Request for equal treatment

Motion to reconsider the January 16, 2023 order to grant non-party Red Rock LLC’s motion for attorney fees

Comes now Nona Tobin (“Tobin”), in Proper Person, to respectfully move the court to reconsider the 1/16/23 judgment order. Movant asserts that this court lacks jurisdiction over non-party Red Rock Financial Services, LLC (Herein “Red Rock LLC”), and all non-party Red Rock LLC’s filings therefore must be stricken as rogue, and once all rogue filings are stricken, Tobin’s claims and petitions for sanction against parties Red Rock and Nationstar must be granted as unopposed.

PROCEDURAL CONTEXT

The Nevada Supreme Court rejected Tobin’s petition 85251 to arrest these proceedings prior to a final judgment order, saying that appeal was Tobin’s “plain, speedy and adequate” remedy. This motion to reconsider the 1/16/23 order attempts to equitably resolve all parties’ claims without the court acting outside its jurisdiction and without the court forcing Tobin to appeal unequal treatment.

No hearing is requested. Movant requests the court vacate as moot an unnecessary hearing scheduled for 2/2/23 to hear Tobin’s Motion For An Order To Show Cause Why Written Findings Of Attorney Misconduct Should Not Be Forwarded To The State Bar.

Movant respectfully requests that the court consider the motions herein in conjunction with the four motions currently docketed for in-chambers review on 2/8/23.

Movant respectfully requests that this court equitably resolve all claims of all parties in this case by striking all non-party rogue filings and granting Tobin’s unopposed claims and petitions for sanctions against parties Red Rock and Nationstar thereby.

LEGAL STANDARDS AND ARGUMENT

  1. Red Rock Financial Services LLC (“Red Rock LLC”) is not the Plaintiff nor is it a Counter-Defendant in case A-21-828840-C.

The court record and the findings of fact, quoted below from Tobin’s 6/27/22 proposed order, establish that Red Rock LLC is not, and never has been, a party in A-21-828840-C.

  1.  On 2/3/21, Red Rock Financial Services, a partnership, (“Red Rock”) filed the current interpleader complaint (2/3/21 COMP) was identified in the caption as the only Plaintiff.
  2. Red Rock Financial Services, LLC (“Red Rock LLC”) did not file the complaint, and Red Rock LLC was not listed in the caption as the Plaintiff.
  3. The Notice of Appearance and the Initial Appearance Fees Declaration (2/3/21 IAFD) does not include an appearance or fees paid for Red Rock LLC to appear as a party.
  4. Red Rock LLC was not identified as the Plaintiff on any of the summons or Affidavits of Service of the Complaint on any of the five named Defendants: (2/17/21 AOS Republic Services), (2/17/21 AOS Wells Fargo),  (2/17/21 AOS Tobin as Trustee),  (2/17/21 AOS Nationstar), (2/17/21 AOS Tobin, an individual)
  5. Defendant Nona Tobin, an individual, filed the only Counter-Claims (3/8/21 AACC) in the case, and she identified Plaintiff Red Rock as the only Counter-Defendant.
  6. Counter-Claimant Tobin did not file or serve any Counter-Claims against non-party Red Rock LLC, and none of the other four Defendants filed or served any Counter-Claims against Red Rock LLC.
  7. Nationstar’s and Wells Fargo’s answer to the complaint (4/9/21 ANSC) did not contain any Counter-Claims against Red Rock LLC.
  • Nevada Supreme Court decisions affirm that this court lacks jurisdiction to grant judgment for or against non-party Red Rock Financial Services LLC (“Red Rock LLC”)

I.C.A.N. Foods, Inc. v. Sheppard (In re Aboud Inter Vivos Trust), 314 P.3d 941, 946 (Nev. 2013) (“Young v. Nev. Title Co., 103 Nev. 436, 442, 744 P.2d 902, 905 (1987) (“A court does not have jurisdiction to enter judgment for or against one who is not a party to the action.””)

Non-party Red Rock LLC is not the Plaintiff.  Non-party Red Rock LLC did not serve the complaint on any Defendant. Non-party Red Rock LLC never “pled a claim for relief”.

I.C.A.N. Foods, Inc. v. Sheppard (In re Aboud Inter Vivos Trust), 314 P.3d 941, 946 (Nev. 2013) (“Young v. Nev. Title Co., 103 Nev. 436, 442, 744 P.2d 902, 905 (1987) (“A court does not have jurisdiction to enter judgment for or against one who is not a party to the action.””)

Process of service is a prerequisite of a court acquiring jurisdiction, and no party filed or served any claims against non-party Red Rock LLC in this case.

Levin v. Second Judicial Dist. Court of Nevada, No. 63941, at *6 (Nev. Sep. 11, 2017) (“Service of process is required before a court can exercise personal jurisdiction over a person or entity. C.H.A. Venture v. G.C. Wallace Consulting Eng’rs, Inc., 106 Nev. 381, 384, 794 P.2d 707, 709 (1990) (“Personal service or a legally provided substitute must still occur in order to obtain jurisdiction over a party.”). Moreover, “[a] district court is empowered to render a judgment either for or against a person or entity only if it has jurisdiction over the parties and the subject matter,” and a district court cannot exercise personal jurisdiction over a party—even one with actual notice of the proceedings—unless that party has first been adequately served. Id. at 383-84, 794 P.2d at 708-09 (emphasis added)”)

  • To intervene, NRCP 24 requires a timely motion and an interest in the subject non-party Red Rock LLC does not have.

Non-party Red Rock LLC did not file a motion to intervene.

Non-party Red Rock LLC has no interest in the subject of the proceedings.

Non-party Red Rock LLC did not ever have any contractual relationship with the HOA, Sun City Anthem, under whose statutory authority the HOA sale was conducted. Non-party Red Rock LLC did not conduct the 8/15/14 foreclosure sale of 2763 White Sage.

Non-party Red Rock LLC did not ever possess, hold in trust, or have any interest in, the $57,282.32 excess proceeds that Plaintiff/Counter-defendant/HOA Sale Trustee Red Rock failed to distribute after the 8/15/14 sale. 

Non-party Red Rock LLC is not the entity that disregarded the NRS 116.31164(3)(c) (2013) mandate to distribute all the proceeds after the sale in 2014 in the manner proscribed by that clear and unambiguous controlling statute.

Non-party Red Rock LLC is not the entity that is still unlawfully withholding the $57,282.32 excess proceeds from sole claimant Tobin, 8+ years after the sale, pending action by this court.

Therefore, non-party Red Rock LLC never timely filed the required NRCP 24(a)(2) motion to intervene. It could not assert it had an interest it did not have:

“an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.”

Further, there is no provision in NRCP 24 for a court to sua sponte allow a non-party to intervene when there has been no motion to intervene wherein the non-party claimed it had an interest that could not otherwise be protected. NRCP 24 requires a timely motion to initiate intervention. NRCP 24 does not give a court sua sponte authority to turn an entity that did not file and serve the complaint into the Plaintiff. NRCP 24 does not give a court sua sponte authority to turn an entity against whom no claims were filed or served into a Counter-defendant.

  • Rogue filings must be stricken as they disrupted the interpleader action filed 2/3/21 and caused Tobin’s money to be unfairly withheld two years and unfairly cost her $31,000 in attorney fees and costs to defend against Non-party’s motion to dismiss.

Despite having no protectable interests, including no interest in the $57,282.32 that Plaintiff Red Rock has withheld from Tobin for 8+ years, non-party Red Rock LLC filed multiple oppositions to this court distributing the interpleaded funds to sole claimant Tobin.

Non-party Red Rock LLC filed the successful motion for attorney fees and costs granted by the 1/16/23 order that sanctioned Tobin for filing counter-claims of fraud, racketeering, and conversion and a petition for sanctions against party Red Rock for fabricating evidence, falsifying accounts, and misrepresenting material facts to court to cover it up.

Non-party Red Rock LLC also filed the successful motion to dismiss with prejudice Tobin’s counter-claims of fraud, racketeering, and conversion and a petition for sanctions against party Red Rock for fabricating evidence, falsifying accounts, and misrepresenting material facts to court to cover it up. By granting the non-party’s motion the court ignored that neither party responded and simply gave them a free pass.

Young v. Nevada Title Co., 103 Nev. 436, 442 (Nev. 1987)

“The district court was without the power to retain jurisdiction over non-parties because it never had such jurisdiction in the first place. A court does not have jurisdiction to enter judgment for or against one who is not a party to the action. Quine v. Godwin, 646 P.2d 294, 298(Ariz.Ct.App. 1982); Fazzi v. Peters, 440 P.2d 242, 245(Cal. 1968). Accordingly, it is clear the district court erred in entering judgment in favor of non-parties.”)

  • Koch & Scow LLC, attorneys for both Plaintiff Red Rock, a partnership (EIN88-0358132) and Non-party Red Rock LLC, knowingly misrepresented the parties to confuse the court.

The screenshot below shows page 1 of the 4/16/21 motion to dismiss with prejudice (NRCP 12(b)(5)) Tobin’s counter-claims against Counter-Defendant Red Rock and Tobin’s petition for sanctions against Counter-Defendant Red Rock that was filed by Koch & Scow LLC, attorneys for Plaintiff Red Rock as well as the attorney for the Non-party. It shows that the attorneys corrected represented what Plaintiff they were representing, but misrepresented the Non-party as the Plaintiff and as the Counter-Defendant in the caption. The Movant is clearly identified as the Non-party.

Koch & Scow LLC repeat this duplicitous pattern throughout.

The screenshot below it the first page of Non-party Red Rock LLC’s 6/13/22 opposition to Tobin’s 2nd amended motion to distribute the proceed with interest to her as the sole claimant as for attorneys fees and costs and opposition to Tobin’s motion to correct three orders where the Non-party is incorrectly identified in the captions as the Plaintiff and Counter-Defendant. The Non-party renewed its 12/28/21 motion abuse of process, for a vexatious litigant restrictive order, and for attorneys’ fees and costs.

  • There is precedent within this dispute for striking a non-party’s filings as rogue.

Tobin was removed as a party from the 1st action three years after she first filed into the case as a pro se. Setting aside discussion about the unfairness of it, the result was Tobin’s pro se filings, including dispositive motions, supported by a large volume of verified evidence, were stricken unheard and undecided once she was declared a non-party as an individual.

Below is a screenshot of an excerpt from the conclusions of law, based on the misrepresentations in the findings of the 11/22/19 post-trial order that retroactively removed Tobin as a party from the 1st action.

Movant requests that the court apply this exact same conclusion of law to non-party Red Rock LLC as was applied to Tobin in the 1st action. Specifically, Movant requests the court conclude that:

“Because Red Rock LLC is not a party to this case, all documents filed with this court by Red Rock LLC are rogue documents and are stricken from the record.”

In the 1st action, Tobin was severely damaged because she was removed as a party and her pro se filings stricken without allowing her to put on her case. The 1st court, without holding the evidentiary hearing required by NRS 40.110[1], resolved the title dispute by approving an out of court settlement between Nationstar and Jimijack. Since Tobin was declared a non-party even though has had filed claims and held a recorded deed, she was excluded from the trial and was not treated like a necessary party under Rule 19.

Nationstar collected $355,000 as a quid pro quo from non-party Joel Stokes in exchange for a free and clear title by releasing the lien of the deed of trust it provably did not own, and they passed this off as the Nationstar-Jimijack settlement. Neither Nationstar nor Jimijack ever even filed or served any quiet title claims against Tobin or the Hansen Trust, but both prevailed by simply by getting Tobin declared a non-party. Getting all Tobin’s claims precluded against all defendants in subsequent proceedings concealed their fraudulent transfers of the property and the defects in their recorded claims.

  • Non-party Red Rock LLC’s filings must be stricken or it is an unjust double standard.

In the face of the extreme prejudice Tobin suffered because of her opponents’ successful tactic of misrepresenting her standing to be a party as an individual, it is an obvious double standard to arbitrarily treat Red Rock LLC as a party when it provably is a non-party.

In this case, it is incontrovertible that Red Rock LLC is not, and was not ever, a party in case A-21-828840-C. All its rogue filings must be granted, and the resulting orders that exempted parties Red Rock and Nationstar from court rules must also be declared void as the fruit of the poison tree. The court must resolve any factual dispute of party status solely by evidence and the factors the Nevada Supreme Court says are predicate conditions of party status. It cannot be resolved by just saying it doesn’t matter, or that Red Rock and Red Rock LLC are in privity, or they share the same attorney.

Myers v. Haskins, 138 Nev. Adv. Op. 51, 8-9 (Nev. App. 2022) (“evidentiary hearings are designed with this purpose in mind: to resolve disputed questions of fact. See DCR 13(6) (recognizing that disputed factual points may be resolved at evidentiary hearings); EDCR 5.205(g) (providing that exhibits attached to motions do not constitute substantive evidence unless admitted); cf. Nev. Power Co. v. Fluor III., 108 Nev. 638, 644-45, 837 P.2d 1354, 1359 (1992) (recognizing that conducting an evidentiary hearing is the only way to properly resolve questions of fact concerning whether to dismiss a party’s suit as a discovery sanction)”)

It would be as unjust for this court, without conducting an evidentiary hearing, to arbitrarily confer party status on Non-party Red Rock LLC as it was unjust for the 1st court to rely on Tobin’s opponents’ misrepresentations to arbitrarily strip Tobin’s party status from her without conducting an evidentiary hearing. It would be equivalent to settling a dispute over whether a marriage is legal by just asking one spouse and not checking the court records.

If this court arbitrarily confers party status on Non-party Red Rock LLC, it will unfairly gain the right of appeal that was arbitrarily taken away from Tobin in the 1st action. Otherwise, Non-party Red Rock LLC has no right to appeal any decision this court makes as it is not “an aggrieved party” under NRAP 3A.  “This court has jurisdiction to entertain an appeal only where the appeal is brought by an aggrieved party.” Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 446, 874 P.2d 729, 734 (1994). 

  • Failing to strike the non-party’s rogue filings also enables Red Rock and Nationstar to prevail by unfairly exempting them from complying with court filing rules.

If this court gives Non-party Red Rock LLC party status by fiat, it also gives unfair advantages to Counter-Defendant Red Rock and Cross-Defendant Nationstar that severely damage Tobin. On 3/8/21, Tobin filed counter- and cross-claims against Red Rock and Nationstar of Fraud, Racketeering, and Conversion and petitions for sanctions (fabrication of evidence, falsification of accounts, fraudulent transfers, obtaining court’s signature on false pretenses) pursuant to NRCP 11 (the cover up, misrepresentations to court), NRS 42.005 (punitive damages), and NRS 207.470(1) (civil damages from racketeering, multiple transactions involving deceit, fraud).

If this court arbitrarily confers party status on Non-party Red Rock LLC it allows these unfair advantages to be given to parties Red Rock and Nationstar within these proceedings:

  1. Arbitrarily conferring party status on Non-party Red Rock LLC exempts parties Red Rock and Nationstar from complying with court rules regarding filing a responsive pleading within 21 days, or at all.
  2. It dismisses with prejudice all Tobin’s claims (Fraud, Racketeering, Conversion, sanctions for fabricating evidence, misrepresentations to court, gaining the court’s signature on false pretenses) against Counter-Defendant Red Rock and Cross-Defendant Nationstar on the unsupported grounds, as alleged by the disinterested Non-party, of claims preclusion/res judicata without the parties Red Rock and Nationstar ever having had to file a responsive pleading that refuted Tobin’s extraordinarily serious, factually and legally supported allegations in any way.
  3. It arbitrarily shifted the burden of proof from Counter-Defendant Red Rock and Cross-Defendant Nationstar to Tobin such that Red Rock and Nationstar were not required to meet their burden of proof that the elements of res judicata/claims preclusion were even met before this court granted the Non-party’s rogue, untimely motion to dismiss all Tobin’s claims against them with prejudice.
  4. Because the court granted the Non-party’s motion to dismiss all Tobin’s claims with prejudice, this court has rejected motions for an evidentiary hearing to allow her to prove that sanctions are warranted against parties Red Rock and Nationstar. This is particularly unfair because Tobin has petitioned the court for sanctions to be imposed precisely because Red Rock’s and Nationstar’s successful suppression of her evidence and the unfair removal of her as a party from the 1st action precipitated all the subsequent litigation.
  5. By granting the non-party’s motion, the court denied Tobin 8+ years interest, at the Nevada legal interest rate that should have been payable to rightful owner Tobin, on funds that Plaintiff Red Rock, not the non-party, unlawfully held. This unfairly exempted Plaintiff Red Rock from being required to cite any legal authority for it having held money that rightfully belonged to Tobin for more than eight years.

CONCLUSION

Movant requests that the court apply this exact same conclusion of law to non-party Red Rock LLC as was applied to Tobin as an individual in the 1st action. Specifically, Movant requests the court conclude that:

“Because Red Rock LLC is not a party to this case, all documents filed with this court by Red Rock LLC are rogue documents and are stricken from the record.”

Movant requests reconsideration of the 1/16/23 order that improperly entered judgment by granting non-party Red Rock LLC’s motion and dismissed with prejudice Tobin’s claims and petitions for sanctions against without requiring parties Red Rock and Nationstar to file any responsive pleading to answer Tobin’s claims of fraud, conversion and racketeering, and excusing them from having to answer or refute Tobin’s factually and legally supported petitions for sanctions for fabrication of evidence, falsifying accounts, obstruction of justice and obtaining the court’s signature on false pretenses.

Movant respectfully requests that this court vacate the 2/2/23 hearing on Requests for Judicial Notice of Uninvestigated Complaints to decide these motions without oral argument in conjunction deciding the other motions scheduled for in-chambers review on 2/8/23. Dated this 23rd day of January 2023

[1] 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.