Before the court en banc (with a voluntary recusal by Pickering). Opinion by Douglas.
In this petition for a writ of mandamus or prohibition, the petitioner challenged the district court’s orders denying petitioner’s motion for summary judgment and granting, in part, the real party in interest’s motion for summary judgment. The issue presented is whether a counterclaim, cross-claim, and written motion setting the grounds for the application and the relief sought satisfies the requirements of NRS Chapter 40 for seeking a deficiency judgment based upon a breach of guaranty. Petitioner William Walters (“Walters”) argued that real party in interest Community Bank of Nevada (“CBN”) failed to apply to the district court for deficiency judgment within the statutory six-month period. CBN argued that it clearly asserted a claim that comported with NRS 40.459 by calculating the amount Walters owed as a result of the deficiency. This was done via CBN’s counterclaim, cross-claim, and summary judgment motion which asserted a deficiency against Walters. The Nevada Supreme Court affirmed the district court’s decision by stating that NRS 40.455(1) requires a judgment creditor to apply for a deficiency judgment within six months after the foreclosure sale but does not state that it must be specifically labeled as a deficiency judgment application. While NRS 40.455(1) does not state how an application should be made, NRCP 7(b)(1) states that “[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of a writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.” The Nevada Supreme Court found that CBN’s summary judgment motion met the requirements of NRCP 7(b)(1) because it was: (1) made in writing, (2) set forth in particularity the grounds for the application, and (3) set forth the relief sought. Thus, an application was made pursuant to NRS 40.455(1) within the six month period. Further, the Nevada Supreme Court found that CBN was not seeking double recovery because the $5 million credit bid was factored into the calculation of the amount owed by Walters under his guaranty and because the district court planned on determining the fair market value of the subject real property at a deficiency hearing. Petition for writ of mandamus or prohibition denied. (By Lisa Wiltshire, Associate in the Las Vegas office of McDonald Carano Wilson)
Congratulations to Jeff Silvestri, Andrew Gordon, and Lisa Wiltshire for their win for the FDIC!
