Month: March 2015

Is a new notice of sale required if the time or place of a trustee’s sale changes after a third oral postponement?

Posted on by Jeff Jaeger

JED Prop. v. Coastline RE Holdings NV Corp. (Nev. Supreme Ct. – Mar. 5, 2015)

To foreclose on real property in Las Vegas that was used to secure a debt by JED Property, LLC, Coastline RE Holdings recorded a notice of a trustee’s sale. The trustee’s sale was orally postponed three times before the property was sold, with the sale occurring on the date and at the place set by the third oral postponement.

Coastline initiated a civil action against JED. JED filed a counterclaim against Coastline asserting wrongful foreclosure because Coastline violated NRS 107.082(2) when it orally postponed the sale three times without effectuating a written notice of the sale’s time and place. Coastline then filed a motion for summary judgment, arguing that JED premised its counterclaims on an erroneous interpretation of NRS 107.082(2). The district court granted summary judgment in favor of Coastline upon concluding that the three oral postponements did not trigger NRS 107.082(2)’s notice requirement because the sale occurred on the date set by the third oral postponement. JED appealed.

On appeal, JED argued that the district court’s reading of NRS 107.082(2) deviated from the statute’s plain meaning, which JED reads as requiring a written notice of new sale information upon the third oral postponement of the sale. Coastline contended that NRS 107.082(2) unambiguously permits three oral postponements of a sale and requires the notice of any new sale information only for postponements that follow the third oral postponement.

Citing NRS 107.082(2), the Nevada Supreme Court held that as long as the information regarding the sale’s date, time, and place remains the same after the third oral postponement, there is no new sale information to provide that would require a new notice. However, if the sale’s date, time, or location changes after the third oral postponement, then there is new sale information. Thus, if the sale’s date, time, or location changes after the third oral postponement, NRS 107.082(2) requires that this new sale information be noticed as provided in NRS 107.080(4).

The Court affirmed the district court’s granting of summary judgment in favor of Coastline noting that JED failed to submit any evidence that the day, time, or place of the trustee’s sale in this case changed after the third postponement.

Are inmate telephone call logs public records?

Posted on by Jeff Jaeger

LVMPD v. Blackjack Bonding (Nev. Supreme Ct. – Mar. 5, 2015)

In 2012, Blackjack Bail Bonds made a public records request to the Las Vegas Metropolitan Police Department (LVMPD), requesting inmate call logs from the Clark County Detention Center (CCDC).

Blackjack’s specifically requested, “a call log that details the description of the phone used. . . , the call start time, dialed number, complete code, call type, talk seconds, billed time, cost, inmate id, and last name.” Additionally, Blackjack asked for “a list of all phones used by inmates and the phone description, including whether the phone is used to place . . . free calls, collect calls, or both.”  Blackjack subsequently narrowed the scope of the requested information to calls to “all telephone numbers listed on the various bail bond agent jail lists posted in CCDC in 2011 and 2012” and conveyed that it understood “that the inmate names and identification numbers may need to be redacted.”

LVMPD denied Blackjack’s request, claiming that it did not possess the records.  Blackjack then petitioned the district court for a writ of mandamus to compel LVMPD to provide the requested records. The district court granted in part Blackjack’s request for mandamus relief, stating that (1) the requested records were public records that LVMPD had a duty to produce, (2) the inmates’ names and identification numbers must be redacted before production, and (3) Blackjack would pay the costs associated with the production.

On appeal, LVMPD argued that the requested records are not public records subject to disclosure because they (1) do not concern an issue of public interest, (2) involve communications between private entities, and (3) are not in LVMPD’s legal custody or control.  LVMPD also argued that it need not produce the requested records because Public Employees’ Retirement System v. Reno Newspapers, Inc. (PERS), 129 Nev. , 313 P.3d 221 (2013), prevents it from having to create a new document to satisfy a public records request.  Alternatively, LVMPD argued that if the requested records are public records, then a balancing-of- competing-interests test weighs in favor of nondisclosure because of the inmates’ privacy interests and the burdens associated with production.

The Nevada Supreme Court held that the information that Blackjack requested is a public record because it relates to the provision of a public service.  The Court also found that substantial evidence indicated that LVMPD has legal control over the requested information.

Further, the Court indicated that the requested public records are readily accessible and PERS does not prevent their disclosure. The Court noted that LVMPD failed to demonstrate that the requested disclosure was financially burdensome. Therefore, the balancing-of-competing-interests test does not preclude its duty to produce the requested information.

Can a bank recover a deficiency from a court appointed receiver’s sale of real property securing a $20.15 million loan?

Posted on by Jeff Jaeger

U.S. Bank Nat’l Ass’n v. Palmilla Dev. Co. (Nev. Supreme Ct. – Mar. 5, 2015)

“Palmilla Development Co., took out a loan for $20.15 million from the predecessor-in-interest of appellant U.S. Bank. The loan was secured by a deed of trust on a development of townhomes and personally guaranteed by respondent Hagai Rapaport, Palmilla’s president. U S Bank became the legal holder of the loan note and all beneficial interest under thefl deed of trust, following which Palmilla defaulted and Rapaport failed to fulfill his guarantor obligations. U.S. Bank then instituted an action seeking to appoint a receiver in order to collect rents from, to market, and to sell the secured property.”

Following the district court’s approval of U S Bank’s request, the receiver, through a real estate marketing company, listed the subject property and, over the course of several months, obtained 31 offers to purchase the property. From these offers, the receiver identified what it believed to be the best offer and entered into a purchase and sale agreement with that third-party purchaser for $9.5 million on February 5, 2010. U.S. Bank filed a motion to approve the sale, which the district court granted on March 26, 2010. Escrow closed on June 7, 2010, when the purchaser paid the agreed upon price and obtained the deed to the property.

The bank filed an amended complaint seeking the recover the deficiency from the proceeds of the receiver’s sale. Palmilla filed a motion for summary judgment arguing that that the relief sought in the amended complaint was, in essence, an application for a deficiency judgment under NRS 40.455(1), which U.S. Bank was precluded from seeking because (1) the receiver sale was not a “foreclosure sale or trustee’s sale held pursuant to NRS 107.080,” and absent either of those two types of sales, NRS 40.455(1) does not permit a deficiency judgment; and (2) even if NRS 40.455(1) could be used to seek a deficiency judgment following a receiver sale of real property securing a loan, U.S. Bank failed to comply with the section’s time frame for so seeking.

The district court granted Palmilla’s motion, holding that, although U.S. Bank could utilize NRS 40.455(1) to seek a deficiency judgment following a receiver sale of real property securing a loan, U.S. Bank had to abide by NRS 40.455(1)’s six-month time frame in so doing, and that more than six months had passed between the date U.S. Bank filed its amended complaint and the date the district court approved the purchase and sales agreement.

On appeal, the Nevada Supreme Court held that a receiver sale of real property securing a loan is a “foreclosure sale” within the meaning that NRS 40.455(1) and that NRS 40.455(1) governs actions for deficiency judgments following a receiver sale of real property securing a loan. The court further held that in the context of receiver sales of real property securing loans, it is not until the actual exchange of money, the close of escrow, that NRS 40.455(1)’s six-month time limit begins.

The Court reversed and remanded the matter noting that less than six months had elapsed between the payment of funds on June 7, 2010, and U.S. Bank’s application for a deficiency judgment on November 24, 2010, U.S. Bank complied with NRS 40.455(1)’s requisite time frame.

In a probate proceeding, who can challenge the parentage of a potential heir?

Posted on by Jeff Jaeger

In re Estate of Murray (Nev. Supreme Ct. – Mar. 5, 2015)

The Nevada Supreme Court recently reviewed whether in a probate proceeding, the parentage of an heir can be contested under Nevada’s probate statutes or the Nevada Parentage Act.

The Court noted that Under Nevada’s Parentage Act (UPA) of NRS Chapter 126, a ‘”[p]arent and child relationship means the legal relationship existing between a child and his or her natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. It includes the mother and child relationship and the father and child relationship.” The Court also acknowledged that under the parentage statutes, “a determination of parentage rests upon a wide array of considerations rather than genetics alone.”

The Court believed that the Legislature, by adopting the UPA and failing to provide any independent means of determining parentage for inheritance purposes, intended for Nevada’s parentage statutes to apply in probate proceedings. The Court further noted that deferring to the parentage act will equitably resolve paternity disputes when conflicts arise between presumptive and biological paternity in probate proceedings.  Thus, the Court concluded that the Nevada Parentage Act applies to parentage challenges in Nevada probate proceedings.