REPLEVIN/CLAIM AND DELIVERY IN NEVADA

While the vast majority of customers undoubtedly enter into a purchase agreement or lease fully intending to make all the scheduled payments for the car, the equipment, or some other item of personal property, the reality is that some of those purchasers are going to default . In those situations, a secured party or lessor can often recover their “collateral” themselves through a “self-help” repossession – they find the car on the street and send out a repossession agent to recover the vehicle. However, self-help repossession can only be used if the “repo” can be performed without a “breach of the peace.” That effectively means that if a vehicle or other piece of equipment is found indoors, is behind a fence, or is garaged, it is beyond the scope for a normal self-help repo.

In such situations (and in situations where the location of the collateral or the delinquent customer is unknown), a secured creditor or lessor must turn to a judicial action known most commonly as “replevin.” An action for replevin (in Nevada referred to as an action for Claim and Delivery), is a judicial action where the secured creditor or lessor files a lawsuit for breach of contract or breach of lease and, concurrently, asks the court to issue a pre-judgment writ of possession/replevin authorizing the sheriff or constable to enter a garage or structure or fenced area and seize the collateral. The Law Office of Hayes & Welsh has years of experience in recovering personal property via replevin or claim and delivery and dealing with courts and the constables/sheriffs who execute on the writs.

What happens, however, if the vehicle is not in the garage or the equipment has been removed to some other unknown location? For years many secured creditors have simply proceeded to get a money judgment on the unpaid balance due on the loan (effectively abandoning the collateral) and tried to collect the delinquent amount from the debtor (often with limited success). They do not need to choose one path over the other. Secured creditors and lessors do not need to abandon recourse to their collateral in favor of a money judgment alone. Nevada law allows secured creditors and lessors to obtain a final money judgment and final judgment for replevin so that they can execute on their collateral if they eventually locate it. The Law Office of Hayes & Welsh has successfully employed this strategy in situations where the collateral (and even the debtor) cannot be found. You don’t need to abandon hidden collateral in favor of a money judgment alone.

The attorneys at Law Office of Hayes & Welsh are experienced at representing secured creditors and lessors throughout the replevin process in Nevada, including coordinating with the constable and sheriffs who will execute on any writ. Give us a call today to discuss your situation and the best course of action for you.

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Exceptions to Discharge Under 11 U.S.C. section 523

If you are owed money by a debtor who files bankruptcy, you may still be able to collect the money by preventing the debt from being discharged in the bankruptcy. 11 U.S.C. section 523(a) contains a number of exceptions to discharge which apply to individual debtors (but not corporate debtors). Some common exceptions to discharge include: Debts for money, property, services, or an extension, renewal or refinancing of credit if obtained by false pretenses, a false representation or actual fraud or the use of a materially false statement regarding the debtor’s financial condition (11 U.S.C. section 523(a)(2)); Debts for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny (11 U.S.C. section 523(a)(4)); Debts for a domestic support obligations (11 U.S.C. section 523(a)(5)); Debts for willful and malicious injury by the debtor to another entity or the property of another entity (11 U.S.C. section 523(a)(6)); Certain debts to financial institutions (11 U.S.C. section 523(a)(11) and (12)); and, Debts to a spouse, former spouse, or child of the debtor that are incurred during the course of a divorce or separation (11 U.S.C. section 523(a)(15)).

It is important to remember that there are strict deadlines for filing a complaint for non-dischargeability in the bankruptcy action. For example, 11 U.S.C. section 523(c) states that debts under 11 U.S.C. section 523(a)(2), (a)(4), and (a)(6) will be automatically discharged unless the creditor files a complaint for non-dischargeability before the deadline. Federal Rule of Bankruptcy Procedure sets the deadline for the filing of a non-dischargeability action under 11 U.S.C. section 523(c) as 60 days after the first date set for the meeting of creditors under section 341(a). This deadline is strictly applied by the bankruptcy court and exceptions are rare.

The attorneys at Law Office of Hayes & Welsh are experienced at representing creditors throughout the course of bankruptcy proceedings, including by filing motions for relief from the automatic stay and complaints for non-dischargeability. Give us a call today to discuss your situation and the best course of action for you.

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2017 Nevada Legislature Changes Venue Statute


The 2017 Nevada Legislature changed the state statute (NRS Chapter 13) related to venue. Venue is a term describing where in a jurisdiction, in this case Nevada, a legal action can or should be filed. The Legislature expands through Assembly Bill 102, subject to other consumer protection laws where a civil action can be filed, but allows a defendant in a civil action to object to the venue. Hayes and Welsh has experience handling civil matters in courts throughout Nevada. We can advise our clients on both the law and the strategy for selecting the venue for an action.

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Wage Garnishments Extended from 120 Days to 180 Days

On June 3, 2017, Nevada Senate Bill 230 was passed and signed into law. The most exciting part of this bill is that beginning on October 1, 2017, writs of garnishment for wages are now effective for 180 days, when previously they were only effective for 120 days. This will lock in a creditor’s right to garnish a debtor’s wages for an additional 60 days each time a writ of garnishment is served. The writ of garnishment will now only need to be renewed twice a year.

Are you ready to execute on a judgment? Our firm is experienced in all forms of judgment execution, including garnishment of wages and bank accounts, and the sale of real property through a sheriff sale. If you do not yet have a Nevada judgment, we can help. We are experienced at obtaining Nevada judgments and domesticating foreign state judgments to Nevada.

Megan K. Mayry McHenry, Esq.
Attorney

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July Bar Exam Results Released

The July 2017 exam results were released on Tuesday, October 10. The unofficial pass rate is 66 percent. Congratulations to all who passed. Swearing-in ceremonies will be held in Reno onWednesday, October 18, at 3:30 p.m. at the Washoe County Administrative Complex, 1001 East 9th Street, with a reception following, hosted by the Washoe County Bar Association. A ceremony will be held in Las Vegas on Friday, October 20, at 3:30 p.m. at the Las Vegas City Hall Council Chambers, 495 South Main Street. The Nevada Supreme Court and Clark County Bar Association will host a reception at Las Vegas City Hall immediately following the ceremony.

The Historic 5th Street School was formerly known as the Las Vegas Grammar School. It is located on Las Vegas Boulevard (formerly 5th Street). Having recently been renovated, it now hosts a variety of cultural, art and architectural events.

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#VegasStrong

#VegasStrong

October 1, 2017 was a tragic day in Las Vegas, and our thoughts and prayers go out to the families and victims of the Route 91 concert shooting. We hope for a complete recovery of those who are injured. We are so proud to be members of the Las Vegas community, and have seen the true strength and unity that exists here over the past several days. We are #VegasStrong.

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Supreme Court names Guardianship Commission members

Supreme Court Names Guardianship Commission Members
The Nevada Supreme Court has selected 20 Nevadans to serve on the Permanent Guardianship Commission established by the court. Justice James W. Hardesty was named the chairperson of the permanent commission. The commission is made up of judges, private and public guardians, lawyers and statewide representatives.
The commission will make recommendations to the Nevada Supreme Court for statewide rules to aid in administering guardianship cases pursuant to Nevada Revised Statutes Chapter 159, and provide review and oversight for the implementation of new laws enacted during the 2017 Legislature to reform Nevada’s guardianship statutes.
The Commission to Study the Administration of Guardianships in Nevada’s Courts proposed seven major reforms to Nevada’s guardianship statutes, resulting in five bills approved in the Legislature and signed by Governor Brian Sandoval.
Enacted by legislation were: Creation of a State Guardianship Compliance Office in the Administrative Office of the Courts, with investigators and accountants to review the administration of guardianship cases; a Guardianship Bill of Rights; and mandatory appointment of legal counsel.
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Joshua Tree blossoms.  Mojave Desert.

Gov. Sandoval Appoints Kathleen Drakulich to Second Judicial District Court
On June 30, Governor Brian Sandoval announced the appointment of Kathleen Drakulich to the Second Judicial District Court, Department 1. Drakulich will fill the vacancy created by Judge Janet Berry’s retirement earlier this year.
Drakulich is currently a partner at the law firm McDonald Carano, where she focuses on issues related to energy, environment, and natural resources. She started her career in the Washoe County District Attorney’s Office, where she served as a prosecutor. Drakulich has also served as assistant general counsel for Nevada’s largest electric service providers and as private counsel for Nevada’s largest energy users. She has also extensive experience in legislative and public policy matters. She received her Bachelor of Arts from the University of California, Berkeley and her Juris Doctorate from the University of the Pacific McGeorge School of Law.
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Many of the laws adopted and enacted by the states are promulgated and updated by the Uniform Law Commission. The ULC website provides helpful information not only about longtime statutes, such as the Uniform Enforcement of Foreign Judgments Act and the UCC, but some that have recently been adopted. The following FAQ from the ULC website describes this role:

What is the Uniform Law Commission?

For more than a century, the Uniform Law Commission (ULC) has served the states and their citizens by drafting state laws on subjects on which uniformity across the states is desirable and practicable. It is a nonprofit unincorporated association comprised of state commissioners from each state, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.

Now in its 122nd year, the ULC is the nation’s oldest state governmental association. A nonpartisan, volunteer organization, the ULC is the source of more than 300 acts that secure uniformity of state law when differing laws would undermine the interests of citizens throughout the United States.

How are Uniform Law Commissioners Appointed?

Every ULC commissioner must be an attorney. Each jurisdiction determines the method of appointment and its number of commissioners. In most states, the governor appoints the state’s commissioners to serve a specified term. In a few states, ULC commissioners serve at the will of the appointing authority and have no specific term.

ULC commissioners are volunteers who do not receive salaries or other compensation for their public service.

What is a Uniform State Law?

The Uniform Law Commission drafts uniform laws for the states to consider and enact. A uniform act is one that seeks to establish the same law on a subject among the various jurisdictions. When the term “uniform” is used in the nation’s laws, it is highly likely that the ULC drafted the act.

The ULC also promulgates “model” acts. An act may be designated as “model” if the act’s principal purposes can be substantially achieved even if the act is not adopted in its entirety by every state.

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The Nevada Legislature is currently in session. The Legislature has an excellent website that makes researching and tracking pending legislation very easy. To research and track legislation, the website is: https://www.leg.state.nv.us.

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