Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this case, the Court was called upon to interpret Nevada’s pre-2011 charitable health care statue, NRS 439B.260, which requires hospitals to offer at least a thirty percent discount to patients receiving inpatient care who meet certain criteria. Among the eligibility criteria is a requirement that the patient not have health insurance or “other contractual provision for the payment of the charge by a third party.” Appellant Bielar received treatment for injuries due to a car accident and obtained a $1.3 million settlement from the party responsible for her injuries. Washoe Medical, the health center that provided treatment, sought payment of the full amounts of treatment billed and Bielar challenged, arguing that the amounts billed were unreasonable and she was entitled to a thirty percent discount under NRS 439B.260. In the primary issue on appeal, the Court determined that the settlement agreement did not prevent Bielar from qualifying for the thirty-percent discount, holding that a “patient's eligibility for the 30-percent discount is determined at the time of the rendition of the hospital services and a later agreement with a third-party tortfeasor for claims arising out of such services” would not bar application of the discount. Additionally, the Court held that a settlement agreement is not an agreement for the payment of medical charges under the language of the statute even if a portion of the settlement agreement is designated for medical expenses. The Court noted that the 2011 revisions to NRS 439B.260 were consistent with its interpretation. Having agreed with Bielar on the legal issues, the Court reversed the grant of summary judgment on Bielar’s claims for the discount; however, the Court affirmed the district court’s grant of judgment as a matter of law on Bielar’s claims that the charges were unreasonable, concluding that Bielar failed to carry her burden of proof. Reversed in part and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, July 11, 2013
Wednesday, July 3, 2013
Nevada Power Co. v. 3 Kids, L.L.C., 129 Nev. Adv. Op. 47 (July 3, 2013, opinion modified by Court order July 24, 2013)
Before the Court en banc (Chief Justice Pickering recused). Opinion by Justice Gibbons.
In this opinion, the Court held that a jury instruction based on an overbroad reading of its decision in City of North Las Vegas v. Robinson, 122 Nev. 527, 134 P.3d 705 (2006) was not prejudicial because a separate jury instruction remedied the error. The action at district court was a jury trial regarding the just compensation for a taking by Appellant of a portion of Respondent's property for a utility easement. The jury was instructed to disregard the existence of a setback along the northernmost 20 feet of the subject property for purposes of calculating the value of the property. Appellant objected to this instruction, but the district court overruled the objection based on Respondent's argument that the Robinson decision, which addressed the applicability of a property's highest and best use in the calculation of value, was broad enough to encompass the instruction. The Court held that the instruction to disregard the setback was beyond the scope of Robinson because setbacks are appropriate for a jury to consider in discounting value. However, the Court also held that a separate, more thorough instruction alleviated the error by correctly interpreting Robinson, and therefore that there was no prejudice to Appellant caused by the erroneous instruction. Additionally, the jury's verdict was supported by substantial evidence. The Court offered a sample jury instruction for cases where a jury must determine just compensation for a property burdened by a use restriction without disregarding its highest and best use. A second issue before the Court was whether the district court abused its discretion by allowing testimony from Respondent's expert. The Court determined that the alleged weaknesses in the expert report went to the weight of the evidence and not its admissibility. The Court observed that Appellant had ample opportunity to address these weaknesses and therefore that the district court did not abuse its discretion by allowing the testimony. Appellant's argument that the expert's analysis violated NRS 50.285 was likewise unfounded because the statute does not define the type of documentation or data upon which an expert may rely. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this opinion, the Court held that a jury instruction based on an overbroad reading of its decision in City of North Las Vegas v. Robinson, 122 Nev. 527, 134 P.3d 705 (2006) was not prejudicial because a separate jury instruction remedied the error. The action at district court was a jury trial regarding the just compensation for a taking by Appellant of a portion of Respondent's property for a utility easement. The jury was instructed to disregard the existence of a setback along the northernmost 20 feet of the subject property for purposes of calculating the value of the property. Appellant objected to this instruction, but the district court overruled the objection based on Respondent's argument that the Robinson decision, which addressed the applicability of a property's highest and best use in the calculation of value, was broad enough to encompass the instruction. The Court held that the instruction to disregard the setback was beyond the scope of Robinson because setbacks are appropriate for a jury to consider in discounting value. However, the Court also held that a separate, more thorough instruction alleviated the error by correctly interpreting Robinson, and therefore that there was no prejudice to Appellant caused by the erroneous instruction. Additionally, the jury's verdict was supported by substantial evidence. The Court offered a sample jury instruction for cases where a jury must determine just compensation for a property burdened by a use restriction without disregarding its highest and best use. A second issue before the Court was whether the district court abused its discretion by allowing testimony from Respondent's expert. The Court determined that the alleged weaknesses in the expert report went to the weight of the evidence and not its admissibility. The Court observed that Appellant had ample opportunity to address these weaknesses and therefore that the district court did not abuse its discretion by allowing the testimony. Appellant's argument that the expert's analysis violated NRS 50.285 was likewise unfounded because the statute does not define the type of documentation or data upon which an expert may rely. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP.)
Mountain View Rec. v. Imperial Commercial, 129 Nev. Adv. Op. 45 (July 3, 2013)
Before the Court en banc. Opinion by Justice Hardesty.
In this appeal, the Court reviewed whether the district court had abused its discretion by granting a motion to change venue from Nye County to Clark County based on the doctrine of forum non conveniens and a finding that courtroom facilities in Pahrump were inadequate for trial. The motion, filed by one of the defendants, argued that Las Vegas would be more convenient insofar as (1) the majority of pretrial litigation and discovery had taken place in Las Vegas, (2) the physical evidence, special master, and majority of counsel, were located in Las Vegas, (3) experts would have to travel through Las Vegas to get to Pahrump, (4) the majority of plaintiff’s witnesses would not have to travel to Las Vegas from Pahrump, and (5) the transfer would not result in a reassignment of judges insofar as a senior judge had already been assigned. The Court reversed, concluding that the record was insufficient to support the district court’s finding of inconvenience under NRS 13.050 and Eaton v. Second Judicial Dist. Court, 96 Nev. 73, 774-75, 616 P.2d 400, 401 (1980), because respondent had failed to offer any affidavits or evidence establishing the extraordinary circumstances needed to change venue under Eaton. Additionally, the district court failed to recognize the obligation of Nye County under NRS 3.100(2) and Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329 (1992), to provide adequate facilities for the litigation. Finally, the district court failed to consider and respondents failed to offer evidence concerning the congestion of the Clark County district court’s docket in determining whether it could accommodate the trial if transferred. The Court adopted the rule from Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984) and GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 1998), imposing the burden on the movant to demonstrate that a change in venue will result in a speedier resolution of the matter. Reversed and remanded. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court reviewed whether the district court had abused its discretion by granting a motion to change venue from Nye County to Clark County based on the doctrine of forum non conveniens and a finding that courtroom facilities in Pahrump were inadequate for trial. The motion, filed by one of the defendants, argued that Las Vegas would be more convenient insofar as (1) the majority of pretrial litigation and discovery had taken place in Las Vegas, (2) the physical evidence, special master, and majority of counsel, were located in Las Vegas, (3) experts would have to travel through Las Vegas to get to Pahrump, (4) the majority of plaintiff’s witnesses would not have to travel to Las Vegas from Pahrump, and (5) the transfer would not result in a reassignment of judges insofar as a senior judge had already been assigned. The Court reversed, concluding that the record was insufficient to support the district court’s finding of inconvenience under NRS 13.050 and Eaton v. Second Judicial Dist. Court, 96 Nev. 73, 774-75, 616 P.2d 400, 401 (1980), because respondent had failed to offer any affidavits or evidence establishing the extraordinary circumstances needed to change venue under Eaton. Additionally, the district court failed to recognize the obligation of Nye County under NRS 3.100(2) and Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329 (1992), to provide adequate facilities for the litigation. Finally, the district court failed to consider and respondents failed to offer evidence concerning the congestion of the Clark County district court’s docket in determining whether it could accommodate the trial if transferred. The Court adopted the rule from Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984) and GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 1998), imposing the burden on the movant to demonstrate that a change in venue will result in a speedier resolution of the matter. Reversed and remanded. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
Frei v. Goodsell, 129 Nev. Adv. Op. 43 (July 3, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Parraguirre.
In this appeal from an attorney malpractice action stemming from trust litigation, the appellant raises two unrelated issues stemming from an action to void certain documents that transferred assets among two revocable trusts benefitting the appellant’s and his wife’s children from other marriages. Appellant’s attorney, acting at the instruction of appellant’s agent, who had been appointed as both appellant’s attorney-in-fact and as trustee to appellant’s wife’s trust, prepared certain transfer documents for appellant’s signature. Although the attorney never personally met with appellant, appellant signed the documents, which resulted in the transfer of $1 million of appellant’s assets to his wife’s trust. After his wife’s death, Appellant sought to void the documents and filed a legal malpractice action against his attorney. The first issue concerns whether the district court properly denied a motion in limine to preclude the attorney from arguing that an attorney-client relationship did not exist when the district court had previously determined, in the trust litigation concerning the documents, that such a relationship existed and created a conflict of interest. In resolving this issue, the court applied the four-part issue preclusion test from Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1052, 194 P.3d 709, 711 (2008), and determined that only the fourth element (whether “the issue was actually and necessarily litigated”) was in dispute. The court concluded that, while the existence of an attorney-client relationship was actually litigated, it was not necessarily litigated. In Nevada, issue preclusion will only apply if a matter was necessary to the prior judgment. Analogizing to a factually similar Massachusetts Supreme Judicial Court decision, the court held that resolving the underlying trust litigation did not depend on whether an attorney-client relationship existed and, therefore, that issue was not necessarily litigated in the trust action and issue preclusion did not apply. The second issue the Court addressed concerned whether the district court properly excluded parol evidence to demonstrate the appellant’s intent in executing the documents that ultimately resulted in the $1 million transfer. Appellant conceded that the documents were unambiguous, but he argued that the documents did not meet his objectives. The Court held that parol evidence is not admissible to demonstrate intent where the language of a document is clear on its face and, therefore, the district court properly excluded the evidence. The Court further reiterated that its statement in Russ v. General Motors Corp., 111 Nev. 1431, 1438-39, 906 P.2d 718, 723 (1995), that a court should consider evidence of intent to determine whether a document is susceptible to interpretation is not the law as it has been discredited in another published opinion as dicta. In a footnote, the Court also stated that it was not clear whether the parol evidence rule should apply at all when a party seeks recovery for legal malpractice and is not seeking to contradict the terms of a document. The Court could not address that that question as it was not properly presented in this appeal. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal from an attorney malpractice action stemming from trust litigation, the appellant raises two unrelated issues stemming from an action to void certain documents that transferred assets among two revocable trusts benefitting the appellant’s and his wife’s children from other marriages. Appellant’s attorney, acting at the instruction of appellant’s agent, who had been appointed as both appellant’s attorney-in-fact and as trustee to appellant’s wife’s trust, prepared certain transfer documents for appellant’s signature. Although the attorney never personally met with appellant, appellant signed the documents, which resulted in the transfer of $1 million of appellant’s assets to his wife’s trust. After his wife’s death, Appellant sought to void the documents and filed a legal malpractice action against his attorney. The first issue concerns whether the district court properly denied a motion in limine to preclude the attorney from arguing that an attorney-client relationship did not exist when the district court had previously determined, in the trust litigation concerning the documents, that such a relationship existed and created a conflict of interest. In resolving this issue, the court applied the four-part issue preclusion test from Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1052, 194 P.3d 709, 711 (2008), and determined that only the fourth element (whether “the issue was actually and necessarily litigated”) was in dispute. The court concluded that, while the existence of an attorney-client relationship was actually litigated, it was not necessarily litigated. In Nevada, issue preclusion will only apply if a matter was necessary to the prior judgment. Analogizing to a factually similar Massachusetts Supreme Judicial Court decision, the court held that resolving the underlying trust litigation did not depend on whether an attorney-client relationship existed and, therefore, that issue was not necessarily litigated in the trust action and issue preclusion did not apply. The second issue the Court addressed concerned whether the district court properly excluded parol evidence to demonstrate the appellant’s intent in executing the documents that ultimately resulted in the $1 million transfer. Appellant conceded that the documents were unambiguous, but he argued that the documents did not meet his objectives. The Court held that parol evidence is not admissible to demonstrate intent where the language of a document is clear on its face and, therefore, the district court properly excluded the evidence. The Court further reiterated that its statement in Russ v. General Motors Corp., 111 Nev. 1431, 1438-39, 906 P.2d 718, 723 (1995), that a court should consider evidence of intent to determine whether a document is susceptible to interpretation is not the law as it has been discredited in another published opinion as dicta. In a footnote, the Court also stated that it was not clear whether the parol evidence rule should apply at all when a party seeks recovery for legal malpractice and is not seeking to contradict the terms of a document. The Court could not address that that question as it was not properly presented in this appeal. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
Thursday, June 27, 2013
Halcrow, Inc. v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 42 (June 27, 2013)
Before the Court En Banc. Opinion by Justice Saitta.
In this petition for writ of mandamus challenging a district court order granting motions for leave to amend to add claims for negligent misrepresentation against a design professional in the commercial construction context, the Court examined the economic loss doctrine’s applicability to negligent misrepresentation claims. The Court had previously left open the question of whether the economic loss doctrine barred a claim for negligent misrepresentation in Terracon Consultants Western, Inc. v. Mandala Resort Group, 125 Nev. 66, 206 P.3d 81 (2009). The original proceeding in this case stemmed from the construction of the Harmon Tower within CityCenter. The developer, MGM Mirage Design Group (“MGM”), retained an architectural firm and Perini Building Company (“Perini”) as its general contractor. The architectural firm retained the petitioner, Halcrow, to design the Harmon’s structure, and Perini hired Century Steel, Inc. (“Century”) to provide the steel installation, who ultimately assigned its assets to Pacific Coast Steel (“PCS”). Halcrow had no contract with Perini, Century, or PCS. After Perini filed a complaint against the MGM for failing to make timely payments, the MGM filed counterclaims against Perini for alleged reinforcing steel defects and other nonconforming work. Perini then filed a third-party complaint against Century and PCS, who in turn filed their own third and fourth party complaints against Halcrow, among others. Halcrow moved to dismiss Century’s third and fourth party complaints, arguing that Terracon bars unintentional tort claims against design professionals in commercial construction projects when the claimant incurs primarily economic losses. The district court dismissed Century’s and PCS’s claims for negligence, among others, but allowed Century and PCS leave to amend to allege a claim for negligent misrepresentation against Halcrow for allegedly negligently representing to Century and PCS that it would inspect and make on-site adjustments to the steel installation. The Court exercised its discretion to review this writ petition, and examined the economic loss doctrine’s application in Nevada. The Court clarified that there are certain exceptions to the economic loss doctrine where “strong countervailing considerations weigh in favor of imposing liability,” including claims for “defamation, intentionally caused harm, negligent misstatements about financial matters and loss of consortium.” However, the Court reasoned that in the context of commercial construction design professionals, contract law is better suited for resolving such claims. Therefore, the Court held that in commercial construction defect litigation, the economic loss doctrine applies to bar claims against design professionals for negligent misrepresentation where the damages alleged are purely economic. Writ of mandamus granted directing district court to vacate its order granting Century and PCS leave to amend. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
In this petition for writ of mandamus challenging a district court order granting motions for leave to amend to add claims for negligent misrepresentation against a design professional in the commercial construction context, the Court examined the economic loss doctrine’s applicability to negligent misrepresentation claims. The Court had previously left open the question of whether the economic loss doctrine barred a claim for negligent misrepresentation in Terracon Consultants Western, Inc. v. Mandala Resort Group, 125 Nev. 66, 206 P.3d 81 (2009). The original proceeding in this case stemmed from the construction of the Harmon Tower within CityCenter. The developer, MGM Mirage Design Group (“MGM”), retained an architectural firm and Perini Building Company (“Perini”) as its general contractor. The architectural firm retained the petitioner, Halcrow, to design the Harmon’s structure, and Perini hired Century Steel, Inc. (“Century”) to provide the steel installation, who ultimately assigned its assets to Pacific Coast Steel (“PCS”). Halcrow had no contract with Perini, Century, or PCS. After Perini filed a complaint against the MGM for failing to make timely payments, the MGM filed counterclaims against Perini for alleged reinforcing steel defects and other nonconforming work. Perini then filed a third-party complaint against Century and PCS, who in turn filed their own third and fourth party complaints against Halcrow, among others. Halcrow moved to dismiss Century’s third and fourth party complaints, arguing that Terracon bars unintentional tort claims against design professionals in commercial construction projects when the claimant incurs primarily economic losses. The district court dismissed Century’s and PCS’s claims for negligence, among others, but allowed Century and PCS leave to amend to allege a claim for negligent misrepresentation against Halcrow for allegedly negligently representing to Century and PCS that it would inspect and make on-site adjustments to the steel installation. The Court exercised its discretion to review this writ petition, and examined the economic loss doctrine’s application in Nevada. The Court clarified that there are certain exceptions to the economic loss doctrine where “strong countervailing considerations weigh in favor of imposing liability,” including claims for “defamation, intentionally caused harm, negligent misstatements about financial matters and loss of consortium.” However, the Court reasoned that in the context of commercial construction design professionals, contract law is better suited for resolving such claims. Therefore, the Court held that in commercial construction defect litigation, the economic loss doctrine applies to bar claims against design professionals for negligent misrepresentation where the damages alleged are purely economic. Writ of mandamus granted directing district court to vacate its order granting Century and PCS leave to amend. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, June 20, 2013
Williams v. United Parcel Servs., 129 Nev. Adv. Op. 41 (June 6, 2013)
Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Saitta.
In this appeal from a district court order denying a petition for judicial review in a workers’ compensation action, the Court examined the meaning of “off work” under NRS 616C.390(5). Under NRS 616C.390(5), a claimant either has to be “off work” or has to receive a “permanent partial disability award” to reopen a claim more than one year after the closing date of the claim. Appellant sustained workplace injuries when he fell from a ladder and Appellant’s physician did not clear Appellant to return to work until two days later. Appellant filed a worker’s compensation claim with his employer and received an award that was not a “permanent partial disability award.” After experiencing subsequent back pain, appellant sought to reopen his claim two years after the claim closed. An appeals officer refused to reopen Appellant’s claim because the appeals officer determined that Appellant was never “off work” under NRS 616C.390(5). The appeals officer interpreted “off work” to mean that an employee has to miss at least five days of work as the result of a work injury. The Court first held that failing to apply to reopen a claim within the limitations period set forth in NRS 616C.390(5) acts as a jurisdictional bar to reopening the claim. The Court then held that an employee does not have to miss a certain minimum amount of time from work to be “off work” under NRS 616C.390(5) - an employee only has to lose time from work as the result of a work injury to be “off work” under the statute. Reversed and remanded. (Chris Stanko, Summer Clerk in the Reno office of McDonald Carano Wilson.)
In this appeal from a district court order denying a petition for judicial review in a workers’ compensation action, the Court examined the meaning of “off work” under NRS 616C.390(5). Under NRS 616C.390(5), a claimant either has to be “off work” or has to receive a “permanent partial disability award” to reopen a claim more than one year after the closing date of the claim. Appellant sustained workplace injuries when he fell from a ladder and Appellant’s physician did not clear Appellant to return to work until two days later. Appellant filed a worker’s compensation claim with his employer and received an award that was not a “permanent partial disability award.” After experiencing subsequent back pain, appellant sought to reopen his claim two years after the claim closed. An appeals officer refused to reopen Appellant’s claim because the appeals officer determined that Appellant was never “off work” under NRS 616C.390(5). The appeals officer interpreted “off work” to mean that an employee has to miss at least five days of work as the result of a work injury. The Court first held that failing to apply to reopen a claim within the limitations period set forth in NRS 616C.390(5) acts as a jurisdictional bar to reopening the claim. The Court then held that an employee does not have to miss a certain minimum amount of time from work to be “off work” under NRS 616C.390(5) - an employee only has to lose time from work as the result of a work injury to be “off work” under the statute. Reversed and remanded. (Chris Stanko, Summer Clerk in the Reno office of McDonald Carano Wilson.)
Thursday, June 6, 2013
Bergenfield v. Bank of Am., 129 Nev. Adv. Op. 40 (June 6, 2013)
Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Douglas.
In this appeal, the Court held that in the context of Nevada’s Foreclosure Mediation Program, when the deed of trust to real property and the promissory note are held by two different entities at the time of mediation, the attendance at the mediation by the holder of a promissory note does not meet the statutory requirement that the deed of trust beneficiary attend and participate in good faith. Appellant obtained a home loan from Countrywide Home Loans, Inc. and executed a promissory note in Countrywide’s favor. The note was secured by a deed of trust naming Mortgage Electronic Registration Systems, Inc. as beneficiary of the deed of trust, who subsequently assigned its interest in the deed of trust to HSBC Bank USA. Countrywide endorsed the promissory note in blank, which meant that the holder of the note would be entitled to payment under the terms of the note. The Appellant defaulted on the loan and elected to participate in the Foreclosure Meditation Program. Bank of America, the acquirer of Countrywide, held the note and, through a representative, attended the mediation. HSBC did not attend at all. The Court held that a party seeking a nonjudicial foreclosure on a deed of trust of an owner-occupied residence must demonstrate that it is the current beneficiary of the deed of trust and the holder of the promissory note. This is because the deed of trust is a lien on the property, but the holder of the promissory note is the party entitled to repayment. Foreclosure under NRS Chapter 107 is only proper when the deed of trust and the promissory note are held by the same party. NRS 107.086(4) requires that the beneficiary of the deed of trust attend the mediation, and the Foreclosure Mediation Program certificate, which ultimately permits the beneficiary to proceed with foreclosure, cannot be issued if the beneficiary fails to attend. The deed of trust and the promissory note, therefore, must be reunified prior to the mediation. Because Bank of America was not the beneficiary of the deed of trust, it was not permitted to nonjudicially foreclose on the property. The Court further issued sanctions against Bank of America for holding itself out as the beneficiary of the deed of trust. Reversed. (Joseph Schrage, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
In this appeal, the Court held that in the context of Nevada’s Foreclosure Mediation Program, when the deed of trust to real property and the promissory note are held by two different entities at the time of mediation, the attendance at the mediation by the holder of a promissory note does not meet the statutory requirement that the deed of trust beneficiary attend and participate in good faith. Appellant obtained a home loan from Countrywide Home Loans, Inc. and executed a promissory note in Countrywide’s favor. The note was secured by a deed of trust naming Mortgage Electronic Registration Systems, Inc. as beneficiary of the deed of trust, who subsequently assigned its interest in the deed of trust to HSBC Bank USA. Countrywide endorsed the promissory note in blank, which meant that the holder of the note would be entitled to payment under the terms of the note. The Appellant defaulted on the loan and elected to participate in the Foreclosure Meditation Program. Bank of America, the acquirer of Countrywide, held the note and, through a representative, attended the mediation. HSBC did not attend at all. The Court held that a party seeking a nonjudicial foreclosure on a deed of trust of an owner-occupied residence must demonstrate that it is the current beneficiary of the deed of trust and the holder of the promissory note. This is because the deed of trust is a lien on the property, but the holder of the promissory note is the party entitled to repayment. Foreclosure under NRS Chapter 107 is only proper when the deed of trust and the promissory note are held by the same party. NRS 107.086(4) requires that the beneficiary of the deed of trust attend the mediation, and the Foreclosure Mediation Program certificate, which ultimately permits the beneficiary to proceed with foreclosure, cannot be issued if the beneficiary fails to attend. The deed of trust and the promissory note, therefore, must be reunified prior to the mediation. Because Bank of America was not the beneficiary of the deed of trust, it was not permitted to nonjudicially foreclose on the property. The Court further issued sanctions against Bank of America for holding itself out as the beneficiary of the deed of trust. Reversed. (Joseph Schrage, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
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