Archive for the ‘Uncategorized’ Category

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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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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