Mackiewicz v. J.J. & Associates, 245 Neb. 568, 514 N.W.2d 613 (Neb. 1994)
Legal information, not legal advice. Verify against the cited opinion.
- Citation: Mackiewicz v. J.J. & Associates, 245 Neb. 568, 514 N.W.2d 613 (1994) (decided April 8, 1994).
- Court / Year: Nebraska Supreme Court, 1994.
- Topic tags: forfeiture | foreclosure | treat_as_mortgage | election_of_remedies
- Facts: On December 21, 1987, vendors (Goos and Venteicher) sold two lots to J.J. & Associates, a partnership, under separate installment land contracts, recorded December 30, 1987. Each lot carried a 33,000 and $34,500) were payable in three installments (first due Dec. 21, 1988). After J.J. & Associates defaulted on the August 1989 payment, the parties converted the deal: Goos-Venteicher executed warranty deeds (Sept. 15, 1989) reciting they were “given in satisfaction of” the land contracts, and J.J. & Associates delivered promissory notes and deeds of trust (Oct. 18, 1989) for each lot in the original balance amounts. On the ensuing default, the vendors/trustee brought a foreclosure action on those instruments — which the court analyzed under the land-contract / treat-as-mortgage framework.
- Holding: The Nebraska Supreme Court refused to strictly enforce the traditional remedy of forfeiture on default of a land contract and instead recognized the seller’s right to foreclose the contract as if it were a mortgage (with the attendant mortgage-style protections for the buyer). A seller who has accepted and retained the buyer’s payments and taken possession (forfeiture) may not then also pursue money damages — the remedies are inconsistent.
- Reasoning: Extends porter-v-smith-1992. Nebraska treats the installment land contract as a security device functionally equivalent to a mortgage; the vendor retains legal title only as security for the unpaid purchase price, so the proper enforcement of the seller’s lien on default is foreclosure (judicial sale), not self-executing strict forfeiture.
- Practical impact for CFD operators/buyers: This is the case later courts cite for the proposition that “installment land contracts are to be treated as mortgages” in Nebraska (see beckner-v-urban-2021, 309 Neb. 677). It places Nebraska in the treat-as-mortgage / hybrid camp: forfeiture is disfavored and the seller’s ordinary path is mortgage-style foreclosure.
- Good-law status: Good law; expressly relied on in Beckner v. Urban, 309 Neb. 677 (2021) (“installment land contracts are to be treated as mortgages”).
- Source (retrieved): Harvard Caselaw Access Project (primary): https://static.case.law/neb/245/cases/0568-01.json — full opinion text retrieved 2026-06-10. Citation (245 Neb. 568, 514 N.W.2d 613), date (April 8, 1994), facts, and the treat-as-mortgage / refusal-to-enforce-strict-forfeiture holding confirmed verbatim (“we conclude that the land contracts in question are to be treated as mortgages”; “We have also refused to strictly enforce the traditional remedy of forfeiture … in favor of recognizing the right of a seller to foreclose as if the contract were a mortgage”). Independently corroborated by the citing language in the retrieved Beckner v. Urban opinion (309 Neb. 677). (Justia mirror at https://law.justia.com/cases/nebraska/supreme-court/1994/583-4.html 403-blocks automated fetch.) · Verified: 2026-06-10
Jurisdictions that follow / cite: nebraska
Disclaimer. Legal information, not legal advice. Confirm the opinion is still good law before relying on it.