Nevada laws About Foreclosures (Part 1):
Nevada state law allows mortgage lenders to foreclose on a deed of trust without ever appearing in court. Before we have a solid understanding of the issues involved, it is good to understand the basic definitions here.

Non-Judicial Foreclosure: First, let us define and understand the difference between a judicial and non-judicial foreclosure. A non-judicial foreclosure is done outside the jurisdiction of the court, and with the authority inherent in the trust deed. It has also its limitation where it does not solve all the problems and leaves some unresolved issues. The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust.

A “power of sale” clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of their default.

What is the Power of Sale Clause: This power of sale exists and many times inherent in the trust deeds to the lender to sell the property and executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the “Power of Sale Foreclosure Guidelines”. Nevada has statutorily required language to be included in all deeds of trust (Nevada Revised statutes Chapter 107.030).

Private Trustee and No Intervention from the Court: If the deed of trust or mortgage contains a power of sale clause then the property may be sold by a private trustee without the intervention or use of a Court. If the instrument sets out how the sale is to be conducted that needs to be followed. However, if no procedure is outlined, then the following procedure should be adhered.

– A copy of the notice of default and election to sell must be mailed certified, return receipt requested, to the borrower, at their last known address, on the date the notice is recorded in the county where the property is located.
– Any additional postings and advertisements must be done in the same manner as for an execution sale in Nevada.
– Beginning on the day after the notice of default and election was recorded with the county and mailed to the borrower, the borrower has 15 days if the date of the original deed of trust was on or after July 1, 1949, and before July 1, 1957 and 35 days if the original deed of trust was on or after July 1, 1957, to cure the default by paying the delinquent amount on the loan.
– The owner of the property may stop the foreclosure proceedings by filing an “Intent to Cure” with the Public Trustee’s office at least 15 days prior to the foreclosure sale and then paying the necessary amount (usually being the total of missed payments and statutory fees and costs) to bring the loan current by noon the day before the foreclosure sale is scheduled.
– The foreclosure sale itself will be held at the place, the time and on the date stated in the notice of default and election and must be conducted in the same manner as for an execution sale of real property. In a trustee’s sale, there is no right of redemption AFTER the sale.

If the non-judicial trustee’s sale netted insufficient money from the sale price to pay the debt, then the lender has three 6 months after the sale to sue the borrower for the shortfall to seek a “deficiency judgment.”

Conclusion

As we all know, Nevada is a non-judicial foreclosure state in which lenders are hampered somewhat in collecting against debts remaining after foreclosure. First, the time period is limited to six months. Second, it is expensive to file lawsuit. Third, the lenders already suffered because the homeowners did not pay them for many months, and in some cases years. Fourth, they had destroyed the property and it would be expensive and time consuming to fix it. Fifth, no prediction can be made if the lenders would get some money because the homeowners can always file bankruptcy. Sixth, even if the lenders win the lawsuit, it is difficult to execute the judgment because finding the assets of the homeowners is very difficult and time consuming. The loophole lenders of second deeds of trust use, however, allows them to stand on the sidelines during the foreclosure and collect on the debt later.

Can the Debt Collectors Directly Garnish Your Wages?

This is what the debt collectors continuously tell the debtors that they can directly garnish their wages. It is a pure lie, and this threat is actionable under the FDCPA. In Nevada,  in order for a creditor to obtain a writ of garnishment against your employer to withhold money from your paycheck, that creditor must have a judgment against you. In order to have a judgment against you, that creditor must have filed a lawsuit against you and won either after a trial or by default, that is, because you did not file a response. A default judgment or regular judgment needs to be executed which means the judgment holder needs to find the assets, the payroll master, and do other steps to find assets, and than file an execution of judgment. This execution of judgment is a legal process which again needs permission and authority from the court. This, of course, is a complicated process, and the debt collectors threatening can’t do all these steps in single day. Also, all these steps requires the help of an attorney and the debt collectors yelling and screaming at you, is not an attorney. If he poses as such, he would be violating the FDCPA again.

Normally when this threat is being made, a lawsuit has yet to be filed. How do you know if you have been sued? First, if suit has been filed against you, you should have been served with a Summons and Complaint by either the sheriff’s department of your county or by certified mail. However, if you cannot be found by the creditor, the creditor may have you served by publication, that is, by running a notice in the newspaper in the county of your last known address. If you are still unsure, you may call the clerk of court of your county.

What if I have been sued? See a lawyer immediately. Try not to be your own attorney. Afterall, this is a complex situation, and we had seen many people lose on simply and basic technical grounds. Please do not play with fire. This could be very prejudicial to lots of your interests.

What if I already have a judgment and/or garnishment against me? If you already have a judgment and/or garnishment against you, I would again suggest you see an attorney immediately. You may be able to have the judgment set aside or appealed, but only if you act very quickly. This may also be a good time to take a strong and hard look at bankruptcy. With a bankruptcy you should be able to discharge the judgment prior to garnishment and stop any garnishment that is already in place. Upon filing a bankruptcy, you may even be able to have a portion of any money garnished from your check returned to you. But this has to be done very quickly. Our law office (Law Office of Malik Ahmad) has gotten many such garnished checks restored to our debtors, and they always says thank you because this money and them had already parted. It is of course a good advantage to hire a reputable and experienced law firm like us. So, if you have any such problem, please do not hesitate to call our at (702) 270-9100

Can the Debt Collectors Directly Garnish Your Wages?

This is what the debt collectors continuously tell the debtors that they can directly garnish their wages. It is a pure lie, and this threat is actionable under the FDCPA. In Nevada,  in order for a creditor to obtain a writ of garnishment against your employer to withhold money from your paycheck, that creditor must have a judgment against you. In order to have a judgment against you, that creditor must have filed a lawsuit against you and won either after a trial or by default, that is, because you did not file a response. A default judgment or regular judgment needs to be executed which means the judgment holder needs to find the assets, the payroll master, and do other steps to find assets, and than file an execution of judgment. This execution of judgment is a legal process which again needs permission and authority from the court. This, of course, is a complicated process, and the debt collectors threatening can’t do all these steps in single day. Also, all these steps requires the help of an attorney and the debt collectors yelling and screaming at you, is not an attorney. If he poses as such, he would be violating the FDCPA again.

Normally when this threat is being made, a lawsuit has yet to be filed. How do you know if you have been sued? First, if suit has been filed against you, you should have been served with a Summons and Complaint by either the sheriff’s department of your county or by certified mail. However, if you cannot be found by the creditor, the creditor may have you served by publication, that is, by running a notice in the newspaper in the county of your last known address. If you are still unsure, you may call the clerk of court of your county.

What if I have been sued? See a lawyer immediately. Try not to be your own attorney. Afterall, this is a complex situation, and we had seen many people lose on simply and basic technical grounds. Please do not play with fire. This could be very prejudicial to lots of your interests.

What if I already have a judgment and/or garnishment against me? If you already have a judgment and/or garnishment against you, I would again suggest you see an attorney immediately. You may be able to have the judgment set aside or appealed, but only if you act very quickly. This may also be a good time to take a strong and hard look at bankruptcy. With a bankruptcy you should be able to discharge the judgment prior to garnishment and stop any garnishment that is already in place. Upon filing a bankruptcy, you may even be able to have a portion of any money garnished from your check returned to you. But this has to be done very quickly. Our law office (Law Office of Malik Ahmad) has gotten many such garnished checks restored to our debtors, and they always says thank you because this money and them had already parted. It is of course a good advantage to hire a reputable and experienced law firm like us. So, if you have any such problem, please do not hesitate to call our at (702) 270-9100

Inside a Foreclosure Factory

This is a very interesting article published in MSNBC which states how a production mill of a bank is working to prepare documentation for more foreclosure and how they are omitting basic rules in implementation and causing more avoidable foreclosures.
http://economywatch.msnbc.msn.com/_news/2012/04/19/11269115-inside-the-foreclosure-factory-theyre-working-overtime?lite

Bank of American and Foreclosures’ Alternatives

If a single bank is chosen which caused much hardship and destruction in home values, the credit may solely go to Bank of America. This bank has caused much anguish in homeowners and caused more avoidable foreclosures than any other institution. Despite losing billions of dollars and settling non stop many lawsuits, it still has not learnt much lesson. Now, it has announced that it has begun a pilot program offering some of its mortgage customers who are facing foreclosure a chance to stay in their homes by becoming renters instead of owners. BOA call it “Mortgage to Lease Program”. However, this will be available to fewer than 1,000 BofA customers selected by the bank in test markets in Arizona, Nevada and New York.

– Participants will transfer their home’s title to the bank, which will then forgive the outstanding mortgage debt.
– In exchange, they will be able to lease their home for up to three years at or below the rental market rate.
– The rent will be less than the participants’ current mortgage payments and customers will not have to pay property taxes or homeowners insurance, the bank said.

Among requirements to qualify for the program:
– homeowners must have a BofA loan,
– be behind at least 60 days on payments and
– be “underwater,” owing more on their mortgages than their homes are worth.

The bank based in Charlotte, N.C., said it will at first own the homes, then sell them to investors. It seems like BOA would never learn any lesson and keep on doing same blunders again and again. BOA is forgetting that people take pride in homeownership as they can rent any time, if they liked it, and most of the present owners were former renters anyway.

What is the new mortgage deal: Would you be affected?

Of course FIVE big banks finally reached a deal with government authorities last week. It is a good deal and we should move on. Let us not continue a wild goose chase and dream of unending help.

Who are these five big banks?

-Ally Financial
-Bank of America,
-Citibank,
-JPMorgan Chase and
-Wells Fargo
How much they are willing to pay? Terms:
-a total of $5 billion in cash.
-They will also help homeowners who are underwater on their mortgages by reducing the principal on their loans by a combined $17 billion over the next three years.

How about refinancing?

Borrowers who qualify will get $3 billion in refinancing arrangements.

Improper foreclosure?

Those who were improperly foreclosed on will get a combined $1.5 billion. That probably nets out to less than $2,000 a person.

Impact?

Of course, this would have a sizable impact. Afterall, bank were not the only one to be blamed. The homeowners should accept some responsibility (if not a lion’s share) and part of the blame as well. This would rejuvenate the economy. Let the complainants suffers and naysayers should see the light of the day. Pay your mortgages folks on time. Enough is enough, let the good time roll. Everyone is suffering because few of us are not paying their mortgages regardless of the low interest. Lots of us are savings these mortgage payments. The result most of us suffering who are current on their payments and on commitments. It is a contract. Because of many non payers, the economy cannot progress. Like Ross Perot used to say, “if you don’t like the heat in the kitchen, move out”. People who do not like to pay, they would object if this is zero percent interest. Most of them are looking for free money. Yes, it is true. Produce the note was nonsense which was spread by paralegals and crooks. Most of them are languishing in jails. Initially, there was some fiasco when banks were rapidly purchases and notes were not produced. Now, they have solved this ‘storage” problem. Banks have notes, and they can produce. Most of the notes and promissory notes have run out their statutory limitations. We should learn how to be responsible again and accept where the blame lies. The banks have done their job, it is the homeowners who needed to take their part of the responsibility and help improve the economy. Stay in your homes, pays the bills, cut the chase, and be a proud homeowners.

Obama’s New Mortgage Plan–Details

A Mortgage Plan Gives Homeowners Bulk of the Benefits as announced by the Obama administration today. This deal was done with government authorities and five of the nation’s biggest banks have agreed to a $26 billion settlement that could provide relief to nearly two million current and former American homeowners harmed by the bursting of the housing bubble.

-Under the plan, federal officials said, about $5 billion would be cash payments to states and federal authorities, $17 billion would be earmarked for homeowner relief, roughly $3 billion would go for refinancing and a final $1 billion would be paid to the Federal Housing Administration.

-If nine other major mortgage servicers join the pact, a possibility that is now under discussion with the government, the total package could rise to $30 billion.

-The ultimate benefits provided to homeowners could equal a larger sum — $45 billion in the event all 14 major servicers participate.

– The aid is to be distributed over three years, but there are incentives for banks to provide the money in the next 12 months.

-Five mortgage servicers in the agreement — Bank of America, JPMorgan Chase, Wells Fargo, Citigroup and Ally Financial — had already set aside most of the money.

-The amounts from individual banks were linked to their share of the servicing market. The biggest, Bank of America, would provide $11.8 billion, followed by $5.4 billion from Wells Fargo, $5.3 billion from JPMorgan Chase, $2.2 billion from Citigroup and $310 million from Ally. Bank of America would contribute an additional $1 billion for F.H.A. loans.

-Another 750,000 people who lost their homes to foreclosure from January 2008 to the end of 2011 will receive checks for about $2,000.

President Obama called it a landmark settlement that would “begin to turn the page on an era of recklessness.” He said the government will continue to pursue violations of law in the packaging and selling of risky mortgages that led to the crisis. “We’re going to keep at it until we hold those who broke the law fully accountable.”

In New York State, more than 46,000 borrowers will receive some form of benefit from the settlement, including an estimated 21,000 who are expected to owe less because their principal will be reduced, according to estimates by the Department of Housing and Urban Development.

Other multimillion-dollar settlements were announced on Thursday in connection with the years-long mortgage and foreclosure crisis:

¶ A mortgage servicing subsidiary of Bank of America agreed to settle Federal Trade Commission charges that it illegally assessed more than $36 million worth of fees against struggling homeowners, in violation of an earlier settlement with the F.T.C.

– The settlement money will be doled out under a formula that gives banks varying degrees of credit for different kinds of help. As a result, banks should be motivated to help harder-hit borrowers with homes worth far less than what they owe.

About one in five Americans with mortgages are underwater, which means they owe more than their home is worth. Collectively, their negative equity is almost $700 billion. On average, these homeowners are underwater by $50,000 each.

A recent estimate from the settlement negotiations put the average aid for homeowners at $20,000.

Fed reaches 25 Billion Foreclosure Settlement: What it Means for Homeowners?

There is a good news as the Feds had reached a $25 billion foreclosure settlement unveiled which is expected to help many borrowers who are struggling to make their loan payments. However, the rules of the deal are complicated and banks have three years to meet their obligations.

The Wall Street Journal had extensively dealt in questions and answers to help borrowers figure out if they qualify for help and what to expect from the process. Following excerpts are taken from WSJ under the fair use doctrine.

Who does the settlement cover?
The settlement covers borrowers who have loans that are serviced by one of the five big banks: Ally Financial Inc./GMAC Mortgage, Bank of America Corp., Citigroup Inc., J.P. Morgan Chase & Co. and Wells Fargo & Co. These banks handle payments on 55% of U.S. mortgages, according to Inside Mortgage Finance.

My mortgage is with one of these banks. How do I know if I qualify for help?
It’s going to take some time to figure that out because the settlement has so many wrinkles. One group who will be excluded: borrowers from Oklahoma. They won’t be eligible for relief because the state’s attorney general opted not to join the deal.

What if my loan isn’t with one of the banks?
For now, the settlement covers only the five big banks. Government officials hope to strike a similar deal with nine additional banks.

How long is it going to take for me to get help?
Government officials advise borrowers to be patient. Over the next 30 to 60 days, settlement negotiators will pick an administrator to handle the logistics of the deal. Over the next six to nine months, the administrator, attorneys general and mortgage servicers will work to identify which borrowers get help. Servicers expect to begin reaching out to borrowers in the coming weeks, but they have three years to provide the required help.

How will I find out if I qualify?
Borrowers will get letters from their mortgage company. Each of the five servicers also has a website and a toll-free number for borrowers to get more information. Government officials are encouraging borrowers to contact their mortgage company to see if they qualify for aid.

Here are the links for each servicer:

Ally/GMAC
https://www.gmacmortgage.com/finform/hhstart.htm
800-766-4622

Bank of America
http://homeloanhelp.bankofamerica.com/en/index.html?cm_sp=CRE-Mortgage-Refi-_-Home%20Loan%20Assistance%20Q3-_-MR16000S_marketing%20strip_%20ooo-123_hp_lahUmbrella-o
877-488-7814 (Available Monday to Friday from 7 a.m. to 9 p.m. Central time, and Saturdays from 8 a.m. to 5 p.m. Central time)

Citigroup
https://www.citimortgage.com/Mortgage/displayHomeOwnerAssistance.do?page=overview
866-272-4749

J.P. Morgan Chase
https://www.chase.com/chf/mortgage/keeping-your-home
866-372-6901

Wells Fargo
https://www.wellsfargo.com/homeassist/
800-288-3212 (Available M-F 7 a.m. to 7 p.m. CST)

What are the rules for the principal reduction program?
To qualify for a principal reduction, borrowers have to clear several hurdles. For one thing, borrowers have to be behind on their payments or at “imminent risk” of default. The owner of your loan also makes a difference. Most of the principal reductions are expected to go to borrowers whose loans are owned by the banks, though some borrowers whose loans were packaged into securities may also qualify. The settlement calls for principal reductions on both first and second mortgages.

The deal doesn’t cover loans owned or backed by Fannie Mae or Freddie Mac, the government-controlled mortgage companies.

You can go to these websites to find out if you have a Fannie Mae or Freddie Mac loan:

http://www.fanniemae.com/loanlookup

http://www.freddiemac.com/mymortgage

What about the refinance program?
The refinance program applies only to loans owned by the banks. Also, borrowers have to be current on their loan payments and owe more than their home is worth.

I’ve already lost my home to foreclosure. Can I get any help?
Borrowers who were foreclosed on between 2008 and 2011 are eligible for cash payments. The amount of the payment will depend on how many people file claims, but is expected to be around $1,500 to $2,000.

How do I file a claim?
The settlement administrator will mail notices to eligible borrowers once the process is up and running. Borrowers will have to fill out a simple form, but won’t have to prove they were foreclosed on and shouldn’t have been. Borrowers who are concerned they will be hard to locate can also contact their state attorney general.

That doesn’t sound like a lot of money. Shouldn’t I get more money if I was foreclosed on and shouldn’t have been?
Government officials say they wanted to create a streamlined process that would quickly get aid to borrowers. Borrowers who think they have been wronged can still file a claim with bank regulators or pursue other options.

Obama Administration New Steps for Mortgage Relief

NY Times has reported in its 5th February edition that Obama administration is close to a landmark multibillion-dollar settlement to address foreclosure abuses, as it is is close to winning support from a crucial state that would significantly expand the breadth of the deal. The biggest remaining holdout, California, has returned to the negotiating table after a four-month absence, a change of heart that could increase the pot for mortgage relief nationwide to $25 billion from $19 billion. Also, there is much progress in refinancing homes whether the home ownership is under Fannie Mae, or Freddi Mac as long as the homeowners are current on their payment. This step would be a clossal steps as this would eliminate any loan modification under HAMP. If this is fully implemented without the usual bank’s (the Big Five) laziness, and unhelpful attitude, this alone would rejuvenate our home foreclosure situation. Not only this, it would also help our employment situation as a massive refinancing would help our mortgage, real estate, reconstruction industry along with huge banking transactions. We have been emphasizing for this for long.

“Another important potential backer, Attorney General Eric T. Schneiderman of New York, has also signaled that he sees progress on provisions that prevented him from supporting it in the past.

The potential support from California and New York comes in exchange for tightening provisions of the settlement to preserve the right to investigate past misdeeds by banks, and stepping up oversight to ensure that the financial institutions live up to the deal and distribute the money to the hardest-hit homeowners.

The settlement would require banks to provide billions of dollars in aid to homeowners who have lost their homes to foreclosure or who are still at risk, after years of failed attempts by the White House and other government officials to alter the behavior of the biggest banks.

The banks — led by the five biggest mortgage servicers, Bank of America, JPMorgan Chase, Wells Fargo, Citigroup and Ally Financial — want to settle an investigation into abuses set off in 2010 by evidence that they foreclosed on borrowers with only a cursory examination of the relevant documents, a practice known as robo-signing. Four million families have lost their homes to foreclosure since the beginning of 2007.

Officials involved in the negotiations cautioned that broader state support could still be days away. And although the timing of any announcement is subject to last-minute maneuvering, as it stands now the deal would set aside up to $17 billion specifically to pay for principal reductions and other relief for up to one million borrowers who are behind on their payments but owe more than their houses are currently worth. The deal would also provide checks for about $2,000 to roughly 750,000 who lost homes to foreclosure.

Those figures are contingent upon the number who respond to the offer, which is likely to go to people who lost their homes between Jan. 1, 2008, and Dec. 31, 2011. In addition, said Patrick Madigan, the Iowa assistant attorney general, homeowners who participate in the settlement will still have the right to sue the banks for improper behavior in the foreclosure process.

California has been focused on measures that would benefit individual homeowners, while New York h

The backers of the latest deal insist their plan has more teeth, with a powerful outside monitor to oversee enforcement and heavy monetary penalties if banks fail to live up to commitments. While the past agreement with Countrywide gave banks credit even if their offers to modify the interest rate of the mortgage or write down principal were not accepted by borrowers, this deal counts only what banks actually do for homeowners.

If banks fall short of the multibillion-dollar benchmarks set out for principal reduction and other benefits for homeowners, they will have to pay the difference plus a penalty of up to 40 percent directly to the federal government, according to Mr. Madigan.

The depressed housing market continues to pose a drag on the halting economic recovery. RealtyTrac, which analyzes housing data, predicts two million more foreclosures over the next two years. Some 11 million families owe more on their houses than they are worth.

The settlement, if all states participate, will also include $3 billion to lower the rates of mortgage holders who are current. Banks will get more credit for reducing principal owed and helping families keep their homes, and less for short sales or taking losses on loans that were likely to go bad, like those that were severely delinquent.”

At this time, everything is in doldrums, and nothing can be said with certainty if this plan would reduce the foreclosure or it would just be a plan without any impact on this unending crisis.

 

A judgment entered in the court of the State of Nevada generally is enforceable for a period of six (6) years and may be renewed. (NRS 11.190.) It may become a lien on a judgment debtor’s real property once a transcript or abstract of the original judgment is filed with the recorder of the county in which judgment debtor’s real property is located. The lien will continue for a period of six (6) years and may be renewed. (NRS 17.150.)

A judgment creditor may execute against all goods, chattels, moneys and other property, real and personal, of the judgment debtor, not exempt by law, and all property and rights of property seized and held under attachment in the action. (NRS 21.080.) A judgment debtor’s wages may also be garnished. However, 75% of the disposable earnings of a judgment debtor during any pay period, or 30 times the minimum hourly wage prescribed by section 6(a)(1) of the federal Fair Labor Standards Act of 1938, are exempt from execution of a judgment. (NRS 21.090(g)

What is a confession of judgment?
Nevada laws permits judgment by confession for debt due or contingent liability. A debtor may confess judgment, without action, either for money due or to become due or to secure any person against contingent liability, by filing a written statement with the court. The written statement must be signed and verified under oath by the debtor, and must contain the amount authorized to be entered in the judgment, concise facts out of which the obligation arose and the actual amount due. The clerk’s fee for filing and entering the judgment and affidavit is $24.00 (Check for latest fee raised) (NRS 17.110.)

Does Nevada Adopts and Recognizes Foreign Judgment?

The State of Nevada generally adopts the Uniform Enforcement of Foreign Judgments Act. (NRS 17.330-17.400.) Any judgment, decree or order of a court of the United States or of any other court is entitled to full faith and credit in the State of Nevada. (NRS 17.340.)

A judgment creditor seeking to enforce a foreign judgment may file with the appropriate court, an exemplified copy of the foreign judgment and an affidavit showing the name and last known post office address of the judgment debtor and the judgment creditor. The affidavit must also include a statement that the foreign judgment is valid and enforceable, and the extent to which it has been satisfied. (NRS 17.360.) A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a court in the State of Nevada and may be enforced or satisfied in like manner. (NRS 17.350.)

Upon the filing of the foreign judgment and affidavit, the judgment creditor or someone on his behalf is required to mail a notice of the filing of the judgment and affidavit, attaching a copy of each to the notice, to the judgment debtor and to his attorney of record, if any, each at his last known address, by certified mail, return receipt requested. The notice must include the name and post office address of the judgment creditor and judgment creditor’s attorney, if any, in the State of Nevada. The judgment creditor is also required to file an affidavit with the clerk of the court setting forth the date the notice was mailed. No execution or other process for enforcement of a foreign judgment may issue until 30 days after the date of mailing the notice of filing. (NRS 17.360.)

Interest:

Legal rate: Interest on transactions where there is no written contract may be charged a rate equal to the prime rate at the largest bank in Nevada, as ascertained by the commissioner of financial institutions, on January 1 or July 1, as the
case may be, immediately preceding the date of the transaction, plus 2 percent. (NRS 99.040.)

Written Contract rate: Any rate which the parties to a written contract may agree. (NRS 99.050.)

Judgment rate: Either the rate specified by contract or a rate equal to the prime rate at the largest bank in Nevada as ascertained by the commissioner of financial institutions on January 1 or July 1, as the case may be, immediately preceding the date of judgment, plus 2 percent. The rate must be adjusted accordingly on each January 1 and July 1 thereafter until the judgment is satisfied. (NRS 17.130.)

Exemptions:

In general, a debtor may claim exemption of his homestead and certain personal property from attachment and execution of a judgment, or in a bankruptcy proceeding.

In general, the equity in the homestead of a judgment debtor may be exempt from sale on execution and from process of court to the extent of $550,000.00 in value. (NRS 115.010.) Homestead may include a quantity of land, together with the dwelling house thereon and its appurtenances, a mobile home whether or not the underlying land is owned by the debtor, or a unit or real or personal property, with any appurtenant limited common elements, or its interest in the common elements of the common-interest community, selected by the debtor or his spouse, or either of them, or a single person. (NRS 115.005.)

Under NRS 21.090 some of the personal property of a judgment debtor which may be exempt from execution may include private libraries not to exceed $1,500 in value (check recent increase), and all family pictures and keepsake, necessary household goods and yard equipment not to exceed $3,000 in value, farm trucks, farm stock, farm tools, farm equipment, supplies and seed not to exceed $4,500 in value, professional libraries, office equipment, office supplies and the tools, instruments and materials used to carry on the trade of the judgment debtor for the support of himself and his family not to exceed $4,500 in value, the cabin or dwelling of a miner or prospector, his cars, implements and appliances necessary for carrying on any mining operations and his mining claim actually worked by the debtor, not exceeding $4,500 in total value, one vehicle if the judgment debtor’s equity does not exceed $4,500 (check recent increase), all money, benefits, privileges or immunities accruing or in any manner growing out of any life insurance, if the
annual premium paid does not exceed $1,000, any prosthesis or equipment prescribed by a physician or dentist, money, not to exceed $500,000 in present value held in qualified retirement plans, employee pension plan or profit sharing plans, money or other benefits held pursuant to the order of a competent jurisdiction for child or spousal support, education and maintenance.

In a bankruptcy action, residents of the State of Nevada are not allowed those exemptions specified in subsection (d) of section 522 of the Bankruptcy Act of 1978 (92 Stat. 2586). (NRS 21.090(3).)

Statutes of Limitation:

Civil actions generally can be commenced only within certain time limitations. The time generally runs from the date from the last transaction or the last item charged or last credit given; and whenever any payment on principal or interest has been or shall be made upon an existing contract, whether it be a bill of exchange, promissory note or other evidence of indebtedness if such payment be made after the same have become due, the limitation generally commences from the time the last payment was made. (NRS 11.200.)

What is debt forgiveness, and its implications

If you owe a debt to someone (lenders) else and they cancel or forgive that debt, the canceled amount may be taxable.

The Mortgage Debt Relief Act of 2007 generally allows taxpayers to exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief.

This provision applies to debt forgiven in calendar years 2007 through 2012. Up to $2 million of forgiven debt is eligible for this exclusion ($1 million if married filing separately). The exclusion does not apply if the discharge is due to services performed for the lender or any other reason not directly related to a decline in the home’s value or the taxpayer’s financial condition.

More information, including detailed examples can be found in Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments. Also see IRS news release IR-2008-17.

We have simplified the legislation and the following are the most commonly asked questions and answers about “The Mortgage Forgiveness Debt Relief Act” and debt cancellation:

What is Cancellation of Debt?
If you borrow money from a commercial lender and the lender later cancels or forgives the debt, you may have to include the cancelled amount in income for tax purposes, depending on the circumstances. When you borrowed the money you were not required to include the loan proceeds in income because you had an obligation to repay the lender. When that obligation is subsequently forgiven, the amount you received as loan proceeds is normally reportable as income because you no longer have an obligation to repay the lender. The lender is usually required to report the amount of the canceled debt to you and the IRS on a Form 1099-C, Cancellation of Debt.

Here’s a very simplified example. You borrow $10,000 and default on the loan after paying back $2,000. If the lender is unable to collect the remaining debt from you, there is a cancellation of debt of $8,000, which generally is taxable income to you.

Is Cancellation of Debt income always taxable?
Not always. There are some exceptions. The most common situations when cancellation of debt income is not taxable involve:

Qualified principal residence indebtedness: This is the exception created by the Mortgage Debt Relief Act of 2007 and applies to most homeowners.
Bankruptcy: Debts discharged through bankruptcy are not considered taxable income.
Insolvency: If you are insolvent when the debt is cancelled, some or all of the cancelled debt may not be taxable to you. You are insolvent when your total debts are more than the fair market value of your total assets.

Certain farm debts: If you incurred the debt directly in operation of a farm, more than half your income from the prior three years was from farming, and the loan was owed to a person or agency regularly engaged in lending, your cancelled debt is generally not considered taxable income.
Non-recourse loans: A non-recourse loan is a loan for which the lender’s only remedy in case of default is to repossess the property being financed or used as collateral. That is, the lender cannot pursue you personally in case of default. Forgiveness of a non-recourse loan resulting from a foreclosure does not result in cancellation of debt income. However, it may result in other tax consequences.
These exceptions are discussed in detail in Publication 4681.

What is the Mortgage Forgiveness Debt Relief Act of 2007?The Mortgage Forgiveness Debt Relief Act of 2007 was enacted on December 20, 2007 (see News Release IR-2008-17). Generally, the Act allows exclusion of income realized as a result of modification of the terms of the mortgage, or foreclosure on your principal residence.

What does exclusion of income mean?Normally, debt that is forgiven or cancelled by a lender must be included as income on your tax return and is taxable. But the Mortgage Forgiveness Debt Relief Act allows you to exclude certain cancelled debt on your principal residence from income. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief.

Does the Mortgage Forgiveness Debt Relief Act apply to all forgiven or cancelled debts?
No. The Act applies only to forgiven or cancelled debt used to buy, build or substantially improve your principal residence, or to refinance debt incurred for those purposes. In addition, the debt must be secured by the home. This is known as qualified principal residence indebtedness. The maximum amount you can treat as qualified principal residence indebtedness is $2 million or $1 million if married filing
separately.

Does the Mortgage Forgiveness Debt Relief Act apply to debt incurred to refinance a home?
Debt used to refinance your home qualifies for this exclusion, but only to the extent that the principal balance of the old mortgage, immediately before the refinancing, would have qualified. For more information, including an example, see Publication 4681.

How long is this special relief in effect?
It applies to qualified principal residence indebtedness forgiven in calendar years 2007 through 2012.

Is there a limit on the amount of forgiven qualified principal residence indebtedness that can be excluded from income?
The maximum amount you can treat as qualified principal residence indebtedness is $2 million ($1 million if married filing separately for the tax year), at the time the loan was forgiven. If the balance was greater, see the instructions to Form 982 and the detailed example in Publication 4681.

If the forgiven debt is excluded from income, do I have to report it on my tax return?
Yes. The amount of debt forgiven must be reported on Form 982 and this form must be attached to your tax return.

Do I have to complete the entire Form 982?
No. Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Adjustment), is used for other purposes in addition to reporting the exclusion of forgiveness of qualified principal residence indebtedness. If you are using the form only to report the exclusion of forgiveness of qualified principal residence indebtedness as the result of foreclosure on your principal residence, you only need to complete lines 1e and 2. If you kept ownership of your home and modification of the terms of your mortgage resulted in the forgiveness of qualified principal residence indebtedness, complete lines 1e, 2, and 10b. Attach the Form 982 to your tax return.

Where can I get this form?
If you use a computer to fill out your return, check your tax-preparation software. You can also download the form at IRS.gov, or call 1-800-829-3676. If you call to order, please allow 7-10 days for delivery.

How do I know or find out how much debt was forgiven?
Your lender should send a Form 1099-C, Cancellation of Debt, by February 2, 2009. The amount of debt forgiven or cancelled will be shown in box 2. If this debt is all qualified principal residence indebtedness, the amount shown in box 2 will generally be the amount that you enter on lines 2 and 10b, if applicable, on Form 982.

Can I exclude debt forgiven on my second home, credit card or car loans?
Not under this provision. Only cancelled debt used to buy, build or improve your principal residence or refinance debt incurred for those purposes qualifies for this exclusion. See Publication 4681 for further details.

If part of the forgiven debt doesn’t qualify for exclusion from income under this provision, is it possible that it may qualify for exclusion under a different provision?
Yes. The forgiven debt may qualify under the insolvency exclusion. Normally, you are not required to include forgiven debts in income to the extent that you are insolvent. You are insolvent when your total liabilities exceed your total assets. The forgiven debt may also qualify for exclusion if the debt was discharged in a Title 11 bankruptcy proceeding or if the debt is qualified farm indebtedness or qualified real property business indebtedness. If you believe you qualify for any of these exceptions, see the instructions for Form 982. Publication 4681 discusses each of these exceptions and includes examples.

I lost money on the foreclosure of my home. Can I claim a loss on my tax return?
No. Losses from the sale or foreclosure of personal property are not deductible.

If I sold my home at a loss and the remaining loan is forgiven, does this constitute a cancellation of debt?
Yes. To the extent that a loan from a lender is not fully satisfied and a lender cancels the unsatisfied debt, you have cancellation of indebtedness income. If the amount forgiven or canceled is $600 or more, the lender must generally issue Form 1099-C, Cancellation of Debt, showing the amount of debt canceled. However, you may be able to exclude part or all of this income if the debt was qualified principal residence indebtedness, you were insolvent immediately before the discharge, or if the debt was canceled in a title 11 bankruptcy case. An exclusion is also available for the cancellation of certain nonbusiness debts of a qualified individual as a result of a disaster in a Midwestern disaster area. See Form 982 for details.

If the remaining balance owed on my mortgage loan that I was personally liable for was canceled after my foreclosure, may I still exclude the canceled debt from income under the qualified principal residence exclusion, even though I no longer own my residence?
Yes, as long as the canceled debt was qualified principal residence indebtedness. See Example 2 on page 13 of Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments.

Will I receive notification of cancellation of debt from my lender?
Yes. Lenders are required to send Form 1099-C, Cancellation of Debt, when they cancel any debt of $600 or more. The amount cancelled will be in box 2 of the form.

What if I disagree with the amount in box 2?
Contact your lender to work out any discrepancies and have the lender issue a corrected Form 1099-C.

How do I report the forgiveness of debt that is excluded from gross income?
(1) Check the appropriate box under line 1 on Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment) to indicate the type of discharge of indebtedness and enter the amount of the discharged debt excluded from gross income on line 2. Any remaining canceled debt must be included as income on your tax return.

(2) File Form 982 with your tax return.

My student loan was cancelled; will this result in taxable income?
In some cases, yes. Your student loan cancellation will not result in taxable income if you agreed to a loan provision requiring you to work in a certain profession for a specified period of time, and you fulfilled this obligation.

Are there other conditions I should know about to exclude the cancellation of student debt?
Yes, your student loan must have been made by:

(a) the federal government, or a state or local government or subdivision;

(b) a tax-exempt public benefit corporation which has control of a state, county or municipal hospital where the employees are considered public employees; or

(c) a school which has a program to encourage students to work in underserved occupations or areas, and has an agreement with one of the above to fund the program, under the direction of a governmental unit or a charitable or educational organization.

Can I exclude cancellation of credit card debt?
In some cases, yes. Nonbusiness credit card debt cancellation can be excluded from income if the cancellation occurred in a title 11 bankruptcy case, or to the extent you were insolvent just before the cancellation. See the examples in Publication 4681.

How do I know if I was insolvent?
You are insolvent when your total debts exceed the total fair market value of all of your assets. Assets include everything you own, e.g., your car, house, condominium, furniture, life insurance policies, stocks, other investments, or your pension and other retirement accounts.

How should I report the information and items needed to prove insolvency?
Use Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment) to exclude canceled debt from income to the extent you were insolvent immediately before the cancellation. You were insolvent to the extent that your liabilities exceeded the fair market value of your assets immediately before the cancellation.

To claim this exclusion, you must attach Form 982 to your federal income tax return. Check box 1b on Form 982, and, on line 2, include the smaller of the amount of the debt canceled or the amount by which you were insolvent immediately prior to the cancellation. You must also reduce your tax attributes in Part II of Form 982.

My car was repossessed and I received a 1099-C; can I exclude this amount on my tax return?
Only if the cancellation happened in a title 11 bankruptcy case, or to the extent you were insolvent just before the cancellation. See Publication 4681 for examples.

Are there any publications I can read for more information?
Yes.
(1) Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments (for Individuals) is new and addresses in a single document the tax consequences of cancellation of debt issues.

(2) See the IRS news release IR-2008-17 with additional questions and answers on IRS.gov.

US Sues Big Mortgage Giants

http://dealbook.nytimes.com/2011/12/16/s-e-c-sues-6-former-top-fannie-and-freddie-executives/?hp

NV Attorney General Announces Arrests of Two Robo Signers

OFFICE OF THE ATTORNEY GENERAL
Catherine Cortez Masto, Attorney General
555 E. Washington Avenue, Suite 3900 Las Vegas, Nevada 89101
Telephone – (702) 486-3420
Fax – (702) 486-3283
Web – http://ag.state.nv.us
FOR IMMEDIATE RELEASE Contact: Jennifer Lopez
DATE: November 16, 2011 702-486-3782
OFFICE OF THE ATTORNEY GENERAL ANNOUNCES INDICTMENT IN MASSIVE
CLARK COUNTY ROBO-SIGNING SCHEME
Defendants to be Held Criminally Accountable for Filing Tens of Thousands of
Fraudulent Foreclosure Documents
Carson City, NV — The Office of the Nevada Attorney General announced today that the Clark County grand jury has returned a 606 count indictment against two title officers, Gary Trafford and Gerri Sheppard, who directed and supervised a robo-signing scheme which resulted in the filing of tens of thousands of fraudulent documents with the Clark County Recorder’s Office between 2005 and 2008.
According to the indictment, defendant Gary Trafford, a California resident, is charged with 102 counts of offering false instruments for recording (category C felony); false certification on certain instruments (category D felony); and notarization of the signature of a person not in the presence of a notary public (a gross misdemeanor). The indictment charges defendant Gerri Sheppard, also a California resident, with 100 counts of offering false instruments for recording (category C felony); false certification on certain instruments (category D felony); and notarization of the signature of a person
not in the presence of a notary public (a gross misdemeanor).
“The grand jury found probable cause that there was a robo-signing scheme which resulted in the filing of tens of thousands of fraudulent documents with the Clark County Recorder’s Office between 2005 and 2008,”said Chief Deputy Attorney General John Kelleher.
The indictment alleges that both defendants directed the fraudulent notarization and filing of documents which were used to initiate foreclosure on local homeowners.
The State alleges that these documents, referred to as Notices of Default, or “NODs”, were prepared locally. The State alleges that the defendants directed employees under their supervision, to forge their names on foreclosure documents, then notarize the signatures they just forged, thereby fraudulently attesting that the defendants actually
signed the documents, which was untrue and in violation of State law. The defendants then allegedly directed the employees under their supervision to file the fraudulent documents with the Clark County Recorder’s office, to be used to start foreclosures on homes throughout the County.
The indictment alleges that these crimes were done in secret in order to avoid detection. The fraudulent NODs were allegedly forged locally to allow them to be filed at the Clark County Recorder’s office on the same day they were prepared.
District Court Judge Jennifer Togliatti has set bail in the amount of $500,000 for Sheppard and $500,000 for Trafford. The case has been assigned to Department 5 District Court Judge Carolyn Ellsworth who will preside over the case.
Anyone who has information regarding this case is asked to contact the Attorney General’s Office at 702-486-3777 in Las Vegas or 775-684-1180 in Carson City.
TRAFFORD, GARY
SHEPPARD, GERRI
###

Here Comes Warning to Banks for Wrongful Foreclosure

The highest court in Massachusetts ruled that U.S. Bancorp and Wells Fargo erred when they seized two troubled borrowers’ properties in 2007, putting the nation’s banks on notice that foreclosures cannot be based on improper or incomplete paperwork.

The Supreme Judicial Court voided the foreclosures, returning ownership of the properties to the borrowers and opening the door to other foreclosure do-overs in the state. However, this decision did not set any precedent for other courts, however, this is still a good decision and other lenders should be warned. The case dates to 2007, when Wells Fargo and U.S. Bancorp began foreclosure proceedings against delinquent borrowers on two separate properties. Neither borrower fought the proceedings — the courts in Massachusetts are not obligated to oversee foreclosures — and both banks quickly seized the properties.

The banks’ problems began in the fall of 2008, when Wells Fargo and U.S. Bancorp sought judgments from the Massachusetts Land Court that would have given them clear title to the properties. In 2009, the court rejected the banks’ arguments, ruling that the banks had not been assigned the mortgages before they foreclosed, as is required. Instead, the banks had acquired the mortgages after they had begun foreclosure proceedings.

Foreclosures are supposed to occur only when lenders can prove they own the note underlying the property. While it is common now for borrowers to question whether banks moving to seize their properties have the right to do so, in 2007, most borrowers assumed that the institutions foreclosing on them were acting properly.

Since then, lenders’ foreclosure practices have come under intense scrutiny. Borrowers’ advocates have argued that lenders flouted private property rights in their rush to foreclose on troubled borrowers. As lenders and Wall Street firms bundled thousands of mortgage loans into securities, banks often failed to record each link in the chain of documents demonstrating ownership of a note and a property.

As our readers are well aware, attorneys general in all 50 states are investigating foreclosure improprieties, which include forged signatures on legal documents and other dubious practices meant to patch up holes in loan documentation. Both mortgages in the Massachusetts case had been bundled into securities and sold to investors. The banks that foreclosed on the borrowers were acting as trustees, bringing the actions on behalf of investors in the trusts, which held the properties at the time of the ruling.

Fed Sues Allied Home Mortgage Over Bad Loans

The Associated Press has reported that the federal government sued one of the nation’s largest privately held mortgage brokers on Tuesday, saying its decade-long lending practices amounted to fraud and cost the government hundreds of millions of dollars and forced thousands of American homeowners to lose their homes.

The lawsuit in United States District Court in Manhattan sought unspecified damages and civil penalties and named as defendants Allied Home Mortgage Corporation; its founder, Jim Hodge; and Jeanne Stell, the company’s executive vice president and director of compliance.

This was announced by Preet Bharara, the United States attorney based in Manhattan. “The losers here were American taxpayers, and the thousands of families who faced foreclosure because they were could not ultimately fulfill their obligations on mortgages that were doomed to fail,” he said.

According to the lawsuit, nearly 32 percent of the 112,324 home loans originated by Allied from Jan. 1, 2001, to the end of 2010 have defaulted, resulting in more than $834 million in insurance claims paid by HUD.

The lawsuit said the default rate climbed to “a staggering 55 percent” in 2006 and 2007, at the height of the housing boom, when the government paid $170 million to settle Allied’s failed loans. It said an additional 2,509 loans are now in default and that HUD could face $363 million more in claims.

Obama New Help Plan for Homeowners–Just a Joke?

There are headlines throughout USA and in all the media about Obama’s new mortgage plan announced in Las Vegas about refinancing of underwater homes but today’s record-low mortgage rates are out of reach for millions of U.S. homeowners who would benefit from them most. The fact of the matter is that one in four homeowners with a mortgage is under water. 11 million people – owe more than their home is worth. Almost 60 percent of the home owners are underwater, if not more. However, the Obama administration is hoping at least 1 million of these borrowers will take advantage of its refinancing program under more lenient rules unveiled Monday. Let us see the important points of this program:

1. Homeowners who are current on their payments will be eligible to refinance no matter how much their home’s value has dropped.

2. This program only applies to loans which are financed by Fannie Mae and Freddie Mac.

3. This refi can be more than 125 percent value of the home.
4. This refi is available to only those homeowners who are current in their payments.

Demerits of this Plan:
This plan ignores the reality of non payments, and applies to very small segment of homeowners. There are approximately 3782 loans in Las Vegas which are financed either by Fannie Mae or Freddi Mac. According to the Clark County assessor’s office, Fannie Mae and Freddie Mac own 3,782 properties in Southern Nevada, out of 631,783 residences. I am just shocked how this administration after months of wrangling, pussyfooting came to this bogus plan which would do no meaningful changes in the plight of homeowners. A realistic plan could have opened refinancing for all the underwater homes. This would have created a revitalization of the economy in matters of months as everyone including the real estate, the loan brokers, the banks, the home construction industry, the brick layers, the carpet guys, the Home Depot, and all other who are associated with home industry would have been benefitted. Shocingly, this is a bad advice, and would bring very little result. We are disappointed on these half hearted measures.

More Foreclosure: When it is going to stop?

More bad news coming about foreclosure filings as it rose in August, as more homebuyers fell behind on their mortgage payments.The new statistics shows that filings were up 7% compared to July, but were still 33% lower than they were a year ago — marking the eleventh straight month of year-over-year declines, according to RealtyTrac, a leading online marketer of foreclosed properties. According to the report, 228,098 homes in the U.S. received some kind of foreclosure filing in August. Default notices, which typically initiate the foreclosure process, surged more 33% from July. Foreclosure auctions and bank repossessions, which come later in the process, both fell slightly.

The lenders did take a pause after the “robo signing” last year but now they are increasing the pace of forelcosure again. We had stated that the recovery of economy depends upon the recovery of housing market. Sometime ago NY Times reported that Obama administration is working on a plan to give refinancing option to home owners who would not otherwise qualify for refinancing on the lowest interest. But we had not heard more details on this program so far. Unfortunately, our judicial system is clogged by thousands of complaints, lawsuits involving lenders, homeowners and brokers. This seems to be an unending crisis, and presently we do not see any light at the end of the tunnel. Obama administration is gearing up for the second election, and his Treasury Secretary is a hopeless person. Once there was a rumor of his resignation, the market briefly rose but came back to negative again, when he denied resigning from this post. Too me, he is like Dan Quayle with the Senior Bush. The senior Bush did not want to get rid of him, and eventually lost election.

The Whistleblowers Get Rewarded: Good Work

US Department of Labor finds Bank of America in violation of Sarbanes-Oxley Act whistleblower protection provisions. Here is the good news as Bank is ordered to reinstate fire employee employee and pay $930,000. This interesting story is new, and came from San Francisco where it has found Charlotte, N.C.-based Bank of America Corp. in violation of the whistleblower protection provisions of the Sarbanes-Oxley Act for improperly firing an employee. The bank has been ordered to reinstate and pay the employee approximately $930,000, which includes back wages, interest, compensatory damages and attorney fees. The findings follow an investigation by OSHA’s San Francisco Regional Office, which was initiated after receiving a complaint from the Los Angeles-area employee.

“It’s clear from our investigation that Bank of America used illegal retaliatory tactics against this employee,” said OSHA Assistant Secretary Dr. David Michaels. “This employee showed great courage reporting potential fraud and standing up for the rights of other employees to do the same.”

The employee originally worked for Countrywide Financial Corp., which merged with Bank of America in July 2008. The employee led internal investigations that revealed widespread and pervasive wire, mail and bank fraud involving Countrywide employees. The employee alleged that those who attempted to report fraud to Countrywide’s Employee Relations Department suffered persistent retaliation. The employee was fired shortly after the merger.

“Whistleblowers play a vital role in ensuring the integrity of our financial system, as well as the safety of our food, air, water, workplaces and transportation systems,” added Michaels. “This case highlights the importance of defending employees against retaliation when they try to protect the public from the consequences of an employer’s illegal activities.”

Both the complainant and Bank of America can appeal the monetary damages to the Labor Department’s Office of Administrative Law Judges within 30 days of receiving the findings.

OSHA enforces the whistleblower provisions of the Sarbanes-Oxley Act and 20 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, railroad and maritime laws. Under these laws enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

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.

Unending Litigation Against Wells Fargo

As we stated that certain lenders are the laziest, most procastinator when it comes to loan modification. No matter what happens, they would never change themselves. Case in point is Bank of America. This bank has been sued left and right throughout USA, but still not changing and learning its lesson. Now, the latest news is that it would lay off some 40,000 people. Again, this top list includes Wells Fargo, Bank of America, and of course Chase bank. They would always find something to deny or delay your request for loan modification. Anyway, recently two lawsuits have been filed against Wells Fargo for discriminatory lending practices. One lawsuit is filed by the city of Memphis and Shelpy County, Tenn. Redlining is a term of the real estate when you steer certain minorities for improper lending based on the color of their skin and other social factors. Here, this lender has targeted individual property owners with specific lending practices increasing foreclosure and vacancies with specific results. The judge in this case had found a plausible link of deliberately steering African-American borrowers who qualified for prime mortgages into sub mortgages.