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Electronically Filed
Jun 04 2021 11:01 a.m.
Elizabeth A. Brown
Clerk of Supreme Court
Mark Forsberg, Esq., NSB 4265
Rick Oshinski, Esq., NSB 4127
OSHINSKI & FORSBERG, LTD.
T 775-301-4250 | F 775-301-4251
rick@oshinskiforsberg.com
mark@oshinskiforsberg.com
Attorneys for Appellant
IN
THE SUPREME COURT OF THE STATE OF
Supreme Court Case No. 82559
District Court Case No. 09OC005791B
REZA ZANDIAN, A/K/A GOLAMREZA ZANDIANJAZI, A/K/A GHOLAM REZA ZANDIAN, A/K/A REZA JAZI, A/K/A J. REZA JAZI, A/K/A G. REZA JAZI, A/K/A GHONOREZA ZANDIAN JAZI, an individual,
Appellant,
vs.
JED MARGOLIN, an individual,
Respondent.
________________________________/
MOTION TO TAKE JUDICIAL NOTICE (NRAP 27(a)(1))
COMES NOW Appellant, Reza Zandian, A/K/A Golamreza Zandianjazi, A/K/A Gholam Reza Zandian, A/K/A Reza Jazi, A/K/A J. Reza Jazi, A/K/A G. Reza Jazi, A/K/A Ghonoreza Zandian Jazi (“Appellant” and/or “Zandian”), by and through his attorneys, Oshinski & Forsberg, Ltd., and hereby moves this honorable court that it take judicial notice of certain pleadings filed in a Nevada bankruptcy case where Appellant herein was debtor and which is closely connected to the instant
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appeal. This motion is made and based upon the following points and authorities and all the papers and pleadings on file herein.
SUMMARY OF MOTION
This appeal raises the issue of whether Respondent properly created a valid judgment lien pursuant to NRS 17.150(4). In reliance on the purported judgment lien, the district court issued the order which led to this appeal.[1] Accordingly, Appellant respectfully requests this court to take judicial notice of the bankruptcy court pleadings as set forth below.
FACTS
The complaint in the action
that led to this appeal was filed in the First Judicial Court on December 11,
2009 by Respondent Margolin naming Appellant Zandian as a defendant. ROA 1-7.
The default judgment at issue was entered against Appellant Zandian by the
district court on June 24, 2013. ROA 1255-1257. That order noted that
default judgments had previously been entered against the other defendants,
Optima Technology Corporation, a
On May 3, 2016, based upon the default judgment, Respondent filed his Motion to Void Deeds, Assign Property, For Writ of Execution and to Convey. ROA 3162-3449. Neither the motion nor the supporting documents reflect the default judgment was recorded or that an affidavit of judgment was recorded at the time the default judgment was recorded as required by NRS 17.150(4).
Before the Motion to Void Deeds, Assign Property, For Writ of Execution and to Convey was decided by the district court, the district court entered its Notice of Bankruptcy Filing and Automatic Stay on June 3, 2016. ROA 3491-3492.
[1] Appellant appealed the district court’s Order Granting Plaintiff’s Motion to Void Deeds, Assign Property, For Writ of Execution and to Convey. ROA v. 15, p. 3524.
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In the course of the bankruptcy proceedings, a Chapter 15 Petition for Recognition of Foreign Proceeding, Bankruptcy Court Case Number 16-50644-btb, and two concurrent adversary proceedings, the plaintiffs in adversary case number 17-05016-BTB filed a motion for partial summary judgment arguing that the default judgment against Appellant entered by the Nevada district court and referenced above was void because an affidavit of judgment had not been recorded at the time the default judgment was recorded. On July 20, 2018, the Honorable Bruce T. Beesley, United States Bankruptcy Judge, in and for the District of Nevada, granted the Motion for Partial Summary Judgment. A copy of the order is attached hereto as Exhibit 1. In the order, the court made a finding of fact that Respondent Margolin never recorded an affidavit to create a judgment lien based on the default judgment in the manner required by NRS 17.150(4). In the Conclusions of Law set forth in the order, the court relied on Village League to Save Incline Assets, Inc. v. State ex rel. Bd. of Equalization, 124 Nev. 1079, 1086-1087 (2008) and Leven v. Frey, 123 Nev. 399, 408 (2007), to hold that the default judgment was void because Margolin failed to record an affidavit and therefore did not strictly comply with NRS 17.150(1). In those cases, this Court held that strict --rather than substantial -compliance with the affidavit requirement of NRS 17.150(4) was required to perfect a lien. Judge Beesley held that because no affidavit was concurrently recorded, no lien was created by the recorded default judgment and that as a result, any sheriffs’ sales conducted based on the recorded default judgment were void ab initio.
On August 1, 2018, Judge Beesley’s order was recorded in at least one jurisdiction. It was recorded as document number 4838439 in the official records of the Washoe County Recorder. See Exhibit 1. Nonetheless, Respondent Margolin filed and recorded an Affidavit of Renewal of Judgment in the state district court on May 2, 2019. ROA 3498. The Affidavit of Renewal of Judgment, which was signed by Respondent Margolin, stated at Section 10 that the bankruptcy court had declared the Sheriff’s deeds based on the default judgment void ab-initio on July 20, 2018.
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Margolin also stated that he “intends to appeal the bankruptcy court’s order declaring the Sheriff’s deeds void ab initio. Notwithstanding the above, Margolin has not received payments from Judgment Debtor.” Although the record on appeal does not contain any evidence of it, the Affidavit of Renewal of Judgment was recorded on May 3, 2019 as document number 4907598 in the official records of the Washoe County Recorder. A true and correct copy is attached hereto as Exhibit 2.
On January 15, 2021, the district court entered its notice of termination of bankruptcy. ROA 3511. The order of the bankruptcy court is attached hereto as Exhibit 3. All the parties to the Chapter 15 case and the two adversary proceedings stipulated to the termination of all three cases. Moreover, as part of the stipulation, Judge Beesley vacated all his previous orders in all of the cases, including his July 20, 2018 Order Granting the Motion for Partial Summary Judgment that held the judgment liens to be void ab initio.
On January 19, 2021, the district court granted Respondent Margolin’s Motion to Void Deeds, Assign the Property, For Writ of Execution and To Convey, leading to this appeal. Because the issues addressed by the orders of the bankruptcy court are the same as those raised in this appeal, Appellant now requests that this Court take judicial notice of the bankruptcy court orders and the public records referenced above.
ARGUMENT
This Court may take judicial
notice of facts generally known or capable of verification from a reliable
source whether the court is requested to do so or not. Mack v. Estate of Mack, 125
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pursuant
to NRAP 27(a)(1); Quiana M. B. v. State Dept. Family Services (In re
parental rights D.N.), 120
As a general rule the Supreme
Court will not take judicial notice of records in another and different case
even though the cases are connected. Occhiuto v. Occhiuto, 97
To determine if a particular
circumstance falls within the exception, the court examines the closeness of
the relationship between the two cases.
In the present case, the exact issue on appeal was litigated in the Appellant’s bankruptcy proceeding in the United States Bankruptcy Court for the District of Nevada. Respondent herein filed a motion for summary judgment in the bankruptcy proceeding which was opposed by the Appellant/debtor’s representative who filed its own cross motion for summary judgment. The bankruptcy court judge made specific findings of facts and conclusions of law and held that Respondent herein failed to properly create his judgment lien and that the judgment was therefore void.
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The factual assertions, documents and arguments concerning this issue are not part of the district court record. Accordingly, selected pleadings from the bankruptcy court will provide additional and useful factual background for this appeal.
CONCLUSION
Based upon the foregoing, Appellant respectfully requests this honorable court to take judicial notice of the bankruptcy pleadings set forth in this motion.
Dated this 4th day of June, 2021.
OSHINSKI & FORSBERG, LTD.
By /s/ Mark Forsberg, Esq.
Mark Forsberg, Esq., NSB 4265
Rick Oshinski, Esq., NSB 4127
Attorneys for Appellant
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CERTIFICATE OF SERVICE
I certify that and that on June 4, 2021, I filed a true and correct copy of the foregoing Motion To Take Judicial Notice (NRAP 27(a)(1)) with the Clerk of the Court through the Court’s CM/ECF system, which sent electronic notification to all parties as follows:
Arthur A. Zorio
Matthew Francis
Brownstein Hyatt Farber Schrek
Attorneys for Respondent
/s/ Linda Gilbertson
Linda Gilbertson