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.
3. The provisions of this section do not apply to a person who caused injury, death or loss to a vulnerable person if the person did not know or have reason to know that the harmed person was a vulnerable person.
4. For the purposes of this section:
(a) “Abuse” means willful and unjustified:
(1) Infliction of pain, injury or mental anguish; or
(2) Deprivation of food, shelter, clothing or services which are necessary to maintain the physical or mental health of an older person or a vulnerable person.
(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.
Ê As used in this paragraph, “undue influence” does not include the normal influence that one member of a family has over another.
(c) “Neglect” means the failure of a person who has assumed legal responsibility or a contractual obligation for caring for an older person or a vulnerable person, or who has voluntarily assumed responsibility for such a person’s care, to provide food, shelter, clothing or services within the scope of the person’s responsibility or obligation, which are necessary to maintain the physical or mental health of the older person or vulnerable person. For the purposes of this paragraph, a person voluntarily assumes responsibility to provide care for an older or vulnerable person only to the extent that the person has expressly acknowledged the person’s responsibility to provide such care.
(d) “Older person” means a person who is 60 years of age or older.
(e) “Vulnerable person” means a person who:
(1) Has a physical or mental impairment that substantially limits one or more of the major life activities of the person; and
(2) Has a medical or psychological record of the impairment or is otherwise regarded as having the impairment.
Ê The term includes, without limitation, a person who has an intellectual disability, a person who has a severe learning disability, a person who suffers from a severe mental or emotional illness or a person who suffers from a terminal or catastrophic illness or injury.
The Elements of fraud apply to all the defendants being named in case A-21-828840-C that were opposing counsels to Nona Tobin in Nevada district court cases related to a dispute over the title of 2763 White Sage that was sold at an HOA foreclosure sale in 2014, i.e., in cases A-21-828840-C, A-19-799890-C, A-16-73-0078-C, and A-15-720032-C.
The elements of the cause of action of Fraud on the Court:
1. Defendant makes a false representation as to a past or existing fact.
2. With knowledge or belief by defendant that representation is false or that defendant lacks sufficient basis of information to make the representation;
3. Defendant intended to induce the Court to act in reliance on the representation;
4. Justifiable reliance upon the representation by the Court;
5. Causation and damages to plaintiff Nona Tobin as a result of the Court’s relying on misrepresentation; and
6. Must be proved by clear and convincing evidence and be pled with specificity.
Relevant Nevada court cases
NEVADA JURY INSTRUCTIONS 9.01;
Jordan v. State ex rel. Dep’t of Motor Vehicles & Pub. Safety, 121 Nev. 44, 75, 110 P.3d 30, 51 (2005);
J.A. Jones Constr. Co. v. Lehrer McGovern Bovis, Inc., 120 Nev. 277, 89 P.3d 1009 (2004);
There are tons of reasons why filing a lawsuit is not the most effective way to resolve disputes. So, Sun City Anthem, and probably all other Del Webb HOAs, have clauses in their CC&Rs to require alternative dispute resolution (ADR) procedures, using a trained, neutral mediator, prior to a court having jurisdiction over ordering who is the winner and who is the loser.
Sun City Anthem’s CC&Rs XVI: Limits on Litigation
All “BOUND PARTIES” must use ADR
All claims are covered unless exempted here
Foundation Assisting Seniors weren’t given access to ADR before being kicked out
Seddon used the HOA attorney to sue FAS
Sandy Seddon has used Adam Clarkson to forward her own personal agenda on many occasions. The crap they pulled on Favil West and the Foundation Assisting Seniors would never have happened if they had not violated their fiduciary duty to the homeowners-at-large AND conspired with Rex Weddle to assign Sandy Seddon the role of mediator.
Sandy Seddon had no training or experience as a mediator and was certainly not neutral. None of the steps mandated by our CC&Rs XVI were provided to Favil West and the Foundation Assisting Seniors.
Seddon and Weddle, both “Bound Parties” under the CC&Rs simply chose to abuse the authority of their positions to inappropriately use the HOA’s attorney to deprive Favil West and the Foundation Assisting Seniors, also both “Bound Parties” under the CC&Rs, of their rights to a good faith attempt to resolve their differences without litigation.
How Seddon used the HOA attorneys to screw me over the same way she nailed FAS
Most of you all know the story about how Sun City Anthem’s debt collector sold the house I inherited from Bruce Hansen without notice, but here’s a short video summary.
The HOA attorney forced me to litigate over Bruce’s house. I got no access to ADR
I had settlement talks booked and Seddon switched attorneys
David Ochoa rejected my 2017 offer to settle at no cost to Sun City Anthem or myself
What happened after Seddon’s attack dog blocked my access to ADR?
What did Seddon and Clarkson do after I was elected to the Board and I was a party to the litigation I was forced into?
They unlawfully removed me from my elected Board seat because had filed complaints against them, but lied and defamed me to cover it up.
Kicking me off the Board for being a whistleblower disenfranchised the 2,001 Sun City anthem homeowners who voted for me. There is no legal authority whatsoever for this action, but they got away with it because Adam Clarkson is corrupt and should be disbarred.
Seddon & Weddle also used the HOA attorney to obstruct the 2017 recall election
Kicking me off the Board was necessary to prevent the recall from succeeding
There were recall petitions against four of the seven members of the Board. The Election Committee had a Charter that defined their duties to conduct all of our HOA Board elections, including the removal elections that would be held if enough signatures were collected.
I was the Board liaison to the Election Committee, and I filed a request to the Ombudsman to provide oversight of the signature collection and the removal election since Sandy Seddon, lori Martin, Rex Weddle, and David Berman were interfering in the process and depriving owners of their rights under our governing documents and under Nevada law.
Click on the link above to get to the UNLV Lied Institute for Real Estate and Nevada Assocaiation of Realtors 2017 study regarding how HOA foreclosures have depressed the Nevada real estate markets by over $1 billion in lost value.
In short, every home in an HOA loses 1.7% of value when the HOA forecloses on a property for delinquent assessments.
Wouldn’t it make sense for the owners in an HOA to buy a property or have a bake sale to kep a delinquent owner afloat rather than lose value on your home because some assessments are delinquent?
The reason that doesn’t happen is because the HOA debt collectors have a GIANT scam going where they sell these houses in secret to their connected speculators and not only the person who loses his or her home gets screwed, but everybody in the HOA pays for the debt collector and the speculator to get rich.
HOA foreclosures can occur when the HOA auctions off houses to collect unpaid assessments. Nevada law protects HOAs to the extent that nine months of delinquent assessments have “super priority” over the first security interest of a lender.
This has been a very big deal since the economic meltdown in 2008 caused property values to come crashing down.
Lots of people started defaulting on their mortgages when balloon payments and/or rate adjustments came due on houses that were “underwater” with loan balances exceeding what they could sell the house for.
Remember all the bank-owned houses around that the banks were not maintaining?
The banks also weren’t paying HOA dues, and so whole communities or condominium projects failed and went bankrupt.
The banks are definitely villains in this scenario.
The HOA receives owner assessments in order to have sufficient funds to operate and reserve, and the banks weren’t paying and they weren’t taking care of the properties, and in many cases, they wouldn’t or couldn’t sell them.
By “couldn’t sell”, I mean that there was a lot of foreclosure fraud going on because it was extremely difficult to establish who actually was entitled to ownership of the debt.
So many bank failures and mergers caused part of the confusion.
Remember Wachovia, Washington Mutual, Countrywide Home Loans?
A second and even bigger problem was Wall Street’s greedy and fraudulent securitization of high-risk adjustable mortgages into incomprehensible “synthetic derivatives”. By slicing and dicing individual mortgages into such products as collateralized debt swaps got the whole mortgage securities market in the world further and further away from knowing who owned any particular loan. These financial instruments were so complex, nobody expected them all to start failing at once. (The movie, “The Big Short” explains all this in a very funny and accessible fashion.) Anyway, the banks, being “too big to fail” and all, were bailed out. Remember the Troubled Asset Relief Program (TARP)?
So, as I’m telling you all this, don’t ever feel sorry for the banks. No matter how crooked they were. No matter how badly they screwed over poor people by putting them into loans they couldn’t afford or even understand, our tax dollars bailed them out and nobody went to jail for crashing the world economy.
Back to what this has to do with HOAs
HOAs depend on assessments for the money needed to maintain the quality of the common areas and to operate facilities and programs that define the lifestyle people bought into. So the state law gives the HOA the right to foreclose ahead of the bank for nine months of assessments. This started happening a lot not just because the owners walked away from their mortgages, but because the banks were really slow to foreclose because in lot of cases they couldn’t figure out who owned the loan and nobody actually had the original note (I.O.U.)
So the banks decided that they better gin up some phoney ownership papers, and there were literally millions of home loans in this limbo. So many that the banks started using “robo-signers”, low level employees who would sign documents using phony titles to pretend they are bank officials authorized to assign the loan, like MERS Secretary or Vice-President. this fraudulent scheme was carried out for quite a while by some well known entities, like Bank of America, Wells Fargo, etc. Since MERS is a privatized (bank-owned) way to avoid recording of rapidly-shifting property transfers or loan assignments, they got away with it a lot particularly in Nevada which was the hardest hit state in the nation.
The housing market in Nevada is so bad, that according to Corelogic’s 3rd Quarter Negative Equity Report, as of November, 58.3% of homes with mortgages in Nevada are underwater, while 4.8% have near negative equity. Total home equity in Nevada among homeowners with mortgages is less than -$10.3 billion, making the average loan-to-value ratio in the state 110.2%. Nevada is the only state that has a net negative home equity.
As a result of this disaster, Nevada has been one of the most aggressive states in fighting mortgage abuses. In October, Nevada passed a tough anti-foreclosure law that makes it a felony for a lender, servicer or trustee to make false representations or claims over a title. In the wake of this law, foreclosures in Nevada plummeted.
Mortgage fraud by the banks and loan servicing companies was slowed even further by a 2012 $25 Bllion settlement between B of A, Citibank, JPMorgan Chase, Loan Services and Wells Fargo involving 49 states Attorney Generals and the Justice Dept.
In Nevada, strong anti-foreclosure fraud legislation went into effect in 2011, The bank foreclosure came to a slamming halt once the (real) bank officials could be charged with a class D felony if they signed false affidavits to reassign the loan in the official county records. Bank foreclosures dropped 88% in the month following the passage of the anti-foreclosure law (October 2011), according to the Wall street Journal.
So, the good news was that banks couldn’t foreclose on homes they didn’t actually own. The bad news is that the majority of those bank-owned properties were in one of the over 2,500 HOAs in Nevada so delinquent assessments began piling up.
What happened to the HOAs that weren’t getting paid assessments for all these bank-owned properties? What happened to the property values as the number of distressed properties increased? I imagine some HOAs went into bankruptcy. Others HOAs passed the cost of the vacant properties over to assessment increases to the remaining owners. Some HOAs really upped the speed at which they foreclosed on properties themselves so they wouldn’t be left holding the bag.
In SFR Investments Pool 1 v. US Bank, 130 Nev. Adv. Op. 75 (9/19/14), the Nevada Supreme Court apparently fed up with the banks’ refusal to pay the HOA assessments while they were holding the title, ruled that bank’s security interest was extinguished in its entirety by an HOA foreclosure sale. Big, big loss for the lenders. Big win for the HOAs? Of course not. the big winner was the buyer at the HOA foreclosure sale who (as in this Southern Highlands case) bought the house for under $10,000 and wiped out the banks’ nearly $900,000 loan.
Wow! Big, big win for buyers at HOA foreclosure sales. So, what’s wrong with that? Aren’t get rich quick schemes something we all secretly hope will fall in our laps? Are we just jealous that someone other than us got a fantastic windfall at the expense of the bank? Well, maybe there’s some of that, but what’s wrong with that is the seeds of corruption have been sown.
Let’s not forget what happens when a loophole or a drastic shift in market conditions creates an opportunity to make a huge profits for investing very little and doing very little work. Obviously, every flim-flam man comes out of the woodwork. But worse, otherwise honest people get tempted by get-rich quick schemes and start crossing ethical boundaries. Fiduciaries, like HOA managing agents, HOA debt collectors and HOA attorneys get dollar signs in their eyes and forget whose interest (HOA homeowners) they are legally required to protect. And never underestimate how hard the banks will fight to keep their ill-gotten gains from being stolen by another opportunistic thief.
So, where does that leave HOAs and HOA homeowners? You guessed it. Holding the bag. Even though the mortgage crisis is over and the Las Vegas valley housing market is recovering, there are huge residual financial impacts affecting SCA and other Nevada HOAs.
HOAs are stuck in the middle of expensive legal battles between the banks and the buyers at HOA sales. Worse, HOAs are accountable for wrongdoing of HOA managing agents, debt collectors and attorneys, when they, usually unbeknownst to the Board, took illegal shortcuts to make a speedy sale or took profits unlawfully.
There are literally thousands of HOA foreclosure cases in the state and federal courts in Nevada. (I think SCA has five active cases) and thousands, if not millions, of attorneys’ fees are racking up.
Cases filed in state court are bound by the rulings of the Nevada Supreme Court that recently reaffirmed its decision that HOA foreclosures extinguishes the lender’s security interest.
make their determination of the Federal court
Most of these cases involve the buyer at the HOA sale suing to get “quiet title” from the bank, but the HOA named because the sale was conducted under the legal authority of the HOA.
In 2016, I wrote a letter to the Review-Journal Editor, in response to the R-J September 11, 2016 editorial about how unfair the HOAs were to confiscate the bank’s property without due process. My main point was the banks don’t own the property unless they legally foreclose. It’s the homeowner who loses when the HOA forecloses without proper notice or when the bank takes possession without foreclosing.
But what if the method defined in NRS 116 actually pushes costs to ALL HOA owners that can be orders of magnitude greater than absorbing or forgiving more the bad debts ?
According to a May 2017 study by the Association of Realtors and UNLV LIED Institute showed that HOA foreclosures reduced the value of ALL Nevada homes by 1.7%, and that the controversy over HOA’s super-priority lien status has decreased the willingness of lenders to lend for the purchase of homes in HOAs.
Since 57 % of Nevada homes are in 3,000+ HOAs, this is a very big deal. Some consider that this is a factor in Las Vegas’ sluggishness in returning to property values that existed before the economic meltdown that occurred a decade ago when mortgage-backed securities became worthless seemingly overnight.
The Reno paper published an article about the study, but the Las Vegas Review Journal did not.
This Jim Crow Southern Sheriff restored his personal, and a still popular, version of law and order. Sheriff Jim Crow did not “protect and serve”. Sheriff Jim Crow pistol-whipped Sophia as she faced the bigoted, bloodthirsty mob alone, begging fruitlessly for protection from the man sworn to provide it.
In this 2018 www.SCAstrong.com blog, I was complaining about the systemic bias of the Nevada Ombudsman for Owners in Common-Interest Communities whose record is “resolving” homeowners’ grievances 100% against them.
On my new YouTube channel, Judicial Jiu-Jitsu, I expand my expose of systemic bias to include the Nevada state courts. I have been Sophia for the past four years.
An individual, whether represented or not, facing a mob of attorneys representing powerful and corrupt, banks, and debt collectors in Nevada state courts, has Sophie’s chance of prevailing.
Don’t we all deserve equal protection by the rule of law?
Please, Sheriff NRED, don’t treat me like Sophia
I just have to ask you, personally,
…and I am speaking to you, Nevada State CIC Compliance Officials -NRED Administrator Chandra, Attorney Briggs, Ombudsman Foger, Compliance Chief Wheaton, and Compliance Audit Investigator II Pitch,
To think about it.
How do you get a 100% rejection rate of SCA homeowner grievances if there is a level playing field?
Are you aligned with your mission statement?
are you “keeping the peace” by enabling an abusive culture?
I invite you to consider the possibility that you have an institutional blind spot that creates a consistent bias against SCA homeowners – and maybe, against all Nevada HOA homeowners, that’s like putting a thumb on the scales in favor of HOA vendors or a powerful few.
Sheriff Jim Crow still has his way to do it
The Jim Crow Southern Sheriff restored his personal, and a still popular, version of law and order by pistol-whipping Sophia as she faced the bigoted, bloodthirsty mob alone, begging fruitlessly for protection from the man sworn to provide it.
Lucky buyer got a half million dollar house for $30,000…
but he’s getting an even bigger windfall
He won’t make a mortgage payment – an HOA sale extinguishes the bank’s right to foreclose according to the Nevada Supreme Court
He may not pay property taxes. The bank will probably keep paying them property taxes while the case winds its way through the courts over the next few (or not so few) years
He didn’t pay Real Property Transfer Tax (RPTT) on the full market value because the Recorder’s office didn’t notice that he claimed the market value was $30,000
Nice deal if you can get it
…but just exactly how did that guy, Frank Komorowski from Williamsville New York, even know about the auction.
The homeowner and her real estate agent didn’t know it was going to auction and neither did the potential buyer who had an offer on the table.
The sale was advertised in the Nevada Legal News, but that seems to be a hard way for a guy off the street to find out about how to take advantage of such a spectacular windfall.
Frank is a Super Shopper indeed
I’m not saying Frank Komorowski is a straw buyer, but he’s gotten some really great deals in 2018 besides the one in Darcy’s story:
Red Rock Financial sold him a condo in Gowan Cliff Shadows for $5,000 on 2/13/18 at an unknown sale location
National Default Servicing sold him a place in Monteverdi HOA for $30,000
Hampton & Hampton gouged him out of $6,541 to buy unit 221, 5751 Hacienda Ave., $0.50 more than the unpaid debt, without even bothering with the pretense of an auction
Who was notified about the sale?
That’s a very good question, and, now my curiosity is piqued. So, to find out, I’m doing a little more public records research.
If random guy can make a killing at these mysterious HOA sales, who’s on the losing end of the deal?
Just about everybody else
It’s not just the homeowner that loses.
Taxpayers subsidized the sale by his shorting the county on the property transfer tax (Frank paid $153 on each $30,000 sale and instead of the $2,200 that he would have had to pay if he had declared the fair market value.
According to Nevada Realtors Association, the property value of each house in an HOA is diminished 1.7% for each foreclosure, but since there are two HOAs mentioned on the foreclosure deed, it’s not clear which homeowners.
The homeowners in Summerlin West will pick up the tab for all the attorneys fees while the bank sues Frank and the homeowner sues Frank, and the debt collectors will ride off into the sunset with the $30,000 Frank paid less the nine months of assessments plus interest that the HOA gets.
The real estate agent who worked hard on the short sale will be paid zero because the sale was snatched out from under him as well.
The bank loses big (unless it’s a bank that’s contributing to the problem by recording false affidavits on titles (but that’s another story for another time).
That can’t be right!
Well, it’s certainly not morally right for HOAs to allow their agents to engage in abusive debt collection practices.
Doesn’t the law limit collection fees?
Yes. It’s definitely not legal to keep money that’s not yours. NRS 116.31164 says exactly how the proceeds of an HOA sale are to be distributed. The debt collectors just don’t do it.
Keeping all the money (except nine months of assessments to the HOA plus interest) is just about all they distribute because they have been getting away with it.
No big surprise.
When there is so much money to be made by cutting corners and playing fast and loose with the rules, lots of people who are supposed to be fiduciaries go to the dark side.
What about at SCA?
SCA is no better. SCA has been ripped off by EVERY ONE OF ITS DEBT COLLECTORS, to a greater or lessor degree, since 2014 (that I know of, for sure).
For example, in April, 2015, SCA hired some very crooked attorneys, Alessi & Koenig, LLC, as debt collectors, after SCA dumped Red Rock Financial Services (who was really SCA managing agent FSR in disguise).
A & K filed for chapter 7 bankruptcy in January, 2017, allegedly because A & K was named in over 500 lawsuits out of the 800+ HOA foreclosures they did between 2011-2015, not to mention a $640,000 judgment against them for bid rigging and racketeering in the Melinda Ellis case. (You’re right. They stiffed her.)
When the A & K bankruptcy was dismissed, and the creditors were told to pound salt, it looks like the attorney/debt collectors had kept $2.6 million out of $2.9 million they admitted receiving in HOA sales proceeds.
And there’s a multi-million dollar mansion in David Alessi’s sister’s trust’s name in Malibu (unless he’s picked a new place to hide assets from creditors).
Retained quite a bit over the legal limit, I’d say.
More to come about the exciting ways HOA agents make the big bucks for a few lucky winner while the HOA homeowners foot the bill.