What the motion to disqualify Judge Peterson seeks

The motion seeks orders from Chief Judge as Judge Peterson’s impartiality in this case can reasonably be questioned

Disqualify Judge Peterson from this case only pursuant to NCJC 2.2 (lack of fairness and impartiality); 2.6 (failure to ensure the right to be heard); 2.7 (failure to decide claims); 2.9 (improper ex parte communications); 2.15 (didn’t report attorney misconduct to the State Bar or take other appropriate actions)
Set aside the 3/28/23 order pursuant to NRCP 5959(a)(1)(A) (irregularity in the proceedings) or (B)(misconduct of prevailing party) (C) (ex parte vexatious litigant bench order in absentia and refusal to attach opposition to order) and/or NRCP 60(b)(1)(mistake, errors of law), NRCP 60(b)(3) (misrepresentation), NRCP 60(d)(3) (fraud on the court) and conduct an evidentiary hearing to establish by clear and convincing evidence that fraud on the court had obstructed a fair adjudication of my claims
Alternatively, simply set aside the 3/28/23 order as being outside the curt’s jurisdiction, unsupported by undisputed facts, containing findings that are not supported by evidence and improperly filed without allowing me to attach my opposition to it, and grant my 12/19/22 and 1/23/23 unopposed motions pending when Judge Peterson’s improper ex parte hearing unfairly exempted my opponents from meeting the requirements of EDCR 2.20, i.e., (filed a written opposition to motions)
By settling the jurisdictional question of standing first, based on evidence, facts, and law, striking rogue filings, and treating non-party Red Rock LLC exactly the way I was treated in the 1st action when I was removed from the case as an individual party before the trial, this case could be resolved immediately and fairly.

The Chief Judge is asked to balance the equities:

Should the Chief Judge disqualify Judge Peterson so another court can conduct the NRS 40.110 evidentiary hearing that has never been held to resolve Tobin’s title dispute?

vs.

Should the Chief Judge let stand an order that restricts Tobin’s filing any civil action vs. any defendant for any cause of action except if an attorney file it for her?

“Within 10 days after the service of the motion, and 5 days after service of any joinder to the motion, the opposing party must serve and file written notice of non-opposition or opposition thereto, together with a memorandum of points and authorities and supporting affidavits, if any, stating facts showing why the motion and/or joinder should be denied. Failure of the opposing party to serve and file written opposition may be construed as an admission that the motion and/or joinder is meritorious and a consent to granting the same.”
EDCR 2.20(e) Motions; contents; responses and replies; calendaring a fully briefed matter.

Consider the overwhelming, unjustified prejudice to Tobin, and unfair advantage to her opponents, if the 3/28/23 order stands

defamtory order declares me a vexatious litigant when there are no facts to justify it.
I am publicly humiliated and branded by an egragiously unfair and overly broad order that is faught with unsubstantiated, factually incorrect, insulting lies while I am blocked from getting my legitimate claims addressed.
I am prohibited from complaining about the attorneys who lied to the court, filed meritless claims by lying about their clients’ standing and misrepresenting the evidence, who entered false and falsified evidence into the record, who obstructed my case from being heard on the merits by unethical means including improper ex parte communications and concealing inculpatory evidence, who fraudulently transferrred the title before the trial, who falsified title reports
A judge’s personal opinion stands that my complaints against attorneys and the prior judge are “unprovable” and “improper” solely because she decided she didn’t need to conduct an evidentiary hearing to decide against me and order me not to stop complaining.
The motion for an order to show cause why attorneys should not be disciplined for filing false evidence, obstructing my case, that restricts me from filing any civil action vs. any defendant for any cause of action as a pro se is unappealable because Judge Peterson neither granted the motion nor denied in an appealable order. Therefore, the attorneys get a free pass from ever having to refute or deny my claims and I am prohibited from complaining about it.

Consider there is no prejudice to Judge Peterson if she voluntarily recuses herself or if Chief Judge excludes her from the decision to set aside the 3/28/23 order on jurisdictional or other grounds

None. She continues to be a judge. She just makes no more decisions on this case. Whether the reviewing judge decides to set aside the 3/28/23 order because Judge peterson acted outside her jurisdiction to grant relief to a non-party or acted improperly to exempt Tobin’s opponents from the EDCR 2.20 requirements at the unnoticed ex parte hearing or for whatever reason, Tobin will be made whole, at no cost to Judge Peterson. She never has to see the case again. It doesn’t go to the courts of appeal or the the commission on judicial and so her permanent record is unaffected.

Conclusion

There’s a hard way that everyone will fight

1. Declarations and exhibits provide evidence and legal authority to justify reassigning the case to another judge for a new trial so an evidentiary hearing can be finally held as Tobin has repeated requested and her opponents have repeatedly obstructed.

And there’s an easy way to end it without appeal

2.alternatively, the case can be resolved immediately on jurisdictional grounds, i.e., that Red Rock LLC’s lack of standing as an interested party to the dispute requires that its rogue filings be stricken from the record by granting Tobin’s 1/23/23 motions as unopposed and adopting the order submitted on 2/10/23 that Judge Peterson denied because she had improperly and unfairly exempted Tobin’s opponents from EDCR 2.20 at the 2/2/23 ex parte hearing.

Relief from fraud on the court can only be granted after a proper hearing

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)

Section 357.120 – Effect of intervention of Attorney General or designee in action by private plaintiff; motion to dismiss; settlement, Nev. Rev. Stat. § 357.120

“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)”

Section 116B.915 – Remedial and disciplinary action: Audit of association; appointment of receiver, Nev. Rev. Stat. § 116B.915

“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.”

Section 116.790 – Remedial and disciplinary action: Audit of association; requiring association to hire community manager who holds certificate; appointment of receiver, Nev. Rev. Stat. § 116.790

“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)”

Section 159A.078 – Petition by guardian or other interested person for order authorizing or directing guardian to take certain actions, Nev. Rev. Stat. § 159A.078

“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.”

Section 159.078 – Petition by guardian or other interested person for order authorizing or directing guardian to take certain actions, Nev. Rev. Stat. § 159.078

“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.”

Section 533.450 – Orders and decisions of State Engineer subject to judicial review; procedure; motions for stay; appeals; appearance by Attorney General, Nev. Rev. Stat. § 533.450

“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.”

Section 645F.855 – Notice of and hearing on certain orders of Commissioner; entry of final order; appeal of final order taking disciplinary action, Nev. Admin. Code § 645F.855

“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.”

Section 645A.365 – Notice of and hearing on certain orders of Commissioner; entry of final order; appeal of final order taking disciplinary action, Nev. Admin. Code § 645A.365

“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.””

The A-21-828840-C interpleader action was filed in bad faith

The facts of this case, considered within the context of the Nevada case law articulated below in the www.casetext.com AI-assisted legal research memo, show the A-21-828840-C case, was filed for an improper purpose.

The research memo lists three main ways of assessing if an interpleader action was filed in bad faith:

delay in filing the action
the stakeholder is not disinterested
the filer knew, or should have known, the defendants don’t have valid competing claims

the Plaintiff Red Rock partnership subsidiary of firstService Residential, Nevada LLC did not have standing as it had instructed its attorney, Steven Scow to file the action on 8/28/14 and had given him a check to Clark County district Court to deposit $57,282.32 designated as “excess funds 2763 White Sage” for interpleader
the filer attorney Steven Scow was not disinterested as he concealed from the court that he had disobeyed his client Red Rock’s instructions to deposit $57,282.32 with the court on 8/28/14 and Scow concealed that Red Rock had taken all fees it was legally permitted pursuant to NRS 116.31164(3)(c )(1)(2)(2013) prior to the 8/21/14 date the check was made out to the court designated as “excess”
the filer attorney Steven Scow, who may be one of the unidentified Red Rock partners, converted the funds to an account under his personal proprietary control rather than distribute them to the rightful owner six years earlier as required by law and as he had been instructed by his client
the filer attorney Steven Scow knew there was only one defendant that had a valid recorded claim to the interpleaded proceeds after June 3, 2019, and the research memo lists filing an action when you know that there are no competing claims is an indicator of bad faith

Casetext.com Legal Research Memo

Question Presented

What would constitute direct evidence that an interpleader action was filed in bad faith?

Answer

There are a number of potential indicators of bad faith in filing an interpleader action, including: delay in filing the action, filing an action that does not meet the requirements for interpleader, acting in bad faith to create the controversy necessitating the interpleader, or lacking a good faith belief that there are competing claims to the stake.

Analysis

One potential indicator of bad faith in filing an interpleader action is delay in filing the action. As the court in Pruco Life Ins. Co. v. Killingsworth noted, a stakeholder’s delay in filing an interpleader action may show bad faith, even if the action is ultimately filed correctly. Additionally, as the court in Principal Life Ins. Co. v. Calloway discussed, an interpleader action must meet certain requirements in order to be proper, and a filing that does not meet these requirements could be evidence of bad faith.

Another potential indicator of bad faith is if the stakeholder acted in bad faith to create the controversy necessitating the interpleader. As the court in Raymond James & Assocs. v. Bassford noted, the stakeholder must have a “good faith belief” that there are competing claims to the stake in order to file an interpleader action, and the absence of such a belief could be evidence of bad faith. Additionally, as the court in Michelman v. Lincoln Nat’l Life Ins. Co. held, the stakeholder must have a good faith belief that there are or may be colorable competing claims to the stake in order to avail itself of the interpleader remedy.

Finally, as the court in Sun Life Assur. Co. v. Sampson discussed, a court may deny an award of fees and costs to a stakeholder in an interpleader action if the stakeholder has acted in bad faith. This could include contributing to the need for interpleader by acting in bad faith or by unduly delaying in seeking relief.

Cases (40)

Pruco Life Ins. Co. v. Killingsworth, CIVIL ACTION NO. 5:19-cv-55-DCB-MTP (S.D. Miss. Nov. 26, 2019)

The case discusses the possibility that a delay in filing an interpleader action may show bad faith, even if the action is ultimately filed correctly.

“A stakeholder’s delay in filing an interpleader action may show bad faith, even where the interpleader action is rightly filed. See Steinberg’s Dept. Store, Inc. v. Hartford Fire Ins. Co., 407 N.E.2d 124 (Ill. Ct. App. 1980).”

“However, an inadequate investigation of a claim or inaction may constitute bad faith. See James v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65 (5th Cir. 2014)(finding evidence that an insurer was inactive or did nothing meaningful to investigate the claim for several months, including the period after the suit was filed, could support a jury finding of bad faith). When a company decides to pursue its equitable remedy in interpleader, it should act with a “reasonable degree of promptness and with reasonable diligence.” John Hancock Mut. Life Ins. Co. v. Doran, 138 F.Supp. 47, 49 (S.D. NY 1958).”

Principal Life Ins. Co. v. Calloway, Case No. 1:19-cv-00147-DAD-SKO (E.D. Cal. Feb. 23, 2021)

The case discusses the requirements for a proper interpleader action, which could be used to argue that a filing that does not meet these requirements was made in bad faith.

“Thus, interpleader is proper. 2. Propriety of Discharge and Dismissal If the court determines that an interpleader is proper, it may discharge the stakeholder from further liability.”

“”A court should readily discharge a disinterested stakeholder from further liability absent a stakeholder’s bad faith in commencing an interpleader action, potential independent liability to a claimant, or failure to satisfy requirements of rule or statutory interpleader.” OM Financial Life Ins. Co. v. Helton, No. 2:09-cv-01989 WBS EFB, 2010 WL 3825655, at *3 (E.D. Cal. Sept. 28, 2010).”

Great Am. Life Ins. Co. v. Hollick, Case No.: 17-cv-1288-AJB-WVG (S.D. Cal. Feb. 5, 2018)

The case discusses the possibility of bad faith in commencing an interpleader action, and provides a standard for determining whether the stakeholder is acting in bad faith.

“OM Financial Life Ins. Co. v. Helton, No. CIV. 2:09-1989 WBS EFB, 2010 WL 3825655, at *3 (E.D. Cal. Sept. 28, 2010) (citations omitted).”

“Auth., 700 F.2d 91, 96 (2d Cir. 1983) (holding that a disinterested stakeholder may be discharged unless the action was brought in bad faith).”

Great Am. Life Ins. Co. v. Brown-Kingston, Case No. 2:18-cv-02783-MCE-KJN (E.D. Cal. May. 13, 2019)

The case discusses the possibility of bad faith in commencing an interpleader action, and provides a citation to an authority that addresses the issue in more detail.

“OM Financial Life Ins. Co. v. Helton, No. 2:09-cv-01989 WBS EFB, 2010 WL 3825655, at *3 (E.D. Cal. Sept. 28, 2010) (citations omitted). GALIC argues it is a disinterested stakeholder who brought this action in good faith, thus should be discharged from liability. See New York Life Ins. Co. v. Connecticut Dev.”

State Auto Prop. & Cas. Ins. Co. v. Burnett, NO. 3:16-CV-73-DMB-JMV (N.D. Miss. Sep. 29, 2017)

The authority discusses the possibility of a court denying or delaying the discharge of a stakeholder in an interpleader action if there are “serious charges that the stakeholder commenced the action in bad faith.”

“A court may nevertheless delay or deny discharge of the stakeholder if there are “serious charges that the stakeholder commenced the action in bad faith.” Underwriters Grp., Inc., 2006 WL 1852254, at *5 (citing Mendez v. Teachers Ins. & Annuity Assoc., 982 F.2d 783, 788 (2nd Cir. 1992)).”

Sun Life Assur. Co. v. Sampson, 556 F.3d 6 (1st Cir. 2009)

The authority discusses the circumstances under which a court may deny an award of fees and costs to a stakeholder in an interpleader action, including when the stakeholder has acted in bad faith.

“The test is not satisfied if the stakeholder has contributed to the need for interpleader by acting in bad faith or by unduly delaying in seeking relief. Id. at 682 (footnotes omitted); see also Septembertide Publ’g, B.V. v. Stein Day, Inc., 884 F.2d 675, 683 (2d Cir. 1989); Ferber Co. v. Ondrick, 310 F.2d 462, 467 (1st Cir. 1962) (recognizing that fees in an inter-pleader action are “usually awarded . . . to compensate a totally disinterested stake-holder who [has] been . . . subjected to conflicting claims through no fault of his own”).”

“Sampson attempts to fit this case into two categories where the inter-pleading party is not usually allowed fees: (1) where the party acts in bad faith; and/or (2) where the interpleader is not disinterested, but benefits (beyond resolution of the issue) from the litigation. See Ferber, 310 F.2d at 467 (upholding the denial of fees where the “great bulk” of a party’s efforts were devoted to addressing a counterclaim as to which it was “in no way disinterested”); First Interstate Bank of Or, N.A v. United States, 891 F.Supp. 543, 548 (D.Or. 1995) (citing Schirmer Stevedoring Co. v. Seaboard Stevedoring Corp., 306 F.2d 188, 194-95 (9th Cir. 1962)) (noting that courts “routinely” award fees to a disinterested stakeholder “absent a showing of bad faith”); see also generally 7 Wright, Miller Kane, supra, § 1719, at 684-86.”

First Interstate Bancsystem, Inc. v. Afraid, CV 19-10-BLG-SPW (D. Mont. Feb. 14, 2019)

The case discusses the requirement that a stakeholder must have a “good faith belief” that there are competing claims to the stake in order to file an interpleader action, which implies that the absence of such a belief could be evidence of bad faith.

“Moreover, “in order to avail itself of the interpleader remedy, a stakeholder must have a good faith belief that there are or may be colorable competing claims to the stake.” Michelman v. Lincoln Nat.”

Steinberg’s Dept. Store v. Hartford Fire Ins. Co., 407 N.E.2d 124 (Ill. App. Ct. 1980)

The case discusses the question of whether an interpleader action was filed in good faith, and identifies factors that could suggest bad faith, such as the withdrawal of a claim and the potential for the interpleader to force a settlement.

“It is further argued that once the claim was withdrawn, Hartford was no longer justified in withholding payment of the $30,000, and the interpleader action was not, therefore, filed in good faith.”

“As indications of bad faith, Steinberg’s cites the June 22 letter from the Bank withdrawing its claim to the insurance proceeds and also contends that, under the law of Illinois, the named insured is the only party entitled to the proceeds of a fire insurance policy in the absence of a policy provision to the contrary. ( La Salle Extension University, Inc. v. B.F. Shaw Printing Co. (1965), 62 Ill.”

“Also persuasive is the fact that Hartford delayed payment for 13 months, allegedly to force Steinberg’s to settle with the Bank from its own funds without compensation from Hartford. Thus, even though the trial court ruled that interpleader was rightfully filed, Hartford’s delay could nevertheless have been in bad faith.”

Michelman v. Lincoln Nat’l Life Ins. Co., 685 F.3d 887 (9th Cir. 2012)

This case discusses the good faith requirement for filing an interpleader action, and provides guidance on what might constitute bad faith.

“See, e.g., Aaron v. Mahl, 550 F.3d 659, 663 (7th Cir.2008); CNA Ins. Cos. v. Waters, 926 F.2d 247, 251 (3d Cir.1991).”

“Therefore, we agree with the principle articulated in Lee and now expressly hold that in order to avail itself of the interpleader remedy, a stakeholder must have a good faith belief that there are or may be colorable competing claims to the stake.”

“Mack v. Kuckenmeister, 619 F.3d 1010, 1024 (9th Cir.2010) (quoting Ensley, 174 F.3d at 980).”

Maraist Law Firm, P.A. v. Coates, 21-CV-81467-AMC/BER (S.D. Fla. Jul. 6, 2022)

This case discusses the requirements for filing an interpleader action and the circumstances under which a court may impose sanctions for filing a frivolous claim. It specifically addresses the need for an identifiable res and the existence of multiple claimants, both of which are relevant to determining whether an interpleader action was filed in bad faith.

“I agree that Count VII was objectively frivolous. First, there was no adequate identifiable financial res to support an interpleader action against any of the Movants. See ECF No. 110 ¶ 57.”

“Persisting in this claim was frivolous and violated Rule 11 as to all Movants.”

“Maraist argues that it conducted proper diligence before filing the interpleader cause of action. ECF No. 113 at 5-6.”

“A reasonably diligent researcher would have uncovered these principles and realized that they precluded interpleading the funds and thumb drive in this case.”

Mendez v. Teachers Ins. and Annuity Ass’n, 982 F.2d 783 (2d Cir. 1992)

“New York Life Ins. Co., supra, 700 F.2d at 96.”

“In view of Mendez’ plain entitlement to the proceeds, TIAA-CREF’s delay in commencing an interpleader action clearly was unreasonable and impliedly was commenced in bad faith. TIAA-CREF has given us no reason for concluding that the district court’s decision denying TIAA-CREF’s motion for discharge was an abuse of discretion.”

Prudential Ins. Co. v. Hovis, 553 F.3d 258 (3d Cir. 2009)

“Faced with competing claims to the proceeds of a $100,000 life insurance policy, Prudential Insurance Company of America filed an interpleader complaint against the claimants, seeking to deposit the disputed sum with the District Court and withdraw from the proceedings. One of the claimants, Robert C. Hovis, then counter-claimed, alleging that Prudential had acted negligently and in bad faith in its handling of the policy changes that led to the dispute.”

“Prudential then decided to pursue an interpleader action, rather than resolve who was entitled to the funds.”

“Shortly thereafter, Hovis reached a settlement with Potter and Gerski for distribution of the insurance proceeds.”

“The Court also granted summary judgment to Prudential on Hovis’s counter-claims on the ground that the appropriateness of Prudential’s interpleader action shielded it from any liability relating to its failure to resolve the dispute over the interpleaded funds.”

QBE Specialty Ins. Co. v. Kane, CIVIL 22-00450 SOM-KJM (D. Haw. Jan. 27, 2023)

“Airborne Wireless Network, 2018 WL 6016994, at *3. That is not so here. Multiple adverse claims have already been filed against QBE.”

“This case differs significantly from Bierman, which involved a putative claimant the court concluded would never file a claim because it was a corporation owned by the interpleader-plaintiff. 246 F.2d at 203. This case is also distinguishable from Beardslee, in which the supposedly adverse claimant had never asserted a right to the stake and there was no readily apparent basis for such a claim. 216 F.2d at 461.”

“As a result, the court denied the request for interpleader, finding an absence of good faith.”

Raymond James & Assocs. v. Bassford, 2:21-cv-01825-DCN (D.S.C. Mar. 7, 2022)

“DISCUSSION Since Patricia’s motion to enjoin Scott under the interpleader statute depends on the existence of a valid interpleader action, the court first addresses Raymond James’s motion for interpleader before turning to the motion to enjoin. The court ultimately finds that Raymond James has instituted a proper interpleader action, and accordingly, the court enjoins Scott and Patricia from continuing or pursuing any claims related to the interpleaded funds. A. Motion for Interpleader 1. Subject-Matter Jurisdiction “Interpleader is a procedural device that allows a disinterested stakeholder to bring a single action joining two or more adverse claimants to a single fund.” Sec.”

“Fort Dearborn Life Ins. Co. v. Turner for A.R.Y., 2006 WL 8438341, at *5 (E.D. N.C. Dec. 19, 2006); see also Lee, 688 F.3d at 1012 (observing that “many courts have held that those who have acted in bad faith to create a controversy over the stake may not claim the protection of interpleader” and collecting cases); 44B Am. Jur. 2d Interpleader § 7 (“The equitable doctrine of ‘clean hands’ applies to interpleader actions. The party seeking interpleader must do equity, not have caused the conflicting claims, and be free from blame in causing the controversy.”).”

Wilton Reassurance Life Co. of N.Y. v. Engelhardt, Civil Action 21-09968 (D.N.J. Apr. 28, 2022)

“At the first stage, “the court determines whether the interpleader complaint was properly brought and whether to discharge the stakeholder from further liability to the claimants.” Prudential Ins. Co. of Am. v. Hovis, 553 F.3d 258, 262 (3d Cir. 2009).”

“Id. at 263 (alteration in original) (quoting Farmers Irrigating Ditch & Reservoir Co. v. Kane, 845 F.2d 229, 232 (10th Cir. 1988)). The Third Circuit had difficulty in seeing how Prudential was “in any way to ‘blame [for] causing the controversy.’” Hovis, 553 F.3d at 263 (alteration in original) (quoting Farmers Irrigating Ditch, 845 F.2d at 232).”

“Hovis, 553 F.3d at 263. The court in Hovis reasoned that even if Prudential had proceeded faster, there was every indication it would have been sued by Potter and Gerski for the funds.”

Sevelitte v. The Guardian Life Ins. Co. of Am., 55 F.4th 71 (1st Cir. 2022)

“Lee, 688 F.3d at 1012 ; see also, e.g., Hovis, 553 F.3d at 263 (“[A] party seeking interpleader must be free from blame in causing the controversy ….” (quoting Farmers Irrigating Ditch & Reservoir Co. v. Kane, 845 F.2d 229, 232 (10th Cir. 1988) )); Primerica Life Ins. Co. v. Woodall, 975 F.3d 697, 700 (8th Cir. 2020) (“[I]f the party asserting the right to interpleader[ ] … has acted unfairly to create the underlying conflict necessitating interpleader relief, then that party may not use the interpleader procedure as a shield ….”). Here, though, Renee has failed to plausibly allege any bad faith by Guardian. The Divorce Agreement, not Guardian, is responsible for creating the ambiguity as to the beneficiary designation, and Guardian never denied liability under the Policy; Guardian merely sought to resolve the ambiguity by making Robyn aware of the Estate’s potential claim and ultimately seeking interpleader.”

Transamerica Life Ins. Co. v. Shubin, CASE NO. 1:11-cv-01958-LJO-SKO (E.D. Cal. Jul. 10, 2012)

“”In an interpleader action, the ‘stakeholder’ of a sum of money sues all those who might have claim to the money, deposits the money with the district court, and lets the claimants litigate who is entitled to the money.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1265 (9th Cir. 1992). As such, the stakeholder forces the potential claimants to litigate who is properly entitled to the fund.”

“”Interpleader’s primary purpose is not to compensate, but rather to protect stakeholders from multiple liability as well as from the expense of multiple litigation.” Aetna Life Ins. Co. v. Bayona, 223 F.3d 1030, 1034 (9th Cir. 2000) (explaining that interpleaders are “governed by equitable principles”) (citations omitted). “Procedurally, an interpleader action encompasses two stages.”

“The second stage involves an adjudication of the adverse claims of the defendant claimants.””

Am. Gen. Life Ins. Co. v. Brown, DOCKET NO. 3:20-cv-00394-FDW-DSC (W.D.N.C. Feb. 12, 2021)

“Interpleader is appropriate when parties are engaged in a dispute about proceeds that remain in the hands of a third party who is willing to surrender such proceeds. See Equitable Life Assurance Soc’y. v. Jones, 679 F.2d 356, 358 n.2 (4th Cir.1982) (citations omitted).”

“Equitable concerns generally include the stakeholder acting in bad faith or unreasonable delay in bringing an interpleader action. Banner Life, 2011 WL 4565352, at *6.”

Lehto v. Allstate Ins. Co., 31 Cal.App.4th 60 (Cal. Ct. App. 1994)

“This is precisely what an insurer is required to do. (3) Plaintiff also theorized that Allstate’s conduct in filing and prosecuting the interpleader action constituted bad faith, relying on National Life Accident Ins. Co. v. Edwards (1981) 119 Cal.App.3d 326 [ 174 Cal.Rptr. 31] and Kelly v. Farmers Ins. Exchange (1987) 194 Cal.App.3d 1 [ 239 Cal.Rptr. 259].”

“It recognized, however, that the filing of an interpleader action will not sanitize a claim that is being prosecuted in bad faith.”

“While the filing of the interpleader action would not absolve Allstate of liability had it refused in bad faith to offer the policy limits to the Carbajals’ claimants, the filing of the interpleader, standing alone, cannot itself constitute an act of bad faith.”

“This situation is readily distinguishable from that of Allstate, which faced multiple bona fide claims against the Carbajals’ limited policy.”

“In fact, the interpleader action here had the intended result: It awarded plaintiff, the most seriously injured of the claimants, the $25,000 per person limit under the policy.”

Methven and Associates Professional Corporation v. Paradies-Stroud, No. C 13-01079 JSW (N.D. Cal. Jan. 21, 2014)

“The Stroud Defendants further argue that Plaintiff cannot maintain this interpleader action because it was brought in bad faith and because Plaintiff delayed too long before filing it. The authority to which the Stroud Defendants do not support these propositions.”

“Moreover, the Stroud Defendants have not demonstrated that filing the interpleader action, as opposed to giving the property directly to Ms. Stroud, was done in bad faith.”

Captain v. United Ohio Insurance Company, 2010 Ohio 2691 (Ohio Ct. App. 2010)

“Hoskins, supra, at 277, citing Hart, supra, at 188. Thus, to withstand United Ohio’s properly supported motion for summary judgment, the Appellants had to oppose the motion with evidence tending to show United Ohio arbitrarily or capriciously handled the claims against Willey. The term “arbitrary” means “without fair, solid, and substantial cause and without reason given; without any reasonable cause; * * * fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic.” 4D Investments, Inc. v. City of Oxford (Jan. 11, 1999), Warren App.”

“They essentially argue that the court utilized an improper legal standard to decide United Ohio’s summary judgment motion, i.e. it adopted a per se rule that filing an interpleader action is not bad faith. Instead, they argue the court should have considered whether the Appellants’ opposed the summary judgment motion with evidence tending to show United Ohio lacked a reasonable justification for its actions.”

Allstate Insurance v. Miller, 125 Nev. Adv. Op. No. 28, 49760 (2009), 212 P.3d 318 (Nev. 2009)

“Unless the policy says otherwise, an insurer does not have an independent duty to file an interpleader action on behalf of an insured. Nor is an insurer required to agree to a proposed stipulated judgment between the insured and the claimant if that stipulated judgment is beyond the policy limits.”

Cluck v. Mack, 489 S.W.2d 8 (Ark. 1973)

“In the answer she made the following allegations of bad faith: This interpleader action was filed in bad faith by the plaintiff for purposes of harassment and reducing the net amount of money which Margaret Ann Mack might obtain to go on her judgment of 10-7-70 against Charles Donald Cluck as evidenced by the following prior acts of this plaintiff: This plaintiff answered Margaret Ann Mack’s garnishment under her 10-7-70 judgment on Dec. 7, 1971, by claiming any money it held for or on behalf of Charles Donald Cluck was “contingent” on premiums being paid in full to 12-28-71 (when, in truth, said premiums were then fully paid to that date); and on any cash reserves under said policy not being depleted by loans to the insured (when, in truth.) the insured had never applied for any loan prior to service of the Writ); and on the insured being alive on 12-28-71 (a mere 21 days after the answer was filed). The answer of Charles Donald Cluck, filed April 7, 1972, asserted his claim to the fund and asked that both Blanche L. Cluck and Margaret Ann Mack be enjoined from the issuance of further writs of garnishment against the insurance policy proceeds.”

“The allegations in the complaint were not sustained by evidence — at least no evidence of any lack of good faith in the filing of the bill of interpleader was ever produced. The mere fact that an alleged claimant did not appear did not show lack of good faith on the part of the insurance company, and the fact that the claim of one or more of them turned out to be without merit, is not of controlling importance and is insufficient to furnish any basis for an inference that the filing was not in good faith, particularly in view of the fact that Blanche L. Cluck had, by one of the writs of garnishment asserted a claim to the proceeds.”

“Goad v. Goad, 238 Ark. 12, 377 S.W.2d 822.”

State Farm Life Ins. Co. v. Murphy, No. 2:15-cv-04793-DCN (D.S.C. Oct. 12, 2017)

“As explained in more depth in section III.2, the court finds that State Farm did not file its interpleader action without good cause or in bad faith.”

“The court can imagine a scenario where an insurer’s conduct in creating competing claims and delaying payments to a named beneficiary in the context of an interpleader action rises to the level of a viable bad faith claim. However, those facts are not present here.”

“Courts have been clear that where there is a reasonable ground for contesting a claim, and the court accepts the filing of the interpleader action, the insurer has not acted in bad faith by filing an interpleader claim. For example, in Minnesota Mutual Life Insurance Co. v. Ensley, 174 F.3d 977 (9th Cir. 1999), the Ninth Circuit upheld a district court’s determination that the insurer had acted reasonably in interpleading the policy benefits given its good faith belief that it faced the possibility of multiple claims.”

Nylife Distributors, Inc. v. Adherence Group, 72 F.3d 371 (3d Cir. 1995)

“Hence, one of two related questions we face is whether under section 1335, the district courts retain their traditional equitable discretion when deciding whether to hear a statutory interpleader case or defer to a state court; and the other is whether the district courts have a “virtually unflagging obligation” to exercise their section 1335 jurisdiction. In this regard, we find the Supreme Court’s decision in Weinberger v. Romeo-Barcelo, 456 U.S. 305 (1982), instructive.”

“See Bowles, 321 U.S. at 329. In support of their argument that the exceptional circumstances test set forth in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), should guide a district court’s decision to dismiss a federal interpleader action in favor of pending state proceedings, Gerasolo and Bleach rely heavily on section 1335(a), which states in pertinent part that “[t]he district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader. . . .” 28 U.S.C. §(s) 1335(a) (1993) (emphasis added).”

“On remand, the district court should determine, as a threshold matter, whether the state court action is indeed “parallel”; that is, whether it encompasses the competing claims to the Mainstay Mutual Fund monies that are raised here.”

Hicks v. Gabor, 354 Ga. App. 714 (Ga. Ct. App. 2020)

“On March 23, 2018, AOIC filed the instant Complaint for Interpleader and to Discharge Surety and Cancel the Bond. In the Complaint, AOIC stated that the claims against the Bond exceeded its remaining balance and asked the trial court to determine how to distribute the funds.”

“However, this is an interpleader action. The relevant interpleader statute, OCGA § 23-3-90 (a), states: Whenever a person is possessed of property or funds or owes a debt or duty, to which more than one person lays claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead.”

“First, it must be determined whether the complainant had a right to interplead, and second, the interpleading defendants are required to litigate matters in dispute between themselves.”

Scruggs v. Merkel Cocke, 2000 CA 1370 (Miss. 2001)

“Since the claim filed by Merkel Cocke addressed the same parties and controversy as the action previously filed by SMBD in Jackson County Chancery Court, Merkel Cocke’s claim for interpleader should have been filed as a compulsory counterclaim in the Jackson County Chancery Court action pursuant to M.R.C.P. 13(a). In other words, we find that the interpled funds should have been pled as a compulsory counterclaim in the Jackson County Chancery Court litigation rather than filed as multiple litigation involving the same parties and controversies in another chancery court in another county.”

“As previously stated, we find that the Coahoma County Chancery Court erred in allowing Merkel Cocke to proceed with the interpleader and further erred in releasing Merkel Cocke from all liability in connection with the interpled funds. ¶ 26. The Coahoma County Chancery Court granted Merkel Cocke attorney fees against SMBD.”

“In Brown v. Hartford Ins. Co ., 606 So.2d 122, 127 (Miss. 1992), this Court stated: Sanctions are appropriate when a claim is either frivolous or filed for harassment value. . . . When a party espouses a viable legal theory, MRCP 11 sanctions are inappropriate.”

Midland Nat’l Life Ins. Co. v. Ingersoll, Case No. 13-C-1081 (E.D. Wis. Dec. 18, 2014)

“In recent years, several courts have held that a disinterested stakeholder should not obtain a fee award if filing the interpleader action could be viewed as part of the stakeholder’s normal or ordinary course of business. See, e.g., Minn. Mut. Life Ins. Co. v. Gustafson, 415 F. Supp. 615, 618-19 (N.D. Ill. 1976); Moore’s, supra; Wright et al., supra. These courts also hold that interpleader actions are generally part of the ordinary course of the insurance business. Chase Manhattan, 21 F.3d at 383; Gustafson, 415 F. Supp. at 618-19; Moore’s, supra; Wright et al., supra. This exception to the rule of awarding attorneys’ fees to a disinterested stakeholder appears to stem from Judge Friendly’s opinion in Travelers Indemnity Co. v. Israel, 354 F.2d 488 (2d Cir. 1965). In that case, the court held that a district court did not abuse its discretion in refusing to award fees to several insurance companies who initiated an interpleader action.”

Indianapolis Colts v. Mayor City Council, 775 F.2d 177 (7th Cir. 1985)

“The Second Circuit, interpreting the amended rule, declared that Rule 11 is violated where, “after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law,” or “when it appears that a pleading has been interposed for any improper purpose.” Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985).”

“We must reiterate that in denying Baltimore’s motion for attorneys’ fees, the district court specifically found that Indianapolis had not acted with an improper purpose, and nothing in the record indicates that this conclusion was erroneous. Moreover, the above discussion establishing the justiciability of Indianapolis’ interpleader claim supports the district court’s finding that the claim was not filed for an improper purpose.”

“Clearly, the exercise of one’s legal rights to have a dispute resolved in federal court is not an abuse of the judicial process.”

Metropolitan Life v. Price, 501 F.3d 271 (3d Cir. 2007)

“MetLife stated that if the claimants did not resolve the matter amicably, it would bring suit. Price’s widow and the children negotiated, but they failed to reach an agreement.”

“The plaintiff in an interpleader action is a stakeholder that admits it is liable to one of the claimants, but fears the prospect of multiple liability. Interpleader allows the stakeholder to file suit, deposit the property with the court, and withdraw from the proceedings. The competing claimants are left to litigate between themselves.”

New York Life Ins. Co. v. Connecticut Dev. Auth, 700 F.2d 91 (2d Cir. 1983)

“Judgment discharging the stakeholder in an interpleader action may, of course, be delayed or denied if there are serious charges that the stakeholder commenced the action in bad faith.”

“In the present action, Sterling’s opposition to New York Life’s injunction motion charged that New York Life had listed CDA and MECCO as beneficiaries of the policies without Sterling’s knowledge or consent (Owens Aff. ¶ 7), for reasons of its own “greed and self-interest” ( id. ¶ 23). Had CDA or MECCO participated in the action and contested Sterling’s right to receive the cash surrender value of the policies, and had Sterling pursued his assertions as to New York Life’s bad faith, the district court would have been required to deal with these contentions in determining whether New York Life was entitled to any discharge from liability.”

Farmers Ins. Co. v. Romas, 947 P.2d 754 (Wash. Ct. App. 1997)

“On July 27, 1994, Farmers filed a complaint for interpleader on the grounds that Mr. Romas and the Paradiso Estate are both claiming that the other party was the driver at the time of the accident. Each is claiming entitlement to the $25,000 liability policy proceeds.”

“The complaint prays for declaratory relief asking the court to find that because Farmers deposited the funds with the court it has fulfilled its duty to defend either Mr. Romas as the named insured and/or the Paradiso Estate as the permissive insured.”

“In this case, Farmers would have a duty to defend both parties because both parties fit the definition of an insured person as established by case law.”

“However, the unilateral payment of policy limits into the registry of the court does not in and of itself relieve an insurer of its duty to defend. Viking, 57 Wn. App. at 349.”

AEG Westinghouse Transportation Systems, Inc. v. OEM Industrial Corp. (In re OEM Industrial Corp.), 135 B.R. 247 (Bankr. W.D. Pa. 1991)

“Furthermore, where the stakeholder has been dilatory in seeking judicial relief, and is thus culpable as to the difficulties encountered, an award may be denied. See John Hancock Mutual Life Ins. Co. v. Doran, 138 F. Supp. at 49 (“within one month after . . . realizing its predicament, [stakeholder] should have decided on a cause of action”). In the instant case, AEG did not seek to interplead for several months after the bankruptcy was filed. Although the parties were attempting to work out a settlement during this time, AEG was aware of all claims against it even before the bankruptcy was filed. The interpleader cause of action is designed specifically to limit a stakeholder’s exposure to liability.”

Trs. of the Elec. Workers Health & Welfare Trust v. F.A.S.T. Sys., Inc., 2:12-CV-148 JCM (CWH) (D. Nev. Jun. 27, 2013)

“Federal courts have the inherent power to punish conduct which abuses the judicial process, including accessing attorneys’ fees when a party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NSDCO, Inc., 501 U.S. 32, 45-46 (1991) (citation omitted). When imposing sanctions under its inherent authority, a court must make an explicit finding of bad faith or willful misconduct.”

“An award of attorneys’ fees pursuant to the court’s inherent power is appropriate when plaintiff has acted in bad faith, has willfully abused the judicial process or has willfully disobeyed a court order.”

“Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997) (“a finding of bad faith is warranted where an attorney ‘knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent'”) (citation omitted).”

Shayne v. Discover Bank, C. A. 8:21–cv-03544-BHH-KFM (D.S.C. Jan. 26, 2022)

“There are seven motions pending before the court, including two by Discover and five by the plaintiff. Discover argues that this matter should be dismissed based upon res judicata as well as the pending New Jersey Interpleader Action (doc. 6). Discover also seeks sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure from the plaintiff for having to defend this lawsuit (doc. 16).”

“Discover asserts that the plaintiff’s lawsuit was filed for an improper purpose, because it was filed to harass Discover and violates the Interpleader Order (id.). For relief, Discover seeks to recover attorney’s fees and costs for defending this action as well as an order enjoining the plaintiff from filing future litigation regarding the Discover accounts in question in this court (id. at 5).”

Yonko v. W. Coast Life Ins. Co., CIVIL ACTION NO. 1:20-CV-00109-GNS-HBB (W.D. Ky. Apr. 15, 2021)

“B. Motion to Dismiss In both suits, Robert alleged breach of contract and bad faith claims against West Coast Life pursuant to O.C.G.A. § 33-4-6. In the Western District of Kentucky, West Coast Life moved to dismiss Robert’s bad faith claim. (Def.’s Mot. Dismiss, DN 39). Motions pursuant to Fed.”

“”[O]rdinarily, the question of good or bad faith is for the jury, but when there is no evidence of unfounded reason for the nonpayment, or if the issue of liability is close, the court should disallow imposition of bad faith penalties.” Amica Mut. Ins. Co. v. Sanders, 779 S.E.2d 459, 463 (Ga. Ct. App. 2015) (alteration in original) (internal quotation marks omitted) (citation omitted). Robert acknowledges failing to satisfy the sixty-day notice provision.”

“Even construing Robert’s allegations in the light most favorable to him, his counterclaim does not support a reasonable inference that West Coast Life’s refusal to pay under the Policy was frivolous and unfounded.”

Sun Life Assurance Co. of Canada v. Bew, 530 F. Supp. 2d 773 (E.D. Va. 2007)

“In order to avoid liability from conflicting claims, a disinterested stakeholder, such as the Plaintiffs, that had issued an insurance policy or managed an investment account, may interplead contested funds into a court’s registry to resolve the issue of proper distribution. The disinterested shareholder can then procure a judicial order for discharge from future liability. Fed.R.Civ.P. 22; Reliastar Life Ins. Co. of N.Y. v. LeMone, No. Civ.A. 7:05CV00545, 2006 WL 733968, at *10 (W.D.Va.”

“Furthermore, attorneys’ fees and costs may be awarded to a stakeholder in an interpleader action based on the rationale that the stakeholder, “by seeking resolution of the multiple claims to the proceeds, benefits the claimants, and . . . should not have to absorb attorneys’ fees in avoiding the possibility of multiple litigation.” Reliastar Life Ins. Co. of N.Y., 2006 WL 733968, at *9 (citations omitted).”

Wackeen v. Malis, 97 Cal.App.4th 429 (Cal. Ct. App. 2002)

“The plaintiff in this state interpleader suit was the law firm McIntyre, Borges Burns, LLP. The defendants were Torrance Management Company, Inc., REM Ltd., and The Foundation for Thoroughbred Sciences, Inc. The case settled when Torrance Management Company, Inc. waived a claim to the interpleaded trust deed and stipulated that the other two defendants in that case were entitled to sole possession of the deed. The plaintiff in the federal interpleader case was Torrance Management Company, Inc. The defendants were Moran, a William Malis, the United States of America, and others.”

The Bd. of Trs. of the Leland Stanford Junior Univ. v. Chiang Fang Chi-Yi, 13-cv-04383-BLF (N.D. Cal. Aug. 22, 2022)

“Life Ins., 2007 WL 4209405, at *2. The Court may also “enter its order restraining [all claimants] from instituting or prosecuting any proceeding in any State or United States court affecting the property . . . involved in the interpleader action” and “discharge the plaintiff from further liability.” 28 U.S.C. § 2361; see also In re 1563 28th Ave., San Francisco, CA 94112, 333 F.R.D. 630, 635 (N.D. Cal. 2019).”

Republic of the Phil. v. Pimentel, 553 U.S. 851 (2008)

Statutes (3)

Section 815 ILCS 340/8, 815 ILCS 340/8

“Any claim by a consumer which is found by the court to have been filed in bad faith or solely for the purpose of harassment, or in complete absence of a justifiable issue of either law or fact raised by the consumer, shall result in the consumer being liable for all costs and reasonable attorney’s fees incurred by the manufacturer or its agent, as a direct result of the bad faith claim. 815 ILCS 340/8 P.A. 85-894.”

Section 624.155 – Civil remedy, Fla. Stat. § 624.155

“The insurer files an interpleader action under the Florida Rules of Civil Procedure. If the claims of the competing third-party claimants are found to be in excess of the policy limits, the third-party claimants are entitled to a prorated share of the policy limits as determined by the trier of fact. An insurer’s interpleader action does not alter or amend the insurer’s obligation to defend its insured. (b) Pursuant to binding arbitration that has been agreed to by the insurer and the third-party claimants, the insurer makes the entire amount of the policy limits available for payment to the competing third-party claimants before a qualified arbitrator agreed to by the insurer and such third-party claimants at the expense of the insurer.”

Section 231:6F – Costs, expenses and interest for insubstantial, frivolous or bad faith claims or defenses, Mass. Gen. Laws ch. 231 § 6F

Regulation (1)

Section ATCP 1.33 – Costs upon frivolous claim, Wis. Admin. Code ATCP § ATCP 1.33

“The action, claim or defense was initiated or pursued in bad faith, solely for the purpose of harassing or maliciously injuring another. (b) The party or party’s attorney knew or should have known that the action, claim or defense was without any reasonable basis in law or equity, and could not be supported by a good faith argument for an extension, modification, or reversal of existing law. (3) If an administrative law judge issues an order under sub. (1) against a party other than a public agency, the administrative law judge may assess those costs against the party or the party’s attorney, or may allocate the cost assessment between the party and the party’s attorney. Wis.”

Analyses (9)

Sweeping Changes To “Bad Faith” In Florida

“Additionally, if two or more third-party claimants present competing claims arising out of a single occurrence, which when totaled may exceed the available policy limits of one or more of the insured parties, an insurer is not liable beyond payment of the available policy limits if the insurer, within ninety (90) days of receiving the claims, files an interpleader action and provides the policy limits to the court. The trier of fact then determines the amount of the policy limits to distribute to each claimant.”

Chris Lazarini Discusses Financial Institution’s Fiduciary Duty to Beneficiary

“UBS filed an interpleader action against Defendant and the person whom the client attempted to name as primary beneficiary on the accounts already distributed. Asserting her beneficiary status, Defendant counterclaimed and cross-claimed.”

“Upon the client’s death, UBS became a trustee, which is a fiduciary under New York law, holding the assets for Defendant’s sole benefit. As such, UBS owed Defendant at least a duty of due care, which it allegedly failed to meet in refusing to provide Defendant with information and in delaying distribution.”

“EIC: Interpleader actions, while casting the holder of the corpus as neutral, are fraught with liability issues for the actions taken by the holder.”

Florida Enacts Broad Insurance Reforms Focusing on Bad Faith

“The insurer will not be liable beyond the policy limit if, within 90 days after receiving notice of the competing claims in excess of the policy limit, the insurer either: Files an interpleader action in a Florida court for the policy limit. Upon agreement between the insurer and claimants, makes the policy limit available and submits the matter to binding arbitration. A third-party claimant whose claim is resolved in arbitration must execute and deliver a general release to the insured party whose claim is resolved by the proceeding.”

Florida Enacts Major Tort Reform and Bad-Faith Insurance Claim Legislation

“Under these safe harbors, an insurer can avoid bad-faith liability by making use of interpleader or arbitration procedures set forth in the bill. The bill also repeals sections of the Florida Statutes that previously allowed insureds to recover attorneys’ fees when prevailing in certain insurance coverage disputes.”

Florida’s Most Comprehensive Tort Reform in Decades and What it Means for Insurers and Bad Faith Law

“An insurer is not liable beyond the available policy limits for failure to pay all or any portion of a policy limit to the third-party claimants if, within 90 days after receiving notice of the competing claims, the insurer complies with one of the following: The insurer files an interpleader action under the Florida Rules of Civil Procedure. If the claims of competing third-party claimants are found to be in excess of an insurer’s policy limits, the third-party claimants will be entitled to a prorated share of the policy limits determined by a trier of fact.”

Interpleader with a Side of Motion for More Definite Statement

“In Meyer, the court found the facts did not support either statutory or rule-based interpleader. Meyer was not at risk for multiple or inconsistent judgments as the only parties claiming right to the funds in question were Defendants, who are clearly related and not adverse. As the court aptly noted, either the Defendants were entitled to the funds or they were not.”

The Wrong Way for a Trustee to Interplead Foreclosure Sale Proceeds

“The court ruled that an interpleader complaint must show that “the defendants make conflicting claims” to the disputed funds, and that the plaintiff “cannot safely determine which claim is valid.” The court found that these conditions were not present in this case.”

“Under section 2924k, a trustee must distribute proceeds from a foreclosure sale in the following order of priority: (1) costs and expenses of the sale; (2) payment of the debt secured by the deed of trust; (3) payment of any junior liens or encumbrances; and (4) payment to the trustor (who is normally the borrower). Placer applied the sale proceeds in accordance with numbers 1 through 3 on that statutory priority list, but failed to pay the remaining proceeds to Aflalo.”

“Lesson Under thePlacer Title opinion, interpleading surplus proceeds from a foreclosure sale is NOT appropriate where there are no competing recorded claims before the sale, and where section 2924k clearly requires the surplus proceeds be given to the trustor. [View source.]”

The Impact of Florida’s Tort Reform Bill on Insurance Litigation

“If two or more third party claimants have competing claims arising out of a single occurrence, which in total may exceed the insured’s available policy limits, the insurer does not commit bad faith by failing to pay if, within 90 days after receiving notice of the competing claims, the insurer either files an interpleader action or follows the arbitration procedures outlined in the bill.”

Key issues for policyholders under Florida’s new tort reform bill

“Also included are two new procedural devices for cases involving multiple completing claims against an insured (or insureds). Under new § 624.155(6), an insurer can now shield itself from bad faith exposure by either (a) filing an interpleader action to determine the claimants’ prorated share of the policy limits, or (b) entering into a binding arbitration proceeding agreed to by the insurer and the claimants, where a “qualified arbitrator” (paid for by the insurer) determines the claimants’ prorated share of the policy limits.”

CAI minuscule minority dominates public policy again by pushing anti HOA owner SB 417

How does CAI convince legislators to take actions that are detrimental to HOA homeowner rights?

CAI uses attorneys as lobbyists pretending to be fiduciaries speaking in the best interest of the HOA.

CAI lobbyist Adam Clarkson pushed through SB 417- Whistleblower Robert Stern called him on it before the SCA May Board vote

Former Board member Forrest Quinn asked if SCA would ever have fair Board elections given Adam Clarkson’s interference

George K. Staropoli’s HOA Constitutional Government blog shows that the tiny CAI trade group has prevailed for years

My litigation history in Nevada

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

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

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

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

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

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

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

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

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

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

July 7, 2022 hearing

On 7/7/22, Judge Peterson heard Nona Tobin’s 2nd motion to distribute the interpleaded proceeds to her as the sole claimant with interest and penalties, -1½ years after she failed to hear Tobin’s 1st motion and a year after she granted non-party Red Rock LLC’s Tobin to dismiss Tobin’s unheard, unopposed claims of Conversion, Racketeering, and Fraud with prejudice on the grounds of res judicata.

Judge Peterson also heard Tobin’s motion to correct three prior orders to accurately identify the names of the parties and to attach Tobin’s opposition to factual inaccuracies in the orders.

The judge also accepted and granted the rogue motion of non-party Red Rock LLC’s for attorney fees, and granted the improper renewed motion for a vexatious litigant restrictive order against Tobin.

Judge Peterson granted non-party Red Rock LLC’s motion for attorney’s fees, denied Tobin’s unopposed motions.

Judge Peterson told Tobin that nothing Tobin said (in her unopposed proposed order has any merit by misconstruing the 6/30/22 appellate court ruling of the prior action in this dispute where the dismissal with prejudice of Tobin’s 2nd civil claim for these proceeds was affirmed on the grounds of res judicata and privity, bound this court to preclude all Tobin’s claims of Conversion, Fraud, and Racketeering). The court decided Tobin has no claims except for the interpleaded funds, had no right to interest or penalties, and that Steven Scow did nothing wrong by withholding her money for 8+years and because he held it in trust so it was harmless error.

Violation of NCJC 2.6 as grounds for disqualification

I contend that Judge Peterson violated NCJC 2.6 by

refusing to conduct the evidentiary hearing that was ordered for 8/18/21,
denying my 12/14/21 motion for an evidentiary hearing to resolve factual disputes about the findings in the 9/10/21 and 11/30/21 orders that I allege covered up the criminal actions of my oppoenents vis-a-vis their abuse of the HOA quiet title litigation process to steal from many victims,
dismissing my unanswered 3/8/21 claims of Conversion, Fraud, and Racketeering and my petitions for sanctions vs. Red Rock and Nationstar with prejudice without making my opponents meet their burden of proof
exempting my opponents from timely (NRCP 12(a)(1)(B)) filing a responsive pleading to my claims and granting an untimely, rogue motion to dismiss from a non-party.

Legal authorities supporting the proposition that a judge must allow a party to present evidence to support her case

Fact finding is the “basic responsibility” of trial courts “rather than appellate courts.” Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) (quoting DeMarco v. United States, 415 U.S. 449, 450 n.22 (1974)); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969) (“appellate courts must constantly have in mind that their function is not to decide factual issues”).

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)”)

An evidentiary hearing is required to establish fraud upon the court (NRCP 60(d)(3))

Milam v. Stealth Holdings, LLC, 381 P.3d 641 (Nev. 2012) (“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));”)

List of filings I made that contained evidence that Judge Peterson refused to admit or consider

The list is long because, I believe, Judge Peterson unfairly refused to allow me to assert my actual claims. She kept insisting that all my claims were precluded and nothing was before her but the question of who the interpleaded funds belonged to.

I say that Steven Scow filed the interpleader action in bad faith, knowing that it was meritless and unwarranted and that neither Plaintiff Red Rock nor non-party Red Rock LLC had standing to either pursue and interpleader action nor oppose the court ordering interpleaded funds being distributed to me with interest and penalties for being wrongfully withheld for 8+ years.

My claims for Conversion, Fraud, and Racketeering and petitions for sanctions were compulsory counter-claims that should have been granted as unopposed because Red Rock did not file any timely responsive pleading and non-party Red Rck LLC’s motion to dismiss was rogue, untimely, and contained exhibits which the court would have to have considered to make a claims preclusion ruling which would have nessecarily converted it to an MSJ, meaning the factual disputes would have had to have been resolved on a NRCP 56 standard and it could not have been granted as a NRCP 12(b)(5). Further, she refused my motion to amend one time under NRCP 15 for no good reason and didn’t sua spinte move for a more definitive statement if she thought it wasn’t pled to 9(b) standard. She just obviously wanted to be rid of it and me.

3/8/21 unanswered counter- & cross-claims and four requests for judicial notice of the property record, my unadjudicated claims, relevant laws and Sun City Anthem governing documents, and disputed facts in the prior court record (false evidence filed and recorded by my opponents to get the prior courts to bless the theft of my property)

Doc ID# 14 Nona Tobin’s Answer, Affirmative Defenses, Answer And Counter-Claim vs. Red Rock Financial Services, Cross-Claims Vs. Nationstar Mortgage LLC And Wells Fargo, N.A., And Motion For Sanctions vs. Red Rock Financial Services And Nationstar Mortgage LLC, and/or Nationstar Mortgage dba Mr. Cooper Pursuant To NRCP 11(b)(1)(2)(3) and/or(4), NRS 18.010(2), NRS 207.407(1), NRS 42.005

Doc ID# 15 Request for Judicial Notice
Nona Tobin’s Request for Judicial Notice of the Complete Official Clark County 2003-2021 Property Records for APN 191-13-811-052

Doc ID# 18 Nona Tobin’s Request for Judicial Notice of Relevant Unadjudicated Civil Claims and Administrative Complaints

Doc ID# 19 Nona Tobin’s Request for Judicial Notice of the Nevada Revised Statutes, Nevada Rules of Civil Procedure, Nevada Rules of Professional Conduct and Sun City Anthem Governing Documents Germane To the Instant Action

Doc ID# 21 Nona Tobin’s Request for Judicial Notice of NRCP 16.1 Disclosures /Subpoena Responses from Discovery in Case A-15-720032-C and Disputed Facts in the Court Record

12/14/21 motion for an evidentiary hearing and replies to Nationstar’s and non-party Red Rock LLC’s opposition and their improper counter-motin for abuse of process and for an unwarranted vexatious litigant restrictive order against me

Doc ID# 75 Nona Tobin’s Motion for an Evidentiary Hearing to Set Aside Orders and for Sanctions Pursuant to NRCP 60(B)(3) and (D)(3), NRS 18.010(2) and EDCR 7.60 (1) and (3)

Doc ID# 80 Nona Tobin’s Reply to Red Rock Financial Services LLC’s Opposition to Nona Tobin’s Motion for an Evidentiary Hearing to Set Aside September 10, 2021 Order and November 30, 2021 Orders Pursuant to NRCP 60(b)(3) (Fraud) and NRCP 60(b)(3) (Fraud on the Court) and Motion for Attorneys’ Fees and Cots Pursuant to EDCR 7.60(1) and (3), NRS 18.010(2); and, Countermotion for Abuse of Process for a Vexatious Litigant Restrictive Order Against Nona Tobin and for Attorney Fees and Costs

Doc ID# 81 Nona Tobin’s Reply To Nationstar’s And Wells Fargo’s Joinder And Countermotions For Attorney Fees And A Vexatious Litigant Order

12/19/22 motion for an order to show cause why written findings of attorney misconduct should not be forwarded to the State Bar of Nevada for disciplinary action

Doc ID# 103 Tobin Motion for An Order to Show Cause Why Written Findings of Attorney Misconduct Should Not Be Forwarded To The State Bar of Nevada

Doc ID# 108 Corrected Motion for an Order to Show Cause Why Written Findings of Attorney Misconduct Should Not be Forwarded to the State Bar

Doc ID# 102 Request for Judicial Notice Verified Complaints of Attorney Misconduct filed with the State Bar of Nevada vs. Brittany Wood

Doc ID# 104 Request for Judicial Notice Verified Complaint of Attorney Misconduct Filed with The State Bar of Nevada Vs. Steven Scow

Doc ID# 105 Request for Judicial Notice Verified Complaints of Attorney Misconduct Filed with the State Bar of Nevada vs. Melanie Morgan, Esq. (SBN 8215), Akerman, LLP; and Wright, Finlay, Zak, LLP, and Draft Alternative Civil Action

Doc ID# 106 Request for Judicial Notice Verified Complaint of Attorney Misconduct Filed With The State Bar of Nevada Vs. Joseph Y. Hong

Doc ID# 107 Request for Judicial Notice Verified Complaints of Attorney Misconduct Filed With The State Bar of Nevada Vs. David Ochoa, Esq. (SBN 10414) and Adam Clarkson, Esq.

Legal research question

Is a final judgment order unfairly entered if the court does not allow one side to present its opposition given that appellate courts generally defer to the district court’s findings of fact ?

Nevada courts generally defer to the district court’s findings of fact unless they are clearly erroneous. However, a final judgment order may be unfairly entered if the court does not allow one side to present its opposition, misapplies the law, or makes findings not supported by evidence.

Several of the cases I found emphasize the importance of allowing both sides to present their cases in order to ensure a fair trial. For example, in Milam v. Stealth Holdings, LLC, the court discusses the requirement that parties be “fully heard” on an issue before a district court can grant a motion for judgment as a matter of law.

Similarly, in Solinger v. Solinger, the court reiterates that a district court abuses its discretion when its decision is clearly erroneous, and that substantial evidence is required to sustain a judgment. Other cases I found highlight the importance of correctly applying the law in order to avoid an unfair judgment. For example, in Long Valley L. D. Co. v. Hunt, the court held that a judgment must be reversed when the court misapplies a rule of law or erroneously places the burden of proof on the losing party. In KY Invs. NV v. King of Condos, Inc., the court discusses the importance of a district court providing a statement of reasons when granting summary judgment, in order to allow for meaningful appellate review.

Finally, a few cases I found emphasize the deference given to district court findings of fact on appeal. For example, in Pickens v. McCarran Mansion, LLC, the court notes that appellate courts are bound by the district court’s findings unless they are clearly erroneous. Similarly, in Bonnell v. Lawrence, the court reiterates that the remedy for legal error is by timely motion or appeal, not by independent action for relief from judgment.

How to disqualify a judge

The Nevada Revised Statutes define the grounds and procedure for disqualification

NRS 1.230 outlines the grounds for disqualification, which include both actual and implied bias.

NRS 1.235 sets out the procedure for disqualification, including the requirement to file an affidavit specifying the grounds for disqualification.

The Nevada Code of Judicial Conduct (NCJC) also provides guidance

The Nevada Code of Judicial Conduct (NCJC) also provides guidance on when a judge should disqualify themselves. NCJC Rule 1.2 requires judges to act in a manner that promotes public confidence in the judiciary, and NCJC Rule 2.11(A) requires judges to disqualify themselves when their impartiality might reasonably be questioned.

Violating NCJC does not promote confidence in the judiciary and creates a situation where the judge’simpartiality might reasonably be questioned.

Implicated NCJC provisions in my case

Rule 1.1. Compliance With the Law. A judge shall comply with the law, including the Code of Judicial Conduct.

Rule 1.2. Promoting Confidence in the Judiciary. A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.

Rule 2.2. Impartiality and Fairness. A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

Rule 2.6. Ensuring the Right to Be Heard.

(A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.

Rule 2.9. Ex Parte Communications.

(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as follows:

(1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:

(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

(b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and gives the parties an opportunity to respond.

(B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

Rule 2.11. Disqualification.

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

Rule 2.15. Responding to Judicial and Lawyer Misconduct.

(C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action.

(D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Nevada Rules of Professional Conduct shall take appropriate action.

Standard of review for assessing if the grounds for disqualification are met

The standard for assessing whether a judge’s impartiality might reasonably be questioned is whether a reasonable person with knowledge of all the facts would reach that conclusion.

The motion for disqualification must contain affidavits that meets this burden of proof that a reasonable person would also question the judge’s impartiality.

However, the burden of proof is on the movant as the judge is presumed to be unbiased.

“This court gives substantial weight to a judge’s decision not to recuse herself and will not overturn such a decision absent a clear abuse of discretion. Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 (1988), abrogated on other grounds by Halverson v. Hardcastle, 123 Nev. 245, 266, 163 P.3d 428, 443 (2007). A judge is presumed to be unbiased, and “the burden is on the party asserting the challenge to establish sufficient factual grounds warranting disqualification.” Id. at 649, 764 P.2d at 1299.

Impact of a disqualification motion

In Debiparshad v. The Eighth Judicial Dist. Court of State, 137 Nev. Adv. Op. 71 (Nev. 2021), the Nevada Supreme Court outlined the requirements for disqualification under the NCJC and relevant case law.

(“In Towbin Dodge, we noted that NCJC Rule 2.11, which requires a judge to “disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,” does not contain a procedural mechanism for enforcement. Id. at 257, 259, 112 P.3d at 1067, 1069. We specified the procedure for moving to disqualify a judge pursuant to NCJC Rule 2.11, explaining that, as with an affidavit filed under NRS 1.235, a motion to disqualify under NCJC Rule 2.11 must include the facts upon which the disqualification is based and must be referred to another judge for decision. Id. at 260-61, 112 P.3d at 1069-70; see also Turner v. State, 114 Nev. 682, 687, 962 P.2d 1223, 1226 (1998) (applying, without discussion, the NRS 1.235 procedural requirements to a motion to disqualify under both the statute and the NCJC). ”)
Debiparshad v. The Eighth Judicial Dist. Court of State, 137 Nev. Adv. Op. 71, 8 (Nev. 2021)

How Debiparshad and Towbin Dodge support my case is two-fold:

1) the subject judge (Peterson in my case) can take no further action in the case until the motion to disqualify is resolved, and

2) the disqualification decision must be made by another judge.

This comes as positive news since it would be unreasonable to anticipate Judge Peterson recusing herself now, after 2+ years of ruling against me without any factual or legal justification. This includes her recent actions at an improperly noticed hearing held ex parte, where she issued an unwarranted vexatious litigant bench order against me in absentia, which was converted into a final judgment denying all my motions without notice, good cause, or an opportunity for opposition.

Why this drastic action is necessary rather than just filing an appeal

The order submitted on March 28, 2023, was composed in a manner that made obtaining a precise understanding of the facts and law nearly unattainable for the reviewing court. The judge followed the common practice of having opposing counsel draft the order, resulting in significant misrepresentation of material facts and legal matters. Appellate courts assume that the facts are unchallenged if the order states as such, and no opposition is present within the record.

My previous losses have occurred under these circumstances, where orders are written to suggest that the evidence and the law support the opposing argument.

My motion is timely to void all A-21-828840-C orders

My motion is timely to void all Judge Peterson’s orders as new grounds emerged due to the refusal to allow the 3/28/23 order to accurately reflect that it was issued ex parte without notice, just cause or an opportunity to ppose.

“[I]f new grounds for a judge’s disqualification are discovered after the time limits in NRS 1.235(1) have passed, then a party may file a motion to disqualify based on [Nevada Code of Judicial Conduct Canon 2 ] as soon as possible after becoming aware of the new information.”
Towbin, 121 Nev. at 256, 112 P.3d at 1067.

Judge Peterson’s impartiality canreasonably questioned be as these provisions of the Nevada Code of Judicial Conduct are alleged to have been violated.

The required affidavit with supporting evidence will be filed first to the Commission on Judicial Discipline as it has a Nevada Constitutional mandate to ensure that the Nevada judiciary complies with the NCJC.

Rule 1.2. Promoting Confidence in the Judiciary. A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.

Rule 2.2. Impartiality and Fairness. A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

Rule 2.6. Ensuring the Right to Be Heard.

(A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.

Rule 2.7. Responsibility to Decide. A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.

Rule 2.9. Ex Parte Communications.

(1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:

(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

(b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and gives the parties an opportunity to respond.

(2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received.

(3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

(4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.

(5) A judge may initiate, permit, or consider any ex parte communication when authorized by law to do so.

(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control.

Rule 2.11. Disqualification.

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

Rule 2.15. Responding to Judicial and Lawyer Misconduct.

(A) A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.

(B) A judge having knowledge that a lawyer has committed a violation of the Nevada Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.

(C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action.

(D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Nevada Rules of Professional Conduct shall take appropriate action.

Standard for Review

Other jurisdictions offer guidance on the standard of review as well

In evaluating the totality of the circumstances, the reviewing court should inquire into a variety of factors including, but not limited to, the nature of the judge’s conduct, the tone and demeanor of the judge, the scope of the judicial conduct in the context of the length and complexity of the case and issues therein, the extent to which the judge’s conduct was directed at one side more than the other, and the presence of any curative instructions, either at the time of an inappropriate occurrence or at the entry of the final order. When the issue is preserved so that the true facts are known and a reviewing court determines that the judge’s conduct pierced the veil of judicial impartiality, the court may not apply harmless-error review. Rather, the judgment must be reversed and the case remanded for a new trial.

A-21-828840-C orders are void

If the judge is disqualified because judicial impartiality can be reasonably questioned,

“Disqualification occurs when the facts creating disqualification arise, not when disqualification is established.”); see also Hoff v. Eighth Judicial Dist. Court, 79 Nev. 108, 110, 378 P.2d 977, 978 (1963) (“That the actions of a district judge, disqualified by statute, are not voidable merely, but void, has long been the rule in this state.”); Frevert v. Smith, 19 Nev. 363, 11 P. 273 (1886) (“[T]he general effect of the statutory prohibitions … [is] to render those acts of a judge involving the exercise of judicial discretion, in a case wherein he is disqualified from acting, not voidable merely, but void.”). ”
Debiparshad v. The Eighth Judicial Dist. Court of State, 137 Nev. Adv. Op. 71, 9-10 (Nev. 2021)

9/10/2021 Doc ID# 43 “Order & Judgment On Plainiff (Sic) Red Rock Financial Services, LLC’s Motion To Dismiss Counterclaimant Nona Tobin’s Counterclaim And Petition For Sanctions And Defendants/ Counterclaimant Nona Tobin’s Motion For Summary Judgement And Motion For Sanctions”

11/30/2021 Doc ID# 70 Order Clarifying Sept. 10th, 2021 Order and Mooting Notice of Default and Motion to Strike

11/30/2021 Doc ID# 71 Order Denying Nona Tobin’s Motion to Reconsider of Order Dismissing Nona Tobin’s Counterclaim and Petition for Sanctions and Defendant/ Counter-claimant Nona Tobin’s Motion for Summary Judgment and Motion for Sanctions

5/25/2022 Doc ID# 88 Order Denying Nona Tobin’s Motion For An Evidentiary Hearing To Set Aside 9/10/21 Order And 11/30/21 Orders Pursuant To NRCP 60(b)(3)(Fraud) And NRCP 60(d)(3)(Fraud On The Court) And Motion For Attorneys’ Fees And Costs Pursuant To EDCR 7.60(1) And (3), NRS 18.010(2); And, Denying non-party Red Rock LLC’s 12/28/21 Countermotions For Abuse Of Process and Denying non-party Red Rock LLC’s motion For A Vexatious Litigant Restrictive Order Against Nona Tobin And denying For Attorney Fees And Costs

1/9/2023 01/09/2023 Order Doc ID# 115 Order Granting in Part and Denying in Part Nona Tobin’s Second Amended Motion for an Order to Distribute Interpleaded Funds with Interest to Sole Claimant Nona Tobin and Motion for Attorney Fees and Costs Pursuant to NRS 18.010(2) and EDCR 7.60(b)(1) and (3) and Motin to Correct Nunc Pro Tunc Notices of Entry of Orders Entered on November 30 2021 and May 25 2022 and Granting in Part Red Rock Financial Services’ Countermotion for Abuse of Process; for a Vexatious Litigant Restrictive Order Against Nona Tobin and for Attorney Fees and Costs

1/16/2023 Doc ID# 117 Order Granting in Part and Denying in Part Nona Tobin’s Second Amended Motion for an Order to Distribute Interpleaded Funds with Interest to Sole Claimant Nona Tobin and Motion for Attorney Fees and Costs Pursuant to NRS 18.010(2) and EDCR 7.60(b)(1) and (3) and Motion to Correct Nunc Pro Tunc Notices of Entry of Orders Entered on November 30 2021 and May 25 2022 and Granting in Part Red Rock Financial Services’ Countermotion for Abuse of Process; for a Vexatious Litigant Restrictive Order Against Nona Tobin and for Attorney Fees and Costs

What allegations of attorney misconduct were made against Steven Scow, the attorney for Red Rock Financial Services?

Complaint summary as filed to the State Bar online on 3/1/22

Link to 12/19/22 Request For Judicial Notice of 346-page verified, evidence-backed, uninvestigated (pending court order) complaint to the State Bar and 50-page draft civil complaint requesting a court order for written findings of attorney misconduct (that will be necessary if this court does not refer the matter to the State Bar for investigation)

This resulted in me being declared a vexatious litigant and a restrictive order being entered against me without notice or a chance to oppose.

Link to PDF of 3/28/23 order filed without notice or opposition

I have tried unsuccessfully repeatedly for the last few weeks to get my opposition attached to the order so it is accurate enough for appeal.

HOA attorneys and managers fail in their fiduciary duty to the HOA

HOA attorneys and managers are by law fiduciaries to the HOA that employs them. However, they routinely act in their own self-interest rather than solely and exclusively in the interest of the HOA.

The HOA homeowners are the intentional third-party beneficiaries of the CC&Rs contract in that the HOA exists for the purpose of maintaining the common areas, the community lifestyle and the property values of for the common good of the HOA membership at large.

The attorney and the manager are agents. They have no authority over the Board. Anything they assert over the Board is usurped, and that is the problem.

SB 417 will exacerbate the problem of attorneys and other agents enriching themselves by improper control over HOA Boards

My experience shows HOA attorneys lie with impunity to the courts now. The State Bar Assosication does not enforce the ethical codes of conduct. The Nevada Supreme Court thinks that’s okay. The judges let them write orders that misrepresent the facts, the evidence and the law.

Why should NRED or the Ombudsman for Owners in Common-Interest Communities be any different? Why investigate any homeowner’s complaints ever?

Adam Clarkson already has the Ombudsman in his pocket

…Or else, how has he kept my complaints from being heard by the Commission for Common Interest Communities for the last six years?

After all, it has been enough for the past six years for the NRED to not investigate my complaints and the Ombudsman not to refer them to the Commission SOLELY because Adam Clarkson, the Community Association Institute lobbyist and Sun City Anthem’s debt collector and attorney, says I’m are just a “bad person” and not the kind that should be allowed to serve on the Board of Directors because I complained about things like how much over market the manager is paid?

Link to unanswered 9/2/17 NRED Form 514a

Link to my unanswered 1/31/18 Affidavit regarding Clarkson’s denial of records request related to Sandy Seddon’s salary that I filed with Investigator Christina Pitch who was assigned to investigate three NRED Form 530s. (If SB 417 is passed, it will be legal for Clarkson to deny this request and legal for NRED to refuse to investigate it. But then, the homeowner can be criminalized and threatened with high-cost litigation for even asking.)

9/7/17 NRED Form IA 530 re Interference with the Recall election was resolved by NRED’s very thoughtful 8/8/18 letter below.

9/7/17 NRED Form IA 530 re Clarkson’s declaring my elected seat on the Board vacant “by operation of law” rather than by the mandatory NRS 116.31036 removal election was resolved by NRED’s very thoughtful 8/8/18 letter below.

9/7/17 NRED Form IA 530 re Clarkson’s spearheading bullying, retaliation, and harassment was resolved by NRED’s very thoughtful 8/8/18 letter below.

8/8/18 NRED’s dismissal of the three Form 530s without prejudice, ignoring the Form 530 and ignoring Clarkson’s obstruction of the legitimate access to information about employee salaries.