I. INTRODUCTION
LB 99 adopted by the Legislature in 2007 amended Neb.Rev.Stat. § 25-1081. The amendments to the statute made significant changes by enumerating the grounds in which receivers may be appointed.
II. STATUTORY CHANGES
The amendments to Neb.Rev.Stat. § 25-1081 clarify that the appointment of a receiver may be obtained by order of the District Court: (a) in an action to foreclose a trust deed as a mortgage; (b) in connection with the exercise of the power of sale under a trust deed and following the filing of a notice of default under the Nebraska Trust Deeds Act; (c) in an action brought to enforce a written assignment of rents provision contained in any agreement which provides for the appointment of a receiver; and (d) in any other case in which a mortgagor or trustor has agreed in writing to the appointment of a receiver. The amendments were effective March 8, 2007.
The changes identified in (a) and (b) above retain the requirement that the secured property be “in danger of being lost, removed or materially injured or is probably insufficient to discharge the debt secured by the property.” These two subsections leave creditors with the burden of proof to show that the value of the real estate is probably insufficient to cover the debt secured by the real estate. This burden of proof will most likely require the bank to obtain an appraisal to establish the value of the real estate.
Item (c) above expands a bank’s ability to obtain the appointment of a receiver. This portion of the amendment permits the appointment of a receiver in an action brought to enforce a written assignment of rents provision that is contained in any agreement where the agreement provides for the appointment of a receiver. Here, unlike items (a) and (b), there is no requirement that the value of the property be insufficient to discharge the debt. The amendment to the statute found at item (c) states that as long as the loan documents contain both an assignment of rents and an agreement that provides for the appointment of a receiver, the district court has the statutory power to appoint a receiver without regard to the value of the real estate held as security.
Finally, under item (d) a receiver may be appointed by a district court judge in cases where the mortgagor or trustor has agreed in writing to the appointment of a receiver. The expansion stated in (d) of the right to an appointment of a receiver should make getting a receiver appointed easier and less expensive for banks.