Before Justices Gibbons, Pickering, and Hardesty. Opinion by Justice Pickering.
This appeal arises from Nevada’s residential Foreclosure Mediation Program (FMP), which is designed to give homeowners a meaningful opportunity to negotiate with their mortgagees to avoid foreclosure. Under NRS 107.086, if a homeowner elects FMP mediation, a non-judicial foreclosure cannot proceed without a certificate that mediation has been concluded. The Appellant homeowner’s mediation did not result in a loan modification, and an FMP certificate was issued, allowing foreclosure to go forward. Appellant filed a petition for judicial review in district court, seeking sanctions against Respondent for failing to meet its burden of producing key documents at mediation. The district court rejected the petition, finding that the loan servicer demonstrated a lack of bad faith. The mediator’s statement had reported a gap in the assignments of the original promissory note as well as a lost note certification, which were seemingly at odds with Respondent’s trustee’s certified claim to possess the original note. The district court found no irregularity in the certified document production. On appeal, the Supreme Court rejected this factual finding, declining to defer to the district court because there was no substantial evidence supporting it. However, the Court noted that the missing assignment had in fact been located by Appellant’s attorney and produced both at the mediation and in the district court action. Appellant, citing NRS 107.086 (which places an affirmative burden on the trust deed beneficiary to produce such documentation), argued that Respondent was not entitled to fill in its gap with a document that Appellant had produced. The Court disagreed and held that the purpose of the statute is not to burden mortgagees, but rather to ensure that the mortgagee actually owns the note and is the party with the authority to negotiate or foreclose. In this case, because the missing assignment was present at the mediation and sufficiently authenticated, the Court found that the purpose of the statute had been fulfilled and that Appellant had not been prejudiced, and concluded that the district court did not err in denying sanctions and allowing the FMP certificate to issue. Affirmed. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson.)
