Saturday, January 7, 2012

January 4, 2012, Oral Arguments Davis vs. US Bank Carson City – 10:00 a.m. – Full Court

Davis vs. US Bank,

Docket No. 56306

Carson City – 10:00 a.m. – Full Court

This appeal from a district court order granting a petition for judicial review in a foreclosure mediation action addresses the proof that a lender must provide to show they are a legitimate trustee on a property on which they seek to foreclose. The case began when appellants Andrew and Lauretta Davis defaulted on their home loan and elected to participate in Nevada’s Foreclosure Mediation Program. At the mediation, the purported deed of trust beneficiary, respondent U.S. Bank, sought to establish that it was the owner of appellants' loan. To do so, U.S. Bank produced a document indicating that Mortgage Electronic Registration Systems (“MERS”), acting as a nominee for the couple’s original lender, had assigned both the beneficial interest in the deed of trust and ownership of the corresponding promissory note to U.S. Bank. The mediator, however, concluded that this document was insufficient to establish ownership of the loan as required by the Program and that, consequently, a foreclosure certificate should not be issued. U.S. Bank then filed a petition for judicial review, seeking a determination that it had produced the documents necessary to establish its ownership of the loan. Without addressing the legal effect of the MERS assignment, the district court granted respondent’s petition and ordered that a foreclosure certificate be issued. The couple then filed this appeal, contending that the MERS assignment was insufficient and the district court improperly ordered a foreclosure certificate to be issued. ISSUES: (1) Were the foreclosure mediation proceedings and the resulting judicial review proceedings appropriate forums for appellants to raise arguments regarding the validity of assignments of the deed of trust on their home and issues concerning the use of MERS? (2) Can a district court refuse to issue a letter of certification at the conclusion of judicial review proceedings stemming from foreclosure mediation, even if the district court does not find that the lender participated in the mediation process in bad faith? (3) In the underlying judicial review proceeding arising from a foreclosure mediation, did the district court properly conclude that respondents met their burden of demonstrating that sanctions were not warranted, when the mediator apparently found that respondents failed to bring all necessary documents, including all assignment documents, to the mediation, but U.S. Bank claims that an offer to modify the subject loan was made and was rejected by appellants? (Disclaimer: This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page:

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