BENKO VS. QUALITY LOAN SERV. CORP. , 2019 NV 64 ( 2019 )

135 Nev., Advance Opinion 44
IN THE. SUPREME COURT OF THE STATE OF NEVADA
JEFFREY BENKO, A NEVADA No. 73484
RESIDENT; CAMILO MARTINEZ, A
NEVADA RESIDENT; ANA MARTINEZ,
A NEVADA RESIDENT; FRANK FILED
SCINTA, A NEVADA RESIDENT;
DEC 2 6 2019
JACQUELINE SCINTA, A NEVADA
RESIDENT; SUSAN HJORTH, A
NEVADA RESIDENT; RAYMOND
SANSOTA, AN OHIO RESIDENT;
FRANCINE SAMOTA, AN OHIO
RESIDENT; SANDRA KUHN, A
NEVADA RESIDENT; JESUS GOMEZ,
A NEVADA RESIDENT; SILVIA
GOMEZ, A NEVADA RESIDENT;
DONNA HERRERA, A NEVADA
RESIDENT; JESSE HENNIGAN, A
NEVADA RESIDENT; SUSAN
KALLEN, A NEVADA RESIDENT;
ROBERT MANDARICH, A NEVADA
RESIDENT; JAMES NICO, A NEVADA
RESIDENT; PATRICIA
TAGLIAMONTE, A NEVADA
RESIDENT; AND BIJAN LAGHAEL
Appellants,
vs.
QUALITY LOAN SERVICE
CORPORATION, A CALIFORNIA
CORPORATION; MTC FINANCIAL
INC., D/B/A TRUSTEE CORPS, A
CALIFORNIA CORPORATION;
MERIDIAN FORECLOSURE SERVICE,
A CALIFORNIA AND NEVADA
CORPORATION, D/B/A MTDS, INC.,
D/B/A MERIDIAN TRUST DEED
SERVICE; NATIONAL DEFAULT
SERVICING CORPORATION, AN
ARIZONA CORPORATION; AND
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CALIFORNIA RECONVEYANCE
COMPANY, A CALIFORNIA
CORPORATION,
Respondents.
Appeal from a district court order dismissing the case for failure
to state a claim. Eighth Judicial District Court, Clark County; William D.
Kephart, Judge.
Affirmed.
Law Offices of Nicholas A. Boylan, APC, and Nicholas A. Boylan, San Diego,
California,
for Appellants.
Bryan Cave Leighton Paisner LLP and Lawrence G. Scarborough, Jessica
R. Maziarz, and Kathryn E. Bettini, Phoenix, Arizona; Smith Larsen &
Wixom and Kent F. Larsen and Katie M. Weber, Las Vegas,
for Respondent California Reconveyance Company.
Kolesar & Leatham, Chtd., and Michael R. Brooks, Las Vegas; Burke,
Williams & Sorensen, LLP, and Richard J. Reynolds and Allan E. Ceran,
Santa Ana, California,
for Respondent MTC Financial Inc.
McCarthy & Holthus LLP and Kristin A. Schuler-Hintz, Las Vegas,
for Respondent Quality Loan Service Corporation.
Tiffany & Bosco, P.A., and Jason C. Kolbe and Kevin S. Soderstrom, Las
Vegas,
for Respondent National Default Servicing Corporation.
BEFORE THE COURT EN BANC.
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OPINION
By the Court, HARDESTY, J.:
NRS Chapter 649 governs agencies engaged in debt collection
in Nevada, while NRS Chapter 107 governs the deed of trust system and
the nonjudicial foreclosure process. In this appeal, we determine whether
trustees who exercise a power of sale under a deed of trust pursuant to NRS
Chapter 107 are engaging in collection activities under NRS Chapter 649,
such that they must be licensed under that chapter.'
Appellants, Jeffrey Benko and 18 other individuals (collectively
referred to as Benko), brought a putative class action alleging that
respondents, all of whom are current or former NRS Chapter 107 trustees,
engaged in unlicensed debt collection agency activities by pursuing
nonjudicial foreclosures on their homes. The district court dismissed the
complaint, finding that the plain language of NRS Chapter 107 authorizes
the actions allegedly performed by respondents. We agree.
1We note at the outset that the allegations set forth in the operative
complaint occurred between 2008 and 2011. As we explain within this
opinion, the Legislature has since addressed the question of whether
trustees who exercise a power of sale under a deed of trust pursuant to NRS
Chapter 107 must be licensed pursuant to NRS Chapter 649 with the
enactment of NRS 107.028 in 2011. 2011 Nev. Stat., ch. 311, §§ 5.8, 5.9 at
1746-48. Since the allegations set forth in the operative complaint predate
the enactment of NRS 107.028, this opinion concerns the governing
statutory law applicable during that time period. We further note that any
amendments made to certain statutes relied on in this opinion between
2008 and 2011 do not alter our analysis, nor do the parties argue as much.
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While deed of trust trustees engage in activities that would
otherwise meet the definition of a debt collection agency under NRS
Chapter 649, the comprehensive scheme of NRS Chapter 107 demonstrates
that the Legislature intended to exempt deed of trust trustees from NRS
Chapter 649 licensing requirements. Because Benko's allegations concern
conduct that falls within the scope of NRS Chapter 107, we conclude that
respondents were not required to be licensed under NRS Chapter 649.
Therefore, we affirm the district court's order of dismissal.
FACTS AND PROCEDURAL HISTORY
Benko filed a putative class action against respondents Quality
Loan Service Corporation; MTC Financial, Inc.; Meridian Foreclosure
Services;2 National Default Servicing Corporation; and California
Reconveyance Company (collectively referred to as respondents), alleging
claims of statutory consumer fraud under NRS 41.600, based on violations
of NRS 649.075 and NRS 649.171, and unjust enrichment. Benko's
statutory fraud claim relied on allegations that respondents acted as
collection agencies when they pursued payment of claims owed or due, or
asserted to be owed or due, to the lenders, and they did not hold the
requisite license to act as a collection agency. Based on respondents alleged
illegal collection practices, Benko further claimed that respondents were
unjustly enriched by substantial payments. Respondents sought to dismiss
the claims, maintaining that they were not required to be licensed as
collection agencies in their capacity as trustees under NRS Chapter 107.
20fnote, Meridian Foreclosure Services has not entered an
appearance in this appeal.
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The district court dismissed the case as a matter of law and
directed judgment in favor of respondents because "[t]rustees are subject to
NRS Chapter 107 and do not need to be licensed as collection agencies" and
the "enforcement of security interests in real property does not constitute
doing business in the State of Nevada." The district court found that NRS
Chapter 107 empowers deed of trust tmstees to contract and perform duties
to accomplish nonjudicial foreclosure, that NRS Chapter 649 intends to
exclude deed of trust trustees engaged in nonjudicial foreclosure from its
licensing requirements, that enforcing a security interest in real property is
not claim collection under NRS 649.010, and that, because enforcing a
security interest does not constitute doing business, trustees do not need to
be licensed.
Benko appeals, arguing that respondents engaged in activities
under NRS Chapter 649 and were therefore not exempt from licensure.3
DISCUSSION
The issue before us is whether Benko raised viable causes of
action because respondents, as deed of trust trustees, were required to be
licensed under NRS Chapter 649 in order to conduct nonjudicial
foreclosures pursuant to NRS Chapter 107. We review an order granting
an NRCP 12(b)(5) motion to dismiss de novo. Buzz Stew, LLC v. City of N.
Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). We presume
3Benko also argues that the deed of trust trustees breached their
fiduciary duty. However, Benko never asserted this as a cause of action in
the complaint. Therefore, we conclude this issue was not preserved for
appeal and do not address it. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52,
623 P.2d 981, 983 (1981) (stating that failure to raise a point in the district
court deems it waived and prevents this court from considering it on
appeal).
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MEM
that all alleged facts in the complaint are true and draw all inferences in
favor of the complainant. Id. Dismissing a complaint is appropriate "only
if it appears beyond a doubt that [the plaintiff] could prove no set of facts,
which, if true, would entitle [the plaintiff] to relief." Id. All legal
conclusions in making an NRCP 12(b)(5) ruling are reviewed de novo. Id.The comprehensive scheme of NRS Chapter 107 demonstrates that the
Legislature intended to exempt deed of trust trustees from NRS Chapter 649
licensing requirement.s
Benko argues that nonjudicial foreclosure of a deed of trust falls
within the definition of debt collection under NRS Chapter 649 and, thus,
the district court erred in finding that respondents were exempt from NRS
Chapter 649 licensure.
"When the language of a statute is unambiguous, the courts are
not permitted to look beyond the statute itself when determining its
meaning." Westpark Owners Ass'n v. Eighth Judicial Dist. Court, 123 Nev.
349, 357, 167 P.3d 421, 427 (2007). When two statutes conflict, we attempt
to read the statutes in a way that harmonizes them. State, Dep't of Bus. &
Indus., Fin. Insts. Div. v. Nev. As.s'n Servs., Inc., 128 Nev. 362, 368, 294 P.3d
1223, 1227 (2012); see also Szydel v. Markman, 121 Nev. 453, 457, 117 P.3d
200, 202-03 (2005) ("When two statutes are clear and unambiguous but
conflict with each other when applied to a specific factual situation, an
ambiguity is created and we will attempt to reconcile the statutes.").
As an initial matter, we agree with Benko that nonjudicial
foreclosure of a deed of trust falls within the meaning of debt collection
under NRS Chapter 649. Though the district court erroneously determined
otherwise, the court did not have the benefit of the recent United States
Supreme Court decision in Obduskey v. McCarthy & Holthus LLP , U.S.
„ 139 S. Ct. 1029, 1036-38 (2019). In Obduskey, the Court
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specifically concluded that a law firm hired by the creditor to engage in
nonjudicial foreclosure would satisfy the primary definition of a debt
collector under the federal Fair Debt Collection Practices Act (FDCPA) as a
business that "regularly collects or attempts to collect, directly or indirectly,
debts," were it not for additional statutory language limiting the scope of
the primary definition. U.S. at „ 139 S. Ct. at 1033, 1036-37(quoting 15 U.S.C. § 1692a(6) (2012)). As the Court explained, "a home loan
is an obligation to pay money, and the purpose of a mortgage is to secure
that obligation. Foreclosure, in turn, is the process in which property
securing a mortgage is sold to pay off the loan balance due." Id. at , 139
S. Ct. at 1036 (internal citation and quotation marks omitted). Concluding
that "foreclosure is a means of collecting a debt," the Court noted that a
business pursuing nonjudicial foreclosures fell within the FDCPA's primary
definition of a debt collector, as there is no requirement that the payment
of the debt come from the debtor, only that the debt collector seek collection
of a debt "owed or due to another," "directly or indirectly." Id. (internal
quotation marks omitted); 15 U.S.C. § 1692a(6) (2012).
NRS Chapter 649 similarly defines a debt lc] collection agency"
as "all persons engaging, directly or indirectly, and as a primary or a
secondary object, business or pursuit, in the collection of or in soliciting or
obtaining in any manner the payment of a claim owed or due or asserted to
be owed or due to another." NRS 649.020(1). "Claim" is defined as "any
obligation for the payment of money or its equivalent that is past due." NRS
649.010.
Like the FDCPA, NRS 649.020(1) includes in its definition
those who indirectly attempt to collect past due payments, which would
encompass respondents. NRS 649.020(1) also does not require that the
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collection of debt come from the debtor, only that a collection agency seek
"payment of a claim owed or due." "So, even if nonjudicial foreclosure were
not a direct attempt to collect a debt, because it aims to collect on a
consumer's obligation by way of enforcing a security interest, it would be an
indirect attempt to collect a debt." Obduskey, U.S. at , 139 S. Ct. at
1036-37. Accordingly, in light of Obduskey, the district court erred in
concluding that nonjudicial foreclosures do not amount to seeking payment
of a claim, and the parties reliance on caselaw to the contrary is misplaced.4
Nevertheless, we conclude that businesses engaged in
nonjudicial foreclosures in Nevada do not need to be licensed as debt
collectors under NRS Chapter 649 because NRS Chapter 107s
comprehensive statutory scheme specifically governs nonjudicial
foreclosures and thus trumps the more generalized application of NRS
Chapter 649 and because it is the most logical way to harmonize the
4The Supreme Court's conclusion that a business enforcing a security
interest through nonjudicial foreclosure is a debt collector runs counter to
lower federal court caselaw that is cited by the parties and was relied on by
the district court. See Ho v. ReconTrust Co., NA, 858 F.3d 568, 572 (9th Cir.
2017) ("RI ollowing a trustee's sale, the trustee collects money from the
home's purchaser, not from the original borrower," and it is therefore not
considered debt collection); Hulse v. Ocwen Fed. Bank, FSB, 195 F. Supp.
2d 1188, 1204 (D. Or. 2002) (stating that "ffloreclosing on a trust deed is
distinct from the collection of the obligation to pay money" because the
lender was "foreclosing its interest in the property," and the "[p]ayment of
funds [was] not the object of the foreclosure action"); see also Erickson v.
PNC Mortg., No. 3:10-CV-0678-LRH-VPC, 2011 WL 1626582, at *2 (D. Nev.
Apr. 27, 2011) ("It is well established that non judicial foreclosures are not
an attempt to collect a debt under the Fair Debt Collection Practice Act and
similar state statutes.").
8
conflicting provisions of NRS Chapters 649 and 107. To hold otherwise
would permit two distinct and conflicting schemes to regulate the
nonjudicial foreclosure process. This cannot logically be so.5
First, the Legislature created a comprehensive statutory
scheme governing a trustees role in nonjudicial foreclosures. A deed of
trust operates as a three-party security interest, whereby the trustee holds
legal title to the borrower's property as security for the obligations owed to
the lender. See NRS 107.020; NRS 107.028; NRS 107.080. The Legislature
conferred the power of sale upon trustees. NRS 107.080 (2007).
Specifically, when a borrower defaults, the trustee may pursue nonjudicial
foreclosure pursuant to the procedures set forth in NRS Chapter 107.
Edelstein v. Bank of New York Mellon, 128 Nev. 505, 513, 286 P.3d 249, 254-
55 (2012); NRS 107.080 (2007). NRS Chapter 107 explicitly prohibits a
trustee from executing its power of sale before it has complied with "certain
statutory requirements." Edelstein, 128 Nev. at 513, 286 P.3d at 254-55;
NRS 107.080 (2007). In addition to specifying the things required of deed
of trust trustees, NRS Chapter 107 also defines the consequences of such
trustees failure to comply. For example, NRS 107.080(5) (2007) provides
that a sale made pursuant to NRS Chapter 107 may be declared void if the
5Respondents additionally argue that the Legislature occupied the
field of nonjudicial foreclosure via NRS Chapter 107 and thus preempted
NRS Chapter 649 from applying to persons acting in the capacity of trustee
under a deed of trust. We reject respondents' argument because preemption
applies to conflicts between federal, state, or local government control—not
to conflicting terms within Nevada statutes. See Nanopierce Techs., Inc. v.
Depository Tr. & Clearing Corp., 123 Nev. 362, 370, 168 P.3d 73, 79 (2007)
("The preemption doctrine . . . provides that federal law supersedes
conflicting state law . . . ."); City of Reno v. Saibini, 83 Nev. 315, 319, 429
P.2d 559, 561 (1967) (discussing the Legislature's power to preempt local
law or otherwise delegate authority to local municipalities).
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trustee did not substantially comply with the provisions of the chapter. See
also NRS 107.077(3), (9) (1999) (detailing that trustees are subject to civil
and criminal liability for failure to record a reconveyance of the deed of
trust).
In contrast to the specific scheme set forth in NRS Chapter 107,
NRS Chapter 649 empowers the Commissioner of the Division of Financial
Institutions (FID) to regulate collection agencies in general. See NRS
232.510(2)(b) (2007) (establishing FID); NRS 649.051 (authorizing the
commissioner to enforce NRS Chapter 649); NRS 649.053 (empowering the
commissioner to adopt regulations necessary to carry out the provisions of
NRS Chapter 649). Because NRS 107.080 (2007) specifically identifies the
duties of a trustee engaged in nonjudicial foreclosure, while NRS Chapter
649 generally governs agencies engaged in debt collection in Nevada, we
conclude the Legislature intended that trustees may engage in nonjudicial
foreclosures pursuant to NRS Chapter 107 without licensure under NRS
649.020. See State, Dep't of Taxation v. Masco Builder Cabinet Grp., 129
Nev. 775, 778, 312 P.3d 475, 478 (2013) ("A specific statute controls over a
general statute." (internal quotations marks omitted)); cf. Obduskey,
U.S. at , 139 S. Ct. at 1039 (stating that statutory "exclusion of the
enforcement of security interests must also exclude the legal means
required to do so" (internal quotation marks omitted)).
Second, the conflicting provisions of NRS Chapters 107 and 649
further support our conclusion that businesses engaged in nonjudicial
foreclosure do not need to be licensed as debt collectors in Nevada. NRS
Chapter 107 proscribes a trustee from executing its power of sale until it
has complied with the statutory requirements. See NRS 107.080 (2007);
Edelstein, 128 Nev. at 513, 286 P.3d at 254-55. Among these requirements,
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trustees must first execute a notice of breach and an election to sell the
property to satisfy the obligation and must include in the notice of sale a
litany of information that puts the property owner on notice of the amount
owed. NRS 107.080(2)(b), (3) (2007). Prior to exercising its power of sale on
an owner-occupied residence, a trustee must also provide to the title holder
of record the contact information of someone with authority to negotiate a
loan modification and of a local housing counseling agency approved by the
United States Department of Housing and Urban Development, as well as
a form giving the option to enter into or waive mediation. NRS 107.086(2)
(2009).
In contrast, NRS 649.375 prohibits a number of actions that
traditionally accompany nonjudicial foreclosure—for example, advertising
the sale of a claim, publishing a list of debtors, or offering counseling in
conjunction with debt collection. See NRS 649.375(6)-(8). Because the
trustee is obligated under NRS Chapter 107 to offer mediation and publish
and post information about the sale, which necessarily reveals the identity
of the debtor, before foreclosing, yet would be prohibited from taking such
actions under NRS Chapter 649 as a debt collector, there is a clear conflict
between the statutes. Reading these statutory provisions in harmony, we
conclude that the Legislature intended to exempt deed of trust trustees from
qualifying as debt collectors so long as they are acting within their power
as trustees under NRS 107.080 (2007). See Szydel v. Markman, 121 Nev.
453, 457, 117 P.3d 200, 203 (2005) ("[W]e will attempt to read [conflicting]
statutory provisions in harmony, provided that this interpretation does not
violate legislative intent.").
Moreover, NRS 649.020s definition of "collection agency"
further demonstrates the Legislatures intent to exclude deed of trust
11
trustees from NRS Chapter 649s licensing requirements. The only
reference to nonjudicial foreclosure in NRS Chapter 649 concerns a
"community managee foreclosing on an assessment lien in the common-
interest community and condominium hotel contexts. NRS 649.020(3).
Based on this singular reference to nonjudicial foreclosure, we can infer that
the Legislatures exclusion of deed of trust trustees from NRS Chapter 649s
licensure requirements was intentional. See In re Estate of W.R. Prestie,
122 Nev. 807, 814, 138 P.3d 520, 524 (2006) (recognizing "the fundamental
rule of statutory construction that [t] he mention of one thing implies the
exclusion of anothee (alteration in original) (internal quotation marks
omitted)).6
6The parties discuss at length, and the district court mentioned, NRS
107.028, which provides ten categories of those who may serve as a
nonjudicial foreclosure trustee, including a collection agency. Respondents
argue that NRS 107.028 does not mandate that a deed of trust trustee be
licensed as a collection agency because, by including a collection agency as
one of the ten types of qualified trustees, the Legislature acknowledged that
a trustee need not be licensed pursuant to NRS Chapter 649. As the parties
note, NRS 107.028 did not become effective until October 2011. 2011 Nev.
Stat., ch. 311, §§ 5.8, 5.9 at 1746-48. In the third amended complaint, Benko
alleged that notices of default on the various properties at issue were filed
between 2008 and 2011. As such, we do not rely on NRS 107.028 to reach
our conclusion that the Legislature has not required that deed of trust
trustees qualify as debt collectors. However, we note that this provision
supports this conclusion because requiring a trustee to possess a collection
agency license would render the remaining credentialed categories
meaningless. See Libby v. Eighth Judicial Dist. Court, 130 Nev. 359, 363-
64, 325 P.3d 1276, 1279 (2014) (stating that this court avoids
interpretations that would render words or phrases in a statute superfluous
or meaningless).
12
The district court correctly granted respondents motion to dismiss for failure
to state a claim because all of Benko's allegations fall within the scope of
NRS Chapter 107
Having concluded that deed of trust trustees need not qualify
as debt collectors so long as they are acting within their power as trustees
under NRS Chapter 107, we now turn to the allegations set forth in the
complaint. We determine that each of Benko's allegations falls within the
scope of NRS Chapter 107.7
First, Benko alleges that respondents pursued claim collection
through the reinstatement of defaulted debts, forbearance agreements for
the defaulted debts, or loan modification agreements, or otherwise
requested or directed payment of a defaulted claim. A trustee must
communicate the amount of the defaulted debt and all fees imposed by the
power of sale. NRS 107.080(2)(b), (3) (2007). Thus, NRS Chapter 107
contemplates that the trustee—as both the common agent of the lender and
the borrower, and the person conducting the foreclosure sale—would collect
money from the borrower or otherwise discuss the foreclosure status of the
property and related arrangements. Such activity does not amount to claim
collection.
Second, Benko asserts that respondents forwarded monies
collected from defaulted claims to the lender. NRS 107.030(7) (2005)
permits a deed of trust to adopt by reference a provision empowering a
trustee to apply the proceeds from a foreclosure sale to the defaulted debts.
Accordingly, NRS Chapter 107 expressly contemplates such activity.
7 The allegations in the complaint were plaintiff-specific, so the actual
complaint has various allegations by different plaintiffs. However, because
it is a putative class action—and in the interest of consistency—any specific
plaintiffs allegation is said here to have been alleged by Benko.
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Third, Benko alleges that respondents acquired the security for
the defaulted debt to pursue claim collection. While NRS 107.081(1) (2005)
prohibits the trustee, as the agent conducting the sale, from having any
interest in the property or in others purchasing the property, NRS
107.080(1) (2007) confers the power of sale upon the trustee. Thus, to the
extent Benko alleges that respondents collected a claim by conducting the
sale of the property, such act is within the statutory power of the trustee.
Fourth, Benko maintains that debt collection includes the basic
foreclosure process of filing default notices. For the reasons stated above,
we disagree that deed of trust trustees engaged in nonjudicial foreclosure
need to be licensed pursuant to NRS Chapter 649. Moreover, NRS 107.080
(2007) explicitly empowers a trustee to initiate and complete the nonjudicial
foreclosure process. NRS 107.080(1) (2007) ("[A] power of sale is hereby
conferred upon the trustee to be exercised after a breach of the obligation
for which the transfer is security."). Thus, we conclude that Benko's
allegations fall within the scope of NRS Chapter 107 such that NRS Chapter
649 does not apply in this instance.
CONCLUSION
While deed of trust trustees engage in activities that would
otherwise meet the definition of a collection agency under NRS Chapter 649,
the comprehensive statutory scheme of NRS Chapter 107 demonstrates
that the Nevada Legislature did not intend that deed of trust trustees be
subjected to NRS Chapter 649 licensing requirements when they are
engaged in nonjudicial foreclosures. Because NRS Chapter 107s
comprehensive statutory scheme specifically governs nonjudicial
foreclosure, preventing the more generalized application of NRS Chapter
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649, and because it is the most logical way to harmonize the conflicting
provisions of NRS Chapters 649 and 107, we conclude that respondents
were not required to be licensed under NRS Chapter 649. And because
Benko's allegations fall within the bounds of NRS Chapter 107, we hold that
Benko has not pleaded a cognizable cause of action. Thus, we affirm the
district courfs order granting respondents motion to dismiss for failure to
state a claim.8
, J.
Hardesty
C.J. I dem.
Gibbons Pickering
o-tg sÏ , J.
Parraguirre Stiglich
, J.
Silver
8Because we conclude that trustees engaged in nonjudicial foreclosure
do not need to be licensed as debt collectors, we do not reach the question of
whether respondents were exempt from licensure under NRS 80.015.
Neither do we address the claim for unjust enrichment. Further, we do not
grant Benko leave to amend his complaint because it was waived. Old Aztec
Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (stating that
failure to raise a point in the district court renders it waived and prevents
this court from considering it on appeal).
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