Reyes-Marrufo v. Bac Home Loans ( 2013 )

 findings are not clearly erroneous and are supported by substantial
evidence. Cnty. of Clark v. Sun State Props., 119 Nev. 329, 334, 72 P.3d
954, 957 (2003).
BAC has the burden to prove that it strictly complied with the
requirements of NRS 107.086(4), see Leyva, 127 Nev. at , 255 P.3d at
1279, but nothing in the record demonstrates that Reyes-Marrufo rebutted
BAC's contention that it presented the original note at the mediation.
While Reyes-Marrufo argues that he never personally received a certified
copy of the original note, he informed the district court that he could not
say for sure that an original copy was not brought to the mediation, and
the mediator did not check the box indicating that BAC failed to bring the
required original documentation. Accordingly, we conclude that the
district court did not abuse its discretion in determining that BAC
produced a certified copy of the original note at the mediation as required
by NRS 107.086(4).
Furthermore, there is no indication in the record that Reyes-
Marrufo presented any evidence to refute BAC's contention that the
reason a loan modification was not offered was because modification was
not feasible given Reyes-Marrufo's negative monthly income. In fact, his
own counsel stated in the district court proceedings that even making a
modified payment would be a "struggle" for Reyes-Marrufo. Similarly,
Reyes-Marrufo failed to sufficiently prove that BAC's representative
lacked authority to negotiate a loan modification had Reyes-Marrufo
qualified for one. First, the mediator did not check the boxes indicating
that BAC participated in bad faith or did not have a representative with
authority present. Second, BAC argues, as it did in the district court, that
Reyes-Marrufo was unwilling to discuss a short sale during mediation and
SUPREME COURT
OF
NEVADA
2
(0) 1947A
that a telephone number was given to him in case he changed his mind.
Although the district court heard conflicting testimony as to why a
telephone number was given to Reyes-Marrufo to call instead of discussing
a short-sale option with him at the time of mediation, it was free to weigh
this evidence in favor of BAC and find that the evidence presented did not
support a finding of bad faith on the part of BAC or that BAC's
representative lacked authority.
Because we conclude that sufficient evidence supports the
district court's determination that BAC brought the required documents,
participated in good faith, and had a representative present with the
authority to negotiate as required by NRS 107.086(4) and (5), we conclude
that the district court's determination was not clearly erroneous. See
Cnty. of Clark, 119 Nev. at 334, 72 P.3d at 957 (stating that this court will
not overturn a district court's factual findings if such findings are not
clearly erroneous and are supported by substantial evidence); Bacher v.
State Eng'r, 122 Nev. 1110, 1121, 146 P.3d 793, 800 (2006) (holding that it
is not the function of this court to "examine witness credibility or reweigh
the evidence").
SUPREME COURT
OF
NEVADA
(0) 1947A
Accordingly, we ORDER the judgment of the district court
AFFIRMED.
C.J.
J.
Hardesty
Parraguirre
J.
Saitta
cc: Hon. Donald M. Mosley, District Judge
Eighth Judicial District Court Dept. 14
Crosby & Fox, LLC
McCarthy & Holthus, LLP/Las Vegas
Eighth District Court Clerk
4