ORDER AMENDING FORECLOSURE MEDIATION RULES AND ADOPTING FORMS
WHEREAS, on June 30, 2009, this court adopted rules for the foreclosure mediation program established by AB 149, and
WHEREAS, on September 28, 2009, this court amended the rules and adopted forms to be used in the program, and
WHEREAS, this court has concluded that further amendment of the rules is warranted, along with an amendment to the Election/Waiver of Mediation Form, accordingly
IT IS HEREBY ORDERED that the Foreclosure Mediation Rules are amended as set forth in Exhibit A.
IT IS FURTHER ORDERED that the Election/Waiver of Mediation Form is amended as set forth in Exhibit B.
IT IS FURTHER ORDERED that these rules shall be effective immediately. The clerk of this court shall cause a notice of entry of this order to be published in the State Bar of Nevada's official publication. The clerk shall publish this order by disseminating copies of it to all subscribers of the advance sheets of the Nevada Reports and all persons and agencies listed in NRS 2.345, and to the executive director of the State Bar of Nevada. The certificate of the clerk of this court that she has accomplished the above-described publication of notice of entry and dissemination of this order shall be conclusive evidence of the adoption and publication of the foregoing rules.
Dated this 4th day of November, 2009.
BY THE COURT JAMES W. HARDESTY, Chief Justice
RON D. PARRAGUIRRE Associate Justice
MICHAEL L. DOUGLAS Associate Justice
MICHAEL A. CHERRY Associate Justice
NANCY M. SAITTA Associate Justice
MARK GIBBONS Associate Justice
KRISTINA PICKERING
Associate Justice
EXHIBIT A AMENDMENTS TO FORECLOSURE MEDIATION RULES I. SCOPE OF RULES
Rule 1. The Foreclosure Mediation Program.
1. Authority and scope. Pursuant to the jurisdictional authority provided by Chapter 107 of the Nevada Revised Statutes and the Nevada Supreme Court's inherent power to create rules for the efficient administration of justice, these rules are enacted to apply to the mediation of any owner-occupied residential foreclosure arising from the recording of a notice of default and election to sell on or after July 1, 2009.
2. Purpose. The purpose of these rules is to provide for the orderly, timely, and cost-effective mediation of owner-occupied residential foreclosures which shall take place within 90 days after the recording of the notice of default and election to sell. The Foreclosure Mediation Program will permit deed of trust beneficiaries (lenders) and homeowners, with the assistance of a mediator, to exchange information and proposals that may avoid foreclosure.
3. Availability of program. Subject to limited exceptions set forth in Rule 5 hereafter, the Foreclosure Mediation Program is mandatory when the grantor or person who holds title of record of an owner-occupied residence timely requests mediation.
Rule 2. Mediation Administrator. The Mediation Administrator (Administrator) shall be appointed by the Court or its designee. The Administrator may appoint staff, including a Mediation Supervisor, to assist in the administration of the program. When the efficient administration of the program warrants, the Administrator may contract for training and other mediation-related services.
Rule 3. Presiding Mediator. A foreclosure mediation may be conducted by either a senior judge, Supreme Court settlement conference judge, or other person designated by the Supreme Court.
1. Assignment of presiding mediator. No later than 10 days after receipt of the Election for Mediation, as provided in Rule 5(4)(b), the Administrator or designee shall randomly select and assign from the applicable geographic area a mediator to preside over the mediation. The assigned mediator will have 2 business days after receiving the assignment to determine and notify the Administrator of a conflict requiring his or her recusal. Upon such notification, the Administrator shall immediately and randomly select another mediator to conduct the mediation. The Administrator may direct a mediator to cluster several mediations for a lender. Upon final selection of a mediator, the Administrator shall send notice of the assignment to the parties.
2. Panel of mediators. The Administrator shall maintain a list of mediators by geographic area available to hear foreclosure mediations. The list shall include all senior judges, Supreme Court settlement conference judges, and other designees who are appointed by the Court to serve as presiding mediators in the Foreclosure Mediation Program and are qualified pursuant to subsection 3.
(a) The grantor or the person who holds title of record has previously surrendered the real property that is the subject of the foreclosure proceedings, as evidenced by a letter signed by the grantor or the person who holds title of record 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 of any of these recipients; or
(b) A petition in bankruptcy under Chapters 7, 11, 12, or 13 of Title 11 of the United States Code has been filed with respect to the grantor or the person who holds title of record on or after July 1, 2009, and the bankruptcy court has not entered an order closing or dismissing the case, or granting relief from the automatic stay of the foreclosure.
4. Any trustee or other person presenting a notice of default and election to sell for recording in the Office of a County Recorder shall, no later than 10 days from presenting the Notice of Default for filing[+], [(a) S]send by certified or registered mail, return receipt requested, to the grantor or person who holds title of record of an owner-occupied residence, in addition to the documents required to be sent to the homeowner under NRS 107.080, two copies of the Election of Mediation and instructions, on a form provided by the Administrator with the information indicated on the form to be provided by the trustee filled in, and two envelopes: one pre-addressed to the Administrator and the other pre-addressed to the Trustee. [ in addition to the documents required to be sent to the homeowner under NRS 107.080; and (b) Mail or submit to the Administrator a copy of the Trustee's Information on a form provided by the Administrator. ]
5. The mediation process under these rules shall be initiated by the preparation and delivery of an Election of Mediation by a grantor or person who holds title of record of an owner-occupied residence on a form provided by the Administrator and payment of the fee required by Rule 14 herein.
(a) The eligible participant shall, not later than 30 days after the service upon him or her in the manner required by NRS 107.080 of the notice of default and election to sell, complete the Election/Waiver of Mediation Form and deliver the form to the Administrator together with the fees required under Rule 14. The eligible participant shall also mail a copy of the Election/Waiver of Mediation to the trustee, by certified mail, return receipt requested. [ The eligible participant shall also mail a copy of the Election/Waiver of Mediation to the Administrator. ] (b) As soon as the Administrator receives an Election/Waiver of Mediation from an eligible participant, the Administrator will notify the trustee of the receipt, including whether any fees were paid by the participant. [ (b) ] (c) The trustee shall, within 10 days of notice of the receipt of the Election of Mediation, deposit with the Administrator the signed Election of Mediation, if the trustee has received a copy; a copy of the Trustee's Information on a form provided by the Administrator, including the name and address of the beneficiary of the deed of trust[-]; a copy of the recorded Notice of Default; and the fees required in Rule 14 herein, including any fees received from the grantor. Any delay by the trustee in [ notifying the Administrator of an Election of Mediation ] providing the required docu- grantor or person who holds the title of record (eligible participant) and the beneficiary of the deed of trust may agree in writing to enter the Foreclosure Mediation Program governed by NRS Chapter 107 and these rules. Notice and a copy of the agreement must be provided to the Administrator. If the Administrator in his or her discretion accepts the stipulation for mediation, the Administrator will notify the parties who shall, within 10 days, forward the fees required in Rule 14 herein to the Administrator. Upon acceptance of the mediation and receipt of the required fees, the Administrator shall appoint a mediator and the mediation process shall be conducted within 10 business days.
III. MEDIATION PROCEDURES
Rule 7. Documents to Be Presented for the Mediation. In addition to the documents set forth in Rule 5, the parties shall prepare such papers and provide to the mediator, and exchange the items required to be exchanged with each other party, using the most expeditious method available, at least 7 days prior to the mediation, and such other documents or estimates as the mediator may later direct, but which at a minimum shall include the following:
1. The homeowner shall prepare a Financial Statement and Housing Affordability Worksheet to include the information set forth in forms provided by the Administrator.
2. The beneficiary of the deed of trust or its representative shall produce an appraisal done no more than 60 days before the commencement date of the mediation with respect to the real property that is the subject of the notice of default and shall prepare an estimate of the "short sale" value of the residence that it may be willing to consider as a part of the negotiation if loan modification is not agreed upon.
3. Both parties to the mediation shall prepare and submit to the mediator under confidential cover a nonbinding proposal for resolving the foreclosure. Additionally, the beneficiary of the deed of trust shall, under confidential cover, provide to the mediator the evaluative methodology used in determining the eligibility or noneligibility of the grantor or the person who holds the title of record for a loan modification.
Rule 8. Settlement Before Mediation. In the event the foreclosure issues are resolved before the scheduled mediation, the parties must, no later than 2 days prior to the scheduled mediation date, advise the mediator of their settlement. Any settlement will not result in the refund of fees.
Rule 9. Calendaring. Unless otherwise stipulated by the parties and approved by the presiding mediator, or for good cause shown, a mediation will be calendared to commence no later than 10 days prior to the 90th day following the recording of the notice of default, pursuant to NRS 107.080.
Rule 10. Continuances. No request for a continuance of a mediation scheduled in the Foreclosure Mediation Program may be granted, except upon a showing of extraordinary circumstances. A motion for a continuance must be in writing, served on the presiding mediator and opposing party, and set forth the extraordinary circumstances with particularity. A ruling by the Rule 16. Confidentiality. All documents and discussions presented during the mediation shall be deemed confidential and, except in an action to review a petition for judicial review for sanctions under these rules, shall be presumed to be inadmissible in any subsequent actions or proceedings. Nothing contained herein shall prevent the disclosure of such limited information by the mediator or parties as required by NRS Chapter 107. EXHIBIT B STATE OF NEVADA FORECLOSURE MEDIATION PROGRAM ELECTION/WAIVER OF MEDIATION FORM ELECTION/WAIVER OF MEDIATION FORM ( To be filled out by Trustee) ASSESSOR PARCEL NUMBER (APN) _________________________ PROPERTY ADDRESS __________________________ TS # _______________________ ___________________________________________ TRUSTEE _____________________________________ DoT ___ Book/Inst ________
*** ATTENTION — YOU MUST ACT WITHIN THIRTY (30) DAYS*** IF NO ACTION IS TAKEN, THE FORECLOSURE MAY PROCEED
You have been served with a Notice of Default and Election to Sell, a copy of which is enclosed, that could result in the loss of your home. You may want to consult with an attorney concerning your rights and responsibilities.
The State of Nevada has created a mediation program for homeowners whose owner-occupied, primary residence is subject to foreclosure Mediation is a process through which you and the lender meet with a neutral mediator to determine whether an agreement can be reached to cure any defaults in the loan or modify the terms of the loan to enable you to retrain in your home. The mediator will be appointed by the Foreclosure Mediation Program Administrator. The mediator will not provide legal advice to either party. If you feel the need for legal representation, it is recommended that you retain an attorney to Assist you in the mediation. [Use additional paper if needed]. Property Owner's Name: __________________ Co-owner's Name: _________________ Mailing Address _________________________ Mailing Address. _________________ _________________________________________ _________________________________ Phone No. ( ) _______________ (telephone) Phone No ( )__________ (telephone) ( ) _______________ (cellular) ( ) __________ (cellular) Email __________________________________ Email: ___________________________
PLEASE SELECT ONE OF THE CHOICES BELOW AND RETURN COPIES IN ENCLOSED ENVELOPES
___ ELECTION OF MEDIATION The undersigned hereby request[s] that mediation be scheduled to attempt to work out a resolution of the loan ($200.00 Money Order or Cashier's Check Applies — See Below)
Do you have an open Bankruptcy proceeding? ___ if so, date filed? __________________
_____WAIVER OF MEDIATION The undersigned is/are aware of the right to seek mediation but have determined that I/We do not warn to proceed with a mediation and hereby waive the right to do so.
The undersigned hereby certify under the penalty of perjury that I/we are the owner[s] of the real property that is the subject of the pending foreclosure and occupy the real property as my/our primary residence. _____________________________________ ______________________________________ Signature of Property Owner Date Signature of Co-Owner Date
COMPLETE TWO COPIES OF THIS FORM AND FORWARD ONE TO THE MEDIATION ADMINISTRATOR WITH PAYMENT AND THE OTHER TO THE TRUSTEE OF THE DEED OF TRUST. TWO UNSTAMPED. PRE-ADDRESSED ENVELOPES HAVE BEEN ENCLOSED
IF YOU HAVE CHOSEN TO SEEK MEDIATION, YOU MUST SEND A MONEY ORDER OR CASHIER'S CHECK IN THE SUM OF $200 PAYABLE TO "STATE OF NEVADA FORECLOSURE MEDIATION PROGRAM" THIS PAYMENT AND THE FORM MUST BE RETURNED TO THE ADMINISTRATOR WITH1N 30 DAYS OF THE DATE THE NOTICE OF DEFAULT AND ELECTION TO SELL WAS MAILED TO YOU.
PAYMENT MUST BE SENT TO THE ADMINISTRATOR IN THE ENVELOPE THAT WAS ENCLOSED WITH THIS FORM
See Instructions, on Back.