 

fiscal year end preceding the year for which assessments 

are made. The annual assessments shall be due in 12 

equal, monthly payments on the first day of each month. 

The assessments to be levied against each apartment shall 

be such apartment’s pro rata share of the total annual 

budget based upon the percentage share of the such 

apartment’s basic value as set forth in the Master Deed 

. . . . Assessments delinquent more than 10 days after the 

due date shall bear interest at the highest legal contract 

rate from the due date until paid. The delinquency of 

one installment of an assessment shall cause all remaining installments to immediately become due, payable 

and delinquent.
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The master deed states that Unit SCB represents 1.42 percent 

of the condominium’s basic value.

Bel Fury is a business engaged in real estate sales and rentals. Bel Fury bought Unit SCB—windowless commercial space 

in the basement of the “South Tower”—in July 2004.

In February 2010, the Association hired a property management company to help manage the condominium regime. 

The company’s owner, David Davis, testified that his company’s responsibilities included collecting assessments for 

the Association and keeping records of payments made by 

unit owners.

Davis testified that when his company “came on board” in 

February 2010, the Association was levying assessments “based 

on a square footage amount.” In October or November 2012, 

Davis discovered that the master deed required assessments to 

be calculated according to each unit’s proportional share of the 

regime’s basic value. Davis informed the Association, which 

“decided to go back to 2009 and make everything . . . pursuant to the Master Deed.” Davis completed the corrections in 

January 2013.

Another concern for Bel Fury was the lack of heating and 

cooling in Unit SCB. Scott Bloemer, one of Bel Fury’s owners, 

testified that Unit SCB did not have “heating and air conditioning” when Bel Fury bought the property. He stated that the 

Association did not fix the problem until July 2010. Davis testified that he became aware that Unit SCB lacked “heating and 

air conditioning” in March 2010. He said that the Association 

remedied the problem “sometime in 2010.”

Bloemer testified that Bel Fury was unable to find a tenant 

for Unit SCB because of the lack of heating and cooling, the 

high assessments levied by the Association, and the stigma 

from the foreclosure litigation. Bloemer estimated that the 

annual rental income for Unit SCB “as it sat” “would be” 

$28,120 and stated that this amount was the lost rental income 

Bel Fury suffered each year from 2005 to 2012. Bloemer testified that Bel Fury could rent Unit SCB as storage space for 

$400 to $750 per month, then testified that it would rent for 

“like 50 cents to like a buck a square foot,” and later testified that it would rent for $300 per month. Unit SCB has 
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7,030 square feet. Asked whether Bel Fury “actively marketed 

the property to sell,” Bloemer testified, “I think we probably 

did at some point,” but he could not recall when. Regarding 

Bel Fury’s efforts to rent the property, Bloemer said, “I think 

the property was put out on the internet,” but he could not 

recall when. Bloemer stated that Bel Fury did “not ma[k]e 

a lot of effort” to let Unit SCB after the foreclosure litigation began.

Bloemer testified that Bel Fury started paying only half its 

assessment for Unit SCB in February 2010 because he thought 

that “maybe somebody will do something [about the heating 

and cooling] if we cut our payments in half.” Bloemer said 

that the Association stopped accepting the partial payments in 

October 2010.

The Association recorded two notices of lien against Unit 

SCB in October 2010. The most recent “Tenant Ledger” for 

Bel Fury is “current through the month of March, 2013.” 

According to the ledger, Bel Fury owed $27,868.15 of unpaid 

annual and special assessments and $7,800.76 of late fees 

and interest.

2. Procedural Backgr

In December 2010, the Association filed a complaint to 

foreclose its lien against Unit SCB. The complaint alleged that 

Bel Fury owed assessments of $7,507 as of October 19, 2010, 

“together with accruing dues, special assessments and interest 

thereon from and after said date.”

In addition to Bel Fury, the Association named Gateway 

Community Bank; Credit Bureau Services, Inc.; and Domina 

Law Group PC, LLO, as defendants. The Association alleged 

that these three defendants were actual or potential lienholders 

with interests junior to the Association’s lien.

The complaint requested an accounting, a finding that the 

Association has a lien on Unit SCB, and an order that Bel Fury 

“be required to pay said indebtedness.” The Association asked 

the court to issue an order of sale if Bel Fury did not pay the 

back assessments within 20 days of entry of the decree.

In Bel Fury’s operative answer, it denied that it owed 

any assessments to the Association. Bel Fury also asserted a 
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counterclaim, alleging that the Association “failed to provide 

heating and air conditioning services” to Unit SCB “over 

the past five years.” Bel Fury claimed that this failure made 

Unit SCB “unrentable and unusable” and “interfered with” its 

efforts to sell the unit. The counterclaim asserted damages of 

about $190,000 for lost rent and $9,000 for “[o]verpaid utilities.” In the Association’s reply, it generally denied the allegations in the counterclaim and alleged that Bel Fury had not 

suffered any damages.

As to the remaining defendants, Gateway Community Bank 

filed an answer stating that it was the beneficiary of a 2006 

deed of trust and that its interest was a “first and superior 

lien.” Domina Law Group answered, stating that it sought 

more than $130,000 from Bel Fury for professional services 

in pending litigation. Credit Bureau Services did not file a 

responsive pleading. In February 2012, the court sustained the 

Association’s motion to dismiss Gateway Community Bank 

without prejudice.

In September 2013, the court entered a “Finding and Order.” 

The court found that the Association had a lien against Unit 

SCB and that “judgment should be entered” for $26,467.44 

against Bel Fury. The court stated that the Association could 

foreclose its lien if Bel Fury did not pay this amount within 90 

days. Because the Association miscalculated assessments, the 

court concluded that the Association could not charge Bel Fury 

late fees or interest. The court “dismissed” Bel Fury’s counterclaim because it “failed to prove damages.” The court ordered 

the parties to bear their own attorney fees and costs associated 

with the action.

The Association moved for an order finding that Credit 

Bureau Services had defaulted and that Domina Law Group 

had no interest in Unit SCB. In November 2013, the court 

found that neither Credit Bureau Services nor Domina Law 

Group had a “lien interest” in Unit SCB.

III. ASSIGNMENTS OF ERROR

Bel Fury assigns, consolidated and renumbered, that the 

court erred by finding that the Association may foreclose 

its lien if unpaid after 90 days because (1) the assessments 
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were levied on a square-foot basis and nonuniformly, (2) the 

Association did not provide Bel Fury with any notice regarding the lien foreclosure, (3) the Association had an adequate 

remedy at law, and (4) the provision that Bel Fury had 90 days 

to pay the debt made the order “not presently effective and . . . 

therefore void.” Bel Fury also assigns that the court erred by 

(5) finding that Bel Fury failed to prove damages for its counterclaim and (6) not awarding Bel Fury attorney fees.

On cross-appeal, the Association assigns, consolidated and 

renumbered, that the court erred by (1) not awarding the 

Association attorney fees and costs, (2) not awarding interest 

on the past-due assessments, and (3) not awarding “assessments due from and after February 2013.” The Association 

also assigns that (4) the court’s decree was deficient because it 

did not state the legal description of Unit SCB, the priority of 

the liens, or that it would issue an order of sale if Bel Fury did 

not pay the debt within 90 days.

IV. STANDARD OF REVIEW

[1-3] A real estate foreclosure action is an action in equity.1

On appeal from an equity action, an appellate court resolves 

questions of law and fact independently of the trial court’s 

determinations.2 But when credible evidence is in conflict on 

material issues of fact, we consider and may give weight to 

the fact that the trial court observed the witnesses and accepted 

one version of the facts over another.3

[4-6] Statutory interpretation presents a question of law.4

Whether the evidence provides a basis for determining damages with reasonable certainty is a question of law.5

 An appellate court reviews questions of law independently of the trial 

court’s decision.6

1 Travelers Indemnity Co. v. Heim, 218 Neb. 326, 352 N.W.2d 921 (1984).

2 Robertson v. Jacobs Cattle Co., 288 Neb. 846, 852 N.W.2d 325 (2014).

3 See id.

4 Id.

5 See Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003).

6 Robertson v. Jacobs Cattle Co., supra note 2.
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V. ANALYSIS

1. Statutory Backgr

Before analyzing the issues raised in Bel Fury’s appeal, it 

is necessary to discuss the statutory background. Nebraska 

has two condominium acts: The Condominium Property Act 

(CPA), Neb. Rev. Stat. §§ 76-801 to 76-823 (Reissue 2009), 

and the Nebraska Condominium Act (NCA), Neb. Rev. Stat. 

§§ 76-825 to 76-894 (Reissue 2009). Generally, the CPA governs condominium regimes created before 1984.7

 The NCA 

applies to condominiums created on or after January 1, 1984.8

A condominium regime is created under either the CPA or 

the NCA when the master deed or declaration, respectively, 

is recorded.9

Both acts provide that a condominium association has a lien 

for unpaid assessments. As to the CPA, § 76-817 states:

The co-owners of the apartments are bound to pay pro 

rata . . . toward the expenses of administration and of 

maintenance and repair of the general common elements 

and, in the proper case, of the limited common elements, 

of the building, and toward any other expense lawfully 

agreed upon.

If any co-owner fails or refuses to make any payment 

of such common expenses when due, the amount thereof 

shall constitute a lien on the interest of the co-owner in 

the property and, upon the recording thereof, shall be a 

lien in preference over all other liens and encumbrances 

except assessments, liens, and charges for taxes past due 

and unpaid on the apartment and duly recorded mortgage 

and lien instruments.

No co-owner may exempt himself or herself from paying toward such expenses by waiver of the use or enjoyment of the common elements or by abandonment of the 

apartment belonging to him or her.

7 See Oak Hills Highlands Assn. v. LeVasseur, 21 Neb. App. 889, 845 

N.W.2d 590 (2014).

8 See id.

9 See §§ 76-803 and 76-838(a).
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Section 76-874 describes the lien process under the NCA 

during the period relevant to this case:

(a) The association has a lien on a unit for any assessment levied against that unit or fines imposed against its 

unit owner from the time the assessment or fine becomes 

due and a notice containing the dollar amount of such lien 

is recorded in the office where mortgages are recorded. 

The association’s lien may be foreclosed in like manner 

as a mortgage on real estate but the association shall give 

reasonable notice of its action to all lienholders of the unit 

whose interest would be affected. Unless the declaration 

otherwise provides, fees, charges, late charges, fines, and 

interest . . . are enforceable as assessments under this section. If an assessment is payable in installments, the full 

amount of the assessment may be a lien from the time the 

first installment thereof becomes due.

(b) A lien under this section is prior to all other liens 

and encumbrances on a unit except (i) liens and encumbrances recorded before the recordation of the declaration, (ii) a first mortgage or deed of trust on the unit 

recorded before the date on which the assessment sought 

to be enforced became delinquent, and (iii) liens for 

real estate taxes and other governmental assessments or 

charges against the unit. . . .

. . . .

(e) This section does not prohibit actions to recover 

sums for which subsection (a) of this section creates a 

lien . . . .

(f) A judgment or decree in any action brought under 

this section must include costs and reasonable attorney’s 

fees for the prevailing party.

The Association recorded its master deed on December 

30, 1983. But § 76-826(a) states that certain sections of the 

NCA, including § 76-874, apply to condominiums created 

before 1984 if the events in question occurred after January 

1, 1984:

The [NCA] shall apply to all condominiums created within 

this state after January 1, 1984. Sections 76-827, 76-829 

to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 
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76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) 

and (a)(11) to (a)(16) of section 76-860, to the extent 

necessary in construing any of those sections, apply to 

all condominiums created in this state before January 1, 

1984; but those sections apply only with respect to events 

and circumstances occurring after January 1, 1984, and 

do not invalidate existing provisions of the master deed, 

bylaws, or plans of those condominiums.

The effect of § 76-826 is acknowledged in multiple sections of 

the CPA, including § 76-817.10

The Association’s master deed adds another wrinkle. 

Paragraph 7(b) provides:

If any co-owner shall fail or refuse to make any payment 

of such assessments when due, the amount thereof plus 

interest shall constitute a lien upon the co-owner’s interest 

in his apartment and in the property and, upon the recording of such lien by the Association . . . such amount shall 

constitute a lien prior and preferred over all other liens 

and encumbrances, except previous[ly] filed Association 

assessments, liens and charges for taxes past due and 

unpaid on the apartment except as otherwise provided for 

by law.

While § 76-826(a) requires that some sections of the NCA 

be applied to CPA-era condominium regimes, it cautions that 

the NCA does not invalidate the provisions of existing master deeds.

Neither the Association nor Bel Fury have labored over 

whether the validity of the Association’s lien depends on 

§ 76-817, § 76-874, or the master deed. Depending on the 

context, the Association cites both §§ 76-817 and 76-874, 

while also asserting that it “has a lien pursuant to the Master 

Deed.”11 Bel Fury has focused on the NCA under the assumption that the condominium regime was created in 2005—presumably because of the Association’s references in its notices 

10 See §§ 76-802, 76-804, 76-807, 76-809, 76-811, 76-816, 76-817, 76-819, 

76-820, and 76-823. See, also, Neb. Rev. Stat. § 76-824.01 (Reissue 

2009).

11 Brief for appellee Twin Towers at 12.
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of lien and complaint to a phantom 2005 master deed. In its 

September 2013 order, the court found that the Association had 

a lien “pursuant to Neb. Rev. Stat. [§]§ 76-817 and 76-874.”

We conclude that § 76-874 determines the validity of the 

Association’s lien for unpaid assessments. Although the Twin 

Towers condominium regime was created before January 1, 

1984, the events relevant to the Association’s lien occurred 

after that date. Therefore, § 76-826(a) requires that we apply 

§ 76-874 instead of § 76-817. This result does not “invalidate” 

paragraph 7(b) of the master deed.12 Language in the master 

deed concerning the creation and enforcement of a lien was 

always gratuitous, because the “existence of a valid statutory 

lien rests entirely on whether the terms of the statute creating 

the lien have been met.”13

2. Appea

(a) The Association 

Has a Valid Lien

Bel Fury argues that the Association’s lien was “invalid and 

void ab initio” because the Association made assessments on a 

square-foot basis and because it nonuniformly assessed commercial and residential properties.14 The Association “readily 

admits that assessments had been miscalculated for a period of 

time,” but asserts that “this had been corrected months before 

trial.”15 The Association argues that at least by the time of 

12 See Carroll v. Oak Hall Associates, L.P., 898 S.W.2d 603 (Mo. App. 

1995).

13 51 Am. Jur. 2d Liens § 56 at 133-34 (2011). See, BA Mortg. v. Quail Creek 

Condominium Ass’n, 192 P.3d 447 (Colo. App. 2008); Dime Sav. Bank of 

N.Y. v. Muranelli, 39 Conn. App. 736, 667 A.2d 803 (1995); Hudson House 

Condo. Ass’n v. Brooks, 223 Conn. 610, 611 A.2d 862 (1992); Brask v.

Bank of St. Louis, 533 S.W.2d 223 (Mo. App. 1975). See, also, Spanish 

Court Two Condominium Ass’n v. Carlson, 214 IL 115342, 12 N.E.3d 1, 

382 Ill. Dec. 1 (2014); Elbadramany v. Oceans Seven Condominium Ass’n, 

461 So. 2d 1001 (Fla. App. 1984). But see, In re Eno, 269 B.R. 319 (M.D. 

Pa. 2001); Harbours Condominium Ass’n, Inc. v. Hudson, 852 N.E.2d 985 

(Ind. App. 2006).

14 Brief for appellant at 6.

15 Brief for appellee Twin Towers at 9.
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trial, it sought only to enforce a lien for assessments made in 

conformance with its governing documents.

[7-9] The purpose of a foreclosure proceeding is not to 

create a lien, but to enforce one already in existence.16 A lien 

created by statute is limited in operation and extent by the 

terms of the statute.17 It can arise and be enforced only under 

the conditions provided in the statute.18 The party seeking to 

enforce a lien has the burden of proving every fact essential to 

the establishment of the lien.19

[10] It is true that courts enforce condominium assessments only if they are calculated in the manner required by 

the association’s governing documents.20 But Bel Fury does 

not cite any authority stating that a lien for correctly calculated assessments cannot be enforced merely because the 

assessments were initially miscalculated. To the contrary, at 

least one court has held that an initial miscalculation is not 

fatal to a condominium association’s foreclosure action. In 

Oronoque Shores Condo. Ass’n v. Smulley,

21 a condominium association admittedly levied a special assessment for 

snow removal to each owner equally, even though its bylaws 

required it to make assessments according to each unit’s share 

of the common elements. After the association started foreclosure proceedings, it corrected the error and reapportioned 

the assessment.

16 See, West Town Homeowners Assn. v. Schneider, 231 Neb. 100, 435 

N.W.2d 645 (1989); Federal Land Bank of Omaha v. Blankemeyer, 228 

Neb. 249, 422 N.W.2d 81 (1988).

17 See, West Neb. Gen. Hosp. v. Farmers Ins. Exch., 239 Neb. 281, 475 

N.W.2d 901 (1991); County Board of Platte County v. Breese, 171 Neb. 

37, 105 N.W.2d 478 (1960); In re Conservatorship of Marshall, 10 Neb. 

App. 589, 634 N.W.2d 300 (2001).

18 See id.

19 51 Am. Jur. 2d, supra note 13, § 89. See, also, Walker Land & Cattle Co. 

v. Daub, 223 Neb. 343, 389 N.W.2d 560 (1986).

20 See, In re Johnson, 366 N.C. 252, 741 S.E.2d 308 (2012); Zack v. 3000 

East Avenue Condominium Ass’n, 306 A.D.2d 846, 762 N.Y.S.2d 459 

(2003).

21 Oronoque v. Shores Condo. Ass’n v. Smulley, 114 Conn. App. 233, 968 

A.2d 996 (2009).
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On appeal, the unit owner argued that the assessment was 

void because it did not conform to the bylaws. She asserted 

that the subsequent correction did not make the assessment 

valid because such “new assessment” was not approved by the 

association’s board.22 The court concluded that the assessment 

was not void “merely because of the incorrect apportionment” 

because it was “forewarned, properly imposed and voted on by 

the board and within the association’s authority to impose.”23

The court distinguished the “validity” of the assessment from 

its “apportionment”:

We must note that there is a difference between the 

validity of the snow assessment, that is, the power of 

the association to impose the assessment, and the manner in which it was apportioned. The apportioning of the 

snow assessment to each unit owner is a ministerial task, 

which does not affect the validity of the snow assessment itself.24

The court also noted that the defendant “acknowledged that the 

snow assessment was due and owing.”25

[11] We conclude that the Association’s temporary miscalculation of assessments does not invalidate its lien against 

Unit SCB. Because the bylaws require the Association to levy 

assessments according to each unit’s share of the regime’s basic 

value, the Association cannot enforce assessments made on the 

Unit SCB’s square footage.26 But here, the decree enforced 

assessments calculated according to Unit SCB’s share of the 

regime’s basic value. Bloemer testified that he did not think 

that Bel Fury had to pay assessments until the Association 

repaired Unit SCB’s heating and cooling unit, but he otherwise 

did not dispute the amount of assessments as recalculated on 

a basic value basis. Withholding assessments is not a remedy 

22 Id. at 238, 968 A.2d at 999.

23 Id. at 238-39, 968 A.2d at 999.

24 Id. at 239, 968 A.2d at 1000.

25 Id. at 240, 968 A.2d at 1000.

26 See, In re Johnson, supra note 20; Zack v. 3000 East Avenue Condominium 

Ass’n, supra note 20.
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to cure unauthorized acts by the officers or directors of a 

condominium association.27 Accordingly, the court did not err 

by enforcing a lien for assessments calculated in a manner consistent with the Association’s bylaws.

(b) Notice

Bel Fury argues that the Association’s lien is void because 

it did not give Bel Fury a “notice of default”28 or “Notice to 

Cure.”29 In support, Bel Fury cites sections of the Nebraska 

Trust Deeds Act and the Farm Homestead Protection Act.30

We determine that these sections have no bearing on the 

Association’s action to foreclose a lien for unpaid condominium assessments. Section 76-874(a) requires notice to other 

lienholders, but is silent as to the unit owner. The Association’s 

foreclosure action has entered its fifth year, and Bel Fury 

does not point to any notice deficiencies related to the litigation process. To the extent that Bel Fury argues that it did not 

receive notice of the sale of Unit SCB, we note that the sale 

has not yet occurred.

(c) Adequate Remedy 

at Law

[12] Bel Fury argues that the Association could not foreclose 

its lien because it had an adequate remedy at law (i.e., money 

damages). We disagree. In general, the holder of a lien may 

pursue foreclosure without first obtaining a personal judgment 

on the underlying debt.31 Section 76-874(a) provides that an 

assessment lien “may be foreclosed in like manner as a mortgage.” We have held that a mortgagee may foreclose its lien 

without being forced to resort to other remedies.32

27 Coral Way Condo. v. 21/22 Condo. Assn., 66 So. 3d 1038 (Fla. App. 2011).

28 Brief for appellant at 8.

29 Reply brief for appellant at 6.

30 See Neb. Rev. Stat. §§ 76-1008 and 76-1903 (Reissue 2009).

31 53 C.J.S. Liens § 56 (2005).

32 Federal Farm Mortgage Corporation v. Ganser, 146 Neb. 635, 20 N.W.2d 

689 (1945). See, also, Federal Farm Mtg. Corporation v. Cramb, 137 Neb. 

553, 290 N.W.2d 440 (1940); 55 Am. Jur. 2d Mortgages § 452 (2009).
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(d) “Invalid” Judgment

[13] Bel Fury argues that the provision in the decree that 

Bel Fury had 90 days to pay the outstanding assessments 

before the Association could foreclose made the judgment 

“invalid because it is an order which is not presently effective.” 

Again, we disagree. A foreclosure decree is a final judgment 

even though it creates a period for redemption.33

(e) Proof of Damages

Bel Fury argues that the court erred by finding that Bel Fury 

“failed to prove damages” on its counterclaim. Bel Fury asserts 

that “unreasonably high dues” and the lack of heating and cooling “negatively affected both the re-sale value of the units and 

the rentability.”34 The Association emphasizes that Bel Fury 

could not find a tenant for Unit SCB either before or after the 

heating and cooling unit was repaired. The Association posits 

that Unit SCB’s status as a windowless basement space “in all 

probability accounts for the lack of any tenants or prospective tenants.”35

[14] A plaintiff does not have to prove his or her damages 

beyond all reasonable doubt, but must prove them to a reasonable certainty.36 After reviewing the record, we conclude that 

the court did not err by finding that Bel Fury failed to prove 

damages to a reasonable certainty.

(f) Attorney Fees

Bel Fury argues that the court abused its discretion by not 

awarding it attorney fees under § 76-891.01, which provides:

If a declarant or any other person subject to the 

[NCA] fails to comply with any provision of the act or 

any provision of the declaration or bylaws, any person 

33 Mortgage Lenders Network, USA v. Sensenich, 177 Vt. 592, 873 A.2d 

892 (2004); 55 Am. Jur. 2d, supra note 32, § 634. See, also, West Town 

Homeowners Assn. v. Schneider, supra note 16.

34 Brief for appellant at 10.

35 Brief for appellee Twin Towers at 16.

36 See, Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 

N.W.2d 433 (2010); Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 

462, 748 N.W.2d 1 (2008).
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344 290 NEBRASKA REPORTS

or class of persons adversely affected by the failure to 

comply has a claim for appropriate relief. The court, in 

an appropriate case, may award costs and reasonable 

attorney’s fees.

Section 76-891.01 is part of the NCA, but it is among the sections that § 76-826 makes applicable to CPA-era condominiums.

[15] We determine that Bel Fury is not entitled to attorney 

fees. Customarily, attorney fees and costs are awarded only to 

prevailing parties or assessed against those who file frivolous 

suits.37 Bel Fury did not prevail, and the Association’s suit was 

not frivolous.

3. Cross-Appe

(a) Attorney Fees and Costs

[16] The Association argues that it is entitled to attorney 

fees and costs. We agree. Section 76-874(f) provides: “A judgment or decree in any action brought under this section must 

include costs and reasonable attorney’s fees for the prevailing party.” The Association was a prevailing party because it 

received a judgment in its favor.38 The court had discretion 

as to the amount,39 but the award of attorney fees and costs 

is mandatory.40

(b) Interest

The Association argues that it is entitled to interest on pastdue assessments. On our de novo review, we conclude that the 

court did not err by declining to award interest, because the 

Association miscalculated assessments for a substantial period.

(c) Assessments Due 

After January 2013

The Association argues that the court erred by not including in the debt secured by its lien the assessments that became 

37 Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999); Brodersen v. Traders 

Ins. Co., 246 Neb. 688, 523 N.W.2d 24 (1994).

38 20 C.J.S. Costs § 139 (2007).

39 See, e.g., Brodersen v. Traders Ins. Co., supra note 37.

40 See Stage Neck Owners Ass’n v. Poboisk, 726 A.2d 1261 (Me. 1999).
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TWIN TOWERS CONDO. ASSN. v. BEL FURY INVEST. GROUP 345

Cite as 290 Neb. 329

delinquent after January 2013. In its decree, the court found 

that the debt secured by the Association’s lien is $26,467.44, 

which is the amount of unpaid assessments in Davis’ tenant 

ledger through January 1, 2013. Under an acceleration clause 

in the bylaws, the Association argues that all the monthly 

assessments became due upon the delinquency of one installment. “At the very least,” the Association contends, “the trial 

court should have awarded ongoing and unpaid assessments up 

to the point of any payment by Bel Fury or sale of the property 

pursuant to an order of sale.”41

The amount of the debt is an essential part of a foreclosure 

decree.42 The court may include an installment of the debt that 

was not due when the complaint was filed but became due during the pendency of litigation.43 But the court cannot include an 

installment that has yet to become due, because doing so would 

prevent a redemption.44

[17] We have said that an acceleration clause in a mortgage is enforceable,45 although an equity court may deny 

enforcement when application of the clause would be inequitable.46 Paragraph 12 of the bylaws provides: “The delinquency of one installment of an assessment shall cause all 

remaining installments to immediately become due, payable 

and delinquent.”

On our de novo review, we conclude that enforcement of 

the acceleration clause in paragraph 12 of the bylaws would be 

inequitable. The Association miscalculated—substantially—the 

amount of assessments, starting well before it filed the notices 

of lien and continuing for 2 years after it started foreclosure 

proceedings. But we conclude that the debt secured by the 

Association’s lien includes the assessments for the months of 

41 Brief for appellee Twin Towers on cross-appeal at 29-30.

42 See, e.g., Glissman v. Orchard, 152 Neb. 500, 41 N.W.2d 756 (1950).

43 See 5 Herbert Thorndike Tiffany, The Law of Real Property § 1523 (3d ed. 

1939).

44 Id.

45 See Jones v. Burr, 223 Neb. 291, 389 N.W.2d 289 (1986).

46 Walker Land & Cattle Co. v. Daub, supra note 19.
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346 290 NEBRASKA REPORTS

February and March 2013. On March 26, 2013, Davis testified that Bel Fury had not paid assessments for Unit SCB 

since September 2010. Paragraph 12 of the bylaws states that 

assessments are due on the first of each month and delinquent 

if not paid within 10 days. Accordingly, the record shows 

that the February and March 2013 assessments against Unit 

SCB were delinquent and part of the debt secured by the 

Association’s lien.

(d) Necessary Findings 

in Foreclosure Decree

The Association argues that the court’s decree was deficient 

because it did not state the legal description of Unit SCB, did 

not determine the “lien interests of the various parties,” and did 

not “provide for the issuance of an order of sale and of the sale 

of the property.”47 The Association also contends that the court 

should not have “identified the amount due as a judgment.”

[18] The purposes of a foreclosure action are to determine 

the existence of a lien and the amount and priority of the lien, 

and to obtain a decree directing the sale of the premises in 

satisfaction thereof if no redemption is made.48 In a foreclosure 

action, the “judgment” is the order stating the amount due and 

directing a sale to satisfy the lien.49 The necessary issues to be 

determined by the foreclosure decree are the execution of the 

agreement, the breach thereof, the identity of the real estate, 

and the amount remaining due.50

[19] We conclude that the court erred by not stating the 

legal description of Unit SCB in its decree. A foreclosure 

decree governs which property is to be sold at an execution 

sale, regardless of the description in subsequent documents 

47 Brief for appellee Twin Towers on cross-appeal at 27.

48 Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977).

49 Federal Deposit Ins. Corp. v. Tidwell, 820 P.2d 1338 (Okla. 1991); 55 Am. 

Jur. 2d, supra note 32, § 634.

50 See, Glissman v. Orchard, supra note 42; Columbus Land, Loan & Bldg. 

Assn. v. Wolken, 146 Neb. 684, 21 N.W.2d 418 (1946); Stuart v. Bliss, 116 

Neb. 305, 216 N.W. 944 (1927); Union Central Life Ins. Co. v. Saathoff, 

115 Neb. 385, 213 N.W. 342 (1927).
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and notices.51 Thus, the legal description in the decree is 

extremely important.52 We note that § 76-841—which is listed 

in § 76-826(a)—states the particulars of a sufficient legal 

description for a condominium unit.

We determine that the court did not err by failing to prioritize the “lien interests of the various parties.”53 The court 

found in a November 2013 order that neither Domina Law 

Group nor Credit Bureau Services had a lien interest in Unit 

SCB. In February 2012, the court sustained the Association’s 

motion to dismiss Gateway Community Bank as a party to 

the action.

Finally, we conclude that the entry of a “judgment”—rather 

than a “decree”—and the statement that the Association could 

“foreclose”—rather than a “provi[sion] for the issuance of an 

order of sale”—do not rise to the level of prejudicial error.54

Generally, an equity court’s decision is termed a “decree” and 

the decision of a court of law is termed a “judgment.”55 But it 

is clear enough that the court ordered Bel Fury to pay its debt 

within 90 days and that if it failed to do so, the Association 

could have Unit SCB sold to satisfy the debt.

VI. CONCLUSION

We conclude that the Association’s initial miscalculation of 

assessments does not invalidate its lien against Unit SCB. Nor 

do we find merit in Bel Fury’s remaining assignments. But 

on the Association’s cross-appeal, we remand the cause with 

directions to award the Association attorney fees and costs, to 

include assessments for February and March 2013 as part of 

the debt secured by the lien, and to determine the legal description of the property subject to the lien.

 Affirmed in part, and in part rev

and remanded with directio

Wright, J., not participatin

51 Bates v. Schuelke, 191 Neb. 498, 215 N.W.2d 874 (1974).

52 See id. See, also, 55 Am. Jur. 2d, supra note 32, § 636.

53 Brief for appellee Twin Towers on cross-appeal at 27.

54 Id.

55 See Black’s Law Dictionary 497 (10th ed. 2014).