Maguire v. Mtc Financial ( 2013 )


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  • Respondents moved the district court to dismiss. The district court denied
    appellant's motion for summary judgment, and granted respondents'
    motions to dismiss, concluding, among other things, that respondent
    Verise Campbell, Deputy Director of the Nevada Foreclosure Mediation
    Program, was immune from civil liability and that appellant's claims
    against respondent MTC Financial Inc., were barred by claim preclusion
    in light of the earlier unsuccessful quiet title action involving the previous
    owner. This court reviews the district court's dismissal of a complaint de
    novo, accepting appellant's factual allegations as true and drawing all
    factual conclusions in favor of appellants.    Buzz Stew, LLC v. City of N.
    Las Vegas, 
    124 Nev. 224
    , 227-28, 
    181 P.3d 670
    , 672 (2008).
    Appellant first argues that the underlying case should have
    been stayed pending resolution of her Chapter 7 bankruptcy and that the
    order that ultimately resulted in the dismissal of her action was void ab
    initio because it was entered after she notified the court of the pending
    Chapter 7 bankruptcy petition. The automatic bankruptcy stay applies to
    judicial action against a debtor, not to actions by a debtor. 
    11 U.S.C. § 362
    (a)(1) (2008); White v. City of Santee (In re White),   
    186 B.R. 700
    , 703-04
    (B.A.P. 9th Cir. 1995); Edwards v. Ghandour, 
    123 Nev. 105
    , 111, 
    159 P.3d 1086
    , 1090 (2007), abrogated on other grounds by Five Star Capital Corp.
    v. Ruby, 
    124 Nev. 1048
    , 1053-54, 
    194 P.3d 709
    , 712-13 (2008). Here,
    appellant initiated the action against respondents and the bankruptcy
    stay provision does not apply.
    Appellant next argues that a default judgment quieting title in
    the previous owner of the property was effective at the time when
    appellant acquired the property, rendering her claim to the property
    superior to all others. The default judgment in that case was set aside
    under NRCP 60(b)(1), however, and we affirmed the subsequent award of
    summary judgment against the previous owner of the property and in
    favor of the holder of the promissory note and the holder of the deed of
    trust. See Thomas v. BAG Home Loans Servicing,        LP, Docket No. 56587
    (Order of Affirmance, December 20, 2011). "When a judgment has been
    set aside pursuant to Rule 60(b), the case stands as if that judgment had
    never occurred in the first place."   Ditto v. McCurdy, 
    510 F.3d 1070
    , 1077
    (9th Cir. 2007). Thus, in this case, we cannot discern any impediment
    generated by the set-aside default judgment to a notice of default being
    recorded against the property, and appellant makes no other cogent
    argument regarding why her interest in the property is not subject to the
    deed of trust at issue. Similarly, after the Foreclosure Mediation Program
    (FMP) issued the foreclosure certificate, a notice of sale could be recorded.
    Therefore, having considered the parties' arguments and the appendices,
    we conclude that the district court properly granted MTC Financial Inc.'s
    motion to dismiss.
    Concerning respondent Verise Campbell, appellant cancelled
    her request for mediation believing that she had superior title to the
    property by virtue of the vacated default judgment. Because appellant
    cancelled mediation, the FMP issued a foreclosure certificate. NRS
    107.086(3), (6); see FMR 8(4). The FMP does not have an independent
    duty to undertake an analysis of the merits of appellant's claims regarding
    the vacated default judgment. Issuing the foreclosure certificate was
    required by NRS 107.086(3) and FMR 8(4) once appellant cancelled
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    mediation. Therefore, we conclude that the district court properly granted
    Verise Campbell's motion to dismiss.
    Accordingly, we
    ORDER the judgment of the district court AFFIRMED. 1
    J.
    cc: Hon. Patrick Flanagan, District Judge
    Terry J. Thomas
    Robison Belaustegui Sharp & Low
    Richard J. Reynolds
    Fennemore Craig Jones Vargas/Las Vegas
    Washoe District Court Clerk
    'Appellant argues for the first time on appeal that she was denied
    the opportunity to file a peremptory challenge against Judge Flanagan.
    Because appellant did not raise this concern at any point in the district
    court, it is not proper for consideration on appeal. Old Aztec Mine, Inc. v.
    Brown, 
    97 Nev. 49
    , 52, 
    623 P.2d 981
    , 983 (1981) ("A point not urged in the
    trial court, unless it goes to the jurisdiction of that court, is deemed to
    have been waived and will not be considered on appeal."). We decline to
    address appellant's other arguments on appeal because she failed to
    provide any cogent argument or relevant citations to authority in her
    appellate briefs. Edwards v. Emperor's Garden Rest., 
    122 Nev. 317
    , 330
    n.38, 
    130 P.3d 1280
    , 1288 n.38 (2006).
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