Opinion
No. 67129
08-31-2015
MARY LYNN WEBER, Appellant, v. 21ST MORTGAGE CORPORATION, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a petition for judicial review in a foreclosure mediation matter. Eighth Judicial District Court, Clark County; Kathleen E. Delaney, Judge.
Following an unsuccessful mediation conducted under Nevada's Foreclosure Mediation Program (FMP), appellant filed a petition for judicial review in the district court, which was denied. On appeal from the denial of the petition for judicial review, appellant contends that respondent was neither the beneficiary of the deed of trust nor the holder of the mortgage note on appellant's home. As a result, she maintains respondent was not entitled to enforce the note, foreclose on appellant's property, or appear at the mediation on its own behalf and that respondent lacked authority to negotiate a modification. And building upon these arguments, appellant asserts that her petition for judicial review should have been granted and that an FMP certificate should not have issued.
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 have access to such a person. NRS 107.086(5), (6); Leyva v. Nat'l Default Servicing Corp., 127 Nev. ___, ___, 255 P.3d 1275, 1279 (2011) (concluding that strict compliance with these requirements is a necessary predicate to obtaining a foreclosure certificate). The documents that must be presented by the deed of trust beneficiary or its representative at the mediation are the original or a certified copy of the deed of trust, the mortgage note, and all assignments of each document. NRS 107.086(5).
In this case, the record demonstrates that respondent produced assignments of the mortgage note and deed of trust, which were properly certified, showing how these documents made their way from the original note holder and beneficiary to the respondent. These documents satisfied the document production rule and demonstrated that respondent was authorized to enforce the note and foreclose on appellant's property, that it was the proper party to appear at the mediation, and that it had authority to negotiate a loan modification. See id.; see also Wood v. Germann, 130 Nev. ___, ___ n.3, 331 P.3d 859, 860 n.3 (2014) (noting that the document production requirements are designed "to ensure that the party seeking to enforce the homeowner's promissory note and to proceed with foreclosure is actually authorized to do so").
Under the circumstances presented here, substantial evidence supports the district court's findings, and we will therefore not overturn them on appeal. See Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009) (providing that an appellate court should defer to a district court's factual findings when they are supported by substantial evidence and are not clearly erroneous). Accordingly, we affirm the district court's denial of judicial review.
On appeal, appellant further asserts that non-party Mortgage Electronic Registration System (MERS) could not transfer any beneficial interest in the mortgage note or deed of trust and that respondent never provided a "true accounting" of the principal and interest payments on appellant's loan. Because appellant failed to raise these arguments in the district court, they are waived and we do not consider them in resolving this appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 53, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court . . . is deemed to have been waived and will not be considered on appeal."). Furthermore, to the extent that appellant challenges the propriety of the Nevada Supreme Court's decision in Edelstein, 128 Nev. at ___, 286 P.3d at 260 (holding that MERS can be a valid beneficiary of a deed of trust and may assign its beneficial interest), we are bound by that decision and reject her arguments in this regard as being without merit. --------
It is so ORDERED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Kathleen E. Delaney, District Judge
Mary Lynn Weber
Brooks Hubley LLP
Eighth District Court Clerk