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Posts Tagged ‘fixed loan’

Pedestrian Accidents

Friday, August 7th, 2009

Collisions between a pedestrian and a car often produce catastrophic injuries.  A pedestrian has no protection from a car collision.  A car versus pedestrian collision will produce devastating injuries.  Common injuries from car versus pedestrian accidents include broken bones, spinal injuries, brain injuries, and paralysis.  These injuries arise from a series of causes.  First, the pedestrian is struck by a car.  Second, the pedestrian falls to the ground and may be drug behind the initial car.  Third, the pedestrian is struck by oncoming traffic as they lay in the street unable to move.  Our pedestrian accident attorneys are able to get you the money you deserve for your injuries. 
Pedestrian Accidents will almost always require immediate and expensive medical care.  This is the natural result of the traumatic forces involved in the collision.  As well as secondary causes, such as being run over after the pedestrian is knocked to the ground.  Our pedestrian accident attorneys can assist you in getting payment for medical bills, as well as future medical costs. 
It is critical that an experienced pedestrian accident attorney handle your case.  Pedestrian accident cases are complex and require detailed investigation.  Frequently, the pedestrian has no recollection of what vehicle struck him or what happened – they simply wake up in an ambulance or hospital.  Our pedestrian accident attorneys are skilled in reviewing and analyzing the facts of the accident and determining the cause of the pedestrian accident.  Frequent causes of pedestrian accidents include:

1. Failure to yield to a pedestrian
2. Failure to see the pedestrian
3. Passing the pedestrian unsafely
4. Ignoring a crosswalk or crossing signal
5. Striking a pedestrian from behind

          Our pedestrian accident attorneys can investigate your pedestrian accident and help you concentrate on the recovery process. 

Pedestrian accident victims may be entitled to significant financial compensation for their injuries.  Our pedestrian accident attorneys will work hard to get you all the money you deserve.  You may receive money for your medical bills, pain and suffering, lost wages, future medical treatment, and a host of other reasons depending upon your case.  If you have suffered an injury, please contact our pedestrian accident attorneys immediately so we may begin getting you the money you deserve.

Tags: Animal Attacks, Bankruptcy, Bike Accidents, Car Accidents, Defective Products, fixed loan, las vegas loan modification, Law Firm, Law Office of Josh Harmon, Law Office of Joshua L. Harmon, lawsuit, legal representation, Litigation, loan mod, loan modifications, loan restructuring, Mr. Harmon, Personal Injury, Slip and Fall Injuries, TBI, Traumatic Brain Injury, Trial Attorney, Wrongful Death
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Chapter 7

Saturday, August 1st, 2009

Chapter 7

Liquidation Under the Bankruptcy Code

The chapter of the Bankruptcy Code providing for “liquidation,” ( i.e., the sale of a debtor’s nonexempt property and the distribution of the proceeds to creditors.)

a. Alternatives to Chapter 7
b. Background
c. Chapter 7 Eligibility
d. How Chapter 7 Works
e. Role of the Case Trustee
f. The Chapter 7 Discharge

——————————————————————————–

Alternatives to Chapter 7

Debtors should be aware that there are several alternatives to chapter 7 relief. For example, debtors who are engaged in business, including corporations, partnerships, and sole proprietorships, may prefer to remain in business and avoid liquidation. Such debtors should consider filing a petition under chapter 11 of the Bankruptcy Code. Under chapter 11, the debtor may seek an adjustment of debts, either by reducing the debt or by extending the time for repayment, or may seek a more comprehensive reorganization. Sole proprietorships may also be eligible for relief under chapter 13 of the Bankruptcy Code.

In addition, individual debtors who have regular income may seek an adjustment of debts under chapter 13 of the Bankruptcy Code. A particular advantage of chapter 13 is that it provides individual debtors with an opportunity to save their homes from foreclosure by allowing them to “catch up” past due payments through a payment plan. Moreover, the court may dismiss a chapter 7 case filed by an individual whose debts are primarily consumer rather than business debts if the court finds that the granting of relief would be an abuse of chapter 7. 11 U.S.C. § 707(b).

If the debtor’s “current monthly income”(1) is more than the state median, the Bankruptcy Code requires application of a “means test” to determine whether the chapter 7 filing is presumptively abusive. Abuse is presumed if the debtor’s aggregate current monthly income over 5 years, net of certain statutorily allowed expenses, is more than (i) $10,950, or (ii) 25% of the debtor’s nonpriority unsecured debt, as long as that amount is at least $6,575. (2) The debtor may rebut a presumption of abuse only by a showing of special circumstances that justify additional expenses or adjustments of current monthly income. Unless the debtor overcomes the presumption of abuse, the case will generally be converted to chapter 13 (with the debtor’s consent) or will be dismissed. 11 U.S.C. § 707(b)(1).

Debtors should also be aware that out-of-court agreements with creditors or debt counseling services may provide an alternative to a bankruptcy filing.

Background

A chapter 7 bankruptcy case does not involve the filing of a plan of repayment as in chapter 13. Instead, the bankruptcy trustee gathers and sells the debtor’s nonexempt assets and uses the proceeds of such assets to pay holders of claims (creditors) in accordance with the provisions of the Bankruptcy Code. Part of the debtor’s property may be subject to liens and mortgages that pledge the property to other creditors. In addition, the Bankruptcy Code will allow the debtor to keep certain “exempt” property; but a trustee will liquidate the debtor’s remaining assets. Accordingly, potential debtors should realize that the filing of a petition under chapter 7 may result in the loss of property.

Chapter 7 Eligibility

To qualify for relief under chapter 7 of the Bankruptcy Code, the debtor may be an individual, a partnership, or a corporation or other business entity. 11 U.S.C. §§ 101(41), 109(b). Subject to the means test described above for individual debtors, relief is available under chapter 7 irrespective of the amount of the debtor’s debts or whether the debtor is solvent or insolvent. An individual cannot file under chapter 7 or any other chapter, however, if during the preceding 180 days a prior bankruptcy petition was dismissed due to the debtor’s willful failure to appear before the court or comply with orders of the court, or the debtor voluntarily dismissed the previous case after creditors sought relief from the bankruptcy court to recover property upon which they hold liens. 11 U.S.C. §§ 109(g), 362(d) and (e). In addition, no individual may be a debtor under chapter 7 or any chapter of the Bankruptcy Code unless he or she has, within 180 days before filing, received credit counseling from an approved credit counseling agency either in an individual or group briefing. 11 U.S.C. §§ 109, 111. There are exceptions in emergency situations or where the U.S. trustee (or bankruptcy administrator) has determined that there are insufficient approved agencies to provide the required counseling. If a debt management plan is developed during required credit counseling, it must be filed with the court.

One of the primary purposes of bankruptcy is to discharge certain debts to give an honest individual debtor a “fresh start.” The debtor has no liability for discharged debts. In a chapter 7 case, however, a discharge is only available to individual debtors, not to partnerships or corporations. 11 U.S.C. § 727(a)(1). Although an individual chapter 7 case usually results in a discharge of debts, the right to a discharge is not absolute, and some types of debts are not discharged. Moreover, a bankruptcy discharge does not extinguish a lien on property.

How Chapter 7 Works

A chapter 7 case begins with the debtor filing a petition with the bankruptcy court serving the area where the individual lives or where the business debtor is organized or has its principal place of business or principal assets. (3) In addition to the petition, the debtor must also file with the court: (1) schedules of assets and liabilities; (2) a schedule of current income and expenditures; (3) a statement of financial affairs; and (4) a schedule of executory contracts and unexpired leases. Fed. R. Bankr. P. 1007(b). Debtors must also provide the assigned case trustee with a copy of the tax return or transcripts for the most recent tax year as well as tax returns filed during the case (including tax returns for prior years that had not been filed when the case began). 11 U.S.C. § 521. Individual debtors with primarily consumer debts have additional document filing requirements. They must file: a certificate of credit counseling and a copy of any debt repayment plan developed through credit counseling; evidence of payment from employers, if any, received 60 days before filing; a statement of monthly net income and any anticipated increase in income or expenses after filing; and a record of any interest the debtor has in federal or state qualified education or tuition accounts. Id. A husband and wife may file a joint petition or individual petitions. 11 U.S.C. § 302(a). Even if filing jointly, a husband and wife are subject to all the document filing requirements of individual debtors. (The Official Forms may be purchased at legal stationery stores or downloaded from the internet at www.uscourts.gov/bkforms/index.html. They are not available from the court.)

The courts must charge a $245 case filing fee, a $39 miscellaneous administrative fee, and a $15 trustee surcharge. Normally, the fees must be paid to the clerk of the court upon filing. With the court’s permission, however, individual debtors may pay in installments. 28 U.S.C. § 1930(a); Fed. R. Bankr. P. 1006(b); Bankruptcy Court Miscellaneous Fee Schedule, Item 8. The number of installments is limited to four, and the debtor must make the final installment no later than 120 days after filing the petition. Fed. R. Bankr. P. 1006. For cause shown, the court may extend the time of any installment, provided that the last installment is paid not later than 180 days after filing the petition. Id. The debtor may also pay the $39 administrative fee and the $15 trustee surcharge in installments. If a joint petition is filed, only one filing fee, one administrative fee, and one trustee surcharge are charged. Debtors should be aware that failure to pay these fees may result in dismissal of the case. 11 U.S.C. § 707(a).

If the debtor’s income is less than 150% of the poverty level (as defined in the Bankruptcy Code), and the debtor is unable to pay the chapter 7 fees even in installments, the court may waive the requirement that the fees be paid. 28 U.S.C. § 1930(f).

In order to complete the Official Bankruptcy Forms that make up the petition, statement of financial affairs, and schedules, the debtor must provide the following information:

1. A list of all creditors and the amount and nature of their claims;
2. The source, amount, and frequency of the debtor’s income;
3. A list of all of the debtor’s property; and
4. A detailed list of the debtor’s monthly living expenses, i.e., food, clothing, shelter, utilities, taxes, transportation, medicine, etc.
Married individuals must gather this information for their spouse regardless of whether they are filing a joint petition, separate individual petitions, or even if only one spouse is filing. In a situation where only one spouse files, the income and expenses of the non-filing spouse is required so that the court, the trustee and creditors can evaluate the household’s financial position.

Among the schedules that an individual debtor will file is a schedule of “exempt” property. The Bankruptcy Code allows an individual debtor (4) to protect some property from the claims of creditors because it is exempt under federal bankruptcy law or under the laws of the debtor’s home state. 11 U.S.C. § 522(b). Many states have taken advantage of a provision in the Bankruptcy Code that permits each state to adopt its own exemption law in place of the federal exemptions. In other jurisdictions, the individual debtor has the option of choosing between a federal package of exemptions or the exemptions available under state law. Thus, whether certain property is exempt and may be kept by the debtor is often a question of state law. The debtor should consult an attorney to determine the exemptions available in the state where the debtor lives.

Filing a petition under chapter 7 “automatically stays” (stops) most collection actions against the debtor or the debtor’s property. 11 U.S.C. § 362. But filing the petition does not stay certain types of actions listed under 11 U.S.C. § 362(b), and the stay may be effective only for a short time in some situations. The stay arises by operation of law and requires no judicial action. As long as the stay is in effect, creditors generally may not initiate or continue lawsuits, wage garnishments, or even telephone calls demanding payments. The bankruptcy clerk gives notice of the bankruptcy case to all creditors whose names and addresses are provided by the debtor.

Between 20 and 40 days after the petition is filed, the case trustee (described below) will hold a meeting of creditors. If the U.S. trustee or bankruptcy administrator (5) schedules the meeting at a place that does not have regular U.S. trustee or bankruptcy administrator staffing, the meeting may be held no more than 60 days after the order for relief. Fed. R. Bankr. P. 2003(a). During this meeting, the trustee puts the debtor under oath, and both the trustee and creditors may ask questions. The debtor must attend the meeting and answer questions regarding the debtor’s financial affairs and property. 11 U.S.C. § 343. If a husband and wife have filed a joint petition, they both must attend the creditors’ meeting and answer questions. Within 10 days of the creditors’ meeting, the U.S. trustee will report to the court whether the case should be presumed to be an abuse under the means test described in 11 U.S.C. § 704(b).

It is important for the debtor to cooperate with the trustee and to provide any financial records or documents that the trustee requests. The Bankruptcy Code requires the trustee to ask the debtor questions at the meeting of creditors to ensure that the debtor is aware of the potential consequences of seeking a discharge in bankruptcy such as the effect on credit history, the ability to file a petition under a different chapter, the effect of receiving a discharge, and the effect of reaffirming a debt. Some trustees provide written information on these topics at or before the meeting to ensure that the debtor is aware of this information. In order to preserve their independent judgment, bankruptcy judges are prohibited from attending the meeting of creditors. 11 U.S.C. § 341(c).

In order to accord the debtor complete relief, the Bankruptcy Code allows the debtor to convert a chapter 7 case to case under chapter 11, 12 or 13 (6) as long as the debtor is eligible to be a debtor under the new chapter. However, a condition of the debtor’s voluntary conversion is that the case has not previously been converted to chapter 7 from another chapter. 11 U.S.C. § 706(a). Thus, the debtor will not be permitted to convert the case repeatedly from one chapter to another.

Role of the Case Trustee

When a chapter 7 petition is filed, the U.S. trustee (or the bankruptcy court in Alabama and North Carolina) appoints an impartial case trustee to administer the case and liquidate the debtor’s nonexempt assets. 11 U.S.C. §§ 701, 704. If all the debtor’s assets are exempt or subject to valid liens, the trustee will normally file a “no asset” report with the court, and there will be no distribution to unsecured creditors. Most chapter 7 cases involving individual debtors are no asset cases. But if the case appears to be an “asset” case at the outset, unsecured creditors (7) must file their claims with the court within 90 days after the first date set for the meeting of creditors. Fed. R. Bankr. P. 3002(c). A governmental unit, however, has 180 days from the date the case is filed to file a claim. 11 U.S.C. § 502(b)(9). In the typical no asset chapter 7 case, there is no need for creditors to file proofs of claim because there will be no distribution. If the trustee later recovers assets for distribution to unsecured creditors, the Bankruptcy Court will provide notice to creditors and will allow additional time to file proofs of claim. Although a secured creditor does not need to file a proof of claim in a chapter 7 case to preserve its security interest or lien, there may be other reasons to file a claim. A creditor in a chapter 7 case who has a lien on the debtor’s property should consult an attorney for advice.

Commencement of a bankruptcy case creates an “estate.” The estate technically becomes the temporary legal owner of all the debtor’s property. It consists of all legal or equitable interests of the debtor in property as of the commencement of the case, including property owned or held by another person if the debtor has an interest in the property. Generally speaking, the debtor’s creditors are paid from nonexempt property of the estate.

The primary role of a chapter 7 trustee in an asset case is to liquidate the debtor’s nonexempt assets in a manner that maximizes the return to the debtor’s unsecured creditors. The trustee accomplishes this by selling the debtor’s property if it is free and clear of liens (as long as the property is not exempt) or if it is worth more than any security interest or lien attached to the property and any exemption that the debtor holds in the property. The trustee may also attempt to recover money or property under the trustee’s “avoiding powers.” The trustee’s avoiding powers include the power to: set aside preferential transfers made to creditors within 90 days before the petition; undo security interests and other prepetition transfers of property that were not properly perfected under nonbankruptcy law at the time of the petition; and pursue nonbankruptcy claims such as fraudulent conveyance and bulk transfer remedies available under state law. In addition, if the debtor is a business, the bankruptcy court may authorize the trustee to operate the business for a limited period of time, if such operation will benefit creditors and enhance the liquidation of the estate. 11 U.S.C. § 721.

Section 726 of the Bankruptcy Code governs the distribution of the property of the estate. Under § 726, there are six classes of claims; and each class must be paid in full before the next lower class is paid anything. The debtor is only paid if all other classes of claims have been paid in full. Accordingly, the debtor is not particularly interested in the trustee’s disposition of the estate assets, except with respect to the payment of those debts which for some reason are not dischargeable in the bankruptcy case. The individual debtor’s primary concerns in a chapter 7 case are to retain exempt property and to receive a discharge that covers as many debts as possible.

The Chapter 7 Discharge

A discharge releases individual debtors from personal liability for most debts and prevents the creditors owed those debts from taking any collection actions against the debtor. Because a chapter 7 discharge is subject to many exceptions, though, debtors should consult competent legal counsel before filing to discuss the scope of the discharge. Generally, excluding cases that are dismissed or converted, individual debtors receive a discharge in more than 99 percent of chapter 7 cases. In most cases, unless a party in interest files a complaint objecting to the discharge or a motion to extend the time to object, the bankruptcy court will issue a discharge order relatively early in the case – generally, 60 to 90 days after the date first set for the meeting of creditors. Fed. R. Bankr. P. 4004(c).

The grounds for denying an individual debtor a discharge in a chapter 7 case are narrow and are construed against the moving party. Among other reasons, the court may deny the debtor a discharge if it finds that the debtor: failed to keep or produce adequate books or financial records; failed to explain satisfactorily any loss of assets; committed a bankruptcy crime such as perjury; failed to obey a lawful order of the bankruptcy court; fraudulently transferred, concealed, or destroyed property that would have become property of the estate; or failed to complete an approved instructional course concerning financial management. 11 U.S.C. § 727; Fed. R. Bankr. P. 4005.

Secured creditors may retain some rights to seize property securing an underlying debt even after a discharge is granted. Depending on individual circumstances, if a debtor wishes to keep certain secured property (such as an automobile), he or she may decide to “reaffirm” the debt. A reaffirmation is an agreement between the debtor and the creditor that the debtor will remain liable and will pay all or a portion of the money owed, even though the debt would otherwise be discharged in the bankruptcy. In return, the creditor promises that it will not repossess or take back the automobile or other property so long as the debtor continues to pay the debt.

If the debtor decides to reaffirm a debt, he or she must do so before the discharge is entered. The debtor must sign a written reaffirmation agreement and file it with the court. 11 U.S.C. § 524(c). The Bankruptcy Code requires that reaffirmation agreements contain an extensive set of disclosures described in 11 U.S.C. § 524(k). Among other things, the disclosures must advise the debtor of the amount of the debt being reaffirmed and how it is calculated and that reaffirmation means that the debtor’s personal liability for that debt will not be discharged in the bankruptcy. The disclosures also require the debtor to sign and file a statement of his or her current income and expenses which shows that the balance of income paying expenses is sufficient to pay the reaffirmed debt. If the balance is not enough to pay the debt to be reaffirmed, there is a presumption of undue hardship, and the court may decide not to approve the reaffirmation agreement. Unless the debtor is represented by an attorney, the bankruptcy judge must approve the reaffirmation agreement.

If the debtor was represented by an attorney in connection with the reaffirmation agreement, the attorney must certify in writing that he or she advised the debtor of the legal effect and consequences of the agreement, including a default under the agreement. The attorney must also certify that the debtor was fully informed and voluntarily made the agreement and that reaffirmation of the debt will not create an undue hardship for the debtor or the debtor’s dependants. 11 U.S.C. § 524(k). The Bankruptcy Code requires a reaffirmation hearing if the debtor has not been represented by an attorney during the negotiating of the agreement, or if the court disapproves the reaffirmation agreement.11 U.S.C. § 524(d) and (m). The debtor may repay any debt voluntarily, however, whether or not a reaffirmation agreement exists. 11 U.S.C. § 524(f).

An individual receives a discharge for most of his or her debts in a chapter 7 bankruptcy case. A creditor may no longer initiate or continue any legal or other action against the debtor to collect a discharged debt. But not all of an individual’s debts are discharged in chapter 7. Debts not discharged include debts for alimony and child support, certain taxes, debts for certain educational benefit overpayments or loans made or guaranteed by a governmental unit, debts for willful and malicious injury by the debtor to another entity or to the property of another entity, debts for death or personal injury caused by the debtor’s operation of a motor vehicle while the debtor was intoxicated from alcohol or other substances, and debts for certain criminal restitution orders.11 U.S.C. § 523(a). The debtor will continue to be liable for these types of debts to the extent that they are not paid in the chapter 7 case. Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for willful and malicious injury by the debtor to another entity or to the property of another entity will be discharged unless a creditor timely files and prevails in an action to have such debts declared nondischargeable. 11 U.S.C. § 523(c); Fed. R. Bankr. P. 4007(c).

The court may revoke a chapter 7 discharge on the request of the trustee, a creditor, or the U.S. trustee if the discharge was obtained through fraud by the debtor, if the debtor acquired property that is property of the estate and knowingly and fraudulently failed to report the acquisition of such property or to surrender the property to the trustee, or if the debtor (without a satisfactory explanation) makes a material misstatement or fails to provide documents or other information in connection with an audit of the debtor’s case. 11 U.S.C. § 727(d).

——————————————————————————–

NOTES

1. The “current monthly income” received by the debtor is a defined term in the Bankruptcy Code and means the average monthly income received over the six calendar months before commencement of the bankruptcy case, including regular contributions to household expenses from nondebtors and including income from the debtor’s spouse if the petition is a joint petition, but not including social security income or certain payments made because the debtor is the victim of certain crimes. 11 U.S.C. § 101(10A). return to text
2. To determine whether a presumption of abuse arises, all individual debtors with primarily consumer debts who file a chapter 7 case must complete Official Bankruptcy Form B22A, entitled “Statement of Current Monthly Income and Means Test Calculation – For Use in Chapter 7.” (The Official Forms may be purchased at legal stationery stores or downloaded from the internet at www.uscourts.gov/bkforms/index.html. They are not available from the court.) return to text
3. An involuntary chapter 7 case may be commenced under certain circumstances by a petition filed by creditors holding claims against the debtor. 11 U.S.C. § 303. return to text
4. Each debtor in a joint case (both husband and wife) can claim exemptions under the federal bankruptcy laws. 11 U.S.C. § 522(m). return to text
5. In North Carolina and Alabama, bankruptcy administrators perform similar functions that U.S. trustees perform in the remaining 48 states. These duties include establishing a panel of private trustees to serve as trustees in chapter 7 cases and supervising the administration of cases and trustees in cases under chapters 7, 11, 12, and 13 of the Bankruptcy Code. The bankruptcy administrator program is administered by the Administrative Office of the United States Courts, while the U.S. trustee program is administered by the Department of Justice. For purposes of this publication, references to U.S. trustees are also applicable to bankruptcy administrators. return to text
6. A fee is charged for converting, on request of the debtor, a case under chapter 7 to a case under chapter 11. The fee charged is the difference between the filing fee for a chapter 7 and the filing fee for a chapter 11. 28 U.S.C. § 1930(a). Currently, the difference is $755. Id. There is no fee for converting from chapter 7 to chapter 13. return to text
7. Unsecured debts generally may be defined as those for which the extension of credit was based purely upon an evaluation by the creditor of the debtor’s ability to pay, as opposed to secured debts, for which the extension of credit was based upon the creditor’s right to seize collateral on default, in addition to the debtor’s ability to pay. return to text

Source:  http://www.uscourts.gov/bankruptcycourts/bankruptcybasics/process.html

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New FHA-Making Home Affordable Loan Modification Guidelines

Saturday, August 1st, 2009

Press Releases

Source: http://www.makinghomeaffordable.gov/pr_07302009.html

Tags: Bankruptcy, fixed loan, fixed mortgage, interest rate reduction, Josh Harmon, Joshua L. Harmon, las vegas loan modification, Law Firm, Law Office of Josh Harmon, Law Office of Joshua L. Harmon, legal representation, loan mod, loan restructuring, making home affordable, Mr. Harmon, Slip and Fall Injuries, Trial Attorney
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Q1 2009 Realty Trac

Saturday, August 1st, 2009

Foreclosure Activity Increases 9 Percent in First Quarter According to RealtyTrac(R) U.S. Foreclosure Market Report

		U.S. Foreclosure Market Report Q1 2009 Heat Map. (PRNewsFoto/RealtyTrac Inc.)   IRVINE, CA UNITED STATES

  

 

U.S. Foreclosure Activity Up 24 Percent From Q1 2008 March Activity Up 17 Percent From February, 46 Percent From March 2008 IRVINE, Calif., April 16 /PRNewswire/ -- RealtyTrac(R) (http://www.realtytrac.com), the leading online marketplace for foreclosure properties, today released its U.S. Foreclosure Market Report(TM) for Q1 2009, which shows that foreclosure filings -- default notices, auction sale notices and bank repossessions -- were reported on 803,489 properties in the first quarter, a 9 percent increase from the previous quarter and an increase of nearly 24 percent from Q1 2008. One in every 159 U.S. housing units received a foreclosure filing during the quarter. Foreclosure filings were reported on 341,180 properties in March, a 17 percent increase from the previous month and a 46 percent increase from March 2008. The March and Q1 2009 totals were the highest monthly and quarterly totals since RealtyTrac began issuing its report in January 2005 despite a decrease in bank repossessions (REOs), which were down 13 percent from the fourth quarter of 2008 and 3 percent from February totals. "In the month of March we saw a record level of foreclosure activity -- the number of households that received a foreclosure filing was more than 12 percent higher than the next highest month on record. Since much of this activity was in new foreclosure actions, it suggests that many lenders and servicers were holding off on executing foreclosures due to industry moratoria and legislative delays," said James J. Saccacio, chief executive officer of RealtyTrac. "It's also likely that the drop in REO activity can be attributed to these processing delays, rather than to any of the foreclosure prevention programs currently in place. It's very likely that we'll see the number of REOs increase again now that most of the moratoria have been lifted." "On a positive note, it appears that demand is up in some of the harder-hit areas, particularly on bank-owned REO properties that first time homebuyers and investors see as bargains," Saccacio continued. "But it's unlikely that this increased demand will be enough to offset the growing number of foreclosures in the pipeline, accelerated by rising unemployment rates." Nevada, Arizona, California post top state foreclosure rates in first quarter Nevada continued to document the nation's highest state foreclosure rate in the first quarter, with one in every 27 housing units receiving a foreclosure filing -- more than five times the national average. Foreclosure filings were reported on 41,296 Nevada properties during the quarter, an increase of 19 percent from the previous quarter and an increase of nearly 111 percent from Q1 2008. Bank repossessions in Nevada were down 3 percent from the previous quarter, but defaults increased 27 percent and auction sale notices increased 35 percent. Arizona posted the nation's second highest state foreclosure rate for the first quarter, with one in every 54 housing units receiving a foreclosure filing, and California posted the nation's third highest state foreclosure rate, with one in every 58 housing units receiving a foreclosure filing. Other states with foreclosure rates ranking among the top 10 in the first quarter were Florida, Illinois, Michigan, Georgia, Idaho, Utah and Oregon. Five states account for nearly 60 percent of nation's first quarter total California, Florida, Arizona, Nevada and Illinois accounted for nearly 60 percent of the nation's foreclosure activity in the first quarter, with 479,516 properties receiving foreclosure filings in the five states combined. With 230,915 properties receiving foreclosure filings during the quarter, California accounted for nearly 29 percent of the nation's total. The state's foreclosure activity increased 35 percent from the previous quarter and 36 percent from Q1 2008, and the first-quarter total was state's highest quarterly total since RealtyTrac began issuing its report in the first quarter of 2005. Despite a 12 percent decrease from the previous quarter, Florida's first quarter total was still second highest in the nation. Foreclosure filings were reported on 119,220 Florida properties, a 36 percent increase from the first quarter of 2008. The state posted the nation's fourth highest state foreclosure rate during the quarter, with one in every 73 housing units receiving a foreclosure filing. Foreclosure filings were reported on 49,119 Arizona properties in the first quarter of 2009, the third highest total among the states, and 41,296 Nevada properties received a foreclosure filing in the first quarter of 2009, the fourth highest total among the states. Illinois posted the nation's fifth highest total, with 38,966 properties receiving a foreclosure filing during the first quarter -- a 32 percent increase from the previous quarter and a 68 percent increase from the first quarter of 2008. With one in every 135 housing units receiving a foreclosure filing, the state's foreclosure rate also ranked fifth highest among the states. Rounding out the states with the 10 highest foreclosure activity totals in Q1 2009 were Michigan, Ohio, Georgia, Texas and Virginia. Report methodology The RealtyTrac U.S. Foreclosure Market Report provides a count of the total number of properties with at least one foreclosure filing reported during the month or quarter -- broken out by type of filing at the state and national level. Data is also available at the individual county level for both Q1 2009 and March 2009. Data is collected from more than 2,200 counties nationwide, and those counties account for more than 90 percent of the U.S. population. RealtyTrac's report incorporates documents filed in all three phases of foreclosure: Default -- Notice of Default (NOD) and Lis Pendens (LIS); Auction -- Notice of Trustee Sale and Notice of Foreclosure Sale (NTS and NFS); and Real Estate Owned, or REO properties (that have been foreclosed on and repurchased by a bank). If more than one foreclosure document is filed against a property during the month or quarter, only the most recent filing is counted in the report. U.S. Foreclosure Market Data by State - Q1 2009 Properties with Foreclosure Filings Rate State Rank Name NOD LIS NTS NFS -- U.S. 156,933 149,852 225,752 80,409 35 Alabama 0 0 2,291 0 33 Alaska 0 0 349 0 2 Arizona 21 0 35,079 0 20 Arkansas 536 0 2,973 0 3 California 124,875 0 60,256 0 12 Colorado 7 0 9,186 0 15 Connecticut 0 4,256 16 461 31 Delaware 0 1 6 607 District of Columbia 274 0 400 0 4 Florida 0 70,114 183 33,035 7 Georgia 1 0 18,938 0 26 Hawaii 300 0 1,094 0 8 Idaho 2,141 0 1,954 0 5 Illinois 0 19,848 120 11,612 14 Indiana 0 4,588 93 4,523 38 Iowa 0 0 718 0 32 Kansas 0 335 16 915 42 Kentucky 0 116 28 1,003 40 Louisiana 0 9 19 1,507 39 Maine 206 81 281 144 16 Maryland 0 6,547 21 1,584 27 Massachusetts 0 4,282 11 1,401 6 Michigan 791 0 21,863 0 25 Minnesota 8 0 3,750 0 44 Mississippi 0 0 630 0 28 Missouri 32 0 4,003 0 47 Montana 0 0 23 0 48 Nebraska 0 161 10 18 1 Nevada 20,534 0 10,320 0 19 New Hampshire 0 0 1,648 0 24 New Jersey 0 7,254 16 2,771 41 New Mexico 0 294 4 266 37 New York 0 7,647 15 2,296 36 North Carolina 514 0 2,253 0 45 North Dakota 0 0 1 44 11 Ohio 0 12,279 137 10,398 34 Oklahoma 802 0 1,249 0 10 Oregon 3,166 0 5,465 0 30 Pennsylvania 0 4,477 27 4,277 18 Rhode Island 0 0 830 0 23 South Carolina 0 3,196 29 1,372 49 South Dakota 0 0 1 92 17 Tennessee 1 0 5,753 0 29 Texas 34 0 14,564 0 9 Utah 2,396 0 1,982 0 50 Vermont 0 0 1 0 13 Virginia 294 0 9,858 0 21 Washington 0 0 6,810 0 46 West Virginia 0 0 285 0 22 Wisconsin 0 4,367 67 2,083 43 Wyoming 0 0 126 0 1/every % change % change Rate State X HU from from Rank Name REO Total (rate) Q4 08 Q1 08 -- U.S. 190,543 803,489 159 9.16 23.63 35 Alabama 1,378 3,669 582 74.71 115.82* 33 Alaska 202 551 512 -24.31 14.55 2 Arizona 14,019 49,119 54 6.22 79.24 20 Arkansas 1,072 4,581 281 -3.23 22.09 3 California 45,784 230,915 58 35.13 35.97 12 Colorado 3,412 12,605 169 -13.84 -33.64 15 Connecticut 1,143 5,876 245 -6.76 -23.01 31 Delaware 214 828 469 2.60 54.19 District of Columbia 163 837 340 4.23 -23.14 4 Florida 15,888 119,220 73 -12.19 35.64 7 Georgia 9,669 28,608 138 10.66 0.37 26 Hawaii 160 1,554 326 25.32 318.87 8 Idaho 198 4,293 147 15.56 137.18* 5 Illinois 7,386 38,966 135 31.66 67.85 14 Indiana 3,253 12,457 223 -6.01 -10.61 38 Iowa 854 1,572 846 -8.92 0.38 32 Kansas 1,285 2,551 478 35.55 82.74 42 Kentucky 588 1,735 1,099 -3.29 9.67 40 Louisiana 436 1,971 943 15.87 1.70 39 Maine 64 776 898 -14.25 32.20 16 Maryland 1,137 9,289 250 -7.39 -18.47 27 Massachusetts 2,499 8,193 332 -9.16 -49.94 6 Michigan 10,530 33,184 136 -1.98 12.32 25 Minnesota 3,415 7,173 321 7.83 69.53 44 Mississippi 138 768 1,634 57.38 67.69* 28 Missouri 3,256 7,291 363 -13.75t -17.55t 47 Montana 130 153 2,847 -44.96 -63.66 48 Nebraska 33 222 3,517 29.07 -70.08 1 Nevada 10,442 41,296 27 19.13 110.75 19 New Hampshire 577 2,225 267 4.26 24.44 24 New Jersey 1,668 11,709 299 -29.17 -10.65 41 New Mexico 253 817 1,055 6.80 -30.88 37 New York 1,059 11,017 721 31.69 -23.37 36 North Carolina 3,221 5,988 689 -19.69 -41.77 45 North Dakota 76 121 2,567 -4.72 142.00* 11 Ohio 8,781 31,595 160 -3.14 1.10 34 Oklahoma 861 2,912 557 1.68 -10.10 10 Oregon 1,916 10,547 153 29.41 151.00* 30 Pennsylvania 3,016 11,797 464 5.36 99.92* 18 Rhode Island 881 1,711 264 -23.79 8.22 23 South Carolina 2,419 7,016 288 27.10 261.84* 49 South Dakota 3 96 3,721 -20.66 50.00 17 Tennessee 4,608 10,362 263 2.03 -16.36tt 29 Texas 10,661 25,259 373 14.87 -25.03 9 Utah 1,765 6,143 151 12.47 86.77 50 Vermont 20 21 14,830 -59.62 600.00* 13 Virginia 4,573 14,725 222 -10.73t 11.97t 21 Washington 2,903 9,713 283 2.69 46.32 46 West Virginia 50 335 2,635 95.91 134.27 22 Wisconsin 2,393 8,910 287 57.70 57.09* 43 Wyoming 91 217 1,117 -11.07 32.32 *Actual increase may not be as high due to data collection changes or Improvements t Collection of some records previously classified as NOD in this state was discontinued starting in January 2009 tt Collection of some records previously classified as NOD in this state was discontinued starting in September 2008 U.S. Foreclosure Rates Heat Map - Q1 2009 (Photo: http://www.newscom.com/cgi-bin/prnh/20090416/LA99849) U.S. Foreclosure Market Data by State - March 2009 Properties with Foreclosure Filings Rate State Rank Name NOD LIS NTS NFS -- U.S. 72,790 58,741 104,856 33,042 29 Alabama 0 0 1,655 0 33 Alaska 0 0 155 0 3 Arizona 3 0 14,012 0 18 Arkansas 234 0 1,203 0 2 California 58,858 0 34,575 0 10 Colorado 2 0 3,703 0 13 Connecticut 0 2,187 0 158 28 Delaware 0 0 0 339 District of Columbia 98 0 153 0 4 Florida 0 26,964 0 13,566 5 Georgia 0 0 8,136 0 21 Hawaii 149 0 509 0 7 Idaho 1,133 0 726 0 8 Illinois 0 7,362 0 4,740 14 Indiana 0 1,964 1 1,587 40 Iowa 0 0 181 0 34 Kansas 0 170 0 305 42 Kentucky 0 15 0 398 37 Louisiana 0 7 0 740 41 Maine 0 81 0 144 20 Maryland 0 2,210 0 732 31 Mass. 0 1,708 0 456 9 Michigan 0 0 8,286 0 24 Minnesota 2 0 1,929 0 46 Mississippi 0 0 179 0 30 Missouri 3 0 1,630 0 48 Montana 0 0 6 0 44 Nebraska 0 161 0 6 1 Nevada 10,351 0 5,055 0 23 New Hampshire 0 0 617 0 25 New Jersey 0 2,748 0 1,098 39 New Mexico 0 134 0 93 36 New York 0 3,459 0 721 38 North Carolina 213 0 653 0 47 North Dakota 0 0 0 22 11 Ohio 0 4,828 0 4,447 35 Oklahoma 324 0 580 0 12 Oregon 28 0 2,766 0 32 Pennsylvania 0 1,777 0 1,891 22 Rhode Island 0 0 300 0 26 South Carolina 0 1,069 0 485 49 South Dakota 0 0 0 24 16 Tennessee 0 0 2,496 0 27 Texas 16 0 7,151 0 6 Utah 1,372 0 1,013 0 50 Vermont 0 0 0 0 15 Virginia 4 0 3,971 0 17 Washington 0 0 3,031 0 45 West Virginia 0 0 135 0 19 Wisconsin 0 1,897 0 1,090 43 Wyoming 0 0 49 0 % change % change Rate State from from Rank Name REO Total Feb 09 Mar 08 -- U.S. 71,751 341,180 17.46 46.37 29 Alabama 605 2,260 216.97* 248.23* 33 Alaska 69 224 10.34 16.67 3 Arizona 4,861 18,876 4.18 105.20 18 Arkansas 486 1,923 19.00 58.93 2 California 14,352 107,785 33.44 66.56 10 Colorado 1,875 5,580 32.26 -9.71 13 Connecticut 540 2,885 29.95 35.70 28 Delaware 92 431 57.88 124.48 District of Columbia 77 328 -13.46 6.84 4 Florida 6,601 47,131 1.60 55.78 5 Georgia 5,230 13,366 31.23 20.99 21 Hawaii 66 724 34.82 503.33 7 Idaho 62 1,921 8.90 192.39* 8 Illinois 3,296 15,398 8.30 78.57 14 Indiana 1,574 5,126 16.34 0.14 40 Iowa 305 486 -16.06 -5.08 34 Kansas 369 844 -27.92 18.87 42 Kentucky 218 631 5.52 -8.68 37 Louisiana 200 947 39.68 51.28 41 Maine 24 249 -4.60 27.04 20 Maryland 392 3,334 4.97 -22.01 31 Mass. 508 2,672 -9.12 -52.05 9 Michigan 4,131 12,417 -1.17 30.79 24 Minnesota 1,146 3,077 19.54 132.58 46 Mississippi 42 221 -24.83 17.55 30 Missouri 1,082 2,715 -13.23 -19.39t 48 Montana 56 62 14.81 -59.74 44 Nebraska 16 183 1307.69 -33.21 1 Nevada 4,443 19,849 25.76 159.16 23 New Hampshire 207 824 11.50 99.03 25 New Jersey 724 4,570 39.37 1.96 39 New Mexico 119 346 -7.24 1.17 36 New York 329 4,509 10.84 -11.38 38 North Carolina 1,111 1,977 -3.04 -40.05 47 North Dakota 31 53 43.24 562.50* 11 Ohio 3,336 12,611 12.29 11.87 35 Oklahoma 215 1,119 8.64 -22.67 12 Oregon 594 3,388 -6.10 107.47* 32 Pennsylvania 1,275 4,943 17.92 70.45* 22 Rhode Island 333 633 54.77 59.05 26 South Carolina 812 2,366 -4.33 153.86* 49 South Dakota 1 25 -21.88 56.25 16 Tennessee 1,925 4,421 19.78 13.16tt 27 Texas 3,449 10,616 0.85 -0.79 6 Utah 700 3,085 70.91 150.81 50 Vermont 4 4 -63.64 100.00* 15 Virginia 1,780 5,755 19.32 16.66t 17 Washington 1,205 4,236 37.71 89.62 45 West Virginia 27 162 45.95 138.24 19 Wisconsin 825 3,812 27.66 83.89* 43 Wyoming 31 80 -1.23 -2.44 *Actual increase may not be as high due to data collection changes or Improvements t Collection of some records previously classified as NOD in this state was discontinued starting in January 2009 tt Collection of some records previously classified as NOD in this state was discontinued starting in September 2008 About RealtyTrac Inc. RealtyTrac (http://www.realtytrac.com) is the leading online marketplace of foreclosure properties, with more than 1.5 million default, auction and bank-owned listings from over 2,200 U.S. counties, along with detailed property, loan and home sales data. Hosting more than 3 million unique monthly visitors, RealtyTrac provides innovative technology solutions and practical education resources to facilitate buying, selling and investing in real estate. RealtyTrac's foreclosure data has also been used by the Federal Reserve, FBI, U.S. Senate Joint Economic Committee and Banking Committee, U.S. Treasury Department, and numerous state housing and banking departments to help evaluate foreclosure trends and address policy issues related to foreclosures.

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State Foreclosure Laws

Saturday, August 1st, 2009

Judicial foreclosure: In the absence of a power of sale clause in the loan document, a lender may sue the borrower to obtain a court order to foreclose and sell the property.

Non-judicial foreclosure is pursued when a power of sale clause is present in the loan document. If the clause contains instructions as to the time, place, and terms of sale, that procedure must be followed. If not, a notice of sale must be published weekly for four consecutive weeks in a newspaper published in the county in which the property is located. If no newspaper is published in the subject county, the notice shall be published in a newspaper in an adjoining county.

The sale may not be held until 30 days from the last date of publication, and shall be held between the hours of 11:00 AM and 4:00 PM at the courthouse door as a public auction for cash to the highest bidder.

Right of redemption: The owner has 12 months in which to redeem the property. Deficiency judgments are permitted.

Nevada
Judicial Foreclosure-Sometimes
Non-Judicial Foreclosure-Yes, most common
Security Instruments-Deed of Trust, Mortgage
Right of Redemption-judicial foreclosure only
Deficiency Judgments-Yes
Time Frame-Usually 120 days

Arizona
Judicial Foreclosure-Sometimes
Non-Judicial Foreclosure-Yes, most common
Security Instruments-Deed of Trust, Mortgage
Right of Redemption-No
Deficiency Judgments-Varies
Time Frame-Usually 90 days

California
Judicial Foreclosure-Sometimes
Non-Judicial Foreclosure-Yes, most common
Security Instruments-Deed of Trust, Mortgage
Right of Redemption-Yes, judicial foreclosure only
Deficiency Judgments-Yes, judicial foreclosure only
Time Frame-111 days or more

New York
Judicial Foreclosure-Yes
Non-Judicial Foreclosure-Yes, but almost never used
Security Instruments-Deed of Trust, Mortgage
Right of Redemption-No
Deficiency Judgments-Yes
Time Frame-Usually 12-19 months

Nevada
Judicial Foreclosure-Sometimes
Non-Judicial Foreclosure-Yes, most common
Security Instruments-Deed of Trust, Mortgage
Right of Redemption-judicial foreclosure only
Deficiency Judgments-Yes
Time Frame-Usually 120 days

Pennsylvania
Judicial Foreclosure-Yes
Non-Judicial Foreclosure-No
Security Instruments-Mortgage
Right of Redemption-No
Deficiency Judgment-Yes
Time Frame-Usually 90 days

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Assembly Bill 149

Saturday, August 1st, 2009

The Foreclosure Mediation Program was established as a result of the Assembly Bill 149, passed on May 29th during the 2009 session of the Nevada Legislature, and going in to effect on July 1st. Its purpose is to address the foreclosure crisis head-on and to help keep Nevada families in their homes.

 

This law establishes a Foreclosure Mediation Program for owner-occupied residential properties that are subject to foreclosure notices – formally known as a Notice of Default and Election to Sell – filed on or after July 1, 2009.

  Mediation is an alternative method to help parties resolve disputes by agreement with the help of trained mediators.

 

Form to Request Mediation (Instructions included)

  

Description:

Under Nevada law, the program is open to homeowners of owner-occupied houses who receive foreclosure notices (formally titled Notice of Default and Election to Sell) that were filed on or after July 1, 2009.  Persons who received foreclosure notices filed before that date may join the mediation program only if their lenders agree.  If you received a foreclosure notice filed before July 1, 2009, do not submit this form unless your lender has already agreed to participate.

 

---

 

 
Assembly Bill No. 149–Assemblymen Buckley, Oceguera, Conklin,

Leslie, Smith; Aizley, Anderson, Atkinson, Bobzien,

Claborn, Denis, Dondero Loop, Goicoechea, Grady,

Hambrick, Hardy, Hogan, Horne, Kihuen, Kirkpatrick,

Koivisto, Manendo, Mastroluca, McClain, Munford,

Ohrenschall, Parnell, Pierce, Segerblom, Settelmeyer,

Spiegel and Stewart

Joint Sponsors: Senators Horsford; and Coffin

CHAPTER……….

AN ACT relating to real property; revising provisions governing

foreclosures on property; providing for mediation under

certain circumstances; providing for the imposition of a fee

for mediation; and providing other matters properly relating

thereto.

 
Legislative Counsel’s Digest:

 
 

 
Existing law sets forth procedures governing foreclosures on real property upon

default. A trustee under a deed of trust has the power to sell the property to which

the deed of trust applies, subject to certain restrictions. (NRS 107.080, 107.085)

 
Section 1

sale with respect to owner-occupied housing by providing a grantor of a deed of

trust or the person who holds the title of record with the right to request mediation

under which he may receive a loan modification. Once mediation is requested, no

further action may be taken to exercise the power of sale until the completion of the

mediation. Each mediation must be conducted by a senior justice, judge, hearing

master or other designee pursuant to rules adopted by the Nevada Supreme Court,

and a fee of not more than $85 per hour may be charged and collected for the

mediation.

respect to owner-occupied housing by revising the period in which a deficiency in

performance or payment under the trust agreement may be made good before the

trustee may exercise that power. Similarly,

the trustee’s power of sale with respect to owner-occupied housing by revising the

manner in which service of notice that a person is in danger of losing his home

must be made. In addition,

Court to adopt rules providing for voluntary mediation with respect to a

homeowner who is not in default but is at risk of default.

 
 

of this bill establishes additional restrictions on the trustee’s power of
Section 2 of this bill also restricts the trustee’s power of sale withsection 3 of this bill restrictssection 4 of this bill authorizes the Nevada Supreme

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1.

thereto a new section to read as follows:

Chapter 107 of NRS is hereby amended by adding

. In addition to the requirements of NRS 107.085, the

exercise of the power of sale pursuant to NRS 107.080 with respect
– 2 –
-
to any trust agreement which concerns owner-occupied housing is

subject to the provisions of this section.

. The trustee shall not exercise a power of sale pursuant to

NRS 107.080 unless the trustee:

(a) Includes with the notice of default and election to sell

which is mailed to the grantor or the person who holds the title of

record as required by subsection 3 of NRS 107.080:

(1) Contact information which the grantor or the person

who holds the title of record may use to reach a person with

authority to negotiate a loan modification on behalf of the

beneficiary of the deed of trust;

(2) Contact information for at least one local housing

counseling agency approved by the United States Department of

Housing and Urban Development; and

(3) A form upon which the grantor or the person who holds

the title of record may indicate his election to enter into mediation

or to waive mediation and one envelope addressed to the trustee

and one envelope addressed to the Mediation Administrator,

which the grantor or the person who holds the title of record may

use to comply with the provisions of subsection 3;

(b) Serves a copy of the notice upon the Mediation

Administrator; and

(c) Causes to be recorded in the office of the recorder of the

county in which the trust property, or some part thereof, is

situated:

(1) The certificate provided to the trustee by the Mediation

Administrator pursuant to subsection 3 or 6 which provides that

no mediation is required in the matter; or

(2) The certificate provided to the trustee by the Mediation

Administrator pursuant to subsection 7 which provides that

mediation has been completed in the matter.

. The grantor or the person who holds the title of record

shall, not later than 30 days after service of the notice upon him in

the manner required by NRS 107.080, complete the form required

by subparagraph (3) of paragraph (a) of subsection 2 and return

the form to the trustee by certified mail, return receipt requested.

If the grantor or the person who holds the title of record indicates

on the form his election to enter into mediation, the trustee shall

notify the beneficiary of the deed of trust and every other person

with an interest as defined in NRS 107.090, by certified mail,

return receipt requested, of the election of the grantor or the

person who holds the title of record to enter into mediation and

file the form with the Mediation Administrator, who shall assign
– 3 –
-
the matter to a senior justice, judge, hearing master or other

designee and schedule the matter for mediation. No further action

may be taken to exercise the power of sale until the completion of

the mediation. If the grantor or the person who holds the title of

record indicates on the form his election to waive mediation or

fails to return the form to the trustee as required by this

subsection, the trustee shall execute an affidavit attesting to that

fact under penalty of perjury and serve a copy of the affidavit,

together with the waiver of mediation by the grantor or the person

who holds the title of record, or proof of service on the grantor or

the person who holds the title of record of the notice required by

subsection 2 of this section and subsection 3 of NRS 107.080,

upon the Mediation Administrator. Upon receipt of the affidavit

and the waiver or proof of service, the Mediation Administrator

shall provide to the trustee a certificate which provides that no

mediation is required in the matter.

. Each mediation required by this section must be conducted

by a senior justice, judge, hearing master or other designee

pursuant to the rules adopted pursuant to subsection 8. The

beneficiary of the deed of trust or his representative shall attend

the mediation. The grantor or his representative shall attend the

mediation if the grantor elected to enter into mediation, or the

person who holds the title of record or his representative shall

attend the mediation if the person who holds the title of record

elected to enter into mediation. The beneficiary of the deed of trust

shall bring to the mediation the original or a certified copy of the

deed of trust, the mortgage note and each assignment of the deed

of trust or mortgage note. If the beneficiary of the deed of trust is

represented at the mediation by another person, that person must

have authority to negotiate a loan modification on behalf of the

beneficiary of the deed of trust or have access at all times during

the mediation to a person with such authority.

. If the beneficiary of the deed of trust or his representative

fails to attend the mediation, fails to participate in the mediation in

good faith or does not bring to the mediation each document

required by subsection 4 or does not have the authority or access

to a person with the authority required by subsection 4, the

mediator shall prepare and submit to the Mediation Administrator

a petition and recommendation concerning the imposition of

sanctions against the beneficiary of the deed of trust or his

representative. The court may issue an order imposing such

sanctions against the beneficiary of the deed of trust or his

representative as the court determines appropriate, including,
– 4 –
-
without limitation, requiring a loan modification in the manner

determined proper by the court.

. If the grantor or the person who holds the title of record

elected to enter into mediation and fails to attend the mediation,

the Mediation Administrator shall provide to the trustee a

certificate which states that no mediation is required in the matter.

. If the mediator determines that the parties, while acting in

good faith, are not able to agree to a loan modification, the

mediator shall prepare and submit to the Mediation Administrator

a recommendation that the matter be terminated. The Mediation

Administrator shall provide to the trustee a certificate which

provides that the mediation required by this section has been

completed in the matter.

. The Supreme Court shall adopt rules necessary to carry

out the provisions of this section. The rules must, without

limitation, include provisions:

(a) Designating an entity to serve as the Mediation

Administrator pursuant to this section. The entities that may be so

designated include, without limitation, the Administrative Office

of the Courts, the District Court of the county in which the

property is situated or any other judicial entity.

(b) Ensuring that mediations occur in an orderly and timely

manner.

(c) Requiring each party to a mediation to provide such

information as the mediator determines necessary.

(d) Establishing procedures to protect the mediation process

from abuse and to ensure that each party to the mediation acts in

good faith.

(e) Establishing a total fee of not more than $400 that may be

charged and collected by the Mediation Administrator for

mediation services pursuant to this section and providing that the

responsibility for payment of the fee must be shared equally by the

parties to the mediation.

. Except as otherwise provided in subsection 11, the

provisions of this section do not apply if:

(a) The grantor or the person who holds the title of record has

surrendered the property, as evidenced by a letter confirming the

surrender or delivery of the keys to the property to the trustee, the

beneficiary of the deed of trust or the mortgagee, or an authorized

agent thereof; or

(b) A petition in bankruptcy has been filed with respect to the

grantor or the person who holds the title of record under chapter

, 11, 12 or 13 of Title 11 of the United States Code and the
– 5 –
-
bankruptcy court has not entered an order closing or dismissing

the case or granting relief from a stay of foreclosure.

. A noncommercial lender is not excluded from the

application of this section.

. The Mediation Administrator and each mediator who acts

pursuant to this section in good faith and without gross negligence

is immune from civil liability for those acts.

. As used in this section:

(a) “Mediation Administrator” means the entity so designated

pursuant to subsection 8.

(b) “Noncommercial lender” means a lender which makes a

loan secured by a deed of trust on owner-occupied housing and

which is not a bank, financial institution or other entity regulated

pursuant to title 55 or 56 of NRS.

(c) “Owner-occupied housing” means housing that is occupied

by an owner as his primary residence. The term does not include

any time share or other property regulated under chapter 119A of

NRS.
Sec. 2.

7.080 1. Except as otherwise provided in NRS 107.085,

NRS 107.080 is hereby amended to read as follows:

and section 1 of this act,

property is made after March 29, 1927, to secure the performance of

an obligation or the payment of any debt, a power of sale is hereby

conferred upon the trustee to be exercised after a breach of the

obligation for which the transfer is security.

. The power of sale must not be exercised, however, until:

(a)

case of any trust agreement coming into force:

(1) On or after July 1, 1949, and before July 1, 1957, the

grantor,

of record,

other person who has a subordinate lien or encumbrance of record

on the property

prescribed in subsection 3, failed to make good the deficiency in

performance or payment; or

(2) On or after July 1, 1957, the grantor,

interest,

under a subordinate deed of trust or any other person who has a

subordinate lien or encumbrance of record on the property

if any transfer in trust of any estate in real
[In] Except as otherwise provided in paragraph (b), in the[or his successor in interest,] the person who holds the titlea beneficiary under a subordinate deed of trust or any[,] has , for a period of 15 days, computed as[or his successor in] the person who holds the title of record, a beneficiary[,] has ,

for a period of 35 days, computed as prescribed in subsection 3,

failed to make good the deficiency in performance or payment;

(b)

housing as defined in section 1 of this act, the grantor,

In the case of any trust agreement which concerns owneroccupied

– 6 –
-
the person who holds the title of record, a beneficiary under a

subordinate deed of trust or any other person who has a

subordinate lien or encumbrance of record on the property has,

for a period that commences in the manner and subject to the

requirements described in subsection 3 and expires 5 days before

the date of sale, failed to make good the deficiency in performance

or payment;

(c)

or the trustee first executes and causes to be recorded in the office of

the recorder of the county wherein the trust property, or some part

thereof, is situated a notice of the breach and of his election to sell

or cause to be sold the property to satisfy the obligation; and

The beneficiary, the successor in interest of the beneficiary

[

of the notice.

. The 15- or 35-day period provided in paragraph (a) of

subsection 2

subsection 2,

which the notice of default and election to sell is recorded in the

office of the county recorder of the county in which the property is

located and a copy of the notice of default and election to sell is

mailed by registered or certified mail, return receipt requested and

with postage prepaid to the grantor

holds the title of record on the date the notice of default and election

to sell is recorded, at

known, otherwise to the address of the trust property. The notice of

default and election to sell must describe the deficiency in

performance or payment and may contain a notice of intent to

declare the entire unpaid balance due if acceleration is permitted by

the obligation secured by the deed of trust, but acceleration must not

occur if the deficiency in performance or payment is made good and

any costs, fees and expenses incident to the preparation or

recordation of the notice and incident to the making good of the

deficiency in performance or payment are paid within the time

specified in subsection 2.

. The trustee, or other person authorized to make the sale

under the terms of the trust deed or transfer in trust, shall, after

expiration of the 3-month period following the recording of the

notice of breach and election to sell, and before the making of

the sale, give notice of the time and place thereof by recording the

notice of sale and by:

(a) Providing the notice to each trustor and any other person

entitled to notice pursuant to this section by personal service or by

mailing the notice by registered or certified mail to the last known

(c)
] (d) Not less than 3 months have elapsed after the recording, or the period provided in paragraph (b) ofcommences on the first day following the day upon[, and] or to the person who[their respective addresses,] his address, if

– 7 –
-
address of the trustor and any other person entitled to such notice

pursuant to this section;

(b) Posting a similar notice particularly describing the property,

for 20 days successively, in three public places of the township or

city where the property is situated and where the property is to be

sold; and

(c) Publishing a copy of the notice three times, once each week

for 3 consecutive weeks, in a newspaper of general circulation in the

county where the property is situated.

. Every sale made under the provisions of this section and

other sections of this chapter vests in the purchaser the title of the

grantor and his successors in interest without equity or right of

redemption. A sale made pursuant to this section may be declared

void by any court of competent jurisdiction in the county where the

sale took place if:

(a) The trustee or other person authorized to make the sale does

not substantially comply with the provisions of this section

any applicable provision of section 1 of this act;

[;] or

(b) Except as otherwise provided in subsection 6, an action is

commenced in the county where the sale took place within 90 days

after the date of the sale; and

(c) 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 30 days after

commencement of the action.

. If proper notice is not provided pursuant to subsection 3 or

paragraph (a) of subsection 4 to the grantor, to the person who holds

the title of record on the date the notice of default and election to

sell is recorded, to each trustor or to any other person entitled to

such notice, the person who did not receive such proper notice may

commence an action pursuant to subsection 5 within 120 days after

the date on which the person received actual notice of the sale.

. The sale of a lease of a dwelling unit of a cooperative

housing corporation vests in the purchaser title to the shares in the

corporation which accompany the lease.
Sec. 3.

7.085 1. With regard to a transfer in trust of an estate in

real property to secure the performance of an obligation or the

payment of a debt, the provisions of this section apply to the

exercise of a power of sale pursuant to NRS 107.080 only if:

(a) The trust agreement becomes effective on or after October 1,

03

NRS 107.085 is hereby amended to read as follows:
[; and

– 8 –
-
(b) On

agreement is subject to the provisions of § 152 of the Home

Ownership and Equity Protection Act of 1994, 15 U.S.C. §

02(aa), and the regulations adopted by the Board of Governors of

the Federal Reserve System pursuant thereto, including, without

limitation, 12 C.F.R. § 226.32

(b) The trust agreement concerns owner-occupied housing as

defined in section 1 of this act.

] , and, on the date the trust agreement is made, the trust[.] ; or

. The trustee shall not exercise a power of sale pursuant to

NRS 107.080 unless:

(a) In the manner required by subsection 3, not later than 60

days before the date of the sale, the trustee causes to be served upon

the grantor

the form described in subsection 3; and

(b) If an action is filed in a court of competent jurisdiction

claiming an unfair lending practice in connection with the trust

agreement, the date of the sale is not less than 30 days after the date

the most recent such action is filed.

. The notice described in subsection 2 must be:

(a) Served upon the grantor

record:

(1) Except as otherwise provided in subparagraph (2),

personal service or, if personal service cannot be timely effected, in

such other manner as a court determines is reasonably calculated to

afford notice to the grantor

record; or

(2) If the trust agreement concerns owner-occupied

housing as defined in section 1 of this act:

(I) By personal service;

(II) If the grantor or the person who holds the title of

record is absent from his place of residence or from his usual

place of business, by leaving a copy with a person of suitable age

and discretion at either place and mailing a copy to the grantor or

the person who holds the title of record at his place of residence or

place of business; or

(III) If the place of residence or business cannot be

ascertained, or a person of suitable age or discretion cannot be

found there, by posting a copy in a conspicuous place on the trust

property, delivering a copy to a person there residing if the person

can be found and mailing a copy to the grantor or the person who

holds the title of record at the place where the trust property is

situated;

or the person who holds the title of record a notice inor the person who holds the title ofby[;] or the person who holds the title ofand

– 9 –
-
(b) In substantially the following form, with the applicable

telephone numbers and mailing addresses provided on the notice

and a copy of the promissory note attached to the notice:

NOTICE

YOU ARE IN DANGER OF LOSING YOUR HOME!

Your home loan is being foreclosed. In

home will be sold and you will be forced to move. For help, call:

Consumer Credit Counseling _______________

The Attorney General __________________

The Division of Financial Institutions ________________

Legal Services ______________________

Your Lender ___________________

Nevada Fair Housing Center ________________

. This section does not prohibit a judicial foreclosure.

. As used in this section, “unfair lending practice” means an

unfair lending practice described in NRS 598D.010 to 598D.150,

inclusive.

not less than 60 days your

Sec. 3.5.

7.095 1. The notice of default required by NRS 107.080

must also be sent by registered or certified mail, return receipt

requested and with postage prepaid, to each guarantor or surety of

the debt. If the address of the guarantor or surety is unknown, the

notice must be sent to the address of the trust property. Failure to

give the notice, except as otherwise provided in subsection 3,

releases the guarantor or surety from his obligation to the

beneficiary, but does not affect the validity of a sale conducted

pursuant to NRS 107.080

surety to whom the notice was properly given.

. Failure to give the notice of default required by NRS

7.090, except as otherwise provided in subsection 3, releases the

obligation to the beneficiary of any person who has complied with

NRS 107.090 and who is or may otherwise be held liable for the

debt or other obligation secured by the deed of trust, but such a

failure does not affect the validity of a sale conducted pursuant to

NRS 107.080

notice was properly given pursuant to this section or to NRS

7.080 or 107.090.

. A guarantor, surety or other obligor is not released pursuant

to this section if:

NRS 107.095 is hereby amended to read as follows:
[nor] or the obligation of any guarantor or[nor] or the obligation of any person to whom the

– 10 –
-
(a) The required notice is given at least 15 days before the later

of:

(1) The expiration of the 15- or 35-day period described in
paragraph (a) of subsection 2 of

NRS 107.080;
[or]

(2)

owner-occupied housing as defined in section 1 of this act, the

expiration of the period described in paragraph (b) of subsection 2

of NRS 107.080; or

(3)

beneficiary; or

(b) The notice is rescinded before the sale is advertised.

In the case of any trust agreement which concernsAny extension of [that] the applicable period by the

Sec. 4.

a new section to read as follows:

Chapter 2 of NRS is hereby amended by adding thereto

The Supreme Court may adopt rules providing for voluntary

mediation with respect to a homeowner who is not in default but is

at risk of default.
Sec. 5.

9.646 1. A person who, without participating in the

management of a parcel of real property, holds or is the beneficiary

of evidence of title to the property primarily to protect a security

interest in the property is not a responsible party with respect to a

release of a hazardous substance on the property if:

(a) The owner of the property is relieved from liability under

NRS 459.610 to 459.658, inclusive, with respect to the release;

(b) The owner or holder of evidence of title did not cause the

release; and

(c) The owner or holder of evidence of title does not participate

actively in decisions concerning hazardous substances on the

property.

. A lender to a prospective purchaser who has filed an

application to participate in the program pursuant to NRS 459.634

or a lender who forecloses his security interest in property pursuant

to NRS 40.430 to 40.450, inclusive, or 107.080 to 107.100,

inclusive,

after the foreclosure, not to exceed 2 years, sells, transfers or

conveys the property to a prospective purchaser who has filed an

application to participate in the program pursuant to NRS 459.634 is

not a responsible party solely as a result of:

(a) Foreclosing a security interest in the property; or

(b) Making a loan to the prospective purchaser if the loan:

(1) Is to be used for acquiring property or removing or

remediating hazardous substances on property; and

NRS 459.646 is hereby amended to read as follows:
and section 1 of this act, and within a reasonable period

– 11 –
-
(2) Is secured by the property that is to be acquired or on

which is located the hazardous substances that are to be removed or

remediated.
Sec. 5.5.

agreements which concern owner-occupied housing, as defined in

section 1 of this act, apply only with respect to such agreements for

which a notice of default is recorded on or after July 1, 2009.

The amendatory provisions of this act governing trust

Sec. 5.7.

contrary and in recognition of the emergency situation confronting

this State concerning mortgage foreclosures and the need to

implement the provisions of this act quickly, any rules adopted by

the Supreme Court pursuant to subsection 8 of section 1 of this act

take effect on the date specified by the Supreme Court in the order

adopting the rules, which in no event may be less than 30 days after

entry of the order.

Notwithstanding any provision of NRS 2.120 to the

Sec. 6.

This act becomes effective on July 1, 2009.

~~~~~ 09

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