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American College of Mortgage Attorneys — Partner with the Best®

Formed in 1974, the American College of Mortgage Attorneys (ACMA) is comprised of over 500 lawyers in North America who are experts in mortgage law.

United States

Nevada

Deed of Trust Preferred. While a mortgage is authorized by statute, See Nevada Revised Statutes (“NRS”) Chapter 106, the deed of trust is the preferred and most commonly used security instrument.<a href="#_ftn12" name="_ftnref12">[12]</a> Deeds of trust encumbering commercial property most often include an express assignment of rents (although under Nevada's Uniform Assignment of Rents Act, discussed below, a mortgage or deed of trust automatically includes an assignment of rents), a security agreement, and is designated a fixture filing. Deeds of trust are generally governed by NRS Chapter 107, though certain provisions applicable to deeds of trust are found in NRS Chapter 106. See, e.g., NRS 106.210 (recording of assignments), 106.220 (recording of subordinations), 106.240 (extinguishment of lien), and NRS 106.300 - 106.400 (future advances). Pursuant to NRS 0.037, “Except as used in chapter 106 of NRS and unless the context otherwise requires, &lsquo;mortgage' includes a deed of trust.” The two terms, as well as the term “security instrument,” are used herein interchangeably unless the text states otherwise. Forms. Title company “short form” deeds of trust, in common use, incorporate covenants recorded in “master form” deeds of trust recorded in all Nevada counties, a practice authorized by NRS 111.353. Fannie Mae and Freddie Mac have standard Nevada security instruments. Statutory Covenants. NRS 107.030 permits a deed of trust to adopt by reference statutory covenants. The covenants include a description of the basic nonjudicial foreclosure process as well as provisions regarding maintaining and insuring the property, replacing the trustee, and reconveying the deed of trust upon satisfaction of the secured obligation. NRS 106.025 provides for statutory mortgage covenants. Assignment of Rents. Nevada has enacted the Uniform Assignment of Rents Act (UARA), NRS Chapter 107A, discussed below under RECEIVERSHIP. Pursuant to UARA, an enforceable “security instrument” in real property (NRS 107A.160) creates an assignment of rents arising from the real property described in the security instrument, unless the security instrument provides otherwise, and an assignment of rents creates a presently effective security interest in all accrued and unaccrued “rents” (NRS 107A.140) arising from the real property described in the document creating the assignment, regardless of the form of the document. See NRS 107A.230.

SECURITY INSTRUMENT USED

Acknowledgment. A deed of trust must be acknowledged or proved. See NRS, 111.105, see also NRS 111.240. Nevada has adopted the Uniform Law on Notarial Acts, specifying who may perform a “notarial act” and the form of acknowledgment. See NRS 240.161 - 240.169. The forms of acknowledgment are set forth in NRS 240.040, 240.1635 240.1655, 240.166, and 240.1665. An acknowledgment performed in another jurisdiction will be acceptable if it is in a form prescribed by the laws or regulations applicable in the place in which the notarial act was performed. See NRS 240.1655(3)(c). Nevada has adopted the Electronic Notarization Enabling Act. See NRS 240.181 - 240.206. Recording Formalities. A deed of trust must contain the grantee's mailing address, or if there is no grantee, the address of the person requesting the recording. See NRS 111.312. This provision does not state whether the grantee is considered to be the trustee or the beneficiary. The top left corner of the first page of the deed of trust must state the county assessor's parcel number (APN) assigned to the property to be encumbered. The APN must comply with the current system for numbering parcels used by the county assessor's office. See NRS 111.312(1)(b). The APN is not a complete legal description. See NRS 111.312(4). The county recorder shall not record any deed, including, without limitation, a grant, bargain and sale deed (statutory special warranty deed); a quitclaim deed; a warranty deed; or a trustee's deed upon sale, unless the document being recorded contains the name and address of the person to whom a statement of the taxes assessed on the real property is to be mailed. See NRS 111.312(3). A tax address is not required for a deed of trust. Legal descriptions are most often by lot and block in a recorded final subdivision map or recorded parcel map. If the legal description to be recorded is by metes and bounds, the description must include the name and mailing address of the person who prepared the description, unless the same metes and bounds legal description has been used in a previously recorded document, in which case a person may include the information necessary to identify the previously recorded document. See NRS 111.312(5) and (6). NRS 247.110 requires that any document (except a map, certificate or affidavit of death, military discharge, document regarding taxes issued by the Internal Revenue Service of the United States Department of the Treasury, or a Nevada Secretary of State prescribed form of UCC initial financing statement or written record) submitted for recording must comply with the following formatting requirements: 8&frac12;” by 11”, white, 20-pound paper, Have a margin of 1” on the sides and at the bottom of each page, Have a space of 3” x 3” at the upper right corner of the first page and have a margin of 1” at the top of each succeeding page, Not be on sheets of paper that are bound together on the sides, top, or bottom, Be printed on only 1 side of each page, Not have any document or other material physically attached to the paper to be recorded, and Not contain colored markings or highlighting, any stamp or seal that overlaps with any text or signature (except in the case of an engineer or surveyor's stamp or seal), not have text smaller than 10-point “Times New Roman”, more than 9 lines of text per vertical inch, or text in any ink color other than black. County Recorders. A county recorder may deny a request to record a document if, within 2 judicial days after presentation of the document, the recorder determines the document is unauthorized, falsified or otherwise may not be lawfully recorded. If a recorder fails to make such a determination within the specified period, the recorder shall record the document as soon as practicable, unless otherwise ordered by a court. See NRS 247.145(2). NRS 247.145 specifies further procedures should a dispute arise regarding the recordability of documents. A county recorder may record a document that is not in compliance with NRS 247.110, but shall not charge an additional fee for its recordation. See NRS 247.110(5). A document is recorded when the information required pursuant to NRS 247.110 is placed on the document and is entered in the record of the county recorder. See NRS 247.110(6). Electronic Recording. County recorders have the option to accept electronic documents for recordation. See NRS 247.115, NRS 111.366-NRS 111.3697 (the Uniform Real Property Electronic Recording Act). NRS 111.369 requires the Secretary of State to promulgate regulations to implement the Uniform Real Property Electronic Recording Act; as of July 14, 2023, no such regulations have been promulgated. Accordingly, county recorders accept documents electronically, but not pursuant to Secretary of State regulations. County recorders that accept electronic documents must also continue to accept paper documents. NRS 247.117 authorizes the submission of a certified paper copy of an electronic document for recording to a county recorder who has elected to receive and record electronic documents, also prescribing the form of certificate sufficient for certifying that a paper copy is a true and correct copy of an electronic document. Penalties. NRS 205.395 imposes criminal and civil penalties on certain persons who cause a document to be recorded when that person knows or has reason to know that the document is forged or groundless, contains a material misstatement or false claim or is otherwise invalid. If a county recorder denies recordation of a document pursuant to NRS 247.145(2), a person who resubmits the document for recordation without modification required to permit a lawful recording or without a court order pursuant to NRS 247.145(4) is a guilty of a misdemeanor, unless a greater penalty is provided by NRS 239.330.

RECORDING REQUIREMENTS

Few Nevada statutes prohibit contractual waivers of certain rights. Most significantly, it is against public policy for any document relating to the sale of real property to contain any provision whereby a mortgagor, a trustor under a deed of trust, or a guarantor waives any right secured to such person. See NRS 40.453. Jury Waivers and Waivers in General. In Lowe Enterprises Residential Partners, L.P. v. District Court, 118 Nev. 92, 40 P.3d 405 (2002) the Nevada Supreme Court held that NRS 40.453 was enacted to protect the rights created by Nevada's anti-deficiency legislation, not to protect the right to a jury trial. Lowe contains the following language: Contractual jury trial waivers are enforceable when they are entered into knowingly, voluntarily and intentionally. Furthermore, in accordance with Nevada's public policy favoring the enforceability of contracts, we conclude that contractual jury trial waivers are presumptively valid unless the challenging party can demonstrate that the waiver was not entered into knowingly, voluntarily or intentionally. &hellip;The factors to consider in determining whether a contractual waiver of the right to jury trial was entered into knowingly and voluntarily include: (1) the parties' negotiations concerning the waiver provision, if any, (2) the conspicuousness of the provision, (3) the relative bargaining power of the parties. 40 P.3d 410-411 See, also, the discussion below on NRS 40.495 under Guaranty, Statutes To Be Waived and the discussion below on NRS 108.2453 under LABOR AND MATERIALMEN'S LIEN CLAIMS - PRIORITY ISSUES, WAIVERS

STATUTES TO BE WAIVED

<ol>
 <li>Nevada has a “one action” rule. See NRS 40.430 and One Action under FORECLOSURE BRIEF DESCRIPTION OF PROCEDURE, below.</li>
</ol>

UNUSUAL TREATMENT OF STANDARD PROVISIONS

2 &nbsp;&nbsp; Nevada law limits and in some cases precludes deficiency judgments. See FORECLOSURE DEFICIENCIES and GUARANTY, DEFICIENCIES below. <ol start="3">
 <li>Despite contractual provisions to the contrary, a waiver may be implied from conduct that evidences an intention to waive a right and by conduct that is inconsistent with any other intention but to waive the right. See Nevada Nat'l Bank v. Huff, 94 Nev. 506, 582 P.2d 364 (1978).</li>
 <li>Even where parties include an express provision in a contract that modifications must be in writing, a later oral modification is provable and may effect a modification. See Silver Dollar Club v. Cosgriff Neon Co., 80 Nev. 108, 389 P.2d 923 (1964).</li>
 <li>A beneficiary's right to foreclose for trivial default maybe limited. See Manke v. Prautsch, 81 Nev. 261, 401 P.2d 680 (1965); Lakeside Inn, Inc. v. Bank of the West, 2015 WL 133138 (D). Nev 2015)</li>
 <li>Broadly stated waivers may not be effective. See Rainbow Blvd. v. Nevada Dept. of Highways, 96 Nev. 637, 615 P.2d 931 (1980).</li>
 <li>A deed of trust beneficiary is entitled to enforce a trustor's assignment of a condemnation award to the extent the beneficiary can show its security has been impaired, by demonstrating that the margin of security, or ratio of the property securing the debt to the amount of the debt remaining, is decreased by the condemnation. See First Western Fin. Corp. v. Vegas Continental, 100 Nev. 710, 692 P.2d 1279 (1984).</li>
 <li>Although a lender may establish an impound account for the payment of taxes or insurance or homeowner assessments in connection with a loan secured by real property, certain restrictions apply to the collection and administration of impounds for loans secured by a single-family residence or a unit in a common-interest community used exclusively for residential use. See NRS 100.091 and NRS 116.3116(7).</li>
 <li>NRS 107.200 - 107.311 require the beneficiary of a deed of trust made on or after October 1, 1995 to furnish a statement containing the unpaid balance of the debt secured by the deed of trust and certain other information or payoff information within 21 days after a request from the grantor of the deed of trust, the holder of a subordinate lien on the property, or a title insurer. A willful failure to comply with a proper request can result in a civil penalty and actual damages. The beneficiary, other than the beneficiary of a deed of trust insured by the FHA or VA, is entitled to charge a fee of not more than $60 for such a statement.</li>
 <li>“[A]n agreement which includes a provision which requires a person to submit to arbitration any dispute arising between the parties to the agreement must include specific authorization for the provision which indicates that the person has affirmatively agreed to the provision.” NRS 597.995. If applicable, the Federal Arbitration Act (9 U.S.C. &sect; 2) preempts this requirement. MMAWC, LLC v. Zion Wood Obi Wan Tr., 135 Nev.275, 448 P. 3d 568 (2019).</li>
</ol> SECURING FUTURE ADVANCES AND ADDITIONAL ADVANCES TO PROTECT THE COLLATERAL, INCLUDING PAYMENT OF TAXES AND INSURANCE: Common Law. Under common law, if the deed of trust secures future advances, the priority of such advances that are obligatory date from the deed of trust's date of recordation. See Chartz v, Cardelli, 52 Nev. 1, 279 P. 761 (1929); In re: Resort at Summerlin, 122 Nev. 177, 127 P.3d 1076 (2006), citing Southern Trust v. K&B Door Co., 104 Nev. 564, 763 P.2d 353 (1988). In Southern Trust, the Court upheld the common law principle that if a deed of trust clearly states that any advance made by a beneficiary to protect its security will be deemed a mandatory or obligatory advance, the advance will relate back to the priority of the initial deed of trust. See Southern Trust, 104 Nev. at 567, 763 P.2d at 355. Future Advances, Statute. Parties may elect to be governed by the safe harbor provisions of NRS 106.300 - 106.400 (the “future advances statute”) if the deed of trust expressly so provides. See NRS 106.350; In re: Resort at Summerlin, 122 Nev. 177, 183, 127 P.3d 1076, 1080 (2006). Otherwise the common law governing future advances applies. If the parties “opt into” the future advances statute and the deed of trust is made on or after October&nbsp;1, 2011, the deed of trust, mortgage or other instrument encumbering real property as security for the repayment of a debt, the instrument or amendment to the instrument is enforceable only if the instrument is recorded. See NRS 106.360. If the parties elect to be governed by the future advances statute, the borrower may provide notice to the lender that the borrower elects to terminate the operation of the security instrument as security for future advances of principal made after the date the notice is received by the lender. While the priority of any lien for any future advance of principal made prior to receipt of the notice of termination is unaffected, future advances of principal made after a receipt of notice of termination are not secured by the deed of trust. “Principal” does not include interest, advances made to protect security, or advances which would not have been made if the borrowers and all other parties to the loan agreement complied with its terms. See NRS 106.345, 106.380-106.400. Termination of Equity Lines of Credit. NRS 106.500 requires that: (1) upon receipt of a written request from an authorized person to terminate a secured equity line of credit, the lender shall terminate the borrower's right to obtain advances, apply all sums subsequently paid to the satisfaction of the equity line of credit and other secured amounts; and, when the balance of all outstanding sums secured by the related security instrument becomes zero, record a reconveyance or certificate of discharge of the security instrument; (2) upon receipt from an authorized person to suspend and close an equity line of credit, the lender shall suspend the equity line of credit for a minimum of 30 days if the instruction is in compliance with the statutory form; and (3) upon receipt of an instruction from a borrower to suspend and close an equity line of credit and payment in accordance with the payoff demand statement, the lender shall close the equity line of credit and release or reconvey the property securing the equity line of credit. An “authorized person” includes an escrow agent. The term “equity line of credit” is not defined.

DEFICIENCIES

Tenant Improvements. See LABOR AND MATERIALMEN'S LIEN CLAIMS - PRIORITY ISSUES. LESSEE'S WORKS OF IMPROVEMENT/NOTICE OF NONRESPONSIBILITY BELOW. Equitable Subrogation. Under certain circumstances, a junior lender may step into the senior lender's shoes by paying the debt owed to the senior lender pursuant to the doctrine of equitable subrogation set forth in Restatement (Third) of Prop.: Mortgages &sect;&nbsp;7.6(a)(4) (1997). See Houston v. Bank of America, 119 Nev. 485, 78 P.3d 71, 74 (2003). Equitable subrogation may not be used, however, to defeat an intervening mechanic's lien. Wilmington Trust FSB v. A1 Concrete Cutting & Demolition, LLC (In re Fountainebleu Las Vegas Holdings, LLC), 128 Nev. 556, 289 P.3d 1199 (2012). Subordination Agreements. A subordination instrument made on or after October 1, 2011, is not enforceable under NRS Chapters 106 or 107 until it is recorded. See NRS 106.220. Apco Construction v. District Court (In re Manhattan West Mechanic's Lien Litigation), 131 Nev. 702, 359 P.3d 125, (2015) considered a subordination agreement between a first mortgage lender and a junior mortgage lender made after mechanics' liens had been recorded. The case distinguishes between contractual partial subordination and complete subordination. The court held that, absent a clear intent to the contrary, the lenders had effected a partial subordination in which the priority of liens was contractually rearranged without affecting the position of existing mechanic's liens. The court further held that NRS 108.225, governing the priority of mechanic's liens, “does not prohibit negotiations between lienholders with priority over mechanics' liens and those with lesser priority in situations where the mechanic's liens will be left in exactly the same position as if the subordination agreement had never occurred.” Assessment Lien Super-Priority. Nevada has enacted the Uniform Common Interest Community Act (NRS Chapter 116) governing a “common-interest community” (NRS 116.021) (i.e., condominiums, cooperatives and planned communities) and its respective “association” (NRS 116.011). The law provides that a portion of an association's lien for unpaid assessments in a common-interest community has a priority senior to the first mortgage on the unit, and a foreclosure of the assessment lien. See NRS 116.3116; SFR Investments Pool&nbsp;1, LLC v. U.S. Bank N.A., 130 Nev. 742, 334 P.3d 408 (2014). Pursuant to NRS 116.31162 and 116.31166, a secured lender holds certain rights to notice and cure relative to the association's “super-priority” lien, as well as an additional 60 days after a non-judicial association lien foreclosure sale to redeem the unit from the foreclosure by paying the purchase price at sale with interest at a rate of 1% per month and reimbursing certain protective advances. As amended in 2015, NRS 116.31164(5) requires the person conducting an assessment lien foreclosure sale to “state to the persons assembled for the sale whether or not the holder of the [first deed of trust] has satisfied the amount of the association's lien that is prior to that first security interest” pursuant NRS 116.3116(3). Prior to this amendment an association had no duty to disclose whether tender of the superpriority portion of the lien had been made. Saticoy Bay, LLC v. Thornburg Mortg. Sec. Tr. 2007-3,&nbsp; 138 Nev. __, 510 P. 3d 139 (2022). See also Registration under LENDER QUALIFICATION AND/OR LICENSING below. The following paragraphs address a number of court decisions involving the Nevada association super-priority lien. (1) Constitutionality of Nonjudicial Foreclosures: Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo Home Mortgage, 133 Nev. 28, 388 P.3d 970 (2017) rejected mortgage lender Wells Fargo's claims that an association foreclosure under pre-2015 law violated Due Process and Takings Clauses. An association is not a state actor. (Charmicor v. Deaner, 572 F.2d 694 (9th Cir.,1978) reached a similar conclusion regarding Nevada non-judicial trustee's sales.) The court cited Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) for the holding that Due Process “was not implicated because the statute did not compel such a sale and the state was not otherwise involved in such a sale.” Saticoy declined to follow Bourne Valley Court Trust v. Wells Fargo Bank, N.A., 832 F.3d 1154 (9th Cir. 2016), which rejected both Charmicor and Flagg Brothers, holding the association's “ability to extinguish Wells Fargo's interest in the Property arose directly and exclusively from the [pre-2015] Statute.” 832 F.3d at 1160. Current law requires an association to notify holders of recorded security interests of an association foreclosure. See NRS 116.31163. Saticoy also held “extinguishment of a subordinate deed of trust through an association's nonjudicial foreclosure does not violate the Takings Clauses....” When Wells Fargo acquired its security interest it “was on notice that by operation of the statute, the [earlier recorded] CC&Rs might entitle the association to a super priority lien at some future date,” citing SFR Investments Pool 1 v. U.S. Bank, N.A., 130 Nev. 742, 334 P. 3d 408 (2014). The court noted, “Wells Fargo does not cite, and we have not found, a single case that has held a state may not statutorily alter the priority of liens unless it compensates subsequent lienholders whose interest are diminished or destroyed as a result.” (2) Tender. In Bank of America, N.A., et al. v. Thomas Jessup, LLC Series VII, et al., 135 Nev. 42, 435 P. 3d 1217 (2019), the first mortgagee (bank) offered to pay the association the amount “whatever it is” to fully discharge the association's super priority lien. The association's agent, believing the amount of the super priority lien could not be established until after the bank foreclosed its first mortgage, declined to provide the bank with a payoff. The Nevada Supreme Court held that, while the lender's offer to pay was an insufficient tender, since a tender must be more than a mere offer to pay, tender was excused as a result of the association's unwillingness to accept any payment. As stated by the court, “we conclude that [the bank's] offer to pay the superpriority portion of [the association's] lien, combined with [the association's agent's] rejection of that offer, operated to cure the default as to that portion of the lien, such that the ensuing foreclosure sale [by the association] did not extinguish the first deed of trust.” 435 P. 3d at 1220. (3) Federal Preemption. Nationstar Mortgage, LLC v. SFR Investment Pool 1, LLC, 133 Nev. 247, 396 P.3d 754 (2017) concluded that the servicer of a loan owned by a lender under Federal Housing Finance Agency (FHFA) conservatorship has standing to assert 12 U.S.C. &sect; 4617(j)(3) (the Federal Foreclosure Bar), prohibiting foreclosure on assets of the regulated entities without the consent of FHFA. The case was remanded to determine whether the loan was owned by a regulated entity. Subsequently, Saticoy Bay LLC Series 9641 Christine v. Federal National Mortgage Association, 134 Nev. 270, 417 P.3d 363 (2018) determined that (i) Fannie Mae, as an FHFA regulated entity, has standing to assert the Federal Foreclosure Bar and (ii) the Federal Foreclosure Bar preempts NRS 116.3116. Accordingly, an association foreclosure of a super-priority assessment lien cannot extinguish a regulated entity's property interest while under the FHFA's conservatorship unless the FHFA consents. See also Nationstar Mortgage, LLC v. Saticoy Bay LLC, 996 F.3d 950 (9th Cir., 2021). On the other hand, HUD insurance does not create a federally protected property interest and an association foreclosure under Nevada law is not preempted by federal law in the case of a mortgage loan insured by HUD. See Freedom Mortgage Corp. v. Las Vegas Development Group, LLC, 106 F. Supp. 3d 1174 (D. Nev., 2015) See also Munoz v. Branch Banking & Trust Co., 131 Nev. 185, 348 P.3d 689 (2015) under FORECLOSURE, DEFICIENCIES, FDIC Preemption, below. (4) Setting Aside Association Foreclosure. In Shadow Wood Homeowners Ass'n, Inc. v. N.Y. Cmty. Bancorp, Inc., 132 Nev. 49, 366 P.3d 1105 (2016), a mortgage lender sought a declaratory judgment that title acquired through a mortgage foreclosure was superior to title acquired through an association foreclosure. The purchaser at the association foreclosure sale asserted that NRS 116.31166, making certain recitals in the foreclosure sale deed conclusive, precluded a collateral attack on the sale. The Nevada Supreme Court reaffirmed that an association nonjudicial foreclosure sale “may be set aside, just as a power of sale foreclosure sale may be set aside, upon a showing of grossly inadequate price plus &lsquo;fraud, unfairness, or oppression,” following Golden v. Tomiyasu, 79 Nev. 503, 514, 387 P.2d 989, 995 (1963) (while a power-of-sale foreclosure may not be set aside for mere inadequacy of price, it may be if the price is grossly inadequate and there is additional proof of some element of fraud, unfairness, or oppression as accounts for and brings about the inadequacy of price). As a textual matter, the court noted the conclusive recitals in the association foreclosure deed (See NRS 116.31166(8)) did not relate to the alleged deficiencies in the foreclosure sale. Resources Group, LLC v. Nevada Association Services, Inc., 135 Nev. 48, 437 P.3d 154 (2019) considered a “totality of the circumstances” argument to set aside an association foreclosure, holding that only if “the totality of the circumstances demonstrates that the sale itself was affected by &lsquo;fraud, unfairness, or oppression' “ may a court set aside an association foreclosure sale. Equal Priority. In Southern Highlands Community Association v. San Florentine Avenue Trust et al., 132 Nev. 24, 365 P.3d 503 (2016) The Foothills at Southern Highlands Homeowners Association (Foothills) foreclosed its assessment lien on a home that was also subject to Southern Highlands Community Association (Southern Highlands). The sale resulted in $35,000 in excess proceeds. Following Foothills' foreclosure, Southern Highlands sought to conduct its own foreclosure sale against the purchaser. At issue was statutory language providing that “[u]nless the declaration otherwise provides, if two or more [homeowners'] associations have liens for assessments created at any time on the same property, those liens have equal priority.” NRS 116.3116(4) (2013), NRS 116.3116(8) (2015). The court found the statute unambiguous but acknowledged equal priority is not explained. Based on the general principles of law and equity applicable to Nevada common interest communities, NRS 116.1108, the Court adopted the California court's approach to mechanic's liens, holding the Foothills' foreclosure sale extinguished Southern Highlands' lien, but that Southern Highlands was entitled to proceeds from the foreclosure sale in the amount of its lien. The Court concluded, “If the sale proceeds are insufficient to satisfy Southern Highlands' lien, Foothills and Southern Highlands must share that loss pro-rata.” Southern Highlands Community Association, 365 P.3d at 507. State Tax Liens. State Dep't of Taxation v. Kawahara, 131 Nev. 425, 351 P.3d 746 (2015) held that a deed of trust granted in 2009, but not recorded until 2011, had priority over a tax lien certificate recorded by the State Department of Taxation in 2010 for unpaid taxes owing to the state. Under NRS 360.473(2), a state tax lien has the effect of a judgment lien. A judgment creditor is not within the class designated by the recording statute for protection against an unrecorded conveyance, therefore the Department of Taxation was not protected by the recording statutes. In contrast, a lien for unpaid property taxes is superior to all other liens (NRS 365.140). Unpaid assessments within a general improvements district (NRS 318.197) or a special improvement district (NRS 271.420) and amounts owed to a city (NRS 268.430) or a county (244.360) based on nuisance, or unpaid city (NRS 268.095) or county (NRS 244.335) license taxes, and unpaid fees for garbage removal (NRS 363.520) have the same priority as tax liens or are subject only to tax liens.

PRIORITY

A trustee under a deed of trust must be: (a)&nbsp;an attorney licensed to practice law in this State; (b)&nbsp;a title insurer or title agent authorized to do business in this State pursuant to Chapter 692A of NRS; (c)&nbsp;a person licensed pursuant to Chapter 669 of NRS (which governs the licensing and regulation of trust companies); (d)&nbsp;a domestic or foreign entity that holds a current state business license issued by the Secretary of State pursuant to chapter 76 of NRS; (e)&nbsp;a person who does business under the laws of this State, the United States, or another state relating to banks, savings banks, savings and loan associations, or thrift companies; (f)&nbsp;a person who is appointed as a fiduciary pursuant to NRS 662.245; (g)&nbsp;a person who acts as a registered agent for a domestic or foreign corporation, limited-liability company, limited partnership, or limited-liability partnership; (h)&nbsp;a person who acts as a trustee of a trust holding real property for the primary purpose of facilitating any transaction with respect to real estate if he or she is not regularly engaged in the business of acting as a trustee for such trusts; (i)&nbsp;a person who engages in the business of a collection agency pursuant to Chapter 649 of NRS; or (j)&nbsp;a person who engages in the business of an escrow agency, escrow agent or escrow officer pursuant to the provisions of Chapter 645A or 692A of NRS. See NRS 107.028. In commercial transactions, the trustee is most often the title insurance company insuring the lender's mortgage and customarily appointed without the necessity of asking the trustee's consent. DUTIES: A trustee does not have a fiduciary obligation to the grantor or any other person having an interest in the encumbered property, but must act impartially and in good faith with respect to the deed of trust and shall act in accordance with state law. See NRS 107.028(6). In performing acts required by NRS 107.080, the trustee incurs no liability for any good faith error resulting from reliance on information provided by the beneficiary regarding the nature and the amount of the default under the obligation secured by the deed of trust if the trustee corrects the good faith error not later than 20 days after discovering the error. See NRS 107.028(6). If the trustee does not comply with NRS 107.028 or any other provision of NRS Chapters 106, 107 or 205, it is liable for damages of $5,000 or treble the amount of actual damages, whichever is greater as well as reasonable attorneys' fees and the improper action may be enjoined. See NRS 107.028(7). While deed of trust trustees engage in activities that would otherwise meet the definition of a collection agency under NRS Chapter 649, deed of trust trustees are not subject to NRS Chapter 649 licensing requirements when they are engaged in nonjudicial foreclosure. Benko v. Quality Loan Serv. Corp., 135 Nev. 483, 454 P. 3d 1263 (2019). BENEFICIARY AS TRUSTEE: A trustee under a deed of trust must not be the beneficiary under the deed of trust for the purpose of exercising the power of sale, but a beneficiary may replace its trustee with another trustee and may substitute itself as trustee for the purposes of executing a substitution of trustee and a full or partial reconveyance of a deed of trust. See NRS 107.028(2), (4). REPLACEMENT OF TRUSTEE: Nevada law authorizes the deed of trust to contain a provision permitting the beneficiary to replace the trustee at any time by recording a substitution of trustee. See NRS 107.030(9).

QUALIFICATIONS

NRS Chapter 669 regulating the operation and licensing of a business as a trust company does not apply to a person who acts as a trustee under a deed of trust. See NRS 669.080(1)(d).

NEVADA TRUST COMPANIES

The beneficiary under a Nevada deed of trust may foreclose either judicially, under NRS 40.430, or non-judicially, exercising the power of sale, under NRS 107.080 (a “trustee's sale”). One Action. In the case of either a judicial foreclosure or nonjudicial foreclosure, NRS 40.430, Nevada's “one-action rule” requires the creditor to first proceed against the security before pursuing the trustor for the collection of the debt. A list of acts or proceedings that do not include an “action” in violation of the one action rule is set forth NRS 40.430(6) and includes, among other things: appointment of a receiver, enforcement of an assignment of rents, enforcement of a security interest in personal property, filing a proof of claim in bankruptcy, “the exercise of any right to set off, or to enforce a pledge in, a deposit account pursuant to a written agreement or pledge,” drawing under a letter of credit and various other actions not constituting the collection of the debt or realization of the collateral securing the debt. A violation of the one action rule can result in the loss of the security of the deed of trust. See NRS 40.435. See also below discussion of Hefetz v. Beavor, 133 Nev. 323, 397 P.3d 472 (2017) under GUARANTY, STATUTES TO BE WAIVED, Waiver of One Action. A guarantor is entitled to the same protections as a borrower in the absence of a permitted waiver. See First Interstate Bank of Nevada v. Shields, 102 Nev. 616, 730 P.2d 429 (1986) See also below GUARANTY, UNUSUAL PROVISIONS OR REQUIREMENTS, One Action and Deficiencies, regarding a guarantor's ability to waive the one-action rule. Trustee Sales. A beneficiary under a deed of trust commences a statutory non-judicial power of sale by causing to be recorded an executed notice of default and election to sell (also referred to as a notice of breach and election to sell) (“notice of default”) in the recorder's office in each county where the real property or any part thereof is located and by causing to be mailed, by registered or certified mail, return receipt requested and postage prepaid, copies of the notice of default to the address of the grantor or the person who holds the title of record, with copies of the notice of default to be mailed to certain other persons within 10 days thereafter. See NRS 107.080(2), 107.080(3), 107.090(3) and 107.095. Guarantors should also be notified. See GUARANTY, UNUSUAL PROVISIONS OR REQUIREMENTS, Notice of Foreclosure below. The sale itself is conducted by the Trustee or its agent. Loan Assignments. If the beneficial interest under a deed of trust has been assigned on or after October&nbsp;1, 2011, the power of sale may not be exercised until the assignment is recorded. See NRS 106.210. The Nevada Supreme Court has held that to proceed with the non-judicial foreclosure, the party seeking to foreclose must demonstrate that it is both the beneficiary of the deed of trust and the current holder of the promissory note. See Edelstein v. Bank of New York Mellon, 128 Nev., 505, 286 P.3d 249 (2012) In Edelstein, MERS was the named beneficiary under the deed of trust and a different entity held the note. The court concluded that nonjudicial foreclosure by either would be improper, but the court found that the separation of the note and deed of trust was not fatal. Relying on Edelstein, the Nevada Supreme Court cast doubt on whether NRS 106.210 or NRS 111.325 (unrecorded conveyance void against subsequent BFP) requires an assignment of the beneficial interest in a deed of trust in order for Freddie Mac to acquire ownership of the loan. Daisy Tr. v. Wells Fargo Bank, N.A., 135 Nev. 230, 445 P.3d 846 (2019) In Montierth v. Deutsche Bank (In re Montierth), 131 Nev. 543, 354 P.3d 648 (2015), Deutsch Bank held a promissory note secured by a deed of trust whose beneficiary was MERS. The Nevada Supreme Court concluded MERS was the agent of Deutsch Bank, therefore “reunification of the note and the deed of trust is not required to foreclose because the beneficiary of the deed of trust is authorized to foreclose on behalf of the noteholder as its agent.” Id., 3543 P3.d at 651. As a matter of law, “the recording of an assignment of a deed of trust is a ministerial act. . . .” Id., 354 P.3d at 652. Statutory Cure Rights. The power of sale must not be exercised until: The payment or performance deficiency is not cured within (a) 35 days after the notice of default is first recorded and mailed, See NRS 107.080(2)(a)(2); or, (b) in the case of a deed of trust encumbering owner-occupied housing, the grantor, the person holding title of record, a beneficiary under a subordinate deed of trust, or any other person who has a subordinate lien or encumbrance of record has not cured the deficiency during the period between: (i)&nbsp;the date the notice of default is first recorded and mailed; and (ii)&nbsp;5 days before the sale date. NRS 107.0805(1)(a). 3 months have elapsed after recording the notice of default, NRS 107.080(2)(d); and the trustee has given notice of the time and place of the sale at least 20 days before the date of the sale to the persons entitled to receive the notice of default, See NRS 107.080(4), and to certain other persons described in NRS 107.090(4). Lien Theory. NRS 40.050 prohibits a mortgagee from taking possession of the encumbered property in the absence of a foreclosure, unless through a receivership. Notice of Sale. The trustee, or other person authorized to make the sale under the deed of trust's terms shall, after expiration of the 3-month period following the recording of the notice of default and before the making of the sale, give notice of the time and place thereof by recording the notice of sale and by: Providing the notice to each trustor and any other person entitled to notice by personal service or by mailing the notice by registered or certified mail to the last known address of the trustor and any other person entitled to such notice; Posting a similar notice particularly describing the property, for 20 days successively, in 3 public places of the township or city where the property is situated and where the property is to be sold; and Publishing a copy of the notice once each week for 3 consecutive weeks in a newspaper of general circulation in each county where any of the real property is situated. See NRS 107.080(4). NRS 107.080(4)(c) allows publication of an abbreviated notice of sale in the newspaper and internet publication of the entire notice of sale if the real property subject to the foreclosure is a time share.

BRIEF DESCRIPTION OF PROCEDURE

Nevada has several statutory provisions granting additional protections to borrowers in the case of a residential foreclosure or a loan involving owner-occupied housing. These protections generally apply to both a judicial and a non-judicial foreclosure. Definitions. A “residential foreclosure” is a foreclosure sale of a “single family residence,” which is a structure of not more than four units. See NRS 107.015(9), (11). Owner-occupied housing is defined as housing that is occupied by an owner as the owner's primary residence. See NRS 107.015(6). Property held in a trust in which the individual occupants held title to the home as trustees and were the beneficiaries of the trust was “owner-occupied” pursuant to NRS 107.015(6) and NRS 40.437(12)(c). Wishengrad v. Carrington Mortg. Servs., 139 Nev. __, 529 P.3d 880, 886 (2023). A “foreclosure sale” includes both a judicial and non-judicial foreclosure. See NRS 40.427 (“Foreclosure sale means the sale of real property to enforce an obligation secured by a mortgage or lien on the property, including the exercise of a trustee's power of sale pursuant to NRS 107.080.”). Affidavit. A notice of default recorded with respect to a residential foreclosure must include a notarized affidavit of authority to exercise the power of sale, subject to a limited exception for deeds of trust encumbering time shares. See NRS 107.0805(1)(b). The statements in the affidavit are made under penalty pf perjury, and must be based on the direct personal knowledge of the affiant or the personal knowledge of the affiant acquired by a review of the records of the beneficiary, the successor in interest of the beneficiary, or the servicer of the obligation or debt secured by the deed of trust, which records must meet the evidentiary standards set forth in NRS 51.135 (business records). With respect to statements required to be made in the affidavit relating to assignments of the deed of trust, the statements may also be based upon the county recorder's records or a title guaranty or title insurance. The affidavit must contain a statement that the deed of trust beneficiary is in actual or constructive possession of the note or is entitled to enforce the debt or other obligation secured by the deed of trust. If the beneficiary is not in possession of the note, it appears that the beneficiary must obtain a court order that it is entitled to enforce the note pursuant to NRS 104.3309 of the UCC. False statements in the affidavit required by NRS 107.0805 may constitute a criminal offense under NRS 205.395 (false representation concerning title). Additional Notices. (1) Owner Occupied Housing. If (a) a deed of trust became effective on or after October 1, 2003 and is subject to the Home Ownership and Equity Protection Act of 1994, 15 U.S.C. 1602(aa) or (b) a deed of trust concerns “owner-occupied housing” (NRS 107.015(6)), the trustee may not exercise the power of sale unless a notice in the form described in NRS 107.085(3)(b) is served upon the grantor or the record title-holder not later than 60 days before the sale. See NRS 107.085. See also Homeowner Bill of Rights below. (2)&nbsp;Notification of Tenants. If a trustee's sale is a “residential foreclosure” (NRS 107.015(9)), NRS 107.087 imposes additional requirements on the posting and mailing of the notice of default and the notice of sale, including mailing a statutorily prescribed notice to any tenant or subtenant (other than the grantor of the deed of trust). See NRS 107.087(3). (3) Notification of Guarantor. The notice of default must also be given to each guarantor or surety. While failure to give such notice does not affect the validity of the foreclosure sale, failure to give the notice or an optional notice to the guarantor releases the guarantor or surety. See NRS 107.095; see also below GUARANTY, UNUSUAL PROVISIONS OR REQUIREMENTS, Notice of Foreclosure. (4) Requests for Notice. NRS 107.090 permits any “person with an interest” and an association to record a request for notice of default and sale, in which case the person conducting the foreclosure must give such notices to the person so requesting. See NRS 107.090. Foreclosure Mediation. Under NRS 107.086 the grantor under a deed of trust encumbering owner occupied housing or the person who holds title to the property may elect to enter into mediation before foreclosure sale. Mediation is administered by Home Means Nevada, Inc., a non-profit entity established by the State of Nevada, Department of Business and Industry. See http://www.homemnv.org/foreclosure-mediation-program/. Similar requirements apply to judicial foreclosures. See NRS 40.437. NRS 107.086 sets forth in detail the information that must be included with the notice of default. The manner in which the mediation is conducted is prescribed by Supreme Court Rules. (See https://www.leg.state.nv.us/Division/Legal/LawLibrary/CourtRules/FMR.html.) Several months after completion of a foreclosure mediation, the borrower in Nationstar Mortg., LLC v. Rodriguez, 132 Nev. 559, 375 P.3d 1027 (2016) discovered the note presented in the mediation was not the correct note. The Nevada Supreme Court held the 30-day filing deadline for judicial review of the mediation does not permit an extension of the deadline to permit the filing of a petition after discovery of fraud. A lender's failure to strictly comply with NRS 40.437, did not affect the lender's ability to foreclose where the lender substantially complied with those requirements and the borrowers were not prejudiced. Wishengrad v. Carrington Mortg. Servs., 139 Nev. __, 529 P.3d 880, 886-887 (2023). Association Assessments. NRS 116.31162(7) precludes an association from foreclosing its lien by sale if the property is owner-occupied housing and the owner is in foreclosure mediation unless the trustee has recorded a certificate required by NRS 107.086 or during the pendency of the mediation, the owner has failed to pay current assessments to the association. Homeowner Bill of Rights. NRS 107.400-107.560, known as the “Homeowners' Bill of Rights”, establishes additional requirements for the foreclosure of owner-occupied housing if the loan is a “residential mortgage loan” and the notice of default is recorded on or after October&nbsp;1, 2013. “Residential mortgage loan” is defined as “ . . . a loan which is primarily for personal, family or household use secured by a mortgage on owner-occupied housing . . .”. See NRS 107.450. Generally, 30 days before recording a notice of default and at least 30 calendar days after the borrower's default, the borrower must be provided with certain information regarding the borrower's account and foreclosure prevention alternatives offered by the beneficiary. Prior to commencement of foreclosure, the mortgage servicer must attempt to contact the borrower in person or by telephone and the borrower must be provided a single point of contact. This law prohibits a practice commonly known as “dual-tracking,” which is the continuation of the foreclosure process while an application for a foreclosure prevention alternative is pending or if the borrower is performing its obligations under the foreclosure prevention alternative. A financial institution that has foreclosed on 100 or fewer owner-occupied homes in Nevada during its immediately preceding annual reporting period is exempt from the Homeowners' Bill of Rights. Also, a financial institution that is a signatory to and in compliance with the consent judgment entered in United States of America et al. v. Bank of America Corporation et al., filed in the United States District Court for the District of Columbia, case number 1:12-cv-00361 RMC, is “deemed to be in compliance” with the Homeowners' Bill of Rights and is not liable for violation of those provisions. See NRS 107.560(5). Special Protections. Nevada law requires the lender or servicer of a residential mortgage loan to notify the borrower, at least 30 days before recording a notice of default or commencing a judicial foreclosure involving a failure to make a payment and at least 30 days after the borrower's default, that if the borrower is (a) a servicemember and or his or her dependent or (b) a federal, tribal or state worker or their household members or landlords, of such borrower's rights under (a) the Servicemembers Civil Relief Act, 50 U.S.C. &sect;&nbsp;3901, et seq., and NRS 40.439 or (b) NRS 40.4395, providing for borrower protections in the case of a government or tribal shutdown. See NRS 107.500.

RESIDENTIAL FORECLOSURES

All sales of property pursuant to NRS 107.080 must be made at auction to the highest bidder between 9 a.m. and 5 p.m. The sale must be made at the public location in the county designated by the governing body of the county for that purpose. See NRS 107.081(2). Postponements. The trustee's sale may be postponed by oral proclamation to a later date at the same time and location. See NRS 107.082(1). If the sale has been postponed by oral proclamation three times, the sale must be re-noticed under NRS 107.080. See NRS 107.082 and JED Prop., LLC v. Coastline RE Holdings NV Corp., 131 Nev. 91, 343 P.3d 1239 (2015) (“as long as the information regarding the sale's date, time, and place remains the same after the third oral postponement, there is no new sale information to provide that would require a new notice under NRS 107.082(2)”). If the sale's date, time, or location changes after the third oral postponement, there is new sale information. See JED Prop., LLC. 343 P.3d at 1241. Thus, if the sale's date, time, or location changes after the third oral postponement, NRS 107.082(2) requires that this new sale information be included in a new notice of sale as provided in NRS 107.080(4). See JED Prop., LLC, 343 P.3d at 1241. Unfair Lending Practice Claim. If an action is filed in a court of competent jurisdiction claiming an unfair lending practice in connection with the deed of trust, the sale date cannot be less than 30 days after the date the most recent such action is filed. “Unfair lending practice” means an unfair lending practice as described in NRS 598D.010-598D.150. See NRS 107.085. Recording of Trustee's Deed. After a trustee's sale of property pursuant to NRS 107.080, the trustee must (i) record the trustee's deed within 30 days after the date of the sale or (ii) deliver the trustee's deed within 20 days of the date of the sale to the successful bidder who must record the deed within 10 days after receipt of the deed. NRS 107.080(10). Within 5 days after recording the trustee's deed, the trustee or successful bidder, whoever recorded the trustee's deed, is required to post a copy of the trustee's deed in a conspicuous location on the property, though the failure to post does not affect the validity of a sale of the property to a bona fide purchaser for value without knowledge of the failure. NRS 107.080(11). If the successful bidder fails to record the trustee's deed as required by NRS 107.080(10), the successful bidder is liable for a civil penalty, actual damages, attorneys' fees and costs. See NRS 107.080(12). Attacking the Trustee's Sale. Pursuant to NRS 107.080(5), a sale made pursuant to NRS 107.080 may be declared void by any court of competent jurisdiction in the county where the sale took place if: The trustee or other person authorized to make the sale does not substantially comply with the provisions of NRS 107.080; Except as otherwise provided in NRS 107.080(6), an action is commenced in the county where the sale took place within 30 days after the date the trustee's deed is recorded; and A notice of lis pendens providing notice of the pendency of the action is recorded in the office of the county recorder of the county where the sale took place within 5 days after commencement of the action. If proper notice is not provided pursuant to NRS 107.080(3) and (4) to (i) the grantor, (ii) the person who holds the title of record on the date the notice of default and election to sell is recorded, (iii) to each trustor, or (iv) any other person entitled to such notice, the person who did not receive such proper notice may commence an action pursuant to NRS 107.080(5) within 90 days after the date of the sale. See NRS 107.080(6). NRS 107.080 only applies to actions challenging the procedural aspects of a trustee's sale. Bank of Am. v. Madeira Canyon, No. 2:16-cv-00444-APG-NJK, 2019 WL 5963936 (D. Nev. 2019). An action challenging the authority to conduct a trustee's sale is governed by the five-year statute of limitations governing quiet title actions, rather than the time periods set forth in NRS 107.080. Las Vegas Dev't Grp., LLC v. Blaha, 134 Nev. 252, 416 P.3d 233 (2018); but see Bank of Am. v. Madeira Canyon, No. 2:16-cv-00444-APG-NJK, 2019 WL 5963936 (D. Nev. 2019). Failure to give notice of default or notice of sale to a person entitled to receive does not automatically render the sale void, rather the failure must be reviewed based on a notice/prejudice rule. U.S. Bank, Nat'l Ass'n v. Res. Grp., LLC, 135 Nev. 199, 444 P.3d 442 (Nev. 2019).

TIME AND PLACE OF SALE

The minimum amount of time to accomplish a trustee's sale is 3 months plus the publication period (once each week for three consecutive weeks) from the date of first recording and mailing the notice of default; however, the actual length of a nonjudicial foreclosure procedure will vary depending on the particular circumstances involved.

TYPICAL LENGTH OF NONJUDICIAL PROCEDURE

Generally, the beneficiary under the deed of trust being foreclosed may credit bid up to the amount of the secured debt. Any amounts bid by such beneficiary above the secured debt must be bid in cash. All others must bid cash. NRS 107.083 provides for a resale of the property if the highest bidder refuses to pay the bid and a procedure for recovering the amount of any loss with costs from the purchaser refusing to pay the bid. The agent holding the sale must not become a purchase at the sale or be interested in any purchase at such a sale. NRS 107.081(1).

FORECLOSURE BID REQUIREMENTS

A judicial foreclosure may be pursued by filing suit in the county in which the property is located. See generally NRS 40.426 - 40.463. If a court finds in favor of the beneficiary under the deed of trust, a judgment of foreclosure and order of sale is entered. See NRS 40.430(1). At any time not later than 5 business days before the date of sale directed by the court, if the deficiency resulting in the action for the recovery of the debt has arisen by failure to make a payment required by the mortgage or other lien, the deficiency may be made good by payment of the deficient sum and by payment of any costs, fees and expenses incident to making the deficiency good. If such a deficiency is made good, the sale may not occur. See NRS 40.430(3). A judicial foreclosure is conducted by the sheriff in the same manner as an execution sale of real property. NRS 40.430(4). See also NRS 21.210, 21.130 and 21.150

JUDICIAL FORECLOSURE

A grantee under an agreement for deed in lieu of foreclosure sale must record a deed evidencing the conveyance within 30 days after the date of the conveyance. Failure to do so may expose the grantee to civil liability. See NRS 111.311.

DEED IN LIEU OF FORECLOSURE

“ &lsquo;Sale in lieu of a foreclosure sale' means a sale of real property pursuant to an agreement between a person to whom an obligation secured by a mortgage or other lien on real property is owed and the debtor of that obligation in which the sales price of the real property is insufficient to pay the full outstanding balance of the obligation and the costs of the sale. The term includes, without limitation, a deed in lieu of a foreclosure sale.” NRS 40.429. “No provision of the laws of this State may be construed to require a sale in lieu of a foreclosure sale to be an arm's length transaction or to prohibit a sale in lieu of a foreclosure sale that is not an arm's length transaction.” NRS 107.140.

DEEDS IN LIEU/SHORT SALES

Trustee's Sale. A trustee's sale under NRS 107.080 vests in the purchaser the title of the grantor and his or her successors in interest without equity or right of redemption. Judicial Foreclosure. In the case of a judicial foreclosure, there is a redemption period of 1 year following the foreclosure sale. See NRS 21.210. The debtor or other person entitled to redeem may redeem by paying the purchaser at sale the sum of the foreclosure sale price, 1% of the foreclosure sale amount, per month, from the date of the sale until the time of redemption, and an amount sufficient to cover any payments made by the foreclosure sale purchaser with respect to any assessments, taxes or liens that were created prior to the foreclosure sale, together with interest thereon. See NRS 21.210(1). If the purchaser is a creditor with a lien prior to the deed of trust, the redeeming party must also pay the amount of such lien with interest thereon. See NRS 21.210(2).

REDEMPTION PERIOD AND PRICE

There is no right of redemption following a non-judicial trustee's sale. Although there is no statutory prohibition on waiving the right to redemption or reducing the redemption period in the case of a judicial foreclosure, it is unlikely that such a waiver is enforceable.

WAIVER OF REDEMPTION; REDUCTION OF REDEMPTION PERIOD

Nevada law limits deficiency judgments following a “foreclosure sale,” See NRS 40.455(1), NRS 40.427 defines “foreclosure sale” to include any sale of real property “to enforce an obligation secured by a mortgage or lien on the property,” including a trustee's sale as well as a receivership sale. See NRS 32.360. Time for Filing. A deficiency judgment may be obtained upon “application” by the judgment creditor or the deed of trust beneficiary within 6 months after the judicial or nonjudicial foreclosure sale date, or within 6 months of the last foreclosure sale date if there is more than one parcel or interest in real property securing the indebtedness and the application is filed no more than 2 years after the initial foreclosure sale. See NRS 40.455. A deficiency judgment may not exceed the lesser of: (a)&nbsp;the amount by which the secured “indebtedness” (NRS 40.451) exceeds the fair market value of the property sold at the time of the sale, with interest from the date of the sale; (b)&nbsp;the amount that is the difference between the actual sales price of the property and the secured indebtedness, with interest from the date of sale; or (c)&nbsp;in certain limited residential loan transactions in which a deficiency is not otherwise barred by NRS 40.4638 or NRS 40.455 (see below), and in certain cases of commercial loans in which the note or guaranty was executed before July 1, 2011, if the person seeking the judgment acquired the right to obtain the judgment from a person who previously held that right, the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs. See NRS 40.459; NRS 40.4636. The amount of the indebtedness does not include any amount received by, or payable to, the judgment creditor or beneficiary of the deed of trust pursuant to an insurance policy to compensate the judgment creditor or beneficiary for any losses incurred with respect to the property or the default on the debt. See NRS 40.459(4). Statutory Limitation - Residential. <ul>
 <li>With respect to obligations secured by a mortgage upon a single-family dwelling on or after October 1, 2009, if the judgment creditor or beneficiary of the deed of trust is a financial institution as defined in NRS 363A.050, the court may not award a deficiency judgment if: (a)&nbsp;the grantor owned the property at the time of foreclosure sale, (b)&nbsp;the loan secured by the mortgage was used to purchase the property, (c)&nbsp;the debtor or grantor continuously occupied the property as his or her principal residence and (d)&nbsp;the debtor or grantor did not refinance the mortgage. See NRS 40.455(3).</li>
 <li>Short Sales. The Court may not award a deficiency judgment if (a)&nbsp;the judgment creditor or the beneficiary of the deed of trust is a banking or other financial institution (NRS 40.458(2)(a)), (b)&nbsp;the property is the debtor's or grantor's principal residence, (c)&nbsp;the other criteria enumerated in NRS 40.455(3) are met, and (d)&nbsp;the debtor or grantor entered into an agreement with the banking or other financial institution to sell the encumbered property to a third party for less than the secured debt. See NRS 40.458.</li>
</ul> FDIC Preemption. Munoz v. Branch Banking & Trust Co., 131 Nev. 185, 348 P.3d 689 (2015) held that NRS 40.459(1)(c), which limits deficiency judgments, is preempted by the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) to the extent the Nevada statute limits deficiencies on loans transferred by the FDIC. (Note: NRS 40.459(1)(c) was amended in 2015 to only apply to owner-occupied mortgage loans. See NRS 40.459(2)(c).) Time for Filing. NRS 40.455(1) requires, with certain exceptions, an “application” for a deficiency to be brought within 6 months after the date of the foreclosure sale. “Application” is not defined in the statute but is governed by Nevada Rule of Civil Procedure (NRCP) 7(b)(1), which requires a written motion stating with particularity the grounds for seeking the order and the relief sought. In Badger v. Eighth Judicial Dist. Court of Nev., 132 Nev. 396, 373 P.3d 89 (2016), lender brought an action against the guarantor for breach of the guarantee, subsequently foreclosed its deed of trust, and thereafter timely applied for a deficiency judgment against the borrower. The separate actions against the guarantor and the borrower were later consolidated. NRS 40.455(1) is strictly construed. The borrower deficiency action did not constitute a timely deficiency claim against the guarantor, and the consolidation of the two actions did not result in the deficiency claim against the guarantor relating back to the timely filing of the action against the borrower. Choice of Law. Where loan documents contained a Nevada choice of law provision, a deficiency action against the guarantor following foreclosure of a deed of trust on Arizona real property was governed by Nevada deficiency law statutes, including the time period for filing. NRS 40.455(1). Mardian v. Michael & Wendy Greenberg Family Trust, 131 Nev. 730, 359 P.3d 109 (2015). Receiver Sales. See the discussion of UCRERA under Receivership, below.

A beneficiary that is a financial institution (as defined in NRS 363A.050) under a junior deed of trust may not bring any action to enforce the obligation secured by the deed of trust after a foreclosure sale or a sale in lieu of a foreclosure sale if the property is the debtor's principal residence and the other criteria enumerated above in NRS 40.455(3) are met. See NRS 40.4638. A “sale in lieu of a foreclosure sale” means a sale of real property pursuant to an agreement between a person to whom an obligation secured by a mortgage or other lien on real property is owed and the debtor of that obligation in which the sales price of the real property is insufficient to pay the full outstanding balance of the obligation and the costs of the sale and includes a deed in lieu of a foreclosure. See NRS 40.4294. In determining the amount owed by the debtor to the junior lienholder, the court shall not include the amount of any proceeds received by, or payable to, the junior lienholder pursuant to an insurance policy to compensate the person for losses incurred with respect to the property or the default on the obligation. See NRS 40.4636.

LIMITATIONS ON RECOVERY BY JUNIOR LIENHOLDERS

Priority. Generally speaking, a foreclosure extinguishes “all interests in the foreclosed real estate that are junior to the mortgage being foreclosed and whose holders are properly joined or notified under applicable law.” SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. 742, 334 P.3d 408, 412, (2014) (quoting Restatement (Third) of Prop.: Mortgages &sect; 7.1 (1997). No reported Nevada cases address the enforceability of a broad, automatic subordination provision in a lease to a subsequent deed of trust, nor whether, in a non-judicial foreclosure, the beneficiary may elect that the foreclosure not affect a pre-existing lease. Subordination, non-disturbance and attornment agreements (SNDAs) are in common use in the state. Eviction. Assuming the mortgage is senior in priority to the lease, Nevada law authorizes a proceeding for the removal of a tenant who does not vacate after a 3-day written notice to quit has been served upon him or her after a foreclosure sale and perfection of title. See NRS 40.255(1)(b). But see below regarding residential leases. Residential Leases. Pursuant to NRS 107.087, if a foreclosure is a “residential foreclosure” (NRS 107.015(9)), tenants or subtenants in actual occupation of the premises (other than the grantor or his successor in interest) have a right to notice of the impending foreclosure sale, which must, among other things, inform the tenant or subtenant that he or she may either: (i)&nbsp;terminate his or her lease and move out or (ii)&nbsp;remain in possession and possibly be subject to eviction proceedings if he or she holds over after the statutorily prescribed notice period, which for a periodic tenancy with a period of less than 1 month is not less than the number of days in the period, or, in the case of any other periodic tenancy or tenancies at will, generally not less than 60 days. NRS 107.087(3) specifies the contents of the notice in detail, as well as the rights of the tenant and new owner. See also NRS 40.255(2) - (8) (summary eviction procedures).<a href="#_ftn13" name="_ftnref13">[13]</a>

EFFECT OF FORECLOSURES ON LEASES

Vacant Residential Properties. Any vacant residential property purchased or acquired by a person at a foreclosure sale pursuant to NRS 40.430 or NRS 107.080 must be maintained by that person. See NRS 40.464. Maintenance of Units in Common Interest Community. Pursuant to NRS 116.310312, the holder of a deed of trust or mortgage on a “unit” within a “common-interest community” must provide the “association” with the person's contact information as soon as reasonably practicable, but not later than 30 days after the person commences a judicial or non-judicial foreclosure. Pursuant to this statute, the association is entitled to expend funds to maintain the exterior of the unit in accordance with the community standards, remove or abate certain public nuisances on the exterior of the unit or abate a water or sewage leak within a building with multiple units. The association has a lien on the unit for the costs of any maintenance or abatement, including, without limitation, reasonable inspection fees, notification and collection costs and interest, which lien may be prior and superior to the lien of an existing deed of trust or mortgage.

ADDITIONAL CONSIDERATIONS REGARDING FORECLOSURES

With the exception of consumer transactions involving a covered service member or his or her dependent, there are no statutory limitations regarding the maximum rate of interest to be charged provided the agreed rate is in writing. See NRS 99.050.

USURY CEILING

USURY EXEMPTIONS

Recordation of all instruments affecting real property in Nevada, including fixture filings (which may be recorded on the national UCC-1 form), must be made in the local county recorder's office. See NRS 111.315; see also NRS 104.9501. The local recorders' offices are not the appropriate place to record a UCC-1 Financing Statement, except for fixture filings (which are discussed in the following paragraph). Generally, a financing statement will be filed only with the Nevada Secretary of State (although there are certain exceptions that require local filing) if Nevada law governs the filing and perfection of that particular financing statement. See NRS 104.9301-104.9307 and NRS 104.9501(2).

LOCATIONS FOR FILING

A deed of trust may constitute a security agreement under Article 9 of the Nevada Uniform Commercial Code and is effective as a financing statement filed as a fixture filing from the date of its recording pursuant to NRS 104.9502(3) of the UCC.

SECURITY INSTRUMENT AS FIXTURE FILING

Subrogation. The guarantor has a right of partial and full subrogation. See NRS 40.475, 40.485. These rights may not be waived prior to default. See NRS 40.495(1). One Action and Deficiencies. A guarantor is entitled to the protections of the one-action rule and anti-deficiency laws. See First Interstate Bank of Nevada v. Shields, 102 Nev. 616, 730 P.2d 429, (1986); NRS 40.495(3); see also NRS 40.453. While, as discussed below, a guarantor may waive the one action rule, a guarantor is still entitled to the protection of Nevada deficiency statutes. NRS 40.451 - NRS 40.459. NRS 40.495(4) also provides that if an action is commenced against a guarantor prior to the foreclosure sale, the following will apply: The court must hold a hearing to determine the fair market value of the encumbered property as of the date of the commencement of the action. If the court awards a money judgment against the guarantor or surety (or against the debtor) prior to a foreclosure sale, the judgment is limited to the amount by which the indebtedness exceeds the fair market value of the property on the date the action was commenced. If the foreclosure sale takes place before the money judgment is entered, the recovery is limited to the lesser of: (a)&nbsp;the difference between the amount of the debt and the fair market value of the property on the date of commencement of the action or (b)&nbsp;the difference between the amount of the debt and the amount for which the property was actually sold at foreclosure sale. Notice of Foreclosure. The notice of default given in connection with a non-judicial foreclosure must also be given the guarantor. Failure to provide the notice to the guarantor releases the guarantor. See NRS 107.095(1) The guarantor is not, however, released if (a) the notice of default is given to the guarantor at least 15 days before the later of (i) the expiration of the statutory right to cure period described in NRS 107.080 (2) or (ii) in the case of owner-occupied housing the expiration of the statutory right to cure period described in NRS 107.0805(1) (or any extension of such period); or (b) the notice of default is rescinded before the foreclosure sale is advertised. See NRS 107.095.

UNUSUAL PROVISIONS OR REQUIREMENTS

Waiver of One Action. NRS 40.495(2) permits a guarantor to waive NRS 40.430 (the one action rule), in which case the guaranty may be enforced without commencement of a foreclosure. If, however, the secured lender “maintains an action to foreclose or otherwise enforce” the deed of trust or mortgage, NRS 40.495(3) permits the guarantor to “assert any legal or equitable defenses provided pursuant to the provisions of NRS 40.451 - 40.4639 [i.e., the mortgagor's deficiency protections].” NRS 40.495(5), however, prohibits waiver of the one action rule if the mortgage (a) secures indebtedness whose principal was never greater than $500,000, (b)&nbsp;secures a purchase money obligation, (c)&nbsp;is secured by real property used primarily for the production of farm products as of the date the mortgage was created, or (d)&nbsp;is secured by real property constituting the owner's principal residence. In Hefetz v. Beavor, 133 Nev. 323, 397 P.3d 472 (2017), the secured creditor sued the guarantor on a guaranty secured by the guarantor's personal residence. NRS 40.435(2) requires the one action rule to be “timely interposed as an affirmative defense” in a judicial proceeding and that the failure to interpose the defense prior to “the entry of a final judgment” waives the defense. Guarantor raised the affirmative defense for the first time prior to commencement of a new trial. Even though no final judgment had been entered in the first trial, the court held the guarantor failed to timely interpose the affirmative defense and thus waived it.

A guaranty may not be enforceable against a guarantor who is primarily liable for the debt as a principal obligor, such as a general partner of a limited partnership.

SPECIAL PROBLEMS IN ENFORCEMENT OF GUARANTY

The statute of limitations for an action on a contract, obligation or liability based on an instrument in writing is 6 years, and begins to run from the date of the last transaction, last credit given, or the last payment made, whichever is later. See NRS 11.190 - 11.200. An application for a deficiency judgment must be brought within 6 months after the date of the judicial foreclosure sale or the trustee's sale, and if the debt is secured by more than the parcel of real property, or more than one mortgage, the 6-month period begins to run after the last sale, but in no event more than 2 years after the initial sale. To the extent the (former) holder of a junior deed of trust is entitled to a deficiency judgment, the action must be brought within 6 months after the foreclosure sale or the sale in lieu of a foreclosure sale. See NRS 40.4639. A home equity line of credit agreement was not a revolving credit agreement, akin to a credit card account, but a promissory note. Thus, the statute of limitations did not run from the first missed payment, but from the maturity date. Wishengrad v. Carrington Mortg. Servs., 139 Nev. ___, 529 P. 3d 880, 884-885 (2023) Whether characterized as a declaratory relief or quiet title action, the nature of the substantive claim determines what statute of limitations applies. Perry v. Terrible Herbst, Inc., 132 Nev. 767.770, 383 P. 3d 257, 260 (2016) Moreover, the object of an action, rather than the theory controls in determining the applicable statute of limitations. U.S. Bank, N.A. v. Thunder Props., Inc., 138 Nev. __, 503 P.3d 299 (2022). Thus, in a quiet title action brought by the holder of a first mortgage against the purchaser of the property at an association lien foreclosure sale, the four-year catch-all statute of limitations, NRS 11.220, applies to an action to determine the validity of a lien under NRS 40.010, and the statute of limitations does not begin to run until the titleholder affirmatively repudiates the lien, which does not necessarily happen at the foreclosure sale. Id. Under NRS 106.240, the lien of a recorded mortgage or deed of trust not otherwise satisfied and discharged of record “shall at the expiration of 10 years after the debt secured by the mortgage or deed of trust according to the terms thereof or any recorded written extension thereof become wholly due, terminate, and it shall be conclusively presumed that the debt has been regularly satisfied and the lien discharged.” A notice of rescission, rescinding a previously recorded notice of default effectively cancels the acceleration triggered by the notice of default and resets NRS 106.240 &lsquo;s 10-year period. SFR Invs. Pool 1, LLC v. U.S. Bank N.A., 138 Nev. __, 507 P.3d 194 (2022).

STATUTES OF LIMITATIONS

A deed of trust is released through a recorded reconveyance. Portions of the encumbered property may be released by recording a partial reconveyance. The reconveyance must meet the statutory recording requirements. It is not uncommon for a beneficiary to substitute itself as trustee for the purpose of effecting a full or partial reconveyance (a “substitution of trustee and full/partial reconveyance”), a practice authorized by statute. NRS 107.028(4)(b) Pursuant to NRS 107.077 the beneficiary under a deed of trust made after October 1, 1991, must, within 21 calendar days, deliver a properly executed request to reconvey to the trustee, who thereafter is required to cause a reconveyance to be recorded within 45 calendar days. If the reconveyance is not timely delivered or recorded as provided above, a title insurer may, pursuant to specific statutory guidelines, prepare, and cause to be recorded, a release of such deed of trust. See NRS 107.077. A beneficiary or a trustee who fails to deliver or record the reconveyance, as the case may be, can be subject to a civil penalty of $500, plus reasonable attorney's fees and the cost of bringing the action and may be liable to any party to the deed of trust for actual damages caused by such failure. Id. Pursuant to NRS 107.079, if the beneficiary of the deed of trust cannot be located after diligent search or refuses to execute a full reconveyance when the debt or other secured obligation is paid in full or satisfied or final payment or satisfaction is to be tendered, a surety bond and a declaration may be recorded.<a href="#_ftn14" name="_ftnref14">[14]</a> The trustee is authorized by statute to execute the full reconveyance no earlier than 30 days after the recordation of the bond and declaration. The sole remedy for a person damaged by the reconveyance of a deed of trust pursuant to this section is an action for damages against the trustor or the person making the declaration or an action against the surety bond. NRS 107.079(4). If no claim is made against the surety bond within 3 years, the money delivered to the surety is presumed abandoned and after delivery by the surety to the Administrator of Unclaimed Property pursuant to NRS 120A.570, the surety is released from liability. NRS 107.079(5).

REQUIREMENTS FOR RELEASE OF LIEN

Under most circumstances, actions to enforce deeds of trust encumbering property subject to homestead rights are exempt from the general rule protecting up to $605,000 in equity in a debtor's home from forced sale on execution or any final process of any court. See NRS 115.010.

HOMESTEAD ISSUES

Nevada is a community property state. Unless otherwise provided by law, decree, or agreement, all property acquired after marriage by either spouse (or both) is presumed to be community property. See NRS 123.220; Peters v. Peters, 92 Nev. 687, 557 P.2d 713 (1976). Neither spouse may sell, convey, or encumber community real property unless both spouses join in the execution of the deed or other instrument by which the real property is sold, conveyed, or encumbered, and the deed or other instrument is acknowledged by both. See NRS 123.230(3); Neumann v. McMillan, 97 Nev. 340, 629 P.2d 1214 (1981). “Domestic partners [NRS 122A.030] have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon spouses.” NRS 122A.200(1)(a). NRS 123.230 does not apply, however, when spouses hold real property not as community property, but as joint tenants. Neumann, 97 Nev. at 341 (citing Allen v. Hernon, 74 Nev. 238, 242, 328 P.2d 301, 304 (1958)). In cases of joint tenancy, each spouse may encumber his or her half. When determining whether real property is community property or held as joint tenants, one cannot rely solely on the language in the deed. Id.

COMMUNITY PROPERTY

None. The real property transfer tax (NRS Chapter 375) is imposed on the recording of a “deed.” The definition of “deed” excludes “a deed of trust or common-law mortgage instrument.” See NRS 375.010(1)(b)(3).

MORTGAGE TAX

A real property transfer tax is imposed upon the recording of a “deed,” which includes a trustee's deed or a deed in lieu of foreclosure. NRS 375.010(1)((b). The tax varies depending upon the county in which the transaction takes place. For all counties the rate is $1.95 for each $500 of value or fraction thereof if the value is over $100. In addition: (a) for Washoe and Churchill Counties $.10 is added, and (b) for Clark County $.60 is added. See NRS 375.020 - 375.026. In counties with populations of 700,000 (or more) the board of county commissioners may impose a tax at the rate of up to 5&cent; for each $500 of value&hellip; .”<a href="#_ftn15" name="_ftnref15">[15]</a> See NRS 375.026. The transfer tax is determined by a Declaration of Value form prescribed by the Nevada Tax Commission which must accompany the deed at recording. The form may be obtained from any county recorder or the State of Nevada, Department of Taxation website at&nbsp; <a href="http://tax.state.nv.us">http://tax.state.nv.us</a>. The grantor and the grantee must both execute the Declaration of Value under penalty of perjury and are jointly and severally liable for the payment of the applicable transfer tax notwithstanding any contractual agreement between the parties for the payment of such tax. See NRS 375.030. In the case of a trustee's deed, the tax should be computed on the bid amount plus costs; in the case of a deed in lieu of foreclosure, the tax should be computed on the amount of the unpaid debt (the amount that will appear on Form 1099c). See, Clark County, Nevada Recorder Declaration of Value Instructions (<a href="http://www.clarkcountynv.gov/recorder/Documents/DV_Packet.pdf">http://www.clarkcountynv.gov/recorder/Documents/DV_Packet.pdf</a>); Nevada Administrative Code (“NAC”) 375.150(3). There are limited statutory exemptions to the payment of this transfer tax, which are strictly construed. See, e.g., NRS 375.090, and NAC 375.170. The Nevada Attorney General has opined that deeds in lieu of foreclosure are not exempt from the payment of transfer tax. See Nevada Attorney General Opinion 513 (5/16/1968).

TRANSFER TAX ON FORECLOSURE SALE OR ON DEED IN LIEU OF FORECLOSURE

Choice of law provisions should be enforceable provided there is a reasonable nexus to the state whose laws are chosen and the choice is made in good faith and not to avoid any particular Nevada law. See, e.g., Sievers v. Diversified Mortgage Investors, 95 Nev. 811, 603 P.2d 270 (1979). Forum Selection. In America First Fed. Credit Union v. Soro, 131 Nev. 737, 359 P.3d 105 (2015), a Utah lender made a loan secured by Nevada real property. The loan documents provided they would be governed by Utah law and that the parties submitted themselves to the jurisdiction of Utah courts. In an issue of first impression, involving whether forum selection clauses are mandatory or permissive, the Nevada Supreme Court concluded the forum selection language was permissive since it did not unequivocally mandate exclusive jurisdiction in Utah.

ENFORCEABILITY OF AGREEMENT OF BORROWER AND LENDER AS TO CHOICE OF LAW PROVISIONS

Nevada statutes addressing real estate receivership include: (a) NRS 32.010 (1911), identifying circumstances in which receivers are authorized, including mortgage foreclosures; (b)&nbsp;NRS 107.100 (1965), authorizing appointment of a receiver following the recording of a notice of default under a deed of trust; (c) NRS Chapter 107A, the Uniform Assignment of Rents Act (UARA) (2007), providing that a deed of trust or mortgage includes an assignment of rents and permitting the mortgage lender to obtain appointment of a receiver to collect those rents; and (d)&nbsp;the Uniform Commercial Real Estate Receivership Act (UCRERA) (2017). NRS 107.100. NRS 107.100 permits a secured lender to apply for the appointment of a receiver at any time after filing a notice of default under a deed of trust and provides that a receiver “shall be appointed” where it appears that (i) personal property subject to the deed of trust is in danger of being lost, removed, materially injured, or destroyed, (ii) real property subject to the deed of trust is in danger of substantial waste, (iii) the income from the encumbered property is in danger of being lost, or (iv) the property is or may become insufficient to discharge the debt that it secures. UARA. Under NRS Chapter 107A, a deed of trust or mortgage creates “a presently effective security interest in all accrued and unaccrued rents arising from the real property described in the document creating the assignment, regardless of whether the document is in the form of an absolute assignment, an absolute assignment conditioned upon default, an assignment as additional security or any other form. The security interest in rents is separate and distinct from the security interest in the real property.” NRS 107A.230(2). The secured lender is entitled to an appointment of a receiver if: “(a)&nbsp;The assignor is in default and: (1)&nbsp;The assignor has agreed in a signed document to the appointment of a receiver in the event of the assignor's default; (2)&nbsp;It appears likely that the real property may not be sufficient to satisfy the secured obligation; (3)&nbsp;The assignor has failed to turn over to the assignee proceeds that the assignee was entitled to collect; or (4)&nbsp;A subordinate assignee of rents obtains the appointment of a receiver for the real property; or (b)&nbsp;Other circumstances exist that would justify the appointment of a receiver under law of this State other than this chapter.” NRS 107A.260(1). In U.S. Bank National Association v. Palmilla Development Co., Inc., 131 Nev. 72, 343 P.3d 603 (2015) whether a receiver could sell the property was not at issue before the Nevada Supreme Court, but the court held that a receiver sale of mortgaged property was essentially a foreclosure sale, bringing into effect deficiency statutes. This interpretation has since been codified in NRS 40.427 (definition of “foreclosure sale”). UCRERA. Nevada has enacted the Uniform Commercial Real Estate Receivership Act (UCRERA). See, NRS 32.100 - 32.370, applicable only to commercial real estate. Several provisions of UCRERA echo UARA. For example, NRS 32.260(2)(b), (d), (e), and (f) provide substantially the same grounds for appointing a receiver as NRS 107A.260(1) quoted above.&nbsp; In its first opportunity to interpret NRS 32.260 and NRS 107A.260, the Nevada Supreme Court noted as follows: NRS 32.260 provides for both the mandatory and the discretionary appointment of a receiver. NRS 32.260(1) states conditions when a receiver “may” be appointed. This includes when a party with an apparent interest in the property shows that the property is subject to or at risk “of waste, loss, dissipation[,] or impairment.” NRS 32.260(1)(a)(1). In stating that the district court “may” appoint a receiver, the statute provides the court discretion whether to appoint a receiver in situations under NRS 32.260(1). . . . NRS 32.260(2), meanwhile, provides that “a mortgagee is entitled to appointment of a receiver” in connection with enforcing the mortgage in certain instances, including when “[t]he mortgagor agreed in a signed record to appointment of a receiver on default.” NRS 32.260(2)(b). In providing that “a mortgagee is entitled to appointment of a receiver,” the Legislature conferred a right to such mortgagees to demand that a court appoint a receiver, instead of conferring a discretionary right on district courts. Fed. Nat'l Mortg. Ass'n v. Westland Liberty Vill., LLC, 138 Nev. __, 515 P.3d 329 (2022). With regard to the additional provisions of UCRERA, the Legislative Counsel's Digest, 2017 Statutes of Nevada, Page 1220, notes as follows: Section 32 [NRS 32.280] provides that a receiver has the status and priority of a lien creditor with respect to the receivership property. Under section 33 [NRS 32.285], the appointment of a receiver does not affect the validity of any security interest granted before the appointment of the receiver, and any property acquired by a receiver is subject to a security interest granted under an agreement entered into before the appointment of the receiver. Section 34 [NRS 32.290] requires a person who possesses property for which a receiver has been appointed to turn over the property to the receiver on demand by the receiver. Section 35 [NRS 32.295] sets forth the powers and duties of a receiver with respect to the receivership property, including the authority to manage and protect receivership property, operate a business constituting receivership property, pay expenses and assert the rights, claims and defenses of the owner of the property. Section 36 [NRS 32.300] sets forth the duties of the owner of property for which a receiver has been appointed, including a requirement to assist and cooperate with the receiver, preserve and turn over to the receiver receivership property in the owner's possession or control and making available to the receiver certain records. Section 37 [NRS 32.305] provides that the appointment of a receiver automatically stays certain actions and proceedings involving receivership property and allows a person whose action or proceeding is stayed to apply to the court for relief from the stay. Section 38 [NRS 32.310] authorizes the receiver to hire and pay certain professionals to assist in the administration of the receivership upon approval of the court. Section 39 [NRS 32.315] authorizes a receiver to dispose of receivership property outside of the ordinary court of business with the approval of the court. Sections 39 [NRS 32.315] and 43 [NRS 32.335(7)(a)] further provide that: (1) such a disposition of receivership property is free and clear of junior liens unless the agreement for the disposition provides otherwise; and (2) secured creditors are entitled to receive the proceeds of such a disposition according to the priority established by existing law. Section 40 [NRS 32.320] authorizes a receiver to adopt or reject contracts under which a party has an unperformed obligation upon approval of the court and establishes the procedures for doing so. Section 41 [NRS 32.325] provides immunity to a receiver and requires the approval of the appointing court before a receiver may be sued personally for an act or omission in administering receivership property. Section 43 [NRS 32.335] requires a receiver to notify certain creditors of the appointment of the receiver and requires creditors to file claims with the receiver to obtain a distribution of or proceeds from receivership property. A request by a mortgagee for the appointment of a receiver, the appointment of a receiver or the application by a mortgagee of receivership property or proceeds to the secured obligation does not constitute an action within the meaning of the one action rule, nor bar a deficiency judgment. NRS 32.360(1)(f), (g). On the other hand, if a receiver sells receivership property free and clear of a lien, “the ability of a creditor to enforce an obligation that had been secured by the lien” is subject to state laws regarding deficiency judgments. NRS 32.360(2).

RECEIVERSHIP

Residential Lender Registration Requirement. Effective May 25, 2017, every mortgagee or beneficiary of a deed of trust securing a residential mortgage loan must provide its notice address and other contact information to the Division of Financial Institutions. See NRS 657.110, <a href="http://fid.nv.gov/Notice/Information/">http://fid.nv.gov/Notice/Information/</a>. The information maintained by the Division of Financial Institutions is the address to which notice of an association foreclosure sale must be sent. See NRS 116.31163. Foreign Entity Doing Business Requirements. Before commencing or doing any business in Nevada, Nevada statutes require foreign entities to qualify to do business. See NRS 80.010 (corporations), NRS 86.544 (limited liability companies), NRS 87A.540 and 88.575 (limited partnerships), NRS 88A.710 (business trusts). Exceptions. (1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Foreign Corporations. A foreign corporation conducting the following activities in Nevada is not considered to be doing business: creating or acquiring indebtedness, mortgages and security interests in real or personal property; securing or collecting debts or enforcing mortgages and security interests in property securing the debts; isolated transactions completed within 30 days and not a part of a series of similar transactions; and transacting business in interstate commerce. See, NRS 80.015(1)(g), (h), (j) and (m). NRS 80.015(3) states that a “person”<a href="#_ftn16" name="_ftnref16">[16]</a> who is not doing business in Nevada within the meaning of NRS 80.015 need not qualify or comply with any provision of NRS Chapter 80 (foreign corporations), or NRS Chapters 645A (escrow agents) or 645B (mortgage companies), or NRS Title 55 (banks and related organizations), unless the person: (a) maintains an office in Nevada for the transaction of business; (b) solicits or accepts deposits in Nevada, except pursuant to the provisions of NRS Chapter 666 or 666A (governing the licensing of banks); (c)&ensp;solicits business for the activities of a mortgage company as defined by NRS 645B.0127; or (d)&ensp;arranges a mortgage loan secured by real property which is not commercial property as defined by NRS 645B.01047. NRS 80.016 defines what constitutes soliciting a deposit in Nevada. A foreign corporation that is doing business in Nevada is required to publish a newspaper statement containing contact information for the corporation. NRS 80.190. (2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Foreign Limited Liability Companies. NRS 86.5483, governing foreign limited liability companies, contains the same list of activities not constituting doing business in Nevada as NRS 80.015, as well as the same exception to the exception for companies that maintain offices , solicits or accepts deposits, solicits mortgage company activities or arranges non-commercial loans in Nevada. NRS 86.5487 defines what constitutes soliciting a deposit in Nevada. (3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Foreign Limited Partnerships. NRS 87A.615 (Uniform Limited Partnership Act 2001) and 88.6026.5483 (Uniform Limited Partnership Act) contain the same list of activities not constituting doing business in Nevada as NRS 80.015, as well as the same exception to the exception for companies that maintain offices , solicits or accepts deposits, solicits mortgage company activities or arranges non-commercial loans in Nevada. NRS 87A.620 and NRS 88.603, respectively, define what constitutes soliciting a deposit in Nevada. (4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Other Entities. No similar list of exceptions exists for other types of business entities. Mortgage Companies. Effective January 1, 2020 Nevada eliminated the distinction between “mortgage brokers” and “mortgage bankers” and now regulates “mortgage companies.” The definition of a mortgage company thus includes both lenders lending their own money and lenders lending money obtained from “investors” (NRS 645B.0121). NRS&ensp;645B.0127 defines “mortgage company” to include any person who (a) holds himself or herself out for hire to serve as an agent for any person in an attempt to obtain a mortgage loan; (b) holds himself or herself out for hire to serve as an agent for any person who has money to lend, if the loan will be secured by a mortgage; (c) holds himself or herself out as being able to make mortgage loans; (d) holds himself or herself out as being able to buy or sell notes secured by mortgages; or (e) offers for sale in Nevada a security which is exempt from registration under state or federal law and purports to make investments in promissory notes secured by mortgages. A “mortgage company” includes a “wholesale lender,” which is a person who: holds himself or herself out: (a)&ensp;for hire to serve as an agent for any person who has money to lend, if the loan is or will be secured by a mortgage; (b) as being able to make loans secured by mortgages; or (c)&ensp;as being able to buy or sell notes secured by mortgages; and who does not directly: (i)&ensp;take or receive an application from a borrower; or (ii)&ensp;negotiate any terms with a borrower. The Chapter, however, does not apply “to a wholesale lender who only funds or purchases commercial mortgage loans.” NRS 645B.0149. Banks and other licensed financial institutions are exempt from licensing, but only if the lender obtains a certificate of exemption. NRS 645B.015(1), NRS 645B.016(1). Twelve other exemptions are subject to the discretionary authority of the Division of Mortgage Lending of the Department of Business and Industry (MLD) to require proof of the exemption. NRS 645B.015(2) - (13), 645B.016(3). A violation of the Chapter occurs whether a mortgage lender conducts business without having the required license or fails to obtain a required certificate of exemption. NRS 645B.900, 645B.910. Void Provisions. NRS Chapter 645B provides that any provision of a “contract or agreement” or “loan document” that alters or waives (i) statutory protections for private investors, NRS 645B.185(4); (ii) statutory restrictions on late fees and other penalties, NRS 645B.240(2); (iii) statutory restrictions on the use of power of attorney, NRS 645B.330(2); (iv) statutory restrictions on binding arbitration, NRS 645B.351(2); or (v) statutory restrictions on placing a private investor into a new entity, NRS 645B.356(5) is “void.” The chapter dies not define “contract or agreement.” Voidable Contracts. NRS 645B.920 provides that a “contract” made with a person who conducts business in Nevada without being licensed or obtaining a certificate of exemption is “voidable” by the other party. The statute refers to violations of NRS 645B.900 and 645B.910, both of which refer in their titles to a person who conducts the “business of mortgage company without meeting certain requirements.” Since the Chapter does not define the term “contract,” the argument has been made that the voidable “contract” referred to in NRS 645B.920 includes&nbsp; a mortgage, however, there is no reported case nor any regulation that so holds. Effect of Violation of Mortgage Company Laws.&ensp;The borrower in Sylver v. Regents Bank, N.A., 129 Nev. 282, 290, 300 P.3d 718, 723 (2013) sought to have his mortgage declared unenforceable because the national bank lender failed to obtain a certificate of exemption, in violation of the mortgage licensing laws in effect at the time. The court declined to address the argument in light of the issues under consideration, stating, “Sylver appears to suggest that loans made in violation of licensing requirements are necessarily unenforceable. While we have previously addressed whether a contract is unenforceable on public policy grounds, we have never addressed whether failure to comply with a licensing requirement necessarily renders a contract unenforceable. We decline to do so now&hellip; .” The issue thus remains open. In addition to any other remedy or penalty, an unlicensed person, or a general partner, director, officer, agent or employee of such person, who provides or offers to provide any of the services of a mortgage company or mortgage loan originator may be liable in a civil action for actual, consequential and punitive damages; reasonable attorney's fees and costs; and any other legal or equitable relief the court deems appropriate. NRS 645B.930. Violations of NRS Chapter 645B constitute a misdemeanor and the violator may be required to pay court costs and reasonable costs of the investigation and prosecution of the violation. NRS 645B.950 The MLD may also require a person who engages in an activity for which a license as a mortgage company or mortgage loan originator is required, without regard to whether the person is licensed, to pay restitution to any person who has suffered an economic loss as a result of a violation of the Chapter or its regulations. Violations of NRS 645B.165 - 645B.180, relating to escrow and trust accounts, constitute a misdemeanor, gross misdemeanor or felony, depending on the amounts involved. Mortgage Servicers. “ &lsquo;Mortgage servicer' means a person who directly services a mortgage loan, or who is responsible for interacting with a borrower, managing a loan account on a daily basis, including, without limitation, collecting and crediting periodic loan payments, managing any escrow account or enforcing the note and security instrument, either as the current owner of the promissory note or as the authorized agent of the current owner of the promissory note. The term includes a person providing such services by contract as a subservicing agent to a master servicer by contract. The term does not include a trustee under a deed of trust, or the trustee's authorized agent, acting under a power of sale pursuant to a deed of trust.” NRS 645F.063 Unless exempt under NRS 645F.500, “a person shall not engage in the business of a mortgage servicer or hold himself or herself out as a mortgage servicer in this State without a license issued pursuant to this chapter.” NRS 645F.510 Residential Foreclosure Consultants, Foreclosure Purchasers, Loan Modification Consultants and Persons Performing Covered Services For Compensation. NRS 645F.300 - NRS 645F. 450 regulates providers of “covered service” (NRS 645F.310), including “foreclosure consultants” (NRS 645F.320), and “loan modification consultants” (NRS 645F.365). “A person shall not advertise services as, provide any of the services of, act as or conduct business as a covered service provider, foreclosure consultant or loan modification consultant or otherwise engage in, carry on or hold himself or herself out as engaging in or carrying on the activities of a covered service provider, foreclosure consultant or loan modification consultant unless the person has a license as a covered service provider, foreclosure consultant or loan modification consultant, as applicable, issued pursuant to the Nevada Covered Service Provider Regulations (NAC 645F.004 - 645F.920) and chapter 645F of NRS.” NAC 645F.105 Construction Control Companies. Pursuant to NRS 627.050, “A &lsquo;construction control' is any person that engages in the control or disbursement of any funds payable or paid to laborers, materialmen, material suppliers, contractors, subcontractors, architects, engineers or others, for the purpose of satisfying bills incurred in construction, repair, alteration or improvement of any premises or that engages in the processing or approval of any mechanic's lien release, voucher or authorization for payment of a labor bill, or material bill where such bill is incurred in the construction, repair, alteration or improvement of any premises.” Construction controls are required to post a bond with the State Contractor's Board. See NRS 627.180(2). With certain exceptions, the chapter does not apply to the activities of “lenders” (NRS 627.100), i.e., licensed financial institutions. See NRS 627.180(1).

LENDER QUALIFICATION AND/OR LICENSURE

Assumption Fee.&nbsp; If a party to a deed of trust plans to charge an assumption fee for a change in parties, the amount of such charge must be clearly set forth in the deed of trust at the time of execution. The amount may be set forth as a fixed sum, a percentage, or some combination thereof. See NRS 107.055. Late Fees. NRS 645B.240 limits when a mortgage company may impose a late fee, an additional amount of interest or any other penalty. NRS 107.530(7)(b) prohibits a mortgage servicer (NRS 107.440) from charging late fees for periods during which: “(1) A foreclosure prevention alternative [NRS 107.420] is under consideration or a denial is being appealed; (2) The borrower is making timely payments under a foreclosure prevention alternative; or (3) A foreclosure prevention alternative is being evaluated or exercised.” Advance Fees. The amount of any advance fee, salary, deposit or money paid to a mortgage company, its mortgage loan originator or any other person to obtain a mortgage loan must be placed in escrow pending completion of the loan or a commitment for the loan. NRS 645B.165. A “mortgage servicer” (NRS 107.44) may not charge or collect any “application, processing or other fee for a foreclosure prevention alternative.” NRS 107.530(7)(a). Investor Funds. Money received by a mortgage company or its mortgage loan originators from an investor to acquire ownership of or a beneficial interest in a mortgage loan must be deposited in escrow. NRS 645B.175. The same statute prescribes when the funds can be released or must be returned, and addresses payments of loan funds to investors.

ANY PROHIBITION OR SPECIAL RULES REGARDING LOAN APPLICATION, LOAN FEES OR COMMITMENT FEES

See above, Future Advances, Statute under SECURING FUTURE ADVANCES AND ADDITIONAL ADVANCES TO PROTECT THE COLLATERAL, INCLUDING PAYMENT OF TAXES AND INSURANCE.

UNUSUAL PROVISIONS OR REQUIREMENTS FOR MODIFICATIONS OF EXISTING MORTGAGE LOANS

Nevada has no express environmental lien provisions. State agencies such as the Nevada Division of Environmental Protection have the ability to levy fines on the basis of environmental contamination, but these agencies do not have lien or assessment rights. See NRS 459.3872. General law cities (i.e., cities that were not incorporated under a special law charter) have the right to establish lien ordinances relating to nuisances; however, unless a city has adopted the necessary lien ordinances it does not otherwise have lien rights under state law. See NRS 266.355(3). A nuisance imposed through an ordinance adopted by a general law city is prior and superior to all liens, claims, encumbrances and titles other than the liens of assessments and general taxes. NRS 266.355(3)(d). Similarly, subject to any restrictions or modifications contained in a city charter, chartered (“special law”) cities also have the ability to establish a nuisance abatement ordinance through which special assessments that are functionally similar to a lien may be assessed against nuisance properties. See NRS 268.4122; see also NRS 268.430. A special assessment imposed as a result of a nuisance action by a chartered city is prior and superior to all liens, claims, encumbrances and titles other than liens of general taxes; a special assessment is considered coequal with a lien for general taxes. NRS 268.430. Nevada counties are prohibited from regulating hazardous wastes; however, counties generally enjoy nuisance enforcement rights similar to those of special law cities. See NRS 244.3605(1)(b); see also NRS 244.360(4). NRS 40.501 to NRS 40.512 address “environmentally impaired” collateral. Among other things, the statutes permit the secured lender to waive the lender's lien as to all of the real collateral and proceed as an unsecured creditor or waive the secured lender's lien as to that part of the real collateral that is environmentally impaired and proceed against the unimpaired real collateral. A separate action for breach of an “environmental provision” is not prohibited by the Nevada one-action rule. NRS 40.430(6)(n), NRS 40.508.

ENVIRONMENTAL LIEN LAW ISSUES

. Nevada does not have a local bar opinion report that articulates standard accepted opinion practices. In 2019, however, the Business Law Section and the Real Property Law Section of the State Bar of Nevada approved the “STATEMENT OF OPINION PRACTICES” published in The Business Lawyer.<a href="#_ftn17" name="_ftnref17">[17]</a> Prior to 2019, the subject was addressed in “Real Estate Opinion and Nevada Law,” Nevada Lawyer (January 2004), authored by members of the Business Law Section of the State Bar. The article refers to a number of opinion reports, including the ABA Business Law Section Legal Opinion Report and Accord of 1991 (Accord) and the American College of Real Estate Lawyers and ABA Real Property and Probate Section Report on Adoption of the Legal Opinion Accord (1993 Real Estate Report). The authors consider 3 forms of “affirmative assurance” in opinion letters, i.e., “the ABA/ACREL Inclusive Opinion version, the &lsquo;practical realization' version and the California Opinion version” (each of which is footnoted in the article), preferring “the ABA/ACREL Inclusive Opinion version, because it specifically articulates the meaning of the &lsquo;principal benefits' that the &lsquo;practical realization' version leaves open.” The article also addressed specific Nevada law qualifications (some of which are based on statutes that have since been amended), involving the one action rule (NRS 40.430), gaming, insurance and condemnation proceeds, impounds for taxes and insurance and oral modifications. Overall, the authors recommend “that any attorney giving third party legal opinions thoroughly review the Accord and the 1993 Real Estate Report, as well as more recent guidelines and principles.” Recent “guidelines and principles” undoubtedly include not only the STATEMENT OF OPINION PRACTICES approved by the Business Law and Real Property Sections, but the Real Estate Finance Opinion Report of 2012, 47 Real Prop. Tr. & Est. J., 213 (2012) and the Local Counsel Opinion Letters in Real Estate Finance Transactions, A Supplement to the Real Estate Finance Opinion Report of 2012, 51 Real Prop. Tr. & Est. J., 167 (2016) and Uniform Commercial Code Opinions in Real Estate Finance Transactions, 53 Real Prop. Tr. & Est. J., 163 (2019). LABOR AND MATERIALMEN'S LIEN CLAIMS - PRIORITY ISSUES:

LEGAL OPINIONS

Nevada law grants lien rights to “any person who provides work, material or equipment with a value of $500 or more to be used in or for the construction, alteration or repair of any improvement, property or work of improvement. The term includes, without limitation, every artisan, builder, potential claimant under NRS 608.150 [subcontractors], contractor, laborer, lessor or renter of equipment, materialman, miner, subcontractor or other person who provides work, material or equipment, and any person who performs services as an architect, engineer, land surveyor or geologist, in relation to the improvement, property or work of improvement.” NRS 108.2214, See NRS 108.221 - 108.246.

MECHANICS LIEN STATUTES

A mechanics' lien's priority dates from the “commencement of construction”. See NRS 108.225. A deed of trust that is recorded after commencement of construction is subordinate to any mechanics' lien that is subsequently recorded with respect to that work of improvement, regardless of when the applicable notice of lien was recorded. Id. “Commencement of construction” is defined as the date on which work performed or materials or equipment furnished in connection with a work of improvement is visible from a reasonable inspection of the site. See NRS 108.22112. In J.E. Dunn Northwest, Inc. v. Corus Construction Venture LLC, 127 Nev. 72, 249 P.3d 501 (2011), the Nevada Supreme Court held that “commencement of construction” requires visibility of on-site work in order for a mechanic's lien to have priority over a deed of trust. Under Fondren v. K/L Complex Ltd., 106 Nev. 705, 800 P.2d 719 (1990) a lien claimant who did not give the required pre-lien notice (NRS 108.245) was permitted to enforce its lien where the owner had actual notice of construction on her property. In Iliescu v. Steppan, 133 Nev. 182, 394 P.3d 930 (2017), the buyer of real property employed an architect to design improvements for the property. The purchase transaction did not close. The architect was not paid and recorded a mechanic's lien against the seller's property. Although the owner had actual notice of the work being done, Iliescu held that the actual notice exception does not extend to offsite work when no onsite work has been performed on the property. Accordingly, the mechanics' lien was not enforceable against the property.

INCEPTION OF MECHANICS' LIEN (priority of lien of Deed of Trust or Mortgage)

Mechanics' liens apply broadly to any fixtures, fences, mines, tunnels, irrigation systems, landscaping, demolition/removal of any vegetation or improvement, drilling test holes, grading, sewer installation, improvements under sidewalks or in front of or adjoining the real property, as they do to any other component of the realty against which the lien is lodged. See 108.22128. A work of improvement includes the “scheme of improvement as a whole” subject to exceptions for projects on separate legal parcels or if buildings are specifically distinguished by separate and distinct prime contracts. See NRS 108.22188. See also, NRS 104.9334(8) regarding a “construction mortgage.”

PRIORITY AS TO REMOVABLE FIXTURES

With specific limited exceptions, a person may not “waive or modify a right, obligation or liability set forth in the provisions of NRS 108.221 to 108.246, inclusive.” See NRS 108.2453(1). Provisions that may not be waived include a provision making the contract or other agreement subject to the laws of a state other than Nevada or requiring that any litigation, arbitration, or other process for dispute resolution occur in a state other than Nevada. NRS 108.2453(2)(c), (d). NRS 108.245 permits a lien waiver (conditional and unconditional) in the following circumstances if it is in statutory form: Where the lien claimant is required to execute a waiver and release in exchange for or to induce the payment of a progress billing and lien claimant is not in fact paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release. NRS 108.2457(5)(a). Where the lien claimant has been paid in full or a part of the amount provided for in the progress billing. NRS 108.2457(5)(b). Where the lien claimant is required to execute a waiver and release in exchange for or to induce payment of final billing and the lien claimant is not paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release. NRS 108.2457(5)(c). Where the lien claimant has been paid the final billing. NRS 108.2457(5)(d). An unconditional release, however, may not be enforceable if the lien claimant is not in fact paid. Cashman Equip. Co. v. W. Edna Assocs., Ltd., 132 Nev. 689, 696, 380 P.3d 844, 849 (2016). Because mechanics' lien rights are statutory, equitable considerations are inappropriate Id. Related to mechanics' lien laws are Nevada “prompt pay” statutes, which, among other things, limit retainages, establish time for payments to contractors and subcontractors and give rise to a contractor's right to stop work under certain circumstances. See NRS 624.606 - 624.630. Rights under these statutes may not be waived. See NRS 624.622(2), 624.628(3).

WAIVERS

Improvements constructed, altered or repaired upon property by a tenant are deemed to have been constructed, altered or repaired at the instance of the owner of the property and subject to statutory mechanics' liens, unless a “disinterested owner” timely records a notice of non-responsibility in accordance with NRS 108.234. An owner is not a “disinterested owner” if its tenant fails to satisfy the requirements of NRS 102.2403 and 108.2407. Under NRS 108.2403, before a tenant causes a work of improvement to be constructed, altered or repaired upon the leased property, the tenant must (a) record a Notice of Posted Security; and (b) either (i) establish and fund a construction disbursement account in an amount equal to the total cost of the work of improvement, but in no event less than the total amount of the prime contract, obtain the services of a “construction control company” (discussed above); or (ii) record a surety bond for the prime contract that meets the requirements of NRS 108.2415(2), and, in either case, notify potential lien claimants of the establishment of the construction disbursement account or the recording of the surety bond. NRS 108.2407 governs administration of the construction disbursement account.

LESSEE'S WORKS OF IMPROVEMENT/NOTICE OF NONRESPONSIBILITY

The attorneys' fees provision related to mechanics' liens is broadly drafted and highly favorable to lien claimants placing a burden of proof on the owner to prove any particular claim of lien was without a reasonable basis in law or fact. If an owner cannot meet this burden of proof, the owner will be required, by statute, to pay the lien claimant's attorneys' fees and other costs (as determined by the court) incurred as a result of the lien challenged by an owner. See NRS 108.2275.

ATTORNEYS' FEES

The preferred form of title insurance required by lenders is the ALTA Loan Policy (6‑17‑06) with extended coverage. Nevada has approved the ALTA 2021 revised forms, but as of July 2023 not all title insurers are using the forms.

FORM USUALLY REQUIRED BY LENDER

Virtually all, if not all, of the California Land Title Association (CLTA) and ALTA endorsements are available in Nevada. The most commonly used endorsements (some of which are duplicative or exclusive of others and not all of which would be relevant to all transactions) are: <ul>
 <li>ALTA Form 3-06 series (Zoning).</li>
 <li>ALTA Form 6-06 (Variable Rate), if applicable.</li>
 <li>ALTA Form 8.1-06 (Environmental Protection Lien).</li>
 <li>ALTA Form 9-06 and 9.3-06 (Covenants, Conditions and Restrictions).</li>
 <li>ALTA Form 17-06 and/or 17.1-06, as applicable (Access Endorsement).</li>
 <li>ALTA 17.2-06 (Utility Access).</li>
 <li>ALTA Form 18-06 (Single Tax Parcel) or ALTA Form 18.1-06 (Multiple Tax Parcel), as applicable.</li>
 <li>ALTA Form 19-06, 19.1/2-06 (Contiguity), if applicable.</li>
 <li>ALTA 22.06 (Location).</li>
 <li>ALTS 24.06 (Doing Business).</li>
 <li>ALTA Form 25-06 (Same as Survey).</li>
 <li>ALTA 26-06 (Legal subdivision).</li>
 <li>ALTA Form 27-06 (Usury).</li>
 <li>ALTA Form 28-06 or CLTA Form 103.1 (Easement — Damage or Enforced Removal for blanket easements).</li>
 <li>ALTA Form 28.1-06 (Encroachments — Boundaries and Easements).</li>
 <li>ALTA 32.1/2-06 (Construction Loan).</li>
 <li>ALTA 33.06 (Construction Loan Disbursement)</li>
 <li>ALTA 35.1 (Damage from Subsurface Minerals/Substances).</li>
 <li>ALTA 37.06 (Assignment of Rents/Leases).</li>
 <li>ALTA 39.06 (Policy Authentication).</li>
 <li>ALTA 41.1-06 (Water Rights)</li>
 <li>CLTA Form 103.2 (Easement Damage - Use or Maintenance)</li>
 <li>CLTA Form 103.3 (Easement Existing Encroachment)</li>
 <li>CLTA 103.5 (Water rights, surface damage)</li>
 <li>Deletion of Arbitration (Some ALTA Nevada policy forms have deleted this provision from the Conditions).</li>
</ul> &nbsp;

Nevada

Mortgage Law Summary

Continue reading the
Mortgage Law Summary for Nevada

Nevada

Mortgage Law Summary

Continue reading theMortgage Law Summary for Nevada

Continue reading the
Mortgage Law Summary for Nevada