The full Nevada Supreme Court will hold oral arguments in Las Vegas on Monday, October 1 and Tuesday, October 2. Synopses of the cases are below.Oral arguments are streamed live on the Supreme Court website (www.nevadajudiciary.us). The link to access the webcast will become active about 5 minutes before the arguments are scheduled to begin. The webcast is not archived, but a podcast of the arguments will be posted and archived on the webpage, usually by the end of the day of arguments.
Oct 1, 2012, Oral Arguments Sandpointe Apartments., LLC vs. Dist. Ct. (CML-NV Sandpointe, LLC) Las Vegas – 10:00 a.m. – Full Court Nielsen vs. Dist. Ct. (Branch Banking and Trust Co.) Las Vegas – 10:30 a.m. – Full Court Lavi vs. Dist. Ct (Branch Banking) Las Vegas – 11:30 a.m. – Full Court Sandpointe Apartments., LLC vs. Dist. Ct. (CML-NV Sandpointe, LLC) Docket No. 59507 Las Vegas – 10:00 a.m. – Full Court This is an original petition for a writ of mandamus or prohibition challenging a district court order denying a motion for partial summary judgment and granting a countermotion for partial summary judgment in a deficiency action. In 2007, Silver State Bank loaned $5,135,000 to petitioner Sandpointe Apartments, LLC, for the construction of an apartment complex (the Loan). To obtain the Loan, Sandpointe executed a promissory note in favor of Silver State, secured by a deed of trust to certain real property, and petitioner Stacy Yahraus-Lewis personally guaranteed the Loan (the Guarantee). In 2008, Silver State failed, and the Federal Deposit Insurance Corporation (the FDIC) was appointed as receiver. In 2009, the Loan matured, and Sandpoint defaulted by failing to repay the Loan in full. In 2010, the FDIC transferred the interest in the Loan and the Guarantee to Multibank 2009-1 CML-ADC Venture, LLC. Multibank, in turn, transferred its interest therein to its wholly-owned subsidiary, real party interest CML-NV Sandpointe, LLC. In early 2011, CML-NV foreclosed on the collateral that secured the Loan. Subsequently, the Nevada Legislature passed Assembly Bill 273, which, broadly stated, implements a certain limitation on the amount of a deficiency judgment that can be recovered under NRS 40.459(1)(c). On June 10, 2011, Governor Sandoval signed Assembly Bill. 273 into law. On June 27, 2011, CML-NV filed a complaint in district court against Sandpointe and Yahraus-Lewis for deficiency judgment and breach of guaranty. Yahraus-Lewis thereafter moved for partial summary judgment, requesting the district court to apply the limitation contained in NRS 40.459(1)(c) to CML-NV’s action. CML-NV opposed the motion and filed a countermotion for partial summary judgment, arguing that the limitation in NRS 40.459(1)(c) cannot be applied. The district court denied Yahraus-Lewis’s motion and granted CML-NV’s countermotion, determining that applying NRS 40.459(1)(c) here would constitute retroactive application of the statute and that the language of NRS 40.459(1)(c) did not overcome the presumption against retroactivity. Sandpointe and Yahraus-Lewis now petition this court for a writ directing the district court to apply NRS 40.459(1)(c) and enter partial summary judgment in their favor. Issues: (1) Should this court entertain this petition? (2) Would applying NRS 40.459(1)(c) here constitute retroactive operation of the statute? (3) Can NRS 40.459(1)(c) be applied retroactively? (4) Is the underlying loan transfer within the purview of NRS 40.459(1)(c)? (5) Would retroactively applying NRS 40.459(1)(c) here violate the Contracts Clause? (6) Does federal law preempt the application of NRS 40.459(1)(c) to loans acquired from the FDIC? (Disclaimer: This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do) Nielsen vs. Dist. Ct. (Branch Banking and Trust Co.) Docket No. 59823 Las Vegas – 10:30 a.m. – Full Court This is an original petition for a writ of mandamus or prohibition challenging a district court order denying a motion for summary judgment in a deficiency judgment action. Real party in interest Branch Banking and Trust Company (BB&T) brought a deficiency judgment suit against petitioners Frank Nielsen and Robert Schulman (collectively, Nielsen) to recover the outstanding debt remaining, after a foreclosure sale, on a loan guaranteed by Nielsen. BB&T alleged that Nielsen, as guarantor for a loan made to Tropical-Lamb, LLC, was liable for almost $13 million in unpaid principal, interest and fees. However, BB&T did not originate the loan; instead, it assumed the loan from the Federal Deposit Insurance Corporation (FDIC) which was acting as receiver for Colonial Bank, a failed financial institution. Following acquisition of the loan, BB&T proceeded with a non-judicial foreclosure. At the foreclosure sale, it obtained ownership of the property by placing an $8 million credit bid. BB&T then filed suit to obtain a deficiency judgment for the difference between the outstanding loan amount and the sale price. Following the filing of BB&T’s suit for deficiency judgment, the Nevada Legislature approved, and the Governor signed, Assembly Bill 273, which, in pertinent part, limited the amount secondary note holders were able to recover in deficiency judgment suits to the amount they had paid for the note. Nielsen brought a motion for summary judgment, alleging that BB&T failed to prove the amount of consideration they paid to acquire the loan, as well as the fair market value of the property at the time of the foreclosure sale. The district court denied Nielsen’s motion. This petition for a writ of mandamus followed. Issues: (1) Is a writ of mandamus procedurally appropriate? (2) Did the district court err when it denied summary judgment as to the application of NRS 40.459(1)(c)? (3) Did the district court err when it denied summary judgment because BB&T failed to submit the amount of consideration it paid for the debt? (4) Can NRS 40.459(1)(c) apply to transfers completed by the FDIC? (5) May this court take judicial notice of a post-enactment statement of intent? (Disclaimer: This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do) Lavi vs. Dist. Ct. (Branch Banking) Docket No. 58968 Las Vegas – 11:30 a.m. – Full Court This is an original petition for writs of mandamus and prohibition. Petitioner Simon Lavi was a guarantor for a $6 million commercial real estate loan issued by Colonial Bank. The loan was purchased by real party in interest, Branch Banking and Trust Company (BB&T), after Colonial Bank was seized by the FDIC. When the borrowers defaulted on the loan, BB&T sought recovery from Lavi and other guarantors. Thereafter, BB&T commenced foreclosure proceedings and acquired the property with a credit bid at a trustee’s sale on February 11, 2010. Eleven months after the foreclosure sale, BB&T sought partial summary judgment. Lavi opposed the motion and filed a countermotion for summary judgment. He argued that BB&T was not entitled to a deficiency award because it failed to make an application for a deficiency judgment within six months after the trustee’s sale. The district court granted BB&T’s motion for partial summary judgment and denied Lavi’s countermotion for summary judgment. It also ordered further briefing concerning the applicability of Assembly Bill 273’s amendment to NRS 40.459 as it relates to the Contracts Clause and federal preemption. Lavi now petitions for writ relief. ISSUES: (1) Did the district court err in granting summary judgment when BB&T failed to apply for a deficiency within six months of the foreclosure? (2) Did the district court err in creating an actual notice exception for NRS 40.455? (Disclaimer: This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do) Oct 2, 2012, Oral Arguments Wells Fargo Bank vs. Renslow Las Vegas – 10:00 a.m. – Full Court Attorney General vs. Gypsum Resources (NRAP 5) Las Vegas – 10:30 a.m. – Full Court Wells Fargo Bank vs. Renslow Docket No. 58283 Las Vegas – 10:00 a.m. – Full Court Appellant Wells Fargo initiated foreclosure proceedings against respondents Duke and Tina Renslow, who opted for mediation. The mediator concluded that Wells Fargo did not have authority to modify the Renslows’ loan. After the Renslows petitioned for judicial review, the district court determined that Wells Fargo mediated in bad faith and lowered the Renslows’ interest rate to 2%, reduced their monthly mortgage payment from $1,708 to $1,135, and assessed $30,000 in sanctions against Wells Fargo. Wells Fargo appeals, raising several constitutional arguments. ISSUES: (1) Does NRS 107.086, the foreclosure mediation statute, violate the separation of powers doctrine as enunciated in the Nevada Constitution? (2) Does NRS 107.086 violate the United States and the Nevada Constitutions as an uncompensated taking? (3) Does NRS 107.086 violate the contract clauses of the constitutions? (4) Does NRS 107.086 violate Wells Fargo’s right to due process under both constitutions? (5) Are these issues properly before the court when Wells Fargo did not make these arguments in the district court? (6) Did the district court, in deciding to levy sanctions, improperly consider conduct that took place before mediation? (Disclaimer: This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do) Attorney General vs. Gypsum Resources (NRAP 5) Docket No. 59557 Las Vegas – 10:30 a.m. – Full Court These are certified questions pursuant to NRAP 5 from the United States Court of Appeals for the Ninth Circuit. In 2003, Gypsum Resources, LLC (Gypsum), bought 2,500 acres of real property located in Clark County and adjacent to the Red Rock Canyon National Conservation Area (Red Rock Area). At the time of purchase, Gypsum’s 2,500 acres were zoned as a rural area, meaning that the land could be used only for small-scale homebuilding unless Clark County rezoned the area. Shortly after Gypsum’s purchase, the Legislature enacted Senate Bill 358 (Adjacent Lands Act or Act). In essence, the Adjacent Lands Act prohibited Clark County from rezoning the land in certain areas adjacent to the Red Rock Area—areas which included Gypsum’s 2,500 acres. Gypsum filed suit against Nevada’s Attorney General (AG) in federal district court, contending that the Adjacent Lands Act violated the Nevada Constitution. The district court granted summary judgment in Gypsum’s favor, and the AG appealed to the Ninth Circuit. Believing there to be no clearly controlling precedent on the state constitutional issues, the Ninth Circuit certified four questions to this court. ISSUES: (1) Does the Act violate Article 4, Section 20 of the Nevada Constitution because it is a “local or special law” that “regulates county business?” (2) If the Act is a “local or special law,” does it violate Article 4, Section 21 of the Nevada Constitution because a general law could have been made “applicable?” (3) Does the Act violate Article 4, Section 25 of the Nevada Constitution by establishing a “system of county government” that is not “uniform throughout the State?” (4) If the Act violates any of the above Sections, does the Act fall within an applicable exception and thereby remain valid? (Disclaimer: This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do) |
