nvleg-what

Did the Nevada Legislature Really Mean to Do That?

By Jed Margolin (I am not a lawyer so feel free to ignore this)

Discussion of Nevada NRS 17.150(4)

My discussion starts with the basic principle:

“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 Nev. 446, 449, 117 P.2d 171, 173 (2005).

NRS 17.150(2) sets forth the requirements for recording a Judgment in order to place a lien on the Judgment Debtor’s real property.

But later there is NRS 17.150(4) which adds that an affidavit is necessary containing the last four numbers of either the Debtor’s driver’s license or social security or a statement that this information is not available. It also requires the APNs of the Debtor’s property.

The question is whether NRS 17.150(2) is sufficient for a Judgment Creditor with a Money Judgment to establish a lien on the real property owned by the Judgment Debtor or whether NRS 17.150(4) is also necessary.

I. Argument

A. When you get a Money Judgment against a Debtor (as opposed to, for example, a Mortgage Judgment) the socially responsible thing to do to promptly record the Judgment in all of the Counties where the Judgment Debtor might own property. This gives notice to potential buyers of the Debtor’s property of the existence of the Judgment since, under NRS 112.180(1)(a):

NRS 112.180 Transfer made or obligation incurred with intent to defraud or without receiving reasonably equivalent value; determination of intent.

1. A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:

(a) With actual intent to hinder, delay or defraud any creditor of the debtor; or

......

Otherwise a person could buy the Debtor’s property and, with the sale later voided under NRS 112.180, be left without the property and without his money

B. But it is not until you get the Money Judgment that you can ask the Court to order the Debtor to submit to a Debtor’s Examination and to produce his financial records. There may be some delay in having the Debtor’s Examination take place. If the Debtor refuses to cooperate it might not take place at all, in which case you have to discover the Debtor’s assets on your own which can take some time.

C. With a Debtor’s Examination and the Debtor’s financial records you may discover that the Debtor owns property, or an interest in property, that is not apparent from the public records. For example, the Debtor might own property under an alias that you have not discovered on your own. With an uncooperative Debtor you might not know about his ownership of property for a long time.

D. As a result, NRS 17.150(4) would place an unreasonable, maybe impossible, and certainly unfair burden on a Judgment Creditor.

If NRS 17.150(4) is required in order to place a lien on a Debtor’s property then you have to either:

a. Wait to record your Judgment until the Debtor’s Examination takes place, or

b. Be prohibited from using the results of the Debtor’s Examination.

The second one produces an absurd result since under NRS 21.270 the Judgment Creditor has the right to examine the Debtor to discover his property:

NRS 21.270 Examination of judgment debtor.

1. A judgment creditor, at any time after the judgment is entered, is entitled to an order from the judge of the court requiring the judgment debtor to appear and answer upon oath or affirmation concerning his or her property, before: ........

It would be an absurd result to allow a Judgment Creditor with a Money Judgment to hold a Judgment Debtor’s Examination and then, after learning of the Debtor’s property, be prohibited by NRS 17.150(4) from using that information to satisfy his Judgment against the Debtor.

The Nevada Legislature intended to give Judgment Creditors tools for having their Judgments satisfied (such as NRS 21.270). If the Legislature had intended to take those tools away with S.B. 186 (2011) which amended NRS 17.150(4) to include APNs, they would have repealed NRS 21.270. They didn’t do that.

Therefore, NRS 17.150(2) must be sufficient for a Judgment Creditor (with a money Judgment) to place a lien on all of the Judgment Debtor’s property in the County where the Judgment is recorded.

II. Writs of Execution

There is the closely related issue of Writs of Execution.

Writs of Execution are covered by NRS 21.020. https://www.leg.state.nv.us/nrs/nrs-021.html#NRS021Sec020

NRS 21.020 Writ of execution: Issuance; contents. The writ of execution must be issued in the name of the State of Nevada, sealed with the seal of the court, and subscribed by the clerk, and must be directed to the sheriff; and must intelligibly refer to the judgment, stating the court, the county where the judgment roll is filed, the names of the parties, the judgment, and if it is for money, the amount thereof, and the amount actually due thereon; and if made payable in a specified kind of money or currency, as provided in NRS 17.120, the writ must also state the kind of money or currency in which the judgment is payable, and must require the sheriff substantially as follows:

1. If it is against the property of the judgment debtor, it must require the sheriff to satisfy the judgment, with interest, out of the personal property of the debtor, and, if sufficient personal property cannot be found, then out of the debtor’s real property; or if the judgment is a lien upon real property, then out of the real property belonging to the debtor on the day when the abstract or certified copy of the judgment or decree was recorded in the office of the county recorder of the particular county to whose sheriff the writ was issued, stating the day, or out of the real property afterward acquired by the debtor before the lien expires.

2. If it is against real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants of real property, or trustees, it must require the sheriff to satisfy the judgment, with interest, out of the property.

3. If it is against the person of the judgment debtor, it must require the sheriff to arrest the debtor and commit the debtor to the jail of the county until the debtor pays the judgment, with interest, or it is discharged according to law.

4. If it is issued on a judgment made payable in a specified kind of money or currency, as provided in NRS 17.120, the writ must also require the sheriff to satisfy it in the kind of money or currency in which the judgment is made payable, and the sheriff shall refuse payment in any other kind of money or currency; and in case of levy and sale of the property of the judgment debtor, the sheriff shall refuse payment from any purchaser at the sale in any other kind of money or currency than that specified in the writ; the sheriff collecting money or currency in the manner required by this chapter shall pay to the person entitled thereto, the same kind of money or currency received by the sheriff, and in case of neglect or refusal so to do, the sheriff is liable on his or her official bond to the judgment creditor in three times the amount of money so collected.

5. If it is for the delivery of the possession of real or personal property, it must require the sheriff to deliver the possession of the property, particularly describing it, to the person entitled thereto, and may at the same time require the sheriff to satisfy any costs, damages, rents or profits, recovered by the same judgment out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered to be specified therein; if a delivery thereof cannot be had, and if sufficient personal property cannot be found, then out of real property, as provided in subsection 1.

[1911 CPA § 339; RL § 5281; NCL § 8837] — (NRS A 1965, 649; 1967, 949; 1985, 224)

We will assume that the Judgment is not:

2. ... against real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants of real property, or trustees, ...

3. ... against the person of the judgment debtor ...

4. ... issued on a judgment made payable in a specified kind of money or currency, ...

5. ... for the delivery of the possession of real or personal property ...

That leaves paragraph 1. Let’s look at it again slightly reformatted to make it more obvious.

if the judgment is a lien upon real property, then out of the real property belonging to the debtor on the day when the abstract or certified copy of the judgment or decree was recorded in the office of the county recorder of the particular county to whose sheriff the writ was issued, stating the day, or out of the real property afterward acquired by the debtor before the lien expires.

Referring to the first part of paragraph 1, if the Judgment is a Money Judgment it is therefore against the property of the judgment debtor, first personal property and then real property. There is no requirement in the first part of paragraph 1 that a lien be placed on the Debtor’s personal or real property or even that the judgment be recorded. You obviously do not record a Money Judgment against the Debtor’s bank accounts.

The second part of paragraph 1 refers to a judgment that is a lien upon real property. What is a judgment that is a lien upon real property? It is a judgment from a mortgage lien. And even under the second part of paragraph 1 it is only necessary to record the “abstract or certified copy of the judgment or decree”. There is no reference to NRS 17.150 at all. The Legislature must have forgotten about NRS 21.020 when they amended 17.150 for the benefit of the title companies, which speaks to the intent of the Legislature. NRS 17.150(4) is about judgments for mortgage liens, not money judgments.

However, I think recording a Money Judgment, under 17.150(2) or not, is the socially responsible thing to do because it gives notice to the public so they would know that if they bought any of the Debtor’s property (personal or real) it could be subject to NRS 112.180(1)(a).

III. The Legislative History of NRS 17.150(4)

Index

A. The current NRS 17.150

B. Section 4 was added to NRS 17.150 in 1995 by S.B. 455 (1995). It required that an affidavit be recorded containing the Judgment Debtor’s full driver’s license or full social security number (or a statement that the information is not known). It was added at the request of title companies to make sure that Judgment Debtors be properly identified to prevent mistakes since different people may have the same name. It did not require the APN number of the property that a lien was being placed upon.

C. In 2007 NRS 17.150(4) was amended by A.B. 600 (2007) to require either the full driver’s license number or only the last four digits of the Debtor’s social security number (or a statement that the information is not known). It still did not require the APN of the property that a lien was being placed upon.

D. In 2011 NRS 17.150 was amended by S.B. 186 (2011) which, for the first time, required that the APN and address of the property that a lien was being placed upon be included in the affidavit. It changed the driver’s license number to only the last four digits (or a statement that the information is not known). It also required a statement that the judgment creditor has confirmed that the judgment debtor is the legal owner of that real property. And it added the section about manufactured homes. It also required All information included in an affidavit of judgment recorded pursuant to this subsection must be based on the personal knowledge of the affiant, and not upon information and belief. (I don’t know what this last part means. I don’t think anyone really knows.)

A. NRS 17.150 currently reads:

NRS 17.150 Docketing of judgments of state and federal courts; recording of transcripts, abstracts and copies of judgments; liens on real property; duration of liens; affidavit required of judgment creditor who records judgment or decree.

1. Immediately after filing a judgment roll, the clerk shall make the proper entries of the judgment, under appropriate heads, in the docket kept by the clerk, noting thereon the hour and minutes of the day of such entries.

2. 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 other 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 execution in that county, owned by the judgment debtor at the time, or which the judgment debtor may afterward acquire, until the lien expires. The lien continues for 6 years after the date the judgment or decree was docketed, and is continued each time the judgment or decree is renewed, unless:

(a) The enforcement of the judgment or decree is stayed on appeal by the execution of a sufficient undertaking as provided in the Nevada Rules of Appellate Procedure or by the Statutes of the United States, in which case the lien of the judgment or decree and any lien by virtue of an attachment that has been issued and levied in the actions ceases;

(b) The judgment is for arrearages in the payment of child support, in which case the lien continues until the judgment is satisfied;

(d) The lien is otherwise discharged.

> The time during which the execution of the judgment is suspended by appeal, action of the court or defendant must not be counted in computing the time of expiration.

3. The abstract described in subsection 2 must contain the:

(a) Title of the court and the title and number of the action;

(b) Date of entry of the judgment or decree;

(d) Amount of the judgment or decree; and

(e) Location where the judgment or decree is entered in the minutes or judgment docket.

4. In addition to recording the information described in subsection 2, a judgment creditor who records a judgment or decree for the purpose of creating a lien upon the real property of the judgment debtor pursuant to subsection 2 shall record at that time an affidavit of judgment stating:

(a) The name and address of the judgment debtor;

(b) If the judgment debtor is a natural person:

(1) The last four digits of the judgment debtor’s driver’s license number or identification card number and the state of issuance; or

(2) The last four digits of the judgment debtor’s social security number;

(c) If the lien is against real property which the judgment debtor owns at the time the affidavit of judgment is recorded, the assessor’s parcel number and the address of the real property and a statement that the judgment creditor has confirmed that the judgment debtor is the legal owner of that real property; and

(d) If a manufactured home or mobile home is included within the lien, the location and serial number of the manufactured home or mobile home and a statement that the judgment creditor has confirmed that the judgment debtor is the legal owner of the manufactured home or mobile home.

> All information included in an affidavit of judgment recorded pursuant to this subsection must be based on the personal knowledge of the affiant, and not upon information and belief.

5. As used in this section:

(a) “Manufactured home” has the meaning ascribed to it in NRS 489.113.

(b) “Mobile home” has the meaning ascribed to it in NRS 489.120.

[1911 CPA § 332; A 1925, 220; 1943, 88; 1943 NCL § 8830] — (NRS A 1965, 648; 1967, 948; 1969, 41;

1989, 585; 1993, 541; 1995, 1524; 2007, 1313; 2011, 2408)

B. Section 4 was added to NRS 17.150 in 1995 by S.B. 455 (1995). It was added to benefit title companies. Originally it required the full social security number or full driver’s license number(or a statement that the information is not known). It did not require the APN number of the property that a lien was being placed upon. From: https://www.leg.state.nv.us/Statutes/68th/Stats199508.html#Stats199508page1524

ê1995 Statutes of Nevada, Page 1524 (Chapter 475, SB 455)ê

.....

Sec 20. NRS 17.150 is hereby amended to read as follows:

17.150 1. Immediately after filing a judgment roll the clerk shall make the proper entries of the judgment, under appropriate heads, in the docket kept by him, noting thereon the hour and minutes of the day of such entries.

2. 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 other 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 execution in that county, owned by him at the time, or which he may afterward acquire, until the lien expires. The lien continues for 6 years [from] after the date the judgment or decree was docketed, and is continued each time the judgment or decree is renewed, unless:

(a) The enforcement of the judgment or decree is stayed on appeal by the execution of a sufficient undertaking a provided in the Nevada Rules of Appellate Procedure or by the Statutes of the United States, in which case the lien of the judgment or decree and any lien by virtue of an attachment that has been issued and levied in the actions ceases;

(b) The judgment is for arrearages in the payment of child support, in which case the lien continues until the judgment is satisfied;

(d) The lien is otherwise discharged.

…………………………………………………………………………………………………………………

ê1995 Statutes of Nevada, Page 1525 (Chapter 475, SB 455)ê

The time during which the execution of the judgment is suspended by appeal, action of the court or defendant must not be counted in computing the time of expiration.

3. The abstract described in subsection 2 must contain the:

(a) Title of the court and the title and number of the action;

(b) Date of entry of the judgment or decree;

(d) Amount of the judgment or decree; and

(e) Location where the judgment or decree is entered in the minutes or judgment docket.

4. A judgment creditor who records a judgment or decree shall record at that time an affidavit stating:

(a) The name and address of the judgment debtor;

(b) The judgment debtor’s driver’s license number and state of issuance or the judgment debtor’s social security number; and

if known to the judgment creditor. If any of the information is not known, the affidavit must include a statement of that fact.

Legislative History of S.B. 455 (1995)

The following is from Reference 1 SB455.1995 Nevada Legislature Sixty-Eight Session 1995 provided by the Nevada Legislative Counsel Bureau.

S.B. 455 is summarized in the bill as following (PDF page 4):

AN ACT relating to real property; requiring a mortgagee of a mortgage or a beneficiary of a deed of trust to mail certain statements regarding the mortgage or deed of trust to the mortgager of the mortgage or the grantor of the deed of trust if those statements are requested by the mortgagor or grantor; authorizing the mortgagee or beneficiary to impose a fee for the issuance of those statements; requiring the beneficiary of certain deeds of trust to deliver to the trustee a request for a partial reconveyance of the estate in real property if the debts secured by those deeds of trust have been partially discharged; requiring a judgment creditor to record an affidavit of renewal to renew an unpaid judgment which has been recorded; authorizing a party to an escrow agreement to collect damages from the other party to the agreement if he refuses to execute a document necessary to release the money deposited in escrow under certain circumstances; providing a penalty; and providing other matters properly relating thereto.

There was a hearing on S.B 455 by the Senate Committee on Judiciary Sixty-eight Session held on May 23, 1995. In the following the witnesses identified as Mr. Cook and Ms. Johnson are (from PDF page 12): Charles T Cook, General Counsel Nevada Title Company Legislative Chairman, Land Title Association; and Nancy Johnson., Owner, Accurate Lien and Contractors Assistance.

Starting on PDF page 13:

SENATE BILL 455: Makes various changes to provisions governing real property.

S. B. 455 was the next bill to be heard and the chairman called the proponents to the table. Mr. Coward again spoke to the committee, noting the bill is a housekeeping attempt. Mr. Cook outlined the bill’s contents. He stated chapter 106 of NRS governs mortgages and 107 governs deeds of trust. Sections 1-30 of the bill are designed to require. the holders of the mortgages or deeds of trust to issue statements relating to the status of the loans, based on requests from specific groups or individuals.

Mr. Cook observed currently it is difficult to obtain reconveyances or any information from the lenders. While they are happy to receive their payments, lenders are not so cooperative when it comes to giving information about loans or clearing the public record of their deeds of trust, Mr. Cook explained.

The witness explained sections 1-14, except section 2, deal with mortgages, sections 16-30 deals with deeds of trust. After conversations with the bill drafters, Mr. Cook reported, there is a correction needed. Section 2 only applies to sections 14 and 30. Moving on, Mr. Cook referred to section 15, in which is codified the common law principle that the purchase money deed of trust is entitled to priority over Judgement liens that may be of record against an individual who is purchasing the property. Courts-in-equity have held this principle to be true, but in Nevada it requires further court action to confirm it, he noted.

Ms. Johnson offered the committee an example of how this provision works. In some Cases a person will have a judgement against them, as individuals, but will own no property. When that individual takes title to the property, through a grant bargain and sale deed, the judgment attaches to the property. This provision means the “purchase money deed of trust” will be first in line, even ahead of the judgment against the individual.

Section 31 of S.B 455 is: similar to NRS 107.077 and allows for partial reconveyances, Mr. Cook explained He asked that one amendment be made, that is the legal description of the property being reconveyed should be included in the document. In section 34, he continued, the provision is designed to put a limitation on the length of time a hospital lien can remain a lien on real property. The limit would be 5 years, he pointed out, and that seems reasonable time to bring an action or to release the loan.

Sections 35-37 deal with recording affidavits to renew judgment liens, Mr. Cook told the committee. In title searches it is never clear if a lien has been renewed after the 6 year expiration date. If the affidavit is recorded against the title the renewal is easily ascertained, he said, Section 36 brings a provision to include more identifying information about judgment debtors, when recording Judgment liens, Mr. Cook continued. There is a proposed amendment, because it is more appropriate to place the provision under NRS 17.150. As it is currently written, he explained, the provision could potentially affect deeds of trust, which is not the intent.

Ms. Johnson noted the reason for the additional identifying information is because identical names come up frequently. With the addition of a social security number. the misidentifications will be greatly reduced, she opined.

Mr. Cook moved to sections 40 and 41 of the bill. These address earnest money disputes, and delineates what the process is for the release of escrow funds, The provision requires the holder to respond within 30 days of the request for instruction. The injured party will also be awarded attorneys fees and actual damages, he added.

Finally, Mr. Cook requested section 42 be stricken from the bill, altogether. He concluded his remarks and the chairman asked Mr. Cook to provide him with written copies of all his proposed changes to the bill. The witness agreed, noting in conclusion it is not the intent of the bill to run afoul of Real Estate Settlement Procedures Act (RESPA). The hearing on S.B 455 was closed.

My Comments

S.B. 455 was characterized as a housekeeping attempt for the benefit of the title companies in NRS Chapter 106 (Real Mortgages) and Chapter 107 (Deeds of Trust). They added the requirement that judgment debtors be identified by their social security numbers “because identical names come up frequently.”

(Ms. Johnson is Nancy Johnson., Owner, Accurate Lien and Contractors Assistance.)

It was originally intended to go into Chapter 247 - COUNTY RECORDERS as new chapter 36 (Reference 1- PDF page 9 - left hand side). However, this provision was moved to NRS 17.150 because, according to Charles T Cook, General Counsel Nevada Title Company Legislative Chairman, Land Title Association:

There is a proposed amendment, because it is more appropriate to place the provision under NRS 17.150. As it is currently written, he explained, the provision could potentially affect deeds of trust, which is not the intent.

There was no discussion of the possible ramifications of moving it to NRS 17.150.

There probably weren’t any at that point except that it required the judgment debtor’s full driver’s license or social security number and, even in 1995, it was a bad idea to publicly disclose an individual’s social security number. See Reference 2, Testimony of Marc Rotenberg, Computer Professionals for Social Responsibility, "Use of Social Security Number as a National Identifier," before the Subcommittee on Social Security of the House Committee on Ways and Means, 102d Congress., 1st Session 71 (February 27, 1992).

C. In 2007 NRS 17.150(4) was amended by AB 600 (2007) to require either the full driver’s license number or only the last four digits of the debtor’s social security number (or a statement that the information is not known). It still did not require the APN of the property that a lien was being placed upon. From https://www.leg.state.nv.us/Statutes/74th/Stats200711.html#Stats200711page1313

2007 Statutes of Nevada, Page 1313 (Chapter 324, AB 600)ê

......

Sec. 4. NRS 17.150 is hereby amended to read as follows:

2. 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 other 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 execution in that county, owned by him at the time, or which he may afterward acquire, until the lien expires. The lien continues for 6 years after the date the judgment or decree was docketed, and is continued each time the judgment or decree is renewed, unless:

(b) The judgment is for arrearages in the payment of child support, in which case the lien continues until the judgment is satisfied;

(d) The lien is otherwise discharged.

> The time during which the execution of the judgment is suspended by appeal, action of the court or defendant must not be counted in computing the time of expiration.

3. The abstract described in subsection 2 must contain the:

(a) Title of the court and the title and number of the action;

(b) Date of entry of the judgment or decree;

(d) Amount of the judgment or decree; and

(e) Location where the judgment or decree is entered in the minutes or judgment docket.

4. A judgment creditor who records a judgment or decree shall record at that time an affidavit stating:

(a) The name and address of the judgment debtor;

(b) The judgment debtor’s driver’s license number and state of issuance or the last four digits of the judgment debtor’s social security number; and

> if known to the judgment creditor. If any of the information is not known, the affidavit must include a statement of that fact.

Legislative history of A.B. 600

The legislative history of A.B. 600 can be found at: https://www.leg.state.nv.us/Session/74th2007/Reports/history.cfm?ID=1276

Assembly Government Affairs Mar. 26, 2007 Minutes (Discussed as BDR)

Assembly Government Affairs Apr. 10, 2007 Minutes Reference 3

Assembly Government Affairs Apr. 12, 2007 Minutes Reference 4

Senate Transportation and Homeland Security May 10, 2007 Minutes Reference 5

Senate Transportation and Homeland Security May 15, 2007 Minutes Reference 6

Senate Transportation and Homeland Security May 17, 2007 Minutes Reference 7

Assembly Commerce and Labor May 18, 2007 Minutes Reference 8

1. From Assembly Government Affairs Apr. 10, 2007 (Reference 3) PDF page 29:

Chair Kirkpatrick: ..... [Waiting for Assemblywoman Smith]

Assembly Bill 600: Revises provisions concerning the protection of certain personal identifying information. (BDR 19-774)

Assembly Bill 600 is intended to resolve inconsistencies between two bills enacted last session that deal with the protection of social security numbers and other personal information in public records and government documents. When Assembly Bill No. 334 of the 73rd Session was enacted, it prohibited governmental agencies from accepting documents that contain social security numbers unless the number was required by law. The prohibition took effect on January 1, 2007. That bill required governmental agencies to protect the social security numbers in filed or recorded documents and only allows disclosure of social security numbers in limited circumstances. The bill also required governmental agencies to remove social security numbers from pre-2007 documents no later than January 1, 2017. This bill does not change that deadline.

From PDF page 30 (still Chair Kirkpatrick):

Section 1 changes social security numbers to personal information to resolve the inconsistencies between A. B. No. 334 of the 73rd Session and S.B. No. 347 of the 73rd Session of the 2005 Session. It also adds parallel provisions about obliterating or otherwise removing this information and adds the use of redaction software to provisions for pre-2007 and post-2007 documents to avoid inconsistencies. It protects government officials from liability for acts and omissions except for gross negligence. That was Assembly Committee on Government Affairs important to the county officials. It allows individuals to request redaction of personal information from pre-2007, which may not otherwise be redacted until the deadline of 2017.

From PDF page 33:

Joseph Turco, American Civil Liberties Union (ACLU) Nevada:

Mr. Claborn raises a serious issue about identity theft. I suspect greater than the money and hassle was the feeling of intrusion that a victim of identity theft feels. Many people in the room have probably given out their social security numbers two or three times this month. It was probably convenient and you probably did not give it a lot of thought, but you should.

You have heard the ACLU or other civil libertarians come before you and talk about slippery slopes, or that the loss of civil rights for one is a threat to freedom for us all. Function creep is another one of these mantras because it bears itself out. Social security numbers were originally designed for the purposes of benefits, nothing else. The promise was that the number would only be used for benefits because people came out and complained that the use of a federal identification number was an anathema to freedom loving Americans. The promise was broken and continues to be broken by function creep. Social security numbers are now asked by everyone for every purpose under the sun. It has resulted in fraud and improper prying by government officials.

This is the checklist that the ACLU uses: your social security numbers should never be collected or disseminated without your knowledge and permission; you must be told why it is being asked for and it may not be used for any other purpose than is stated; it should only be held for as long as needed; you must have a right to examine, copy, and correct your personal information; there must be no national identification system; unrelated databases must be kept separate; your fingerprints, DNA, retina, and iris scans must never be involuntarily captured. The government must not prohibit or interfere with the development of technologies that protect privacy and these principals should be enforceable by law. This bill meets a number of these requirements.

From PDF page 34:

Alan Glover, Carson City Clerk-Recorder:

I am here representing the Recorders' Association of Nevada. We have proposed a number of amendments to the bill (Exhibit Q).

In Section 1 and throughout the bill where it conforms the language and adds in "any personal information," it expands the definition of what the recorders have to do. Right now we are gearing up to remove social security numbers from documents, but you added personal information, which conforms it to S.B. No. 347 of the 73rd Session. Traditionally, default judgments and affidavits of plaintiffs have used driver's license numbers, so redacting those could involve child support issues. We would redact the entire driver's license number, and leaving the last four numbers of the social security numbers.

Our software is optical character recognition. We would run the term "driver's license" and have it search for those words and then redact that number. For social security numbers, we are asking the program to look for a nine-digit number and then we have to make the decision if it is a social security number or not. One of the county's first runs got a bunch of hits because they had at one time, used nine-digit recording numbers.

The main thing that we are asking for now, and asked for in the interim, is to delete Section 1, paragraph 6 that says that we have to redact social security numbers and now personal information from all of our old records by 2017. It is becoming clear to the recorders and clerks that it is impossible to do. The recorders are coming up with large fiscal notes to accomplish it. We cannot go through all of the court files and look for social security numbers or any other personal information. There are millions of papers that have to be scanned. The reason the Recorder's Office feels comfortable in not redacting this information is because everyone already has access to this information: all title firms have this information and it is disseminated all over the world. We are not sure it is worth Nevada taxpayer dollars for us to go back when this information is readily available from a bunch of other sources. As a court clerk, I know it cannot be done in the court clerk's office.

2. From Assembly Government Affairs April 12, 2007 (Reference 4):

From PDF page 11:

Amber Joiner, Committee Policy Analyst:

Assembly Bill 600 makes consistent the provisions that protect personal information from disclosure by public entities on documents by protecting personal information both on the entity's Web site and on documents submitted to the entity. This measure also provides that the last four digits of a Social Security number are not personal information; provides immunity to certain officers and employees of governmental agencies regarding disclosure of personal information; provides that a person may request the redaction of information on certain documents; removes the requirement of the inclusion of a Social Security number on certificates of marriage and forms for divorces and annulments; allows the inspection and copying of certain records by family members; and authorizes the use of the last four digits of a Social Security number in judgments.

There were several amendments proposed (Exhibit J). The first three were proposed in writing at the original hearing. The fourth one was proposed verbally during the hearing. These were all proposed by Alan Glover, Carson City Recorder.

The first amendment would require a person who requests that a governmental agency remove from any document personal information about the person must give the document number and/or book and page, the type of document, and the date the document was submitted to the agency.

The second amendment is to provide that a county recorder may allow inspection and copying of records containing personal information about a deceased or incapacitated person by a widow or widower, parent, sibling, child, spouse, guardian, or personal representative of the person.

The third amendment would delete Section 6, which requires redaction of pre-2007 documents by 2017. Currently the law requires the redaction of those documents by 2017, and this would delete that requirement.

The fourth amendment would modify the effective date in certain portions of the bill to January 1, 2008, in order to allow a reasonable amount of time to implement the new provisions.

There was no testimony in opposition to this measure.

Exhibit J is reproduced here as Reference 4J.

Assemblyman Goicoechea had some objections but moved to accept all of the amendments:

ASSEMBLYMAN GOICOECHEA MOVED TO AMEND AND DO PASS AS AMENDED ASSEMBLY BILL 600.

ASSEMBLYWOMAN PARNELL SECONDED THE MOTION.

THE MOTION PASSED UNANIMOUSLY

Amendment 3 was “Delete Section 6 that requires redaction of pre-2007 document by 2017.”

3. Senate Transportation and Homeland Security May 10, 2007 (Reference 5)

I do not see that they discussed the amendments approved by the Assembly Government Affairs Committee hearing on Apr. 10, 2007 (Reference 3).

4. Senate Transportation and Homeland Security May 15, 2007 (Reference 6)

PDF page 17:

ASSEMBLY BILL 600 (1st Reprint): Revises provisions concerning the protection of certain personal identifying information. (BDR 19-774)

MR. SZUDAJSKI:

Assembly Bill 600 contains several provisions concerning the protection of personal identifying information. A section-by-section analysis is attached to the bill summary as outlined in the work-session document (Exhibit L).

The Clark County Recorder's Office has proposed an amendment, Exhibit L.

See Exhibit L (reproduced here as Reference 6L) One of the Clark County Recorder’s requested amendments was:

Section 4:

· Eliminates requirements for SSN in judgments and liens that must be recorded.

· Allows use of last four digits of SSN consistent with federal policy on tax liens.

PDF page 19: They finally discuss the “last four digits problem”

SENATOR LEE:

If you know the last four digits of my social security number and you know I live in Nevada, how hard is it to find the rest?

MS. SCHOLLEY:

As a Research Division staff member, I am nonpartisan and I do not want my remarks to be interpreted in any way as advocating for this amendment or against or for this bill. There is an interesting debate in the consumer-data industry on the last four digits versus the first five digits. The last four digits won out at the federal level. For consistency, the thought was to go with the same thing.

It is not necessarily where you are born that the first three digits apply; it is where you live when you apply for your Social Security card. You do have a point: If someone knows enough about you to know your place of birth and your date of birth, they can start to puzzle it together. However, there are much easier ways to get Social Security numbers than to go through that sort of painstaking process.

CHAIR NOLAN:

I want to put on the record that the bill is really a measure designed to prevent theft by prohibiting Social Security numbers from being included in public documents unless they are otherwise required by state or federal law. Assembly Bill 600 also expands the protections prohibiting certain additional information from being included in public documents.

PDF page 18:

SUSAN E. SCHOLLEY (Chief Principal Research Analyst, Research Division, Legislative Counsel Bureau):

I am here monitoring this bill at the request of Assemblywoman Smith. The amendment was proposed in the Assembly Committee on Government Affairs. The original proposal was to require the identification of documents by book and page number. This proposal before you is a compromise. Since the amendment would apply to any government agency, the concern is that people might come into an office and say, "If I have any personal information in any documents that may be in your office, I want my personal information redacted." That would be difficult in contexts where things are not searchable or indexed. This requires people to have some idea that they do have some personal information in a document and to identify it with sufficient specificity to allow the government agency to reasonably find it.

There is already in law a requirement to redact all personal information out of government documents by 2017. Eventually, the government agencies will have to deal with it. In the meantime, this gives an individual who has reason to believe there is some personal information in a document a way to get it out early.

Now it is not clear if old public documents have to be redacted or not.

They did not discuss the Cark County Recorder’s requested amendment to eliminate requirements for SSN in judgments and liens that must be recorded.

5. Senate Transportation and Homeland Security May 17, 2007 (Reference 7)

PDF page 1:

ASSEMBLY BILL 600 (1st Reprint): Revises provisions concerning the protection of certain personal identifying information. (BDR 19-774)

CHAIR NOLAN:

Assembly Bill 600 amends the Nevada Revised Statute 239B.030, which passed as a measure to help identity theft by prohibiting Social Security numbers from being included in public documents unless otherwise required by state and federal law. This bill further expands protection to prohibit certain additional information from being included in public document

Some concerns have been raised about whether A.B. 600 would prevent law-enforcement agencies from fulfilling their duties to enforce state law, as well as the ordinances and codes of various counties and cities within our State. Law enforcement needs to be able to use identifying information such as Social Security numbers and driver's license numbers to properly identify individuals. It is my understanding that many of the law-enforcement documents that contain identifying information are not public documents or are confidential by law. It would be my intent that A.B. 600 does not and should not prevent law enforcement from properly identifying individuals.

Also, after reviewing the minutes from the Assembly's hearings on this bill, it does not appear there was any intent to have an impact on law enforcement from the Assembly either.

SENATOR AMODEI:

I had staff provide a copy of this proposed amendment to Alan Glover, Clerk/Recorder, Carson City, for his review. Mr. Glover approves the proposed amendment.

SENATOR AMODEI MOVED TO AMEND AND DO PASS AS AMENDED A.B. 600 WITH PROPOSED AMENDMENT 4040.

SENATOR HECK SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Senator Amodei’s amendments to A.B. 600 start at the bottom of PDF page 4 of Reference 7A.

But there is nothing to see here so we will just move along.

6. Assembly Commerce and Labor May 18, 2007 (Reference 8)

This is interesting but is not about A.B. 600.

My Comments about A.B. 600

Changing it to require only the last four digits of the social security number is not the great solution they thought it was. From https://www.ssa.gov/history/hfaq.html

Q18: Is there any significance to the numbers assigned in the Social Security Number?

A: Yes. Originally, the first three digits are assigned by the geographical region in which the person was residing at the time he/she obtained a number. Generally, numbers were assigned beginning in the northeast and moving westward. So people on the east coast have the lowest numbers and those on the west coast have the highest numbers. The remaining six digits in the number are more or less randomly assigned and were organized to facilitate the early manual bookkeeping operations associated with the creation of Social Security in the 1930s.

Beginning on June 25, 2011, the SSA implemented a new assignment methodology for Social Security Numbers. The project is a forward looking initiative of the Social Security Administration (SSA) to help protect the integrity of the SSN by establishing a new randomized assignment methodology. SSN Randomization will also extend the longevity of the nine-digit SSN nationwide.

For more information on the randomization of Social Security Numbers, please visit this website:
http://ssa.gov/employer/randomizationfaqs.html#a0=-1

If someone got their social security number before June 25, 2011 and you know where they were born and lived you can probably know their first three digits. For example, the area number for Nevada was 530 or (later) 680. If you got your social security number in Nevada before June 25, 2011 your social security number starts with either “530” or “680”. https://www.ssa.gov/employer/stateweb.htm. That leaves only two digits to guess. Someone could apply for a small loan from at most 200 banks and one of them would succeed. Then, armed with your complete social security number, they could take out large loans. Maybe they could sell your empty investment property in Elko without you knowing it until years later when you discover that the new “owners” have strip mined your property for its minerals.

D. In 2011 NRS 17.150 was amended by S.B. 186 (2011) which, for the first time, required that the APN and address of the property that a lien was being placed upon be included in the affidavit. It also required a statement that the judgment creditor has confirmed that the judgment debtor is the legal owner of that real property. And it added the section about manufactured homes. It also required All information included in an affidavit of judgment recorded pursuant to this subsection must be based on the personal knowledge of the affiant, and not upon information and belief.

From: https://www.leg.state.nv.us/Statutes/76th2011/Stats201120.html#Stats201120page2408

Section 1. NRS 17.150 is hereby amended to read as follows:

17.150 1. Immediately after filing a judgment roll, the clerk shall make the proper entries of the judgment, under appropriate heads, in the docket kept by the clerk, noting thereon the hour and minutes of the day of such entries.

(b) The judgment is for arrearages in the payment of child support, in which case the lien continues until the judgment is satisfied;

(d) The lien is otherwise discharged.

> The time during which the execution of the judgment is suspended by appeal, action of the court or defendant must not be counted in computing the time of expiration.

3. The abstract described in subsection 2 must contain the:

(a) Title of the court and the title and number of the action;

(b) Date of entry of the judgment or decree;

(d) Amount of the judgment or decree; and

(e) Location where the judgment or decree is entered in the minutes or judgment docket.

…………………………………………………………………………………………………………………

ê2011 Statutes of Nevada, Page 2409 (Chapter 388, SB 186)ê

4. [A] In addition to recording the information described in subsection 2, a judgment creditor who records a judgment or decree for the purpose of creating a lien upon the real property of the judgment debtor pursuant to subsection 2 shall record at that time an affidavit of judgment stating:

(a) The name and address of the judgment debtor;

(b) [The] If the judgment debtor is a natural person:

(1) The last four digits of the judgment debtor’s driver’s license number or identification card number and the state of issuance ; or [the]

(2) The last four digits of the judgment debtor’s social security number; [and]

> if known to the judgment creditor. If any of the information is not known, the affidavit must include a statement of that fact.] If the lien is against real property which the judgment debtor owns at the time the affidavit of judgment is recorded, the assessor’s parcel number and the address of the real property and a statement that the judgment creditor has confirmed that the judgment debtor is the legal owner of that real property; and

> All information included in an affidavit of judgment recorded pursuant to this subsection must be based on the personal knowledge of the affiant, and not upon information and belief.

5. As used in this section:

(a) “Manufactured home” has the meaning ascribed to it in NRS 489.113.

(b) “Mobile home” has the meaning ascribed to it in NRS 489.120.

It is also when NRS 603A.040 was amended to allow the last four digits of a person’s social security number, driver’s license, or state ID number to be publicly posted.

Sec. 5. NRS 603A.040 is hereby amended to read as follows:

603A.040 “Personal information” means a natural person’s first name or first initial and last name in combination with any one or more of the following data elements, when the name and data elements are not encrypted:

1. Social security number.

2. Driver’s license number or identification card number.

3. Account number, credit card number or debit card number, in combination with any required security code, access code or password that would permit access to the person’s financial account.

> The term does not include the last four digits of a social security number , the last four digits of a driver’s license number or the last four digits of an identification card number or publicly available information that is lawfully made available to the general public.

Showing the original intent of the legislature to deal with the renewal of judgments S.B. 186 also amended NRS 17.214 .

Sec. 2. NRS 17.214 is hereby amended to read as follows:

17.214 1. A judgment creditor or a judgment creditor’s successor in interest may renew a judgment which has not been paid by:

(a) Filing an affidavit with the clerk of the court where the judgment is entered and docketed, within 90 days before the date the judgment expires by limitation. The affidavit must be titled as an “Affidavit of Renewal of Judgment” and must specify:

(1) The names of the parties and the name of the judgment creditor’s successor in interest, if any, and the source and succession of his or her title;

(2) If the judgment is recorded, the name of the county and the document number or the number and the page of the book in which it is recorded;

(3) The date and the amount of the judgment and the number and page of the docket in which it is entered;

(4) Whether there is an outstanding writ of execution for enforcement of the judgment;

(5) The date and amount of any payment on the judgment;

(6) Whether there are any setoffs or counterclaims in favor of the judgment debtor and the amount or, if a setoff or counterclaim is unsettled or undetermined it will be allowed as payment or credit on the judgment;

(7) The exact amount due on the judgment;

…………………………………………………………………………………………………………………

ê2011 Statutes of Nevada, Page 2410 (Chapter 388, SB 186)ê

(8) If the judgment was docketed by the clerk of the court upon a certified copy from any other court, and an abstract recorded with the county clerk, the name of each county in which the transcript has been docketed and the abstract recorded; and

(9) Any other fact or circumstance necessary to a complete disclosure of the exact condition of the judgment.

> All information in the affidavit must be based on the personal knowledge of the affiant, and not upon information and belief.

(b) If the judgment is recorded, recording the affidavit of renewal in the office of the county recorder in which the original judgment is filed within 3 days after the affidavit of renewal is filed pursuant to paragraph (a).

2. The filing of the affidavit renews the judgment to the extent of the amount shown due in the affidavit.

3. The judgment creditor or the judgment creditor’s successor in interest shall notify the judgment debtor of the renewal of the judgment by sending a copy of the affidavit of renewal by certified mail, return receipt requested, to the judgment debtor at his or her last known address within 3 days after filing the affidavit.

4. Successive affidavits for renewal may be filed within 90 days before the preceding renewal of the judgment expires by limitation.

Legislative History of S.B 186 (2011)

The legislative history of S.B. 186 can be found at: https://www.leg.state.nv.us/Session/76th2011/Reports/history.cfm?ID=453

There were two hearings by the Senate Judiciary Committee and two by the Assembly Judiciary Committee (and have been reproduced here as References 9 - 12):

Senate Judiciary Mar 02, 2011 Minutes - Reference 9

Senate Judiciary Mar 17, 2011 Minutes - Reference 10

Assembly Judiciary Apr 20, 2011 Minutes - Reference 11

Assembly Judiciary Apr 26, 2011 Minutes - Reference 12

A. From Senate Judiciary Committee Hearing March 02, 2011 Minutes (Reference 9) PDF page 12:

The discussion of "… based on the personal knowledge of the affiant, and not upon information and belief." is not very enlightening. (Ms. Myles represents County Recorders.)

CHAIR WIENER:

In section 1, subsection 4, paragraph (d), page 3, lines 42 to 43, the bill says, "… based on the personal knowledge of the affiant, and not upon information and belief." Please explain the distinction between "personal information" and "information and belief."

MS. MYLES:

If the judgment creditors are going to file liens against property, they must know the person they are suing actually owns the property. For example, we had a case where the judgment creditor sued Junior, but filed the lien against Senior's property. The judgment creditor did not check to ensure the social security number Junior was using was his personal social security number and not Senior's. The judgment creditor did not check to ensure the property was owned by Junior and not Senior. As a result, when Senior was placed under a guardianship, the guardian found a lien against the property that was supposed to have been filed against Junior's property.

The judgment creditor refused to remove the lien. We are asking the judgment creditor to say he has verified the information and knows it to be true.

CHAIR WIENER:

You are referring to actual knowledge.

MS. MYLES:

Yes.

CHAIR WIENER:

My thought is that it would say on the "actual knowledge of the affiant and not upon false information and belief."

MS. MYLES:

The language contained in section 1, subsection 4, paragraph (d) is standard throughout NRS in many provisions. It is also standard in any oath taken.

ALAN H. GLOVER (Former Senator; Carson City Clerk/Recorder):

I am an ex officio Public Administrator for Carson City. Regarding section 3 of the bill, as Public Administrator, I was asked to be the administrator of a woman's estate who was a resident of Carson City, but her only asset was a lot and mobile home in Lyon County. There were no other assets. We put the property on the market. In the meantime, the mortgage company foreclosed on the property. I did not receive notice. The mortgage company sent the notice to the correct people but did not know we existed. If this was recorded in the county of the real property location, we would be notified action is being taken. In this case, the property would have gone into foreclosure anyway. If we had known, we would have tried to work with the mortgage company to keep it on the market longer.

From the county recorder's standpoint, the bill cleans up the language regarding how liens are filed, and it will work well for recorders and administrators of estates.

ROCKY FINSETH (Nevada Land Title Association):

We support S.B. 186.

I put this bill in on Ms. Myles' behalf because she needed the time to study this issue.

CHAIR WIENER:

I will close the hearing on S.B. 186 and open the hearing on S.B. 194.

I still don’t understand what “based on the personal knowledge of the affiant” means.

Does it mean that you have to personally see the Judgment Debtor’s Social Security card or his driver’s license? That’s not likely to happen.

It appears that the reason they put the phrase into NRS 17.150 was because it is used in other parts of the NRS.

B. From Senate Judiciary Committee Hearing March 17, 2011 (Reference 10):

PDF page 17:

CHAIR WIENER:

I will open the hearing on S.B. 186.

SENATE BILL 186: Revises provisions relating to the recording of documents. (BDR 2-185)

MS. EISSMANN:

This bill would revise information, based on personal knowledge, in an affidavit recorded in a civil judgment or decree by a judgment creditor to include parcel information and proof of ownership of the judgment debtor’s real property and the location, serial number and proof of ownership of a manufactured home or mobile home, if there is one in the lien. The document number of the recorded judgment is also required in the affidavit of judgment to renew a lien on real property. This affidavit must be titled, “Affidavit of Renewal of Judgment.”

The bill requires letters concerning the estate of a decedent be recorded in the county recorder’s office for each county where real property of the estate is located.

Finally, the bill requires a cover sheet to contain the guardian’s name, address and telephone number with property information attached to the letters of guardianship recorded by the guardian in each county where the ward has real property.

There was no opposition to this bill when it was heard. There are no amendments, and I have heard nothing since.

SENATOR MCGINNESS:

Mrs. Myles is out of town, and Mr. Glover is not here. This was a by-request bill (Exhibit G). I have no other information but as Ms. Eissmann said, there is no opposition nor amendments.

CHAIR WIENER:

I will close S.B. 186.

SENATOR MCGINNESS MOVED TO DO PASS S.B. 186.

THE MOTION PASSED UNANIMOUSLY.

Well, that was not very helpful. There was no discussion of what “personal knowledge” means.

C. From Assembly Judiciary Committee Hearing April 20, 2011 (Reference 11):

PDF page 5:

Senate Bill 186 (1st Reprint): Revises provisions relating to records. (BDR 2-185)

Senator Mike McGinness, Central Nevada Senatorial District:

This is a bill that was brought to me by the county recorders. Mr. Glover is here to review the bill.

Alan Glover, Carson City Recorder:

We would like to thank Senator McGinness for having this bill drafted. Basically, this bill is designed to help consumers. This bill will help to ensure the information for the right person and the right piece of property is on all necessary documents to record a lien. It will now be necessary to put the last four digits of the driver's license number on the affidavit. We amended the bill in the Senate because originally we had the full driver's license number. If we do that it must be redacted completely, making it useless. Using the last four digits will help tie the person to his documents. The assessor parcel number must also be on the paperwork.

Page 5 of the bill deals with estate administrators. We had a woman with a small estate here in Carson City. The only asset in the estate was a piece of property in Lyon County. Her daughter was named as the administrator of the estate. The piece of property had been foreclosed on, but we did not know it. This bill requires the administrator or executor of an estate or the guardian of a person and the person's estate, to record letters of administration or letters of guardianship with the county recorder. That puts the banks on notice of whom they are to notify. In our case, the lienholder did the right thing and sent the notices to the only person he knew, and she had been dead for a number of years. We never got any of that information. The lienholder foreclosed on the property. Thus, there were no assets in the estate. In dealing with manufactured homes, the serial number must also be on the affidavit. This should help to identify people when you are liening property and ensure you get the right person and the right piece of property.

Vice Chairman Ohrenschall:

Are there any privacy concerns with this bill?

Alan Glover:

No. Under present law, the state uses driver's license numbers when it liens property. With the last four digits, the person's privacy is protected, yet allows a title company to do a search. The title industry is in support of this bill also.

Assemblyman Frierson:

Are the last four digits of a driver's license number readily accessible?

Alan Glover:

That is what we have used in all other areas since we got into the redaction of social security numbers. The issue is if you have two John Smiths, and you file a lien, you need a way to determine which John Smith is the one you are looking for.

Vice Chairman Ohrenschall:

Any other questions? [There were none.] Is there anyone else here wishing to testify in favor of this bill? Anyone neutral? Anyone opposed? [There were no responses.] I will close the hearing on S.B. 186 (R1). I will open the hearing on Senate Bill 45.

My Comments

1. There have been three sessions of the Nevada Legislature since then. If NRS 17.150(4) was required for liens coming from money judgments you would think that an attorney group would have asked that it be clarified. Perhaps NRS 17.150 is unnecessary in view of NRS 112.180 Transfer made or obligation incurred with intent to defraud or without receiving reasonably equivalent value; determination of intent.

2. While using only the last four digits of a person’s driver’s license might protect a person’s privacy, it has been previously shown that using the last four digits of a person’s social security number does not.

D. From Assembly Judiciary Committee Apr 26, 2011 (Reference 12):

From PDF page 4:

Senate Bill 186 (1st Reprint): Revises provisions relating to records. (BDR 2-185)

Dave Ziegler, Committee Analyst:

Senate Bill 186 (1st Reprint) was sponsored by Senator McGinness and heard in this Committee on April 20, 2011. [Read work session document (Exhibit E).]

There were no amendments on the day of the hearing.

Chairman Horne:

Are there any questions, concerns, or comments on S.B. 186 (R1)?

Assemblyman Ohrenschall:

Again, I had the pleasure of chairing the Judiciary Committee on that day. There was no testimony in opposition. Replacing the full driver's license number with the last four digits gives people more protection. I like that measure. I think the additional requirements for the letters and other filings provide more security.

Chairman Horne:

Are there any other comments or questions on S.B. 186 (R1)? I will entertain a motion.

ASSEMBLYWOMAN DIAZ MOVED TO DO PASS SENATE BILL 186

(1ST REPRINT).

ASSEMBLYMAN HAMMOND SECONDED THE MOTION.

THE MOTION PASSED UNANIMOIUSLY.

Conclusion

1. There have been three sessions of the Nevada Legislature since S.B. 186 (2011). If NRS 17.150(4) was required for liens coming from money judgments you would think that an attorney group would have asked that it be clarified. Perhaps NRS 17.150 is unnecessary in view of NRS 112.180 Transfer made or obligation incurred with intent to defraud or without receiving reasonably equivalent value; determination of intent. It would be poor public policy but if that is what the Nevada Legislature wants then so be it.

2. The focus in S.B. 186 was on the redaction of Driver’s Licenses to the last four digits and to requiring that the APN number be added to NRS 17.150(4).

3. The solution is to ask the chairman of the Nevada Senate Judiciary Committee (or Assembly Judiciary Committee) to fix the language in NRS 17.150(4) by adding, for example:

a. Where the Judgment is a Judgment for money and the lien is on a Judgment Debtor’s real property the APNs shall be recorded within 10 days of a Judgment Creditor learning of them, such as from a Debtor’s Examination.

b. APN’s are required when renewing a Judgment for money if the Judgment Debtor has fully complied with an Order for Debtor’s Examination. (Judgment Debtors should not be allowed to benefit from refusing to submit to a Debtor’s Examination.)

IV. Nevada Case Law

It turns out that there is case law that is exactly on-point but it is an unpublished decision from the new Nevada Court of Appeals and (currently) may not be cited in a Nevada court.

The case is Secure Holdings Inc vs Eighth Judicial District Court of Nevada, Nevada Court of Appeals, July 11, 2017. Here is the link to the case on the Court of Appeals Web site. https://nvcourts.gov/COAPortal/caseView.aspx?csiid=43387 .

Here is the decision: Reference 13. From that decision:

Turning to petitioner's NRS 17.150(4) argument, that statutory subsection requires a judgment creditor to file an affidavit at the same time that it records a judgment for the purpose of creating a lien upon the real property of the judgment debtor. And petitioner asserts that because real party in interest failed to file the required affidavit, its lien is invalid and its lien-related claims must be dismissed. In this regard, the district court concluded that, while the statute requires an affidavit to be filed, the affidavit is not a condition precedent to the creation of a valid lien and the statute does not provide that the lien is invalid if the affidavit is not filed. See NRS 17.150(2) (providing that, upon the recording of certain documents not including subsection 4's affidavit, the recording "becomes a lien upon all real property of the judgment debtor"); NRS 17.150(4) (providing that, in addition to the documents required to be recorded by subsection 2, a party seeking to create a lien on real property "shall record at that time an affidavit of judgment" with certain information, but providing no consequence if such an affidavit is not filed).

The district court also correctly recognized that this specific issue had not been addressed by an appellate court. Based on those conclusions, the district court declined to dismiss based on NRS 17.150. Because the statute does not clearly mandate dismissal based on the failure to comply with NRS 17.150(4), and petitioner has provided no other authority otherwise demonstrating that dismissal was required, we conclude that petitioner has failed to demonstrate that dismissal was required by clear authority, and thus, that writ relief is warranted on this basis.[FN1] See Int’l Game Tech., 124 Nev. at 197-98, 179 P.3d at 558-59.

Accordingly, we deny the petition. See id.; see also NRAP 21(b)(1).

{Emphasis added}

The reason it cannot be cited in a Nevada Court is ADKT 504. There is a good explanation of ADKT 504 by Chris Lund of the law firm of Tyson & Mendes. See

http://www.tysonmendes.com/nevada-supreme-court-bans-citation-unpublished-nevada-court-appeals-opinions/. In case the link becomes broken I have mirrored it here as Reference 14.

Unpublished decisions of the Nevada Supreme Court can be cited, but unpublished decisions from the Court of Appeals cannot be. That sucks. Why might that be?

This is how the Nevada Court of Appeals works (from https://nvcourts.gov/Supreme/Court_Information/Court_of_Appeals/):

Appeals will continue to be filed with the Office of the Supreme Court Clerk, and will remain assigned to the Supreme Court until they are ready to be decided. The Supreme Court will then decide which matters should be assigned to the Court of Appeals. This deflective model will allow the Supreme Court to speed up the appeals process by assigning cases to the Court of Appeals, while retaining those cases that raise questions of first impression or issues of important public policy. This will result in more published opinions establishing guidance on Nevada law, improved decisions in the District Courts, and improved access to the appellate process.

{Emphasis added}

Thus, the fact that a case is assigned to the Court of Appeals means that the Supreme Court did not think the case raised questions of first impression or important public policy. Does that mean the Supreme Court did not think the issue of whether NRS 17.150(4) is an absolute requirement under 17.150(2) is an issue of important public policy? No, it is reasonable to believe that they did not consider the decision of the Eighth Judicial District Court of Nevada to be an issue of important public policy because the District Court said that NRS 17.150(4) is not a requirement under 17.150(2). That is why the case was sent to the Court of Appeals which affirmed the District Court’s decision. No doubt if they wanted to overturn the District Court’s decision then it would have been an issue of important public policy so it would have been sent to the Supreme Court which would have published their decision.

I sent an email to the Clerk of the Nevada Supreme Court and asked:

1. How many cases has the new Court of Appeals heard since it has come into existence?

2. How many of these cases have resulted in a published (and therefore citable) opinion?

3. How many cases has the Nevada Supreme Court heard during this time?

and

4. How many of these Supreme Court decisions have resulted in a published opinion?

I received a speedy and informative answer:

Good afternoon,

I’m not sure what you mean by “heard” but if you are asking how many dispositions the Court of Appeals (COA) has filed since its inception (1/1/15), the COA filed 2,995 dispositions from 1/1/2015 to 6/30/2018. Of those dispositions during that period, 27 were published opinions. The Nevada Supreme Court filed 5,990 dispositions during the period of 1/1/2015 to 6/30/2018. Of those dispositions during that period, 333 were published opinions.

See Reference 15.

So, the Court of Appeals has disposed of 2,995 cases and published 27 opinions, which is about 0.9%. During that same time the Supreme Court disposed of 5,990 cases and published 333 opinions, which is 5.6%. This confirms (to me) that the “routine” cases are sent to the Court of Appeals while the cases which involve issues of important public policy are sent to the Supreme Court. I think “issues of important public policy” can be understood as “changes in important public policy.”

But the issue of NRS 17.150(2) and 17.150(4) is not a “routine” issue. It is an issue of important public policy. I think the Nevada Supreme Court/Nevada Court of Appeals missed the boat on this one.

Let’s compare this to Federal law.

Rule 32.1 of the FEDERAL RULES OF APPELLATE PROCEDURE does allow unpublished opinions to be cited but only federal unpublished opinions:

Rule 32.1. Citing Judicial Dispositions

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “nonprecedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

This change to the FRAP was approved by the U.S. Supreme Court in 2006. See https://www.jurist.org/news/2006/04/supreme-court-says-unpublished/.

Here’s a problem.

1. Unpublished opinions of the Nevada Court of Appeals may not be cited in a Nevada Court (ADKT 504).

2. Unpublished Federal opinions may be cited in a Federal court (Rule 32.1).

3. It does not address citing unpublished opinions of a state court in a federal court.

Where could claims under Nevada law be brought in a Federal Court?

This can happen in U.S. Bankruptcy Court. I’ll let you know how that works out. (BTW, not my bankruptcy)

V. Then there is In re Conceicao, 331 BR 885 - Bankr. Appellate Panel, 9th Circuit 2005. See Reference 16.

The plain meaning of CCP § 674 and relevant case law dictate that in order to create a valid lien a creditor must include the debtor's social security number or indicate that it is unknown when recording a judgment or abstract of judgment. Since the First Judgment did not meet this requirement, it failed to create a valid judgment lien. As an unsecured debt, Creditor's claim against Debtors was discharged.

The issue was California Code of Civil Procedure ("CCP") § 674 which is similar to Nevada NRS 17.150. We see the magic phrase, “that in order to create a valid lien a creditor must include the debtor's social security number”.

However, CCP § 674 enumerates all of the requirements in one section: 674(a). See Reference 17 from: http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=674.&lawCode=CCP

This actually supports the argument that if the Nevada Legislature had intended the affidavit in NRS 17.150(4) to be a requirement for placing a lien on a Debtor’s property they would have put it in NRS 17.150(2). They had three easy chances to do that: S.B. 455 (1995), A.B. 600 (2007), and S.B. 186 (2011). The legislature knows how to say, "In order to perfect a lien, you must do one, two, three, four, five." Look at the mechanics lien statute: NRS Chapter 108. It’s complicated but it says exactly what has to be done to establish a mechanics lien. See https://www.leg.state.nv.us/NRS/NRS-108.html.

If the Nevada Legislature had intended NRS 17.150(4) to be a requirement for placing a lien on real property they would have put it in NRS 17.150(2).

Jed Margolin

Virginia City Highlands, Nevada

6/29/2018

7/12/2018

7/21/2018

4/15/2021

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