Hathcock v. Bank of America, N.A.

 , 255 P.3d 1275, 1278-79 (2011). If the district court finds
noncompliance, an FMP certificate must not issue. Holt v. Regional
Trustee Services Corp., 127 Nev. , 266 P.3d 602, 607 (2011).
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).
Appellant argues that the beneficiary of the deed of trust in
this matter is Bank of America, but that Bank of America failed to attend
the mediation.' NRS 107.086(4) specifically permits the beneficiary of a
deed of trust to send a representative to the mediation. Here, based on the
documents in the record on appeal, the subject loan was originated by
Linear Financial. The promissory note and deed of trust were assigned to
Wells Fargo, N.A., which in turn assigned the deed of trust "[t]ogether
with the [n]ote" to Bank of America, N.A. Further, the note itself was
endorsed in blank by Wells Fargo. See generally Edelstein v. Bank of New
York Mellon, 128 Nev. , 286 P.3d 249 (2012) (discussing transfers of
promissory notes and deeds of trust). Wells Fargo remained the servicer
of the loan, on behalf of the beneficiary of the deed of trust, Bank of
America. Wells Fargo also retained physical possession of the promissory
note. Because Wells Fargo's assignment of the deed of trust carried with
'We direct the clerk of this court to amend the caption to conform
with this order. Bank of America, N.A. is the beneficiary and holder of the
note in this matter, and Wells Fargo Bank, N.A. is its servicer and
attended the mediation as Bank of America's representative.
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it the promissory note, Wells Fargo's continued possession of the note was
in its capacity as servicer. As an agent, Wells Fargo's physical possession
of the note provided actual possession of the note to its principal, Bank of
America. Id. at , 286 P.3d at 261. Thus, when Wells Fargo attended
the mediation, it did so as a representative of Bank of America, satisfying
NRS 107.086(4)'s attendance requirement.
Appellant also argues that the Broker's Price Opinion (BPO)
provided in lieu of an appraisal failed to meet the technical requirements
set forth by FMR 11(7) (2011) (amended and renumbered FMR 11(11),
effective January 1, 2013). While this court adopted a strict compliance
standard for the production of core or essential documents related to the
deed of trust and promissory note enumerated in NRS 107.086(4), see
Pasillas, 127 Nev. at , 255 P.3d at 1285; Leyva, 127 Nev. at , 255
P.3d at 1277, 1279, we did not establish strict compliance for the
individual contents of a BP0 and other collateral documents required by
the FMR. Here, Wells Fargo produced a BP0 that substantially complied
with the FMR and NRS 645.2515 (setting forth requirements for a BPO),
and appellant has not demonstrated that any technical deficiencies had
any prejudicial effect. Indeed, in the district court, appellant conceded
that he was not challenging the value reflected in the BPO. Consequently,
the district court properly concluded that the BP0 was sufficient to satisfy
the FMR requirements.
Appellant's final argument is that Wells Fargo's refusal to
offer a loan modification demonstrated a lack of authority and bad faith
participation. The district court found that each party to the mediation
was dissatisfied with the document production, and that this resulted in a
lack of results. Having considered the record and the arguments of the
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parties, we perceive no error in the district court's determination that
Wells Fargo's refusals to offer a modification was an appropriate business
decision, due to appellant's failure to provide certain financial documents.
Thus, unlike Pasillas where that beneficiary's representative needed
additional authority to consider a modification, here, Wells Fargo, on
behalf of Bank of America, had sufficient authority, and the district court
properly found that the refusal to modify was not a manifestation of bad
faith. See Pasillas, 127 Nev. at , 255 P.3d at 1286. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Gibbons
J.
Dougtas
J.
Saitta
cc: Eighth Judicial District Court, Department 14
James S. Kent
Tiffany & Bosco, P.A.
Eighth District Court Clerk
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