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Nebraska Supreme Court Advance S

303 Nebraska Report

WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

Edward Wintroub, appellant,

Nationstar Mortgage LLC, appel

___ 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, 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.

3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, 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 mortgages 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/

07/26/2019 08:06 AM CDT
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303 Nebraska Report

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: Pete

C. Bataillon, Judge. Affirme

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

Papik, and Freudenberg, J

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 subordinated 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 subsequently 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 S

303 Nebraska Report

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 construction 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 mortgage on the property with Great Western Bank and a construction 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 entities, 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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303 Nebraska Report

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 subordinated 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 superior 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.,

1

 where we held that a purchaser is charged with notice of 

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

1 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 purchaser” 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 requirement to the purchase and sale of private residential buildings.

Ultimately, the district court found that it need not determine 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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303 Nebraska Report

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.2 Under this court’s standard 

of review, summary judgment is proper only when the pleadings, 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.3 In reviewing a summary judgment, 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

[4] The interpretation of a contract and whether the contract is ambiguous are questions of law subject to independent review.5

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 enforceability of subordination agreements in land contracts. However, 

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

3 Id.

4 Id.

5 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 agreements enforceable in mortgages under Nebraska law.6

 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.7

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.8

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

contract agrees to accept payments from the purchaser, generally 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.9 Based on these principles and observations, 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.10 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 

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

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

8 Id.

9 See id.

10 Id.
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WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

agreements.11 Nebraska courts take the same approach, applying basic contract principles to determine the enforceability, validity, and meaning of a subordination agreement.12 In 

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

determine whether the contract is ambiguous.13 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.14 If a contract is unambiguous, the 

intent of the parties must be determined from the contents of 

the contract.15 The interpretation of a contract and whether the 

contract is ambiguous are questions of law subject to independent review.16

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 existing 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 

11 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).

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

N.W. 811 (1936).

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

14 Id.

15 Id.

16 Timberlake v. Douglas County, supra note 5.
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WINTROUB v. NATIONSTAR MORTGAGE

Cite as 303 Neb. 15

Wintroubs may have had pursuant to the 2006 land contract 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 “equitable 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 subordination clause.

Even viewing the evidence in the light most favorable to 

Wintroub and giving him the benefit of all reasonable inferences 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 summary judgment.

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

merits of any additional issues or arguments raised by the parties on appeal need not be addressed or determined; the unambiguous 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 judgment. We therefore affirm the decision of the district court.

Affirm