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KARL VS. HSBC BANK, USA, NA | Nevada Supreme Court “Mediation, Missing Documents, HSBC Failed To Show It Was Proprer Bene”

KARL VS. HSBC BANK, USA, NA | Nevada Supreme Court “Mediation, Missing Documents, HSBC Failed To Show It Was Proprer Bene”


THE SUPREME COURT OF THE STATE OF NEVADA

CAROLINE J. KARL,
Appellant,

vs.

HSBC BANK, USA, NA, AS TRUSTEE
FOR MERRILL LYNCH ALTERNATIVE
NOTE ASSET TRUST, SERIES 2007-A3,
AN UNKNOWN ENTITY; AMERICA’S
SERVICING COMPANY, AN
UNKNOWN ENTITY; AND QUALITY
LOAN SERVICE CORPORATION, A
FOREIGN ENTITY,
Respondents.

ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING

EXCERPT:

Karl now appeals, contending (1) HSBC did not provide all the
required documents, which constitutes bad faith; and (2) a proper
representative did not attend the mediation.’ For the reasons set forth
below, we affirm in part, reverse in part, and remand the district court’s
order denying judicial review. Specifically, we take issue with the district
court’s finding that HSBC provided proper documentation at the
mediation.

Because the parties are familiar with the facts and procedural
history in this case, we do not recount them further except as is necessary
for our disposition.

Standard of review

This court reviews a district court’s factual determinations for
clear error, Valladares v. DMJ, Inc., 110 Nev. 1291, 1294, 885 P.2d 580,
582 (1994), and its legal determinations de novo, Clark County v. Sun
State Properties, 119 Nev. 329, 334, 72 P.3d 954, 957 (2003). Absent
factual or legal error, the choice of sanction, if any, in an FMP judicial
review proceeding is committed to the sound discretion of the district
court. Pasillas v. HSBC Bank USA, 127 Nev. „ 255 P.3d 1281,
1287 (2011).

HSBC failed to provide the required documentation

To obtain a foreclosure certificate, it is mandatory that a
beneficiary of a deed of trust or its representative “(1) attend the
mediation, (2) mediate in good faith, (3) provide the required documents,
and (4) have a person present with authority to modify the loan or access
to such a person.” Id. at     , 255 P.3d at 1284; see Leyva v. National
Default Servicing Corp., 127 Nev.     „ 255 P.3d 1275, 1276 (2011)
(requiring strict compliance with NRS 107.086’s requirements). A letter
certifying the mediation cannot be entered until all the requirements of
NRS 107.086 are met. Pasillas, 127 Nev. at , 255 P.3d at 1286. If the
homeowner petitions the district court for judicial review, the court may
impose sanctions against the “beneficiary of the deed of trust or the
representative as the court determines appropriate” if any one of these
four requirements is not satisfied. NRS 107.086(5).

Karl contends that HSBC failed to provide the documents
required under NRS 107.086(4). We agree. NRS 107.086(4) requires that
the beneficiary provide “the original or a certified copy of the deed of trust,
the mortgage note and each assignment of the deed of trust or mortgage
note.” The record lacks clarity as to whether HSBC provided all the
proper documentation. 2 The only evidence provided is that the mediator
did not note missing documents on the mediator statement. The
documents in the appellate record, however, fail to show whether HSBC
established that it was the proper beneficiary that provided the required
documents. Thus, we conclude that the district court abused its discretion
in determining that the necessary documents were provided. 3 Accordingly
we,
ORDER the judgment of the district court AFFIRMED
IN PART AND REVERSED IN PART AND REMAND this matter to the
district court to clarify its findings regarding the sufficiency of the
documents produced by HSBC at the mediation and whether sanctions are
appropriate. 4

[ipaper docId=79217873 access_key=key-51z9v73kmy1rf58460w height=600 width=600 /]

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PIAZZA VS. CITIMORTGAGE, INC. | Nevada Supreme Court “Mediation, Directs Dist. Ct. to Evaluate Assignments”

PIAZZA VS. CITIMORTGAGE, INC. | Nevada Supreme Court “Mediation, Directs Dist. Ct. to Evaluate Assignments”


IN THE SUPREME COURT OF THE STATE OF NEVADA

CARL F. PIAZZA,
Appellant,

vs.

CITIMORTGAGE, INC.,
Respondent.

ORDER AFFIRMING IN PART, REVERSING IN PART, AND
REMANDING

EXCERPTS:

On appeal, Piazza contends that the district court abused its
discretion in refusing to sanction CitiMortgage and in ordering that it be
issued a foreclosure certificate. He argues that the issuance of a
foreclosure certificate was improper because the Broker’s Price Opinion
(BPO) that CitiMortgage produced at the mediation did not strictly comply
with the statutory requirements set forth in NRS 645.2515(3), and the
assignments of the deed of trust that CitiMortgage presented at the
mediation were flawed. 2 For the reasons set forth below, we affirm in part
and reverse in part the district court’s order granting CitiMortgage’s
petition for judicial review, and remand for further proceedings.

The district court abused its discretion in ordering a foreclosure certificate
to be issued to CitiMortgage[

[…]

Nonetheless, based upon the record on appeal, it does not
appear that the district court reviewed the assignments presented by
CitiMortgage to ensure that they were in strict compliance. The district
court, therefore, abused its discretion in ordering a foreclosure certificate
to be issued. We therefore reverse and remand this matter to the district
court for further proceedings. On remand, we direct the district court to
evaluate whether the assignments presented by CitiMortgage were in
strict compliance. In this, the court must consider whether the documents
presented establish that the deed of trust was properly assigned and make
appropriate findings related thereto. Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.

[ipaper docId=79216724 access_key=key-4lxgi0au6330aa2gdgo height=600 width=600 /]

 

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Judges accused of ‘predetermining’ foreclosure cases -LVRJ

Judges accused of ‘predetermining’ foreclosure cases -LVRJ


By Doug McMurdo
LAS VEGAS REVIEW-JOURNAL
Posted: Feb. 19, 2011 | 2:06 a.m.
.

A lawyer accuses District Judge Donald Mosley and other judges of “predetermining” the outcome in foreclosure disputes in favor of the lenders, according to an appeal filed with the Nevada Supreme Court.

In the process, they have made a “mockery” of a program designed to rescue distressed homeowners, attorney Jacob Hafter says in court papers filed Wednesday.

A 2009 state law gives judges the authority to modify loans if lenders fail to abide by Nevada Foreclosure Mediation Program guidelines.

Hafter said Mosley — and by implication the high court — had previously discussed how Nevada courts would rule in these disputes. During a foreclosure hearing for Hafter client Carl Piazza, Mosley said he would never sanction a lender for bad faith by modifying a loan from the bench.

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