Dempsey v. Bank of America, N.A. ( 2013 )

 On appeal, appellant argues that the district court's
conclusion that the petition was untimely was incorrect, and requested
that the matter be remanded for an evidentiary hearing on the merits of
the petition. Respondents argue that the district court's order could be
interpreted as meaning that no substantive petition with argument was
ever timely filed and is consequently correct, or in the alternative, that the
record before the district court would support denying the petition for
judicial review.
This court reviews a district court's factual determinations
deferentially, Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704
(2009) (explaining that a "district court's factual findings. . . are given
deference and will be upheld if not clearly erroneous and if supported by
substantial evidence"), and its legal determinations de novo. Clark
County v. Sun State Properties, 119 Nev. 329, 334, 72 P.3d 954, 957
(2003). Absent factual or legal error, the choice of sanction in an FMP
judicial review proceeding is committed to the sound discretion of the
district court. Pasillas v. HSBC Bank USA, 127 Nev. 255 P.3d
1281, 1287 (2011). To obtain an FMP certificate, a deed of trust
beneficiary must: (1) attend the mediation; (2) participate in good faith; (3)
bring the required documents; and (4) if attending through a
representative, have a person present with authority to modify the loan or
access to such a person. NRS 107.086(4), (5); Leyva v. National Default
Servicing Corp., 127 Nev. , 255 P.3d 1275, 1278-79 (2011).
Having reviewed record on appeal, and considering the
arguments of the parties, we conclude that the district court properly
denied the petition for judicial review. Although the district court order
incorrectly stated that no petition was timely filed, the petition that
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appellant filed failed to assert any factual allegations concerning
noncompliance or bad faith by respondents, and we conclude that the
district court acted within its discretion in denying appellant's request for
additional time to amend his petition. Cf. Kantor v. Kantor, 116 Nev. 886,
891, 8 P.3d 825, 828 (holding that after a responsive pleading is filed, the
district court has the discretion to permit or deny a complaint's
amendment, and undue delay is a valid reason to deny amendment). In
light of the lack of argument in the petition and the mediator's statement
that indicated full compliance by respondents, we conclude that the
district court had substantial evidence before it to deny the petition for
judicial review after conducting a de novo review.' See FMR 21 (5) (2011)
(amended and renumbered FMR 21 (6) (effective January 1, 2013)). Thus,
we conclude that the district court reached the proper result in declining
to order an evidentiary hearing, see FMR 21(1) (2011) (amended and
renumbered FMR 21(2) (stating that district court shall conduct hearings
to the extent it deems necessary)), denying the petition, and in ordering an
FMP certificate to issue. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
_ —
Douglas Sitta
'There is likewise nothing in the record below that would indicate
any failure by respondents that would preclude the issuance of an FMP
certificate.
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cc: Eighth Judicial District Court, Department 14
Cogburn Law Offices
Smith Larsen & Wixom
Eighth District Court Clerk
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