NRS 116.31164(3)(2013) vs. NRCP 22: Interpleader vs. HOA bylaws prohibiting delegation

NRS 116.31164(3) (2013) duties after the sale

NRS 116.31164(3) (2013) defines ministerial duties mandated on a debt collector after conducting an HOA foreclosure sale. Red Rock did not comply with 3(b) or 3(c ) after Red Rock sold 2763 White Sage without statutorily required notice to Nona Tobin on 8/15/14.

Rule 22. Interpleader

(a) Grounds.

(1) By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though:

(A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or

(B) the plaintiff denies liability in whole or in part to any or all of the claimants.

(2) By a Defendant. A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim.

(b) Relation to Other Rules and Statutes. This rule supplements — and does not limit — the joinder of parties allowed by Rule 20. The remedy this rule provides is in addition to — and does not supersede or limit — the remedy provided by any Nevada statute authorizing interpleader. These rules apply to any action brought under statutory interpleader provisions, except as otherwise provided by Rule 81.

NRCP 22

Why interpleader was an abuse of process

NRCP 22 was corruptly utilized by Plaintiff Red Rock after unlawfully holding the sale proceeds for more than six years. Red Rock had no legitimate grounds for filing the interpleader action. Red Rock was not exposed to any liability as there were no recorded claims for those proceeds other than Nona Tobin’s 3/28/17 deed. Red Rock filed the interpleader complaint for improper purposes, including, but not limited to, the obstruction of the fair, evidence-based adjudication of Nona Tobin’s claims for quiet title and equitable relief.

What do HOA bylaws have to do with it?

NRS Chapter 116 is the chapter of the Nevada Revised Statutes that governs homeowners associations AKA “common-interest communities”.

NRS 116.3106 defines mandatory provisions that must be included in an HOA’s bylaws.

NRS 116.3106(1)(d) requires that an HOA’s bylaws define what an HOA Board of Directors can delegate

NRS 116.3106  Bylaws.

      1.  The bylaws of the association must:

      (d) Specify the powers the executive board or the officers of the association may delegate to other persons or to a community manager;

NRS 116.3106(1)(d)
Sun City Anthem bylaws 3.20/3.18 prohibit delegation of these duties:

Relevance to Red Rock’s misappropriation of the proceeds of the sale

Bylaws 3.18(b) levying and collecting assessments

SCA bylaws 3.18 (b) prohibited the Sun City Anthem Board from delegating policy control over “levying and collecting assessments”, but handled control of the debt collection and foreclosure function over to Red Rock based on the advice of its managing agent, FirstService Residential (FSR) who unjustly profited by misinforming the volunteer members of the HOA Board about their fiduciary duty to the HOA and to the common good of the membership at large.

Over-delegation caused by undisclosed conflict of interest

FirstService Residential (FSR) was both on contract with Sun City Anthem to be the managing agent and held the NRS 649 debt collection license doing business as Red Rock Financial Services, a partnership (EIN 88-0358132)

Link to FSR-SCA 3/31/14 management agreement

Link to RMI-SCA 1/1/10 management agreement is relevant only insofar as the HOA signed the contract with FSR after its agent RMI management, LLC was purchased by, or merged with, or somehow or another, morphed into FSR.

Secondly, this financial conflict of interest is relevant in that it allowed the agents to control all the records in a manner that allowed them to cover up the misappropriation of funds as well as the wrongful foreclosure of a dozen Sun City Anthem homes in 2014 when the transfer of managing agents occurred.

Bylaws 3.18(e) depositing funds in an approved bank and using funds to operate the HOA

Red Rock did not deposit the funds collected anywhere that they were used for the operation of the HOA.

The funds should have been placed in a Sun City Anthem Trust Account and certainly not in a Red Rock Financial Services Trust Account.

Bylaws 3.18(g) opening bank accounts and designating signatories required

Red Rock did not comply with these SCA bylaws restrictions on the proper depositing of these funds into an account where the Sun City Anthem Board controls the signatories.

The Sun City Anthem Board is ultimately accountable for the funds collected on behalf of the HOA under the HOA’s statutory authority. The bylaws provision was obviously required in order to prevent the very type of conversion that FSR dba Red Rock perpetrated here.

By not complying with the bylaws, the proceeds of this sale and at least a dozen other Sun City Anthem foreclosures were retained in an unaudited, unsupervised account, misnamed as an “attorney trust account”. None of these funds were under the proper control of the HOA Board. These funds, belonging to Sun City Anthem, were wrongly under the proprietary control of a partnership with undisclosed partners, Red Rock Financial Services EIN 88-0358132 and/or Steven Scow, an individual, and/or Koch & Scow LLC.

Red Rock agent/employee Christie Marling instructed Steven Scow to deposit the “excess” proceeds of the sale with the court for interpleader on 8/28/14. Steven Scow did not do it.

Bylaws 3.18(i) enforcing the governing documents, bringing legal proceedings, providing due process guaranteed by CC&Rs 7.4

Neither the Sun City Anthem Board nor the SCA managing agent FSR nor the SCA debt collector FSR dba Red Rock complied with CC&Rs 7.4 when they imposed the sanction of foreclosure on the alleged violation of delinquent assessments.

None of the notice and due process required by the HOA’s CC&Rs were provided prior to selling 2763 White Sage as the sanction for an alleged violation of $2,200 delinquent assessments.

Further, the assessments were only delinquent due to the malicious misconduct of the HOA’s agents, FSR and FSR dba Red Rock, who THREE TIMES misapplied or rejected payments of assessments prior to the sale, and then lied and falsified documents to cover up their crime.

Red Rock and HOA attorneys conspired to defraud the HOA homeowners regarding multiple secret Sun City Anthem foreclosures

Link to 4/27/12 Red Rock-SCA debt collection agreement (concealed in discovery)

Red Rock attorney Steven Scow refused to produce the applicable debt collection contract or any contract.

SCA attorney David Occhoa produced the wrong contract.

SCA

Counter-claim vs. Red Rock Financial Services

Factual allegations

  1. Plaintiff RRFS knows that all the liens recorded related to named Defendants other than Nona Tobin, i.e., Republic Services, Wells Fargo, and Nationstar have been released on 3/30/17, 8/17/04, 3/12/15, and 6/3/19, respectively.  See Exhibit 1: APN 191-13-811-052 Clark County Property Record and allegations of fraud vs. all parties
  2. The HOA sale was void as payments and tenders after 7/1/12 were rejected, misappropriated, misrepresented, and/or concealed. Default did not occur as described in the 3/12/13 Notice of default or as recited in the 8/22/14 foreclosure deed. See Exhibit 2: The sale was void for rejection of assessment payments.
  3.  The Default was cured three times, but RRFS kept pursuing the predatory path to unwarranted, unjustly profitable foreclosure. See Exhibit 3: the alleged default was cured three times.
  4. There was no valid authorization of the sale, but RRFS disclosed deceptive and falsified documents to create the misrepresentation of reality. See Exhibit 4: The HOA Board did not authorize the sale by valid corporate action.
  5. Required notices were not provided, but RRFS falsified records to cover it up. See Exhibit 5: Required notices were not provided, but it was covered up by falsified records.
  6. SCA Board imposed the ultimate sanction against the estate of the deceased homeowner, but RRFS and SCA attorneys concealed and misrepresented material facts and the law to cover it up. See Exhibit 6: The HOA Board imposed the ultimate sanction for an alleged violation of the governing documents with NO due process.
  7. Bank of America never was the beneficiary of the Hansen deed of trust, but committed mortgage servicing fraud, refused to let two fair market value sales close escrow, refused to take the title on a deed in lieu, took possession without foreclosing, and used attorney Rock K. Jung to covertly tender delinquent assessments to  circumvent the owner’s rights under the PUD Rider remedies (f) to confiscate her property without foreclosing.  See Exhibit 7: Neither Bank of America nor Nationstar ever owned the disputed Hansen deed of trust, but tried to steal the property.
  8. Many examples of RRFS’s corrupt business practices exist of keeping fraudulent books, scrubbing page numbers from ledgers, combined unrelated documents to rewrite history, scrubbing dates from emails, not documenting Board actions,  and much more. See Exhibit 8: Examples of Red Rock’s corrupt business practices. 
  9. All opposing counsels in all the litigation over the title to this one property made misrepresentations in their court filings and made oral misstatements of materials facts and law at hearings. See Exhibit 9: Attorneys’ lack of candor to the tribunal.
  10. The proceeds of the sale were not distributed in 2014 and RRFS’s complaint for interpleader in 2021 was filed in bad faith. See Exhibit 10: The proceeds of the sale were not distributed pursuant to NRS 116.31164(3) (2013)
  11. RRFS concealed the 4/27/12 debt collection contract that requires RRFS to indemnify the HOA and has been unjustly enriched thereby well over $100,000 in fees and considerably more in undistributed proceeds. RRFS did not participate in NRS 38.310 mediation in good faith. See Exhibit 11: Red Rock’s fraud, unfairness and oppression
  12. In case A-19-799890-C, Brody Wight knowingly filed a motion to dismiss Nona Tobin’s claims pursuant to NRCP (b)(5) and NRCP (b)(6) that was totally unwarranted, harassing, disruptive of the administration of justice, not supported by facts or law, and filed solely for the improper purpose of preventing discovery of the crimes of his law firm and its clients. See Exhibit 12: Attorney interference in the administration of justice.
  13. None of the opposing counsels have acted in good faith in compliance with the ethic standard of their profession. All have failed in their duty of candor to the court, wasted millions of dollars in judicial resources, and have engaged in criminal conduct to further the criminal conduct of their clients. See Exhibit 13: Lack of professional ethics and good faith.
  14. Attorneys have knowingly presented false evidence into the court record in discovery. See Exhibit 14: Presented false evidence to cover up crime.
  15. Nationstar and RRFS conspired to conceal the manner in which RRFS covertly rejected Nationstar’s $1100 offer to close the MZK sale. Civil Conspiracy. See Exhibit 15: Civil conspiracy to cover up racketeering warrants punitive damages.
  16. Exhibit 16 Republic Services lien releases
  17. Exhibit 17 Nona Tobin’s standing as an individual
  18. Exhibit 18 Relevant statutes and regulations
  19. Exhibit 19 Relevant HOA governing document provisions
  20. Exhibit 20 Administrative complaints
  21. Exhibit 21 Nevada court cases regarding the wrongful foreclosure of 2763 White Sage
  22. Exhibit 22 Nona Tobin’s 1/31/17 cross-claim vs Sun City Anthem, DOEs & ROEs excerpts: statement of facts, 5th cause of action: unjust enrichment, identification of parties

First cause of action: Interpleader

The court must find that the proceeds of the 8/15/14 must be distributed to the only claimant, Nona Tobin, immediately with interest, sanctions and penalties for failure to comply with the statutory requirement to distribute the proceeds immediately after the sale.

Red Rock did not comply with the statute

RRFS’s agent/employee Christie Marling was the “person who conducted the sale”.

NRS 116.31164(3) (2013) defines Christie Marling’s ministerial duties following the sale
RRFS 052 shows Christie Marling COMPLIED with 3(a) and sent a foreclosure deed to the purchaser.
Ombudsman’s records show that Christie marling DID NOT COMPLY with 3(b) as no foreclosure deed was sent to the Ombudsman following the unnoticed 8/15/4 sale.
RRFS 047 and RRFS 048 show that Christie Marling TRIED TO COMPLY with 3(c) by instructing Steven Scow to deposit the funds with the court for interpleader.
Steven Scow DID NOT COMPLY with 3(c) and did not deposit the funds with the court as instructed by the person who conducted the sale.

Steven Scow DID NOT COMPLY with SCA bylaws to deposit the funds in an account controlled by the SCA Board when he did not deposit the funds with the court and he did not distribute them according to the statute.

Second cause of action:

Unjust enrichment or Conversion

1. Link to HOA bylaws restriction on delegation of control over funds collected for the HOA
2. Page 1336 Resident Transaction Report 8/27/14 ledger entry $2,701.04 paid the HOA in full, but RRFS provided falsified ledgers in response to subpoena.
3. Excerpt of 10/15/14 email shows RRFS rebuffed my attempt to make a claim for the excess proceeds by saying it was deposited with the court.
4. Link to 4/27/12 RRFS debt collection contract that was concealed in discovery that contains the unenforced indemnify provision that Red Rock has unjustly profited from at the expense of Sun City Anthem homeowners.
5. Link to Red Rock’s duplicitous 6/23/20 motion to dismiss my quiet title and unjust enrichment claims per NRCP 12(b)(5) and NRCP 12(b)(6)
6. Link to Red Rock’s duplicitous 2/15/21 interpleader complaint

Third cause of action: Racketeering

  1. COUNTER-DEFENDANT RRFS AND CROSS-DEFENDANT NATIONSTAR engaged in racketeering activities as defined in NRS 207.360 and a racketeering enterprise as is defined in NRS 207.380;
  2. COUNTER-DEFENDANT RRFS AND CROSS-DEFENDANT NATIONSTAR, acting directly, and in conspiracy with one another or through their syndicate(s), participated directly in racketeering activity by engaging in at least two crimes related to racketeering;
  3. COUNTER-DEFENDANT RRFS AND CROSS-DEFENDANT NATIONSTAR’s activities have the same or similar pattern, intent, results, accomplices, victims, or methods of commission, or otherwise interrelated by distinguishing characteristics and are not isolated events;
  4. COUNTER-DEFENDANT RRFS AND CROSS-DEFENDANT NATIONSTAR acquired or maintained directly or indirectly an interest in, or control of, any enterprise, or defendants are employed by or associated with any enterprise to conduct or participate directly or indirectly in the affairs of the enterprise through a racketeering activity;
  5. COUNTER-CLAIMANT AND CROSS CLAIMANT NONA TOBIN’s injuries flow from the defendant’s violation of a predicate Nevada RICO act;
  6. NONA TOBIN’s injury was be proximately caused by the defendant’s violation of the predicate act;
  7. NONA TOBIN’s did not participate in the commission of the predicate act; and
  8. NONA TOBIN’s is entitled to institute a civil action for recovery of treble damages proximately caused by the RICO violations. NRS 207.470(1).
  9. COUNTER-DEFENDANT RRFS conspired with, aided and abetted CROSS-DEFENDANT NATIONSTAR, and many other lenders, to perpetrate a fraud on the court with a quid pro quo of Nationstar’s (and fill-in-the-blank OTHER LENDER’S NAME)’s not asserting a claim for the excess proceeds so Koch & Scow could keep whatever proceeds they wanted without fear of audit or challenge.

Prayer for relief

  1. COUNTER-CLAIMANT AND CROSS CLAIMANT NONA TOBIN repeats, realleges, and incorporates herein by this reference the allegations hereinabove inclusively as though set forth at length and in full herein. 
  2. This counterclaim has been necessitated by the COUNTER-DEFENDANT RRFS’s AND CROSS-DEFENDANT NATIONSTAR’s bad faith conduct. 
  3. Pursuant to Nevada law, COUNTER-CLAIMANT AND CROSS CLAIMANT NONA TOBIN’s may recover her attorney fees as special damages because she was required to file this suit as a result of COUNTER-DEFENDANT RRFS AND CROSS-DEFENDANT NATIONSTAR’ intentional conduct.[1] 

COUNTER-CLAIMANT AND CROSS CLAIMANT NONA TOBIN petitions the Court to declare:

  • that the disputed HOA sale is void due to fraud in the execution by Red Rock Financial Services;
  • that the disputed HOA sale did not extinguish the GBH Trust’s, nor its successor in interest’s rights to title;
  • that Nona Tobin is entitled to the $57,282 undistributed proceeds of the sale with six+ plus years interest and exemplary penalties pursuant to NRS 42.005.
  • that sanctions are appropriate vs. RRFS for its fraudulent conduct of HOA foreclosures sales;
  • that sanctions are appropriate vs. RRFS for its falsification of records to evade detection of misappropriation of funds;
  • that sanctions are appropriate vs. RRFS for its retention of proprietary control of the proceeds of the foreclosure of the subject property, and of approximately a dozen other Sun City Anthem 2014 foreclosures, when RRFS knew, or should have known that the HOA Board was prohibited by Sun City Anthems bylaws from delegating proprietary control over funds collected for the sole and exclusive benefit of the association;
  • that sanctions are appropriate vs. RRFS for its failure distribute foreclosure proceeds timely after the sales, as mandated by NRS 116.31164(3):
  • that sanctions are appropriate vs. RRFS for Koch & Scow’s unsupervised, unaudited retention of the funds of many, many HOA foreclosures allowed attorney trust fund violations to go undetected; 
  • Koch & Scow’s filed its unwarranted 6/23/20 motion to dismiss, its 8/3/20 reply in support, and its 12/3/20 motion to dismiss, knowing that all these filings contained many misrepresentations of material facts for which there was no factual support or evidence,  defied NRCP 11 (b)(3), Nevada Rules of Professional Conduct 3.3 (candor to the tribunal), 3.4 (fairness to opposing counsel), 3.5A (relations with opposing counsel), 4.1 (truthfulness in statements to others), 4.4 (respect for the rights of third persons) and ABA (1992) Standards for Imposing Lawyer Sanctions  6.1 (False statements, fraud, and misrepresentation).
  • that sanctions are appropriate vs. RRFS for its misappropriation of funds, covert rejection of assessments, falsification of records that allowed the unjust enrichment of undisclosed partners and co-conspirators;
  • that Nona Tobin is entitled to treble damages for the fraudulent confiscation of the subject property, valued on 12/27/19 at $505,000 property pursuant to NRS 207.470(1) as RRFS’s actions on the dozen 2014 unnoticed foreclosures constitute racketeering;
  • that sanctions are appropriate pursuant to NRS 18.010(2) vs. RRFS for its filing the improper interpleader action with penalties as all other named defendants’ liens have been released and Nationstar mortgage is judicially estopped from claiming it ever was the beneficial owner of the Hansen deed of trust;
  • that Nona Tobin, an individual’s, 3/28/17 deed is the sole valid title claim;
  • that Jimijack’s defective, 6/9/15 deed was inadmissible as evidence to support its title claim pursuant to NRS 111.345;
  • that the Joel Stokes-Civic Financial Services “agreement”, recorded on 5/23/19, and misrepresented to Judge Kishner on 5/21/19 as the Nationstar-Jimijack settlement was fraud on the court and sanctionable conduct pursuant to ;
  • that sanctions are appropriate vs. Nationstar and its Akerman attorneys pursuant to NRCP 11 (b)(1)(2)(3)(4) (misrepresentations in court filings), Nevada Rules of Professional Conduct 3.3 (candor to the tribunal), 3.4 (fairness to opposing counsel), 3.5A (relations with opposing counsel), 4.1 (truthfulness in statements to others), 4.4 (respect for the rights of third persons) and ABA (1992) Standards for Imposing Lawyer Sanctions  6.1 (False statements, fraud, and misrepresentation).
  •  To declare that Joel Stokes’ deed, recorded on 5/1/19, was void as Jimijack had no interest to convey and that this transfer prior to the 6/5/19 trial was for the corrupt purpose of deceiving the court into allowing Joel Stokes and Nationstar to perpetrate a fraud on the court;
  • That Nona Tobin is entitled to recoup treble damages pursuant to NRS 207.470 (1) and (4);
  •  That Nona Tobin is entitled to is entitled to recoup damages equivalent to five years of rental income from Jimijack;
  • that Nationstar Mortgage LLC’s (Herein “NSM” or “Nationstar”) claims to own the beneficial interest of the disputed Western Thrift Deed of Trust (Herein “DOT”) are false and sanctionable under NRS 205.395, NRS 205.377, NRS 207.400 and that Nona Tobin is entitled to treble damages by their misconduct pursuant to NRS 207.470;
  • that all instruments, encumbrances and assignments, and expungements of lis pendens that were improperly and/or unlawfully notarized, executed or recorded to create false claims, or were done for the improper purpose of abrogating Tobin’s rights during the pendency of litigation, and/or prior to the adjudication of Plaintiff’s claims in this instant action, are cancelled and declared without legal force and effect; and
  • that attorneys pay Tobin’s attorney fees and costs as a sanction pursuant to  NRCP 11(b)(1)(3) and/or NRS 18.010(2)

[1] Sandy Valley Assocs. v. Sky Ranch Estates Owners Ass’n, 117 Nev. 948, 958, 35 P.3d 964, 970 (2001), citing American Fed. Musicians v. Reno’s Riverside, 86 Nev. 695, 475 P.2d 220 (1970).

Cause of Action: Conversion

  1. According to Jay Young, Nevada Law Blog:

In Nevada, the elements for a claim of conversion are:

  1. A distinct and intentional act of dominion by one which is wrongfully exerted over the property of another;
  2. Act committed in denial of, or inconsistent with the rightful owner’s use and enjoyment of the property;
  3. Act committed in derogation, exclusion, or defiance of the owner’s rights or titled in the property; and
  4. Causation and damages

M.C. Multi-Family Development, L.L.C. v. Crestdale Assoc., Ltd., 193 P.3d 536, 543 (Nev., 2008); Evans v. Dean Witter Reynolds, 5 P.3d 1043 (Nev. 2000); Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980); Wantz v. Redfield, 74 Nev. 196 (1958); Boylan v. Huguet, 8 Nev. 345 (1873).

Interpleader Complaint was filed with an ulterior motive

2/3/21 Red Rock Financial Services Interpleader Complaint electronically issued without notice to defendants

Case was assigned to Judge Kishner Dept 31

Judge Kishner immediately recused herself “in order to avoid the appearance of impartiality

link to 2/9/21 minutes
There was no electronic service of the recusal as Steven Scow did not put any defendants’ service contacts into Odessey

2/9/21 Department reassignment from Judge Kishner (Dept. 31) to Judge Jessica K. Peterson (Dept. 8) occurred without notice

There was no electronic service of the notice of departmental reassignment as Steven Scow did not put any defendants’ service contacts into Odessey.
Link to 2/9/21 NODR notice of department reassignment

Service on Nona Tobin, as an individual

link to affidavit of service on Nona Tobin, an individual
Serving Nona Tobin as an individual was necessary because Nona Tobin, as an individual, has THE ONLY recorded claim for the proceeds.
Link to Nona Tobin’s 3/28/17 deed, as an individual,

Service on Nona Tobin, as a trustee

Unnecessary because Steven scow knows the Hansen Trust was closed in 2017.

link to affidavit of service on Nona Tobin, as trustee
Nona Tobin, as the trustee of the Gordon B. Hansen Trust, dated 8/22/08, does not have a competing claim with herself as an individual. The Hansen Trust was closed in 2017 when the title was transferred to Nona Tobin, an individual, as the sole beneficiary.
Page 2 of Nona Tobin’s 3/28/17 deed shows that the Hansen Trust has been closed

Service on Wells Fargo

Service was unnecessary as Wells Fargo released its 5/10/07 lien on 3/12/15

Link to Wells Fargo’s 3/12/15 Substitution and Reconveyance
Wells Fargo’s Registered agent Corporation Service Company, was served in Carson City, 112 North Curry Strret, 89703
link to affidavit of service on Wells Fargo

Obviously, Wells Fargo will not file a claim for the excess proceeds.

Service on Nationstar

Unnecessary because Nationstar (albeit for a corrupt intent and with no legal authority) released the lien of the disputed Hansen deed of trust on 6/3/19

Link to the 6/3/19 release of the lien of the Hansen deed of trust

Obviously, Nationstar will not file a claim for the excess proceeds.

Nationstar’s Registered agent Corporation Service Company, was served in Carson City, 112 North Curry Strret, 89703
Link to affidavit of service on Nationstar

Service on Republic Services

Service on Republic Services was unnecessary because its liens were released in 2017.

Republic Services was served on 2/16/21 at 12:23 PM via the Danielle Nakicommercial agent CT Corporation System, 701 S. Carson St., Ste. 200, Carson City 89701
link to affidavit of service on Republic Services

Amazing 24-hour turn-around made possible by Red Rock’s failure to distribute funds before statutory liens were released.

Disclaimer of interest was filed on 2/17/21 at 12:23 PM by Republic Silver State Disposal, Inc. d/b/a Republic Services
Link to disclaimer of interest by Republic Services
Link to Republic Services 3/30/17 lien release instrument 20170330003859
Link to Republic Services 3/30/17 lien release instrument 20170330003860
Obviously, Republic Services will not file a claim for the excess proceeds.

Steven Scow knew filing for interpleader more than six years late when only one person had a recorded claim was unwarranted.