appellant's original lender did not agree with anyone to separate
appellant's note from appellant's deed of trust. See Edelstein, 128 Nev. at
286 P.3d at 258-59. Thus, under either the Restatement rule adopted
by this court in Edelstein or the traditional rule mentioned in Carpenter v.
Longan, 83 U.S. 271, 275 (1872), a negotiation of appellant's promissory
note automatically transferred with it appellant's deed of trust. See
Edelstein, 128 Nev. at , 286 P.3d at 257-58 (explaining the similarities
between the Restatement rule and the traditional rule). Here, respondent
produced appellant's original promissory note, which contained an
endorsement (on an allonge) by appellant's original lender to the order of
ABN AMRO Mortgage Group, and which also contained a blank
endorsement by ABN AMR() Mortgage Group. Because respondent
possessed appellant's original, properly negotiated note, it was the note
holder and was entitled to enforce the note. See Leyva, 127 Nev. at ,
255 P.3d at 1280-81 (recognizing that a party in possession of a
promissory note that has been properly negotiated is the note holder and
that one way to attain holder status is to possess a note that has been
endorsed in blank). And because each negotiation automatically
transferred appellant's deed of trust, Edelstein, 128 Nev. at , 286 P.3d
at 257-58, respondent also established that it held the beneficial interest
in appellant's deed of trust.' Thus, the district court correctly determined
'In this regard, we note that the 2012 deed of trust assignment with
which appellant takes issue was unnecessary to complete respondent's
chain of title. We further note that, at the time when respondent acquired
beneficial interest in appellant's deed of trust in 2007, an interest in real
property was capable of being validly transferred without the transfer
being recorded. See Edelstein, 128 Nev. at n.5, 286 P.3d at 254 n.5
continued on next page...
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that respondent produced the documents necessary to establish that it was
the proper entity to attend the mediation. Edelstein, 128 Nev. at , 286
13 .3d at 260 (reviewing a district court's legal conclusions de novo); cf.
Washoe Cnty. v. Otto, 128 Nev. , 282 P.3d 719, 727 (2012)
(recognizing that this court may affirm the district court if it reached the
proper result, albeit on alternative grounds).
Appellant next contends that respondent's representative who
participated in the mediation via telephone failed to demonstrate that he
had authority to modify appellant's loan. Relying on FMR 11(7) (2013),
appellant suggests that this representative should have produced a copy of
his employment agreement with respondent showing that his job
description entailed modifying loans. We disagree, as FMR 11(7) (2013)
pertains to situations in which a loan servicer attends a mediation on
behalf of the deed of trust beneficiary. 2 Here, the record on appeal
demonstrates that appellant was offered a loan modification at the
mediation, and the district court did not clearly err in finding that
...continued
(recognizing that, before the Legislature's 2011 amendment to NRS
106.210, recording a transfer of an interest in real property was optional).
2Appellant contends that such a situation existed here, evidenced by
a letter he received from Freddie Mac stating that Freddie Mac owns his
mortgage and that respondent is the servicer. While this letter may
suggest as much, respondent nevertheless appeared at the mediation with
the documents needed to establish that it was the note holder and deed of
trust beneficiary. See Edelstein, 128 Nev. at , 286 P.3d at 255 ("[T]o
have standing to foreclose, the current beneficiary of the deed of trust and
the current holder of the promissory note must be the same."). As this is
what the FMP requires, id., the district court was within its discretion to
deny appellant's petition for judicial review and to order the issuance of an
FMP certificate.
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respondent's representative had authority to modify appellant's loan.
Edelstein, 128 Nev. at , 286 P.3d at 260 (indicating that, absent clear
error, a district court's factual determinations will not be disturbed).
Appellant lastly contends that the district court cited to an
outdated version of the FMP rules in its order. While we agree with this
broader contention, we are unable to discern a specific argument that
appellant made in his petition for judicial review that might have had a
different outcome if the district court had applied the 2013 FMP rules.
Although appellant suggests that respondent's document certifications
would have been deficient under FMR 11(8) (2013), appellant did not raise
this argument in his petition for judicial review. Old Aztec Mine, Inc. v.
Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). In any event, having
independently reviewed these certifications, we conclude that they comply
with FMR 11(8) (2013). Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
/at, xe_oz,
Hardesty
ca-.?
Douglas
J.
light of this disposition, we vacate the temporary stay imposed
3 In
by our January 24, 2014, order.
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cc: Hon. Lidia Stiglich, District Judge
Robert C. Townsend, Jr.
RCO Legal, P.S.
Washoe District Court Clerk
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