Werner v. Bank of America, N.A.

• Court: Nevada Supreme Court
• Decided: March 15, 2013
• Docket: 60632
• Status: Unpublished

Opinion

district court. Pasillas v. HSBC Bank USA, 127 Nev. , 255 P.3d 1281, 1287 (2011). To obtain an FMP certificate, a deed of trust beneficiary must: (1) attend the mediation; (2) participate in good faith; (3) bring the required documents; and (4) if attending through a representative, have a person present with authority to modify the loan or access to such a person. NRS 107.086(4), (5); Levva v. National Default Servicing Corp., 127 Nev. „ 255 P.3d 1275, 1278-79 (2011). Appellant's sole argument on appeal is that the documents are deficient under FMR 11(4) (2011) (amended and renumbered FMR 11(8), effective January 1, 2013). The certification respondent provided along with the certified copy of the assignment of the deed of trust does not expressly state that the declarant is in possession of the "original" assignment of the deed of trust. Rather, the certification states that the declarant is in possession of "an assignment of the mortgage note and/or deed of trust," with no representation as to its original status. Our holding in Einhorn v. BAC Home Loans Servicing, LP, 128 Nev. , 290 P.3d 249 (2012), controls here. The omission of the word "original" from the certification is a matter of "form and content," for which substantial compliance may be sufficient. Id. at , 290 P.3d at 254 (citing Leven v. Frey, 123 Nev. 399, 408, 168 P.3d 712, 718 (2007)); see also Leyva, 127 Nev. at , 255 P.3d at 1278-79 (setting forth test for determining whether strict or substantial compliance satisfies FMP requirements and determining that the production of the documents required strict compliance to ensure that proper party is foreclosing). Respondent brought all the required documents, strictly complying with NRS 107.086(4). Leyva, 127 Nev. at , 255 P.3d at 1278-79. Respondent provided a certified copy of the assignment of the deed of trust from the

SUPREME COURT OF NEVADA 2 (0) 1947A county recorder's office, demonstrating proper authority to foreclose. See NRS 52.085; Einhorn, 128 Nev. at , 290 P.3d at 254. Appellant does not challenge the validity of the assignment, nor does she demonstrate any possible prejudice in the omission of the word "original." To mandate sanctions solely because the certification omitted the word "original" would "exalt [] literalism for no practical purpose." Einhorn, 128 Nev. at , 290 P.3d at 254. Thus, we conclude that the district court did not abuse its discretion in denying sanctions and allowing the FMP certificate to issue. Id. Accordingly, we ORDER the judgment of the district court AFFIRMED.

, J.

J. Saitta

cc: Chief Judge, The Eighth Judicial District Court Hon. J. Charles Thompson, Senior Judge Law Office of Corey B. Beck, P.C. Jeffrey S. Posin & Associates Lewis & Roca, LLP/Las Vegas Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A