Nationstar Mortg. v. Rodriguez , 2016 NV 55 ( 2016 )

132 Nev., Advance Opinion 55
IN THE SUPREME COURT OF THE STATE OF NEVADA
NATIONSTAR MORTGAGE, LLC; AND No. 66761
THE BANK OF NEW YORK MELLON,
F/K/A THE BANK OF NEW YORK AS
TRUSTEE FOR THE HOLDERS OF
THE CERTIFICATES, FIRST HORIZON
FILED
MORTGAGE PASS-THROUGH JUL 2 8 2016
CERTIFICATES SERIES PHAMS 2005- IE K. LINDEMAN
CL C_01,1R
AA5, BY FIRST HORIZON HOME
LOANS, A DIVISION OF FIRST CH DE
TENNESSEE BANK NATIONAL
MASTER SERVICER, IN ITS
CAPACITY AS AGENT FOR THE
TRUSTEE UNDER THE POOLING
AND SERVICING AGREEMENT,
Appellants,
vs.
CATHERINE RODRIGUEZ,
Respondent.
Appeal from a district court order granting a petition for
judicial review of a foreclosure mediation. Eighth Judicial District Court,
Clark County; Kathleen E. Delaney, Judge.
Reversed.
Kravitz, Schnitzer & Johnson, Chtd., and Gary E. Schnitzer and Tyler J.
Watson, Las Vegas; Akerman, LLP, and Melanie D. Morgan, Las Vegas,
for Appellants.
Connaghan Newberry Law Firm and Tara D. Newberry, Las Vegas; Legal
Aid Center of Southern Nevada, Inc., and Venicia G. Considine, Las
Vegas,
for Respondent.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
Nevada's Foreclosure Mediation Rules (FMRs) provide that a
party may file a petition for judicial review following mediation, provided
that the petition is filed within 30 days of receiving the mediator's
statement. In this appeal, we must determine whether the filing of such a
petition can be permitted beyond the 30-day time period when a party
discovers fraud months after the mediation. We conclude that it cannot.
Accordingly, we determine that the district court lacked jurisdiction to
consider the petition for judicial review and reverse the district court's
order.
FACTS AND PROCEDURAL HISTORY
Respondent Catherine Rodriguez received a loan from First
Horizon to purchase a home secured by a deed of trust. Mortgage
Electronic Registration Systems, Inc., a nominee beneficiary, later
recorded a notice of default, and the Bank of New York Mellon (BONY)
was assigned the deed of trust. Rodriguez elected for foreclosure
mediation, the first of which took place in July 2010. MetLife Home Loans
(MetLife) attended the mediation as an agent of BONY. MetLife made an
offer at the mediation, which Rodriguez did not accept. A second,
unsuccessful mediation took place in December 2010.
Appellant Nationstar Mortgage, LLC, began servicing
Rodriguez's account in August 2011, meaning that it did not own the loan
but could foreclose on it, if necessary. A third, unsuccessful mediation
occurred on October 6, 2011, between Nationstar, as the agent of BONY,
and Rodriguez. Unknown to Rodriguez, Nationstar presented an
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uncertified, inaccurate copy of the note at the mediation. The note
mistakenly contained a stamp endorsing the note to Nationstar.
Thereafter, Rodriguez received a foreclosure notice, and BONY
filed a complaint for judicial foreclosure. During a hearing held on a
motion for summary judgment on June 18, 2013, BONY presented the
original copy of the note containing an endorsement in blank—as opposed
to the endorsement to Nationstar. Upon learning that the note presented
at the October 6, 2011, mediation was inaccurate, Rodriguez filed a
petition for judicial review of the October 6, 2011, mediation on July 22,
2013, against Nationstar and BONY (collectively, Nationstar). The
district court excused the untimeliness of the petition based on good cause,
and after an evidentiary hearing, found that the note's certification was
false and that Nationstar knew of the falsity. As a result, the district
court sanctioned Nationstar $100,000. This appeal followed.
DISCUSSION
Nationstar argues that Rodriguez did not file her petition for
judicial review in a timely manner as required by FMR 21(2), 1 so the
'The FMRs have been revised several times. In this opinion, we use
the FMRs as amended on February 16, 2011, because this version applied
at the time of the pertinent mediation—the subject of the petition for
judicial review. See In re Adoption of Rules for Foreclosure Mediation,
ADKT No. 435 (Order Amending Foreclosure Mediation Rules, February
16, 2011); see also Leyva v. Nat'l Default Servicing Corp., 127 Nev. 470,
473 n.2, 255 P.3d 1275, 1277 n.2 (2011); Comm'n on Ethics v. Hardy, 125
Nev. 285, 288 n.1, 212 P.3d 1098, 1101 n.1 (2009); Marquis & Aurbach v.
Eighth Judicial Dist Court, 122 Nev. 1147, 1150 n.1, 146 P.3d 1130, 1132
n.1 (2006).
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district court lacked jurisdiction. We review court rules de novo. Pasillas
v. HSBC Bank USA, 127 Nev. 462, 467, 255 P.3d 1281, 1285 (2011).
FMR 21(2) provides that petitions for judicial review "shall be
filed within 30 days of the date that the party to mediation received the
Mediator's Statement." We have previously determined that the "[u] se of
the word 'shall' in. . . the FMRs indicates a duty . . . and. . . 'shall' is
mandatory unless the statute demands a different construction to carry
out the clear intent of the [L]egislature." Pasillas, 127 Nev. at 467, 255
P.3d at 1285 (internal quotation marks omitted). We have also previously
determined that "the FMRs necessitate strict compliance." Leyva v. Nat'l
Default Servicing Corp., 127 Nev. 470, 476, 255 P.3d 1275, 1279 (2011); see
Markowitz v. Saxon Special Servicing, 129 Nev., Adv. Op. 69, 310 P.3d
569, 572 (2013) (reaffirming that the FMRs' timing-related provisions
require strict compliance).
"When the language in a provision is clear and unambiguous,
this court gives 'effect to that meaning and will not consider outside
sources beyond that statute." City of Reno v. Citizens for Cold Springs,
126 Nev. 263, 272, 236 P.3d 10, 16 (2010) (quoting Nev. Attorney for
Injured Workers v. Nev. Self-Insurers Ass'n, 126 Nev. 74, 84, 225 P.3d
1265, 1271 (2010)). Because FMR 21(2) is not susceptible to more than
one understanding, we conclude that FMR 21(2) is unambiguous and the
30-day period is unyielding.
Rodriguez argues that this court should read a discovery
component into FMR 21(2). 2 We disagree. This court has never applied a
2 Rodriguez attempts to liken FMR 21(2) to a fraud claim. While
fraud claims contain a discovery component, see NRS 11.190(3)(d) ("[Aln
action for relief on the ground of fraud or mistake. . . shall be deemed to
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discovery rule to any type of petition for judicial review. See Washoe Cty.
v. Otto, 128 Nev. 424, 431, 282 P.3d 719, 725 (2012) ("[S]trict compliance
with the statutory requirements for [judicial] review is a precondition to
jurisdiction. , and [n]oncompliance with the requirements is grounds for
dismissal." (second alteration in original) (internal quotation marks
omitted)); Mikohn Gaming v. Espinosa, 122 Nev. 593, 598, 137 P.3d 1150,
1154 (2006) ("[T]he time limitation [for petitions for judicial review] is
jurisdictional, [so] a district court is divested of jurisdiction if the petition
is not timely filed."); Kame v. Emp't Sec. Dep't, 105 Nev. 22, 24, 769 P.2d
66, 68 (1989) (holding that the filing deadline for a petition for judicial
review cannot be tolled). This pronouncement appears to be generally
accepted. See, e.g., Brazoria Cty., Tex. v. Equal Emp't Opportunity
Comm'n, 391 F.3d 685, 688 (5th Cir. 2004) ("Th[e] period [to file a petition
for review] is jurisdictional and cannot be judicially altered or expanded."
(internal quotation marks omitted)); Burlington N., Inc. v. Nw. Steel &
. . . continued
accrue upon the discovery by the aggrieved party of the facts constituting
the fraud or mistake."), Rodriguez's petition for judicial review is not an
action for relief on the basis of fraud. See Palludan v. Bergin, 78 Nev. 441,
443, 375 P.2d 544, 545 (1962) (noting that NRS 11.190(3)(d) "relates to
actions which have their inception in fraud"). The foundation for
Rodriguez's petition for judicial review is abuse of the foreclosure
mediation process, so NRS 11.190(3)(d) is not applicable.
We take this opportunity to note that we do not sanction any fraud
that occurred at the mediation. Rather, we point out that Rodriguez's
allegations of fraud would have been more appropriately addressed
through filing a fraud complaint, conducting discovery, and receiving a
jury trial. A petition for judicial review is not meant as an avenue to bring
original claims.
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Wire Co., 794 F.2d 1242, 1247 (7th Cir. 1986) (noting the "filing period [for
a petition for judicial review] is jurisdictional and a court has no discretion
to alter or enlarge it"); Horne v. Idaho State Univ., 69 P.3d 120, 123 (Idaho
2003) ("The filing of a petition for judicial review within the time
permitted by statute is jurisdictional."); Nude11 v. Forest Pres. Dist. of Cook
Cty., 799 N.E.2d 260, 267-68 (Ill. 2003) ("[T]he requirement that a
complaint for administrative review be filed within the specified time limit
is jurisdictional."); 2 Am. Jur. 2d Administrative Law § 507 (2014) ("The
filing of a petition for judicial review of an administrative decision within
the time permitted by statute is mandatory and jurisdictional, and the
failure to seek judicial review of an administrative ruling within the time
prescribed by statute makes such an appeal ineffective for any purpose."
(footnotes omitted)); 3 Charles H. Koch, Jr., Administrative Law and
Practice § 8:24 (3d ed. 2010) ("Specific filing deadlines are often created by
individual statutes. Statutory deadline [s] are jurisdictional and cannot be
altered or expanded by the court. . . . Failure to meet these deadlines
constitutes a bar to action filed after that date ")
Further, we note that even if FMR 21(2) contained a discovery
component, Rodriguez still missed the 30-day deadline. Rodriguez
discovered the note's fraudulence on June 18, 2013, but she did not file her
petition for judicial review until July 22, 2013, 34 days later.
Accordingly, for the reasons set forth above, we conclude that
the district court lacked jurisdiction to consider Rodriguez's petition for
judicial review, which was filed more than 20 months after the mediator's
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statement was mailed to the parties, 3 and we reverse the district court's
order. 4
Hardesty
We concur:
t-02}0t_
Parra guirre
Saitta
Gibbons
3 Rodriguezcites to Chemiakin v. Yefimov, 932 F.2d 124, 126 (2d Cir.
1991), and Willy v. Coastal Corp., 915 F.2d 965, 967 (5th Cir. 1990), for
her contention that the district court was permitted to impose sanctions
against Nationstar and BONY without jurisdiction. Chemiakin and Willy
are based on Federal Rule of Civil Procedure 11(c)(1), which provides that
a court may impose a sanction for the failure to certify that a motion or
pleading is not frivolous. The sanctions authorized by FRCP 11(c)(1) are
separate and distinct from the merits of the case, see Willy, 915 F.2d at
967, whereas FMR 21(1)'s sanctions stem directly from the foreclosure
mediation process and are tied to the merits of the petition. See NRS
107.086(6) (stating that a district court can sanction a party if they do not
attend the mediation, did not participate in good faith, or do not bring the
required documents). Because the sanctions imposed by FRCP 11(c)(1)
and FMR 21(1) are dissimilar, Rodriguez's argument lacks merit.
4 Nationstar
also argues that the district court erred in considering
evidence outside the scope of the foreclosure mediation, erred in
determining that Nationstar participated in the foreclosure mediation in
bad faith, and violated Nationstar's due process rights by awarding what
amounted to punitive damages. Based on our determination that the
district court lacked jurisdiction to consider the petition for judicial
review, these arguments are moot.
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