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IN
THE SUPREME COURT OF THE STATE OF
Electronically
Filed
Aug
11 2021 09:30 a.m.
Elizabeth
A. Brown
Clerk
of Supreme Court
Supreme
Court Case No. 82559
District
Court Case No. 09OC005791B
REZA
ZANDIAN, A/K/A GOLAMREZA ZANDIANJAZI, A/K/A GHOLAM REZA ZANDIAN, A/K/A REZA
JAZI, A/K/A J. REZA JAZI, A/K/A G. REZA JAZI, A/K/A GHONOREZA ZANDIAN JAZI, an
individual,
Appellant,
vs.
JED
MARGOLIN, an individual,
Respondent.
On
Appeal from Order Granting Plaintiff’s Motion To Void Deeds, Assign
Property, For Writ Of Execution And To Convey dated January 19, 2021 in the
First Judicial District Court, Carson City, The Honorable James T. Russell
Presiding
APPELLANT’S
OPENING BRIEF
Mark
Forsberg (SBN 4265)
Rick
Oshinski (SBN 4127)
OSHINSKI
& FORSBERG, LTD.
Telephone
775-301-4250
Attorneys
for Appellant
NRAP
26.1 DISCLOSURE STATEMENT
The undersigned counsel of
record for Appellant certifies that the following are persons and entities as
described in NRAP 26.1(a), and must be disclosed. These
representations are made in
order that the justices of this court may evaluate possible disqualification or
recusal.
1.
All parent corporations and publicly-held companies owning 10 percent or more
of the party’s stock: None
2. Names of all law firms whose
attorneys have appeared for the party or amicus in this case (including
proceedings in the district court or before an administrative agency) or are
expected to appear in this court:
Mark Forsberg, Esq.
Rick Oshinski, Esq.
Oshinski & Forsberg, Ltd.
Arthur A. Zorio
Matthew Francis
Brownstein Hyatt Farber Schreck
3.
If litigant is using a pseudonym, the litigant’s true name: N/A.
Dated
this 11th day of August, 2021.
OSHINSKI
& FORSBERG, LTD.
By
/s/ Mark Forsberg
MARK
FORSBERG, NSB 4265
-i-
TABLE
OF CONTENTS
|
NRAP
26.1 Disclosure Statement |
...................................... |
i |
|
Table
of Contents |
...................................... |
ii |
|
Table
of Authorities |
...................................... |
iii |
|
Jurisdictional
Statement |
...................................... |
1 |
|
Routing
Statement |
...................................... |
2 |
|
Statement
of Issues |
...................................... |
2 |
|
Statement
of the Case |
...................................... |
2 |
|
Statement
of Facts |
...................................... |
3 |
|
Standard
of Review |
...................................... |
6 |
|
Summary
of Argument |
...................................... |
6 |
|
Argument |
...................................... |
8 |
|
A. This Court Has Not Addressed the Effect of
A Failure To Strictly Comply with the Statutory Requirements For Perfecting A
Lien Under NRS 17.150(4) |
8 |
|
B. The Requirements of NRS 17.214 and NRS
17.150 are Analogous and Leven v. Frey Should Therefore Control |
9 |
|
C. Strict Compliance with NRS 17.150(4) is
Required |
17 |
|
D. The Legislative History of NRS 17.150(4)
Shows That Strict Compliance is Required |
19 |
|
Conclusion |
........................................ |
25 |
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TABLE
OF AUTHORITIES
CASES:
|
Browning
v. Dickson,
|
|
|
114
|
13 |
|
|
|
|
Leven v. Frey, |
|
|
123
|
6, 8, 12, 14, 16, 17,
18, 19, 20, 21 |
|
|
|
|
Osman v. Cobb, |
|
|
77
|
1 |
|
|
|
|
Rawson v. Ninth
Judicial Dist. Court of State, |
1 |
|
133
|
|
|
|
|
|
Secured Holdings, Inc.
v. Eighth Judicial Dist. Court of State |
|
|
( |
8, 9, 14 |
|
|
|
|
Smith v. Sixth
Judicial |
|
|
63
|
1 |
|
|
|
|
Worsnop v. Karam, |
|
|
458
P.3d 353 (2020) |
15 |
STATUTES:
|
NRS
17.150 |
9, 11, 13, 21 |
|
NRS
17.150(2) |
9, 11, 14 |
|
NRS
17.150(3) |
13 |
|
NRS
17.150(4) |
10, 12, 13, 14, 15,
16, 17, 18, 21, 22 |
|
NRS
17.214 |
9, 11, 12, 14, 16, 17,
19, 20, 21 |
|
2011
Statutes of |
15, 22, 23, 24 |
-iii-
JURISDICTIONAL
STATEMENT
This Court has jurisdiction under
NRAP 3A(8) which establishes the appealability of special orders of the
District Court after final judgment. Here, the District Court’s entry of a
default judgment against Appellant was a final judgment. Respondent moved
post-judgment to execute on the default judgment, making the granting of that
order appealable under the rule. See
also, Rawson v. Ninth Judicial Dist. Court of
State, 133 Nev. Adv. Op. 44, 396 P.3d 842 (2017) citing Osman v.
Cobb, 77 Nev. 133, 360 P.2d 258 (1961) (“In Nevada, void orders have
historically been appealable. . . This court . . . has since its beginning held
that an appeal from a void judgment might properly be considered and acted
upon.”). See also Smith v. Sixth Judicial Dist.
Court, 63 Nev. 249, 256-257, 167 P. 2d 648, 651 (1946) (holding that
void orders may be collaterally attacked at any time).
-1-
ROUTING
STATEMENT
NRAP 17(a) enumerates cases
that are to be heard and decided by the Supreme Court. NRAP 17(a)(12) provides
that this Court will hear matters raising as a principal issue a question of
state-wide public importance. Appellant urges that this case is of state-wide
importance because while this Court has held that time periods prescribed by
statute must be strictly construed, it has not reached the question of whether
the time period prescribed by NRS 17.150(4) must be so construed or whether
failure to comply with the time period will result in a judgment lien being
void.
STATEMENT
OF ISSUES
1. Did the District Court
err by granting a motion that allowed execution on a judgment lien that was
never created because the recording of the judgment did not strictly comply
with NRS 17.150(4)?
STATEMENT
OF THE CASE
This is an appeal from an order
of the District Court, ROA 3524,
granting Respondent’s Motion to Void Deeds, Assign Property, For Writ of
Execution and To Convey (the “Motion” or “Motion to Void”). ROA 3162. The Motion and order followed
a default judgment. The judgment being executed upon was recorded in 2013, but
an affidavit of judgment was not recorded “at that time” as required by NRS
17.150(4) for the perfection of a lien upon which the judgment creditor could
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execute. Because strict
compliance with the statute is required, the failure to record the affidavit of
judgment resulted in no lien being created and the District Court erred in
granting a motion that allowed execution on the judgment. Appellant timely
appeals from the order of the District Court granting the post-judgment motion.
STATEMENT
OF FACTS
This case was commenced in the
District Court by filing a complaint on December 11, 2009. ROA 1. The District Court entered a default judgment against
Appellant on June 24, 2013. ROA 1255.
Respondent recorded the default judgment in the official records of the Washoe
County Recorder on August 16, 2013 as document number 4269631. Affidavit of Renewal of Judgment, ROA 3498 at 3499. The default judgment
was also recorded in a number of other
Appellant moved to set aside
the default judgment, and the motion was denied by the District Court. ROA 1558. Appellant appealed the order
and this Court issued its Order of Affirmance on October 21, 2015.
Respondent filed his Motion to
Void Deeds, Assign Property, For Writ of Execution and To Convey on May 3,
2016. ROA 3162-3172. However, on June
3, 2016, the District Court issued a Notice of Bankruptcy Filing and Automatic
Stay. ROA 3491-3493. While the stay
was still in effect, on May 2, 2019, Respondent filed his Affidavit of Renewal
of Judgment in the District Court (“Affidavit of
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Renewal”).
ROA 3498. The Affidavit of Renewal
contained the following statement by Respondent:
However, in the adversary proceeding in the
United States Bankruptcy Court, District of Nevada, adversary case no.
17-0516-btb, the Court granted a partial motion for summary judgment against
Margolin for quiet title and declaratory relief in favor of Star Living Trust
and Koroghli Management Trust, declaring the Sheriff’s deeds void ab-initio on
July 20, 2018. Margolin intends to appeal the bankruptcy court’s order
declaring the Sheriff’s deeds void ab-initio. Notwithstanding the above,
Margolin has not received any payments from Judgment Debtor [Appellant].
On January 15, 2021, Respondent
filed his Notice of Termination of Bankruptcy Proceedings. ROA 3511-3513. The Notice of Termination of Bankruptcy Proceedings
provided no additional information to the District Court regarding the
Bankruptcy Court’s order declaring the Sheriff’s deeds void ab initio. The notice also made no
mention of the appeal referenced in the Affidavit of Renewal of Judgment, ROA 3503, including whether an appeal
was filed or the
-4-
outcome
of any appeal. The Notice of Termination of Bankruptcy Proceedings, ROA 3511, resubmitted the Motion to
Void.
Attached to the Notice of
Termination of Bankruptcy Proceedings was the Bankruptcy Court’s order
dismissing the Chapter 15 case brought by Appellant. ROA 3515 et seq. The order vacated the court’s previous Order
granting partial motion for summary judgment but did not explain the reasons
for its actions or discuss the basis for previously granting the partial motion
for summary judgment.
The District Court granted the
Motion to Void. ROA 3524-3528. The
District Court’s order made no findings of fact or conclusions of law. The
order voided a number of transfers of real property made by Appellant to others
and ordered each of those pieces of real property be executed upon and conveyed
to Respondent. The District Court made no findings in support of granting
injunctive relief. It made no finding that Respondent had filed, at the time of
recording the default judgment, an affidavit of judgment as required by NRS
17.150(4). In fact, the record on appeal contains no evidence that such an
affidavit of judgment was recorded at the time the default judgment was
recorded.
On March 11, 2021, an Affidavit
of Judgment was filed with the District Court. ROA 3548-3552. The Affidavit of Judgment identifies the default
judgments recorded in six
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present in the record contains
no recording information suggesting that it was recorded at the time the
judgments themselves were recorded as required by NRS 17.150(4).
STANDARD OF REVIEW
This Court reviews statutory
construction de novo and similarly,
whether a statute’s procedural requirements must be complied with strictly or
substantially. These questions present questions of law subject to this Court’s
plenary review. Leven
v. Frey, 123
SUMMARY OF ARGUMENT
The central question in this
case is whether, having obtained a default judgment, Respondent ever perfected
a lien against the real property of the judgment creditor upon which execution
could be had. The answer to that question is that Respondent failed to perfect
a lien in the manner prescribed by
The District Court was aware
from Respondent’s Affidavit of Renewal at the time it granted the Motion that
the Bankruptcy Court had held that the sheriff’s deeds conveying real property
upon which execution was sought in the Motion were void
-6-
ab
initio and that Respondent intended to appeal that ruling.
Respondent’s statement to the District Court on this subject, proffered in his
Affidavit of Renewal of Judgment filed during the pendency of the bankruptcy
stay, lacked the candor to the tribunal required by NRPC 3.3(a)(2), as it did
not explain to the District Court the basis of the decision by the Bankruptcy
Court, the basis upon which Respondent intended to appeal or the outcome of any
such appeal. Moreover, when Respondent resubmitted the Motion after the
bankruptcy stay was terminated, Respondent again failed to address the issue of
the appeal or its outcome, or to establish that a lien had been perfected as
required by the statute, or to disclose to the District Court that an affidavit
of judgment had not been filed or recorded as required by NRS 17.150(4), thus
failing to provide the District Court with legal authority known to the lawyer
to be directly adverse to the to the position of the client. Thus, the District
Court was left with the incorrect understanding that the lien had been
perfected and execution could proceed.
Nonetheless, the record shows
that at the time the Motion was granted the sheriff’s deeds had been declared
void and there was no evidence before the District Court that a lien had been
perfected, and indeed it had not been perfected. Respondent
failed to comply with NRS 17.150(4) and therefore failed to perfect a lien.
Strict, not substantial, compliance with the statute is required. Therefore,
the District Court erred by granting the Motion and its order doing so should
be reversed.
-7-
ARGUMENT
A. This Court Has Not Addressed the Effect of A
Failure to Strictly Comply with the Statutory Requirements For Perfecting A
Lien Under NRS 17.150(4).
This Court has addressed the
failure of a judgment creditor to strictly comply with the time requirements
for renewing a judgment prescribed by NRS 17.214. See Leven v. Frey, 123
-8-
mandate dismissal on the
failure to comply with NRS 17.150(4), and petitioner has provided no other
authority otherwise demonstrating that dismissal was required.” The court of
appeals concluded that the petitioner “failed to demonstrate that dismissal was
required by clear authority, and thus, that writ relief is warranted on this
basis.”
Appellant in this case asserts,
as the petitioner failed to do in Secured
Holdings, that this is an important issue of law needing clarification from
this Court and is properly before the Court as set forth in Appellant’s pro per docketing statement filed March
11, 2021. The court of appeals, furthermore, at footnote 2 noted that nothing
in its order in Secured Holdings precluded the petitioner from raising its NRS
17.150(4) arguments in any appeal from an adverse final judgment in that case.
This open question is now before this Court and its determination will be dispositive
of this appeal.
B. The Requirements of
NRS 17.214 and NRS 17.150 Are Analogous And Leven
v. Frey Should Therefore Control.
NRS 17.150(2) provides that a
copy of any judgment or decree of a district court “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.”
-9-
Subsection (4) of the statute provides:
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 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.
> 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.
Here, it can be inferred from
the record that Respondent recorded the judgment in counties where Respondent
believed real property owned by the judgment creditor was located. However,
there is no evidence in the record that Respondent recorded, at the time
the judgment was recorded, the affidavit of judgment required by NRS 17.150(4).
Respondent did file an affidavit of judgment on March 11, 2021, nearly eight
years after the judgment was recorded in six
-10-
in 2013. ROA 3499. The grossly untimely filing of the affidavit of judgment
was an act apparently reflecting Respondent’s recognition after the filing of
Appellant’s notice of appeal on February 21, 2021, ROA 3539, that he had failed to comply with the statute and
attempting a retroactive cure for that failure. And, notwithstanding the filing
of the untimely affidavit of judgment, there is no evidence in the record that
the untimely affidavit of judgment was recorded anywhere in compliance with
NRS 17.150(4).
NRS 17.150, the statutory
procedure for perfecting a lien, and NRS 17.214, the statutory scheme for
renewing a judgment that was analyzed in Leven
v. Frey, supra, both prescribe steps a judgment creditor must take to
achieve the respective benefits each provides. NRS 17.214 requires timely
filing of an affidavit with the court, timely recording of the affidavit of
renewal if the judgment was one that was previously recorded, and timely
service on the judgment debtor in order to successfully renew a judgment.
Similarly, NRS 17.150 provides that a judgment creditor who records a judgment
for the purpose of creating a lien must record the judgment in accordance with
subsection (2) and in addition to recording the information described in
subsection (2), must record the affidavit of judgment at the time the judgment is
recorded. The affidavit of judgment must contain specific information
identifying the judgment debtor: his name and address, the last four digits of
numbers shown on identifying documents, the assessor’s parcel number,
-11-
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. The statute contains
additional specific requirements where the lien sought would be against a
mobile or manufactured home. Finally, all of the information included in an affidavit
of judgment recorded pursuant to subsection (4) must be based on the personal
knowledge of the affiant and not on information and belief.
The court in Leven began its analysis of NRS 17.214
by examining the language of the statute. It found that the statute’s
requirements are plainly set forth and “must be followed for judgment renewal.”
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continuing existence of the
lien. Finally, the court held that the requirement of service on the judgment
debtor within three days of filing is also plain and its meaning clear and that
such notice is a due process requirement in any such proceeding. Citing Browning v. Dickson, 114
Like the provisions of NRS
17.214, the requirements of NRS 17.150 are clear as to the time and content of
the items that must be filed and recorded. The judgment creditor must, in order
to perfect a lien, record a copy of the judgment, certified by the clerk of the
court where the judgment or decree was rendered, in any county where the
judgment debtor’s real property may be found. If the document to be recorded is
an abstract, it must contain the title of the court and a number identifying
the action, the date of entry of the judgment or decree, the names of the
judgment debtor and judgment creditor, the amount of the judgment or decree and
the location where the judgment or decree is entered in the minutes or judgment
docket. NRS 17.150(3).
NRS 17.150 doesn’t stop there:
It imposes additional requirements on a judgment creditor who records a judgment
for the purpose of creating a lien on the real property of the judgment debtor,
in subsection (4). Those requirements are that an affidavit of judgment must be
recorded at the time the judgment itself is recorded. The affidavit must
contain statements of the name and address of the judgment debtor and, if the
judgment debtor is a natural person, identifying information
-13-
derived from the judgment
debtor’s driver’s license and social security number. In addition, where the
lien is against real property owned by the judgment debtor at the time the
affidavit of judgment is recorded, the affidavit must contain the parcel number
and address of the real property and a statement that the judgment creditor has
confirmed that the judgment debtor is the legal owner of that property.
Finally, subsection (4) prescribes that all the information included in the
affidavit of judgment must be based on personal knowledge.
There is nothing unclear or
ambiguous about the requirements under NRS 17.150(2) and (4) for perfecting a
lien. Thus, as to these matters, the court’s analysis in Leven can also be applied here to NRS 17.150. In Leven and here, as noted by the court of
appeals in Secured Holdings, supra,
neither NRS 17.214 nor NRS 17.150 expressly identify the consequences of
failure to comply with the provisions of the statute. In Leven, therefore, the court turned to the legislative history of
NRS 17.214 to discern the intent of the legislature in enacting the statute. It
determined that the statute was intended to establish a procedure for judgment
renewal to allow judgment creditors to extend the time for collecting payments
after the original judgment would otherwise expire. It recognized that a 1995
amendment required that affidavits of renewal be recorded to ensure that real
property liens are apparent in title searches and concluded that the filing of
an affidavit with the court alone
would not renew a previously
recorded judgment, as recordation was also required.
-14-
Here, the Court should follow
the same analytical process. As set forth below, the provisions of NRS
17.150(4) requiring the recording of an affidavit of judgment were added to
subsection (4) by a 2011 amendment found at 2011
Statutes of
As in Leven, failure to adhere to the timing and content requirements of
NRS 17.150(4) would defeat the legislative intent as it would expose judgment
debtors to foreclosure or other collection activities after a lien expired and
interpreting the statute to not require recording of the affidavit of renewal
would fail to comply with “our rules of statutory interpretation, as it would
render the statute’s express recording and service requirements meaningless,
and thus produce an unreasonable result.”
A similar result was reached
more recently in Worsnop v. Karam, 458 P.3d 353 (2020). There,
a judgment creditor timely filed an affidavit of renewal with the court but
failed to record the affidavit within the time allowed by NRS 17.214. The
-15-
creditor argued that it was
possible to renew a judgment under common law and thus avoid the statutory
requirements, and that equitable tolling should be applied to avoid the harsh
result of his judgment expiring. The Nevada Supreme Court determined that the
delay in recording the affidavit of renewal voided the renewal and the judgment
expired. The court relied on Leven’s
holding that the statute must be strictly complied with and that failure to
strictly comply voided the renewal. Separately, the court rejected the argument
that equitable tolling was a possible means of salvaging the renewal.
NRS 17.150(4) must be
interpreted in the same manner as NRS 17.214 to avoid an absurd result, that
being that the requirement of recording an affidavit of judgment could be
ignored without consequence and the legislative intent thwarted. The case
before the Court now exposes just such a circumstance and unreasonable result.
Respondent here failed to record an affidavit of judgment, not just at the time
the judgment itself was recorded or even near the time, but not until nearly
eight years later. This thwarted the legislative intent that a judgment
creditor show diligence by establishing by its personal knowledge that the
property was owned by the judgment creditor at the time the judgment was
recorded and meeting the other requirements identifying the judgment debtor. It
also meant that the judgment failed to distinguish between the three defendants
against whom the default judgment was taken: Optima Technology, a
-16-
corporation and Reza Zandian,
an individual. What may have occurred to resolve these ownership and identity
issues behind the scenes and out of the public record remains opaque to the
courts, the public, title companies examining the public records and to county
recorders attempting to keep the record straight. The Respondent’s disregard of
NRS 17.150(4) must have an analogous consequence as disregard of NRS 17.214 if
the former is to have any meaning or effect. In this case, the lien should be
viewed as unperfected and not subject to execution; in Leven, the failure to comply with the statute resulted in the
judgment not being renewed and expiring. The same must be true here. These are
the only results that comply with the plain meaning of the statute and the
legislative intent underlying the enactment of the language at issue.
C. Strict Compliance with NRS 17.150(4) is
Required.
The court in Leven analyzed the level of compliance
required under the statute, weighing strict versus substantial compliance. The
court began with the general statement that in determining whether strict or
substantial compliance of the statute is required, courts examine the statute’s
provisions, as well as policy and equity considerations. The court noted that
with respect to NRS 17.214, it had never indicated that substantial compliance
with specific timing requirements is sufficient in the context of recording and
service of documents required by the statute:
To the contrary, since the statute includes no
built-in grace period or safety valve provisions, its explicit three day
language leaves little room
-17-
for judicial construction or “substantial
compliance” analysis. Although statutes allowing for a “reasonable time” to act
are subject to interpretation for substantial compliance, those that set time
limitations are not. Our interpretation of the statute’s timing requirements
and our conclusion that those requirements must be complied with strictly is consistent
with the general tenet that “time and manner” requirements are strictly
construed, whereas substantial compliance may be sufficient for “form and
content” requirements.
In Leven, the court applied these principles to determine that where
Frye failed to meet the statutory three-day requirement for recording the
affidavit of renewal, the attempt to renew the judgment failed and it expired.
The court held that any other interpretation would undermine the legislative
intent and that substantial compliance would create situations in which a title
search would indicate that a judgment lien had terminated when, in fact, it had
not. Applying these principles to the case at hand, NRS 17.150(4) contains a
clear and unmistakable time requirement for filing the affidavit of judgment:
it must, without any grace period or room for substantial compliance analysis,
be recorded at the time the judgment itself is recorded. As in Leven, permitting a delay in recording the
affidavit of judgment defeats the legislative intent of having the public
record accurately reflect the status of any lien, protecting the general public
from mistaken efforts to execute on a lien, and protecting judgment debtors by
requiring diligence on the part of judgment creditors. Therefore, subsection
(4) of NRS 17.150 demands strict compliance and the result of a failure to
strictly comply in that regard will be that the lien is not
-18-
perfected and thus the judgment
cannot be executed upon. Here, the egregious failure to comply with the
recording requirements of NRS 17.150(4) would fail to meet muster even under
substantial compliance principles. In short, Respondent never perfected a lien
against Appellant’s real property anywhere, never created or attempted to
create a record in the District Court of compliance with the statute and did
not file, let alone record, the required affidavit until nearly eight years
after the judgment was recorded and after filing of the notice of appeal. The District
Court erred in allowing Respondent to execute on Respondent’s unperfected lien
when he had not strictly complied with the statute.
D. The Legislative
History of NRS 17.150(4) Shows That Strict Compliance is Required.
In Leven v. Frey, this Court determined
that NRS 17.214, requiring the timely filing of an affidavit and timely service
of a renewal of a judgment on the judgment debtor, when read in conjunction
with NRS 17.150(2) was ambiguous only as to the effect of failure to comply.
The court found that NRS 17.214(3)’s requirement that an affidavit of renewal
be served on the judgment debtor within three days of filing was plain and its
meaning clear. The court reasoned that:
NRS 17.150(2) creates a lien on a debtor’s real property
in a particular county when a judgment is recorded in that county; this lien
remains in place for six years from the date that the judgment was docketed and
continues automatically “each time the judgment…is renewed” if a previously
recorded judgment could be renewed under 17.214 without recordation of the
renewed affidavit, then the lien created by NRS
-19-
17.150(2) would continue without any recorded
notice that the judgment has been renewed and that the lien therefore remains
in effect. Instead, requiring recordation of the renewal affidavit for the
renewal of a recorded judgment ensures that anyone performing title searches
will know that the lien continues.
-20-
intent
of the legislature to provide notice of the renewal in the public records where
the judgment had been previously recorded.
In reaching this conclusion,
the court determined that it was necessary to examine “the context and the
spirit of the law or the causes which induced the Legislature to enact it. The
entire subject matter and policy may be involved as an interpretative aid.”
After performing this analysis, the court concluded that permitting a
previously recorded judgment to be renewed by simply filing the affidavit of
renewal with the clerk of the court would render meaningless the amendment
requiring that the affidavit also be recorded in order to give notice in the public
records of the renewal.
Here, with respect to NRS
17.150(4) the legislature amended the statute in 2011 to require that, for the
purpose of creating a lien on real property of a judgment debtor pursuant to
subsection (2) of NRS 17.150, a judgment creditor must record at the time of
filing the affidavit of judgment, a statement providing the name and address of
the judgment debtor, and, if the judgment debtor is a natural person, the last
four digits of the judgment debtor’s driver’s license number or identification
card number and the state of issuance. In addition, the 2011 amendment added a
provision requiring that the affidavit of judgment contain additional
information about the property:
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
-21-
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 property.
This language is now contained
in subsection (c) of NRS 17.150(4). The amendment also added the provision of
subsection (4) requiring that all information included in an affidavit of
judgment recorded be based on the personal knowledge of the affiant, and not
upon information and belief.
All
these amendments are found at 211
Statutes of
The legislative history of SB 186
demonstrates that the intent of the legislature in enacting the amendment was
to require
the recordation
of the affidavit of judgment and not the mere filing of it with the clerk of
the court. At the March 2, 2011 of the Senate Committee on Judiciary, Lora E.
Myles, on behalf of
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person with the same name.
Therefore, Myles testified that it was necessary that the judgment creditor
record a statement showing that the judgment creditor has verified the
information in the affidavit of judgment and knows it to be true.
Carson City Clerk-Recorder Alan
H. Glover testified in favor of SB 186 and described an example where property
was foreclosed on based on an affidavit of judgment filed with the court but
was not recorded, and thus a foreclosure took place without the Carson City
Public Administrator having notice of that action. Glover testified “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 the
states.”
Similar testimony was received
by the committee at its March 17, 2011 meeting. Testimony was given that the
bill would require information based on personal knowledge in an affidavit be
recorded in a civil judgment to identify the judgment debtor’s real property.
At that meeting, the bill passed out of committee unanimously.
The Assembly Committee on
Judiciary took up the bill on April 20, 2011. Again, Carson City Clerk-Recorder
Glover testified that the purpose of the bill would be to ensure that the
information in the affidavit of judgment is for the right person and the right
piece of property and that the information was on all necessary documents to
record a lien. He testified that the amended provisions would benefit
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consumers.
Ultimately, the bill passed out of the Assembly Committee on Judiciary
unanimously on April 26, 2011.
In short, the legislative
history demonstrates unequivocally that the purpose of the 2011 amendment
adding the recording requirement for an affidavit of judgment was to protect
judgment debtors from suffering executions on judgments or foreclosures where
the recorded judgment did not contain confirmation of the judgment debtor’s
identity and the judgment debtor’s ownership of real property to which a
judgment lien would attach. Moreover, it is clear that evidence was received
that induced passage of the bill showing that it would benefit county recorders
and also judgment creditors.
In this case, Respondent
recorded a default judgment, but failed as required by NRS 17.150(4) to record
(or file) an affidavit of judgment at the same time. In fact, the affidavit of
judgment based on the default judgment against Appellant was not filed with the
clerk of the court until March 11, 2021 (ROA
3548), almost eight years after the judgment was recorded. The failure of
Respondent to record an affidavit of judgment at the time the default judgment
was recorded in 2013 not only clearly fails to meet the statutory requirements
set forth in NRS 17.150(4), but also runs afoul of the unmistakable intent of
the legislature in imposing the recording requirements.
CONCLUSION
For the reasons stated above,
Appellant urges this Court to reverse the order of the District Court that
allowed execution on a judgment for which no lien was perfected in the manner
prescribed by NRS 17.150(4) because no affidavit of judgment was recorded.
Appellant requests that in doing so, the Court clarify that perfection of a
lien on real property by judgment creditors requires strict compliance with the
timing and recording provisions of NRS 17.150(4).
Respectfully
submitted this 11th day of August, 2021.
OSHINSKI
& FORSBERG, LTD.
By
/s/ Mark Forsberg
Mark
Forsberg NSB 4265
CERTIFICATE OF
COMPLIANCE
1.
I hereby certify that this brief complies with the formatting requirements of
NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type style
requirements of NRAP 32(a)(6) because:
1.
This brief has been prepared using Microsoft Word with a Times New Roman font
(proportional spacing) with a 14 point font size.
2.
I further certify that this brief complies with the page or type volume
limitations of NRAP 32(a)(7) because, excluding the parts of the brief exempted
by NRAP 32(a)(7)(C), it contains 6391 words.
3.
Finally, I hereby certify that I have read this appellate brief, and to the
best of my knowledge, information, and belief, it is not frivolous or
interposed for any improper purpose. I further certify that this brief complies
with all applicable Nevada Rules of Appellate Procedure, in particular NRAP
28(e)(1), which requires every assertion in the brief regarding matters in the
record to be supported by a reference to the page and volume number, if any, of
the transcript or appendix where the matter relied on is to be found. I
understand that I may be subject to sanctions in the event that the
accompanying brief is not in conformity with the requirements of the Nevada
Rules of Appellate Procedure.
Dated
this 11th day of August, 2021.
OSHINSKI
& FORSBERG, LTD.
By
/s/ Mark Forsberg
Mark
Forsberg NSB 4265
CERTIFICATE OF SERVICE
I
hereby certify that I am an employee of Oshinski & Forsberg, Ltd., and that
on August 11, 2021, I filed a true and correct copy of the foregoing
Appellant’s Opening Brief with the Clerk of the Court through the Court’s
CM/ECF system, which sent electronic notification to all registered users as
follows:
Arthur
A. Zorio
Matthew
Francis
Brownstein
Hyatt Farber Schreck
Attorneys for Respondent
I
declare under penalty of perjury that the foregoing is true and correct.
Executed
on this 11th day of August, 2021, in
/s/ Linda
Gilbertson
Linda
Gilbertson
.end