Category: Black letter law

Judge Peterson’s bias gifted the case to my opponents

Steven Scow filed the interpleader action knowing it was meritless

Link to previous blogs (ScaStrong.com/tag/interpleader) on how this interpleader action was filed in bad faith because the law required ALL proceeds be distributed AFTER THE SALE, no one but me had standing to make a claim after June 3, 2019 and Scow got my 6/3/20 civil claim for the proceeds dismissed with prejudice before he sued me and four other defendants without standing on February 16, 2021 to interplead the excess proceeds he should have distributed in 2014.

Interpleader requires single fund, neutral stakeholder, and adverse claimants

This case: wrongfully withheld funds, misidentified, implicated holder joined by disinterested opponents to attack single claimant with standing

Pruco Life Ins. Co. v. Martin, Case No.: 2:11-cv-00186-GMN-GWF, at *2 (D. Nev. Aug. 16, 2011) (“Procedurally, an interpleader action encompasses two stages: First the district court decides whether the requirements for rule or statutory interpleader action have been met by determining if there is a single fund at issue and whether there are adverse claims to the fund. In the second stage the court makes a determination of the respective rights of the claimants. Mack v. Kuckenmeister, 619 F.3d 1010, 1023-24 (9th Cir. 2010). (citing Rhoades v. Casey, 196 F.3d 593 (5th Cir. 1999)). 28 U.S.C. § 1335 allows a stakeholder, “to file an interpleader action to protect itself against the problems posed by multiple claimants to a single fund.” Minnesota Mutual Life Ins. Co. v. Ensley, 174 F.3d 977, 980 (9th Cir. 1999). ”)

Nevada case law supports sanctions for filing a meritless interpleader action knowing there is only one claimant and the other have no standing

Filing a meritless interpleader action could be sanctionable if the filer attorney has knowingly unlawfully held one person’s money and the other defendants have no standing to make a claim. Sanctions may be appropriate if the filer acted in bad faith, recklessly, or vexatiously, or if the action is frivolous, unreasonable, or groundless.

Michelman v. Lincoln Nat’l Life Ins. Co., 685 F.3d 887, 889 (9th Cir. 2012) (“Interpleader is proper when a stakeholder has at least a good faith belief that there are conflicting colorable claims.”)

“See Tise, 234 F.3d at 426-27; Wells Fargo Bank v. PACCAR Fin. Corp., No. 1:08-CV-00904 AWI SMS, 2009 WL 211386, at *2 (E.D.Cal. Jan. 28, 2009). Further, “[b]ecause the interpleader plaintiff is supposed to be disinterested in the ultimate disposition of the fund, attorneys’ fee awards are properly limited to those fees that are incurred in filing the action and pursuing the plan’s release from liability, not in litigating the merits of the adverse claimants’ positions.””

Several of the cases cited here suggest that filing a meritless interpleader action could be sanctionable. For example, in Lee v. W. Coast Life Ins. Co., the Ninth Circuit discussed the principle that interpleader is not available to a party who has knowingly accepted funds subject to competing claims. This suggests that if an attorney files an interpleader action knowing that one of the defendants has no standing to make a claim, the attorney could be subject to sanctions. Additionally, in Mayorga v. Ronaldo, the court discussed its authority to sanction an attorney for bad faith conduct, including under 28 U.S.C. § 1927, which authorizes an award of fees and costs against an attorney whose reckless conduct causes a litigant to incur them. This authority could be used to argue that filing a meritless interpleader action could be sanctionable if the filer acted in bad faith, recklessly, or vexatiously. Several other cases, such as Crawford v. Smith’s Food & Drug Store, Inc. and Pac. Gas & Elec. Co. v. Seiu Local 24/7, discuss the circumstances under which attorneys’ fees may be awarded as a sanction for bad faith conduct. These cases suggest that sanctions may be appropriate if the interpleader action is frivolous, unreasonable, or groundless.

Equitable doctrine of ‘clean hands’ applies to interpleader actions

Lee v. W. Coast Life Ins. Co., 688 F.3d 1004, 1012 (9th Cir. 2012) (““It is generally recognized that interpleader ‘developed in equity and is governed by equitable principles.’ ” Aetna Life Ins. Co. v. Bayona,223 F.3d 1030, 1033–34 (9th Cir.2000) (quoting Lummis v. White,629 F.2d 397, 399 (5th Cir.1980), rev’d on other grounds by Cory v. White,457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982); Metro. Life Ins. Co. v. Marsh,119 F.3d 415, 418 (6th Cir.1997) (“[I]nterpleader is fundamentally equitable in nature.”)). Accordingly, many courts have held that those who have acted in bad faith to create a controversy over the stake may not claim the protection of interpleader. See, e.g., Kent v. N. Cal. Reg’l Office of Am. Friends Serv. Comm.,497 F.2d 1325, 1328 (9th Cir.1974) (“Interpleader, which is an equitable remedy, is not available to one who has voluntarily accepted funds knowing they are subject to competing claims.”) (citations omitted); Farmers Irrigating Ditch & Reservoir Co. v. Kane,845 F.2d 229, 232 (10th Cir.1988) (“It is the general rule that a party seeking interpleader must be free from blame in causing the controversy, and where he stands as a wrongdoer with respect to the subject matter of the suit or any of the claimants, he cannot have relief by interpleader.”) (collecting cases); see also44B Am. Jur. 2d Interpleader § 7 (“The equitable doctrine of ‘clean hands’ applies to interpleader actions. The party seeking interpleader must do equity, not have caused the conflicting claims, and be free from blame in causing the controversy.”) (footnotes omitted).”)

Scow used interpleader to cover up his wrongdoing

On 2/16/21 Scow, concealed that he personally had unlawfully withheld the excess proceeds that Red Rock had instructed him to remit to the court on 8/28/14.

This is conversion, not interpleader

Scow caused summons to be served in the name of his client, Plaintiff FirstService Residential Nevada LLC (EIN 88-0358132) dba Red Rock Financial Services, a partnership (“Red Rock”)(whose partners he refused to disclose in discovery in the 1st action) when he knew Red Rock had no standing to file an interpleader complaint as it didn’t have the money and it didn’t face adverse competing interests. Scow served five defendants knowing that four of the five defendants had no standing to claim the interpleaded funds.

I know of no legal way for Scow to take a check made out to the court and transfer it under his own personal proprietary control, particularly since Red rock ceased to be a fiduciary agent for Sun City Anthem in 2015. Under the bylaws of that HOA, Red Rock had to surrender all of the funds that it had on account collected under the statutory authority of SCA to the SCA Board in April 2015.

Nevertheless, Judge Peterson insisted that this was an ordinary interpleader action and I was not allowed to have any other claims against Steven Scow.

Scow unlawfully withheld $3,500 from the $57,282.32 that Red Rock had designated as “excess funds” knowing that the statute specifically does not authorize any attorney fees to be deducted from the amount designated as “excess” to file an interpleader complaint.

Judge Peterson, by granting a non-party’s motion, dismissed my 3/8/21 AACC, all counter- and cross-claims and affirmative defenses, including unclean hands, with prejudice, without requiring Red Rock to respond

On 3/8/21 I, Nona Tobin, as an individual, filed the only timely answer, affirmative defenses, and compulsory counterclaims, including a claim for the proceeds. My 19 affirmative defenses listed unclean hands at number 11.

  1. Failure to state a claim
  2. Estoppel
  3. Fraud NRS 207.360 (9)(30)(35), NRS 205.395, NRS 205.377, NRS 205.330, NRS 205.405, NRS 111.175,
  4. Illegality NRS 207.230
  5. Waiver
  6. Failure to join a necessary party
  7. General and equitable defenses
  9. Priority
  10. False claims to title (NRS 205.395, NRS 205.377)
  11. Violation of Covenant of good faith (NRS 116.1113)
  12. Equitable doctrines (unclean hands, NRS 207.360 (9)(30)(35)
  13. Acceptance (distribution of proceeds)
  14. Waiver and Estoppel (Red Rock & Nationstar)
  15. Fraudulent Misrepresentation and fraudulent concealment NRS 205.405, NRCP 11.pdf
  16. Failure to mitigate damages
  17. Unconstitutional (Due process clauses)
  18. Statutory violations (NRS 116.31031, NRS 116.31162 – NRS 116.31168 (2013), NRS 116.3102, NRS 116.31083, NRS 116.31085, NRS 38.310
  19. Rejection of two super-priority payments (SCA 513 and SCA 302)
  20. Violations of HOA CC&Rs owner protections (CC&Rs 7.4 Compliance & Enforcement; CC&Rs 16: Dispute Resolution and Limitation on Litigation

Judge Peterson did not dismiss Nationstar and Wells Fargo when they failed to make any compulsory counter-claims and did not answer my cross-claims

On 4/12/21, I filed a motion for an order to distribute the proceeds with interest to me as the sole claimant but Judge Peterson disregarded the law and let disinterested entities oppose me

On 4/26/21/ Judge Peterson let non-claimants Nationstar and Wells Fargo oppose the funds going to the sole claimant as long as I had other claims

Judge Peterson let Red Rock join the disinterested banks’ opposition even though Red Rock was supposed to be neutral

Red Rock’s/Scow’s true motives, and the banks’ collusion, for not distributing the proceeds after the sale, should now be apparent, but in case it’s not I’ll do a separate blog on that.

Scow knows that the banks are not going to make a claim for the proceeds and that if he can keep the owner from making a claim, then he can keep them, and the money trail will be virtually impossible to follow.

Being forced to pay attorney fees to Scow given his bad faith conduct is just plain wrong. He should be audited to account for the excess proceeds that were not distributed after the red Rock sales.

Mayorga v. Ronaldo, 2:19-cv-00168-JAD-DJA, at *2 (D. Nev. Feb. 14, 2023) (“The American Rule recognizes that each party in litigation must bear its own attorney’s fees in the absence of a rule, statute, or contract authorizing an award of fees.”)

“Courts usually award attorneys’ fees to the plaintiff in interpleader actions absent a showing of bad faith. Schirmer Stevedoring Co. v. Seaboard Stevedoring Corp., 306 F.2d 188, 194-95 (9th Cir. 1962).” Here, however, bad faith abounds, and attorney fees are definitely not appropriate.

Voluntary recusal is the high road and the path of least resistance, but for Judge Peterson, it is also the road not taken. Why?

Judge Peterson refused to recuse herself from the decision about whether to vacate ex parte vexatious litigant restrictive order. Why?

12/19/22 Tobin motion for an order to show cause (“MOSC”) why written finding of attorney misconduct should not be forwarded to the State Bar to avoid Tobin having to file separate civil actions because the State Bar will not investigate the complaints without a court order that contains written findings. The MOSC was supported by Requests for judicial notice of the uninvestigated complaints and the draft civil actions that would have to be filed separately if this court declined to file

3/28/23 order as it was adopted without notice or opportunity to oppose

Tobin’s opposition that Judge Peterson steadfastly refused to allow to be attached to the 3/28/23 order rendering it virtually impossible to appeal

Tobin’s 4/26/23 motion to disqualify Judge Peterson as her impartiality can reasonably be questioned due to improper ex parte communications and acting outside her jurisdiction and conduct in the hearings that showed she made decisions by relying solely on the misrepresentations of opposing counsels and without consideration of Tobin’s evidence. Chief Judge is requested to set aside Judge Peterson’s orders on t from the decision to set aside the orders first on jurisdictional grounds and then on Rules 59 and/or 60 misconduct of the prevailing parties.

5/3/23 Judge Peterson’s affidavit misstates the court record including misrepresenting who the parties are, stating that the case is over, the appeal period is over, but that she can be fair and handle any decisions that are remaining. Given that by refusing to recuse herself is the only way she can guarantee that her extraordinarily harsh and damaging orders against me, that prevent my title claims from ever being adjudicated based on evidence, can stand, why is she insisting on it? What’s in it for her?

5/10/23 Non-party Red Rock LLC’s opposition to my 4/26/23 motion reiterates the same false version of history that omits the fact that there has never been an evidentiary adjudication of anyone’s claims in this case ever and omits the basic fact that he filed the interpleader action in bad faith knowing that Red Rock didn’t have standing to file it, the legal standard for interpleader was not met, and I was the only person with standing to file a claim for the interpleaded proceeds since 6/3/19 before the show trial in the 1st action.

Tobin’s 5/20/23 Declaration and Reply to Steven Scow’s and Judge Peterson’s Opposition to Judge Peterson’s recusing herself from the decision to set aside the 3/28/23

Voluntary recusal is both the high road and the path of least resistance, but for Judge Peterson, it is also the road not taken. Why?

Request for Judicial Notice: Laws & Regulations Exhibit 10 actions to determine conflicting claims to real property

Elements of Quiet Title

In Nevada, the elements for a claim of quiet title are:

1. Action may be brought by any person against another who claims an estate or interest in real property, adverse to him, for the purpose of determining such adverse claims. NRS 40.010;2. Complaint must be verified. NRS 40.090-1;

3. Summons must be issued within one year of filing the complaint and served per NRCP. NRS 40.100-1;

4. Lis Pendens must be filed with the county recorder within 10 days of filing of the complaint. NRS 40.090-3;

5. Copy of the Summons must be posted on the property within 30 days after the summons is issued, and an affidavit of posting must be filed with the court. NRS 40.100-2;

6. Disclaimer must be filed. NRS 40.020;

7. Affidavit to unknown heirs must be filed. NRS 14.040(3);

8. Court must hold a hearing on the evidence in order to issue judgment.

9. Quiet title may not be obtained through default judgment. NRS

40.110; and

10. Record a certified copy of the judgment quieting title. NRS 247.120(0).

foyner v. Bank of America Home Loans. Case No. 2:09-CV-2406-RCJ-RJJ 2010 Breliant v. Preferred Equities Corp., 112 Nev. 663, 669, 918 P.2d 314, 318 (Nev.1996); Sceirine v. Densmore. 87 Nev. 9, 12,479 P.2d 779 (1971); MacDonald v. Krause. 77 Nev. 312, 317-18, 362 P.2d 724 (Nev.1961); Clay v. Scheeline Banking & Trust Co . 40 Nev. 9, 159 P. 1081, 1082-83 (1916) No. 2:09-CV-00567-RCJ-LRL, 2009 WL 5039495 (D. Nev. 2009); Del Webb Conservation Holding Corp. v. Tolman. 44 F. Supp. 2d 1105, 1109-10 (D. Nev 1999); Union Mill v. Mining Co. v. Warren, 82 F. 519, 520 (D. Nev. 1897); Howell v. Ricci, 197 P.3d 1044, 1046 n. 1 (Nev. 2008); Breliant v. Preferred Equities Corp., 112 Nev. 663, 669, 918 P.2d 314, 318 (Nev. 1996); Sceirine v. Densmore. 87 Nev. 9, 12,479 P.2d 779 (1971); MacDonald v. Krause. 77 Nev. 312, 317-18, 362 P.2d 724 (Nev.1961); Clay v. Scheeline Banking & Trust Co .. 40 Nev. 9, 159 P. 1081, 1082-83 (1916)

Jay Young, Nevada Law Blog

Nevada statutes on property disputes

NRS 40.010             Actions may be brought against adverse claimants.

An action may be brought by any person against another who claims an estate or interest in real property, adverse to the person bringing the action, for the purpose of determining such adverse claim.

NRS 40.010
NRS 40.020             Plaintiff not entitled to costs on default judgment or disclaimer.

If the defendant in such action disclaim in the defendant’s answer any interest or estate in the property, or suffer judgment to be taken against the defendant without answer, the plaintiff shall not recover costs.

NRS 40.020
NRS 40.050             Mortgage not deemed conveyance.

A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to take possession of the real property in the absence of a foreclosure sale or in accordance with NRS 32.100 to 32.370, inclusive, NRS 107.100 or chapter 107A of NRS.

NRS 40.050
NRS 40.090  Action by person in adverse possession: Verified complaint; defendants; notice of pending litigation.

      1.  An action may be brought to determine the adverse claims to and clouds upon title to real property by a person who, personally or in combination with the person’s predecessors in interest, has been in the actual, exclusive and adverse possession of such property continuously for more than 15 years prior to the filing of the complaint, claiming to own the same in fee, or by any other freehold estate, against the whole world, and who has, personally or through the person’s predecessors in interest, paid all taxes of every kind levied or assessed and due against the property during the period of 5 years next preceding the filing of the complaint, except that where clouds upon title to real property have been created by such person, and the action is brought to remove such clouds, or any of them, such period of actual, exclusive and adverse possession of such property shall be for more than 10 years. The action shall be commenced by the filing of a verified complaint averring the matters above enumerated.

      2.  The complaint must include as defendants in such action, in addition to such persons as appear of record to have some claim, all other persons who are known, or by the exercise of reasonable diligence could be known, to plaintiff to have some claim to an estate, interest, right, title, lien or cloud in or on the land described in the complaint adverse to plaintiff’s ownership; and the complaint may also include as defendants any and all other persons, unknown, claiming any estate, right, title, interest or lien in such lands, or cloud upon the title of plaintiff thereto; and the plaintiff may describe such unknown defendants in the complaint as follows: “Also all other persons unknown claiming any right, title, estate, lien or interest in the real property described in the complaint adverse to plaintiff’s ownership, or any cloud upon plaintiff’s title thereto.”

      3.  Within 10 days after the filing of the complaint, plaintiff shall file or cause to be filed in the office of the county recorder of the county where the property is situated, a notice of the pendency of the action containing the matters required by NRS 14.010.

      NRS 40.100  Action by person in adverse possession: Issuance, service and posting of summons; rights of unknown persons.

1.  Within 1 year after the filing of the complaint, as required by NRS 40.090, a summons must be issued in the manner and form prescribed in the Nevada Rules of Civil Procedure. In addition to other requirements, the summons shall contain a description of the property described in the complaint. In the summons the unknown defendants shall be designated as in the complaint. Service of summons, whether personal or otherwise, shall be effected in the manner prescribed in the Nevada Rules of Civil Procedure; and the times for completion of service and appearance by the defendant shall be as prescribed therein.

      2.  Within 30 days after the issuance of the summons, the plaintiff shall post or cause to be posted a copy thereof in a conspicuous place, on each separate parcel of the property described in the complaint, and each parcel of the land upon which a copy of the summons is posted shall be deemed to be in the possession of the court for all the purposes of and pending the determination of the action. All such unknown persons so served shall have the same rights as are provided by law in cases of all other defendants named, upon whom service is made by publication or personally, and the action shall proceed against such unknown persons in the same manner as against the defendants who are named, upon whom service is made by publication or personally, and with like effect; and any such unknown person who has or claims to have any right, title, estate, lien or interest in the property, or cloud on the title thereto, adverse to plaintiff, at the time of the commencement of the action, who has been duly served as aforesaid, and anyone claiming title under the unknown person shall be concluded by the judgment in such action as effectually as if the action had been brought against the person by his or her name and personal service of process obtained, notwithstanding any such unknown person may be under legal disability.

NRS 40.110             Court to hear case; must not enter judgment by default; effect of final judgment.

1.  When the summons has been served as provided in NRS 40.100 and the time for answering has expired, the court shall proceed to hear the case as in other cases and shall have jurisdiction to examine into and determine the legality of plaintiff’s title and of the title and claim of all the defendants and of all unknown persons, and to that end must not enter any judgment by default, but must in all cases require evidence of plaintiff’s title and possession and receive such legal evidence as may be offered respecting the claims and title of any of the defendants and must thereafter direct judgment to be entered in accordance with the evidence and the law. The court, before proceeding to hear the case, must require proof to be made that the summons has been served and posted as hereinbefore directed and that the required notice of pendency of action has been filed.

      2.  The judgment after it has become final shall be conclusive against all the persons named in the summons and complaint who have been served personally, or by publication, and against all unknown persons as stated in the complaint and summons who have been served by publication, but shall not be conclusive against the State of Nevada or the United States. The judgment shall have the effect of a judgment in rem except as against the State of Nevada and the United States; and the judgment shall not bind or be conclusive against any person claiming any recorded estate, title, right, possession or lien in or to the property under the plaintiff or the plaintiff’s predecessors in interest, which claim, lien, estate, title, right or possession has arisen or been created by the plaintiff or the plaintiff’s predecessor in interest within 10 years prior to the filing of the complaint.

NRS 40.120             Remedy is cumulative.

The remedy provided in NRS 40.090, 40.100 and 40.110 shall be construed as cumulative and not exclusive of any other remedy, form or right of action or proceeding now allowed by law.

Lis Pendens

NRS 14.010             Notice of pendency of actions affecting real property: Recording.

1.  In an action for the foreclosure of a mortgage upon real property, or affecting the title or possession of real property, the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his or her answer, if affirmative relief is claimed in the answer, shall record with the recorder of the county in which the property, or some part thereof, is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action and a description of the property in that county affected thereby, and the defendant shall also in the notice state the nature and extent of the relief claimed in the answer.

      2.  A notice of an action affecting real property, which is pending in any United States District Court for the District of Nevada may be recorded and indexed in the same manner and in the same place as provided with respect to actions pending in courts of this state.

      3.  From the time of recording only, except as otherwise provided in NRS 14.017, the pendency of the action is constructive notice to a purchaser or encumbrancer of the property affected thereby. In case of the foreclosure of the mortgage, all purchasers or encumbrancers, by unrecorded deed or other instrument in writing made before the recording of the notice, and after the date of the mortgage, shall be deemed purchasers or encumbrancers after the recording of the notice, and subject thereto, unless NRS 14.017 is applicable or they can show that, at the time of recording the notice, the plaintiff had actual notice of the purchase or encumbrance.

NRS 14.015             Notice of pendency of actions affecting real property: Hearing; cancellation; bond.

1.  After a notice of pendency of an action has been recorded with the recorder of the county, the defendant or, if affirmative relief is claimed in the answer, the plaintiff, may request that the court hold a hearing on the notice, and such a hearing must be set as soon as is practicable, taking precedence over all other civil matters except a motion for a preliminary injunction.

      2.  Upon 15 days’ notice, the party who recorded the notice of pendency of the action must appear at the hearing and, through affidavits and other evidence which the court may permit, establish to the satisfaction of the court that:

      (a) The action is for the foreclosure of a mortgage upon the real property described in the notice or affects the title or possession of the real property described in the notice;

      (b) The action was not brought in bad faith or for an improper motive;

      (c) The party who recorded the notice will be able to perform any conditions precedent to the relief sought in the action insofar as it affects the title or possession of the real property; and

      (d) The party who recorded the notice would be injured by any transfer of an interest in the property before the action is concluded.

      3.  In addition to the matters enumerated in subsection 2, the party who recorded the notice must establish to the satisfaction of the court either:

      (a) That the party who recorded the notice is likely to prevail in the action; or

      (b) That the party who recorded the notice has a fair chance of success on the merits in the action and the injury described in paragraph (d) of subsection 2 would be sufficiently serious that the hardship on him or her in the event of a transfer would be greater than the hardship on the defendant resulting from the notice of pendency,

Ê and that if the party who recorded the notice prevails he or she will be entitled to relief affecting the title or possession of the real property.

      4.  The party opposing the notice of the pendency of an action may submit counter-affidavits and other evidence which the court permits.

      5.  If the court finds that the party who recorded the notice of pendency of the action has failed to establish any of the matters required by subsection 2, the court shall order the cancellation of the notice of pendency and shall order the party who recorded the notice to record with the recorder of the county a copy of the order of cancellation. The order must state that the cancellation has the same effect as an expungement of the original notice.

      6.  If the court finds that the party who recorded the notice of pendency of the action has established the matters required by subsection 2, the party opposing the notice may request the court to determine whether a bond in an amount to be determined by the court would provide adequate security for any damages which the party who recorded the notice might incur if the notice were so cancelled and the party opposing the notice did not prevail in the action. If the court determines that a bond would provide adequate security, the party opposing the notice may post a bond or other security in the amount determined by the court. The court shall then order the cancellation of the notice of pendency and shall order the party opposing the notice to record with the recorder of the county a copy of the order of cancellation. The order must state that the cancellation has the same effect as an expungement of the original notice.

NRS 14.017             Notice of pendency of actions affecting real property: Transferability of property after withdrawal or cancellation

1.  Upon the withdrawal of a notice of the pendency of an action affecting real property, or upon the recordation of a certified copy of a court order for the cancellation of a notice of the pendency of such an action with the recorder of the county in which the notice was recorded, each person who thereafter acquires an interest in the property as a purchaser, transferee, mortgagee or other encumbrancer for a valuable consideration, except a party to the action who is not designated by a fictitious name at the time of the withdrawal or order of cancellation, shall be deemed to be without knowledge of the action or of any matter, claim or allegation contained therein, irrespective of whether the person has or at any time had actual knowledge of the action or of any matter, claim or allegation contained therein.

      2.  The purpose of this section is to provide for the absolute and complete transferability of real property after the withdrawal or cancellation of a notice of the pendency of an action affecting the property.

Request for Judicial Notice: Laws & Regulations Exhibit 9 Declaratory Judgments

NRS Chapter 30 Declaratory Judgments

NRS 30.030             Scope.

Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.

NRS 30.030

NRS 30.040             Questions of construction or validity of instruments, contracts and statutes.

1.  Any person interested under a deed, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.

NS 30.040

NRS 30.070             Enumeration not exclusive.

The enumeration in NRS 30.040, 30.050 and 30.060 does not limit or restrict the exercise of the general powers conferred in NRS 30.030 in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

NRS 30.070

NRS 30.080             Discretion of court to render or enter judgment.

The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

NRS 30.080

NRS 30.090             Review.

All orders, judgments and decrees under NRS 30.010 to 30.160, inclusive, may be reviewed as other orders, judgments and decrees.

NRS 30.090

NRS 30.100             Supplemental relief.

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

NRS 30.100

NRS 30.110             Jury trial.

When a proceeding under NRS 30.010 to 30.160, inclusive, involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

NES 30.110

NRS 30.120             Costs.

In any proceeding under NRS 30.010 to 30.160, inclusive, the court may make such award of costs as may seem equitable and just.

NES 30.120

NRS 30.130             Parties.

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding

NRS 30.130

NRS 30.140             Construction.

NRS 30.010 to 30.160, inclusive, are declared to be remedial; their purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and are to be liberally construed and administered.

NRS 30.140

Request for Judicial Notice: Laws & Regulations Exhibit 8 Documentary evidence

NRS 52.235  Original required.  

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in this title.

NRS 52.235

 NRS 52.260  Record made in course of regularly conducted activity; affidavit required.

      1.  The contents of a record made in the course of a regularly conducted activity in accordance with NRS 51.135, if otherwise admissible, may be proved by the original or a copy of the record which is authenticated by a custodian of the record or another qualified person in a signed affidavit.

      2.  The custodian of the record or other qualified person must verify in the affidavit that the record was made:

      (a) At or near the time of the act, event, condition, opinion or diagnosis concerning which the information was recorded, by or from information transmitted by a person with knowledge of the act or event; and

      (b) In the course of the regularly conducted activity.

NRS 52.260

Request for Judicial Notice: Laws & Regulations Exhibit 7 Victim access to remedies

NRS 207.470       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.

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.

NRS 207.480

MEDIATION AND ARBITRATION

NRS 38.310             Limitations on commencement of certain civil actions.

NRS 38.320             Submission of claim for mediation or referral to program of dispute resolution; contents of claim; fees; service of claim; written answer.

NRS 38.330             Procedure for mediation or arbitration of claim; payment of costs and fees upon failure to obtain a more favorable award or judgment in court.

Sun City Anthem CC&Rs XVI: DISPUTE RESOLUTION AND LIMITATION ON LITIGATION

NRS 116.4117  Effect of violations on rights of action; civil action for damages for failure or refusal to comply with provisions of chapter or governing documents; members of executive board not personally liable to victims of crimes; circumstances under which punitive damages may be awarded; attorney’s fees.

      1.  Subject to the requirements set forth in subsection 2, if a declarant, community manager or any other person subject to this chapter fails to comply with any of its provisions or any provision of the declaration or bylaws, any person or class of persons suffering actual damages from the failure to comply may bring a civil action for damages or other appropriate relief.

      2.  Subject to the requirements set forth in NRS 38.310 and except as otherwise provided in NRS 116.3111, a civil action for damages or other appropriate relief for a failure or refusal to comply with any provision of this chapter or the governing documents of an association may be brought:

      4.  Except as otherwise provided in subsection 5, punitive damages may be awarded for a willful and material failure to comply with any provision of this chapter if the failure is established by clear and convincing evidence.

      6.  The court may award reasonable attorney’s fees to the prevailing party.

      7.  The civil remedy provided by this section is in addition to, and not exclusive of, any other available remedy or penalty.

NRS 116.4117

Request for Judicial Notice: Laws & Regulations Exhibit 6 Sanctions & damages

Nevada Rules of Professional Conduct (as amended through 10/19/19)

Nevada Rules of Professional Conduct excerpts related to the instant action

ABA Standards for Imposing Lawyer Sanctions (as amended 1992)

ABA Standards for Imposing Lawyer Sanctions – excerpts

NRCP 11 Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

(b) Representations to the Court.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

NRCP 11(b)
(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney fees, incurred for presenting or opposing the motion.

(3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a

penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney fees and other expenses directly resulting from the violation.

(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:

(A) against a represented party for violating Rule 11(b)(2); or

(B) on its own, unless it issued the show cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

NRCP 11(c)

 NRS 18.010  Award of attorney’s fees.

      2.  In addition to the cases where an allowance is authorized by specific statute, the court may make an allowance of attorney’s fees to a prevailing party:

(b) Without regard to the recovery sought, when the court finds that the claim, counterclaim, cross-claim or third-party complaint or defense of the opposing party was brought or maintained without reasonable ground or to harass the prevailing party. The court shall liberally construe the provisions of this paragraph in favor of awarding attorney’s fees in all appropriate situations. It is the intent of the Legislature that the court award attorney’s fees pursuant to this paragraph and impose sanctions pursuant to Rule 11 of the Nevada Rules of Civil Procedure in all appropriate situations to punish for and deter frivolous or vexatious claims and defenses because such claims and defenses overburden limited judicial resources, hinder the timely resolution of meritorious claims and increase the costs of engaging in business and providing professional services to the public

NRS 18.010(2)(b)

NRS 42.005  Exemplary and punitive damages: In general; limitations on amount of award; determination in subsequent proceeding.

1.  Except as otherwise provided in NRS 42.007, in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant. Except as otherwise provided in this section or by specific statute, an award of exemplary or punitive damages made pursuant to this section may not exceed:      

(a) Three times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more;

3.  If punitive damages are claimed pursuant to this section, the trier of fact shall make a finding of whether such damages will be assessed. If such damages are to be assessed, a subsequent proceeding must be conducted before the same trier of fact to determine the amount of such damages to be assessed. The trier of fact shall make a finding of the amount to be assessed according to the provisions of this section. The findings required by this section, if made by a jury, must be made by special verdict along with any other required findings. The jury must not be instructed, or otherwise advised, of the limitations on the amount of an award of punitive damages prescribed in subsection 1.

NRS 42.005 (1) (3)

NRS 41.1395  Action for damages for injury or loss suffered by older or vulnerable person from abuse, neglect or exploitation; double damages; attorney’s fees and costs.

1.  Except as otherwise provided in subsection 3, if an older person or a vulnerable person suffers a personal injury or death that is caused by abuse or neglect or suffers a loss of money or property caused by exploitation, the person who caused the injury, death or loss is liable to the older person or vulnerable person for two times the actual damages incurred by the older person or vulnerable person.

2.  If it is established by a preponderance of the evidence that a person who is liable for damages pursuant to this section acted with recklessness, oppression, fraud or malice, the court shall order the person to pay the attorney’s fees and costs of the person who initiated the lawsuit.

4.  For the purposes of this section:

      (b) “Exploitation” means any act taken by a person who has the trust and confidence of an older person or a vulnerable person or any use of the power of attorney or guardianship of an older person or a vulnerable person to:

             (1) Obtain control, through deception, intimidation or undue influence, over the money, assets or property of the older person or vulnerable person with the intention of permanently depriving the older person or vulnerable person of the ownership, use, benefit or possession of that person’s money, assets or property; or

             (2) Convert money, assets or property of the older person with the intention of permanently depriving the older person or vulnerable person of the ownership, use, benefit or possession of that person’s money, assets or property.

      (d) “Older person” means a person who is 60 years of age or older.

NRS 41.1395
 “Legal Issues Related to Elder Abuse: A Desk Guide for Law Enforcement” American Bar Association

Request for Judicial Notice: Laws & Regulations Exhibit 5 Limits on Fraud and Racketeering

 NRS 111.175  Conveyances made to defraud prior or subsequent purchasers are void. 

NRS 205.330  Fraudulent conveyances.

NRS 205.372  Mortgage lending fraud; penalties; civil action.

NRS 205.377  Multiple transactions involving fraud or deceit in course of enterprise or occupation; penalty.

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,

NRS 205.377

NRS 205.380  Obtaining money, property, rent or labor by false pretenses.

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

NRS 207.230           Acting without lawful authority.

 NRS 205.405  Falsifying accounts.  

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;

27.  Embezzlement of money or property valued at $650 or more;

28.  Obtaining possession of money or property valued at $650 or more, or obtaining a signature by means of false pretenses;

29.  Perjury or subornation of perjury;

30.  Offering false evidence;

35.  Any violation of NRS 205.377;

NRS 207.360

NRS 207.400       Unlawful acts; penalties.

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.

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

NRS 207.480  Order of court upon determination of civil liability.  

NRS 207.520       Limitation of actions.

ANTI-FORECLOSURE FRAUD LAWS

AB 284 (2011) summary and legislative digest

Nevada’s 2011 anti-foreclosure fraud “robo-signing” bill amended NRS 107 and NRS 205 to make these changes:

  1. specifies duties of the trustee;
  2. assignments not effective unless and until recorded;
  3. a notarized affidavit under penalty of perjury that the lender or trustee is in actual possession of the note;
  4. civil penalties for mortgage lending fraud;
  5. Section 9 amends NRS 107.080, which is one of the main statutes related to foreclosures.
  6. It requires a notice of default or “NOD” to include a notarized affidavit of the trustee’s authority to exercise the power of sale.
  7. The affidavit must spell out all the money that is owed, and must include a statement under penalty of perjury that the lender or the trustee is in actual possession of the note.
  8. As in section 6, it sets forth civil penalties for violations.

NRS 107.028 Trustees: Qualifications; limitations on powers

2.  A trustee under a deed of trust must not be the beneficiary of the deed of trust for the purposes of exercising the power of sale pursuant to NRS 107.080.

NRS 107.028(2)

12 CFR1026.39        Mortgage transfer disclosures  – Truth in Lending (TILA) requirements of disclosure of change of beneficiary

SB 321 (2013)          Nevada Homeowner Bill of Rights – prevention of “dual tracking”

Request for Judicial Notice: Laws & Regulations Exhibit 3 Limits on HOA agents’ & managers’ authority to act

NRS 116.310313     Collection of past due obligation; charge of reasonable fee to collect.

2.  The provisions of this section apply to any costs of collecting a past due obligation charged to a unit’s owner, regardless of whether the past due obligation is collected by the association itself or by any person acting on behalf of the association, including, without limitation, an officer or employee of the association, a community manager or a collection agency.

NRS 116.310313 (2)

NRS 116.310315     Accounting for fines imposed by association.

NRS 116.31083       Meetings of executive board; frequency of meetings; notice of meetings; periodic review of certain financial and legal matters at meetings; requirements concerning minutes of meetings; right of units’ owners to make audio recordings of certain meetings.

NRS 116.31084       Voting by member of executive board; disclosures; abstention from voting on certain matters.

NRS 116.31085       Right of units’ owners to speak at certain meetings; limitations on right; limitations on power of executive board to meet in executive session; procedure governing hearings on alleged violations; requirements concerning minutes of certain meetings.

NRS 116.31087       Right of units’ owners to have certain complaints placed on agenda of meeting of executive board.

HOA managing agents are fiduciaries

 NRS 116A.620  Management agreement: Contents; requirements; community manager to provide executive board with evidence of insurance; community manager to provide executive board with copy; changes; termination or assignment

3/31/14 management agrement FirstService Residential and Sun City Anthem

4/27/12 debt collection agreement FirstService Residential dba Red Rock Financial Services and Sun City Anthem includes an unenforced indemnification clause that unjustly enriches Red Rock’s undisclosed principals

NRS 116A.630  Standards of practice for community managers. 

In addition to any additional standards of practice for community managers adopted by the Commission by regulation pursuant to NRS 116A.400, a community manager shall:

      1.  Except as otherwise provided by specific statute, at all times:

      (a) Act as a fiduciary in any client relationship; and

      (b) Exercise ordinary and reasonable care in the performance of duties.

NRS 116A.630(1)(a)

Agents owe duties to the HOA & have no independent rights to profits

NRS 205.405  Falsifying accounts

NRS 207.230           Acting without lawful authority.

NRS 116.3116-NRS 116.31168 (2013)

NRS 116.31164(3)(2013) Ministerial duties after an HOA sale

Red Rock did not comply with NRS 116.31164 (3) (b) or (c)

NRS 116A.640        Community manager prohibited from engaging in certain acts; exceptions.

In addition to the standards of practice for community managers set forth in NRS 116A.630 and any additional standards of practice adopted by the Commission by regulation pursuant to NRS 116A.400, a community manager shall not:

 8.  Intentionally apply a payment of an assessment from a unit’s owner towards any fine, fee or other charge that is due.

      9.  Refuse to accept from a unit’s owner payment of any assessment, fine, fee or other charge that is due because there is an outstanding payment due.

      10.  Collect any fees or other charges from a client not specified in the management agreement.

NRS 116A.640 (8), (9), (10)

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

29.  Perjury or subornation of perjury;

30.  Offering false evidence;

NRS 207.360 (9) (29) (30)

HOA Governing Documents

SCA third amended & restated CC&Rs 2008

SCA Third Amended and Restated Bylaws, 2008

Sun City Anthem CC&Rs 7.4 Compliance & Enforcement

Sun City Anthem bylaws 3.15 Open HOA Board meetings

Sun City Anthem bylaws 3.15A Executive session HOA Board meeting

Sun City Anthem bylaws 3.17        Powers of the HOA Board

Sun City Anthem bylaws 3.18. Duties of the HOA Board

Sun City Anthem bylaws 3.20. Management; Defines what HOA Board duties SHALL not be delegated

 Sun City Anthem bylaws 3.25. Board standards. Directors are fiduciaries

Sun City Anthem bylaws 3.21 (f)(v) Delinquency reports must be published quarterly

Sun City Anthem bylaws 3.21      Accounts and reports: delinquency report

(f)(v) a delinquency report listing all Owners who are delinquent in paying any assessments at the time of the report and describing the status of any action to collect such assessments which remain delinquent ( any assessment or installment thereof shall be considered to be delinquent on the 15th day following the due date unless otherwise specified by Board resolution).

SCa bylaws 3.21 (f)(v)

Sun City Anthem bylaws 3.26. Enforcement procedures