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Electronically Filed
Jun 24 2021 01:40 p.m.
Elizabeth A. Brown
Clerk of Supreme Court
IN
THE SUPREME COURT OF THE STATE OF
Supreme Court No. 82559
District Court Case No. 09OC005791B
Docket 82559 Document 2021-18220
RESPONDENT’S OPPOSITION TO APPELLANT’S MOTION TO TAKE JUDICIAL NOTICE (NRAP 27(a)(1))
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.
I. INTRODUCTION
Respondent Jed Margolin opposes Appellant Reza Zandian’s Motion to Take Judicial Notice (NRAP 27(a)(1)).
Contrary to Appellant’s contentions, this appeal properly has nothing to do with the creation of a valid judgment lien pursuant to NRS 17.150(4), nor is it “closely connected” to the bankruptcy cases that have been dismissed with prejudice
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by the United States Bankruptcy Court, District of Nevada (“USBC”) that Appellant Zandian never appealed. In fact, none of the issues in the bankruptcy cases discussed below were litigated in Respondent’s Motion to Void Deeds, Assign Property, For Writ of Execution and to Convey (“Motion to Void Deeds”), which is the sole subject of this appeal. Appellant Zandian never opposed Respondent Margolin’s Motion to Void Deeds, let alone presented arguments to the District Court relating to NRS 17.150(4).
Appellant is asking the Nevada Supreme Court to review the dismissal of a federal bankruptcy court action that Appellant never appealed, and resurrect arguments in a bankruptcy case that have been litigated by the parties and that have been fully adjudicated by the USBC. The bankruptcy was dismissed and all interlocutory orders entered therein were vacated; the one targeted by Appellant having been expressly vacated and rendered void ab initio.
The only proper issue before
this Court is whether Honorable Judge Russell erred in granting Respondent
Margolin’s unopposed Motion to Void Deeds, which he did not. FJDCR 3.8 is
entitled “[t]ime for filing opposition” and states as
follows: “[u]nless otherwise ordered by the court, an
opposing party will have 14 days after service of the motion to file a
memorandum of points and authorities in opposition to the motion. The failure
of an opposing party to timely file a memorandum of points and authorities
shall constitute a consent to the granting of the motion.”
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Respondent Margolin’s Motion to Void Deeds.
This Court should not accept Appellant’s invitation to review issues and arguments that were not litigated in the Motion to Void Deeds in the case below and which were dismissed with prejudice by the USBC. Appellant’s Motion to Take Judicial Notice of documents supporting such issues and arguments should be denied.
II. BACKGROUND [1]
On February 25, 2021, Appellant filed his Notice of Appeal in which he appealed from the Notice of Entry of Order of the First Judicial District Court’s Order Granting Plaintiff’s Motion to Void Deeds, Assign Property, For Writ of Execution and to Convey served on January 22, 2021. 15 ROA at 3539.[2]
Respondent’s Motion to Void Deeds was filed and served on May 3, 2016. 13-14 ROA at 3162-3463. Appellant never timely filed an opposition to the Motion
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[1] This is Appellant’s fourth appeal to the Nevada Supreme Court regarding the underlying District Court case. In Appellant’s first appeal (Supreme Court No. 65205), he unsuccessfully appealed the District Court’s Default Judgment against him. In Appellant’s second appeal (Supreme Court No. 65960), he unsuccessfully appealed the District Court’s Order on Motion for Order Allowing Costs and Necessary Disbursements and Memorandum of Points and Authorities in Support Thereof. In both of these appeals, the District Court was affirmed. 12 ROA 2978-2980. Appellant’s third appeal (Supreme Court No. 69372) was dismissed because the Nevada Supreme Court lacked jurisdiction over the appealed-order. 13 ROA 3154-3156.
[2] The Record on Appeal is cited to herein as (volume number) ROA at (page number(s)).
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to Void Deeds. On June 2, 2016, Respondent filed and served a Request for Submission for the Motion to Void Deeds. 14 ROA at 3488-3490. On June 2, 2016, a Notice of Pendency of Chapter 15 Petition for Recognition of a Foreign Proceeding was filed. 14 ROA at 3473-3487. On June 3, 2016, Honorable Judge Russell stayed the District Court case pending the foreign proceeding and entered a Notice of Bankruptcy Filing and Automatic Stay. 14 ROA at 3491-3493.
Between June of 2016 and
October 14, 2020, the parties litigated the underlying Chapter 15 case as well
as two ancillary adversary proceedings. On October 14, 2020, the USBC entered
an Order Approving Stipulation to Dismiss Chapter 15 Case. June 24, 2021 Declaration
of Matthew D. Francis (“Francis Decl.”), Exhibit 1. In that Order, the USBC
granted Mr. Margolin’s Motion to Dismiss Chapter 15 Case and dismissed Chapter
15 Case No. 16-50644-btb with prejudice.
IT IS FURTHER ORDERED that the Order Granting Partial Motion for Summary Judgment and Denying Motion for Summary Judgment Against Cross-Claimant Patrick Canet and Granting Counter Motion for Summary Judgment (“Interlocutory Order”) (Adv. ECF No. 61 in Adversary Case No. 17-05016-BTB) and the corresponding Findings of Fact and Conclusions of Law (“Findings”) (Adv. ECF No. 60 in Adversary Case No. 17-05016)-BTB
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are and shall be vacated as
void ab initio. To the extent that
either the Interlocutory Order or the Findings have been recorded in the office
of any county recorder, the same, by this Order are and shall be expunged and
removed from the record, and any transfers based upon the Interlocutory Order
or the Findings shall be void ab initio.
See also 11 U.S.C. § 349(b) (dismissal of the bankruptcy proceeding effectively reinstates any lien, vacates any order, and revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case).
No party appealed the USBC October 14, 2020 Order Approving Stipulation to Dismiss Chapter 15 Case, and the Chapter 15 Case No. 16-50644-btb and Adversary Case Nos. 17-05016-BTB and 19-05025-BTB were closed on November 2, 2020. Francis Decl., Exhibit 2.
On January 15, 2021, Respondent Margolin filed a Notice of Termination of Bankruptcy Proceedings and concurrently resubmitted his Motion to Void Deeds in accordance with the District Court’s June 3, 2016 Order. 15 ROA at 3511-3520, 3521-3523. Respondent Margolin also submitted a proposed Order granting his Motion to Void Deeds in conjunction therewith, which was granted on January 19, 2021. 15 ROA at 3524-3528. Respondent then served the Notice of Entry of Order granting his Motion to Void Deeds on January 22, 2021, and this untimely appeal was filed on February 25, 2021. 15 ROA at 3529-3538, 3539.
Based on the foregoing facts and the argument set forth below, this Court should deny Appellant’s request to take judicial notice of documents filed in the
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USBC that were not part of the Motion to Void Deeds that is at issue in this appeal.
III. ARGUMENT
The general rule in Nevada is
that “[o]n appeal, a court can only consider those matters that are contained
in the record made by the court below and the necessary inferences that can be
drawn therefrom.” Mack v. Estate of Mack, 125
Nev. 80, 91, 206 P.3d 98, 106 (2009), citing Toigo
v. Toigo, 109 Nev. 350, 350, 849 P.2d 259, 259
(1993); see also United States v. Sanchez-Lopez, 879 F.2d 541, 548 (9th
Cir. 1989) (“exhibits and papers not filed with the district court or admitted
into evidence are not part of the appellate record”). This Court said in Mack
that, as a general rule, the Nevada Supreme Court “will not take judicial
notice of records in another and different case, even though the cases are
connected.” Mack, 125
Appellant argues that this appeal, like the dismissed bankruptcy cases, raises the issue of whether Respondent Margolin properly created a valid judgment lien pursuant to NRS 17.150(4). Appellant’s Motion, p. 2. Appellant further argues that the First Judicial District Court relied on such lien in issuing its January 19, 2021
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Order Granting Plaintiff’s
Motion to Void Deeds.[3]
Despite these undisputed facts, Appellant wants this Court to erroneously believe that the issues raised in the District Court and in the USBC are the same in order for this Court to consider new arguments on appeal relating to NRS 17.150(4) that were contained in void July 20, 2018 interlocutory summary judgment order. Appellant’s requests must be denied since issues may not be raised for the first time on appeal. In re AMERCO Derivative Litigation, 127 Nev. 196, 217 n.6, 252 P.3d 681, 697 n.6 (2011) (declining to consider an issue raised for the first time on appeal); Montesano v. Donrey Media Group, 99 Nev. 644, 650 n.5, 668 P.2d 1081, 1085 n.5 (1983); Tupper v. Kroc, 88 Nev. 146, 149, 494 P.2d 1275, 1278 (1972).
Since Appellant’s underlying basis for its Motion to Take Judicial Notice is baseless, this Court should not take judicial notice of the documents proffered by Appellant in its Motion. This is especially true for the July 20, 2018 interlocutory summary judgment order that is void ab initio and therefore has no legal effect. See
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[3] Appellant alleges that the USBC found that Respondent Margolin’s Default Judgment was void in its July 28, 2018 interlocutory summary judgment order. Appellant’s Motion, p. 5. That void order does not state that the Default Judgment is void and Judge Beesley never made such a finding. See Exhibit 1 to Appellant’s Motion.
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Washoe
Med. Ctr. v.
None of the cases cited by Appellant support the proposition that this Court may take judicial notice of arguments advanced and documents generated in a federal bankruptcy case that has been dismissed with prejudice in order to support arguments on appeal that were never raised in the underlying district court case.
Respondent respectfully submits that this honorable Court should not be used by Appellant to serve as a fact finder in order to re-litigate or appeal a federal bankruptcy case or entertain arguments that could have been made in the District Court below.
IV. CONCLUSION
For all of the foregoing reasons, Appellant’s Motion to Take Judicial Notice should be denied.
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DATED this 24th day of June, 2021.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
By: /s/ Matthew D. Francis
Matthew D. Francis
Nevada Bar No. 6978
Arthur A. Zorio
Nevada Bar No. 6547
Telephone: 775.324.4100
Facsimile: 775.333.8171
Email: mfrancis@bhfs.com
azorio@bhfs.com
Attorneys for Respondent JED MARGOLIN
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CERTIFICATE OF SERVICE
Pursuant to NRAP 25(b), I certify that I am an employee of Brownstein Hyatt Farber Schreck, LLP, and on this 24th day of June, 2021, I served the document entitled RESPONDENT’S OPPOSITION TO APPELLANT’S MOTION TO TAKE JUDICIAL NOTICE (NRAP 27(a)(1)) on the parties listed below in the manner described below:
Mark Forsberg, Esq.
Rick Oshinski, Esq.
Oshinski & Forsberg, Ltd.
rick@oshinskiforsberg.com
mark@oshinskiforsberg.com
[ ] U.S. MAIL: by placing a true copy thereof enclosed in a sealed envelope with first class postage thereon fully prepaid, in the United States mail at Reno, Nevada as addressed to the foregoing party.
[
] VIA COURIER: by delivering a copy of the document to Federal
Express for first priority delivery to the foregoing party in
[X] VIA ELECTRONIC SERVICE: by electronically filing the document with the Clerk of the Court using the ECF system which served the foregoing parties electronically:
/s/ Jeff Tillison
Employee of Brownstein Hyatt Farber Schreck, LLP
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IN
THE SUPREME COURT OF THE STATE OF
Supreme Court No. 82559
District Court Case No. 09OC005791B
DECLARATION OF MATTHEW D. FRANCIS
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.
I, Matthew D. Francis, do hereby declare and state as follows:
1. I have personal knowledge of the following facts and if called as a witness I could and would testify competently to them. This declaration is based upon my personal knowledge, and is made in support of Respondent’s Opposition to Appellant’s Motion to Take Judicial Notice (NRAP 27(a)(1)).
2. Attached hereto as Exhibit 1 is a true and correct copy of an October 14, 2020 Order Approving Stipulation to Dismiss Chapter 15 Case entered in Case No. BK-N-16-50644-BTB venued in the United States Bankruptcy Court District of Nevada. Exhibit 1 also appears in 15 ROA at 3516-3518.[1]
3. Attached hereto as Exhibit 2 is a true and correct copy of a November 2, 2020 Case Summary entered in Case No. BK-N-16-50644-BTB venued in the United States Bankruptcy Court District of Nevada. Exhibit 2 also appears in 15 ROA at 3519-3520.
I
declare under penalty of perjury pursuant to the laws of the State of
Dated this 24th day of June, 2021
/s/ Matthew D. Francis
MATTHEW D. FRANCIS
______________________
[1] The Record on Appeal is cited to herein as (volume number) ROA at (page number(s)).
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CERTIFICATE OF SERVICE
Pursuant to NRAP 25(b), I certify that I am an employee of Brownstein Hyatt Farber Schreck, LLP, and on this 24th day of June, 2021, I served the document entitled DECLARATION OF MATTHEW D. FRANCIS on the parties listed below in the manner described below:
Mark Forsberg, Esq.
Rick Oshinski, Esq.
Oshinski & Forsberg, Ltd.
rick@oshinskiforsberg.com
mark@oshinskiforsberg.com
[ ] VIA U.S. MAIL: by placing a true copy thereof enclosed in a sealed envelope with first class postage thereon fully prepaid, in the United States mail at Reno,
[
] VIA COURIER: by delivering a copy of the
document to Federal Express for first priority delivery to the foregoing party
in
[X] VIA ELECTRONIC SERVICE: by electronically filing the document with the Clerk of the Court using the ECF system which served the foregoing parties electronically:
/s/ Jeff Tillison
Employee of Brownstein Hyatt Farber Schreck, LLP
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