Pasillas v. HSBC BANK USA
127 Nev. 462
| Nev. | 2011Background
- Pasillases sought mediation under Nevada's Foreclosure Mediation Program (NRS 107.086) for their owner-occupied Reno home.
- Two mediations occurred (Feb. 18 and Mar. 8, 2010) but neither produced a resolution.
- AHMSI appeared by phone; it is disputed whether HSBC was present or represented at mediation.
- Mediator found that the beneficiary failed to participate in good faith, failed to bring required documents, and needed additional investor approval to modify the loan.
- Petition for judicial review sought sanctions; district court certified the mediation to proceed, then denied sanctions, prompting appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Document production requirement breached? | Pasillas contends respondents failed to bring all required documents. | HSBC/AHMSI claim documents were provided or not mandated to be complete at mediation. | Yes, four document-mandate violations sanctionable. |
| Authority to modify loan present at mediation? | Pasillas argues no one with loan-modification authority was present or accessible. | Respondents assert they had access to modification authority via counsel or investor approvals. | Yes, lacking authority to modify is sanctionable. |
| Sanctions standard for Foreclosure Mediation Program violations? | Violations warrant district-court sanctions and non-certification of foreclosure. | District court should exercise discretion and may decline sanctions if mediation occurred in good faith. | District court abused its discretion by not imposing sanctions. |
| Effect of sanctions on certification to proceed with foreclosure? | Certification should be withheld until compliance with statute/rules is complete. | Certification to proceed could be proper despite some violations if ultimately fair. | Court should remand to determine sanctions and potentially non-certification. |
Key Cases Cited
- S.N.E.A. v. Daines, 824 P.2d 276 (Nev. 1992) (shall mandatory unless legislature dictates otherwise)
- Tarango v. SIIS, 25 P.3d 175 (Nev. 2001) (interpreting 'may' as 'shall' to carry out legislative intent)
- Arnold v. Kip, 168 P.3d 1050 (Nev. 2007) (abuse-of-discretion standard for sanctions decisions)
- Banks v. Sunrise Hospital, 102 P.3d 52 (Nev. 2004) (abuse-of-discretion review in sanctions cases)
- Young v. Johnny Ribeiro Building, 787 P.2d 777 (Nev. 1990) (sanctions factors in disciplinary rulings)
- Bahena v. Goodyear Tire & Rubber Co., 235 P.3d 592 (Nev. 2010) (foreclosure mediation sanctions factors and considerations)