In Re: Jeffrey J. Swan (Nrap 5) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN RE: JEFFREY J. SWAN AND No. 64808
MAUREEN A. SWAN
SIERRA MEDICAL SERVICES, LLC, FILED
Appellant,
vs. JAN 1 2 2016
YVETTE WEINSTEIN, CHAPTER 7
TRUSTEE,
Respondent.
ORDER REGARDING NRAP 5 CERTIFICATION ORDER
This NRAP 5 certified question asks whether a medical
services financier asserting a lien against the personal property of a
debtor-patient must file a UCC financing statement to perfect its interest
in a bankruptcy proceeding. The certified order first classifies the right as
"a lien" but subsequently states that "Sierra Medical Services [(SMS)] was
the contractual assignee of [Las Vegas Radiology (LVR)]'s rights to
payment for its services and lien rights in connection with the Claim."
The contract signed by Maureen Swan uses the terms "lien" and
"assignment" seemingly interchangeably, and notably never explicitly
gives SMS an "interest [that] secures payment . . . of an obligation." NRS
104.1201(2)(ii).
NRAP 5(a) authorizes this court to answer certified "questions
of law of this state which may be determinative of the case then pending
in the certifying court." We believe that the question, as certified, requires
an interpretation of the SMS contract which presents a mixed factual and
legal inquiry that exceeds the scope of NRAP 5(a). Whether the SMS
contract is a "lien" or "assignment" is critical to answering the certified
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legal inquiry that exceeds the scope of NRAP 5(a). Whether the SMS
contract is a "lien" or "assignment" is critical to answering the certified
question. "A lien is a security interest in property," S.E.C. v. Credit
Bancorp, Ltd., 297 F.3d 127, 138 (2d Cir. 2002), whereas an assignment is
"a right in the property itself," Ford Motor Credit Co. v. Allstate Ins. Co., 2
S.W.3d 810, 812 (Mo. Ct. App. 1999).
In an affidavit filed in the bankruptcy court proceedings and
signed by the president of SMS, the president attempts to clarify the
contractual relationship by stating that, under the contract, SMS receives
an interest in personal injury claim proceeds in "full satisfaction of the
amount at issue." He also states that when there are insufficient claim
proceeds to compensate SMS, it takes a loss and does not further pursue
collection against debtor-patients. Finally, the contract also references a
"Master Assignment Agreement" between SMS and LVR, which was not
included in the record provided to this court, but may be relevant to what
interest was created in the contract signed by Swan.
As such, it is unclear whether the contract created a lien, a
pure assignment, or an assignment of a lien. Such a determination cannot
be made by this court pursuant to NRAP 5(a). Accordingly, this court
requests that the United States Bankruptcy Court undertake the
proceedings necessary to clarify this issue and, if appropriate, then submit
an amended certification order to this court within 60 days.
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It is so ORDERED.
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cc: Hon. Mike K. Nakagawa, Bankruptcy Court Judge
Greene Infuse, LLP
Schwartzer & McPherson Law Firm
Clerk, U.S. Bankruptcy Court, Las Vegas, NV
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