IN THE SUPREME COURT OF THE STATE OF NEVADA
No. 81007
RALPH STEPHEN COPPOLA,
TRUSTEE OF THE .R.S. COPPOLA
musT DATED OCTOBER 19, 1995, AS Ft
MOST RECENTLY AMENDED ON
SEPTEMBER 13, 2001, SEP 2 8 2022
Appellant, ELIZA%W.TP E,P,OWN
CLERK O UREME COURT
vs.
WELLS FARGO BANK, N.A., F.;EPU *LERK
li.e§22ndent,_
.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying appellant's
petition for judicial review, and granting respondent's request for
appropriate relief, in a foreclosure mediation matter. Second Judicial
District Court, Washoe County; Kathleen M. Drakulich, Judge.
Respondent Wells Fargo Bank, N.A., has been attempting to
foreclose on appellant Ralph Coppola's home for several years. The parties
have participated in multiple unsuccessful mediations through Nevada's
Foreclosure Mediation Program (FMP). Following their most recent
medi.ation failure, Coppola argued that Wells Fargo had violated the FMP
rules (FMRs) and failed to participate in the mediation in good faith, such
that sanctions (includin.g setting aside the foreclosure action and a
declaration prohibitin.g any further foreclosure attempts until Coppola
"reaches age 62 1/2") were warranted. The mediator agreed that Wells
Fargo had failed to participate in good faith based on its failure to comply
with certain FMRs and thus declined to issue the IMP certificate that Wells
Fargo requireci to proceed to foreclosure. The mediator also declined to
recommend the specific sanctions Coppola sought.
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Coppola petitioned for judicial review, asking that the district
court impose the additional sanctions the mediator did not recommend.
Wells Fargo, in turn, argued it had followed the FMRs and participated in
good faith, moving for appropriate relief in the form of the FMP certificate.
The district court determined that Wells Fargo had complied with the FMRs
and participated in good fa.ith, and denied Coppola's petition while granting
Wells Fargo's motion. This appeal followed.
This court reviews the scope and meaning of the FMRs de novo.
Pasillas v. HSBC Bank USA, 127 Nev. 462, 467, 255 P.3d 1.281, 1285 (2011).
The question of an FMP party's good faith is one of fact that we review
deferentially, Consol. Generator-Nev., Inc. v. Cummins Engine Co., Inc., 114
Nev. 1304, 1312, 971 P.2d 1251., 1256 (1998) (noting that the question of
good faith is one of fact), and to which a party's compliance with or violation
of the FMRs can signal an answer, see Markowitz u. Saxon Special
Servicing, 129 Nev. 660, 666, 310 P.3d 569, 572 (2013) (noting that
"providing the appraisal is one indicator that the trust-deed beneficiary
participated in the mediation in good faith"). Absent error in the district
court's findings regarding a party's FMR compliance and good-faith
participation, the district court's choice of sanction in an FMP proceeding is
cornmitted to the district court's sound discretion. Edelstein v. Bank of N.Y.
Mellon, 128 Nev. 505, 522, 286 P.3d 249. 260 (2012); Pasillas, 127 Nev. at
469, 255 P.3d at 1286-87 (holding that the distria court's directing the
program administrator to "enter a letter of certification and its failure to
consider sanctions was an abuse of discretion because respondents clearly
violated . . . the FMRs").
Coppola argues that Wells Fargo failed to act in good faith
because the bank provided him with an oral short sale estimate rather than
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one in writing. According to Coppola, FMR 13(10) mandates the latter. But
this does not follow from FMR 13(10)'s text, which only provides that "Mlle
beneficiary of the deed of trust or its representative . . . 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."
(Emphasis added.) Cf. Nelson u. Eighth judicial .Dist. Court, 137 Nev. 139,
141., 484 P.3d 270, 272 (2021) (noting that "rules of statutory construction
apply to court rules" (alteration and internal quotation marks omitted)).
True, if the beneficiary of a deed of trust prepares a short sale estimate,
then writing would be the preferrable form (to avoid, for instance, as
initially happened here, an argument over the precise amount)). But
neither the operative verb in FMR 13(10)—"prepare"—nor noun
"estimate"—definitively allude to a written proposal. Estimate, Merriam-
Webster's Collegiate Dictionary (11th ed. 2007) (defining "estimate" without
reference to form, as "an opinion or judgment of the nature, character, or
quality of a person or thing"); Prepare, id. (defining "prepare" as "to make
ready beforehand for some purpose"). And as a general proposition, this
court does not add requirements beyond those the text states. Cf. Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
93 (2012) (discussing the omitted-case canon).
Neither Coppola nor our independent research has highlighted
any reason to read FMR 13(10) differently. Coast Hotels & Casinos, Inc. v.
Nev. State Labor Cornin'n, 117 Nev. 835, 840, 34 P.3d 546, 550 (2001)
1Coppola initially disputed the amount of the short sale estimate
given, but at oral argument before this court conceded it was $620,000,
while what was due on the unpaid balance was more than $700,000.
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(noting general rule that "when a statute is susceptible to but one natural
or honest construction, that alone is the construction that can be given"
(internal quotation marks omitted)); cf. .Edwards v. Emperor's Garden Rest.,
122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (noting that it is an
appellant's responsibility to support their position with cogent argument
and legal authority). Indeed, where the FMRs require a writing, they do so
uxpressly. See, e.g., FMR 10(2) ("For any owner-occupied property located
in Nevada where a Notice of Default is recorded and the homeowner has
failed to file a Petition for Mediation Assistance within the time frame
pursuant to Rule 8, the homeowner and beneficiary of the deed of trust may
agree in writing to participate in the Foreclosure Mediation Program."
(emphasis added)); FMR 16(1.) (requiring that a request for a continuance
be "in writing"); FMR 18(1) (requiring that any temporary modification to
the terms of the parties' loan agreement "be in writing"). Likewise, the
FMRs do not include a short sale estimate as one of the enumerated
"documents" that the beneficiary of the deed of trust must disclose at least
ten days before the mediation. See FMR 13(7) (requiring the production of
certain enumerated "documents," of which the short sale estimate is not
one); cf. Document, Black's Law Dictionary (11th ed. 2019) (defining
"document" as "[s]ornething tangible on which words, symbols, or marks are
recorded"). Accordingly, the district court did not err by finding that Wells
Fargo's oral offer satisfied any obligation it had to Coppola under FMR
1.3(1.0).
Beyond this, Coppola suggests that it was bad faith for Wells
Fargo to have obtained a second appraisal following the parties' stipulated
continuance of the FMP process, which Wells Fargo provided to Coppola
less than ten days prior to the continued mediation date. See FMR 13(7)(0
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(requiring that the beneficiary of the deed of trust supply an appraisal of
the property to be fOredosed "not more than 60 days old" at least 10 days
prior to the mediation).2 'Phis second appraisal considered the interior of
the home and resulted in a reduction of the estimated value of his property.
Despite that Wells Fargo did not provide Coppola with the second appraisal
in compliance with FMR 13(7)(f), Wells Fargo appears to have based its
ultimate short sale estimate on it. But Coppola himself requested this
second appraisal, and Wells Fargo's delay in disclosure resulted from
Coppola not having given the bank timely access to his home. In light of
these facts, we are not positioned to find that Wells Fargo violated FMR
13(7)(0 and acted in bad faith when the district court did not. Cf. Edelstein,
128 Nev. at 521-22, 286 P.3d at 260.
Coppola also suggests that the amount of Wells Fargo's short-
sale estimate—which exceeded the value of Wells Fargo's appraisals, but
which, Coppola admitted at oral argument before this court, was less than
the amount Coppola then owed—means the bank participated in bad faith.
Well.s Fargo points to Shaw, wherein the United States Court of Appeals for
the Ninth Circuit defined a short sale as "a real estate transaction in which
the property serving as collateral for a mortgage is sold for less than the
outstanding balance on the secured loan, and the mortgage lender agrees to
2Coppola waived any argument on appeal that Wells Fargo's first
appraisal was either too ol.d or inaccurate under FMR 13(7). As noted, the
parties stipulated to a continuance of the mediation which specifically
provided that "[d]ue to the continuance, [Wells Fargo] is not required to
produce a new Broker's Price Opinion or Appraisal before the next hearing."
And the FMRs do not mandate that an appraisal assess the interior of a
property; what matters is that it "ensure that the fair market value of the
property is known to both parties to the mediation." Markowitz, 129 Nev.
at 666, 310 P.3d at 573.
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discount the loan balance because of a consumer's economic distress." Shaw
v. Experian Info. Sols., Inc., 891 F.3d 749, 752 (9th Cir. 2018) (emphasis
added). And Coppola has not directed us to any caselaw or relevant
authority that would. define a short sale as he suggests—based on the value
of the property, rather than the amount owed. Edwards, 122 Nev. at 330
n.38, 130 P.3d at 1288 n.38. Indeed, independent research suggests that
courts generally define a short sale in the latter terms, in accord with Shctw.
See, e.g., Baxter Dunaway, 6 The Law of Distressed Real Estate: Foreclosure
Workouts Procedures § 65:15 (2022) (noting that in a short sale the
deficiency judgment is the difkrence between the outstanding debt and the
sales price).
Even setting aside the lack of support for Coppola's
understanding of a short sale, Coppola admitted at oral argument that he
would have rejected. one no matter the estimate amount. Instead, what
Coppol.a wanted was a loan modification on more favorable terms. This
negates Coppola's argument that to participate in the FMP in good faith
'Wells Fargo had to provide hirn with a short sale estimate, differently
calculated. The law does not require Wells Fargo to undertake a "vain and
futile thing." 7510 Perla Del Mar Ave Tr. v. Bank of Am., N.A., 136 Nev. 62,
66, 458 P.3d 348, 351 (2020) (citing, in the context of the futility excuse for
superpriority tender requirements, Schmitt v. Sapp, 223 P.2d 403, 406-07
(Ariz. 1950)).
We are also unpersuad.ed by the remainder of Coppola's
arguments on appeal. Coppola claims that the district court did not make
find.ings as to whether Wells Fargo brought copies of the note, deed of trust,
and assignments as required by NRS .1.07.086 and FMR 13(7)(a) and (b).
But the district court's order actually states that Coppola's arguments on
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this front are "unsupported by the record" and/or "unpersuasive," correctly,
since the mediator's statement left unmarked the boxes that would identify
those documents as missing. As to Coppola's claim that Wells Fargo's
representatives at the mediation lacked sufficient authority to participate
in the FMP: Wells Fargo issued and provided a letter giving limited power
of attorney to a law firm, Tiffany & .Bosco, which. provided written authority
for attorney Stephen Wassner to appear as local counsel in FMP mediations;
and Joshua Ring, a Wells Fargo underwriter, seems to have had authority
to modify the terms of Coppola's 1.oan as well. Cf. Amanda Martin,
Litigating Consumer Protection Acts in the HA1VIP Context, 38 Seattle Univ.
L. Rev. 739, 744 (201.5) (noting that, .in the HAMP context, a bank's
underwriting department reviews loan modification applications).
Accordingly, the district court's findings of no FMR violations
or bad faith on Wells Fargo's part are supported by the law and the record.
The district court did not abuse its discretion by issuing the FMP certificate
or denying the additional sanctions that Coppola requested. We therefore
ORDER the judgment of the district court AFFIRMED.
Silver
J.
J.
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cc: Hon. Kathleen M. Drakulich, .District Judge
Legal Aid Center of Southern Nevada, Inc.
Snell & Wilmer LLP/Salt Lake City
Snell & Wilmer, LLP/Tucson
Snell & Wilmer, LLP/Las Vegas
Washoe District Court Clerk
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