139 Nev., Advance Opinion \
IN THE SUPREME COURT OF THE STATE OF NEVADA
BMO HARRIS BANK, N.A., No. 84304
Appellant,
vs.
E
F. HARVEY WHITTEMORE; AND
ANNETTE WI-HTTEMORE,
INDIVIDUALS, SEP 14 2023
Respondents.
ELIZA.,^3r-.7
CLEP PREML COLY?
BY
Appeal from a district court order vacating an affidavit of
renewal and declaring a judgment expired and void. Second Judicial
District Court, Washoe County; Egan K. Walker, Judge.
Affirmed.
Gunderson Law Firm and Mark H. Gunderson, Austin K. Sweet, and John
R. Funk, .Reno,
for Appellant.
Echeverria Law Office and John P. Echeverria, Reno; Matthew L. Sharp,
Ltd., and Matthew L. Sharp, Reno,
for Respondents.
BEFORE THE SUPREME COURT, EN BANC.'
1The Honorable Ron Parraguirre, Justice, voluntarily recused himself
and thus did not participate in the decision of this matter.
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OPINION
By the Court STIGLICH, C.J.:
In this opinion, we revisit the procedure to renew a judgment
under NRS 17.214 and consider whether a judgment creditor must strictly
comply with the certified mail method-of-notice requirement outlined in
NRS 17.214(3). NRS 17.214(3) requires a judgment creditor to notify a
judgment debtor of an affidavit of renewal of judgment by certified mail
within three days of filing the affidavit. In Leven v. Frey, we concluded that
a judgment creditor must satisfy NRS 17.214(3) to renew a judgment and
that strict compliance with the three-day deadline is required. 123 Nev.
399, 402-04, 409, 168 P.3d 712, 715, 719 (2007). Here, appellant provided
electronic notice of an affidavit of renewal to respondents' counsel but did
not provide timely notice by certified mail to respondents, the judgment
debtors. Appellant now asks this court to hold that NRS 17.214(3) is not a
requirement to renew a judgment, contrary to Leven, and alternatively, that
substantial compliance may satisfy the certified mail method-of-notice
requirement. We decline to do so. Instead, we reaffirm Leven's holding that
a judgment creditor must comply with NRS 17.214(3) to renew a judgMent,
and we also conclude that the certified mail method-of-notice requirement
demands strict compliance. Accordingly, we affirm the district court's
ruling that appellant did not comply with NRS 17.214 and thus could not
renew its judgment.
FACTS AND PROCEDURAL HISTORY
Appellant BMO Harris Bank, N.A. (BMO), fka Bank of the
West, obtained a judgment against respondents Harvey arid Annette
Whittemore on November 18, 2015. BMO subsequently recorded the
judgment. Later, BMO sued the Whittemores and their family entities in a
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:-ieparate suit, generally alleging they fraudulently transferred assets to
avoid their liability. Having not collected on the 2015 judgment and with it
set to expire on November 18, 2021, BMO filed an affidavit of renewal of
judgment, recorded the affidavit, and electronically served the
Whittemores' counsel on November 10. After an inquiry by the
Whittemores' counsel, BMO notified the Whittemores by certified mail of
the affidavit of renewal on December 2. The Whittemores moved to vacate
the affidavit of renewal and deelare the judgment void. The district court
granted the motion, conclu.ding that BMO• did not comply with. NRS
17.214(3) because it did not send notice of the affidavit. of renewal to the
Whittemores by certified mail within three days of filing it. BMO appeals.
DISCUSSION
We generally review an order granting a motion to vacate a
renewed judgment.for an abuse of discretion. See Bianchi v. Bank of Am.,
N.A;; 124 Nev. 472, 474, 186 P.3d 890, 891-92 (2008) (analogizing a. motion
to vacate a. renewed foreign- judgment to an NRCP 60(b) motion for relief
from a void judgment and reviewing an order resolving such a• morion for
an. abuse of discretion); see also Fid. Creditor Sem., Inc. v. Browne, 106 Cal.
Rptr. 2d 854, 857 (Ct. App. 2001) (reviewing an order denying a motion to
vacate an affidavit of renewal for an abuse Of discretion). • However, this
appeal presents two questions of law, which we review dr, novo---the
interpretation of NRS 17.214 and whether NRS 17.214(3)'s certified mail
method-of-notice requirement demands strict compliance or allows for.
substantial complian.ce. See Leven, 1.23 Nev. at 402; 168 P.3d at 714
(providing that this court reviews de novo matters of statutory construction
and whether strict compliance is reqiiired). We • begin with the
interpretation of NRS 17.214.
NRS 17.214(3) must be met to renew a judgment under NRS 17.214
BMO argues that the structure of NRS 17.214 reveals that NRS
17.214(3), which addresses notice to the judgment debtor, is not required to
renew a judgment. It argues that NRS 17.214(1) alone provides the
procedure to renew a judgment, namely, timely filing the affidavit of
renewal and timely recording the affidavit. Because the notice requirethent
is not enumerated in NRS 17.214(1), BMO asserts, it is not required to
renew a judgment. Accordingly, BMO contends it renewed its judgment by
timely filing and recording the affidavit.
NRS 17.214 lays out the procedure to renew a judgment. NRS
17.214(1)(a) provides that a "judgment creditor . . . may renew a judgment
which has not been paid by: (a) [f]iling an affidavit . . . titled as ah 'Affidavit
of Renewal of Judgment' that includes certain information about the
judgment. The judgment creditor must record the affidavit within three
days of filing it if the original judgment was recorded. NRS 17.214(1)(b).
NRS 17.214(2) provides that filing "the affidavit renews the judgment to the
extent of the amount shown due in the affidavit." NRS 17.214(3) provides
that the "judgment creditor.... shall notify the judgment debtor of the
renewal of the judgment by sending a copy of the affidavit of renewal by
certified mail. . . within 3 days after filing the affidavit."
In Leven, we interpreted NRS 17.214(3) as containing a
requirement to renew a judgment. 123 Nev. at 402-04, 168 P.3d at 714-15.
We reasoned that NRS 17.214(3) is "clear" that a creditor must notify a
debtor of an affidavit of renewal within three days of filing the affid.avit to
renew a judgment. Id. at 402-03, 168 P.3d at 715. "[U]nder the doctrine of
stare decisis, we will not overturn [precedent] absent compelling reasons for
so doing." Miller v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008)
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(footnote omitted). Such compelling reasons must be "weighty and
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conclusive," id., such as preventing the "perpetuation of error," Stocks v.
Stocks, 64 Nev. 431, 438, 183 P.2d 617, 620 (1947) (internal quotation marks
omitted). A "mere disagreement" is not a compelling reason. Miller, 124
Nev. at 597, 188 P.3d at 1124. When it comes to NRS 17.214, BMO has
failed to demonstrate compelling reasons to disturb Leven's interpretation.
Thus, we reaffirm that NRS 17.214(3) must be met to renew a judgrnent.
Our conclusion is bolstered by the fact that the Legislature has
amended NRS 17.214 twice since Leven but has not changed NRS 17.21.4(3)
or otherwise indicated that it disagreed with our interpretation. Compare
2021 Nev. Stat., ch. 506, § 77, at 3350-51 (enacting a minor amendment to
NRS 17.214(1)), and 2011 Nev. Stat., ch. 388, § 2, at 2409-10 (similar), with
NRS 17.214 (1995) (enacting the version of NRS 17.214 in effect when Leven
was decided). This suggests that Leven interpreted NRS 17.214 in
accordance with the Legislature's intent. See Poasa v. State, 135 Nev. 426,
428-29, 453 P.3d 387, 389 (2019) (holding that the LegiSlature's silence in
the years after the court interpreted. the statute at išsue "suggests its
agreement with the court's construction of the statute, particularly as it has
made other changes to the statute"); see also Runion v. State, 116 Nev. 1041,
1047 n.2, 13 P.3d 52, 56 n.2 (2000) (presuming that the Legislature agreed
with this court's interpretation where the Legislature subsequently
amended a statute but did not change the language that this court
interpreted).
A creditor must strictly comply with NRS'17 214(3)'s certified mail method-
of-notice requirement
Alternatively, BMO argues that NRS 17.214(3)'s requirem.ent
of notice by certified mail may be satisfied by substantial compliance, not
strict compliance. It contends that requiring strict compliance leads to an
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absurd result because it assutnes that the Whittemores learned about the
affidavit of renewal through electronic service on their counse1.2
We disagree. As noted, in Leven we considered whether NRS
17.214 requires strict compliance and concluded that NRS 17.214's timing
requirement demands strict compliance. 123 Nev. at 409, 168 P.3d at 719.
While Leven was limited to the timing requirement, our reasoning also
extends to the certified mail method-of-notice requirement- in NRS
17.214(3), and we now clarify that its certified mail method-Of-notice
requirement likewise demands strict complianee.
The substantial-compliance standard recognizes performance
as adequate where the reasonable purpose of a statute has been met, even
absent technical compliance with the statutory language. Schleining v. Cap
One, Inc., 130 Nev. 323, 331, 326 P.3d 4, p (2014). Strict compliance; in
contrast, requires exact compliance with a statute's terms. In re Murack,
957 N.W.2d 124, 130 (Minn.•Ct. App. 2021). To determine whether a statute
requires strict or substantial compliance, we consider the statute's
language, as well as policy and equity. Leyva v. Nat'l Default .Servicing
Corp., 127 Nev. 470, 475-76, 255 P.3d 1275, 1278 (2011). The inquiry is
whether the purpose of the statute can be served by substantial compliance
rather than technical compliance with th.e statute. Id. at 476, 255 P.3d at
1278. And we will allow substantial compliance when requiring strict
compliance would lead to an absurd result. See Einhorn v. 'BAC Horne
2 BMO also argues that the district court erred in voiding the original
judgment because BMO acted to preserve the judgment by timely filing the
separate, still-pending fraudulent transfer action.. BMO, however, fails to
provide.cogent argument or relevant authOrity supporting its position, and
therefore, we decline to consider this argument. Edwards . v. Emperor's
Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280,1288' n.38 (2006)..
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Loans Servicing, LP, 128 Nev. 689, 697, 290 P.3d 249, 254 (2012)
(concluding that the district court did not abuse its discretion in denying
sanctions when the purposes of a statute's requirements were met and
requiring strict compliance would have "exalt[ed] literalism for no practical
purpose").
The statutory language favors strict compliance
In evaluating a statute's language, we consider the type of
provision at issue. Leven, 123 Nev. at 408, 168 P.3d at 718. If a statute.s
provision is a "Nirne and manner" restriction, strict compliance is generally
required, but if the provision concerns "form and content," substantial
compliance may suffice. Id. A time and manner provision addresses "when
performance must take place and the way in which the deadline must be
ntet." Markowitz v. Saxon Special Servicing, 129 Nev. 660, 664, 310 P.3d
569, 572 (2013) (emphasis added.).
Here, the method-of-notice requirement provides that the
judgment creditor must notify the debtor of the affidavit of renewal by
certified mail. This refers to the way in which the deadline must be Met.
The certified mail method-of-notice requirement is therefore a time and
manner provision, which weighs in favor of demanding strict compliance.
See Marsh-McLennan Bldg. Inc. v. Clapp, 980 P.2d 311, 313 n.1 (Wash. Ct.
App. 1.999) (deeming a "manner of service" requirement in a statute to be a
time and manner provision).
Additionally, we consider whether the statute uses mandatory
language. See Leyva, 127 Nev. at 476, 255 P.3d at 1279 (recognizing that
strict compliance is usually required where mandatory language is used).
NRS 17.214(3) provides that the judgment creditor "shall notify the
judgment debtor of the renewal of the judgment by sending a copy of the
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affidavit of renewal by certified mail." "'Shall' irnposes a duty to act."
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NRS 0.025(1)(d). This mandatory language also supports a determination
that the provision requires strict compliance. Accordingly, the statutory
language weighs in favor of requiring strict compliance as well.
The purpose of NRS 17.214(3) favors substantial compliance but is not
dispositive
In deterrnining whether substantial compliance is permissible,
we examine whether the purpose of the statute .. . can be adequately
served in a manner other than by technical compliance." Leyva, 127 Nev.
at 476, 255 P.3d at 1278. The certified mail method-of-notice requirement
in NRS 17.214(3) serves to protect an individual debtor's due process rights.
Leven, 123 Nev. at 409, 168 P.3d at 719. We recognize that the purpose of
notifying• the judgment debtor of the renewal is met if the debtor has actual
knowledge of the renewal regardless of how the debtor came to learn of it.
Thus, the purpose of the certified mail method-of-notice requirement weighs
in favor of permitting substantial compliance.
Nevertheless, we are not persuaded that the purpose of NRS
17.214 outweighs the statutory language favoring strict compliance. In
contexts where we have held that a method-ofqrotice requirernent may be
met by substantial compliance, additional considerations beyond the
purpose factor weighed in favor of substantial compliance: •For example, in
Hardy Companies v. SNMARK, LLC, we held that substantial-compliance
with the notice requirement of a mechanic's lien statute was permissible
because such statutes are "remedial in character and should be liberally
construed." 126 Nev. 528, 536, 245 P.3d 1149, 1155 (2010) (quoting Las
Vegas Plywood v. D & D Enters., 98 Nev. •378, 380, 649 P.2d 1367, 1368
(1982)). And in Schleining v. Cap One, Inc., we held th.at substantial
compliance with a method-of-notice requirement in a statute governing
notice of default was permissible, in part because the Legislature had
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expressiy permitted substantial compliance in a related statute. 1.30 Nev.
at 329-30, 326 P.3d at 8. 'Having examined NRS 17.214(3), we do not find
additional considerations of the sort that would favor substantial
cornpliance here.3 Indeed, to the contrary, "because judgment renewal
proceedings are purely statutory in nature and are a measure of rights, a
court cannot deviate from those judgment renewal conditions." Leven, 123
Nev. at 409, 168 P.3d at 719.
CONCLUSION
We reaffirm Leven's holding that a judgment creditor• must
follow NRS 17.214(3) to renew a judgment. We also clarify that a judgment
creditor must strictly comply with NRS 17.214(3)'s certified mail method-
of-notice requirement. In light of the foregoing, we affirm.
,
Stiglich
We concur:
Cadish Herndon
Bell
3 Further, we discern nothing absurd here in requiring a sophisticated
party, a large bank, to strictly comply with a notification requirement when
it seeks to recover on a judgment. Accordingly, we reject Bmo's absurdity
argument. Although the dissent suggests that following the letter of the
law renders an unfair outcome in this instance, we note that "law without
equity, though hard and disagreeable, is much more desirable for the public
good, than equity without law: which would make every judge a legislator,
and introduce most infinite confusion." 1 William Blackstone,
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Commentaries on the Laws of England 62 (4th ed. 1770).
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LEE, J.. with whom PICKERING, J., agrees, dissenting:
I cannot agree with the inajority's decision to void a judgment
based on the method of service of the renewal notice where (1) requiring
strict compliance under these circumstances would lead to an absurd result
and (2) a plain reading of NRS 17.214 indicates that service is not a
mandatory prerequisite to judgment renewal. See Smith v. Zilverberg, 137
Nev. 65, 72, 481 P.3d 1222, 1230 (2021) ("When interpreting a statute, we
look to its plain language."). I therefore dissent and would instead reverse
and remand to allow the district court to determine whether the
Whittemores had actual notice of the judgment renewal and suffered any
prejudice as a result of the method and timing of service.
Mandating strict compliance under NRS 17.214(3) would lead to an absurd
result under the facts of this case
Mandating strict compliance with NRS 17.214(3)'s manner of
service requirement needlessly extols literalism to the detriment of
practicality and equity. See Leyva v. Nat'l Default Servicing Corp., 127 Nev.
470, 475-76, 255 P.3d 1275, 1278 (2011) (recognizing that strict compliance
with a statute's requirements may not be necessary when it is not required
to achieve the statute's purpose). This court previously found that
substantial compliance is sufficient in fulfilling service and notice
requirements where (1) a party has actual notice and (2) the party is not
prejudiced. See Hardy Cos., Inc. v. SNMARK, LLC, 126 Nev. 528, 536, 245
P.3d 1149, 1155 (2010) (holding that the notice requirement for a mechanic's
lien is satisfied if the landowner had actual notice and is not prejudiced).
In this case, BMO complied with all renewal and service
requirements under NRS 17.214 prior to the expiration of the judgment,
except for the manner in which it served its notice on the Whittemores.
BMO did not strictly comply with NRS 17.214(3) (requiring service of the
notice of judgment renewal to be sent to the debtor via certified mail) and
instead electronically served. the Whitternores' legal counsel. BMO further
notified the Whittemores via certified mail within two Weeks after the
judgment would have expired. This two-week delay, especially considering
the timely notice provided to the Whittemores' counsel, does not subvert the
purpose of the statute.
I therefore submit that an application of the substantial
compliance rule of construction when assessing the service requirements
set forth in NRS 17.214 would be more apprOpriate. This would allow courts
to Consider the underlying circumStances in determining whether (1)'. a
debtor was sufficiently on notice of the continuing obligation to repa.y the
judgment, (2) the debtor would be prejudiced if the judgment was renewed;
and (3) the creditor made reasonable efforts to comply with the service
requirements.
Alternatively, even under a strict compliance analysis, this
eciurt has previously elucidated that "strict compliance does not mean
absurd compliance." Einhorn v. BAC Horne Loans Servicing, LP, 128 Nev.
689, 696, 290 P.3d 249, 254 (2012). Guided by this principle, this Court held.
that a judgment was not voided where a creditor did not record the affidaVit
of renewal within three dayS of filing because the creditor "satisfied all of
NRS 17.214's service and recording requirements before the judgment
expired.' Hesser v. Kennedy Funding, Inc., No. 81383, 2022 WI, 354504
(NeV. Feb. 4, 2022) (Order of Affirmance) (affirming the denial of a Motion
to declare a judgment expired). Because "the purpose of procuring reliable
title searches [was] not affected," the court reasoned that "Mak[ing] the
outcome turn on the present facts 'exalts literaliSm for no practical
purpose.' Id. (quoting Einhorn, 128 Nev. at 697, 290 P.3d at 254). Set, also
2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory
Construction, § 46:2, at 177 (7th ed. 2014) ("Statutes should be read sensibly
2
rather than literally and controlling legislative intent should be presumed
to be consonant with reason and good discretion.").
Substantial compliance, especially under the circumstances
presented here, does not impinge upon a judgment debtor's due process
rights, entirely fulfills the purpose of the statute, and gives judgment
creditors an opportunity to avoid a draconian outcome—an irreversible and
complete eradication of their judgment. I therefore submit that the court
should reverse and remand the matter for further findings by the district
court regarding whether the Whittemores had actual notice of the renewal
and any potential prejudice.
A plain reading of the statute indicates that service is not a prerequisite to
renewal under NRS 17.214
The plain language of NRS 17.214(1)(a) provides that "[a]
judgment creditor . . . may renew a judgment which has not been paid by:
(a) Miling an . . 'Affidavit of Renewal of Judgment" that includes specific
information. NRS 17.214(1)(b) provides that the affidavit must be recorded
if the judgment was recorded. NRS 17.214(2)-(4) are enumerated
separately, and unlike NRS 17.214(1), nothing within those provisions
states that they are part of the renewal process. This marks a clear
distinction between the renewal requirements under NRS 17.21.4(1) and the
remaining provisions of the statute—which this court must not disregard.
See Platte River Ins. Co. v. Jackson, 137 Nev. 773, 777, 500 P.3d 1257, 1261.
(2021) (recognizing the canon of statutory construction that "a legislature's
omiSsion of language included elsewhere in the statute signifies an intent
to• exclude such language"); see also Galloway v. Truesdell, 83 Nev. 13, 26,
422 P.2d 237, 246 (1967) ("The ma.xim 'Expressio Un.ius Est Exclusio
Alterius', the expression of one thing is the exclusion of another, has been
repeatedly confirmed in this State.").
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NRS 17.214(2) provides that "Mlle filing of the affidavit renews
the judgment to the extent of the amount shown due in the affidavit."
(Emphasis added.) This shows that the judgment is deemed renewed upon
the filing of the affidavit of renewal of judgment. This reading is further
reinforced by the language of NRS 17.214(3), which provides that "[t]he
judgment creditor . . . shall notify the judgment debtor of the renewal of the
judgment." (Emphasis added.) This presupposes that renewal of the
judgment is complete by the time notice is served.
Had the Legislature intended for service to be a prerequisite of
renewal. NRS 17.214 could have instead required that• the creditor send
notice of the intent to renew or of the filing of the affidavit of renewal of
judgment. The Legislature did not do so; thus, the only reasonable
interpretation of NRS 17.214(3)'s plain language is that renewal occurs
prior to notice and that the notice requirement only serves to make the
debtor aware that the judgment has been renewed. See State v. Lucero, 127
Nev. 92, 95, 249 P.3d 1226, 1228 (2011) ("The starting point for determining
legislative intent is the statute's plain meaning; when a statute is clear on
its face, a court cannot go beyond the statute in determining legislative
intent." (internal quotation marks omitted)).1
If the court looks beyond the plain language, legislative history
and public policy considerations underlying the enactment of NRS 17.214
further support the interpretation set forth above. NRS 17.214 was enacted
in 1985. See 1985 Nev. Stat., ch. 223, § 2, at 699-700. NRS 17.214 was
amended in 1995. See 1995 Nev. Stat., ch. 475, § 21, at 1525. The 1995
To the extent that this court imported a service requirement to renew
1
a judgment based on NRS 17.214(3) in Leven v. Frey, I would overrule that
holding based on the analysis above. 123 Nev. 399, 402-04, 168 P.3d 712,
714-15 (2007).
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amendment added NRS 1.7.214(1)(b) as it appears in the statute tod.ay. The
1995 amendment was a "housekeeping attempt" meant to provi.de the public
with easier access to information on liens and to facilitate reconveyances of
real property where appropriate. See Hearing on S.B. 455 Before the S.
Judiciary Comm., 68th Leg., at 10 (Nev., May 23, 1995). The recording
requirement was included so that the judgment renewal could be "easily
ascertained" in title searcheS. ki. at 11. The 1995 amendment was not
enacted to • alter the standard means to renew a judgment--filing the
affidavit; rather; it simply 'imposed an additional conditional requirement
where a judgment was recorded.
Bisecting the service requirement from the 'renewal
requirements demonstrates that each section serves .a distinct pUrpose. The
service requirement is implemented to put the debtor on notice of the
continuing obligation to repay the judgm.ent, not to effectuate renewal of
the same. See, e.g., Orme v. Eighth judicial Dist. Court, 105 Nev. 712, 715,
782 P.2d 1325, 1327 (1989) ("The primary purpose u.nderlying tb.e ruleS
regulating service of process is to [e]nsure that individuals are provided
actual notice of suit and a reasonable opportUnity to defend."). Therefore. I
must dissent.
Lee
I concur:
Pickering
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