Nevada Notice Laws and Foreclosure:
NRS 107.080 Trustee’s power of sale: Power conferred; required notices; effect of sale; circumstances in which sale may be declared void.
Today, I am going to discuss the Notice statute under the Nevada Revised statutory scheme. This is the most important statute which is almost used everyday by the lenders and the foreclosure defense attorneys. This notice statute is not comprehensive as there are some grey areas which can be interpreted differently and of course liberally. Again, this Notice Statue is the biggest tool used by the lenders and the Trustee under the Trustee Deed and Notice of Default. I am posting the statute below in very simple format. Again, as we all should know by this time that Nevada is a non judicial foreclosure state. It simply means that the lender or the Trustee does not have to go to the court and establish a judicial foreclosures. A simple process of foreclosure (called statutory foreclosure) can take place outside the ambit of our judicial system. Again, in a non judicial foreclosure there is no equity of redemption. Boring word but it is very important. Redemption means if you have money, pay your lender even though an auction had taken place. Sometime it last up to one year. However, in statutory states like Nevada, there is no right of redemption. Right to Cure is only available before the auction takes place. Let us have a detailed analysis studying this statute. In due course of time, I will discuss few more statutes and the latest addition to Nevada Revised Statute including of course the statute dealing with deceptive trade practices (UDAP).
1. Notice of Breach. Here, the beneficiary or successor in interest is executed by a trustee
2. This notice of breach is recorded in County office.
3. Three months has to be lapsed.
4. The 15-35 day period commences on the first day following the day upon which the notice of default is recorded.
5. Along with the notice of default is accompanied another notice—called Notice of Election to Sell.
6. These two notices are recorded in the county office.
7. These notices must describe the property exactly the way it was described in the Note.
8. The Notice of Default and Election to Sell must describe the deficiency in payment
9. It must contain notice of intent to declare the entire unpaid balance due.
10. It describes what is an acceleration? It is the speeding of the process of payment of your loan.
11. An acceleration must not occur if payment is made or deficiency satisfied.
12. What is 3 Months Period? The trustee, or other person authorized to make the sale under the terms of the trust deed or transfer in trust, shall, after expiration of the 3-month period following the recording of the notice of breach and election to sell, and before the making of the sale, give notice of the time and place thereof by recording the notice of sale.
13. How Notice is Served? By mail, and by publication. When it comes to mailing of notice, it is served by mailing at the last known address. If the borrower had changed the address, and never notified, the service of notice has been performed.
14. A notice must be served to each person of interest.
15. A person of interest can be both husband and wife.
16. A person of interest can be anybody even your attorney or authorized representative.
17. The notice must be by certified mail and also by ordinary mail.
18. Each trustor is entitled to a notice.
19. Also, this Notice describing property must be conspicuously placed for three days for 20 days successively in three public places
20. Also, this Notice must be published three times, once each week for 3 consecutive weeks in a newspaper of general circulation.
21. There is no equity or right of redemption in Nevada.
22. When a Foreclosure Sale Can Be Voided Under NRS? A sale made pursuant to this section may be declared void by any court of competent jurisdiction in the county where the sale took place if:
(a) The trustee or other person authorized to make the sale does not substantially comply with the provisions of this section;
(b) Except as otherwise provided in subsection 6, an action is commenced in the county where the sale took place within 90 days after the date of the sale; and
(c) A notice of lis pendens providing notice of the pendency of the action is recorded in the office of the county recorder of the county where the sale took place within 30 days after commencement of the action.
23. The law states a court of competent jurisdiction. It does mean either a state or federal court. We are not sure about the competency of municipal court for finding the correct adherence of Notice statutes.
24. Any violations of this Notice Statute can void a foreclosure sale.
25. The sale of the property must be made at an auction to the highest bidder.
26. This auction can only happen between 9 a.m. and 5 p.m.
27. There are only 3 oral postponement of sale allowed in Nevada.
28. Any new information of sale must be provided under the NRS 108.80.
29. Summary Manner of Court. The court shall proceed in a summary manner in the hearing and disposition of such a motion, and give judgment and issue execution therefor forthwith, but the refusing purchaser may request a jury.
30. Limits on the Power of the Trustee. The trustee shall not exercise a power of sale pursuant not later than 60 days before the date of the sale, the trustee causes to be served upon the grantor a notice in the form described in subsection 3; and if an action is filed in a court of competent jurisdiction claiming an unfair lending practice in connection with the trust agreement, the date of the sale is not less than 30 days after the date the most recent such action is filed.
31. What is a Person With An Interest? It means any person who has or claims any right, title or interest in, or lien or charge upon, the real property described in the deed of trust, as evidenced by any document or instrument recorded in the office of the county recorder of the county in which any part of the real property is situated.
32. A person with an interest or any other person who is or may be held liable for any debt secured by a lien on the property desiring a copy of a notice of default or notice of sale under a deed of trust with power of sale upon real property may at any time after recordation of the deed of trust record in the office of the county recorder of the county in which any part of the real property is situated an acknowledged request for a copy of the notice of default or of sale. The request must state the name and address of the person requesting copies of the notices and identify the deed of trust by stating the names of the parties thereto, the date of recordation, and the book and page where it is recorded.
33. NRS 107.095 Notice of default: Mailing to guarantor or surety of debt; effect of failure to give.
34. The notice of default required by NRS 107.080 must also be sent by registered or certified mail, return receipt requested and with postage prepaid, to each guarantor or surety of the debt. If the address of the guarantor or surety is unknown, the notice must be sent to the address of the trust property. Failure to give the notice, except as otherwise provided in subsection 3, releases the guarantor or surety from his obligation to the beneficiary, but does not affect the validity of a sale conducted pursuant to NRS 107.080 nor the obligation of any guarantor or surety to whom the notice was properly given.
35. Failure to give the notice of default required by NRS 107.090, except as otherwise provided in subsection 3, releases the obligation to the beneficiary of any person who has complied with NRS 107.090 and who is or may otherwise be held liable for the debt or other obligation secured by the deed of trust, but such a failure does not affect the validity of a sale conducted pursuant to NRS 107.080 nor the obligation of any person to whom the notice was properly given pursuant to this section or to NRS 107.080 or 107.090.
36. A guarantor, surety or other obligor is not released pursuant to this section if:
37. (a) The required notice is given at least 15 days before the later of:
38. (1) The expiration of the 15- or 35-day period described in NRS 107.080; or
39. (2) Any extension of that period by the beneficiary; or
40. (b) The notice is rescinded before the sale is advertised.
41. NRS 107.100 Receiver: Appointment after filing notice of breach and election to sell.
42. At any time after the filing of a notice of breach and election to sell real property under a power of sale contained in a deed of trust, the trustee or beneficiary of the deed of trust may apply to the district court for the county in which the property or any part of the property is located for the appointment of a receiver of such property.
43. A receiver shall be appointed where it appears that personal property subject to the deed of trust is in danger of being lost, removed, materially injured or destroyed, that real property subject to the deed of trust is in danger of substantial waste or that the income therefrom is in danger of being lost, or that the property is or may become insufficient to discharge the debt which it secures.
STATEMENT FROM BENEFICIARY OF DEED OF TRUST
44. NRS 107.200 Contents of statement regarding debt secured by deed of trust. Except as otherwise provided in NRS 107.230, the beneficiary of a deed of trust secured on or after October 1, 1995, shall, within 21 days after receiving a request from a person authorized to make such a request pursuant to NRS 107.220, cause to be mailed, postage prepaid, or sent by facsimile machine to that person a statement regarding the debt secured by the deed of trust. The statement must include:
45. The amount of the unpaid balance of the debt secured by the deed of trust, the rate of interest on the unpaid balance and the total amount of principal and interest which is due and has not been paid.
46. The amount of the periodic payments, if any, required under the note.
47. The date the payment of the debt is due.
48. The period for which real estate taxes and special assessments have been paid, if that information is known to the beneficiary.
49. The amount of property insurance covering the real property and the term and premium of that insurance, if that information is known to the beneficiary.
50. The amount in an account, if any, maintained for the accumulation of money for the payment of taxes and insurance premiums.
51. The amount of any additional charges, costs or expenses paid or incurred by the beneficiary which is a lien on the real property described in the deed of trust.
52. Whether the debt secured by the deed of trust may be transferred to a person other than the grantor.
53. NRS 107.210 Contents of statement of amount necessary to discharge debt secured by deed of trust. Except as otherwise provided in NRS 107.230 and 107.240, the beneficiary of a deed of trust secured on or after October 1, 1995, shall, within 21 days after receiving a request from a person authorized to make such a request pursuant to NRS 107.220, cause to be mailed, postage prepaid, or sent by facsimile machine to that person a statement of the amount necessary to discharge the debt secured by the deed of trust. The statement must set forth:
54. The amount of money necessary to discharge the debt secured by the deed of trust on the date the statement is prepared by the beneficiary; and
55. . The information necessary to determine the amount of money required to discharge the debt on a per diem basis for a period, not to exceed 30 days, after the statement is prepared by the beneficiary.
NRS 107.220 Persons authorized to request statement from beneficiary; proof of identity of successor in interest.
56. 1. A statement described in NRS 107.200 or 107.210 may be requested by:
57. (a) The grantor of, or his successor in interest in, the property which is the subject of the deed of trust;
58. (b) A person who has a subordinate lien or encumbrance of record on the property which is secured by the deed of trust;
59. (c) A title insurer; or
60. (d) An authorized agent of any person described in paragraph (a), (b) or (c).
61. A written statement signed by any person described in paragraph (a), (b) or (c) which appoints a person to serve as his agent if delivered personally to the beneficiary or delivered by mail, return receipt requested, is proof of the identity of an agent.
62. 2. For the purposes of paragraph (a) of subsection 1, a policy of title insurance, preliminary report issued by a title company, certified copy of letters testamentary or letters of guardianship, or an original or photographic copy of a deed, if delivered personally to the beneficiary or delivered by mail, return receipt requested, is proof of the identity of a successor in interest of the grantor, if the person demanding the statement is named as successor in interest in the document.
63. NRS 107.230 Proof of authorization to request statement. A beneficiary may, before mailing a statement described in NRS 107.200 or 107.210, require the person who requested the statement to prove that he is authorized to request that statement pursuant to NRS 107.220. If the beneficiary requires such proof, he must mail the statement within 21 days after he receives that proof from the requester.
64. NRS 107.240 Grounds for refusal to deliver statement. If the debt secured by a deed of trust for which a statement described in NRS 107.210 has been requested is subject to a recorded notice of default or a filed complaint commencing a judicial foreclosure, the beneficiary may refuse to deliver the statement unless the written request for the statement is received before the publication of a notice of sale or the notice of the date of sale established by a court.
65. NRS 107.250 Reliance upon accuracy of statement and amended statement; notification of amended statement; recovery of money by beneficiary if statement is deficient.
66. 1. A person who receives a statement pursuant to NRS 107.200 or 107.210 may rely upon the accuracy of the information contained in the statement. If the beneficiary notifies the person who requested the statement of any amendment to the statement, the amended statement may be relied upon by that person in the same manner as the original statement.
67. 2. If notification of an amendment to a statement is not given in writing, a written amendment to the statement must be delivered to the person who requested the original statement not later than the next business day after notification.
68. 3. If a statement prepared by the beneficiary pursuant to NRS 107.200 does not contain the entire amount necessary to discharge the debt secured by the deed of trust and:
69. (a) A transaction has occurred which has resulted in the transfer of title or recordation of a lien; or
70. (b) A trustee’s sale or a sale supervised by a court has taken place,
71. the beneficiary may recover that money as an unsecured debt of the grantor pursuant to the terms of the note.
72. NRS 107.260 Copy of note or deed of trust for authorized requester. If a person who is authorized pursuant to NRS 107.220 to request a statement described in NRS 107.200 or 107.210 includes in his request for such a statement a request for a copy of the note or deed of trust, the beneficiary shall mail a copy of the note or deed of trust with the statement at no additional charge.
73. NRS 107.270 Address to which request for statement must be mailed. If the beneficiary has more than one place of business, a request for a statement described in NRS 107.200 or 107.210 must be made to the address to which the periodic payments under the note are made. If no periodic payments are made under the note, the request must be mailed to the address of the beneficiary listed on the note or deed of trust.
74. NRS 107.280 Debt to which information contained in statement is applicable. Except as otherwise provided in a statement described in NRS 107.200 or 107.210, the information contained in the statement applies only to the debt secured by the deed of trust which is payable at the address to which the periodic payments are made. If periodic payments are not made under the note, the statement applies only to the entire debt secured by the deed of trust.
75. NRS 107.290 Unclear request for statement deemed to be request for amount necessary to discharge debt. If a person requests a statement described in NRS 107.200 or 107.210 and it is not clear from the request which statement is requested, the request shall be deemed a request for a statement of the amount necessary to discharge the debt secured by a deed of trust.
76. NRS 107.300 Penalty for failure to deliver statement; bar to recovery of certain damages.
77. 1. A beneficiary who willfully fails to deliver a statement requested pursuant to NRS 107.200 or 107.210 within 21 days after it is requested is liable to the person who requested the statement in an amount of $300 and any actual damages suffered by the person who requested the statement.
78. 2. A judgment awarded to a person who requested a statement pursuant to NRS 107.200 or 107.210 for failure to deliver a statement bars recovery of damages for any other failure to deliver that statement pursuant to a demand made within 6 months before or after the demand for which the judgment was awarded.
79. 3. As used in this section, “willfully” means an intentional failure to comply with the requirements of NRS 107.200 or 107.210 without just cause.
80. NRS 107.310 Fee for furnishing statement. The beneficiary may charge a fee of not more than $60 for each statement furnished pursuant to NRS 107.200 or 107.210.
81. NRS 107.311 Applicability of NRS 107.310. The provisions of NRS 107.310 do not apply to deeds of trust insured by the Federal Housing Administrator or guaranteed by the Secretary of Veterans Affairs.
How a Notice Should Look Like?
YOU ARE IN DANGER OF LOSING YOUR HOME!
Your home loan is being foreclosed. In 60 days your home will be sold and you will be forced to move. For help, call:
Consumer Credit Counseling _______________
The Attorney General __________________
The Division of Financial Institutions ________________
Legal Services ______________________
Your Lender ___________________
Nevada Fair Housing Center ________________