Opinion
No. 60530
12-05-2013
RYAN M. HENDERSON; AND MICAL S. HENDERSON, Appellants, v. WELLS FARGO HOME MORTGAGE, INC.; DEUTSCHE BANK NATIONAL TRUST COMPANY; AND NATIONAL DEFAULT SERVICING CORPORATION, Respondents.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
CORRECTED ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order denying a petition for judicial review in a Foreclosure Mediation Program (FMP) matter. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
On November 21, 2013, this court entered an order of reversal and remand in this appeal. That order incorrectly indicated that J. Charles Thompson was the presiding district court judge. We hereby vacate our November 21 order and enter this order in its place, which reflects that Donald M. Mosley was the judge who heard and decided the case.
In an appeal from a district court order granting or denying judicial review in an FMP matter, this court defers to the district court's factual determinations and reviews de novo the district court's legal determinations. Edelstein v. Bank of N.Y. Mellon, 128 Nev. ___, ___, 286 P.3d 249, 260 (2012). To obtain an FMP certificate, a deed of trust beneficiary must: (1) attend the mediation; (2) participate in good faith; (3) bring the required documents; and (4) if attending through a representative, have a person present with authority to modify the loan or access to such person. NRS 107.086(4) (2011); Leyva v. Nat'l Default Servicing Corp., 127 Nev. ___, ___, 255 P.3d 1275, 1278-79 (2011).
Appellants contend that the district court abused its discretion in ordering the issuance of an FMP certificate without first conducting an evidentiary hearing to investigate potential document falsification on the part of respondent Wells Fargo Home Mortgage, Inc. Having considered the record on appeal, we agree. Pasillas v. HSBC Bank USA, 127 Nev. ___, ___, 255 P.3d 1281, 1286-87 (2011). Specifically, appellants' petition for judicial review identified various discrepancies in Wells Fargo's documents and expressly requested an evidentiary hearing. Wells Fargo, in turn, failed to explain these perceived discrepancies in either its response or at the show-cause hearings.
Because the district court abused its discretion in denying appellants' petition without first resolving these outstanding issues, we reverse the district court's denial of appellants' petition for judicial review, and remand this matter to the district court for further proceedings. Id. On remand, we direct the district court to consider the document-related issues raised in appellants' petition for judicial review and to exercise its discretion in determining the extent to which an evidentiary hearing is necessary to resolve these issues. See FMR 21(2) (providing the district court with the discretion to determine the extent to which an evidentiary hearing is necessary).
We clarify that nondocument-related issues and issues not raised in appellants' petition for judicial review need not be considered on remand.
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It is so ORDERED.
_________________, J.
Gibbons
_________________, J.
Douglas
_________________, J.
Saitta
cc: Chief Judge, The Eighth Judicial District Court
Hon. J. Charles Thompson, Senior Judge
Crosby & Fox, LLC
Tiffany & Bosco, P. A.
Eighth District Court Clerk