Nevada Edging Closer to Intermediate Court of Appeals

Nevada Edging Closer to Intermediate Court of Appeals

As Nevada continues to grow, it is becoming increasingly apparent that the Nevada Supreme Court deserves assistance in adjudicating appeals. The average judge on the Nevada Supreme Court hears over 320 cases a year. This is easily one of the largest caseload of any state supreme court in the United States. Accordingly, in March of 2007, the Supreme Court provided a report to the Nevada Legislature identifying how the Supreme Court could implement an intermediate court of appeals, should the people of the state permit it through constitutional amendment, and the legislature implement it in 2011. Thankfully, the resolution has been approved by a majority of members in both houses of Congress. The final step is to obtain approval from the voters. If a majority of voters vote in favor of the measure, it will become part of the Nevada Constitution (Article 19, Section 1).

From estimates of those who closely in proliferating this significant change it would cost around $1.6 million to implement. The proposal would use the same clerk’s office as the Supreme Court, the existing central legal staff, and the existing Supreme Court personnel to support the work of the court of appeals. Moreover, it would be located at the Regional Justice Center in Las Vegas, Nevada (Clark County) because that is where the highest number of cases to be assigned to the court would come from.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Foreclosure and Mediation Process (continued)

Foreclosure and Mediation Process (continued)

If you are a lender or the beneficiary of a mortgage note or deed of trust you may be asking yourself, am I the only one that can be found to have participated in bad faith? In general, yes. The borrower is given extensive rights under these new provisions and generally viewed sympathetically. Rightly or wrongly, it would be difficult to find that a homeowner participated in bad faith. They do not have to accept a lender proposal or modification, even if they are reasonable or advantageous. However, they can suffer more severe consequences, by way of foreclosure on the lender’s terms, if they fail to adopt a reasonable proposal by the lender (which equates to good faith).

The new changes are offered primarily for the protection of homeowners, yet they retain nuggets of incentives for lenders as well. For example, the 90 day foreclosure period is still in effect, despite mediation and petition for judicial review. However, since the law is so new, no one really knows whether or not a petition for judicial review will stay foreclosure proceedings past the 90 day period. I tend to believe that it will, but expedited hearings are not out of the question.

As noted above, if you find yourself in foreclosure mediation proceedings contact a local business or real estate attorney at your earliest convenience. Additionally, please do not hesitate to contact us should you have any questions about the new foreclosure process and mediation.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Foreclosure and Mediation Process (continued)

Foreclosure and Mediation Process (continued)

If either party does not agree with the mediator’s decision they may appeal that decision with their appropriate district court. Id. Either party could file a petition for judicial review with the district court in the county where the notice of default was properly recorded seeking a determination of bad faith participation and sanctions pursuant to NRS 107. All such petitions must be filed within 15 days of the date of the mediator’s statement and shall be reviewed by the district court within 60 days of the service of the petition. Id.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Foreclosure and Mediation Process (continued)

Foreclosure and Mediation Process (continued)

The biggest change the foreclosure mediation program has thrust upon lenders is the facts that they must be found to have participated in good faith in order to foreclose. Id. At this point, you may be asking yourself what constitutes “good faith?” At the very least, it means the lender made some reasonable offers, did not bring an “agenda” into the mediation, and brought supportive documents indicative of the original loan. The lender or “beneficiary of the deed of trust shall bring to mediation the original or certified copy of the deed of trust or mortgage note.” AB149 § 4. Moreover, 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.” Id. If a beneficiary fails to provide adequate documents or representation they will be found to have participated in bad faith and will be unable to foreclose on the subject property.

Even worse for the lender is the prospect of court interference should the mediator made a finding of bad faith participation. “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, without limitation, requiring a loan modification in the manner determined by the court.” Id. at § 5. Thus, good faith participation on the part of the lender is essential to foreclosing on a particular property, or at least arriving at a beneficial solution. In order to foreclose, once mediation has been elected, the lender must obtain a certificate of good faith participation in mediation. NRS 107.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Foreclosure and Mediation Process (continued)

Foreclosure and Mediation Process (continued)

Once a party has requested mediation, a mediator will be chosen and a date given by the foreclosure mediation office (either in Carson City or Las Vegas). Id. On the date of scheduled mediation both parties will arrive and the mediator will discuss possible solutions with the parties. In many cases the mediator will take each party to a separate room to discuss options and get a feel for what each party is thinking. This process of isolating either the lender or the borrower is known as caucusing. After caucusing, the mediator will present each party’s concerns and potential solutions to the adverse party. If the parties are amenable to a loan modification, or some other result, then the agreement will be drafted by the mediator for both parties to sign.

As with any matter involving substantial rights it is important that you obtain an attorney when going through the foreclosure mediation process. They will be able to advise you of your rights and may facilitate the best possible result in your situation.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

New Foreclosure and Mediation Process

New Foreclosure and Mediation Process

With foreclosures in Nevada at an all time high it came as no surprise that the Nevada legislature would address this growing problem. In order to effectuate legitimate foreclosures Assembly Bill No. 149 (AB149) was passed. This particular bill makes several changes to the foreclosure process and provides incentive for both parties (lender and borrower) to discuss possible solutions in the event of borrower default.

AB149 provides for mandatory mediation when requested by a grantor or person who holds title to a particular property. This mediation shall take place within 90 days after recording a notice of default and election to sell. NRS 107. With the onset of this new provision (took effect on July 1, 2009) lenders must send an application form called an Election of Mediation with a Notice of Default. Id. Since the term election is used, either party has the right to request mediation, in other words, it is not automatic. Id.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Legislative Changes on the Collection of Credit Card Debit

Legislative Changes on the Collection of Credit Card Debit

Existing law provides that an issuer of a credit card may establish liability for credit card debt by producing a written application for the credit card signed by the cardholder or by evidence that the cardholder incurred charges and made payments on the card. NRS 97A.160. A new bill passed by the Nevada Legislature provides that a judgment cannot be entered in favor of a subsequent purchaser of credit card debt who attempts to collect on the debt unless the purchaser establishes liability for the debt in the same manner as the issuer above. Assembly Bill No. 472.

This new legislation provides significant consumer protection by making it more difficult for subsequent credit card purchasers to obtain a judgment. It also informs debtors of suits that have been commenced against them for credit card debt and by whom. The purpose of the bill is to enable the person being sued for a credit card to know which debt is implicated and what credit card company formed a basis for the suit. Accordingly, the original information and issuer of the credit card must be identified by a subsequent purchaser.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Business Courts in the United States and Around the World

Conclusion

Business courts can be found around the globe and in places one would not think to look. Business courts have been appearing on an international scale in Europe, Asia, Africa, and the Americas, in countries with common law systems and in those with civil law systems. In addition, business courts have been proposed and under serious consideration in the British Virgin Islands, Peru, Pakistan, and India. The rationale behind the creation of so many business courts stems from the need for more specialized courts and judges with the ability to handle complex commercial litigation matters. In other words, efficiency and expertise matter. With the onset of globalization and the ever-increasing interconnectivity of the earth’s population, business transactions will continue to burgeon; requiring more specific direction and expertise from the world’s various judicial systems.

It is also important to note that there appears to be a growing consensus in some of the world’s leading common law international financial centers that dedicated commercial courts are an important part of the business infrastructure. The trend is spreading from major metropolitan areas like London, Hong Kong and Sydney to “offshore” financial centers such as Bermuda, and the British Virgin Islands. This blog focused mainly on European and U.S. courts but it is important to appreciate that business courts are in use in a number of emerging jurisdictions in Africa and Asia as well (e.g. Kenya, Malaysia, Philippines, Tokyo and Uganda). In closing, business courts are becoming more common with the goal of expediting litigation in a competent, judicious manner.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Business Courts in the United States and Around the World

Hungary also lacks a business court. In general, business related litigation is tackled by the local courts in the country. Hungary’s judicial system is a four-level system containing: (1) local courts; (2) regional courts; (3) high courts of appeal; and (4) the Supreme Court. Hungary is currently in the midst of a massive judicial overhaul in an effort to digitize court filings and other matters pertaining to litigation. With its inception in the European Union Hungary has made this change to cooperate and fully comply with EU policies regarding education of court personnel.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Business Courts in the United States and Around the World

Japan’s post World War II Constitution dictates that “all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the Laws.” (Article 76). Japan’s court system is divided into four basic tiers: (1) summary courts – which handle small claims civil cases, as well as minor criminal offenses; (2) District Court – which handles felony cases, bankruptcy cases, as well as civil cases where the disputed amount is over ¥1,400,000; (3) High Courts – similar to our circuit court of appeals, containing a special district for the Intellectual Property High Court; and (4) the Supreme Court which only hears cases when there is either an error in the interpretation of the Constitution or an error in the interpretation of case law from the High Court or the Supreme Court.

District Court handles most commercial and business related litigation in much the same fashion as our own district courts do the same. As such, there is no business court within Japan containing specialized judges to oversee complex business litigation. Although it would not be surprising to see a business court in the near future considering Japan already has a few specialized courts like Family Court and the Intellectual Property High Court.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Business Courts in the United States and Around the World

China does not have a specialized business court per se but it does have Courts of Special Jurisdiction that cover matters related to railway transportation and water transportation. China maintains a four-level system of courts where the Supreme People’s Court in Beijing is the highest level, followed by the “high people’s court,” the “intermediate people’s court,” and the “basic people’s court.” Although there is sentiment around the globe that the Chinese political structure fails to recognize some of the more basic human rights, the courts continue to be relatively independent, except in matters where important political issues are involved. Thus, when doing business in China, make sure that you understand the laws related to business with an understanding that if violated, you may be subjected to Chinese jurisdiction.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Business Courts in the United States and Around the World

Canada

The only business court located in Canada can be found in Toronto, Ontario. The Superior Court of Justice has established the Commercial List which is comprised of a team of judges who have experience in managing complex commercial litigation. The Commercial List has been met with considerable approval and has helped expedite many complex cases through the litigation process. Considering the expeditious nature and specialized function the court performs it’s hard to imagine complex commercial litigation not proceeding through this specialized court, but the Commercial List is voluntary, except in matters involving bankruptcy. Based upon the applied success of the Commercial List one would expect similar courts to crop up across Canada in the near future.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Business Courts in the United States and Around the World

European Union Courts

The European Court of Justice is the highest court in the European Union with respect to matters involving European Union law. It is tasked with interpreting EU laws and ensuring its equal application across all EU member states. The court is assisted by a lower court, the Court of First Instance which has jurisdiction over direct actions brought by natural or legal persons, and by the Civil Service Tribunal which hears cases brought by employees of the EU’s varied institutions. The Court of Justice hears a wide range of cases, including cases involving trade disputes among member states. The Court has competence to rule on applications for annulment or actions for failure to act brought by a Member State or institution, actions against Member States for failure to fulfill obligations, references for a preliminary ruling and appeals against decisions of the Court of First Instance. Although no special business court exists the above courts handle many cases concerning business litigation effectuating competent results.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

Business Courts in the United States and Around the World

National Systems of Commercial Courts

The above examples provide for the establishment of national business courts, while some countries actually organize a system of national courts, consisting of both trial and appellate courts. In this type of system, jurisdictional requirements tend to be less rigorous. In general, the matter in dispute simply needs to involve one or more businesses, domestic or foreign, and relate to an issue of commerce. This pattern is older than the business court model, and is often found in civil law systems.

The most appropriate example of a nationalized commercial court system can actually be found in France. France has long had a national system of commercial courts, including both courts of first instance (trial) and appellate courts. In total, there are almost 200 commercial courts throughout the country. The commercial courts do not impose jurisdictional requirements on litigants meaning any commercial case, whether routine or complex, can be heard in the commercial courts. In addition, the judges hearing such disputes are not required to have a specialized knowledge of business law.

This national system of self-contained commercial courts is quite common in Europe and Asia. Countries such as Belgium, Russia, Serbia, Spain, Turkey, and Ukraine also maintain a separate system of courts dedicated to commercial matters. In Spain, each provincial capitol maintains a commercial court, presided over by a specialist judge.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.