Penrose v. Quality Loan Serv. Corp. ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
HERBERT S. PENROSE, No. 68946
Appellant,
vs.
QUALITY LOAN SERVICE CORPORATION;
NATIONSTAR MORTGAGE, LLC; BANK OF
FILED
ANIERICA, N.A.; SELECT PORTFOLIO APR 1 5 2016
SERVICING, INC.; TINA MARTIN; AND TRACE K. UNDEMAN
CLERK OF SUPREME COURT
U.S. BANK NATIONAL ASSOCIATION, BY
Respondents. DEPUTY CLERK
ORDER AFFIRMING IN PART AND VACATING IN PART
This is an appeal from a district court order granting a motion
to dismiss in a quiet title action. Second Judicial District Court, Washoe
County; Patrick Flanagan, Judge.
Having considered the parties' arguments and the record, we
conclude that the district court properly dismissed appellant's action. See
Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d
670, 672 (2008) (reviewing de novo a district court NRCP 12(b)(5)
dismissal). Specifically, at the time when appellant filed his complaint,
there was no set of facts that appellant could have established under
which Nationstar Mortgage would have been time-barred from foreclosing
on the subject property. See id.; Henry v. Confidence Gold & Silver
Mining Co., 1 Nev. 619, 621-22 (1865) (recognizing that a mortgagee may
seek to nonjudicially foreclose on secured property even if an action on the
secured debt would be time-barred); cf. Miller v. Provost, 33 Cal. Rptr. 2d
288, 289-90 (Ct. App. 1994) (observing that this rule is "based on the
equitable principle that a mortgagor of real property cannot, without
paying his debt, quiet his title against his mortgagee"). Additionally, we
disagree with appellant's argument regarding Nationstar's purported lack
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third or fourth assignment may have been unnecessary to complete
Nationstar's chain of title, we are not persuaded that the existence of a
superfluous assignment somehow destroys Nationstar's chain of title.
Accordingly, we affirm the district court's dismissal of appellant's action.'
We conclude, however, that the district court abused its
discretion when it imposed a filing restriction against appellant without
making "substantive findings as to the frivolous or harassing nature of the
litigant's actions." Jordan v. State ex rel. Dep't of Motor Vehicles & Pub.
Safety, 121 Nev. 44, 61-62, 110 P.3d 30, 43-44 (2005) (quotation omitted).
Accordingly, we vacate the portion of the challenged order that imposed a
filing restriction against appellant.
It is so ORDERED.
Dot f
Douglas
cc: Hon. Patrick Flanagan, District Judge
Herbert S. Penrose
Wright, Finlay & Zak, LLP/Las Vegas
Malcolm Cisneros
McCarthy & Holthus, LLP/Las Vegas
Akerman LLP/Las Vegas
Washoe District Court Clerk
'We have considered appellant's remaining arguments regarding the
dismissal of his action and conclude that those arguments do not warrant
reversal of that portion of the challenged order.
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NEVADA
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