Nevada Foreclosure Laws Has Virtually Stopped All Foreclosure?


The new laws in Nevada just got passed only last month and it has miraculous effect already on our rapid foreclosure. New default notices were way down last month in Las Vegas (116 or so) and foreclosure filings in Nevada plunged in October during the first month of a new state law. Only more than 600 default notices were filed against homeowners through Oct. 25 in the state’s two most-populous counties, Las Vegas’s Clark County and Reno’s Washoe County. That was down from 5,360 in September, or an 88% drop, according to data tracked by ForeclosureRadar.com, a real-estate website that tracks such filings.

As you may know, Nevada’s state Assembly passed a measure that took effect on Oct. 1, 2011 designed to crack down on “robo-signing,” where bank employees signed off on huge numbers of legal filings while falsely claiming to have personally reviewed each case. This new law makes it a felony—and threatens to hold people criminally liable—for making false representations concerning real estate title. There are civil penalties of $5,000 for each violation. The good thing is that the new legislation has almost stopped foreclosure.

The bad thing is that the banks would have glut of homes which it cannot dispose off easily. The surplus homes would create problem for everyone including the banks, homeowners, and of course the local economy. The continuous auctioning of these properties were a capitalistic action which should not be stopped for any convenience. Again, if banks are at fault, the homeowners have not done justice with their contracts as well. Many of the delinquencies are deliberate and intentional. These “walks-aways” should be punished. Everyone should be made responsible for their actions or inactions. Furthermore, it may tempt many people to be intentionally delinquent on their homes. They may avoid taking care of these homes because they had no attachment. Possibly, they may not pay the HOA dues. Now, we have homeowners living in these homes, and still not taking care of their property. The problem with delinquency, and dependency (as you may see with immigrants coming from Communist countries, who get government housing, ration, jobs etc) that they do not strive enough to make their justified living when they come to US. Unfortunately, this dependency is taught in USA creating road blocks to the capitalistic system. We are unfortunately heading towards a socialistic economy. We should not forget that we live in a capitalistic society and should not help greedy and needlessly protect greedy and non law-abiding people. Of course, we are creating a massive delinquent homeowners society who had scant regard of their promissory notes, contracts, and ethical agreements. These folks always shift the accusation on someone else. They have not done anything wrong according to them. All the wrongs were done by their lenders, servicers. This is a very bad way to handle the recovery on homes. This would create the height of lack of accountability. Even though we had supported homeowners (and always would do) but the unintended result of this law would have a terrible effect on the banks and the general restoration of our economy.

What should have been done?

A simple solution which of course would not need the congressional approval (as they have the tendency to mess up everything) would be to encourage banks to refinance the mortgage of everyone regardless of the appraisal or the FICO score. Come on! FICO cannot be upright, everyone’s credit had taken too many hits in this struggling economy. It is difficult to keep your heads above water. So the basic solution is following:

1. Give refinance to every homeowner or at least the choice of it on the current interest rate. No one should be denied

2. No penalties, or fines of any kind.

3. Ignore FICO

4. Ignore appraisal. It is gimmick. (May be a drive by appraisal can be used)

4. This refinancing would generate plenty of business for lenders, brokers, loan agents, appraisers, home construction specialists etc. It would rejuvenate our markets. Every one would be busy and make money. This is the only solution towards restoration of our economy. I hope Mr. Obama would be listening. Mr. Obama can also fire his treasury secretary along with housing secretary. They have proven to be nincompoop. I personally think these folks are playing the same role what Dan Quayle had done for George Bush’s (Sr.) in his relection campaign. (he was the biggest hurdle in his reelection)

More Foreclosure in Nevada and Continuous Robo-Signature Controversy


We have been stressing throughout this foreclosure ordeal in Nevada that there is something more messier then what is visible on the face (prima facie). WE are witnessing more bad news as JPMorgan Chase halted 56,000 foreclosures amid doubts that it had correctly followed laws on the foreclosure process. This news came soon after the announcement from GMAC Mortgage when suspended an undisclosed number of foreclosures to gain time to check its legal procedures. Now, Bank of America has announced similar measures. No one cared for this before the bubble as that was the notorious days for “no doc”, “low-doc” loans. Unfortunately, same spirit was shown in creating rapid foreclosures by mass production of these forged signatures, and foreclosure default notices and avoidance of states notice laws. After the bubble, banks, mostly large banks had consistently applied all kinds of tactics to frustrate federal government help in denying loan modifications of all sorts by either straight denial, or by hiring incompetent people, not supporting enough telephone lines or asking too much and needless paperwork. Now we learn that foreclosures, the end of the mortgage pipeline, have also been handled with a disregard for rules and standards. Here, we can see nothing but a continuous pattern of ineptness and incompetence. At issue now are affidavits that a foreclosing lender must file in many states’ courts. The person signing the affidavits attests to having knowledge of important facts, like the lender’s legal standing to foreclose and the amount owed. But in a rush to process hundreds of thousands of foreclosures, it turns out that the signers at Chase and GMAC processed 10,000 or more documents a month — “robo-signing” in industry parlance — without personal knowledge of the facts. They were like signature machines affixing their signatures on thousands of documents without testing its reliability or authenticity.

We can not satisfy ourselves that hundreds and thousands of families have lost their homes while legal process was denied to them by these rob signature machine production of documents. Now, most of these crooked banks had stopped this process but what about people whose homes has already been foreclosed and their credit tarnished for the rest of their lives. Let us hope that banks learn some lesson. Some 700 or more of them had already closed, and some of them are still teetering on the brink of a disaster, but of course they never learn. To the extent the suspensions ensure a process that is legal and fair, they are to the good. But delays feed uncertainty, and that could be bad for the economy. Will they result in fewer foreclosures, helping to prop up prices? Or will they create a backlog of foreclosed homes that will push prices down when they come to market?

As we know that the central weakness in the administration’s antiforeclosure efforts is that participation by lenders has been voluntary. Banks should be advised to have their participation mandatory. The robo-signing scandal is yet another reminder that it is folly to rely on banks that got us into this mess to get us out. The Obama administration needs to revise its ways to help people. It would be good to fire Treasury secretary at this time. That would revive some of the lost expectations of Obama administration. 18 months is too long to have some teeth in the administration hands to curb this rising trends of foreclosure in Nevada. A recent article published in NY Times indicates how bad the economy is in Nevada at this time.
http://www.nytimes.com/2010/10/03/us/03vegas.html?hp

Even TV covering the foreclosure crisis


Economic crisis is deepening in our everyday life, and even the big celebrities of TV are showing the signs of this omnipresent depression. The sitcom depicts and discusses this crisis often and celebrities are taking part-time jobs. Here is an interesting article just published. As usual the law office of Malik Ahmad www.fastbankruptcynevada.com is willing to help its clients and offer them free bankruptcy consultation.

http://www.nytimes.com/2009/03/12/arts/television/12plot.html?_r=1

New Nevda Legislation Regarding Deficiency Judgment


We take pride in updating our clients and general readers about all the current trends in legislation in the state of Nevada. The following is the latest bill in this regard. It is just reproduced only for reading purposes and not meant for any specific advice. Please see your local counsel in your specific jurisdiction for specific questions. Please be warned that this is a very long post, and lots of that is still not clear to many attorneys including us.

Assembly Bill No. 273—Committee on Commerce and Labor
CHAPTER……….

AN ACT relating to real property; revising provisions governing the amount which a person holding a junior lien on real property may recover in a civil action under certain circumstances; prohibiting certain persons holding a junior lien on certain residential property from bringing a civil action under certain circumstances; revising provisions governing the amount of a deficiency judgment after the foreclosure of a mortgage or a deed of trust; limiting the amount – of certain judgments against guarantors, sureties or other obligors of obligations secured by real property under certain circumstances; revising provisions governing mortgages and deeds of trust; and providing other matters properly relating thereto.

Legislative Counsel’s Digest:
Under existing law, a judgment creditor or a beneficiary of a deed of trust may obtain, after a hearing, a deficiency judgment after a foreclosure sale or trustee’s sale if it appears from the sheriff’s return or the recital of consideration in the trustee’s deed that there is a deficiency of the proceeds of the sale and a balance remaining due the judgment creditor or beneficiary of the deed of trust. Existing law requires a judgment creditor or beneficiary of a deed of trust to bring an action for such a deficiency judgment within 6 months after the foreclosure sale or trustee’s sale. For an obligation secured by a mortgage or deed of trust on or after October 1, 2009, a court may not award a deficiency judgment to the judgment creditor or the beneficiary of the deed of trust if: (1) the creditor or beneficiary is a financial institution; (2) the real property is a single-family dwelling and the debtor or grantor was the owner of the property; (3) the debtor or grantor used the loan to purchase the property; (4) the debtor or grantor occupied the property continuously after obtaining the loan; and (5) the debtor or grantor did not refinance the loan. (NRS 40.455)

Sections 3, 3.3 and 5.7 of this bill enact similar provisions to govern deficiency judgments sought by junior lienholders after a foreclosure sale, a trustee’s sale or any sale or deed in lieu of a foreclosure sale or trustee’s sale. Section 3 provides that, if the circumstances prohibiting a deficiency judgment after a foreclosure sale or trustee’s sale under current law exist with respect to a junior lienholder, the creditor may not bring a civil action to recover the debt owed to it after a foreclosure sale, a trustee’s sale or a sale or deed in lieu of a foreclosure sale or trustee’s sale.Existing law authorizes a creditor under an obligation secured by a junior mortgage or deed of trust to bring an action to obtain a personal judgment against the debtor only if the action is commenced within 6 years after the date of the debtor’s default. (NRS 11.190) Under sections 3.3 and 5.7 of this bill, if the real property securing such an obligation is the subject of a foreclosure sale, a trustee’s sale or a sale or deed in lieu of such a sale, the creditor may bring an action to obtain a personal judgment against the debtor only if the action is brought within 6 months after the foreclosure sale, the trustee’s sale or the sale in lieu of a foreclosure sale or trustee’s sale.

Under existing law, the amount of a deficiency judgment after a foreclosure sale or a trustee’s sale may not exceed the lesser of: (1) the amount of the indebtedness minus the fair market value of the foreclosed property at the time of the sale; or (2) the amount of the indebtedness minus the amount for which the foreclosed property actually sold. (NRS 40.459) Section 5 of this bill provides that, for a deficiency judgment sought by a secured creditor after a foreclosure sale, trustee’s sale or sale in lieu of a foreclosure sale or trustee’s sale, the amount of the deficiency judgment must be reduced by the amount of any insurance proceeds received by, or payable to, the creditor. Section 2 of this bill enacts a corresponding provision for money judgments sought against a debtor by a junior lienholder after a foreclosure sale, a trustee’s sale or a sale or deed in lieu of a foreclosure sale or trustee’s sale.

Sections 2 and 5 also limit the recovery of a creditor who acquired the right to obtain payment for an obligation secured by the real property from another person who owned that obligation. If the creditor is seeking a deficiency judgment after a foreclosure sale, a trustee’s sale or a sale in lieu of a foreclosure sale or trustee’s sale, section 5 provides that the creditor may not receive an amount which exceeds the lesser of: (1) the consideration paid for the obligation minus the fair market value of the property at the time of the foreclosure sale, with interest from the date of sale and reasonable costs; or (2) the consideration paid for the obligation minus the amount for which the property actually sold, with interest from the date of sale and reasonable costs. If the creditor is a junior lienholder who filed a civil action to obtain a money judgment against the debtor, section 2 provides that the creditor may not receive an amount greater than the consideration paid for the obligation, with interest from the date on which the person acquired the right to obtain payment and reasonable costs.
Section 5.5 of this bill limits the amount of a judgment against a guarantor, surety or other obligor, other than a mortgagor or grantor of a deed of trust, in an action commenced before a foreclosure sale or trustee’s sale to enforce the obligation to pay, satisfy or purchase all or part of an obligation secured by a mortgage or other lien on real property. Under section 5.5, the amount of the judgment may not exceed the lesser of: (1) the amount of the indebtedness minus the fair market value of the real property at the time of the commencement of the action; or (2) if a foreclosure sale or a trustee’s sale is completed before the date on which judgment is entered, the amount of the indebtedness minus the amount for which the foreclosed property actually sold.

Section 6 of this bill provides that the amendatory provisions of: (1) sections 1-3 apply only prospectively to obligations secured by a mortgage, deed of trust or other encumbrance upon real property on or after the effective date of this bill; (2) sections 3.3 and 5.7 apply only to an action commenced after a foreclosure sale or sale in lieu of a foreclosure sale that occurs on or after July 1, 2011; and (3) section 5.5 apply only to an action against a guarantor, surety or other obligor commenced on or after the effective date of this bill. Under section 7 of this bill, the amendatory provisions of section 5 become effective upon passage and approval and thus apply to a deficiency judgment awarded on or after that effective date.
Section 6 of Assembly Bill No. 284 of this session requires the trustee under a deed of trust to be: (1) an attorney licensed in this State; (2) a title insurer or title agent authorized to do business in this State; or (3) a person licensed as a trust company or exempt from the requirement to be licensed as a trust company. Section 5,8 of this bill amends section 6 of Assembly Bill No. 284 of this session: (1) to authorize any foreign or domestic entity which holds a current state business license to be the trustee under a deed of trust; and (2) to specifically describe certain persons who are exempt from the requirement to obtain a license as a trust company and who are authorized to be the trustee under a deed of trust. Sections 5.9 and 5.95 of this bill change the effective date of Assembly Bill No. 284 of this session from July 1, 2011, to October 1, 2011.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Chapter 40 of NRS is hereby amended by adding thereto the provisions set forth as sections 1.2 to 3.3, inclusive, of this act.
Sec. 1.2. As used in sections 1.2 to 3.3, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 1.4, 1.6 and 1.8 of this act have the meanings ascribed to them in those sections.
Sec. 1.4. “Foreclosure sale” has the meaning ascribed to it in NRS 40.462.
Sec. 1.6. “Mortgage or other lien” has the meaning ascribed to it in NRS 40.433.
Sec. 1.8. “Sale in lieu of a foreclosure sale” means a sale of real property pursuant to an agreement between a person to whom an obligation secured by a mortgage or other lien on real property is owed and the debtor of that obligation in which the sales price of the real property is insufficient to pay the full outstanding balance of the obligation and the costs of the sale. The term includes, without limitation, a deed in lieu of a foreclosure sale.
Sec. 2. 1. If a person to whom an obligation secured by a junior mortgage or lien on real property is owed:
(a) Files a civil action to obtain a money judgment against the debtor under that obligation after a foreclosure sale or a sale in lieu of a foreclosure sale; and
(b) Such action is not barred by NRS 40.430, 60 in determining the amount owed by the debtor, the court shall not include the amount of any proceeds received by, or payable to, the person pursuant to an insurance policy to compensate the person for losses incurred with respect to the property or the default on the obligation.
2. If (a) A person acquired the right to enforce an obligation secured by a junior mortgage or lien on real property from a person who previously held that right;

(b) The person files a civil action to obtain a money judgment against the debtor after a foreclosure sale or a sale in lieu of a foreclosure sale; and
(c) Such action is not barred by NRS 40.430,
6* the court shall not render judgment for more than the amount of the consideration paid for that right, plus interest from the date on which the person acquired the right and reasonable costs.
3. As used in this section, “obligation secured by a junior mortgage or lien on real property” includes, without limitation, an obligation which is not currently secured by a mortgage or lien on real property if the obligation:
(a) Is incurred by the debtor under an obligation which was secured by a mortgage or lien on real property; and
(b) Has the effect of reaffirming the obligation which was secured by a mortgage or lien on real property.

Sec. 3. I. A person to whom an obligation secured by a junior mortgage or lien on real property is owed may not bring any action to enforce that obligation after a foreclosure sale of the real property which secured that obligation or a sale in lieu of a foreclosure sale if
(a) The person is a financial institution;
(b) The real property which secured the obligation is a single-family dwelling and the debtor or grantor was the owner of the real property at the time of the foreclosure sale or sale in lieu of a foreclosure sale;
(c) The debtor or grantor used the amount of the obligation to purchase the real property;
(d) The debtor or grantor continuously occupied the real property as the debtor’s or grantor’s principal residence after securing the obligation; and
(e) The debtor or grantor did not refinance the obligation after securing it.
2. As used in this section, “financial institution” has the meaning ascribed to in NRS 363A.050

Sec. 3.3. A civil action not barred by NRS 40.430 or section 3 of this act by a person to whom an obligation secured by a junior mortgage or lien on real property is owed to obtain a money judgment against the debtor after a foreclosure sale of the real property or a sale in lieu of a foreclosure sale may only be commenced within 6 months after the date of the foreclosure sale or sale in lieu of a foreclosure.
Sec. 4. (Deleted by amendment.)

Sec. 5. NRS 40.459 is hereby amended to read as follows:
40.459 I. After the hearing, the court shall award a money judgment against the debtor, guarantor or surety who is personally liable for the debt. The court shall not render judgment for more than:
{4-} (a) The amount by which the amount of the indebtedness which was secured exceeds the fair market value of the property sold at the time of the sale, with interest from the date of the sale; fef
—2.} (b) The amount which is the difference between the amount for which the property was actually sold and the amount of the indebtedness which was secured, with interest from the date of sale
; or
(c) If the person seeking the judgment acquired the right to obtain the judgment from a person who previously held that right, the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs,
- whichever is the lesser amount.
2. For the purposes of this section, the “amount of the indebtedness” does not include any amount received by, or payable to, the judgment creditor or beneficiary of the deed of trust pursuant to an insurance policy to compensate the judgment creditor or beneficiary for any losses incurred with respect to the property or the default on the debt
Sec. 5.5. NRS 40.495 is hereby amended to read as follows:
40.495 1. The provisions of NRS 40.475 and 40.485 may be waived by the guarantor, surety or other obligor only after default.
2. Except as otherwise provided in subsection {47} 5, a guarantor, surety or other obligor, other than the mortgagor or grantor of a deed of trust, may waive the provisions of NRS 40.430. If a guarantor, surety or other obligor waives the provisions of NRS 40.430, an action for the enforcement of that person’s obligation to pay, satisfy or purchase all or part of an indebtedness or obligation secured by a mortgage or lien upon real property may be maintained separately and independently from:
(a) An action on the debt;
(b) The exercise of any power of sale;
(c) Any action to foreclose or otherwise enforce a mortgage or lien and the indebtedness or obligations secured thereby; and
(d) (d) Any other proceeding against a mortgagor or grantor of a deed of trust.
3. If the obligee maintains an action to foreclose or otherwise enforce a mortgage or lien and the indebtedness or obligations secured thereby, the guarantor, surety or other obligor may assert any legal or equitable defenses provided pursuant to the provisions of NRS 40.451 to 40.463, inclusive.
4. If before a foreclosure sale of real property, the obligee commences an action against a guarantor, surety or other obligor, other than the mortgagor or grantor of a deed of trust, to enforce an obligation to pay, satisfy or purchase all or part of an indebtedness or obligation secured by a mortgage or lien upon the real property:
(a) The court must hold a hearing and take evidence presented by either party concerning the fair market value of the property as of the date of the commencement of the action. Notice of such hearing must be served upon all defendants who have appeared in the action and against whom a judgment is sought, or upon their attorneys of record, at least 15 days before the date set for the hearing.
(b) After the hearing, if the court awards a money judgment against the debtor, guarantor or surety who is personally liable for the debt, the court must not render judgment for more than:
(1) The amount by which the amount of the indebtedness exceeds the fair market value of the property as of the date of the commencement of the action; or
(2) If a foreclosure sale is concluded before a judgment is entered, the amount that is the difference between the amount for which the property was actually sold and the amount of the indebtedness which was secured,
6* whichever is the lesser amount.
5. The provisions of NRS 40.430 may not be waived by a guarantor, surety or other obligor if the mortgage or lien:
(a) Secures an indebtedness for which the principal balance of the obligation was never greater than $500,000;
(b) Secures an indebtedness to a seller of real property for which the obligation was originally extended to the seller for any portion of the purchase price;
(c) Is secured by real property which is used primarily for the production of farm products as of the date the mortgage or lien upon the real property is created; or
(d) Is secured by real property upon which:
(1) The owner maintains the owner’s principal residence;
(2) There is not more than one residential structure; and
(3) Not more than four families reside.
6. As used in this section, “foreclosure sale” has the meaning
ascribed to it in NRS 40.462.
Sec. 5.7. NRS 11.190 is hereby amended to read as follows:
11.190 Except as otherwise provided in NRS 125B.050 and 217.007, and section 3.3 of this act, actions other than those for the recovery of real property, unless further limited by specific statute, may only be commenced as follows:
1. Within 6 years:
(a) An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or the renewal thereof.
(b) An action upon a contract, obligation or liability founded upon an instrument in writing, except those mentioned in the preceding sections of this chapter.
2. Within 4 years:
(a) An action on an open account for goods, wares and merchandise sold and delivered.
(b) An action for any article charged on an account in a store.
(c) An action upon a contract, obligation or liability not founded upon an instrument in writing.
(d) An action against a person alleged to have committed a deceptive trade practice in violation of NRS 598.0903 to 598.0999, inclusive, but the cause of action shall be deemed to accrue when the aggrieved party discovers, or by the exercise of due diligence should have discovered, the facts constituting the deceptive trade practice.
3. Within 3 years:
(a) An action upon a liability created by statute, other than a penalty or forfeiture.
(b) An action for waste or trespass of real property, but when the waste or trespass is committed by means of underground works upon any mining claim, the cause of action shall be deemed to accrue upon the discovery by the aggrieved party of the facts constituting the waste or trespass.
(c) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof, but in all cases where the subject of the action is a domestic animal usually included in the term “livestock,” which has a recorded mark or brand upon it at the time of its loss, and which strays or is stolen from the true owner without the owner’s fault, the statute does not begin to run against an action for the recovery of the animal until the owner has actual knowledge of such facts as would put a reasonable person upon inquiry as to the possession thereof by the defendant.
(d) Except as otherwise provided in NRS 112.230 and 166.170, an action for relief on the ground of fraud or mistake, but the cause of action in such a case shall be deemed to accrue upon the discovery by the aggrieved party of the facts constituting the fraud or mistake.
(e) An action pursuant to NRS 40.750 for damages sustained by a financial institution or other lender because of its reliance on certain fraudulent conduct of a borrower, but the cause of action in such a case shall be deemed to accrue upon the discovery by the financial institution or other lender of the facts constituting the concealment or false statement.
4. Within 2 years:
(a) An action against a sheriff, coroner or constable upon liability incurred by acting in his or her official capacity and in virtue of his or her office, or by the omission of an official duty, including the nonpayment of money collected upon an execution.
(b) An action upon a statute for a penalty or forfeiture, where the action is given to a person or the State, or both, except when the statute imposing it prescribes a different limitation.
(c) An action for libel, slander, assault, battery, false imprisonment or seduction.
(d) An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process.
(e) Except as otherwise provided in NRS 11.215, an action to recover damages for injuries to a person or for the death of a person caused by the wrongful act or neglect of another. The provisions of this paragraph relating to an action to recover damages for injuries to a person apply only to causes of action which accrue after March 20, 1951.
(f) An action to recover damages under NRS 41.740.
5. Within 1 year:
(a) An action against an officer, or officer de facto to recover goods, wares, merchandise or other property seized by the officer in his or her official capacity, as tax collector, or to recover the price or value of goods, wares, merchandise or other personal property so seized, or for damages for the seizure, detention or sale of, or injury to, goods, wares, merchandise or other personal property seized, or for damages done to any person or property in making the seizure.
(b) An action against an officer, or officer de facto for money paid to the officer under protest, or seized by the officer in his or her official capacity, as a collector of taxes, and which, it is claimed, ought to be refunded.
(c) Sec. 5.8. Section 6 of Assembly Bill No. 284 of this session is hereby amended to read as follows:
Sec. 6. Chapter 107 of NRS is hereby amended by adding thereto a new section to read as follows:
1. The trustee under a deed of trust must be:
(a) An attorney licensed to practice law in this State;
(b) A title insurer or title agent authorized to do business in this State pursuant to chapter 692A of NRS;
(c) A person licensed pursuant to chapter 669 of NRS;
(d) A domestic or foreign entity which holds a current state business license issued by the Secretary of State pursuant to chapter 76 of NRS;
(e) A person who does business under the laws of this State, the United States or another state relating to banks, savings banks, savings and loan associations or thrift companies;
(f) A person who is appointed as a fiduciary pursuant to NRS 662.245;
(g) A person who acts as a registered agent for a domestic or foreign corporation, limited-liability company, limited partnership or limited-liability partnership;
(h) A person who acts as a trustee of’ a trust holding real property for the primary purpose of facilitating any transaction with respect to real estate if he or she is not regularly engaged in the business of acting as a trustee for such trusts;
(i) A person who engages in the business of a collection agency pursuant to chapter 649 of NRS; or
Q) A person who engages in the business of an escrow agency, escrow agent or escrow officer pursuant to the provisions of chapter 645A or 692A of NRS.
2. A trustee under a deed of trust must not be the beneficiary of the deed of trust for the purposes of exercising the power of sale pursuant to NRS 107.080.
3. A trustee under a deed of trust must not:
(a) Lend its name or its corporate capacity to any person who is not qualified to be the trustee under a deed of trust pursuant to subsection 1.
(b) Act individually or in concert with any other person to circumvent the requirements of subsection 1.
4. A beneficiary of record may replace its trustee with another trustee. The appointment of a new trustee is not effective until the substitution of trustee is recorded in the office of the recorder of the county in which the real property is located.
5. The trustee does not have a fiduciary obligation to the grantor or any other person having an interest in the property which is subject to the deed of trust. The trustee shall act impartially and in good faith with respect to the deed of trust and shall act in accordance with the laws of this State. A rebuttable presumption that a trustee has acted impartially and in good faith exists if the trustee acts in compliance with the provisions of NRS 107.080. In performing acts required by NRS 107.080, the trustee incurs no liability for any good faith error resulting from reliance on information provided by the beneficiary regarding the nature and the amount of the default under the obligation secured by the deed of trust if the trustee corrects the good faith error not later than 20 days after discovering the error.
6. If in an action brought by a grantor, a person who holds title of record or a beneficiary in the district court in and for the county in which the real property is located, the court finds that the trustee did not comply with this section, any other provision of this chapter or any applicable provision of chapter 106 or 205 of NRS, the court must award to the grantor, the person who holds title of record or the beneficiary:
(a) Damages of $5,000 or treble the amount of actual damages, whichever is greater;
(b) An injunction enjoining the exercise of the power of sale until the beneficiary, the successor in interest of the beneficiary or the trustee complies with the requirements of subsections 2, 3 and 4; and
(c) Reasonable attorney’s fees and costs,
4.0 unless the court finds good cause for a different award. Sec. 5.9. Section 14.5 of Assembly Bill No. 284 of this session is hereby amended to read as follows:
Sec. 14.5. The amendatory provisions of:
1. Section 1 of this act apply only to an assignment of a mortgage of real property, or of a mortgage of personal property or crops recorded before March 27, 1935, and any assignment of the beneficial interest under a deed of trust, which is made on or after fklyl October 1, 2011.
2. Section 2 of this act apply only to an instrument by which any mortgage or deed of trust of, lien upon or interest in real property is subordinated or waived as to priority which is made on or after October 1, 2011.
3. Section 5 of this act apply only to an instrument encumbering a borrower’s real property to secure future advances from a lender within a mutually agreed maximum amount of principal, or an amendment to such an instrument, which is made on or afters October 1, 2011.
4. Section 9 of this act apply only to a notice of default and election to sell which is recorded pursuant to NRS 107.080, as amended by section 9 of this act, on or after October 1, 2011.
Sec. 5.95. Section 15 of Assembly Bill No. 284 of this session is hereby amended to read as follows:
Sec. 15. This act becomes effective on – October 1, 2011.
Sec. 6. The amendatory provisions of:
1. Sections 1 to 3, inclusive, of this act apply only to an obligation secured by a mortgage, deed of trust or other encumbrance upon real property on or after the effective date of this act.
2. Sections 3.3 and 5.7 of this act apply only to an action commenced after a foreclosure sale or sale in lieu of a foreclosure sale that occurs on or after July 1, 2011.
3. Section 5.5 of this act apply only to an action against a guarantor, surety or other obligor commenced on or after the effective date of this act.
Sec. 7. 1. This section and sections 1 to 3, inclusive, 5, 5.5 and 5.8 to 6, inclusive, of this act become effective upon passage and approval.
2. Sections 3.3 and 5.7 of this act become effective on July 1, 2011.

How to stop wage garnishment in Nevada?


As we had stated many times, when someone file Chapter 13 or Chapter 7 bankruptcy petition, any pending garnishment (except for child support) will stop immediately. It also control any funds seized after the date of your bankruptcy filing will be returned to you.

How about Judgment Entered Against You
State Court Judgments Can Result in Significant Seizure of Your Income

In most cases, wage garnishments arise from lawsuit judgments. There cannot be any wage garnishment in Nevada except child support and student loan without a judicial process. For everything else, a judicial process is required. The judicial process means you have be issued a summons along with a complaint for which you have a right to confront and appear in a court of law. Judgments come from lawsuits and after you lose or ignore lawsuits. For example, if a credit card company filed suit against you for non-payment and you did not answer, a default judgment would issue against you. These judgments do not disappear into thin air but stays and the judgment/creditor waits for an appropriate time to pounce against you just like cheetah in a jungle who wait endlessly to prey on the animals. If you were involved in litigation and lost, a judgment would issue against you. These judgments can be executed personally against you or your business, and the judgment creditors is watching your assets or searching for them and the appropriate moment to execute against these assets.

It is not surprising that our clients many times report that they were not even aware of a pending lawsuit, much less a judgment. This is possible as the judgment creditors might be a different entity than the original lender and this credit transactions has been sold and resold many times, and the final holder are entirely different people now. This type of unpleasant surprise happens more often than you might think. Sheriff’s deputies, who are responsible for serving the lawsuit, are permitted to leave the lawsuit with an adult who answers the door to your house. This is also called personal service in Nevada. We sometimes see cases where a spouse accepts service but fails to deliver the lawsuit papers to the named defendant. Also, these papers can get mixed up with lots of other papers and one just ignore them or do not understand the implication of these judicial papers. I had seen many many times the original papers and the client does not even know what kind of papers are they and their purpose.

Most of these cases revolve around credit card debt. As you may know, the cardholder agreement provides that payment disputes shall be referred to an arbitrator out of State, or that a specific court in another State shall be the venue for any collection lawsuit. These collections needs to be validated and usually requires 30 days time period. Defending a lawsuit is not an easy thing, it is expensive, time consuming, and basically you have no defenses other than the statutory time period, if you had used the money and is not paying it back to your creditors. Also, it is quite possible that the original paperwork may be lost or is not transferred to the current credit holder. If your creditor possesses an out of state judgment, it can “domesticate” the judgment in your home county. Once a judgment is domesticated here, you will be subject to wage garnishment, bank account levy and any other remedies otherwise available to a winning plaintiff here in Las Vegas.

Wage Ganishment Threatens 25% of Your Net Pay and Possibly Your Job
Once a judgment has been issued, your creditor can ask the local sheriff’s office for a summons for continuing garnishment and execution of judgment. Your employer will be served with this garnishment summons and ordered to withhold 25% of your after tax earnings. In addition, your employer may charge a handling fee for the extra paperwork involved with fulfilling the garnishment requirements.
Be aware that your employer cannot choose to ignore a summons of continuing garnishment. If your employer does not honor the summons, your employer will become responsible for payment of the entire debt.

As you might imagine, human resource and payroll coordinators for most employers find wage garnishments troublesome for a number of reasons. Firstly, your employer must expend time and effort to complete the paperwork associated with calculating and processing garnishment orders. Secondly, until the garnishment is paid in full or otherwise released, your employer has potential financial liability if there are errors with the paperwork. Finally, your credibility may be called into question as a defendant found liable for a judgment in a lawsuit. It would not be an understatement to conclude that your job might be at risk if you involve your employer in your personal business and wage garnishment.

Law Office of Malik Ahmad is experienced in these matters and can stop any pending garnishment no matter where you fall in the process. If you contact us before the pending lawsuit against you goes into default, we may be able to avoid a judgment from issuing. If a judgment has been issued, the judgment creditor’s right to seize your wages terminates the instant we file your bankruptcy case. Sometimes, money that has been seized can be returned to you or it can be used to pay non-dischargeable debt like taxes.

Summary Judgments and wage garnishments function as powerful tools used by creditors to seize your money. When we file your bankruptcy case, your creditors are powerless to take any action and they lose their right to seize your wages. You can file a bankruptcy at any point in the pre-judgment or judgment process to put an end to creditor action. Don’t wait until your wages are at risk – call the Law Office of Malik Ahmad at (702) 270-9100 as soon as you suspect any risk of wage garnishment.

How to Stop Foreclosure in Nevada?


 Substantive Grounds for Challenging the Foreclosure

The following claims and defenses are among those that may be raised so as to defeat a foreclosure altogether or reduce the amount of any deficiency:Late

Payments Were Accepted on Other Occasions. This suggests that the lender waived the right to refuse late payments and was estopped from foreclosing.  

The Lender Refused to Supply a Pay-Off Amount or Accept Full Payment so Foreclosure Could Be Avoided. Despite unfavorable precedent, this could be a viable ground. 

 A Borrower was in Military Service at the Time of the Foreclosure.   The Loan was Unconscionable. Challenging Wrongful Foreclosure in Las Vegas

   That is, the inequality of the bargain is so manifest as to shock the judgment of a person of common sense, and the terms are so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other. 

The Making of the Loan, or the Servicing of It, was Riddled with Unfair and Deceptive Practices that Violated the Nevada Consumer Protection Act.   The Servicer Collected Unauthorized Fees for the Escrow Account, or as Late Charges, or as Attorney Fees during the Foreclosure Process

  • One Spouse Was Required to Sign the Mortgage Note even though the Credit of the Other Spouse was Sufficient.  One or More Borrowers Lacked the Mental or Physical Capacity to Borrow.
  • The Mortgage Broker Was Paid an Unlawful Sum by the Lender.  
  • The Lender Violated a Relationship of Trust with the Borrower that Developed in the Lending Process.
  • There Was Fraud or Misrepresentation by the Lender in the Making of the Loan.  

Disclaimer: This is just an illustration and not meant as a legal advice. It is good to consult a qualified attorney in this regard. Call (702) 270-9100 to talk to attorney Malik Ahmad. 

This is a brief guide for lay persons about how to challenge foreclosure successfully, a feat that is possible though difficult. This memo is not a substitute for legal assistance, which is usually essential in this complex area of the law. It is divided into the following parts:

 • Filing Bankruptcy before Foreclosure Occurs

  1.  Suing to Set Aside a Foreclosure that Has Already Taken Place

Generally, you will need a lawyer in bankruptcy. You must file before the foreclosure sale takes place, a time that usually is only 20 or so days after the foreclosure process starts with a letter to you or a notice in a newspaper.

 Temporary injunctions require a “clear” showing of “immediate and irreparable injury, loss or damage” or “that the acts or omissions of the adverse party will tend to render [the] final judgment ineffectual.” Judges take this requirement seriously.

 The most difficult requirement of all may be the need to give a bond “in such sum as the court … deems proper” unless you successfully obtain permission to bring the action as an indigent person. A homeowner with only modest amounts of other assets and income may be unable to qualify as indigent and may also be unable to find anyone willing to provide a bond, especially one on short notice.

Insufficient Notice by Newspaper Publication or Posting in Public Places. Under  Nevada statutes, advertisement of a foreclosure sale must be made three different times in “some” newspaper “published” in the “county where the sale is to be made.” Only 20 days’ notice is required, and the use of publications read almost exclusively by lenders and lawyers is permitted. Both the shortness of the time and the use of obscure newspapers seem vulnerable to constitutional objection. In addition, some counties have no eligible newspapers. In this case, written notice may then be posted in five “of the most public places in the county.” There is no guidance about what such places are or how they are to be determined. This is too vague a standard to pass constitutional muster. 

Failure to Give Notice Required by the Deed of Trust. Many deeds of trust require notice of foreclosure by certified mail, or at least by mail, in addition to notice by newspaper publication. Many also require notice – before foreclosure is sought — that the entire sum has been declared to be due because of a late payment or other default. 

 Meaningful Opportunity to Dispute the Foreclosure. This too is a constitutional challenge to Nevada’s foreclosure process. It is based on the notion that making you find a lawyer and file a lawsuit in 15 days, assume a high burden of proof, and furnish a bond are unfair hurdles imposed on you.  Defects in the Foreclosure Sale.  Nevada judges have said that the foreclosure must occur in the county in which the property is located; it must take place at an accessible location; and a lender may not use a purely technical default as a basis for foreclosure. However, when the lender demands the full amount of the debt, they have refused to let the borrower cure the delinquency by paying the disputed amount before  The foreclosure occurs. They also have ruled that there is no minimum price that must be paid and have allowed the lender to recover a deficiency judgment if the amount received in the sale is less than the amount owed. They have yet to decide whether the combination of a shockingly low price and another procedural defect are sufficient to disallow the foreclosure.

 This is often the shortest and simplest procedure. It has the following advantages: a bankruptcy filing automatically prevents foreclosure temporarily and sometimes permanently; you have the opportunity to cure a default in your payments by paying the delinquent amount in installments over a reasonable period; you may be able to reduce or eliminate the fees of the lender’s attorney; and you may be able to avoid interest on the amount you are delinquent (though not interest on the loan itself).Suing to Enjoin Foreclosure before It OccursTo obtain an injunction, you must file a complaint in a court. You will need a lawyer. The process is made more arduous by a requirement that you give five days’ notice to the lender before seeking to enjoin the foreclosure. This reduces the 20-day period to 15 days for acting.

 • Suing to Enjoin Foreclosure before It Occurs

  1. • Suing to Set Aside a Foreclosure that Has Already Taken Place
  2. • Filing a Counterclaim in the Detainer Action after Foreclosure Has Occurred
  3.  • Filing Bankruptcy after Foreclosure
  4.  • Procedural Grounds for Challenging the Foreclosure
  5. • Substantive Grounds for Challenging the Foreclosure
  6.  Filing Bankruptcy before Foreclosure Occurs

  You have the burden of proof in a lawsuit to set aside a foreclosure. Damages are the only remedy. There is nothing to prevent a third-party purchaser from keeping your house even if he knows of your claim against the lender and even if he believes that your claim is meritorious.

 The grounds for setting aside a foreclosure are limited to “some evidence of irregularity, misconduct, fraud, or unfairness on the part of the trustee or the mortgagee that caused or contributed to an inadequate price.” Defenses like the absence of a delinquency or violations by the lender of federal or state commercial law may not be raised.

 Filing a Counterclaim in the Detainer Action after Foreclosure Has Occurred

   Not every new owner is successful in obtaining possession. It may overlook the proof that is necessary to show that it the foreclosure was conducted properly and that it was entitled to foreclose – things like affidavits or testimony showing that you did not make timely payments. You may and should contest every assertion made by the new owner, even if you do not have a lawyer. The new owner has the burden of proof. If it fails to meet that burden, the judge may conclude that you are entitled to remain in possession even though you no longer own the home.

On the other hand, if the new owner is successful in the detainer action, it is entitled not only to possession but also to the rental value of the property from the date of foreclosure until the date of removal. You have only ten days for an appeal to Circuit

 Filing Bankruptcy after ForeclosureNo personal notice to a borrower is required by statute. However, we believe that federal and state constitutions require personal notice to each borrower, either by summons or by certified mail that is actually received, and we are litigating cases so as to establish this principle.  Foreclosure may be challenged by a counterclaim when the lender (or other new owner of the property) seeks possession by a “detainer” action. It is better to file the counterclaim in writing, and the grounds for doing so are discussed below. It is preferable that you use a lawyer to assist you, but most persons do not.in a detainer action. Lenders may assert that a wrongful foreclosure may not be challenged even when the parties are before the court on the issue of possession, the right to possession is necessarily founded on ownership, and ownership depends on the lawfulness of the foreclosure. In our view, the statute disallows only attacks upon title based on transactions prior to the creation of the deed of trust. We also believe that the statute is inapplicable to counterclaims seeking to set aside a foreclosure even if it bars defenses to the detainer action.

 There is some good news even if you lose the challenge; bankruptcy usually discharges all or part of a deficiency judgment against you for any amount still due after the foreclosure occurs.

 It is possible to set aside the foreclosure through the bankruptcy process. The grounds that may be asserted are discussed below.

 Procedural Grounds for Challenging the Foreclosure

 Court and must furnish a bond. The amount of it can be prohibitive: a “sufficient amount to cover, besides costs and damages, the value of the rent of the premises during the litigation.” Even the furnishing of an affidavit of indigency may be insufficient to retain possession during an appeal.