Sundell v. Suntrust Mortg., Inc.

• Court: Nevada Supreme Court
• Decided: September 16, 2014
• Docket: 64636
• Status: Unpublished

Opinion

after the mediation, the district court properly did not order the issuance of an FMP certificate. Holt v. Reg'l Tr. Servs. Corp., 127 Nev. „ 266 P.3d 602, 606 (2011). Appellants have appealed, contending that (1) the district court should have ordered respondents to produce the Pooling and Servicing Agreement (PSA) and scheduled an evidentiary hearing, and (2) the $2,500 sanction was insufficient even without production of the PSA. 1 Appellants' first argument lacks merit, as the district court factored respondents' nonproduction of the PSA or any equivalent document permitted under FMR 11(7)(c) (2013) into its sanctions analysis. Moreover, the district court was within its discretion when it declined to extend the judicial review process to allow appellants to provide supplemental briefing on why this otherwise permissible representation may give rise to a conflict of interest. See Edelstein, 128 Nev. at n.11, 286 P.3d at 260 n.11 (recognizing that a loan servicer may represent a deed of trust beneficiary at mediation); FMR 21(2) (2013) (providing the district court with the discretion to determine the extent to which an evidentiary hearing is necessary). Appellants' second argument likewise lacks merit. Not only was the $2,500 award consistent with the mediator's recommendation, 2

'Appellants also argue that it would not have been unconstitutional for the district court to modify appellants' loan as a sanction. Because nothing in the record suggests that the district court was considering such a sanction, we need not entertain this argument.

2 Moreover, appellants explicitly requested $2,500 in attorney fees "for work done on the mediation." While appellants argue on appeal that the district court should also have awarded fees in connection with pursuing the petition for judicial review, the arguments in their petition extended far beyond simply seeking to recoup attorney fees for the unsuccessful mediation. Thus, the district court was within its discretion continued on next page... SUPREME COURT OF NEVADA 2 (0) 1947A but appellants have failed to provide any explanation of why this award did not comport with the relevant FMP-sanction factors. See Positlas v. HSBC Bank USA, 127 Nev. , 255 P.3d 1281, 1287 (2011) (indicating that, in the FMP context, relevant considerations include "whether the violations were intentional, the amount of prejudice to the nonviolating party, and the violating party's willingness to mitigate any harm by continuing meaningful negotiation"). Thus, we cannot conclude that the district court abused its discretion by declining to impose greater sanctions. Id. Accordingly, we ORDER the judgment of the district court AFFIRMED.

Hardesty

‘4,14 Douglas J.

J.

cc: Hon. Lidia Stiglich, District Judge Geoffrey Lynn Giles Snell & Wilmer, LLP/Las Vegas Washoe District Court Clerk

...continued in declining to award fees in connection with the judicial review process. Pasillas v. HSBC Bank USA, 127 Nev. „ 255 P.3d 1281, 1287 (2011) (recognizing that the choice of sanctions in an FMP judicial review proceeding is committed to the sound discretion of the district court).

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