Month: April 2021

Black letter Nevada law: Anti- foreclosure fraud

AB 284 (2011) Summary

Link to AB 284 (2011) Summary and Legislative Digest
Link to Robin Wright’s publication “Complying with AB 284“

 NRS 205.395  False representation concerning title; penalties; civil action.

Penalties for recording false claims to title

 NRS 205.395 False representation concerning title; penalties; civil action.

      1.  Every person who:

      (a) Claims an interest in, or a lien or encumbrance against, real property in a document that is recorded in the office of the county recorder in which the real property is located and who knows or has reason to know that the document is forged or groundless, contains a material misstatement or false claim or is otherwise invalid;

      (b) Executes or notarizes a document purporting to create an interest in, or a lien or encumbrance against, real property, that is recorded in the office of the county recorder in which the real property is located and who knows or has reason to know that the document is forged or groundless, contains a material misstatement or false claim or is otherwise invalid; or

      (c) Causes a document described in paragraph (a) or (b) to be recorded in the office of the county recorder in which the real property is located and who knows or has reason to know that the document is forged or groundless, contains a material misstatement or false claim or is otherwise invalid,

Ê has made a false representation concerning title.

      2.  A person who makes a false representation concerning title in violation of subsection 1 is guilty of a category C felony and shall be punished as provided in NRS 193.130.

      3.  A person who engages in a pattern of making false representations concerning title is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 3 years and a maximum term of not more than 20 years, or by a fine of not more than $50,000, or by both fine and imprisonment.

      4.  In addition to the criminal penalties imposed for a violation of this section, any person who violates this section is subject to a civil penalty of not more than $5,000 for each violation. This penalty must be recovered in a civil action, brought in the name of the State of Nevada by the Attorney General. In such an action, the Attorney General may recover reasonable attorney’s fees and costs.

      5.  Except as otherwise provided in this subsection, the owner or holder of the beneficial interest in real property which is the subject of a false representation concerning title may bring a civil action in the district court in and for the county in which the real property is located to recover any damages suffered by the owner or holder of the beneficial interest plus reasonable attorney’s fees and costs. The owner or holder of the beneficial interest in the real property must, before bringing a civil action pursuant to this subsection, send a written request to the person who made the false representation to record a document which corrects the false representation. If the person records such a document not later than 20 days after the date of the written request, the owner or holder of the beneficial interest may not bring a civil action pursuant to this subsection.

      6.  As used in this section:

      (a) “Encumbrance” includes, without limitation, a lis pendens or other notice of the pendency of an action.

      (b) “Pattern of making false representations concerning title” means one or more violations of a provision of subsection 1 committed in two or more transactions:

             (1) Which have the same or similar pattern, purposes, results, accomplices, victims or methods of commission, or are otherwise interrelated by distinguishing characteristics;

             (2) Which are not isolated incidents within the preceding 4 years; and

             (3) In which the aggregate loss or intended loss is more than $250.

      [1911 C&P § 441; RL § 6706; NCL § 10394] — (NRS A 2011, 338, 1748; 2015, 1358)

 NRS 205.395 False representation concerning title; penalties; civil action.

Increased penalties for a pattern of deceit

NRS 205.377  Multiple transactions involving fraud or deceit in course of enterprise or occupation; penalty. [Effective July 1, 2020.]

      1.  A person shall not, in the course of an enterprise or occupation, knowingly and with the intent to defraud, engage in an act, practice or course of business or employ a device, scheme or artifice which operates or would operate as a fraud or deceit upon a person by means of a false representation or omission of a material fact that:

      (a) The person knows to be false or omitted;

      (b) The person intends another to rely on; and

      (c) Results in a loss to any person who relied on the false representation or omission,

Ê in at least two transactions that have the same or similar pattern, intents, results, accomplices, victims or methods of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated incidents within 4 years and in which the aggregate loss or intended loss is more than $1,200.

      2.  Each act which violates subsection 1 constitutes a separate offense.

      3.  A person who violates subsection 1 is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 20 years, and may be further punished by a fine of not more than $10,000.

      4.  In addition to any other penalty, the court shall order a person who violates subsection 1 to pay restitution.

      5.  A violation of this section constitutes a deceptive trade practice for the purposes of NRS 598.0903 to 598.0999, inclusive.

      6.  As used in this section, “enterprise” has the meaning ascribed to it in NRS 207.380.

      (Added to NRS by 2009, 143; A 2011, 168; 2019, 4434, effective July 1, 2020)

NRS 205.377  Multiple transactions involving fraud or deceit in course of enterprise or occupation; penalty. [Effective July 1, 2020.]

Mortgage lending fraud: penalties are defined & civil action by owner is authorized

NRS 205.372  Mortgage lending fraud; penalties; civil action. [Effective January 1, 2020.]

      1.  A person who is a participant in a mortgage lending transaction and who:

      (a) Knowingly makes a false statement or misrepresentation concerning a material fact or knowingly conceals or fails to disclose a material fact;

      (b) Knowingly uses or facilitates the use of a false statement or misrepresentation made by another person concerning a material fact or knowingly uses or facilitates the use of another person’s concealment or failure to disclose a material fact;

      (c) Receives any proceeds or any other money in connection with a mortgage lending transaction that the person knows resulted from a violation of paragraph (a) or (b);

      (d) Conspires with another person to violate any of the provisions of paragraph (a), (b) or (c); or

      (e) Files or causes to be filed with a county recorder any document that the person knows to include a misstatement, misrepresentation or omission concerning a material fact,

Ê commits the offense of mortgage lending fraud which is a category C felony and, upon conviction, shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment.

      2.  A person who engages in a pattern of mortgage lending fraud or conspires or attempts to engage in a pattern of mortgage lending fraud is guilty of a category B felony and, upon conviction, shall be punished by imprisonment in the state prison for a minimum term of not less than 3 years and a maximum term of not more than 20 years, or by a fine of not more than $50,000, or by both fine and imprisonment.

      3.  Each mortgage lending transaction in which a person violates any provision of subsection 1 constitutes a separate violation.

      4.  Except as otherwise provided in this subsection, if a lender or any agent of the lender is convicted of the offense of mortgage lending fraud in violation of this section, the mortgage lending transaction with regard to which the fraud was committed may be rescinded by the borrower within 6 months after the date of the conviction if the borrower gives written notice to the lender and records that notice with the recorder of the county in which the mortgage was recorded. A mortgage lending transaction may not be rescinded pursuant to this subsection if the lender has transferred the mortgage to a bona fide purchaser.

      5.  The Attorney General may investigate and prosecute a violation of this section.

      6.  In addition to the criminal penalties imposed for a violation of this section, any person who violates this section is subject to a civil penalty of not more than $5,000 for each violation. This penalty must be recovered in a civil action, brought in the name of the State of Nevada by the Attorney General. In such an action, the Attorney General may recover reasonable attorney’s fees and costs.

      7.  The owner or holder of the beneficial interest in real property which is the subject of mortgage lending fraud may bring a civil action in the district court in and for the county in which the real property is located to recover any damages suffered by the owner or holder of the beneficial interest plus reasonable attorney’s fees and costs.

      8.  As used in this section:

      (a) “Bona fide purchaser” means any person who purchases a mortgage in good faith and for valuable consideration and who does not know or have reasonable cause to believe that the lender or any agent of the lender engaged in mortgage lending fraud in violation of this section.

      (b) “Mortgage lending transaction” means any transaction between two or more persons for the purpose of making or obtaining, attempting to make or obtain, or assisting another person to make or obtain a loan that is secured by a mortgage or other lien on residential real property. The term includes, without limitation:

             (1) The solicitation of a person to make or obtain the loan;

             (2) The representation or offer to represent another person to make or obtain the loan;

             (3) The negotiation of the terms of the loan;

             (4) The provision of services in connection with the loan; and

             (5) The execution of any document in connection with making or obtaining the loan.

      (c) “Participant in a mortgage lending transaction” includes, without limitation:

             (1) A borrower as defined in NRS 598D.020;

             (2) An escrow agent as defined in NRS 645A.010;

             (3) A foreclosure consultant as defined in NRS 645F.320;

             (4) A foreclosure purchaser as defined in NRS 645F.330;

             (5) An investor as defined in NRS 645B.0121;

             (6) A lender as defined in NRS 598D.050;

             (7) A loan modification consultant as defined in NRS 645F.365;

             (8) A mortgage loan originator as defined in NRS 645B.0125;

             (9) A mortgage company as defined in NRS 645B.0127; and

             (10) A mortgage servicer as defined in NRS 645F.063.

      (d) “Pattern of mortgage lending fraud” means one or more violations of a provision of subsection 1 committed in two or more mortgage lending transactions which have the same or similar purposes, results, accomplices, victims or methods of commission, or are otherwise interrelated by distinguishing characteristics.

      (Added to NRS by 2007, 2850; A 2009, 1462; 2011, 336, 1748; 2015, 2811; 2017, 3093, effective January 1, 2020)

NRS 205.372  Mortgage lending fraud; penalties; civil action. [Effective January 1, 2020.]

Black letter Nevada law: Racketeering

Racketeering leading up to the foreclosure of 2763 White Sage and the aftermath

NRS 207.360       “Crime related to racketeering” defined.

9.  Taking property from another under circumstances not amounting to robbery

      18.  Grand larceny;

      26.  Receiving, possessing or withholding stolen goods valued at $650 or more;

      29.  Perjury or subornation of perjury;

      30.  Offering false evidence;

      35.  Any violation of NRS 205.377;

Implicated provisions of NRS 207.360
NRS 207.400       Unlawful acts; penalties.

1.  It is unlawful for a person:

      (a) Who has with criminal intent received any proceeds derived, directly or indirectly, from racketeering activity to use or invest, whether directly or indirectly, any part of the proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of:

             (1) Any title to or any right, interest or equity in real property; or

             (2) Any interest in or the establishment or operation of any enterprise.

      (b) Through racketeering activity to acquire or maintain, directly or indirectly, any interest in or control of any enterprise.

      (c) Who is employed by or associated with any enterprise to conduct or participate, directly or indirectly, in:

             (1) The affairs of the enterprise through racketeering activity; or

             (2) Racketeering activity through the affairs of the enterprise.

      (d) Intentionally to organize, manage, direct, supervise or finance a criminal syndicate.

      (e) Knowingly to incite or induce others to engage in violence or intimidation to promote or further the criminal objectives of the criminal syndicate.

      (f) To furnish advice, assistance or direction in the conduct, financing or management of the affairs of the criminal syndicate with the intent to promote or further the criminal objectives of the syndicate.

      (g) Intentionally to promote or further the criminal objectives of a criminal syndicate by inducing the commission of an act or the omission of an act by a public officer or employee which violates his or her official duty.

      (h) To transport property, to attempt to transport property or to provide property to another person knowing that the other person intends to use the property to further racketeering activity.

      (i) Who knows that property represents proceeds of, or is directly or indirectly derived from, any unlawful activity to conduct or attempt to conduct any transaction involving the property:

             (1) With the intent to further racketeering activity; or

             (2) With the knowledge that the transaction conceals the location, source, ownership or control of the property.

      (j) To conspire to violate any of the provisions of this section.

      2.  A person who violates this section is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 5 years and a maximum term of not more than 20 years, and may be further punished by a fine of not more than $25,000.

      3.  As used in this section, “unlawful activity” has the meaning ascribed to it in NRS 207.195.

      (Added to NRS by 1983, 1496; A 1995, 1241; 2009, 145)

NRS 207.400
NRS 207.520           Limitation of actions.

A criminal action or proceeding under NRS 205.322 or 207.400 may be commenced at any time within 5 years after the conduct in violation of the section occurs. Except as otherwise provided in NRS 217.007, a civil action or proceeding under NRS 207.470 may be commenced at any time within 5 years after the violation occurs or after the injured person sustains the injury, whichever is later. If a criminal prosecution or civil action or other proceeding is brought to punish, prevent or restrain any violation of the provisions of NRS 205.322 or 207.400, the running of the period of limitations prescribed by this section with respect to any cause of action arising under NRS 207.470, which is based in whole or in part upon any matter complained of in the prosecution or proceeding, is suspended during the pendency of the prosecution or proceeding and for 2 years following termination of the prosecution or proceeding.

NRS 207.520

     

Civil Action to claim damages resulting from racketeering

NRS 207.470  Civil actions for damages resulting from racketeering.

      1.  Any person who is injured in his or her business or property by reason of any violation of NRS 207.400 has a cause of action against a person causing such injury for three times the actual damages sustained. An injured person may also recover attorney’s fees in the trial and appellate courts and costs of investigation and litigation reasonably incurred. The defendant or any injured person in the action may demand a trial by jury in any civil action brought pursuant to this section. Any injured person has a claim to forfeited property or the proceeds derived therefrom and this claim is superior to any claim the State may have to the same property or proceeds if the injured person’s claim is asserted before a final decree is issued which grants forfeiture of the property or proceeds to the State.

      2.  A final judgment or decree rendered in favor of the State in any criminal proceeding under NRS 205.322 or 207.400 estops the defendant in any subsequent civil action or proceeding from denying the essential allegations of the criminal offense.

      3.  Any civil action or proceeding under this section must be instituted in the district court of the State in the county in which the prospective defendant resides or has committed any act which subjects him or her to criminal or civil liability under this section or NRS 205.322, 207.400 or 207.460.

      4.  Any civil remedy provided pursuant to this section is not exclusive of any other available remedy or penalty.

      (Added to NRS by 1983, 1501)

      NRS 207.480  Order of court upon determination of civil liability.  A district court may, following a determination of civil liability under NRS 207.470 or 207.490, take such actions as it deems proper, including ordering the defendant to pay all costs and expenses of the proceedings.

      (Added to NRS by 1983, 1502)