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Electronically
Filed
Jun
30 2021 01:24 p.m.
Elizabeth
A. Brown
Clerk
of Supreme Court
IN THE SUPREME COURT OF
THE STATE OF
Supreme
Court Case No. 82559
District
Court Case No. 09OC005791B
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
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.
________________________________/
REPLY TO RESPONDENT’S
OPPOSITION TO MOTION TO TAKE JUDICIAL NOTICE (NRAP 27(a)(4))
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 replies to Respondent’s Opposition to Motion to Take Judicial Notice
pursuant to NRAP 27(a)(4).
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SUMMARY OF REPLY
The district court’s Order
granting Appellant’s Motion to Void Deeds, Assign Property, for Writ of Execution
and to Convey (the “Order”) is void because the underlying judgment is void due
to the expiration of the limitations period provided by NRS 11.190(1)(a). Judge Beesley of the United
States Bankruptcy Court for the District of Nevada examined the facts and found
that the default judgment that was recorded did not create a lien that could
executed upon because an affidavit of judgment was not recorded at the time the
judgment was recorded as required by NRS 17.150(4). See Exhibit 1 to Motion to take Judicial Notice. The Order, which
is the subject of this appeal, depends entirely upon the existence of a
properly created lien upon which execution may be had. Accordingly,
Respondent’s claim that the bankruptcy case is not closely connected to this
appeal is nonsense. Moreover, the current motion does not request that the
Supreme Court review the outcome of the bankruptcy case, but merely to take
judicial notice of the facts reflected in the bankruptcy court pleadings.
Finally, the fact that the Motion to Void Deeds, Assign Property, for Writ of
Execution and to Convey was not opposed in the district court is not relevant
to whether this court should take judicial notice of facts capable of
verification from a reliable source and, in any event, sworn testimony
concerning Judge Beesley’s ruling is contained in the
record.
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ARGUMENT
1. The Bankruptcy Case
is Closely Connected to this Appeal.
Respondent contends that this
appeal is not closely connected to the bankruptcy case because “none of the issues
in the bankruptcy cases…were litigated in Respondent’s Motion to Void Deeds,
Assign Property, For Writ of Execution and To Convey, which is the sole subject
of this appeal.” Opposition
to Motion to Take Judicial Notice at p. 2. To accept this conclusion,
one must necessarily ignore the fact that Respondent’s motion could not have
been validly granted without a valid underlying judgment.
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In his motion before the
district court, Respondent requested the order “to be applied toward satisfaction of the judgment.” 13 ROA 3168
[emphasis added]. The district court granted the motion but was not aware that
the underlying judgment had expired. Judge Beesley
specifically found that Respondent had failed to strictly comply with
For
this reason, the bankruptcy court held that no lien was created, and any sales
carried out in the absence of a lien were void.[1]
A judgment lien can be created
only by strict compliance with the timing requirements of NRS 17.150(4). Leven v. Frey, 123
The district court could not
have issued the Order without the presence of a valid judgment lien created in
strict compliance with NRS 17.150(4). Judgment liens are a product of centuries
of statutes which authorize a judgment creditor to seize and sell the land of
debtors at a judicial sale to satisfy their debts out of the proceeds of the
sale. In re Upset
__________________
[1] While it is true that the bankruptcy court later
voided its own order granting summary judgment, the facts upon which the
judgment were based have not and will not change. Respondent did not strictly
comply with
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debt and
conveys a right of execution to the judgment creditor in satisfaction of his
debt.
Because the underlying judgment
lien was void at the time of the district court’s entry of the Order, the Order
allowing execution is also void. This court should therefore take judicial
notice of the bankruptcy court’s factual determinations because the facts are
capable of accurate and ready determination by resources (the public record
maintained by each county recorder) whose accuracy cannot reasonably be
questioned. Mack v. Estate of Mack,
125
2. The Motion Does Not
Request the Supreme Court to Review the Actions of the Bankruptcy Court.
Respondent complains that the
instant motion seeks a review by this court of the actions of the United States
Bankruptcy Court. The motion does no such thing. The instant motion merely
requests this court take judicial notice of certain facts which are readily
available from resources whose accuracy cannot be reasonably questioned. This
court is authorized pursuant to its own holdings to take judicial notice of
records in a different case where there is a close relationship between the two
cases. As set forth above, the issue in the bankruptcy case and the issue here
is whether there was a valid judgment lien which the district court could
enforce by virtue of the Order. The court is not being asked to review, affirm
or reverse the actions of the bankruptcy court, which it plainly cannot do, but
merely to take notice of certain facts judicially found.
3. The Fact that
Appellant Did Not Oppose Respondent’s Motion Below is Not Relevant to Whether
this Court Should Take Judicial Notice.
In his opposition, Respondent
argues that the two cases cannot be closely connected because Appellant never
opposed Respondent’s motion at the district
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court level.
While that statement may be factually correct, it has nothing to do with
whether this court should take judicial notice of readily ascertainable and
verifiable facts. Respondent has cited no authorities which hold that the
Supreme Court’s ability to take judicial notice is limited to matters which
actually appear in the record on appeal. Accordingly, this argument is
irrelevant. Nevertheless, as set forth below, there is evidence in the record
which suggests that the judgment expired before the Order was entered by the
district court.
4. There was Evidence Before the District Court Showing that the Judgment was
Void.
Respondent asserts that the
instant motion should be denied because the issue is being raised for the first
time on appeal and cites several cases for said proposition. However, this
court has found exceptions to this rule in appropriate cases. For example, in Smithart v. State, 86 Nev. 925, 478 P.2d 576
(1970), the Supreme Court observed that it is a general rule that failure
either to utilize the statutory procedures to raise the question prior to trial
or to object at the trial of the case will preclude appellate consideration of
the issue when presented on appeal. 478 P.2d at 579.
Nevertheless, the Smithart
court considered the new matter because it was grounded on constitutional
questions that the court is obligated to consider on appeal. On several other
occasions, this court has held that new matter can be considered where the
error is so unmistakable that it reveals itself upon a review of the record. Howarth v. El Sobrante
Mining Corp., 87
On May 2, 2019, Respondent
Margolin filed and recorded an affidavit of renewal of judgment in the district
court. 14 ROA 3498. Margolin’s sworn statement
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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. 14 ROA 3502-03. Margolin also represented to
the district court that he intended to appeal the bankruptcy court order
declaring the sheriff’s deeds void ab initio.
CONCLUSION
Based upon the foregoing and
all the papers and pleadings on file herein, Appellant respectfully requests
this honorable court to take judicial notice of the bankruptcy pleadings set
forth in the motion.
Dated this 30th day of June, 2021.
OSHINSKI
& FORSBERG, LTD.
By /s/ Rick Oshinski,
Esq.
Rick
Oshinski, Esq., NSB 4127
Attorneys for Appellant
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CERTIFICATE
OF SERVICE
I
certify that and that on June 30, 2021, I filed a true and correct copy of the
foregoing Reply to Respondent’s Opposition to Motion To Take Judicial Notice
(NRAP 27(a)(4)) 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 Schreck
Attorneys
for Respondent
/s/
Linda Gilbertson
Linda
Gilbertson