The Foreclosure Process In Nevada

What is the foreclosure process in Nevada?  The answer can help a homeowner decide what course of action to take in this stressful situation.

A foreclosing lender in Nevada is entitled to a nonjudicial foreclosure of its Deed of  Trust.  The Deed of Trust secures the payment of the promissory note given by the homeowner to the lender at the time the loan is made.

A nonjudicial foreclosure means that the lender need not file a court case to pursue the foreclosure.  Nevada lenders are entitled to a Trustee’s sale of the property once the mandatory foreclosure time period has passed.

The foreclosure process takes a minimum of 111 days. The process begins with the filing and service of the Notice of Default (NOD).  The NOD is filed with the county real property records.

The NOD starts the 35-day reinstatement period.  During this period the homeowner may reinstate the loan by paying all delinquent payments, Trustee fees, and other expenses.

Starting on the 36th day after the NOD the homeowner can avoid the Trustee’s sale only by paying the entire loan amount together with the associated fees and expenses.

During the final 21 days of the 111 day foreclosure period the Trustee  must publish a notice of sale once each week for three successive weeks.

The actual sale site may be the Trustee’s office or other location.  The lender will bid in the amount of its debt.  This is generally the winning bid.  The lender takes title to the property after the sale.

It is important to note that after the sale the homeowner has no right of redemption for the property.

Watch for future posts about the lender’s right to a deficiency judgment against the homeowner and other foreclosure topics.

The controversial company, MERS, continues to face critical review across the nation.  The Supreme Court of Washington, in particular, recently ruled against MERS in the arena of non-judicial foreclosures.  The Court succinctly stated that, “if MERS does not hold the note, it is not a lawful beneficiary.(

This is so because Washington law defines the “beneficiary” as “the holder of the instrument or document evidencing the obligations secured by the deed of trust.” See RCW 61.24.005(2).  Unfortunately, the Court could not go further to decide what the implications were of such a finding in the case at hand.

Similarly, the Supreme Court in Oregon recently accepted several certified questions regarding MERS, which may further clarify MERS’ role.  The certified questions include: (1) whether MERS may act as a beneficiary; and (2) whether MERS may retain and transfer legal title to a trust deed as nominee for the lender, after a note secured by the trust deed is transferred from the lender to a successor(s) or series.  Additionally, the Court will address the transfer of promissory notes and deeds of trusts.   See



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Black & LoBello on AM720 KDWN

Tune in as Black & LoBello offers free legal advice on a wide range of topicsClick here to listen to the Legal Hour on KDWN AM720 from March 14th, 2012 in which Managing Partner, Tisha Black Chernine, Esq., discusses medical liens on real estate  (2:30), a class action suit affecting military servicemembers suffering from foreclosure (6:45)(19:10), how to check the status of a mortgage (10:00), when banks make different insurance requirements (13:35), refinancing through HARP (21:50)(38:10) and recourse for failed loan modification attempts (31:50).

Please tune in to AM720 KDWN’s “Legal Hour,” every Wednesday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

Black & LoBello on AM720 KDWN

Tune in as Black & LoBello offers free legal advice on a wide range of topicsClick here to listen to the Legal Hour on KDWN AM720 from February 15th, 2012 in which Managing Partner, Tisha Black Chernine, Esq., hosts special guests Assemblyman Jason Frierson for Nevada State Assembly District 8 and Verise V. Campbell, Deputy Director of the State of Nevada’s Residential Foreclosure Mediation Program.  Ms. Chernine, Mr. Frierson and Ms. Campbell discuss Nevada’s Residential Foreclosure Mediation Program and how to take part (5:50), what happens during the process (7:03),  recently passed laws that have helped shape the Mediation Program (8:30), how parts of the vetoed bill AB 300 have been incorporated into and enhanced the Mediation Program (13:50), various FREE resources available to the public and how to use them (18:30), the problems involved with working the system (22:04) and suggestions to homeowners for how to prepare to fight for their homes (33:45).

Please tune in to AM720 KDWN’s “Legal Hour,” everyday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

Black & LoBello on AM720 KDWN

Tune in as Black & LoBello offers free legal advice on a wide range of topicsClick here to listen to the Legal Hour on KDWN AM720 from January 25th, 2012 in which Managing Partner, Tisha Black Chernine, Esq., discusses the impact of walking away from a mortgage vs. negotiating with the banks (4:26), how banks committed fraud during the housing bubble (6:10), how to spot title issues when buying real estate (9:52) (33:36), trouble foreigners have qualifying for lending (14:00) (30:40), laws that protect renters (21:20) and how to speed up the foreclosure process (28:15).

Please tune in to AM720 KDWN’s “Legal Hour,” everyday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

So where does the Multi-State Settlement (“MSS”) leave Nevadans? Essentially, in a slightly better position IF, and only IF, we manage our expectations, pay attention and do our homework. If we do these things we may be able to collect all the money allocated to us, pursue the “banksters” criminally and pursue our individual remedies under state and Federal laws.  To begin you must do the following:

Determine who owned/owns the Note.

It is expected to take somewhere between 60 and 90 days to set up the MSS infrastructure and to commence delivery of the forms associated with the “opt-in” portion of the program. During that time, borrowers who were foreclosed upon, still making payments or are still in default should take measures to determine who owned, claims to own or currently owns their note. They can do this by searching the Fannie Mae and Freddie Mac websites, sending out a Truth-in-Lending letter and contacting the servicer related to their loan. There is generally a service number located on all mortgage invoices. Nevada is not a “show me the note” state. We do require that claimant lenders can produce proof of the right to collect on the Note. However, they are NOT required to produce the actual note. A certified copy thereof will do. Accordingly, you will want to look at who is making those certifications. Check the endorsements on the note, to whom the note is endorsed (this is a technical bearer/order distinction that may be important to a lawyer) and the manner in which the note was endorsed - on the note itself or by a separate paper. All of these things matter and may be changed or altered by the Bank or other party at a later date. Gathering them NOW is important and prudent.

Determine who owned/owns the Deed of Trust.

In addition to researching the note the borrower should determine who is or has foreclosed upon (all that apply) their Deed of Trust. In a series of opinions regarding mediation and transfer of beneficial interest in Notes and Deeds of Trust the Nevada Supreme Court has given very clear instructions on how and what constitutes a proper transfer of the Deed of Trust. Therefore, Borrowers should endeavor to ensure that any claimed creditor pursuing them under a Deed of Trust has the proper documentation to support its claims. Borrowers can research this information by sending a TILA letter, researching their MERS MIN number or looking through public notices and recorded documents. Deeds of Trust should be transferred by assignment. The date of the transfer in relation to other occurrences such as the commencement of the foreclosure process and filings by trustees can have a big impact on whether or not the foreclosure was done properly and by the proper party.

Review the County Recorder’s page and your title chain.

Nevadans should also review the Recorder’s page on their past, present and future properties. Oftentimes, you can collect information regarding transfers, find robo-signers, false dates, false names and botched documents in the public record. Singularly and in the aggregate, these types of facts can add up to leverage in a short sale, decrease in a deficiency or a lawsuit under various Federal and state laws. Moreover, look at the trustee’s deeds to determine if the property has been foreclosed upon. Make sure the listed beneficiary matches those in the chain.   Notably, a recent Massachusetts Supreme Court denied a quiet title claim of a purchaser at a botched foreclosure. Examining these records closely when seeking to purchase a property may avoid title issues in the future.

Review your mortgage statements, credit reports and other records.

There are many Federal and state protections for borrowers who have been subjected to misapplied mortgage payments, false credit reports, force placed insurance, doubled fees (such as BPO charges or “site inspections”) and bogus charges. Look at your statements as suspect. Even small accounting errors can garner decent statutory fines in your favor. You can order an accounting of these things by sending a Qualified Written Request to your lender or servicer. You are also required to have received notice ANYTIME your mortgage was transferred. This notice is to have been provided within 30 days of the transfer.  You may have a fine waiting for you to collect if you did NOT get it, like many other little known statutes.

Read, read, read!

The big secret is that people, including banks, do not read their documents. Before you sign, look for waivers and releases in EVERYTHING and understand what they mean even if you have to see an attorney. Read the small print, large print, things in boxes and regular paragraphs. Determine who the parties are and the obligations of each. Think of the worst case scenario and make sure the document addresses what would happen in that event. Look for the small charges that will be taken from you such as processing charges, documentation charges, copy costs, interest for no reason, penalties that are not penalties, pencil sharpening, etc. and know when they will be allocated. You are your own watch dog. If it looks strange, sounds funny or gives you a “gut-check,” look into it. If you are not certain, find COMPETENT people to assist you based on sound in-person referrals, not a suggestion from a stranger, the internet or a flashing advertisement.

Be diligent.

Pay attention regardless of whether you paid your mortgage. Research the MSS, opt-in if you qualify, know who your lender is and the programs they offer. Investigate your property, examine your title and know your rights. If someone or some company owes you a deadline, make sure you remind them the DAY it is late. Be timely yourself. Follow the directions and keep copies of everything, including whom you talked to, when and if they called you or you called them. This is, in large part, a game of attrition. Know what to expect and ensure that the people you rely on professionally and politically act and vote appropriately.

Finally, manage your expectations.

Steel yourself to the fact that you must make an effort. There are no silver bullets. This is not an era where one can rely on others for good advice, clear direction or protection. Above all else, hold on because this ride is nowhere near over and the rules to this game seem to change every day.

Tisha Black Chernine, Esq.

Did MERS Mess Up Everything?

MERS stands for Mortgage Electronic Registration System and, as a company, represents some of the most difficult issues Nevada must deal with as part of the mortgage crisis.  Normally, when a person gets a loan for a property in Nevada, the loan is secured by a deed of trust (“DOT”). A DOT is a three-party instrument involving a beneficiary, trustor and trustee, which serves the same general purpose as a mortgage.  Regardless of the type of collateral, the DOT is recorded in the county where the property is situated.  Furthermore, anytime a document is recorded with the County Recorder’s Office, money is involved with the national fee average of around $60 per recording.  In regards to the securitization process, whenever the DOT is assigned, those assignments are recorded, as well, to “put the world on notice” about who has a claim to the property.  For instance, if one bank sells a loan to another bank, that loan is then “assigned” to the second bank and is subsequently recorded.  At $60 per assignment, one can start to appreciate the amount of money involved in the securitization process, especially considering how many times many of our mortgage loans were bought and sold after origination.  Thus, recording is integral to property rights in general, as it makes information related to the ownership and status of properties readily available to interested parties.

As a way to cut the cost of recording fees, and deal with the wildly different standards of the various county recording offices, Fannie Mae and Freddie Mac formed a national entity called MERS.  When a DOT is originated between the original lender and borrower, it is still recorded in the county of origin.  However, other important documents (such as assignments and substitutions) are purportedly tracked through MERS to save the individual counties time, money and other resources.  MERS is a private company, which means these transfers are no longer in the public eye and the world is no longer put on notice when changes occur.  The issue for defaulted borrowers arises when the default documents are filed by MERS instead of the appropriate party.  When MERS does not have any interest in the property, it should not have any legal right or “standing” to foreclose on a borrower.  Another issue of debate with MERS is one of agency.  This is so because MERS represents many different lenders and, in many cases, has to transfer loans between those lenders.  The concern then has to focus on which lender MERS truly represents with each loan and the reliability of MERS documentation.

MERS has become such a tricky topic for the legal community that the high courts in New York, California, Maryland, and Maine have handed down conflicting views.  Nevada’s Supreme Court will soon make its own decision and hopefully, serve the nation again as the focal point in this mortgage crisis.

Tisha Black Chernine, Esq.

Black & LoBello On the Radio

Click here to listen to the Legal Hour on KDWN AM720 from November 2nd, 2011 in which Managing Partner, Tisha Black Chernine, Esq., discusses buying foreclosed homes, different types of deeds, notice of default, Assembly Bill 284,  how to spot and clean up problems with a property title and Supreme Court cases that affect foreclosures.

Please tune in to AM720 KDWN’s “Legal Hour,” everyday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

Black & LoBello on the Radio

Click here to listen to the Legal Hour on KDWN AM720 from August 31st, 2011 in which Managing Partner, Tisha Black Chernine, Esq., discusses the Landlord/Tenant parking lot issues, mortgages sold to other lenders, bankruptcy issues, lender violations of consumer privacy rights,  construction defect issues and estate planning to protect against creditors.

Please tune in to AM720 KDWN’s “Legal Hour,” everyday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.


bILLSNevada Supreme Court Justice James W. Hardesty announced that more than 3,400 homeowners who received notices of default have requested mediation in the Nevada Foreclosure Mediation Program as they seek to hold on to their homes.  Since the program first began on July 1, 2009, 372 mediations have been conducted and another 805 mediations have been scheduled.  An additional 1,401 cases have been assigned to mediators, who are working to schedule and hold those mediations within 90 days of the notices of default being recorded.  Justice Hardesty announced that the statistics are current as of November 16, 2009

Important Note to Homeowners:  If you receive a “Notice of Default and Election to Sell,” you must sign the application form and mail it with $200.00 in certified funds within 30 days from the day you receive your notice to seek mediation.  You should receive two copies of the application form.  Sign both and mail them in the supplied envelopes.  Mail one copy of the application and your $200.00 certified funds using the supplied envelope addressed to the Nevada Foreclosure Mediation Program Office.  If you do not receive any application forms or envelopes, contact the Foreclosure Mediation Program

Currently, the Foreclosure Mediation Program has 95 mediators who have been appointed by the Supreme Court.  Those mediators have all been through rigorous training designed to teach the mediators the intricacies of the mortgage loan and foreclosure process and some mediation techniques.  Another 80 mediators have been trained recently and the Supreme Court will select from the list of those who successfully completed the training.

Justice Hardesty provided the following statistics regarding the program:

  • Notices of Default filed:                 29,242 (July through October)
  • Requests for mediation:                3,446
  • Mediations conducted:                  372
  • Mediations scheduled:                   805
  • Cases processed and
    ready for mediations
    to be scheduled                               1,402

(All statistics beginning July 1, 2009, and as of November 16, 2009 unless noted)

Carlos L. McDade, Esq.


Final Nevada Mandatory Foreclosure Rules Adopted

The Nevada Supreme Court has adopted final rules for the new mandatory foreclosure mediation.  These new rules become effective July 31, 2009. The rules include a number of significant changes, as the result of several public hearings conducted by the court.

The mandatory mediation program allows a homeowner receiving a Notice of Default on or after July 1, 2009, to request a mandatory mediation with the lender with the objective of obtaining a loan modification, or to estimate a short sale value the lender may consider.

One of the key questions has been exactly what documents the lender must provide.  The answer is that the lender must provide an original or a certified copy of the following:

       1.    Deed of Trust, and each of its assignments; and

      2.    Mortgage Note, and each of it assignments

A certified copy must be made under oath before a notary public and include a statement that the person certifying the copy is in actual possession of the original of each certified document.

In the event of a lost or destroyed document, the requirements of Nevada law shall apply as detailed in the Nevada Revised Statues. Should this event occur, hours of additional work would be created for all the parties involved.

The lender must provide under confidential cover to the mediator the “evaluative methodology” used in deciding whether a homeowner is eligible for a loan modification.  This will be helpful to the mediator in assisting both parties arrive at a resolution.

The lender must also provide the most current appraisal of the property and shall prepare an estimate of the short sale value that it may be willing to consider. Because “most current” may be practically meaningless in today’s market the burden in effect may be upon the homeowner to provide a truly current appraisal, meaning one made within the last six months.

Until there is a record of accomplishment for the mediation program, we will have no way to predict the effectiveness of this program. The Supreme Court has promulgated rules that give all parties an opportunity to effectively and persuasively present their case.

Carlos L. McDade, Esq.

Nevada Assembly Bill 149

On June 1, 2009 Assembly Bill 149 was enacted which amends existing laws related to foreclosures and sets forth new procedures related to defaults and the exercise of powers pursuant to a trust agreement or deed of trust.

 A trustee under a deed of trust has the power to sell the property to which the deed of trust applies, subject to certain new restrictions.  (NRS 107.080, 107.085)  Pursuant to the new amendments, additional restrictions were added to the trustee’s power of sale with respect to owner-occupied housing. The trustee must provide the grantor of a deed of trust or the person who holds the title of record with the right to request mediation under which such owner of record or the grantor may receive a loan modification.  The grantor or owner of record has thirty (30) days from the receipt of notice to request the mediation. It is the obligation of the grantor or owner of record to request the mediation to request the mediation through the Administrative Office of the Court.

Once mediation is requested, no further action may be taken to exercise the power of sale until the completion of the mediation.  Each mediation must be conducted by a senior justice, judge, hearing master or other designee pursuant to rules adopted by the Nevada Supreme Court. A mediation fee of not more than $85 per hour (not to exceed $400)  may be charged and collected for the mediation.  The mediation fee is to be borne equally by the mediating parties. The Supreme Court of Nevada shall draft and publish the rules related mediation rules and address other concerns that have yet to be clarified.

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