No NRS 40.110 hearing has ever been held
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.
NRS 40.110(1)
The litigation over the wrongful foreclosure of my late fiance’s former Sun City Anthem home has gone on for seven years, and there has never been an evidentiary hearing to resolve the title dispute. There was even a trial in the first action that was a complete joke because no one that was admitted to the trial had a deed to protect and all documentary evidence and witnesses were excluded. The court did not know that the attorneys had filed false evidence, suppressed other evidence, lied about the standing of the parties, and covered up that their clients had recorded false claims to title that, if convicted, carry penalties of class D felonies.
Pending motion to disqualify 3rd judge to refuse to consider the evidence
The current status of the case is a request to disqualify the third judge who has refused to conduct an evidentiary hearing and to get an independent, impartial judge to rule on the evidence that NRCP 12(b)(5) (claims preclusion per res judicata (already been heard)) does not apply because my claims have never been heard fully and fairly on their merits due to fraud on the court, i.e., my opponents obstructed my ability to put on my case.
Judge is helping attorneys cover up crime
In the instant case, I filed a motion for an order to show cause why written findings of attorney misconduct should not be forwarded to the State Bar in which I alleged specific lies the attorneys told the court on specific days, and I produced specified pieces of documentary evidence that supported my claims of false evidence that was entered into the court record or that I had filed but that had been unfairly stricken unconsidered. No attorney filed anything to substantively affirm or deny any of the allegations and none complied with EDCR 2.20(e) to file a written opposition “together with a memorandum of points and authorities and supporting affidavits, if any, stating facts showing why the motion … should be denied.”
Judge Peterson did not construe the attorneys’ failure to oppose the MOSC “as an admission that the motion is meritorious and a consent to granting the same”. She refused to grant the motion as unopposed per EDCR 2.20(e) and she refused to deny the motion in a written order so I could appeal it. (Bench orders are not appealable in Nevada).
Only written orders can be appealed
State, Div. Child Fam. Servs. v. Dist. Ct., 120 Nev. 445, 452 (Nev. 2004) (“[p]rior to the entry of a final judgment the district court remains free to reconsider and issue a written judgment different from its oral pronouncement.” Consequently, we stated that “[a]n oral pronouncement of judgment is not valid for any purpose; therefore, only a written judgment has any effect, and only a written judgment may be appealed.””)
Legal Research Memo
Below is a legal research memo showing that an evidentiary hearing must be conducted to address allegations of fraud. Judge Peterson spent 2 ½ years refusing to conduct an evidentiary hearing so she didn’t even know the interpleader action was filed in bad faith when the filer had instructed the attorney to interplead the proceeds six years earlier and I had the only valid claim after June 3, 2019. The case must be assigned to an impartial judge to conduct an evidentiary hearing in this case.
The Nevada cases I found generally state that a proper hearing is required in order to issue findings of fraud on the court. Specifically, the cases emphasize the need for clear and convincing evidence of fraud, and that the decision to grant relief is within the discretion of the trial court.
Several cases directly address the need for a “proper hearing” in order to establish fraud on the court. For example, in NC-DSH, Inc. v. Garner, the Nevada Supreme Court stated that “It is only after ‘a proper hearing,’ in which the fraud has been established by ‘clear and convincing evidence,’ that relief can be granted.” Similarly, in Hansen v. Aguilar, the Nevada Court of Appeals stated that “To grant NRCP 60(b) relief for fraud upon the court, the district court must first conduct a ‘proper hearing’ to determine if fraud has been established by clear and convincing evidence.”
Other cases, while not specifically mentioning the need for a “proper hearing,” do emphasize the importance of investigating allegations of fraud and the circumstances under which a judgment may be set aside for fraud. For example, in Confer v. District Court, the Nevada Supreme Court stated that “It is the duty of the court, on suggestion of fraud, to investigate and purge the record of the judgment, if fraudulent.” Similarly, in Parks v. Quintana, the Nevada Supreme Court stressed the importance of both sides having their “day in court” and being able to litigate the issue of fraud.
Overall, the cases I found suggest that a proper hearing is required in order to issue findings of fraud on the court, and that the court must be presented with clear and convincing evidence of fraud in order to grant relief. However, the cases also make clear that the decision to grant relief is ultimately within the discretion of the trial court.
Cases (21)
NC-DSH, Inc. v. Garner, 218 P.3d 853 (Nev. 2009)
This case directly addresses the need for a “proper hearing” in order to establish fraud on the court, and it is from the Nevada Supreme Court, making it highly authoritative.
“However, the policy of repose yields when “the court finds after a proper hearing that fraud has been practiced upon it, or the very temple of justice has been defiled.” Universal Oil Co. v. Root Rfg. Co., 328 U.S. 575, 580 (1946).”
“It is only after “a proper hearing,”Universal Oil Co., 328 U.S. at 580, in which the fraud has been established by “clear and convincing evidence,”Occhiuto, 97 Nev. at 146 n. 2, 625 P.2d at 570 n. 2, that relief can be granted. Even then, the motion “is addressed to the sound discretion of the trial court.” Id. The district judge in this case conducted an evidentiary hearing and entered specific and adequate findings of fact and conclusions of law.”
Hansen v. Aguilar, No. 64239 (Nev. App. May. 25, 2016)
The case states that “To grant NRCP 60(b) relief for fraud upon the court, the district court must first conduct a ‘proper hearing’ to determine if fraud has been established by clear and convincing evidence.”
“To grant NRCP 60(b) relief for fraud upon the court, the district court must first conduct a “proper hearing” to determine if fraud has been established by clear and convincing evidence. Id. (quoting Occhiuto v. Occhiuto, 97 Nev. 143, 146 n. 2, 625 P.2d 568, 570 n. 2 (1981) (internal quotations omitted)).”
🟥 Vaile v. Dist. Ct., 118 Nev. 262 (Nev. 2002)
The case discusses the importance of a hearing in order to uncover the truth and prevent fraud on the court.
“The district court was required to hear the live testimony of both Scotlund and his resident witness before entering its decree of divorce. We raise this point because it appears the district court was misled by the language of the complaint and the affidavit.”
“See NRS 125.123 (providing that the district court is not required to accept a case for default divorce upon submission; court has the discretion to order a hearing and require the presence of the plaintiff and the resident witness).”
Price v. Dunn, 106 Nev. 100 (Nev. 1990)
Price v. Dunn discusses the concept of extrinsic fraud on the court, and states that a proper hearing is required to determine whether such fraud occurred.
“The first guideline, that the moving party must show some excuse for setting aside the judgment, is addressed by NRCP 60(b) which provides that a court may relieve a party from a final judgment for extrinsic fraud upon a court with no time limitation. “Extrinsic fraud has been held to exist when the unsuccessful party is kept away from the court by . . . such conduct as prevents a real trial upon the issues involved, or any other act or omission which procures the absence of the unsuccessful party at the trial.” Colby v. Colby, 78 Nev. 150, 153-154, 369 P.2d 1019, 1021 (1962) (quoting Murphy v. Murphy, 65 Nev. 264, 271, 193 P.2d 850, 854 (1948)); see also Murphy v. Murphy, 103 Nev. 185, 186, 734 P.2d 738, 739 (1987).”
“John offers the affidavit of Margaret Price to support his allegation.”
“If Margaret’s affidavit is true, then Melody did commit fraud upon the court because she intentionally kept John away from the hearing.”
Helina-Bergeron v. Bergeron, No. 78354-COA (Nev. App. Sep. 18, 2019)
This case discusses the requirement for an evidentiary hearing in order to modify a custody order, which is analogous to the research request’s inquiry about a hearing to issue findings of fraud on the court.
“A district court may decline to grant an evidentiary hearing if the moving party fails to show “adequate cause” to hold a hearing and must hold a hearing if the party established adequate cause for the hearing. Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993). A movant establishes “adequate cause” when the movant presents a prima facie case for modification. Id. at 543, 853 P.2d at 125. “To constitute a prima facie case it must be shown that: (1) the facts alleged in the affidavits are relevant to the grounds for modification; and (2) the evidence is not merely cumulative or impeaching.””
Abid v. Abid, No. 82781-COA (Nev. App. Apr. 8, 2022)
The case discusses the requirement for an evidentiary hearing in order to modify child custody, and cites Rooney v. Rooney, which sets forth the standard for “adequate cause” to hold such a hearing.
“And a district court must hold an evidentiary hearing on a request to modify custody if the moving party demonstrates “adequate cause.” Rooney u. Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1993). “Adequate cause arises where the moving party presents a prima facie case for modification.” Id. at 543, 853 P.2d at 125 (internal quotation marks omitted). And to make a prima facie case, the moving party must show that “(1) the facts alleged in the affidavits are relevant to the grounds for modification; and (2) the evidence is not merely cumulative or impeaching.””
Milam v. Stealth Holdings, LLC, 381 P.3d 641 (Nev. 2012)
The case discusses the need for a “proper hearing” to establish fraud, although it does not specifically mention “fraud on the court.”
“This court has not mandated that a district court hold an evidentiary hearing to determine whether to set aside a judgment concerning allegations of fraud. Cf. NC–DSH, Inc. v. Garner, 125 Nev. 647, 657, 218 P.3d 853, 860–61 (2009)(providing that “[i]t is only after a proper hearing in which the fraud [upon the court] has been established by clear and convincing evidence that relief can be granted.” (citations omitted) (internal quotations omitted)); Occhiuto v. Occhiuto, 97 Nev. 143, 146 n. 2, 625 P.2d 568, 570 n. 2 (1981)(recognizing a fundamental difference between “fraud” and “fraud upon the court”).”
Murphy v. Murphy, 734 P.2d 738 (Nev. 1987)
Murphy v. Murphy discusses the concept of fraud on the court and the court’s inherent jurisdiction to remedy it, but does not specifically mention the need for a proper hearing.
“The six-month limitation on allegations of fraud is inapplicable to fraud upon the court. Savage v. Salzmann, 88 Nev. 193, 195, 495 P.2d 367, 368 (1972).”
“Further, the court can proceed even in the absence of further action by a party, Kupferman v. Consolidated Research Mfg. Corp., 459 F.2d 1072, 1074 n. 1 (2d Cir. 1972).”
“Fraud upon the court consists of, inter alia, “such conduct as prevents a real trial upon the issues involved,” Savage, supra, 88 Nev. at 195, 495 P.2d at 368.”
“Accord Goodyear Tire Rubber Co. v. H.K. Porter Co., 521 F.2d 699 (6th Cir. 1975); Kupferman, supra; Taft v. Donellan Jerome, Inc., 407 F.2d 807 (7th Cir. 1969).”
Parks v. Quintana, 477 P.2d 869 (Nev. 1970)
Although the case does not explicitly state that a proper hearing is required to issue findings of fraud on the court, it does emphasize the importance of both sides having their “day in court” and being able to litigate the issue of fraud.
“On this appeal the grantee-appellant contends that she did not have her day in court since the legal sufficiency of the description was not an issue raised by the pleadings, nor did it become an issue during trial and cannot, therefore, be deemed to have been tried with the implied consent of the parties.”
“This contention is sound. The case was tried by both sides upon the issue of fraud. After the evidence was closed the court stated its concern about the adequacy of the description, and called for briefs.”
“Of course, the court need not receive evidence on this point if it finds that the deed must be voided upon the ground of fraud.”
Confer v. District Court, 49 Nev. 18 (Nev. 1925)
While the case does not specifically mention the need for a “proper hearing” to issue findings of fraud on the court, it does discuss the importance of investigating allegations of fraud and the circumstances under which a judgment may be set aside for fraud.
“It is duty of court, on suggestion of fraud, to investigate and purge record of judgment, if fraudulent.”
“To vitiate decree, fraud must be actual, and extrinsic or collateral as distinguished from judgment obtained on false evidence. Reeves v. Reeves, supra; Lieber v. Lieber, 143 S.W. 458; Orr v. Orr, 146 P. 964; U.S. v. Throckmorton, 98 U.S. 61; Friese v. Hemmel, 37 P. 458; Greene v. Greene, 2 Gray, 361; Graves v. Graves, 10 L.R.A. (N.S.) 216. To entitle party to relief in equity perjury or fraud must consist of extrinsic facts not examined in former action. Moor v. Moor, 63 S.W. 347.”
Estate of Adams ex rel. Estate v. Fallini, 132 Nev. Adv. Op. 81 (Nev. 2016)
“BEFORE PARRAGUIRRE, C.J., HARDESTY and PICKERING, JJ. OPINION By the Court, PARRAGUIRRE, C.J.: In this case, we consider whether a party may appeal a district court’s order granting an NRCP 60(b) motion to set aside a final judgment for fraud upon the court. We hold that such an order is interlocutory in nature and, thus, may not be appealed until there has been a final judgment.”
“The Estate argues that the district court erred in granting NRCP 60(b) relief because the conduct involved did not rise to the level of fraud upon the court. We disagree. This court reviews a district court’s decision to set aside a judgment based on fraud upon the court for an abuse of discretion.”
“Id. at 653, 218 P.3d at 858 (internal quotation marks omitted).”
In re Amerco Derivative Lit., 127 Nev. Adv. Op. No. 17, 51629 (2011), 252 P.3d 681 (Nev. 2011)
“In Shoen, we noted that “[i]f the district court should find the pleadings provide sufficient particularized facts to show demand futility, it must later conduct an evidentiary hearing to determine, as a matter of law, whether the demand requirement nevertheless deprives the shareholder of his or her standing to sue.”Id. at 645, 137 P.3d at 1187. Thus, on remand, this matter should be scheduled for an evidentiary hearing to determine whether demand was, in fact, futile.”
Secretary of State v. Tretiak, 117 Nev. 299 (Nev. 2001)
“NRS 90.630(2)(c) states as follows: If the administrator reasonably believes, whether or not based upon an investigation conducted under NRS 90.620, that a person has violated this chapter or a regulation or order of the administrator under this chapter, the administrator, in addition to any specific power granted under this chapter, after giving notice by registered or certified mail and conducting a hearing in an administrative proceeding, unless the right to notice and hearing is waived by the person against whom the sanction is imposed, may . . . [b]ar or suspend him from association with a licensed broker-dealer or investment adviser in this state. As to RFCA Financial, the hearing officer recommended that RFCA Financial be sanctioned because “[its] failures were so prevalent, and so egregious, I question whether the firm ever could demonstrate the ability or the intent to comply with the law.””
“NRS 90.420(1)(b) states as follows: The administrator by order may . . . revoke any license . . . if the administrator finds that the order is in the public interest and that the . . . broker-dealer . . . [h]as violated or failed to comply with a provision of this chapter as now or formerly in effect or a regulation or order adopted or issued under this chapter. . . . Because the Division’s sanctions were not an abuse of discretion, the district court erred in modifying the sanctions imposed against Tretiak and RFCA Financial. Accordingly, we reverse that portion of the district court’s order modifying the sanctions imposed against Tretiak and RFCA Financial.”
Smith v. Smith, No. 66549 (Nev. App. Jan. 20, 2016)
“Specifically, appellant asserts that he was prevented from attending the hearing underlying the divorce decree when he was transferred to a different prison within the Nevada Department of Corrections. This does not, however, set forth a basis for a finding of fraud upon the court.”
“To the extent appellant argues that respondent misrepresented to the court that appellant would be receiving social security income, this would, at most, amount to fraud or misrepresentation of an adverse party, which must be raised in an NRCP 60(b) motion within six months after notice of entry of the judgment was served. See NRCP 60(b)(3); see also NC-DSH, Inc. v. Garner, 125 Nev. 647, 654, 218 P.3d 853, 858 (2009) (noting that fraud upon the court “cannot mean any conduct of a party or lawyer of which the court disapproves,” and defining fraud upon the court as “that species of fraud which does, or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases” (quoting Demjanjuk v. Petrovsky, 10 F.3d 338, 352 (6th Cir. 1994))).”
“Alternatively, to the extent appellant argues that the pension distribution and spousal support provisions were void for lack of due process, due process requires notice and an opportunity to be heard.”
Grisham v. Grisham, 128 Nev. Adv. Op. 60 (Nev. 2012)
“Its language is somewhat oblique: No agreement or stipulation between the parties in a cause or their attorneys, in respect to proceedings therein, will be regarded unless the same shall, by consent, be entered in the minutes in the form of an order, or unless the same shall be in writing subscribed by the party against whom the same shall be alleged, or by his attorney. See also EDCR 7.50 (replicating DCR 16 with minor revisions). Despite its awkward wording, DCR 16’s application is straightforward: An agreement to settle pending litigation can be enforced by motion in the case being settled if the agreement is “either … reduced to a signed writing or … entered in the court minutes following a stipulation.” Resnick v. Valente, 97 Nev. 615, 616, 637 P.2d 1205, 1206 (1981) (applying DCR 24, later renumbered DCR 16). [2] [3] [4] DCR 16 applies to divorce and dissolution disputes equally with any other kind of civil litigation.”
“See In re Marriage of Assemi, 7 Cal.4th 896, 30 Cal.Rptr.2d 265, 872 P.2d 1190, 1195 (1994) (applying Cal.Civ.Proc.Code § 664.6); In re Dolgin Eldert Corporation, 31 N.Y.2d 1, 334 N.Y.S.2d 833, 286 N.E.2d 228, 232 (1972) (applying N.Y. C.P.L.R. 2104); Matter of Estate of Eberle, 505 N.W.2d 767, 770 (S.D.1993) (“Oral stipulations of the parties in the presence of the court are generally held to be binding, especially when acted upon or entered on the court record….”).”
🟥 State, Dep’t Human Resources v. Shively, 110 Nev. 316 (Nev. 1994)
“Moreover, NSWD could not discontinue benefits or recoup any monies paid before the recipient had a formal hearing in an administrative forum. NRS 422.294 et seq. In fact, NSWD continued to pay benefits until the hearing officer rendered a decision affirming the right to terminate. In light of these facts, we conclude that NSWD cannot now be penalized for pursuing an administrative resolution to its dispute with Shively.”
Valley Health Sys. v. The Eighth Judicial Dist. Court of State, No. 84330 (Nev. Jun. 1, 2022)
“We address each in turn. Crime-fraud exception MRS 49.115(1) sets forth the crime-fraud exception to attorney-client privilege: “There is no privilege under NRS 49.095 or NRS 41.105 . . . [i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” For the statutory exception to apply, the party asserting the crime-fraud exception “has the burden of making a prima facie showing that the communications were in furtherance of an intended or present illegality . . . and that there is some relationship between the communications and the illegality.” In re Grand Jury Proceedings, 87 F.3d 377, 380 (9th Cir. 1996) (alteration in original) (quoting United States v. Laurins, 857 F.2d 529, 540 (9th Cir. 1988)). The moving party cannot “merely . . . allege that it has a sneaking suspicion the client was engaging in or intending to engage in a crime or fraud when it consulted the attorney.” Id. at 381. The district court must instead “find reasonable cause to believe that the attorney’s services were utilized in furtherance of the ongoing unlawful scheme.””
Stanton v. Stanton, No. 80910 (Nev. Mar. 3, 2022)
“Regardless of the parties’ waivers, the district court did not abuse its discretion in granting the motion as the court held a hearing on the motion and the evidence in the record supports a finding of clear and convincing evidence of a fraud upon the court. NRCP 60(d)(3) (permitting a district court to “set aside a judgment for fraud upon the court”); NC-DSH, Inc. v. Garner, 125 Nev. 647, 658, 218 P.3d 853, 861 (2009) (explaining that such motions are “addressed to the sound discretion of the trial court”). This court notes as well that neither appellant nor respondent sought an evidentiary hearing nor made any request to call witnesses or present evidence outside of what was provided to the court in the pleadings.”
Rivas v. Arreguin, 502 P.3d 187 (Nev. App. 2022)
“Further, we recognize that the limited analysis in the district court’s order may reflect that its decision to deny Rivas s motion was based on a determination that he failed to establish adequate cause for an evidentiary hearing and that it was therefore unnecessary to entertain his motion at an evidentiary hearing. See Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993) (explaining that the district court has discretion to deny a motion to modify custody without conducting an evidentiary hearing if the moving party fails to establish adequate cause for such a hearing).”
“Otherwise, an evidentiary hearing is required. It is so ORDERED.”
Peck v. State, No. 75026 (Nev. App. Oct. 15, 2018)
“Peck correctly argues on appeal that the six month time limit contained in NRCP 60(b) does not bar a motion to set aside judgment based upon fraud upon the court. See NC-DSH, Inc. v. Garner, 125 Nev. 647, 659, 218 P.3d 853, 861-62 (2009) (stating that “[o]ur Nevada cases have held that a party who seeks relief from a judgment based on fraud upon the court is not subject to NRCP 60(b)’s six-month limitation period”).”
“See NC-DSH, 125 Nev. at 657, 218 P.3d at 860-61 (providing that in order to have a final judgment vacated for fraud upon the court, fraud must be established by clear and convincing evidence).”
Nelson v. The Eighth Judicial Dist. Court of the State, 138 Nev. Adv. Op. 82 (Nev. 2022)
“The district court did not abuse its discretion in ruling on the motion without holding an evidentiary hearing Nelson argues that Ryan’s Express requires an evidentiary hearing and findings of fact and conclusions of law on a disqualification motion. She asserts that the requirement applies to disqualification motions concerning both lawyers and nonlawyers.”
“So, too, is the decision to hold an evidentiary hearing. See id. Generally, evidentiary hearings should be utilized where “factual questions are not readily ascertainable,” or if “witnesses or questions of credibility predominate.””
“Thus, where fact and credibility determinations are necessary to the resolution of either question, the trial court should hold an evidentiary hearing.”
Statutes (8)
“The Attorney General or the Attorney General’s designee may move to dismiss the action for good cause.”
“Upon the request of the private plaintiff, the court shall determine, after a hearing, whether the proposed settlement is fair, adequate and reasonable under all the circumstances.”
Section 645.844 – Recovery from Fund: Procedure; grounds; amount; hearing, Nev. Rev. Stat. § 645.844
“Upon the hearing on the petition, the petitioner must show that: (a) The petitioner is not the spouse of the debtor, or the personal representative of that spouse. (b) The petitioner has complied with all the requirements of NRS 645.841 to 645.8494, inclusive. (c) The petitioner has obtained a judgment of the kind described in subsection 1, stating the amount thereof, the amount owing thereon at the date of the petition, and that the action in which the judgment was obtained was based on fraud, misrepresentation or deceit of the licensee in a transaction for which a license is required pursuant to this chapter. (d) A writ of execution has been issued upon the judgment and that no assets of the judgment debtor liable to be levied upon in satisfaction of the judgment could be found, or that the amount realized on the sale of assets was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due. (e)”
“1. If the Commission or a hearing panel, after notice and hearing, finds that the executive board or any person acting on behalf of the association has committed a violation, the Commission or the hearing panel may order an audit of the association. 2. The Commission, or the Division with the approval of the Commission, may apply to a court of competent jurisdiction for the appointment of a receiver for an association if, after notice and a hearing, the Commission or a hearing officer finds that any of the following violations occurred: (a) The executive board, or any member thereof, has been guilty of fraud or collusion or gross mismanagement in the conduct or control of its affairs; (b)”
“The hearing thereon may be had after 5 days’ notice unless the court directs a longer or different notice and different parties. 4.”
“1. If the Commission or a hearing panel, after notice and hearing, finds that the executive board or any person acting on behalf of the association has committed a violation, the Commission or the hearing panel may take any or all of the following actions: (a) Order an audit of the association, at the expense of the association. (b) Require the executive board to hire a community manager who holds a certificate. 2. The Commission, or the Division with the approval of the Commission, may apply to a court of competent jurisdiction for the appointment of a receiver for an association if, after notice and a hearing, the Commission or a hearing officer finds that any of the following violations occurred: (a) The executive board, or any member thereof, has been guilty of fraud or collusion or gross mismanagement in the conduct or control of its affairs; (b)”
“The court may authorize the guardian to take any action described in subsection 1 if, after notice to any person who is adversely affected by the proposed action and an opportunity for a hearing, the court finds by clear and convincing evidence that: (a) A reasonably prudent person or the protected minor would take the proposed action and that a person has committed or is about to commit any act, practice or course of conduct which operates or would operate as a fraud or act of exploitation upon the protected minor or estate of the protected minor and that person: (1) Is designated as a beneficiary in or otherwise stands to gain from an instrument which was executed by or on behalf of the protected minor; or (2) Will benefit from the lack of such an instrument; or (b) The proposed action is otherwise in the best interests of the protected minor for any other reason not listed in this section. 4.”
“The court may authorize the guardian to take any action described in subsection 1 if, after notice to any person who is adversely affected by the proposed action and an opportunity for a hearing, the court finds by clear and convincing evidence that: (a) A reasonably prudent person or the protected person, if not incapacitated, would take the proposed action and that a person has committed or is about to commit any act, practice or course of conduct which operates or would operate as a fraud or act of exploitation upon the protected person or estate of the protected person and that person: (1) Is designated as a beneficiary in or otherwise stands to gain from an instrument which was executed by or on behalf of the protected person; or (2) Will benefit from the lack of such an instrument; or (b) The proposed action is otherwise in the best interests of the protected person for any other reason not listed in this section. 4.”
Section 645B.750 – Duty of Commissioner to provide written notice of disciplinary action or denial of license; right to administrative hearing; entry of final order; appeals, Nev. Rev. Stat. § 645B.750
“Unless a hearing has already been conducted concerning the matter, the person, upon application, is entitled to a hearing. If the person does not make such an application within 20 days after the date of the initial order, the Commissioner shall enter a final order concerning the matter. 3.”
“The proceedings in every case must be heard by the court, and must be informal and summary, but full opportunity to be heard must be had before judgment is pronounced.3.”
Regulations (3)
Section 679B.090 – Contents of petition; decision of court, Nev. Admin. Code § 679B.090
“1. A petition for payment must contain copies of the documents of the court which show, to the satisfaction of the Commissioner, the grounds for the final judgment.”
“Except as otherwise provided in this subsection, the decision of the court must include a specific finding by the court that the licensee perpetrated fraud, intentional misrepresentation, embezzlement or deceit on the petitioner in connection with a transaction for which the licensee was licensed. If the decision of the court does not include a specific finding, sufficient evidence that the licensee committed any of the acts set forth in this subsection must be presented to the Commissioner. The Commissioner will accept copies of verdicts and findings from federal and state courts including findings made pursuant to Title 11 of the United States Code relating to the discharge of the bankrupt, if he or she determines that there is a final judgment which includes a specific finding of fraud, intentional misrepresentation, embezzlement or deceit on the part of the licensee. 3.”
“Unless a hearing has already been conducted concerning the matter, the person, upon application, is entitled to a hearing. If the person does not make such an application within 20 days after the date of the initial order, the Commissioner will enter a final order concerning the matter. 3.”
“Unless a hearing has already been conducted concerning the matter, the person, upon application, is entitled to a hearing. If the person does not make such an application within 20 days after the date of the initial order, the Commissioner will enter a final order concerning the matter. 3.”
Analysis (1)
A Due Process Travesty in a Workers Compensation Case
“Judge Vernoia found it violative of due process for the judge to dismiss a case “where credibility of the witnesses is an issue and the underlying facts are disputed” without hearing the claimant’s testimony. That violated “fundamental fairness” and “the fundamental tenet of our Anglo-American system of justice.””
“It was also error to make credibility findings based only on the claimant’s affidavit and the testimony of respondent’s witnesses who “did not witness the incident and could not describe the manner in which petitioner jumped.” On top of all that, the judge wrongly “found petitioner was a liar and conditioned restoration of petitioner’s claim petition on proof petitioner is ‘honest.’” Neither respondent nor the panel found any authority for such an action, Judge Vernoia said. “There is no requirement a petitioner first establish he or she is honest before obtaining a hearing on a claim petition.””