IMAG0383[1]

The Nevada Supreme Court has ruled in:

LAND BARON INVESTMENTS, INC. vs. BONNIE SPRINGS 131 Nev., Advance Opinion 69

The holding confirms a 1993 case, Mackintosh v. Jack Matthews & Co., 109 Nev. 628, 633, 855 P.2d 549, 552 (1993). -“Nondisclosure arises where a seller is aware of materially adverse facts that “could not be discovered by the buyer” after diligent inquiry” – IN OTHER WORDS, if buyer is able to discover a material fact on its own, a seller does not have a duty to disclose it. In this case specifically the allegation was that a seller was a aware of a defect, that the buyer discovered during escrow.  The Court’s take on this was “..even if the Seller had known about these facts and not disclosed them, there would still be no viable nondisclosure claim because the facts were discoverable and the Buyer had an equal opportunity to discover those facts before closing.”

IMAG1702NRS 40 Does Not Limit Lenders’ Right to Sue Homeowners Even When the Note was Discounted on the Secondary Market.

In 2011 the Nevada Legislature passed A.B. 273.  One of the hot topics was how much a lender could sue a borrower for; if that lender purchased the note from a previous lender at a discounted price.  The discussion of the day (back in the summer of ’11) was that the current lender (who bought the note from a prior lender), pursuing the borrower was capped at the amount the suing bank paid to take over the loan. This seemed to be a protection for borrowers. There were numerous cases in the Nevada District System (Trial Level) that ruled in this way, in favor of the borrower, enforcing a cap. Basically the borrower was held to only be liable for what the current lender paid to buy the discounted note, which could be pennies on the dollar.

On December 24, 2014 the Nevada Supreme Court ruled that the language, ‘limited to the amount of the consideration paid by the bank,’ does not speak to the amount a bank or investor pays to buy the note, removing the cap. So, if bank 1 lends $400,000 and sells the note for pennies, say for $10,000 to bank 2, bank 2 can recoup the entire value of money lent or $400,000.  Many District Court cases were ruling that the deficiency was capped at the amount bank 2 paid to take over the loan.  No more.

The Supreme Court of Nevada stated:

“We therefore hold that NRS 40.451 does not in and of itself set an assignor-assignee, consideration-based limit on FFB’s recovery against respondents.”  First Fin. Bank v. Lane  339 P.3d 1289, 1294 (Nev.,2014) 

OTHER POSTS ON DEBT

Income Taxes & Foreclosure/Short Sales 2014 Update (12.17.2014)

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

OTHER SHORT SALE POSTS

7 Tips for Short Sale

Addendum to Short Sale Listing 1.26.2010

Advance Fees Continued and the FTC 1.6.2011

Advance Fees – Short Sales – FTC II 5.4.2011

Charging for negotiating short sales/Negotiators 10.1.2010

Deficiency Judgments Nevada 4.27.2007

Foreclosure and the One Action Rule in Nevada 4.10.2007

HAMP the Federal Shortsale Program coming April 2010

Income Taxes & Foreclosures/Shortsales 12.21.2007

IRS PUBLICATIONS shortsales/foreclosures:

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

Judicial Foreclosures (Short sales are looking more attractive..) 3.23.2012

Lender Short Sale Approval Addendum

Nevada Home Owner’s Bill of Rights (Foreclosure/Short Sale/Judicial Foreclosure)

Nevada Supreme Court Mandatory Mediation Program and How it Affects Shortsale

Nevada Short Sale Documents

Seller Being Released From Liability Language in Shortsale

Seller Liability After Short Sale 4.20.2007

Short Sale Advanced Fees

Short Sale Addendum to Purchase Agreement October 2010

Short Sales and Bankruptcy and Waiting Periods 10.5.2012

Short Sale – “Dual Tracking” and the Homeowner’s Bill of Rights in Nevada May 2013

Short Sale Junior Lien/Senior Liens Rights To Sue & Other Changes

Short Sale Wallet Size Answer Sheet

Questions? email me darren@dwelshlaw.com

IMAG0516_1_1[1]

There are now Four (4) Elements to Constructive Eviction in Nevada for Commercial Leases.

First, the landlord must either act or fail to act. Yee v. Weiss, 110 Nev. 657, 660, 877 P.2d 510, 512 (1994).
Second, the landlord’s action or inaction must render “the whole or a substantial part of the premises unfit for occupancy for the purpose for which it was leased.” Id.
Third, the tenant must actually vacate the premises within a reasonable time. Schultz v. Provenzano, 69 Nev. 324, 328, 251 P.2d 294, 296 (1952).
Fourth, a commercial tenant alleging that it was constructively evicted must show, in addition to the three elements stated in Yee and Schultz, that it provided the landlord notice of and a reasonable opportunity to cure the defect. See, e.g., Home Rentals Corp., 602 N.E.2d at 863.

Supreme Court of Nevada.

MASON–MCDUFFIE REAL ESTATE, INC., A Nevada Corporation d/b/a Prudential Nevada Realty, Appellant, v. VILLA FIORE DEVELOPMENT, LLC, A Nevada Limited Liability Company, Respondent.

No. 61233.

Decided: October 2, 2014

– See more at: http://caselaw.findlaw.com/nv-supreme-court/1679919.html#sthash.GFdjLDVk.dpuf

THIS IS NOT THE SALE OF REAL PROPERTY,

 it is the sale of the Assessment levied against the Real Property.

 This Thursday May 29, 2008, at 11:00 a.m.

The sale will be held at the Clark County Government Center, Commission Chambers (500 S. Grand Central Parkway, Las Vegas, Nevada, 89106).

 Certificate Sale Listing of parcels  http://www.amgnv.com/viewdoc.asp?cat=13&id=75

 From Laura B. Fitzpatrick, Clark County Treasurer, Special Assessment – Frequently Asked Questions Lien Certificates, Revised:  11/04/05 Subject to change without notice

http://trweb.co.clark.nv.us/county/treas/sa_faq.htm

 What is a lien certificate?

A lien certificate is a Certificate of Sale note issued on a property that is sold for non payment of a special assessment.

How often does Clark County conduct sales on delinquent special assessments?

Clark County conducts sales on delinquent assessment parcels three (3) times a year. They are held the last weeks of January, May, and September.

How do you determine the amount of the Certificate of Sale note?

The note is sold for the principal amount of a delinquent assessment plus accrued interest, penalties and costs.  At the option of the County some notes may be sold for the delinquent installment amount plus accrued interest, penalties, and costs.

If I purchase a Certificate of Sale note, do I own the property?

No. You own a note on the property, for a specified redemption period, and earn interest for each month the note remains outstanding. At the end of the redemption period you may request the deed to the property. The buyer has no legal claim or obligations during the redemption period.

How do I obtain the deed to the property once I have purchased a Certificate of Sale?

Notice of the purchasers intention to request a deed to the property must be given to the property owner no earlier than 60 days prior to the end of the redemption period (120 days for vacant land, 2 years for improved property).  The property owner then has 60 days in which to redeem the property.

What if I purchase a Certificate that sells the installment only?

It is the buyers responsibility to keep check on what the next installment is due, because we will sell that delinquent installment as well if payment is not received.

Who can redeem the Certificate of Sale note?

The property owner and other major lien holders (i.e. mortgage company) may redeem the certificate of sale at any time during the redemption period. Payment must be in the form of cash, cashiers check, or money order.

Is the Certificate of Sale a public document?

The Certificate of Sale note is recorded with the Clark County Recorder’s office. The original note will be mailed to the buyer after it is recorded, by the Clark County Recorder.

Where are the sales held?

The Clark County Commission Chambers at the Government Center, 500 S. Grand Central Parkway, Las Vegas, Nevada.

Do I have to be present to purchase a lien or may I do it by mail?

Lien certificates are sold at public sale and you must be present. Should the note holder on a specific property be held by Clark County we are allowed to sell it “over the counter”.

How do I find out what parcels are available for the sale?

The available parcels will be posted to the Clark County Treasurer website, http://trweb.co.clark.nv.us/county/treas/sa_sale.htm at the beginning of the sale month. They will also be published in the Las Vegas Review Journal, one time each week, for the three consecutive weeks prior to the sale date. It should be noted that property owners, or their mortgage company, may bring the parcel current up to the day of the sale. On the sale date they may pay the assessment off before the time of the sale.

How do I purchase a Certificate of Sale note?

All interested parties must register to receive a bidder number. A random number computer program will select the winning bidder. A first and second alternate will also be selected for the parcel from the number selection. The sale will then continue with all bidders eligible for each parcel on the sale list.

What do I need to register to bid?

You must fill out the registration form presented to you and show a valid picture identification (driver’s license) with your current address.  The name on the bidder card is the name in which the certificate of sale will be recorded.  The winning bidder’s name must appear on the certificate although other names may be added. Registration takes place on the day of the sale, in front of the commission chambers.

Do I need to be present to register or may a friend register for me?

You must be present to register. We will not allow a friend or family member to register for you.

What happens if there are back taxes?

The buyer is not required to pay any delinquent property taxes at the time of the sale. Should the buyer wish to protect their interest in the property, they may pay the delinquent tax and have the amount added to the Certificate of Sale. Delinquent taxes must be paid before a deed will be issued on the property.

Will the County assist if a foreclosure is necessary?

No, the County does not assist with foreclosure proceedings.

If I win the purchase of a Certificate of Sale how long do I have to pay the purchase price?

Payment must be received by 10:00 a.m. the day following the sale. Payment must be in the form of cash, cashiers check, or money order made payable to the Clark County Treasurer.

What happens to the parcels that do not sell, or for which payment is not received, by the following day?

The buyer has until 10:00 a.m. the day following the sale to make payment on their purchase.. Parcels that have not been paid for will be offered to the first alternate at 10:01 a.m.. Payment must be made by 2:00 p.m. on that date. At 2:01 p.m., if the parcel has not been paid, the second alternate is called. Payment must be made by 5:00 p.m. that day. If the property has not been paid for or there is no interest in the property the Certificate of Sale will be issued in the name of Clark County. Clark County may then sell the note, over the counter, to any interested party for the sale amount plus 1% interest for each month that Clark County holds the note to the property.

What happens if I do not pay for a parcel after accepting the option?

If you accept an option on a parcel we consider that you have entered into a contract to pay for that parcel. We are currently discussing, with the District Attorney’s office, our options for failure to honor that contract.

Where do I find out information on other liens that may be on the parcels?

We advise you to research the Clark County Assessor and Clark County Recorder records for information on the properties. Your research should be completed prior to the sale date.

What is the length of the redemption period I must hold the note?

The redemption period for vacant land is 120 days and for improved property the redemption period is 2 years.

What is the interest rate I will earn on the note?

The interest rate is 1% per month (12% per annum) for each month the note remains outstanding.

What type of deed will I receive at the end of the redemption period?

Clark County will issue you an absolute deed, upon your request, at the end of the redemption period. Refer to Nevada Revised Statutes 361.585 and 361.590 for information on an absolute deed.

What happens if the property owner files bankruptcy?

Clark County makes every attempt not to sell a bankruptcy parcel. We recommend that you contact your attorney for any recourse you would have should the the property owner file bankruptcy after you have purchased the note.

Will there be additional costs to the buyer?

There are costs associated with the notification procedures to request the deed to the property. However, the County cannot determine what, if any, additional costs the buyer may incur. Reasonable costs may be added to the note (i.e. publication, process server, etc.), prior to the date of redemption, and will earn 1% interest from that date forward. It is the buyer’s responsibility to provide the Treasurer’s office with receipts of the costs.

Laura B. Fitzpatrick, Clark County Treasurer, Special Assessment – Frequently Asked Questions Lien Certificates, Revised:  11/04/05 Subject to change without notice