American Exch. Bank v. Topp

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
AMERICAN EXCH. BANK v. TOPP
Cite as 321 Neb. 409
American Exchange Bank, appellee, v.
Luke G. Topp and Ria N. Topp, appellants.
___ N.W.3d ___
Filed May 15, 2026. 	No. S-25-290.
1. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
2. ____: ____. An appellate court will affirm a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show that there is
no genuine issue as to any material facts 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. Judgments: Statutes: Appeal and Error. When an appeal calls for
statutory interpretation or presents questions of law, an appellate court
must reach an independent, correct conclusion irrespective of the deter-
mination made by the court below.
4. Contracts: Appeal and Error. The construction of a contract is a mat-
ter of law, in connection with which an appellate court has an obligation
to reach an independent, correct conclusion irrespective of the determi-
nations made by the court below.
5. Contracts: Public Policy. The determination of whether a contract vio-
lates public policy presents a question of law.
6. Trusts: Deeds: Security Interests. Neb. Rev. Stat. § 76-1013 (Reissue
2018) plainly applies to “obligations for which the trust deed was given
as security.”
7. Trusts: Deeds: Public Policy. Allowing a beneficiary to proceed with
a trustee sale and simultaneously avoid the limitations of the antidefi-
ciency statute, Neb. Rev. Stat. § 76-1013 (Reissue 2018), is a violation
of public policy.
8. Trusts: Deeds: Security Interests: Waiver. A waiver of the limitation
on deficiency judgments in Neb. Rev. Stat. § 76-1013 (Reissue 2018)
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:39 AM CDT

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AMERICAN EXCH. BANK v. TOPP
Cite as 321 Neb. 409
is unenforceable when a trust deed is given to secure an obligation, the
power of sale is exercised, and a deficiency judgment is sought.
9. Valuation: Evidence. Some relationship exists between appraised and
actual value such that the appraised value can properly be said to consti-
tute relevant evidence of at least the minimum value of the land.
10. Circumstantial Evidence: Proof. Circumstantial evidence is not inher-
ently less probative than direct evidence, and a fact proved by circum-
stantial evidence is nonetheless a proven fact. A fact finder may draw
reasonable inferences from the facts and circumstances proved.
11. Evidence. Where there is a conflict in the evidence or where differ-
ent minds may reasonably draw different conclusions or inferences
from the adduced evidence, the matter at issue must be submitted to a
fact finder.
Appeal from the District Court for Johnson County: Ricky
A. Schreiner, Judge. Reversed and remanded for further
proceedings.
Sarah E. Cavanagh and Justin D. Eichmann, of Houghton
Bradford Whitted, P.C., L.L.O., for appellants.
Trev E. Peterson and Robert J. Drust III, of Knudsen,
Berkheimer, Richardson & Endacott, L.L.P., for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Bergevin, J.
INTRODUCTION
Luke G. Topp and Ria N. Topp appeal from a summary
judgment granted by the district court. The court found that
there was no issue of material fact and that the Topps were
indebted to American Exchange Bank (AEB) under guaran-
ties they executed to secure loans to their business, Topp’s
Mechanical, Inc. (TMI).
On appeal, the Topps argue that they should have received
credit for the fair market value of their real property sold in
trustee sales prior to the instant action and assert that a genuine

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321 Nebraska Reports
AMERICAN EXCH. BANK v. TOPP
Cite as 321 Neb. 409
issue of material fact remains as to the properties’ fair market
values at the time of the sales. They rely on Nebraska’s anti-
deficiency statute, Neb. Rev. Stat. § 76-1013 (Reissue 2018),
governing trustee sales, to contend that a waiver provision in
the guaranties is unenforceable, as a violation of public policy,
and to assert that assessed values and prior appraisals were
sufficient to show a genuine issue of material fact. We reverse,
and remand for further proceedings.
BACKGROUND
In 2015 and 2017, TMI executed four promissory notes with
AEB, two of which were U.S. Small Business Administration
loans, for a total principal balance of $4,715,150. The parties
agree that the notes were secured by four unconditional guaran-
ties—two by each of the Topps—and two deeds of trust made
by the Topps, therein “‘Borrowers.’” Each of the trust deeds
conveyed three real properties owned by the Topps to a trustee 1
and named AEB as beneficiary. 2 The trust deeds provided, in
relevant part:
This Deed of Trust shall secure (a) the payment of the
principal sum and interest evidenced by [TMI’s] note . . .
and any and all modifications, extensions and renewals
thereof or thereto and any and all future advances and
readvances hereunder pursuant to one or more promissory
notes or credit agreements (herein called “Note”); . . .
and (d) all indebtedness and obligations of Borrower to
Lender whether direct, indirect, absolute or contingent
and whether arising by note, guaranty, overdraft or
otherwise.
(Emphasis supplied.)
TMI defaulted on the loans and filed for chapter 11 bank-
ruptcy in 2021. AEB claimed that TMI was indebted to it for
1 See Neb. Rev. Stat. § 76-1001(4) (Reissue 2018) (“person to whom title
to real property is conveyed by trust deed”).
2 § 76-1001(1) (“the person for whose benefit a trust deed is given”).

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321 Nebraska Reports
AMERICAN EXCH. BANK v. TOPP
Cite as 321 Neb. 409
$3,757,067.76 as of January 15, 2021. As part of the liquida-
tion plan, AEB received $866,348.18 from the sale of TMI’s
personal property. Subsequently, the Topps filed for chapter 12
bankruptcy in 2022. AEB claimed that the Topps were indebted
to it for $3,313,835.38 as of September 6, 2022.
In October 2022 and February 2023, through judicial fore-
closure proceedings, AEB sold three parcels of real estate
owned by TMI. AEB purchased all three parcels for a total
of $162,600. In April 2024, AEB resold all three parcels for a
total of $945,000. In November 2023, AEB conducted trustee
sales of the Topps’ three properties. AEB purchased the proper-
ties for $310,000. Between the foreclosures and trustee sales,
in the respective views of the parties, AEB received approxi-
mately $450,000 in proceeds, and the Topps lost at least $3
million in properties.
In November 2023, after the trustee sales, AEB brought
the instant action against the Topps for a deficiency judgment
under the four guaranties. AEB sought a total of $3,051,200.27
as of November 14, 2023, plus daily interest. The Topps
raised a number of affirmative defenses, including that AEB
failed to mitigate its claimed damages, accord and satisfac-
tion, and estoppel.
AEB moved for summary judgment. It asserted that there
was no genuine issue of material fact because the Topps
admitted to the amounts owed on the notes and that all four
notes were secured by the four guaranties. In defense, the
Topps sought credit for the fair market value of their proper-
ties sold under the trust deeds against the amounts owed. The
Topps also maintained that a genuine issue of material fact
existed as to the fair market value of the properties at the time
of the trustee sales. The evidence presented at the motion for
summary judgment hearing included March 2021 appraisals
by AEB showing a total appraised value of $1,278,000, proof
of the 2023 assessed values showing a total assessed value of
$1,253,071, and an averment by AEB’s vice president that the

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321 Nebraska Reports
AMERICAN EXCH. BANK v. TOPP
Cite as 321 Neb. 409
fair market values at the time of the trustee sales were a total
of $1,113,000.
The district court determined that under a provision of the
guaranties, the Topps waived any defense “based upon any
claim that . . . Lender did not obtain the fair market value of
the Collateral.” The guaranty defined “‘Collateral’” as “any
property taken as security for payment of the Note[s] or
any guarant[y] of the Note[s].” The court granted AEB’s sum-
mary judgment motion. The Topps moved for reconsideration
or a new trial. The court denied their motion.
The Topps filed a timely appeal. We moved this appeal to
our docket on our own motion. 3
ASSIGNMENTS OF ERROR
The Topps assign, summarized and restated, that the dis-
trict court erred in (1) concluding that they were not entitled
to credit for the fair market values of the trust deed proper-
ties under § 76-1013, (2) not determining that the waiver
provision in the guaranties was unenforceable as a violation
of public policy, and (3) failing to find a genuine issue of
material fact existed as to the fair market values of their
three properties.
STANDARD OF REVIEW
[1,2] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all rea-
sonable inferences in that party’s favor. 4 An appellate court
will affirm a lower court’s grant of summary judgment if the
pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences
3 See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2022).
4 U.S. Specialty Ins. Co. v. D S Avionics, 320 Neb. 287, 26 N.W.3d 761
(2025).

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AMERICAN EXCH. BANK v. TOPP
Cite as 321 Neb. 409
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. 5
[3-5] When an appeal calls for statutory interpretation or
presents questions of law, an appellate court must reach an
independent, correct conclusion irrespective of the determina-
tion made by the court below. 6 The construction of a contract
is a matter of law, in connection with which an appellate court
has an obligation to reach an independent, correct conclusion
irrespective of the determinations made by the court below. 7
The determination of whether a contract violates public policy
presents a question of law. 8
ANALYSIS
There are three primary issues presented by the Topps’
appeal. The first is whether the trust properties were subject to
§ 76-1013, such that the Topps should receive credit on their
obligation for the fair market value of the properties. If so, the
second issue is whether the waivers in the Topps’ guaranties
are unenforceable. If so, the final issue is whether a genuine
issue remains concerning the fair market values of the proper-
ties at the time of the trustee sales. We resolve each issue in
the affirmative.
§ 76-1013 Is Implicated
We have previously recognized:
The Nebraska Trust Deeds Act was enacted by the 1965
Legislature. Laws 1965, c. 451, p. 1423. It authorizes
the use of trust deeds to secure the performance of
obligations and prescribes, generally, the procedures for
5 Id.
6 Boone River, LLC v. Miles, 318 Neb. 760, 18 N.W.3d 802 (2025).
7 State ex rel. Douglas Cty. Sch. Dist. No. 66 v. Ewing, 319 Neb. 663, 24
N.W.3d 861 (2025).
8 Bruce Lavalleur, P.C. v. Guarantee Group, 314 Neb. 698, 992 N.W.2d 736
(2023).

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AMERICAN EXCH. BANK v. TOPP
Cite as 321 Neb. 409
their execution and enforcement. The act provides that a
trust deed may confer a power of sale upon the trustee.
In the event of a default, the trust property may be
sold by the trustee to satisfy the obligation secured.
The act also provides for the substitution of trustees,
reinstatement after default, and the procedure for the sale
and conveyance of the trust property by the trustee. 9
The Nebraska Trust Deeds Act (the Act) authorizes the use of a
security device not available prior to its enactment and permits
a method of financing not formerly available, since trust deeds
were considered subject to the same rules and restrictions
as mortgages. 10
A trust deed is a deed executed in conformity with the Act
that conveys real property to a trustee “to secure the per-
formance of an obligation of the grantor or other person
named in the deed.” 11 The Act includes detailed procedures
that, in the event of a breach of the underlying obligation,
permit the trust property to be sold without the involvement
of any court. 12 Specifically, the Act allows a trust deed to
expressly confer upon a trustee the power of sale. 13 Pursuant
to this power of sale, a trustee can sell the property conveyed
by a trust deed without any court’s authorization or direction,
though the trustee must comply with procedural requirements
contained in the Act. 14
9 Blair Co. v. American Savings Co., 184 Neb. 557, 558, 169 N.W.2d 292,
293 (1969).
10 See Blair Co. v. American Savings Co., supra note 9.
11 § 76-1001(3).
12 First Nat. Bank of Omaha v. Davey, 285 Neb. 835, 830 N.W.2d 63 (2013).
See Neb. Rev. Stat. §§ 76-1006 to 76-1011 (Reissue 2018 & Cum. Supp.
2024).
13 First Nat. Bank of Omaha v. Davey, supra note 12. See Neb. Rev. Stat.
§ 76-1005 (Reissue 2018).
14 First Nat. Bank of Omaha v. Davey, supra note 12. See §§ 76-1006 to
76-1011.

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321 Nebraska Reports
AMERICAN EXCH. BANK v. TOPP
Cite as 321 Neb. 409
After the sale of trust property, an “action . . . to recover
the balance due upon the obligation for which the trust deed
was given as security” may be brought to recover any defi-
ciency. 15 The Act also contains an antideficiency provision
within § 76-1013, which limits the amount that a court can
award as a deficiency judgment after “any sale of property
under a trust deed.”
Before rendering judgment, the court shall find the fair
market value at the date of sale of the property sold. The
court shall not render judgment for more than the amount
by which the amount of the indebtedness with interest and
the costs and expenses of sale, including trustee’s fees,
exceeds the fair market value of the property or interest
therein sold as of the date of the sale, and in no event
shall the amount of said judgment, exclusive of interest
from the date of sale, exceed the difference between the
amount for which the property was sold and the entire
amount of the indebtedness secured thereby, including
said costs and expenses of sale. 16
Under § 76-1013, when a trial court finds no deficiency, the
underlying obligation is satisfied. 17
The first issue in this case is whether the Topps are entitled
to credit for the fair market values of their properties sold under
the trust deeds. While the Topps maintain that they are, AEB
argues that § 76-1013 is inapplicable to the Topps’ obligation
because they are guarantors of TMI’s underlying obligation.
AEB contends that under our holding in Mutual of Omaha
Bank v. Murante, 18 § 76-1013 does not apply to guarantors,
only the underlying borrowers. In reaching the resolution of
15 § 76-1013.
16 Id.
17 Pantano v. Maryland Plaza Partnership, 244 Neb. 499, 507 N.W.2d 484
(1993).
18 Mutual of Omaha Bank v. Murante, 285 Neb. 747, 829 N.W.2d 676
(2013).

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AMERICAN EXCH. BANK v. TOPP
Cite as 321 Neb. 409
that case, this court broadly stated that “[t]he plain language
of the Act limits the borrower’s liability when the property
secured by a deed of trust has been sold at a trustee’s sale,
but imposes no limitations on a guarantor’s liability.” 19 AEB
relies on this principle for its contention that § 76-1013 does
not apply to claims against a guarantor of a debt secured by a
trust deed—only that of a principal borrower. We disagree with
AEB’s reading of Murante.
In Murante, a guarantor sought credit on his obligation for
the fair market value of the borrowers’ real estate sold at a
trustee’s sale. Importantly, in that case, the guaranty was not
secured by the deed of trust. This court concluded that because
the guarantor in Murante did not give a deed of trust as secu-
rity for his guaranty—his obligation—the rights under the
guaranty were not subject to the provisions of the Act. Simply,
the guarantor’s obligation was not one “for which the trust
deed was given as security.” 20
Murante rests on the principle that promissory notes and
guaranties thereof are separate contracts that must be read
and interpreted separately from one another. However, Murante
does not stand for the principle that § 76-1013 cannot apply to
the obligation of a guarantor.
[6] In the Topps’ case, they executed a trust deed that
provided, in relevant part, that it secured both “the pay-
ment of the principal sum and interest evidenced by [TMI’s]
note” and “all indebtedness and obligations of Borrower to
Lender.” Under the trust deed, the “Borrower” was the Topps.
Accordingly, unlike the situation in Murante, the Topps’ obli-
gation as guarantors was secured by the trust deeds. Section
76-1013 plainly applies to “obligations for which the trust
deed was given as security.” Thus, § 76-1013 applies to the
guaranties executed by the Topps for which AEB seeks a defi-
ciency judgment.
19 Id. at 755, 829 N.W.2d at 683.
20 § 76-1013.

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AMERICAN EXCH. BANK v. TOPP
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That conclusion brings us to the second issue on appeal,
whether the guaranties’ waiver provision is enforceable such
that the Topps are precluded from the antideficiency benefits
of § 76-1013.
Unenforceable Waiver
The guaranties in this case provide that the “Guarantor
waives defenses based upon any claim that [the] Lender did not
obtain the fair market value of the Collateral.” In this case, the
trust properties were the “Collateral” and AEB concedes that
they were not sold at fair market value. While the Topps con-
tend that this waiver is ineffective as a matter of public policy,
AEB argues that the Act does not contain any restrictions on
the parties’ rights to waive defenses provided by the Act. We
disagree with AEB.
Public policy is the principle of the law that holds that no
subject can lawfully do that which has a tendency to be injuri-
ous to the public or against the public good. 21 It is the prin-
ciples under which the freedom of contract or private dealings
is restricted by law for the good of the community. 22 We have
consistently recognized that under our system of separated
powers, it is the function of the Legislature, through the enact-
ment of statutes, to declare what is the law and public policy
of the state. 23
The Act recognizes the existence of two different methods
of foreclosing a trust deed: (1) by the exercise of the trustee’s
power of sale pursuant to the Act, or (2) by judicial foreclo-
sure in the manner of mortgages, which does not depend upon
or use the trustee’s power of sale, but, rather, results in a
21 See New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d
25 (1994).
22 Id.
23 See, e.g., Green Plains Trade Group v. Archer Daniels Midland Co., 320
Neb. 882, 31 N.W.3d 577 (2026); Wilke v. Woodhouse Ford, 278 Neb. 800,
774 N.W.2d 370 (2009).

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AMERICAN EXCH. BANK v. TOPP
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sheriff’s sale by decree of the district court. 24 Section 76-1013
is inapplicable to judicial foreclosure. 25 Had AEB desired
to circumvent § 76-1013, it could have done so by electing
to proceed via judicial foreclosure. However, by choosing to
proceed via trustee sale, it was required to follow the pre-
scribed procedures for their execution and enforcement. 26
Moreover, § 76-1013 does not provide a personal right to
the trustor—the person conveying real property by a trust
deed. 27 It does not entitle the trustor to a judgment that does
not “exceed the difference between the amount for which the
property was sold and the entire amount of the indebtedness
secured thereby.” 28 Instead, “in no event shall the amount of
[the] judgment” exceed such difference, and “[t]he court shall
not render judgment for more than the amount by which the
amount of the indebtedness . . . exceeds the fair market value
of the property of interest therein sold as of the date of the
sale.” 29 The general rule is that in the construction of statutes,
the word “shall” is considered mandatory and inconsistent with
the idea of discretion. 30 The parties cannot waive this legisla-
tive mandate limiting a court’s judgment.
[7] In its enactment, the Legislature determined that a
trustee may exercise the power of sale “under which the trust
property may be sold in the manner provided in the [Act]
after a breach of an obligation for which the trust property is
conveyed as security.” 31 The Act plainly limits the judgment
24 See First Nat. Bank of Omaha v. Davey, supra note 12. See, also,
§ 76-1005.
25 See First Nat. Bank of Omaha v. Davey, supra note 12.
26 See § 76-1005.
27 See § 76-1001(2).
28 § 76-1013.
29 Id. (emphases supplied).
30 Lincoln Cty. Bd. of Equal. v. Western Tabor Ranch Apts., 314 Neb. 582,
991 N.W.2d 889 (2023).
31 § 76-1005 (emphasis supplied).

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a court may render “after any sale of property under a trust
deed.” 32 Section 76-1013 is the Legislature’s clear expres-
sion of the public policy of this state. 33 Allowing a benefi-
ciary to proceed with a trustee sale and simultaneously avoid
the limitations of the antideficiency statute is a violation of
the Legislature’s public policy.
[8] We hold that a waiver of the limitation on deficiency
judgments in § 76-1013 is unenforceable when a trust deed is
given to secure an obligation, the power of sale is exercised,
and a deficiency judgment is sought. We note that we are not
alone in reaching this conclusion. 34
Accordingly, in this case, the parties’ contractual waiver of
the benefits of § 76-1013 is ineffective.
Genuine Issue as to Fair Market Value
The final issue before us is the Topps’ contention that a
genuine issue of material fact remains as to the trust proper-
ties’ fair market value at the time of the trustee sales. At the
summary judgment hearing, AEB argued that the use of the
32 § 76-1013.
33 See Wilke v. Woodhouse Ford, supra note 23.
34 CSA 13-101 Loop, LLC v. Loop 101, LLC, 236 Ariz. 410, 415, 341 P.3d
452, 457 (2014) (“identifiable public policy served by [antideficiency
statute] clearly outweighs the interest in enforcing prospective waiver
terms, [thus] such terms are unenforceable”); Founders Bank and Trust
Co. v. Upsher, 830 P.2d 1355 (Okla. 1992) (principal debtor may not
waive the protection of the antideficiency statute); Brunsoman v. Scarlett,
465 N.W.2d 162 (N.D. 1991) (rights and defenses granted debtors largely
illusory if prospective creditor could compel waiver thereof); Barnaby v.
Boardman, 313 N.C. 565, 568, 330 S.E.2d 600, 602 (1985) (buyer not
allowed to deny antideficiency protection as this “‘would be to allow by
indirection that which was directly forbidden’”); Freedland v. Greco, 45
Cal. 2d 462, 289 P.2d 463 (1955) (antideficiency provisions may not be
waived by debtor); Stretch v. Murphy, 166 Or. 439, 112 P.2d 1018 (1941)
(antideficiency statute does not create mere personal privilege which may
be waived, but inhibits court’s rendering of judgment—its effect is to
deprive the court of power).

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properties’ assessed values was not relevant to the question of
the trust properties’ fair market value. In support, AEB relied
on the proposition of law that “the assessed value of property
for tax purposes, in and of itself, is generally not admissible
as direct evidence of value for purposes other than taxation.” 35
AEB’s reliance is misplaced.
[9] In First Nat. Bank of York v. Critel, 36 the Nebraska Court
of Appeals held that the assessed value of land for tax purposes
was not relevant to show the inadequacy of a judicial sale. We
reversed. 37 In doing so, we recognized that differing factors
may cause the appraised value of property to be less than the
property’s actual value. Nonetheless, “some relationship exists
between appraised and actual value such that the appraised
value can properly be said to constitute relevant evidence of at
least the minimum value of the land.” 38
The factual scenario in Critel differs from the preceding
cases wherein the proposition was initially set forth 39 and later
invoked. 40 Both of those prior cases were condemnation actions
in which the condemner sought to introduce evidence of the
assessed value of the condemned land to establish fair market
value. The basis of the proposition’s use in both of those cases
was that the appraised value of real property is “ordinarily
35 Lienemann v. City of Omaha, 191 Neb. 442, 444, 215 N.W.2d 893, 894
(1974). See, Holman v. Papio-Missouri River Nat. Resources Dist., 246
Neb. 787, 523 N.W.2d 510 (1994); First Nat. Bank of York v. Critel, No.
A-94-698, 1995 WL 762935 (Neb. App. Dec. 26, 1995) (not designated
for permanent publication), affirmed in part and in part reversed 251 Neb.
128, 555 N.W.2d 773 (1996).
36 First Nat. Bank of York v. Critel, supra note 35.
37 See First Nat. Bank of York v. Critel, 251 Neb. 128, 555 N.W.2d 773
(1996).
38 Id. at 133, 555 N.W.2d at 777.
39 See Lienemann v. City of Omaha, supra note 35.
40 See Holman v. Papio-Missouri River Nat. Resources Dist., supra note 35.

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much less than [the property’s] actual value.” 41 Thus, in those
cases, the condemners could not rely on the properties’ assessed
values as direct evidence of fair market value.
However, in Critel, the sale prices of the foreclosed prop-
erties were less than their assessed values, and the debtors
sought to introduce evidence of the properties’ assessed values
as circumstantial evidence that the judicial sale price was inad-
equate. We held that the evidence of assessed value was prop-
erly received because assessed values are relevant to establish-
ing a minimum fair market value. 42
[10] There are two kinds of evidence, direct and circum-
stantial. 43 Direct evidence directly proves the fact in dispute
without inference or presumption. 44 Circumstantial evidence
is evidence of one or more facts from which the existence of
the fact in dispute may logically be inferred. 45 The law makes
no distinction between these two kinds of evidence. 46 A fact
may be proved by direct evidence alone, circumstantial evi-
dence alone, or a combination of the two. 47 Circumstantial
evidence is not inherently less probative than direct evidence,
and a fact proved by circumstantial evidence is nonetheless a
proven fact. 48 A fact finder may draw reasonable inferences
from the facts and circumstances proved. 49
41 Lienemann v. City of Omaha, supra note 35, 191 Neb. at 443, 215
N.W.2d at 894. See Holman v. Papio-Missouri River Nat. Resources Dist.,
supra note 35, 246 Neb. at 795, 523 N.W.2d at 517 (“other factors, such
as matters of uniformity and proportionality . . . come into play [and
consequentially,] in any given case the tax value may be less than the
market value”).
42 See First Nat. Bank of York v. Critel, supra note 37.
43 Estate of Block v. Estate of Becker, 313 Neb. 818, 986 N.W.2d 726 (2023).
44 Id.
45 Id.
46 Id.
47 Id.
48 Id.
49 Id.

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The Topps introduced the assessed values to rebut AEB’s
asserted fair market values of the trust properties at the time
of the trustee sales. The assessed values were also supported
by AEB’s own appraisals conducted 2 years prior, which
reflected fair market values that exceeded the assessed val-
ues at the time of the trustee sales. Both the assessed values
and the appraised values were circumstantial evidence that
the fair market value of the trust properties was greater than
AEB’s asserted values.
[11] Where there is a conflict in the evidence or where dif-
ferent minds may reasonably draw different conclusions or
inferences from the adduced evidence, the matter at issue must
be submitted to a fact finder. 50 It is the role of the fact finder
to judge the issues of fact in its own way, that is, by the ordi-
nary, natural tests of common sense and reason. 51 Because a
fact finder could reasonably infer that the fair market values
of the properties at the time of the trustee sales were greater
than AEB’s asserted values, a factual issue remains, and sum-
mary judgment was improperly granted. Accordingly, we must
reverse the district court’s grant of summary judgment and
remand the matter for further proceedings.
CONCLUSION
The Topps’ obligation under the guaranties for TMI’s
promissory notes was secured by the real properties conveyed
in the trust deeds. Accordingly, Nebraska’s antideficiency
statute, § 76-1013, was implicated. Further, a waiver of the
limitation on deficiency judgments in § 76-1013 is unen-
forceable when a trust deed is given to secure an obligation,
the power of sale is exercised, and a deficiency judgment is
sought. Thus, § 76-1013 was applicable to the instant defi-
ciency action, and the Topps are entitled to credit for the fair
market values of the trust properties at the time of the trustee
50 Id.
51 See id.

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sales. Finally, the Topps adduced evidence that showed a
genuine issue of material fact remained as to those values.
Hence, the district court erred in granting summary judgment
in AEB’s favor.
Reversed and remanded for
further proceedings.
Papik, J., dissenting.
The Topps signed guaranties in which they agreed to waive
any defense “based upon any claim that [AEB] did not obtain
the fair market value of the Collateral.” Because this language
covers the Topps’ claim that they should receive credit for the
fair market value of properties sold under the trust deeds, and
I do not see a basis to hold the waiver unenforceable, I would
affirm the district court’s entry of summary judgment in favor
of AEB.
I differ with the majority in its conclusion that the Topps’
waivers are unenforceable on public policy grounds. We are
usually “disinclined to find a contractual agreement void as
against public policy.” Sinu v. Concordia University, 313 Neb.
218, 229, 983 N.W.2d 511, 522 (2023). We have emphasized
that courts should be cautious in holding contracts void on the
ground that the contract is contrary to public policy, stating
that to be void as against public policy, the contract should
be “quite clearly repugnant to the public conscience.” Id. We
have also said that the power of courts to invalidate contracts
for being in contravention of public policy is a very delicate
and undefined power which should be exercised only in cases
free from doubt. Sinu v. Concordia University, supra.
As I understand the foregoing authority, a court needs to
be very confident that enforcement of a contract will violate
public policy to hold it unenforceable. And, as the majority
observes, it is not courts that determine public policy, but the
Legislature. See, e.g., Green Plains Trade Group v. Archer
Daniels Midland Co., 320 Neb. 882, 900, 31 N.W.3d 577,
588 (2026) (“it is the function of the Legislature, through the

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enactment of statutes, to declare what is the law and public
policy of the state”).
Applying this standard, I am not all that sure that it would
violate a public policy declared by the Legislature to allow
guarantors like the Topps to waive the antideficiency protec-
tions of Neb. Rev. Stat. § 76-1013 (Reissue 2018). To be sure,
§ 76-1013 articulates a public policy that those that incur
obligations secured by trust deeds should receive credit for
the full market value of their property sold after a sale by the
trustee. But the relevant question in my view is not whether
there is a public policy in favor of giving credit for the full
market value of property sold at a trustee’s sale, it is whether
there is a public policy prohibiting a party from waiving
that protection. I do not understand the Legislature to have
spoken to that question, much less with the clarity we usu-
ally demand to hold a contractual provision unenforceable on
public policy grounds.
The Legislature knows how to make clear that a party can-
not waive statutory protections. See, e.g., Neb. U.C.C. § 9-602
(Reissue 2020) (“to the extent that they give rights to a debtor
or obligor and impose duties on a secured party, the debtor or
obligor may not waive or vary the rules stated in the following
listed sections”) (emphasis supplied); Neb. U.C.C. § 12-106(g)
(Cum. Supp. 2024) (“an account debtor may not waive or
vary its rights under subsections (d)(1) and (e) or its option
under subsection (d)(3)”) (emphasis supplied); Neb. Rev. Stat.
§ 53-221 (Reissue 2021) (“[a] wholesaler may not waive any
of the rights granted in sections 53-201 to 53-223, and the
provisions of any agreement which would have such an effect
shall be null and void”) (emphasis supplied).
Similar language does not appear in § 76-1013. And while
the majority correctly observes that several courts have con-
cluded that waivers of deficiency judgment protections should
be unenforceable on public policy grounds, other courts have
concluded that where, as here, such protections are not accom-
panied by express antiwaiver language, freedom of contract

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should prevail. See, e.g., LaSalle Bank Nat. Ass’n v. Sleutel,
289 F.3d 837 (5th Cir. 2002); Moayedi v. Interstate 35/Chisam
Road, L.P., 438 S.W.3d 1 (Tex. 2014). Because I understand
that approach to be consistent with the standards we regularly
apply to determine whether a contract is unenforceable on
public policy grounds, I would find the waivers in this case
are enforceable. Because the majority concludes otherwise, I
respectfully dissent.