Archive for the ‘Uncategorized’ Category

Senate Bill 1 provides for pre-eviction mediation

The Nevada Legislature met in special session July and August to consider legislation related to the Covid-19 pandemic.  Senate Bill 1 was introduced, passed by both houses and signed by the Governor.  Anticipating a wave of evictions in September, the Legislature will require mediation as a condition to eviction.  SB 1 amends current state law as follows:

“If the Supreme Court or a district court or  justice court
establishes by rule an expedited program of alternative dispute
resolution concerning the eviction of a tenant of any dwelling unit, apartment, mobile home, recreational vehicle or part of a low-
rent housing program operated by a public housing authority, any such eviction
proceedings pursuant to this chapter may be
stayed for not more than 30 days to facilitate the program of
alternative dispute resolution.”
Tenants and Landlords should understand and utilize in good faith this mediation
process when it is fully implemented.  Effective mediation allows landlords to maintain a
tenant and avoid expenses related to releasing the property.  Tenants who attempt to
resolve back rent  payment issues through mediation can avaid the hardships associated
with eviction.  Like any medition, both parties must be willing to compromise.  An
experienced and trained
mediator can help both sides reach a resolution.
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Courthouse to be named for Justice Hardesty

The new Nevada Supreme Court and Court of Appeals Courthouse in Las Vegas at 4th and Clark will be named for Justice Hardesty.  Justice Hardesty has served many years on the Court and has been active in working to improve Court operations.

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Attorney Larson Welsh a Superlawyer

Hayes and Welsh attorney Larson Welsh has been voted as a Superlawyer.  Larson was selected as a 2020 Rising Star in the area of representing creditors.  Congratulations Larson!

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In Rodriguez v. Fiesta Palms, LLC, Case No. 72098, 134 Nev. Adv. Op. 78 (Oct. 4, 2018), the Nevada Supreme Court upheld a district court order denying a motion to set aside the judgment under NRCP 60(b). After repeated warnings to the pro se plaintiff by the court that he needed to respond to motions filed by the defendant, the district court judge granted the defendant’s motion to dismiss. Id. At *2. Plaintiff waited five months and three weeks to file a motion to set aside the dismissal under NRCP 60(b). Id. At *3. The Nevada Supreme Court found that the district court had considered the factors set forth in Yochum v. Davis, 98 Nev. 484, 486, 653 P.2d 1215, 1216 (1982), and concluded that they favored denial of Plaintiff’s motion. Id. at *3. Even though the motion was filed less than 6 months after the dismissal order, the district court found that the plaintiff did not act promptly, exhibited a pattern of repeated continuances, and was apprised of the procedural requirements. Id. at *4 – 6. The Nevada Supreme Court afforded “wide discretion” to the district court and concluded that no abuse of discretion took place. Id. at *6.

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In Soro v. The Eighth Judicial District Court, 133 Nev., Adv. Op. 107, Case No. 72086 (Dec. 28, 2017), the Nevada Supreme Court addressed the application of the anti-deficiency statutes of other states in Nevada deficiency actions. Soro involved a deficiency action for commercial real property located in Nevada; however, the promissory note specified that Utah law governed the agreement and loan documents. Nevada’s anti-deficiency statute allows a deficiency action to be filed within six months of the foreclosure sale, but Utah’s anti-deficiency statute requires that suit be filed within three months of the foreclosure sale. The lawsuit was filed in Nevada six months after the foreclosure sale, and the debtor filed a motion to dismiss as a result. Although the parties agreed that Utah law governed the deficiency action, the Utah Supreme Court had already determined that the Utah anti-deficiency statute did not apply extraterritorially. Therefore, the Nevada anti-deficiency statute applied rather than the Utah anti-deficiency statute, and the motion to dismiss was properly denied by the district court. Soro affirmed and clarified the Nevada Supreme Court’s prior decision in Key Bank of Alaska v. Donnels, 106 Nev. 49, 787 P.2d 382 (1990), holding that before an anti-deficiency statute can be applied extraterritorially, the Court must determine whether the statute was intended to be applied extraterritorially.

Megan K. Mayry McHenry, Esq.

Attorney

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NRCP 68 Offers of Judgment and Claim Preclusion

On October 5, 2017, in Mendenhall v. Tassinari, Case No. 68053, the Nevada Supreme Court answered the question of whether claim preclusion bars a party from subsequently filing claims based on fraud discovered during the ten-day irrevocable period for an offer of judgment. The Court held that claim preclusion would apply if the three-part test for claim preclusion set forth in Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1054, 194 P.3d 709, 713 (2008) is met: (1) the parties or their privies are the same; (2) the final judgment is valid; and, (3) the subsequent action is based on the same claims or any part of them were or could have been brought in the first case. The Court in Mendenhall found that claim preclusion did apply based on the three-part test and the fact that the offer of judgment was timely accepted. The Court held that the proper avenue for relief in such a situation is through the filing of a NRCP 60(b) motion for relief from a final judgment or order, as alluded to in Nava v. Second Judicial District Court, 118 Nev. 396, 46 P.3d 60 (2002). Unfortunately, the appellant/defendant failed to file a NRCP 60(b) motion after the offer of judgment was accepted. The Court noted that claim preclusion may not apply if the offer of judgment does not “evince an intent by the parties to prevent a broad set of claims from being raised in a second action.” Unfortunately for appellants/defendants, the Court found that the broad wording of the offer of judgment evinced an intent for the offer to apply broadly to “any related or potential claims” that could have been asserted “between and among” the parties.

Megan K. Mayry McHenry, Esq.

Attorney

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The Nevada Supreme Court, in an expedited review, determined that the press does have a right to obtain autopsy reports of victims of the October 1 Las Vegas shooting. The Court held:

“While we are deeply sympathetic to the decedent’s family’s privacy concerns, the First Amendment does not permit a court to enjoin the press from reporting on a redacted autopsy report already in the public domain,”

Click Here to read the full Review Journal Article

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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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