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Case 17-05016-btb
Matthew D. Francis
Nevada Bar No. 6978
mfrancis@bhfs.com
Arthur A. Zorio
Nevada Bar No. 6547
azorio@bhfs.com
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Telephone: 775.324.4100
Facsimile: 775.333.8171
Attorneys for JED
MARGOLIN
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEVADA
BK-N-16-50644-BTB
Chapter 15
Adversary Proceeding: 17-05016-BTB
CROSS-DEFENDANT JED MARGOLIN’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AGAINST CROSSCLAIMANT PATRICK CANET AND OPPOSITION TO COUNTER MOTION
Hearing Date: May 24, 2018
Hearing Time: 10 a.m.
In Re JAZI GHOLAMREZA ZANDIAN,
Debtor.
__________________________________/
FRED SADRI, AS TRUSTEE FOR THE STAR LIVING TRUST, DATED APRIL 14, 1997; RAY KOROGHLI AND SATHSOWI T. KOROGHLI, AS MANAGING TRUSTEES FOR KOROGHLI MANAGEMENT TRUST,
Plaintiffs,
v.
JED MARGOLIN; JAZI GHOLAM REZA ZANDIAN; and all other parties claiming an interest in real properties described in this action,
Defendants.
__________________________________/
PATRICK CANET,
Counterclaimant,
v.
FRED SADRI, INDIVIDUALLY AND AS TRUSTEE FOR THE STAR LIVING TRUST; RAY KOROGHLI,
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INDIVIDUALLY; RAY KOROGHLI AND SATHSOWI T. KOROGHLI, AS MANAGING TRUSTEES FOR KOROGHLI MANAGEMENT TRUST,
Counter-Defendants.
__________________________________/
PATRICK CANET,
Cross-Claimant,
v.
JED MARGOLIN,
Cross-Defendant.
I. INTRODUCTION
Mr. Margolin hereby submits this Reply to Canet’s putative “Opposition” and Counter Motion. Canet’s “Opposition” is not really an opposition at all because it does not “oppose”, let alone address, the two main arguments raised in Mr. Margolin’s Motion for Summary Judgment (“MSJ”). In his MSJ, Mr. Margolin argued that Canet’s First Cross Claim to avoid transfer of properties in Washoe County should be denied because the sale (i.e. transfer) of those properties took place on April 3, 2015, well over 90 days before Canet’s Chapter was filed. See ECF No. 23, pp. 5-6, citing 11 U.S.C. § 547(b)(4)(A). Also in his MSJ, Mr. Margolin argued that Canet’s
Second Cross Claim for alleged
violation of the automatic stay should be denied because Ninth Circuit
authority makes clear that recording a deed is a ministerial act that does not
violate the automatic stay of 11 U.S.C. § 362. ECF No.
23, p. 6, citing Tracht Gut, LLC v. County
of L.A. (In re Tracht Gut, LLC), 503 B.R. 804, 811 (9th Cir. BAP
2014). Instead of addressing either of these arguments, Canet improperly argues
for the very first time, that Mr. Margolin did not comply with the
deadline for filing dispositive motions that seeks summary judgment on claims that are: (1) not alleged by Canet in his Cross Claims: (2) not alleged in Mr. Margolin’s MSJ; (3) and not
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identified in Rule 26 initial or supplemental disclosures or responses to discovery, which Canet admittedly did not serve. Canet’s “Opposition” and Counter Motion should be denied out of hand because it violates both Local Rule 7056(e) as well as clear Ninth Circuit authority that holds that a party cannot raise new issues and arguments for the first time on summary judgment. Even if Canet is allowed to engage in “trial by surprise” and raise claims and arguments that are not contained in his Cross Claims or Mr. Margolin’s MSJ – which he should not – they are without merit and should be rejected.
II. REPLY ARGUMENTS
A. Canet’s Counter Motion for Summary Judgment Violates Local Rule 7056(e) and Should Not be Considered by this Court Because it is Based on Arguments That Do Not Relate to the Claims Addressed in Mr. Margolin’s Motion For Summary Judgment or Ever Raised Before by Canet
Mr. Margolin’s MSJ seeks dismissal of Canet’s only two Cross Claims against him, in which Canet alleges: (1) that Mr. Margolin’s recording deeds in Washoe County for APN 084130-07, 079-150-10, 084-040-02, and 079-150-12 amounted to “transfers” to the detriment of alleged creditors in France; and (2), that the Mr. Margolin’s recording of the deed to APN 07102-000-005 in Clark County violated the automatic stay in this case. See ECF No. 15, pp. 9-10.
In his MSJ, Mr. Margolin argues that Canet’s First Cross Claim should be dismissed because the alleged “transfers” to the aforementioned properties took place on the Sherriff’s sale of those properties April 3, 2015 (not September 8, 2016), and the transfers could not be avoided under 11 U.S.C. § 547(b)(4)(A) because Canet’s Chapter 15 Petition was filed on May 19, 2016, over 13 months after the April 3, 2015 Sherriff’s sale. See SUF 15, 17, 19, 21. Mr. Margolin argued that since the transfers of these Washoe County Properties took place well over 90 days before the Chapter 15 Petition was filed, the “transfers” could not be set aside and Canet’s First Cross Claim should be dismissed.
Also, in his MSJ, Mr. Margolin argues that Canet’s Second Cross Claim should be dismissed because recording the deed to APN 071-02-000-005 in Clark County on October 9, 2016 was a ministerial act that does not violate the automatic stay of 11 U.S.C. § 362. ECF No. 23, p. 6, citing Tracht Gut, LLC v. County of L.A. (In re Tracht Gut, LLC), 503 B.R. 804, 811 (9th
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Cir. BAP 2014).
Finally, in his MSJ, Mr. Margolin argued that because Canet failed to serve Rule 26(a) initial disclosures, Rule 26(e) supplemental disclosures, or responses to interrogatories or requests for production, Canet is prohibited from using any information, documents, or witnesses in opposition to Mr. Margolin’s Motion, or at any hearing, or at trial pursuant to Fed. R. Civ. P. 37(c); Fed. Bnkr. R. 7037. ECF No. 23, pp. 6-10. And therefore, on this alternative basis, Canet’s Cross Claims should be dismissed with prejudice.
In Canet’s purported “Opposition” and Counter Motion for Summary Judgment, Canet does not address or respond to Mr. Margolin’s “transfer” and “automatic stay” arguments that are the only bases of Canet’s two Cross Claims, and only pays lip service to his inexcusable failure to comply with Rules 26, 33, and 34. Instead of responding to the arguments contained in Mr. Margolin’s MSJ, Canet raises brand new, un-plead arguments that Mr. Margolin’s recordation of his Default Judgment against Zandian (who still has a warrant out for his arrest) allegedly failed to comply with NRS 17.150, and that the Sheriff’s sales proceeded without notice pursuant to 21.130, 21.075, 21.076, and therefore, any and all sales of property to Mr. Margolin in Nevada[1] were allegedly void, and Mr. Margolin is an unsecured creditor. ECF No. 34, p. 11.
None of these claims are raised in Mr. Margolin’s MSJ, let alone Canet’s Cross Claims, and Canet is prohibited from raising these issues in his Counter Motion pursuant to Local Rule 7056(e).
Local Rule 7056(e) provides in part:
(1) A countermotion for summary judgment that relates to the same claim or partial claim may be filed against the movant(s) within the time allowed for the
opposition to the motion for summary judgment.
(2) Any party seeking summary judgment on a different claim or part of a claim, or against a non-movant, must notice the motion in accordance with subsection
(f)(1) and may not, without the consent of the moving party, the party against who judgment is sought, and the court, set it on the date set in the first motion for
______________________
[1]
This includes properties located not only in
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summary judgment….
As discussed above, with the exception of Canet’s blatant failure to comply with the Rules of Civil Procedure (discussed infra), none of the claims contained in Canet’s Counter Motion relate to the same claims or partial claims asserted in Mr. Margolin’s MSJ – “transfer” and “automatic stay.” As such, Canet’s Counter Motion is prohibited by Local Rule 7056(e)(1).
What Canet really seeks is summary adjudication on different claims pursuant to Local Rule 7056(e)(2). Two main reasons exist why Canet cannot bring a Counter Motion (or any summary judgment motion) “on a different claim or part of a claim” at this point.
First, until filing his Counter
Motion, Canet never alleged that there was a failure to comply with NRS 17.150,
21.130, 21.075, and 21.076, or that redemption rights, if any, were not
terminated pursuant to the lapse of time, 21.200, and he should not be allowed
to make those allegations or request the relief contained in his
“Opposition”/Counter Motion at this time. The Ninth Circuit has held that when
a plaintiff raises a new theory at summary judgment and where a defendant will
be prejudiced, the plaintiff cannot raise a new theory for the first time in
opposition to summary judgment. Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000). “A complaint
guides the parties' discovery, putting the defendant on notice of the evidence
it needs to adduce in order to defend against the plaintiff's allegations.” Coleman,
232 F.3d at 1292. In Coleman, the plaintiffs stated an ADEA claim of
disparate treatment in their complaint sought to add a claim of disparate
impact for the first time at summary judgment.
The court noted that Plaintiffs
did not seek leave to amend the complaint until their reply to the summary
judgment motion and good cause had not been shown because they did not make it
known during discovery that they intended to pursue a disparate impact theory.
Again, the only issues raised
by Canet in his Cross Claim are whether the recording certain deeds in
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Second, because Canet’s Counter Motion seeks summary judgment on a different claim or part of a claim, Canet was required to bring his Motion (assuming for the sake of argument only that he could bring the motion) under 7056(e)(2), before the deadline for filing dispositive motions – March 28, 2018. See ECF No. 19, p. 3. He failed to do so, and cannot bring his motion now – way past the date for filing dispositive motions.
Because Canet’s Counter Motion violates Local Rule 7056(e), this Court should deny Canet’s Counter Motion for Summary Judgment out of hand without consideration of any of any of the new arguments contained therein.
B. This Court Should Grant Mr. Margolin’s Motion for Summary Judgment on Canet’s Two Cross Claims Because Canet Does Not Address, Let Alone Dispute, Mr. Margolin’s “Transfer” or “Automatic Stay” Arguments
Nowhere in his Opposition does
Canet address the transfer or automatic stay arguments that are the sole basis
of Canet’s Cross Claim against Mr. Margolin, and are two of the main bases of
Mr. Margolin’s MSJ. See ECF No. 34. Because
Canet has failed to respond to these arguments, Mr. Margolin’s MSJ should be
granted and Canet’s two Cross Claims should be dismissed without prejudice. Rogalski v. Las Vegas Metro. Police Dep’t,
2017 WL 3401446, *13 (D. Nev. 2017) (holding that failure to respond to a
summary judgment argument in an opposition, warrants the grant of summary
judgment in the moving party’s favor), citing Cafasso,
U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th
Cir. 2011); also citing Carmen v. San Francisco
Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001); see also Southern Nevada Shell Dealers Asso. v. Shell Oil
Co., 725 F. Supp. 1104, 1109 (D.
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(granting summary judgment and holding that because the plaintiff failed to respond to the defendant’s motion for summary judgment on plaintiff’s tenth claim for relief, the plaintiffs “implicitly conceded” that summary judgment was warranted that on that claim).
C. This Court Should Grant Mr. Margolin’s Motion for Summary Judgment Because it is Undisputed that Canet Failed to Comply With the Federal Rules of Civil Procedure
The only issue addressed by Canet in his “Opposition” and Counter Motion that was raised in Mr. Margolin’s MSJ was Canet’s admitted failure to comply with the Federal Rules of Civil Procedure. Canet admits that he did not serve initial disclosures pursuant to Rule 26(a) and this Court’s Amended Discovery Plan (ECF No. 19, p. 3), did not serve supplemental disclosures pursuant to Rule 26(e), did not serve responses to interrogatories pursuant to Rule 33, and did not serve responses or documents pursuant to Rule 34. ECF No. 35, p. 2. Amazingly, Canet shrugs off his complete non-compliance with the Federal Rules of Civil Procedure and alleges that: (1) Mr. Margolin should have filed a motion to compel: (2) that Canet is allegedly located in France, that the interrogatories are “irrelevant”; and (3), that Canet’s “position relies on the absence of documents regarding compliance with the default judgment and execution process.” ECF No. 34, p. 12. Canet’s arguments are specious, and there is no justification for his failure to comply with the Federal Rules of Civil Procedure and the deadlines set in this case.
With regard to his argument that Mr. Margolin should have filed a motion to compel to Canet’s compliance with Rules 26, 33, and 34 and the parties’ discovery plan, that argument is without merit. Simply put, it is not Mr. Margolin’s duty to make sure that Canet complies with the Federal Rules and case management deadlines. Also, as stated in Mr. Margolin’s MSJ, Rule 37(c)(1) is a “self-executing, automatic” sanction designed to provide a strong inducement for disclosure. Rule 37(c)(1); 8B Charles A. Wright, Arthur R. Miller, Federal Practice and Procedure, § 2289.1 (3d ed. 2017). There is no meet and confer requirement for Rule 37(c) sanctions. Fulmore v. Home Depot, U.S.A., Inc., 423 F. Supp.2d 861, 871–72 (S.D. Ind. 2006) (“The Advisory Committee Notes to both the 1993 and 2000 Amendments to Rule 37 make clear that Rule 37(c) operates independent of any motion required by Rule 37(a). Rule 37(c) simply
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does not require conferral”).
Rule 37(c)(1) states that “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed
to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial.” Because Canet has admittedly failed to comply with
Rule 26(a) or (e) (see ECF No. 35, p. 5, ¶ 26),
he cannot present any evidence or witnesses to support his Cross Claims at
trial or in his “Opposition”/Counter Motion.
With regard to Canet’s argument
that he did not serve initial disclosures or discovery responses or comply with
the Amended Discovery Plan (ECF No. 19) because Canet
is in
Finally, Canet’s argument that his failure to respond to discovery is inconsequential because his “position relies on the absence of documents regarding compliance with the default
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judgment and execution process,” is without merit. Canet’s only two Cross Claims are for alleged improper “transfer” and alleged violation of the automatic stay. ECF No. 15. He is required to support those claims with evidence, which he has not. Since Canet has admittedly failed to comply with Rules 26(a) and (e), he cannot produce such evidence now. Rule 37(c)(1). As a result, Mr. Margolin’s MSJ must be granted.
D. Even if This Court Considers the Brand New Arguments Advanced by Canet in his Counter Motion – Which it Should Not – Canet’s Arguments Should be Rejected and Canet’s Counter Motion Denied
As set forth above, Mr. Margolin’s MSJ should be granted and Canet’s Counter Motion should not be considered. However, in the event that this Court is inclined to entertain Canet’s unpled allegations – which it should not – those allegations should be rejected.
1. Mr. Margolin Properly Secured the properties by Filing a copy of the Judgment
Mr. Margolin undisputedly recorded the default judgment against Zandian, thereby creating a lien securing those properties on the dates recorded. NRS 17.150(2) (a “copy of any judgment … may be recorded in the office of the county recorder in any county, and when so recorded it becomes a lien upon all the real property of the judgment debtor not exempt from the execution in that county.”). See May 2, 2018 Declaration of Arthur A. Zorio (“Zorio Decl.”), ¶ 2, Exhibit A. . This point is established and any argument to the contrary is without merit.
2. An Affidavit Is Not Required to Secure Real Property
NRS 17.150(2) makes clear that the lien comes into existence and therefore secures the real property upon the recordation of the judgment. NRS 17.150(2) states that a “transcript of the original docket or an abstract or copy of any judgment or decree of a district court of the State of Nevada or the District Court or court of the United States in and for the District of Nevada, the enforcement of which has not been stayed on appeal, certified by the clerk of the court where the judgment or decree was rendered, may be recorded in the office of the county recorder in any county, and when so recorded it becomes a lien upon all the real property of the judgment
debtor not exempt from the execution in that county, owned by the judgment debtor at the time or which the judgment debtor may afterward acquire, until the lien expires.” (Emphasis added).
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This conclusion is supported by
case law interpreting NRS 17.150(2). See Leven v.
Frey, 123
“It is the duty of [a] court,
when possible, to interpret provisions within a common statutory scheme to
avoid unreasonable or absurd results, thereby giving effect to the Legislature’s
intent.” S.
Nevada Homebuilders Ass’n v. Clark Cty, 121
NRS 17.150(4) simply does not state that the affidavit is required to secure a lien upon the property. All that is required is to record a copy of the judgment, which Mr. Margolin did. Therefore, Mr. Margolin properly perfected judgment liens upon the properties.
Even if the sales of the 1/3 interest in the properties to Mr. Margolin are – wrongly – set aside, Margolin still has a valid lien against the properties, perfected pre-petition by recording the judgment. Therefore, Margolin is a secured creditor as to those properties in the bankruptcy.
3. A Defect in the Sheriff’s Notices Does not
Void the
The exclusive remedy for one claiming to have been prejudiced and to have suffered damage due to the Sheriff’s failure to provide proper notice, or of the Sheriff having sold property without proper notice, is to pursue the Sheriff for damages pursuant to NRS 21.140(1). Section NRS 21.140(1) provides that: “An officer selling without the notice prescribed by NRS 21.075, 21.076, and 21.130 forfeits $500 to the aggrieved party, in addition to the party’s actual damages”. This section is nearly identical to the current Idaho Code Section 11-303 which provides: “An officer selling without the notice prescribed by the last section forfeits $500 to the
aggrieved party, in addition to his actual damages….” (emphasis added). Compare NRS 21.140(1) (“An officer selling without the notice prescribed by NRS 21.075, 21.076 and 21.130 forfeits $500 to the aggrieved party, in addition to the party’s actual damages….” (emphasis
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added).
In Nixon v. Triber, 595 P.2d 1093, 1096
(Idaho 1979) the Idaho Supreme Court reversed the district court’s order
setting aside sale for failure to provide statutory notice, holding the sale is
valid and exclusive remedy is to pursue the Sheriff for damages. The Nixon
court canvased authorities from states having statutes with language
substantially similar to Idaho Code section 11-303 which
It has been often decided that the provisions of statutes similar to ours, with respect to levy and notice of sale under execution, are merely directory, and the failure of the officers to comply with the requirements of the law, in this respect, would not vitiate such sale, but the party aggrieved by his neglect is left to his remedy by an action against the officer. 6 Mun. 111, 3 Bibb, 216. This rule is founded in justice and sound policy.
Very few of those who become purchasers of land at sheriff's sales, have an opportunity of knowing whether or not the law, with respect to notice, has been strictly complied with, or whether the defendants in execution have personal property at the time of the levy, and if every mistake or neglect of duty, on the part of a sheriff, would operate to invalidate such sale, great injury would result, both to debtor and creditor, for no prudent man would give a fair price for property, if he was liable to be divested of his title by reason of the laches of the officer. Is there anything in our statutes in conflict with the view above taken?
The intention of the Legislature, where it can be ascertained, must govern in the construction of a statute. This intention should not be taken from a particular section, but from the whole statute. Section 221 of the 'Act to regulate proceedings in civil cases,' provides that the sheriff shall, before a sale of real estate under execution, give notice of the time and place of sale, for twenty days. If the officer neglects to give such notice the following section provides, not that the sale shall be void, but 'an officer selling without the required notice shall forfeit five hundred dollars to the aggrieved party in addition to his actual damages.' Section 222.
The statute having thus
provided an adequate remedy, by an action against the officer, the party
aggrieved can have no other expressio
unis exclusio est alterius. Smith,
6 Cal. at 50, 1856
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material respects to California
Code provisions, we are persuaded … to follow
The Nixon court concluded that,
consistent with all of the other jurisdictions to address the issue, Idaho Code
11-303 (NRS 21.140(1)) “provides the exclusive remedy for failure to comply
with the notice provisions of I.C. § 11-302.[2] Our holding is in conformity
with decisions from other jurisdictions which have interpreted identical or
similar statutes.” Nixon 595 P.2d at 1096; see
also Smith v. Randall, 6
an action against the officer,
the party aggrieved can have no other expressio
unis exclusio est alterius”); Simson
v. Eckstein, 22 Cal. 580 (1863); Shores
v. Scott River Water Company, 17 Cal. 626 (1861); Harvey v. Fisk, 9
NRS 21.075, 21.076, and 21.130
establish the obligation of the Sheriff to provide the notices stated therein.
NRS 21.075(1) expressly so provides (“only if the sheriff serves …
_________________________________
[2] Idaho Code 11-302 provides as follows:
Before the sale of the property on execution, notice thereof must be given as follows:
1. In case of perishable property, by posting a written notice of the time and place of sale in three (3) public places of the precinct or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property.
2. In case of other personal property, by posting a similar notice in three (3) public places in the precinct or city where the sale is to take place for not less than five (5) nor more than ten (10) days before the time set for the sale, or by publishing a copy thereof at least one (1) week, and not more than two (2) weeks, in a newspaper published in the county, if there be one.
3. In case of real property, by posting a
similar notice particularly describing the property, for twenty (20) days, in
three (3) public places in the precinct or city where the property is situated,
and also where the property is to be sold, and by publishing a copy thereof
once a week for the same period before the time set for the sale, in a
newspaper published in the county, if there be one. When the judgment under
which the property is to be sold is made payable in a specified kind of money
or currency, the several notices required by this section must state the kind
of money or currency in which bids may be made at such sale, which must be the
same as that specified in the judgment.
Accord NRS 21.130.
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notice”). NRS 21.076 expressly so provides (“The notice required by NRS 21.075 must be served by the sheriff.”). NRS 21.130(1) also provides that “notice of the sale, in addition to the notice required pursuant to NRS 21.075 and 21.076, must be given” by the Sheriff. Finally, NRS 21.140(1) clearly, and unmistakably, provides the exclusive remedy if the Sheriff sells the real property without the notices required by NRS 21.075, 21.076 and 21.130, to wit: “An officer selling without the notice prescribed by NRS 21.075, 21.076 and 21.130 forfeits $500 to the aggrieved party, in addition to the party’s actual damages.” (emphasis added). Certainly, the way
the Sheriff knows whether the required notices are given is by virtue of the Sheriff executing its responsibility to provide those notices.
Therefore, if a party is
aggrieved by the Sheriff’s neglect (if any) properly to serve notices, or that
the sale proceeded without the statutory notices, his or her exclusive remedy
is against the Sheriff, pursuant to NRS 21.140(1). Nixon,
595 P.2d at 1096; Smith, 6
4. Zandian Received Actual Notice of the Sales
Again, failure in notice does not void the sales, but rather the exclusive remedy is against the Sheriff. Nonetheless, it is undisputed that Zandian had actual notice of the Writ of Execution and notice of sales. In Turner v. Dweco Servs., 87 Nev. 14, 16, 479 P.2d 462, 464 (1971) (a foreclosure pursuant to a trustee’s sale, not a Sheriff’s sale), the Nevada Supreme Court held that when notice was served upon counsel for the debtor, the purpose of the statute was satisfied because actual notice of the debtor’s counsel belied any prejudice or lack of knowledge of the commencement of the foreclosure proceedings. In the case at bar, a copy of the notices of
execution and sale were sent to
Zandian’s then counsel of record by the Sheriffs of Washoe County and
________________________
[3] In Siler
v. Siler, 277 S.W. 886, 887 (
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Counsel for Zandian (the putative debtor in the instant Chapter 15 proceeding, and criminal at large) was actively involved in representing Zandian in his efforts to avoid the sale of the properties. See e.g. Opposition to Motion for Writ of Execution, filed April 21, 2014 by Reza Zandian, attached to the declaration of Arthur A. Zorio (“Zorio Decl.”) as Exhibit L. Zandian remained represented by counsel, even responding to the First Judicial District Court’s order to pay $96,287.07 by June 9, 2014 by filing a statement that he is unable to pay the debts he has been ordered to pay. See Zorio Decl. at Ex. M (Notice of Inability to Pay, Filed on June 9, 2014).
Zandian was represented by counsel at the time he was ordered to appear for a judgment debtor’s examination. See Zorio Decl. at Ex. N (Order Granting Plaintiffs’ Motion for Debtor Examination and to Produce Documents, entered on November 6, 2015). On January 7, 2016, the First Judicial District Court granted Mr. Zandian’s counsel leave to withdraw, stating: “[Zandian] has substantially failed to fulfill his obligations to Kaempfer Crowell regarding its services, that Kaempfer Crowell’s representation has also been rendered unreasonably difficult as a result of [Zandian’s] failure to meet his obligations to counsel, and that [Zandian] insists upon
taking action that the lawyer
considers repugnant or with which the lawyer has fundamental disagreement.”
Therefore, Zandian was in communication with his counsel both before and after the sale of the property, having had actual notice of the sale and the writs of execution by virtue of his counsel having been provided notice of the same.
Other jurisdictions, apparently without statutes identical to NRS 21.140(1), have concluded that actual notice of sale is dispositive even when the formal requirements of notice have not been met. See e.g. G.E. Capital Mortg. Services, Inc. v. Marilao, 800 A.2d 150, 155 (N.J. App. Div. 2002) citing First Mutual Corp. v. Samojeden, 518 A.2d 525, 528 (N.J. App. Div. 1986). In this case, even if NRS 12.140(1) did not provide the exclusive remedy to Canet, the debtor was aware of the sales, the Notice of Sale having been received by his attorney.
5. NRS 21.130
______________________
Statement of Undisputed Material Facts ¶¶ 16, 18, 20, 22, 24 & ECF No. 25 at Exs. B, C, D, E; and Zorio Decl., Exs. O-P (Clark County Sheriff’s Deeds).
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Again, failure in notice does
not void the sales, but rather the exclusive remedy is against the Sheriff. In Siler v. Siler, 277 S.W. 886, 887 (
Statement of Undisputed Material Facts ¶¶ 16, 18, 20, 22, 24 & ECF No. 25 at Exs. B, C, D, E; and Zorio Decl., Exs. O-P (Clark County Sheriff’s Deeds).
Furthermore, the records provided, and certified by, the Washoe County Sheriff present a rebuttable presumption that notices were properly given. See Zorio Decl., ¶¶ 3-7, Exhibits B-F. Likewise the records provided by the Clark County Sheriff present a rebuttalbe presumption that notices were properly given. See Zorio Decl., ¶¶ 8-12, Exhibits G-K; Statement of Undisputed Material Facts ¶¶ 16, 18, 20, 22, 24 & ECF No. 25 at Exs. B, C, D, E; and Zorio Decl., Exs. O-P (Clark County Sheriff’s Deeds).
Accompanying the Declaration of the Custodian of Records for the Washoe County Sheriff is proof of the regularly conducted activity involving conducting a sheriff sale of real property, including (1) returned receipts of registered mail for mailing notice of sale to counsel for Mr. Zandian of each property; and (2) posting of sales at three public places in the township or city where the properties are situated.. Also attached are the Reno Gazette-Journal’s affidavit of proofs of publication for each notice of sale. . See Zorio Decl., ¶ 7, Exhibit F.
The Notices of Sale were apparently
not recorded in the office of the
There is no valid reason to set
aside the sales. Regardless if all four (4) notices described in NRS
21.130(c)(1-4) were accomplished, merely providing notice to the debtor’s
counsel and publishing the notice of sale satisfies the purpose to inform the
debtor and possible third party purchasers of the sale. Turner v. Dweco Servs., 87
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deed of trust, not execution); compare NRS 21.130(c) with NRS 107.080(4).
No party involved in the
present proceedings can credibly claim they were prejudiced by the notice of
sale not having been recorded in
6. NRS 21.075-.076
Again, failure in notice does not void the sales, but rather the exclusive remedy is against the Sheriff. Section 21.075, Nevada Revised Statutes, provides that it is the Sheriff’s duty properly to serve the judgment debtor with a notice of the writ of execution pursuant to NRS 21.076 and a copy of the writ. NRS 21.075(1). Section 21.076(1) also states it is the duty of the Sheriff to ensure the proper manner of service. NRS 21.076(1). The Declarations of Service signed by Steve Wood at the Washoe County Sheriff’s office state under penalty of perjury that he served the writs of execution via post and mail. See Zorio Decl., ¶ 7, Exhibit F. Likewise the
records of
Even if there was an error in
providing notices pursuant to Chapter 21, Nevada Revised Statutes, such error
is not cause to invalidate or set aside the sales. Rather, the party claiming
prejudice, and if prejudice can be proved, has an exclusive remedy to pursue
the Sheriff. NRS 21.140(1); Nixon, 595 P.2d at
1096. Statutes such as NRS 21.075 are merely directory, and the failure of the
Sheriff to comply with the requirements of the law, in this respect, would not
vitiate the sale of real property. Batini v. Ivancich, 105
7. Zandian’s Right to Redeem the Property has
Been Waived
Again, failure in notice does
not void the sales, but rather the exclusive remedy is against the Sheriff.
Because the sale of the property is not void or voidable, and Zandian had
actual notice of the sales, even informing a court he does not intend to pay
his debts, Zandian has
_____________________
[4]
In Siler v. Siler, 277 S.W. 886, 887
(
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waived his right, if any, to redeem the property.
8. Canet’s Claims of
Inadmissibility Are Without Merit
“It is a fundamental rule that
objections to the admissibility of evidence must be made . . . and must be
specific, and that general objections such as those advanced here that the
evidence is ‘incompetent, irrelevant and immaterial and not the best evidence,
and no proper foundation laid,’ are insufficient.”
Furthermore, the Washoe County Sheriff’s office has provided an affidavit of its custodian of records, certifying the records of regularly conducted activities for the sale of real property on execution. See Zorio Decl., Exhibit F. Fed. R. Evid. 803(6). Likewise the Clark County Sheriff’s office has provided affidavits of activities. See Zorio Decl., Exhibits G-K. Fed. R. Evid. 803(6). Furthermore, the individuals from the Sheriff’s offices may testify at trial about the notices that office sent and when. See Fraser v. Goodale, 342 F.3d 1032, 1036-1037 (9th Cir. 2003) (“At the summary judgment stage, we do not focus on the admissibility of the evidence's
form. We instead focus on the
admissibility of its contents”), cert. den. 541 U.S. 937 (2004); J.F. Feeser, Inc.
v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990) (hearsay
evidence produced in an affidavit may be considered on summary judgment if the
declarant could later present the evidence through direct testimony); Williams v.
Borough of W. Chester, 891 F.2d 458, 465 n.12 (3d Cir. 1989)
("hearsay evidence produced in an affidavit opposing summary judgment may
be considered if the out-of-court declarant could later present that evidence
through direct testimony, i.e. in a form that would be admissible at
trial.") (internal quotation marks omitted).
Therefore, the evidence relied upon by Margolin is admissible for his motion for summary judgment, and opposition to the putative cross-motion.
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E. Adversary Plaintiffs’ Purported Partial Joinder
to Canet’s Opposition and Counter Motion is Procedurally Improper and Should
Also be Rejected For the
Same Reasons Why Canet’s
Opposition and Counter Motion Should Be Rejected
Adversary Plaintiffs seek to join Canet’s Opposition and Counter Motion as it pertains to Canet’s NRS 17.150(4) argument, but also ask this Court to declare that Adversary Plaintiffs “own two-thirds interest in the subject properties [APN 079-150-10, 084-040-02, and 084-13007] free and clear of any judgment lien claimed by Mr. Margolin.” See ECF No. 37. Adversary Plaintiffs’ proposed “Joinder” must be denied for the following reasons.
First, because Canet’s Counter Motion must be denied for the reasons stated above, Adversary Plaintiffs’ “Joinder” should be denied as well. See supra.
Second, Local Rule 7056 does not allow for a “joinder”, but instead requires the following:
(a) Motions. Each motion for summary judgment must be accompanied by a separately filed “Statement of Undisputed Facts” which must specify each of the
material facts relied upon in support of the motion, and which cites to the particular portions of any pleading, affidavit, declaration, deposition, interrogatory
answer, admission or other document relied upon to establish that fact. The moving party must file as an exhibit to the statement all of the evidentiary
documents that are cited in the
moving papers. Adversary Plaintiffs have not filed a separate motion with a
Statement of Undisputed Facts, or any exhibits containing evidentiary documents
in accordance with Local Rule 7056(a). As such, Adversary Plaintiffs’ “joinder”
is improper and should be denied. This is especially true since Adversary
Plaintiffs (in Canet-like fashion) raise an issue not addressed in Mr.
Margolin’s MSJ or Canet’s Oppostion/Counter Motion. See ECF 37, p. 4. Specifically, Adversary
Plaintiffs ask that this Court declare that they each own a two thirds interest
in APN 079-150-10, 084-04002, and 084-130-07 free and clear of any judgment
lien claimed by Mr. Margolin.
III. CONCLUSION
For all of the foregoing reasons, summary judgment should be granted in Mr. Margolin’s favor and Canet’s Cross Claims should be dismissed with prejudice. Furthermore, Canet’s
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Counter Motion should be denied with prejudice as should Adversary Plaintiffs’ “Joinder.”
DATED: This 2nd day of May, 2018.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
By: /s/Arthur A. Zorio
Matthew D. Francis
Arthur A. Zorio
Telephone: 775-324-4100
Attorneys for JED MARGOLIN
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Case 17-05016-btb Doc 46 Entered 05/02/18 14:49:36 Page 20 of 20
CERTIFICATE OF SERVICE
Pursuant to Fed. R. Civ. P. 5(b), I certify that I am an employee of BROWNSTEIN HYATT FARBER SCHRECK, LLP, and on this 2nd day of May, 2018, I served the document entitled CROSS-DEFENDANT JED MARGOLIN’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AGAINST CROSS-CLAIMANT PATRICK CANET AND OPPOSITION TO COUNTER MOTION on the parties listed below via the following:
[ ] VIA FIRST CLASS U.S. MAIL: by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Reno, Nevada, addressed as follows:
Dana Jonathon Nitz, Esq.
Yanxiong Li, Esq.
Wright, Finlay & Zak, LLP
7785
W.
yli@wrightlegal.net
Jeffrey L. Harman, Esq.
HARMAN & HARTMAN
notices@bankruptcyreno.com
[ ] BY PERSONAL SERVICE: by personally hand-delivering or causing to be hand delivered by such designated individual whose particular duties include delivery of such on behalf of the firm, addressed to the individual(s) listed, signed by such individual or his/her representative accepting on his/her behalf. A receipt of copy signed and dated by such an individual confirming delivery of the document will be maintained with the document and is attached.
[ ] VIA COURIER: by delivering a copy of the document to a courier service for over-night delivery to the foregoing parties.
[X] VIA ELECTRONIC SERVICE: by electronically filing the document with the Clerk of the Court using the ECF system which served the foregoing parties electronically.
/s/ Nancy R. Lindsley
Employee of Brownstein Hyatt Farber Schreck, LLP
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