Las Vegas Foreclosure Law. Houses Homes Foreclosures

CHAPTER 106 - REAL MORTGAGES

ADOPTION OF COVENANTS

NRS 106.020  Adoption by reference before March 1, 1967.

NRS 106.025            Adoption by reference on and after March 1, 1967.

NRS 106.030            Mortgage secures performance of covenants adopted by reference.

NRS 106.040            Adoption by reference in instrument.

NRS 106.050            Parties may enter into different or additional covenants.

IMPOUND TRUST ACCOUNTS

NRS 106.105            Contributions; payment of obligations; notice regarding and disposition of excess money; civil penalty.

MORTGAGES OF ESTATES FOR YEARS; POSSESSORY CLAIMS TO PUBLIC LANDS OR MINING CLAIMS

NRS 106.195            Mortgage of estate for years.

NRS 106.200            Effect of recorded mortgage upon possessory claims to public lands or mining claims.

ASSIGNMENTS; SUBORDINATION AND WAIVERS AS TO PRIORITY; DISCHARGE AND EXTINGUISHMENT

NRS 106.210            Recording of assignments of mortgages or beneficial interests in deeds of trust; constructive notice.

NRS 106.220            Filing and recording of instruments subordinating or waiving priority of mortgages or deeds of trust; constructive notice.

NRS 106.240            Extinguishment of lien created by mortgage or deed of trust upon real property.

NRS 106.260            Discharge and assignment: Marginal entries; discharge or release must be recorded when mortgage or lien recorded by microfilm.

NRS 106.270            Discharge of mortgages on filing of certificates specifying satisfaction or payment.

NRS 106.280            Certificates of discharge: Recording.

NRS 106.290            Recording of discharge of mortgage by mortgagee; liability for failure to record discharge; requirements for release of mortgage when discharge not recorded; liability for improperly recording release; criminal penalty.

ENCUMBRANCE TO SECURE FUTURE ADVANCES

NRS 106.300            Definitions.

NRS 106.310            “Borrower” defined.

NRS 106.320            “Future advance” defined.

NRS 106.330            “Instrument” defined.

NRS 106.340            “Lender” defined.

NRS 106.345            “Principal” defined.

NRS 106.350            Applicability.

NRS 106.360            Execution, contents and amendment of instrument.

NRS 106.370            Priority of lien.

NRS 106.380            Notice of election to terminate operation of instrument; recording of statement by lender.

NRS 106.390            Effect of notice of termination.

NRS 106.400            Advances made after notice of termination.

_________

ADOPTION OF COVENANTS

      NRS 106.020  Adoption by reference before March 1, 1967.  In any mortgage of real or personal, or real and personal property, made prior to March 1, 1967, the parties may adopt by reference all or any of the following covenants, agreements, obligations, rights and remedies:

      1.  Covenant No. 1. That the mortgagor will perform each and all of the promises and obligations of the mortgage and all covenants thereof, adopted by reference as provided herein, and will pay the indebtedness therein described with interest as therein provided.

      2.  Covenant No. 2. That the mortgagor will pay a reasonable attorney fee in case suit is started for the collection of the mortgage debt or any part thereof, and will pay all costs and expenses of the suit, whether the suit be prosecuted to judgment or not, and will also pay all costs of any sale made thereunder without court proceedings, including in case of such sale an attorney fee equal to …….. percent of the amount due at the date of the sale upon the principal and interest of the mortgage debt.

      3.  Covenant No. 3. That the mortgagor will pay, in lawful money of the United States, all sums expended or advanced by the mortgagee for taxes or assessments levied or assessed against the mortgaged property, fire insurance upon the same, or advanced for any other purpose provided for by the terms of the mortgage or the covenants thereof adopted by reference, together with interest upon any such sums from the date of the payment by the mortgagee until repaid, at the rate of …….. percent per annum.

      4.  Covenant No. 4. That this mortgage will be security for the payment in lawful money of the United States of any and all moneys that may hereafter become due or payable from the mortgagor to the mortgagee, from any cause whatsoever.

      5.  Covenant No. 5. That this mortgage shall be security for any and all renewals of the mortgage debt or of the promissory note or notes evidencing the same, which may be executed and delivered by the mortgagor to the mortgagee, and any and all additional or future advances or loans which may be made by the mortgagee to the mortgagor.

      6.  Covenant No. 6. That the mortgagor agrees to pay and discharge at maturity all taxes and assessments and all other charges and encumbrances which are, or shall hereafter be, or appear to be, a lien upon the mortgaged property, or any part thereof, and he will pay all interest or installments due on any prior encumbrance. And in default thereof, the mortgagee may, without demand or notice, pay the same and the mortgagee shall be the sole judge of the legality or validity of such taxes, assessments, charges or encumbrances and the amount necessary to be paid in the satisfaction or discharge thereof.

      7.  Covenant No. 7. That the mortgagor will at all times keep the buildings and improvements, which are now or which shall hereafter be erected upon the mortgaged premises, insured against loss or damage by fire to the amount of at least $…….. in some reliable insurance company or companies, approved by the mortgagee, and will deliver the policies therefor to the mortgagee to be held by the mortgagee as further security. In default of the mortgagor to obtain such insurance, the mortgagee may procure the same, not exceeding the amount aforesaid, and may pay and expend for premiums for such insurance such sums of money as the mortgagee shall deem necessary.

      8.  Covenant No. 8. That if there be more than one mortgagor in a mortgage, all covenants, terms, promises and obligations set forth in the mortgage or adopted by reference are agreed to be joint and several covenants, terms, conditions, promises and obligations of each of the mortgagors thereto.

      9.  Covenant No. 9. That this mortgage is made upon the express condition that if all sums secured hereby shall be paid at the time, place and manner mentioned in the mortgage, or in any of the covenants provided by this section which shall be adopted by reference, the mortgage and the estate therein mentioned and described shall cease, determine and be void, and the mortgagor, for himself, his heirs, executors, administrators, successors and assigns, covenants and agrees to pay in lawful money of the United States to the mortgagee all sums secured by the mortgage, or by the terms of the covenants adopted by reference at the time and in the manner therein provided, and if default be made in the payment of the principal or interest or any part thereof described in the mortgage, or of any promissory note or other instrument or obligation for which such mortgage is given as security, the whole of the principal sum for which the mortgage is given, which shall be then unpaid, shall become forthwith payable, although the time expressed in the promissory note or notes or other obligation or obligations shall not have arrived.

      10.  Covenant No. 10. That it is understood and agreed that all the natural increase, during the existence of this mortgage, of any livestock which shall at any time be subject to the lien hereof, and all other livestock of the same kind as that described in the mortgage which in any manner is acquired by the mortgagor during the life of the mortgage, and all wool grown upon or produced by any sheep which shall at any time be subject to the lien of the mortgage, is property mortgaged hereunder and subject to the lien of the mortgage.

      11.  Covenant No. 11. That the mortgagor covenants and agrees to keep all livestock mortgaged or subject to the lien of the mortgage in good condition, and care for, inspect and protect the same, and provide and maintain sufficient blooded, graded breeding stock to properly serve any female livestock at any time subject to the lien of the mortgage, and in general to exercise such care in rearing, branding, ranging and feeding all livestock subject to the lien of the mortgage as is consistent and in accord with good business, and with the customary manner of handling that kind of livestock which is subject to the lien hereof. Should the livestock or any part thereof at any time, in the opinion of the mortgagee, require care, attention or protection other than that provided by the mortgagor, then the mortgagee may enter or cause entry to be made upon any property where the mortgaged livestock or any part thereof may be found, and assume control, custody and possession of the same, and at the expense of the mortgagor care for, protect, and attend to the same in such manner as it may deem necessary.

      12.  Covenant No. 12. That it is further understood and agreed that the mortgagee, its agents or attorneys, shall have the right at all times to inspect and examine any property which may at any time be subject to the lien of the mortgage, for the purpose of ascertaining whether or not the security given is being lessened, diminished, depleted or impaired, and if such inspection or examination shall disclose, in the judgment of the mortgagee, that the security given or the property mortgaged is being lessened or impaired, such condition shall be deemed a breach of the covenants of the mortgage on the part of the mortgagor.

      13.  Covenant No. 13. That upon default of any of the terms, conditions, covenants or agreements of any chattel mortgage whereby livestock is mortgaged, it is agreed that the mortgagee may, without foreclosure and without legal proceedings and without any previous demand therefor, with the aid or assistance of any person or persons, enter upon the premises and ranges of the mortgagor or such place or places as any of the property subject to the lien of the mortgage is or may be found, and take, lead, drive or carry away the mortgaged property or any part thereof, and with or without notice to the mortgagor, at either public or private sale, sell and dispose of the same or so much thereof as may be necessary to pay the amount and sums secured by the mortgage, for the best price it can obtain, and out of the moneys arising therefrom it shall retain and pay the sum or sums then due or payable under the lien of the mortgage, and interest thereon, and all charges and expenses incurred in gathering, feeding, caring for, and selling the property or any part thereof, and any other expenses and charges incurred by the mortgagee, and all other sums secured by any of the terms of the mortgage, and any overplus shall be paid to the mortgagor. The mortgagee is expressly authorized and empowered, upon any such sale, to make and execute such bills of sale or other conveyances necessary to convey to the purchaser or purchasers thereof an absolute title in the property so sold. It shall not be necessary for the purchaser or purchasers at any such sale or sales purported to be made under the powers granted hereunder to inquire into or in any way be or become responsible for the actual existence of the contingency or contingencies upon which such sale or sales shall be made by the mortgagee, and title to the purchaser or purchasers of the property so sold shall be good and sufficient; and the mortgagor agrees that the decision of the mortgagee as to the actual existence of the contingency or contingencies upon which the sale or sales as aforesaid is or may be predicated shall be conclusive and binding upon the mortgagor.

      14.  Covenant No. 14. That it is expressly agreed by and between the mortgagor and mortgagee that, in the event suit shall be instituted for the foreclosure of the mortgage, the mortgagee may, at its option and without notice, apply for the appointment of a receiver for the purpose of taking possession of the mortgaged property pending foreclosure, and with the approval of the court wherein such suit is instituted, such receiver as may be designated by the mortgagee shall be appointed. All costs in connection with the appointment of a receiver or in connection with the discharge of the duties of the receiver shall be taxed as costs in the suit.

      15.  Covenant No. 15. That it is expressly agreed and understood that in any sale of any of the property at any time subject to the lien of the mortgage, under the terms of the mortgage or any of the covenants adopted by reference, the property may, at the option of the mortgagee, be sold in one lot or parcel or in such other lots or parcels as may be designated by the mortgagee; and it is further covenanted and agreed that the mortgagee may become the purchaser of the property or any part thereof at any sale made under any of the terms of the mortgage, or upon foreclosure.

      [1:109:1927; NCL § 4330]—(NRS A 1967, 120)

NRS 106.025  Adoption by reference on and after March 1, 1967.  In any mortgage of real property, made on or after March 1, 1967, the parties may adopt by reference all or any of the following covenants, agreements, obligations, rights and remedies:

      1.  Covenant No. 1. That the mortgagor will perform each and all of the promises and obligations of the mortgage and all covenants thereof, adopted by reference as provided herein, and will pay the indebtedness therein described with interest as therein provided.

      2.  Covenant No. 2. That the mortgagor will pay a reasonable attorney fee in case suit is started for the collection of the mortgage debt or any part thereof, and will pay all costs and expenses of the suit, whether the suit be prosecuted to judgment or not, and will also pay all costs of any sale made thereunder without court proceedings, including in case of such sale an attorney fee equal to …….. percent of the amount due at the date of the sale upon the principal and interest of the mortgage debt.

      3.  Covenant No. 3. That the mortgagor will pay, in lawful money of the United States, all sums expended or advanced by the mortgagee for taxes or assessments levied or assessed against the mortgaged property, fire insurance upon the same, or advanced for any other purpose provided for by the terms of the mortgage or the covenants thereof adopted by reference, together with interest upon any such sums from the date of the payment by the mortgagee until repaid, at the rate of …….. percent per annum.

      4.  Covenant No. 4. That this mortgage will be security for the payment in lawful money of the United States of any and all moneys that may hereafter become due or payable from the mortgagor to the mortgagee, from any cause whatsoever.

      5.  Covenant No. 5. That this mortgage shall be security for any and all renewals of the mortgage debt or of the promissory note or notes evidencing the same, which may be executed and delivered by the mortgagor to the mortgagee, and any and all additional or future advances or loans which may be made by the mortgagee to the mortgagor.

      6.  Covenant No. 6. That the mortgagor agrees to pay and discharge at maturity all taxes and assessments and all other charges and encumbrances which are, or shall hereafter be, or appear to be, a lien upon the mortgaged property, or any part thereof, and he will pay all interest or installments due on any prior encumbrance. And in default thereof, the mortgagee may, without demand or notice, pay the same and the mortgagee shall be the sole judge of the legality or validity of such taxes, assessments, charges or encumbrances and the amount necessary to be paid in the satisfaction or discharge thereof.

      7.  Covenant No. 7. That the mortgagor will at times keep the buildings and improvements, which are now or which shall hereafter be erected upon the mortgaged premises, insured against loss or damage by fire to the amount of at least $…….. in some reliable insurance company or companies, approved by the mortgagee, and will deliver the policies therefor to the mortgagee to be held by the mortgagee as further security. In default of the mortgagor to obtain such insurance, the mortgagee may procure the same, not exceeding the amount aforesaid, and may pay and expend for premiums for such insurance such sums of money as the mortgagee shall deem necessary.

      8.  Covenant No. 8. That if there be more than one mortgagor in a mortgage, all covenants, terms, promises and obligations set forth in the mortgage or adopted by reference are agreed to be joint and several covenants, terms, conditions, promises and obligations of each of the mortgagors thereto.

      9.  Covenant No. 9. That this mortgage is made upon the express condition that if all sums secured hereby shall be paid at the time, place and manner mentioned in the mortgage, or in any of the covenants provided by this section which shall be adopted by reference, the mortgage and the estate therein mentioned and described shall cease, determine and be void, and the mortgagor, for himself, his heirs, executors, administrators, successors and assigns, covenants and agrees to pay in lawful money of the United States to the mortgagee all sums secured by the mortgage, or by the terms of the covenants adopted by reference at the time and in the manner therein provided, and if default be made in the payment of the principal or interest or any part thereof described in the mortgage, or of any promissory note or other instrument or obligation for which such mortgage is given as security, the whole of the principal sum for which the mortgage is given, which shall be then unpaid, shall become forthwith payable, although the time expressed in the promissory note or notes or other obligation or obligations shall not have arrived.

      10.  Covenant No. 10. That it is further understood and agreed that the mortgagee, its agents or attorneys, shall have the right at all times to inspect and examine any property which may at any time be subject to the lien of the mortgage, for the purpose of ascertaining whether or not the security given is being lessened, diminished, depleted or impaired, and if such inspection or examination shall disclose, in the judgment of the mortgagee, that the security given or the property mortgaged is being lessened or impaired, such condition shall be deemed a breach of the covenants of the mortgage on the part of the mortgagor.

      11.  Covenant No. 11. That it is expressly agreed by and between the mortgagor and mortgagee that, in the event suit shall be instituted for the foreclosure of the mortgage, the mortgagee, may, at its option and without notice, apply for the appointment of a receiver for the purpose of taking possession of the mortgaged property pending foreclosure, and with the approval of the court wherein such suit is instituted, such receiver as may be designated by the mortgagee shall be appointed. All costs in connection with the appointment of a receiver or in connection with the discharge of the duties of the receiver shall be taxed as costs in the suit.

      12.  Covenant No. 12. That it is expressly agreed and understood that in any sale of any of the property at any time subject to the lien of the mortgage, under the terms of the mortgage or any of the covenants adopted by reference, the property may, at the option of the mortgagee, be sold in one lot or parcel or in such other lots or parcels as may be designated by the mortgagee; and it is further covenanted and agreed that the mortgagee may become the purchaser of the property or any part thereof at any sale made under any of the terms of the mortgage, or upon foreclosure.

      (Added to NRS by 1967, 123)

NRS 106.030  Mortgage secures performance of covenants adopted by reference.  Whenever, by the terms of any mortgage, any of the covenants in NRS 106.020 or 106.025 are adopted as a part thereof by reference, as provided in NRS 106.020 to 106.050, inclusive, the mortgage is intended to secure and does secure the performance of the terms and conditions of the mortgage and all of the covenants so adopted by reference.

      [2:109:1927; NCL § 4331]—(NRS A 1967, 125; 1985, 237)

 NRS 106.040  Adoption by reference in instrument.

      1.  In order to adopt by reference any of the covenants, agreements, obligations, rights and remedies in NRS 106.020 or 106.025, it shall only be necessary to state in the mortgage whichever of the following is appropriate:

      (a) “The following covenants, Nos. ….., ….. and ….. (inserting the respective numbers) of NRS 106.020, are hereby adopted and made a part of this mortgage.”

      (b) “The following covenants, Nos. ….., ….. and ….. (inserting the respective numbers) of NRS 106.025, are hereby adopted and made a part of this mortgage.”

      2.  In order to fix the amount of counsel fees under Covenant No. 2 of NRS 106.020 or 106.025, it shall only be necessary to state in the mortgage: “Covenant No. 2,” and set out thereafter the percentage to be allowed.

      3.  In order to fix the rate of interest under Covenant No. 3 of NRS 106.020 or 106.025, it shall only be necessary to state in the mortgage: “Covenant No. 3,” and set out thereafter the rate of interest to be charged thereunder.

      4.  A mortgage, in order to fix the amount of insurance to be carried, need not reincorporate the provisions of Covenant No. 7 of NRS 106.020 or 106.025, but may merely state the following: “Covenant No. 7,” and set out thereafter the amount of insurance to be carried.

      [3:109:1927; NCL § 4332] + [4:109:1927; NCL § 4333]—(NRS A 1967, 126)

NRS 106.050  Parties may enter into different or additional covenants.  Nothing in NRS 106.020 to 106.040, inclusive, prevents the parties to any mortgage from entering into any other, different or additional covenants or agreements than those set out in NRS 106.020 or 106.025.

      [5:109:1927; NCL § 4334]—(NRS A 1967, 126; 1985, 237)

IMPOUND TRUST ACCOUNTS

NRS 106.105  Contributions; payment of obligations; notice regarding and disposition of excess money; civil penalty.

      1.  Except as otherwise provided in subsection 2, a lender who requires a borrower to make advance contributions to an impound trust account, or an account of similar name, for the payment of taxes, insurance premiums or other obligations related to the encumbered property shall:

      (a) Require contributions in an amount reasonably necessary to pay the obligations as they become due.

      (b) Unless money in the account is insufficient, pay in a timely manner the obligations as they become due.

      (c) Within 30 days after the completion of its annual review of the account, notify the borrower:

             (1) Of the amount by which the contributions exceed the amount reasonably necessary to pay the annual obligations due from the account; and

             (2) That he may specify the disposition of the excess money within 20 days after receipt of the notice. If the borrower fails to specify such a disposition within that time, the lender shall maintain the excess money in the account.

 A lender who violates any provision of this subsection is liable to the borrower for a civil penalty of not more than $1,000.

      2.  A lender, to recover previous deficiencies in contributions to an impound trust account, may require contributions to the account in an amount greater than that reasonably necessary to pay the obligations as they become due. The borrower is otherwise entitled to the amount by which his contributions to the account exceed the amount reasonably necessary to pay the annual obligations due from the account, together with interest thereon at the rate established pursuant to NRS 99.040.

      3.  As used in this section:

      (a) “Borrower” means a mortgagor, grantor of a deed of trust or other obligor on a loan secured by a lien upon real property.

      (b) “Lender” means a mortgagee, beneficiary of a deed of trust or other obligee on a loan secured by a lien upon real property, and his successor in interest.

      (Added to NRS by 1989, 1766)

MORTGAGES OF ESTATES FOR YEARS; POSSESSORY CLAIMS TO PUBLIC LANDS OR MINING CLAIMS

 NRS 106.195  Mortgage of estate for years.  Mortgages may be made upon an estate for years, however created, unless prohibited by the instrument which created such estate.

      (Added to NRS by 1967, 954)

NRS 106.200  Effect of recorded mortgage upon possessory claims to public lands or mining claims.  A mortgage for a good and valuable consideration upon possessory claims to public lands, all buildings and improvements upon such lands, and all quartz and mining claims, acknowledged in manner and form as mortgages upon real property are required by law to be acknowledged, and recorded in the office of the recorder in the county in which the property is situated, shall have the same effect against third persons as mortgages upon real property.

      [76:9:1861; A 1935, 253; 1931 NCL § 1547]—(NRS A 1965, 924)

ASSIGNMENTS; SUBORDINATION AND WAIVERS AS TO PRIORITY; DISCHARGE AND EXTINGUISHMENT

NRS 106.210  Recording of assignments of mortgages or beneficial interests in deeds of trust; constructive notice.

      1.  Any assignment of a mortgage of real property, or of a mortgage of personal property or crops recorded prior to March 27, 1935, and any assignment of the beneficial interest under a deed of trust may be recorded, and from the time any of the same are so filed for record shall operate as constructive notice of the contents thereof to all persons.

      2.  Each such filing or recording shall be properly indexed by the recorder.

      [Part 1:120:1935; 1931 NCL § 2122.31]—(NRS A 1965, 924)

NRS 106.220  Filing and recording of instruments subordinating or waiving priority of mortgages or deeds of trust; constructive notice.

      1.  Any instrument by which any mortgage or deed of trust of, lien upon or interest in real property is subordinated or waived as to priority, may, in case it concerns only one or more mortgages or deeds of trust of, liens upon or interests in real property, together with, or in the alternative, one or more mortgages of, liens upon or interests in personal property or crops, the instruments or documents evidencing or creating which have been recorded prior to March 27, 1935, be recorded, and from the time any of the same are so filed for record shall operate as constructive notice of the contents thereof to all persons.

      2.  Each such filing or recording shall be properly indexed by the recorder.

      [Part 1:120:1935; 1931 NCL § 2122.31]—(NRS A 1965, 925)

NRS 106.240  Extinguishment of lien created by mortgage or deed of trust upon real property.  The lien heretofore or hereafter created of any mortgage or deed of trust upon any real property, appearing of record, and not otherwise satisfied and discharged of record, shall at the expiration of 10 years after the debt secured by the mortgage or deed of trust according to the terms thereof or any recorded written extension thereof become wholly due, terminate, and it shall be conclusively presumed that the debt has been regularly satisfied and the lien discharged.

      [2:37:1917; 1919 RL p. 3352; NCL § 9410]—(NRS A 1965, 1229)

NRS 106.260  Discharge and assignment: Marginal entries; discharge or release must be recorded when mortgage or lien recorded by microfilm.

      1.  Any mortgage or lien, that has been or may hereafter be recorded, may be discharged or assigned by an entry on the margin of the record thereof, signed by the mortgagee or his personal representative or assignee, acknowledging the satisfaction of or value received for the mortgage or lien and the debt secured thereby, in the presence of the recorder or his deputy, who shall subscribe the same as a witness, and such entry shall have the same effect as a deed of release or assignment duly acknowledged and recorded. Such marginal discharge or assignment shall in each case be properly indexed by the recorder.

      2.  In the event that the mortgage or lien has been recorded by a microfilm or other photographic process, a marginal release may not be used and a duly acknowledged discharge or release of such mortgage or lien must be recorded.

      [35:9:1861; A 1881, 23; 1935, 253; 1953, 79]—(NRS A 1965, 925)

NRS 106.270  Discharge of mortgages on filing of certificates specifying satisfaction or payment.  Any recorded mortgage shall also be discharged upon the record thereof by the recorder in whose custody it shall be, whenever there shall be presented to him a certificate executed by the mortgagee, his personal representative or assignee, acknowledged, or proved and certified, as prescribed in NRS, to entitle conveyances to be recorded, specifying that such mortgage has been paid or otherwise satisfied or discharged.

      [36:9:1861; A 1935, 253; 1931 NCL § 1508]—(NRS A 1965, 926)

 NRS 106.280  Certificates of discharge: Recording.  Every certificate of discharge of a recorded mortgage, and the proof or acknowledgment thereof, shall be recorded at full length, and a reference shall be made to the book containing such record in the minutes of the discharge of such mortgage made by the recorder upon the record thereof.

      [37:9:1861; A 1935, 253; 1931 NCL § 1509]—(NRS A 1965, 926)

NRS 106.290  Recording of discharge of mortgage by mortgagee; liability for failure to record discharge; requirements for release of mortgage when discharge not recorded; liability for improperly recording release; criminal penalty.

      1.  Within 21 calendar days after receiving written notice that a debt secured by a mortgage has been paid or otherwise satisfied or discharged, the mortgagee shall cause a discharge of the mortgage to be recorded pursuant to NRS 106.260 or 106.270 if the mortgagor, his heirs or assigns have fully performed the conditions of the mortgage.

      2.  If a mortgagee fails to comply with the provisions of this section, the mortgagee is liable in a civil action to the mortgagor, his heirs or assigns for:

      (a) The sum of $500;

      (b) Any actual damages caused by the failure of the mortgagee to comply with the provisions of this section; and

      (c) A reasonable attorney’s fee and the costs of bringing the action.

      3.  Except as otherwise provided in this subsection, if a mortgagee fails to cause a discharge of the mortgage to be recorded pursuant to subsection 1 within 75 calendar days, a title insurer may prepare and cause to be recorded a release of the mortgage. At least 30 calendar days before the recording of a release pursuant to this subsection, the title insurer shall mail, by first-class mail, postage prepaid, notice of the intention to record the release of the mortgage to the mortgagor and mortgagee, or their successors in interest, at the last known address of each such person. A release prepared and recorded pursuant to this subsection shall be deemed a discharge of the mortgage. The title insurer shall not cause a release to be recorded pursuant to this subsection if the title insurer receives written instructions to the contrary from the mortgagor, the mortgagee or a successor in interest.

      4.  The release prepared pursuant to subsection 3 must set forth:

      (a) The name of the mortgagor;

      (b) The name of the mortgagee;

      (c) The recording reference to the mortgage;

      (d) A statement that the debt secured by the mortgage has been paid in full or otherwise satisfied or discharged;

      (e) The date and amount of payment or other satisfaction or discharge; and

      (f) The name and address of the title insurer issuing the release.

      5.  A release prepared and recorded pursuant to subsection 3 does not relieve a mortgagee of the requirements imposed by subsections 1 and 2.

      6.  In addition to any other remedy provided by law, a title insurer who improperly causes to be recorded a release of a mortgage pursuant to this section is liable in a civil action for actual damages and for a reasonable attorney’s fee and the costs of bringing the action to any person who is injured because of the improper recordation of the release.

      7.  Any person who willfully violates this section is guilty of a misdemeanor.

      8.  As used in this section, “title insurer” has the meaning ascribed to it in NRS 692A.070.

      [38:9:1861; A 1935, 253; 1931 NCL § 1510]—(NRS A 1999, 56)

ENCUMBRANCE TO SECURE FUTURE ADVANCES

NRS 106.300  Definitions.  As used in NRS 106.300 to 106.400, inclusive, unless the context otherwise requires, the words and terms defined in NRS 106.310 to 106.345, inclusive, have the meanings ascribed to them in those sections.

      (Added to NRS by 1985, 725; A 1989, 492)

NRS 106.310  “Borrower” defined.  “Borrower” means a mortgagor, grantor of a deed of trust or other debtor.

      (Added to NRS by 1985, 725)

NRS 106.320  “Future advance” defined.  “Future advance” means a loan of money to a borrower pursuant to an agreement but made after the agreement is executed.

      (Added to NRS by 1985, 725)

NRS 106.330  “Instrument” defined.  “Instrument” means a mortgage, deed of trust or other instrument encumbering real property as security for the repayment of a debt.

      (Added to NRS by 1985, 725)

NRS 106.340  “Lender” defined.  “Lender” means a mortgagee, beneficiary of a deed of trust or other creditor holding an instrument.

      (Added to NRS by 1985, 725)

NRS 106.345  “Principal” defined.  “Principal” means the money a lender advances to a borrower as a loan which, separately or together with other advances, is intended to be evidenced by the face amount of a note, bond or other similar document. The term does not include any interest, advances made to protect security or advances which would not have been made if the borrower and all other parties to the agreement relating to the loan or future advances had complied with its terms even if the obligations contained in the agreement were secured by an instrument.

      (Added to NRS by 1989, 492)

NRS 106.350  Applicability.  The provisions of NRS 106.300 to 106.400, inclusive, apply only to an instrument or supplement or amendment to an instrument that states clearly that it is to be governed by those provisions.

      (Added to NRS by 1985, 726; A 1989, 492)

NRS 106.360  Execution, contents and amendment of instrument.

      1.  A borrower may execute an instrument encumbering his real property to secure future advances from a lender within a mutually agreed maximum amount of principal.

      2.  The instrument must state clearly:

      (a) That it secures future advances; and

      (b) The maximum amount of principal to be secured.

      3.  The maximum amount of advances of principal to be secured by the instrument may increase or decrease from time to time by amendment of the instrument.

      (Added to NRS by 1985, 725; A 1989, 492)

NRS 106.370  Priority of lien.

      1.  The priority of a lien for future advances dates from the time that the instrument is recorded in the office of the county recorder of the county in which the property is located, whether or not the:

      (a) Future advances are obligatory or at the option of the lender; or

      (b) Lender has notice of an intervening lien.

      2.  If an amendment to an instrument is recorded which increases the maximum amount of indebtedness secured by the instrument, the priority of any lien for future advances of principal thereafter which exceed the maximum amount of principal of the original indebtedness dates from the time the amendment is recorded in the office of the county recorder of the county in which the property is located.

      (Added to NRS by 1985, 725; A 1989, 493)

NRS 106.380  Notice of election to terminate operation of instrument; recording of statement by lender.

      1.  The borrower may at any time personally deliver or send by certified mail, return receipt requested, a written notice to the lender stating that the borrower elects to terminate the operation of the instrument as security for future advances of principal made after the date of receipt of the notice by the lender.

      2.  Within 4 working days after receipt of the notice, the lender must record in the office of the county recorder of the county where the original instrument was recorded a statement which:

      (a) Refers to the original instrument;

      (b) Contains the legal description of the encumbered real property;

      (c) States that the notice given pursuant to subsection 1 was received by the lender, with the date of that receipt;

      (d) States the total amount of principal owed on the date of receipt of the notice on account of all outstanding debts and obligations secured by the instrument; and

      (e) States the total amount of interest accrued on the outstanding debts and obligations as of the date the statement is recorded.

      3.  If the lender does not record the statement pursuant to subsection 2 within 4 working days, the borrower may record a similar statement and that statement has the same effect.

      (Added to NRS by 1985, 726; A 1989, 493)

NRS 106.390  Effect of notice of termination.  Receipt of notice of termination by the lender does not affect the priority of any lien for any future advances previously made, obligations previously incurred or interest accrued thereon.

      (Added to NRS by 1985, 726)

NRS 106.400  Advances made after notice of termination.  Future advances of principal made to a borrower after the receipt of the notice of termination by the lender are not secured by the instrument. The principal amount of indebtedness secured by the instrument is limited to the amount stated by the lender in his recorded statement.

      (Added to NRS by 1985, 726; A 1989, 493)

 

Cont’d Las Vegas Foreclosure Laws

CHAPTER 107 - DEEDS OF TRUST

GENERAL PROVISIONS

NRS 107.015            Definitions.

NRS 107.020            Transfers in trust of real property to secure obligations.

NRS 107.025            Estate for years: Encumbrance by deed of trust; foreclosure by exercise of power of sale.

NRS 107.026            Priority of certain deeds of trust over other liens.

NRS 107.027            Lease of dwelling unit of cooperative housing corporation: Shares in corporation appurtenant to lease; encumbrances.

ADOPTION OF COVENANTS

NRS 107.030            Adoption of covenants by reference.

NRS 107.040            Adoption of covenants by reference in instrument.

NRS 107.050            Parties may enter into different or additional covenants.

ASSUMPTION FEE

NRS 107.055            Amount must be stated in instrument.

ASSIGNMENTS; SUBORDINATION AND WAIVERS AS TO PRIORITY

NRS 107.070            Recording of assignments of beneficial interests and instruments subordinating or waiving priority of deeds of trust.

DISCHARGE

NRS 107.073            Marginal entries; reconveyance must be recorded if deed of trust recorded by photographic process; presentation of certificate executed by trustee or his personal representative or assignee.

NRS 107.077            Delivery of documents by beneficiary to trustee; recording by trustee; liability for failure to deliver or record documents; requirements for release of deed of trust when reconveyance not recorded; liability for improperly recording deed of trust; criminal penalty.

NRS 107.078            Partial discharge: Delivery of documents by beneficiary to trustee; recording by trustee; liability for failure to deliver or record documents; requirements for partial release of deed of trust when reconveyance not recorded; criminal penalty.

DEFAULT AND SALE

NRS 107.080            Trustee’s power of sale: Power conferred; required notices; effect of sale; circumstances in which sale may be declared void.

NRS 107.081            Time and place of sale; agent holding sale not to be purchaser.

NRS 107.082            Oral postponement of sale.

NRS 107.083            Proceedings after purchaser refuses to pay amount bid.

NRS 107.084            Liability for removing or defacing notice of sale.

NRS 107.085            Restrictions on trustee’s power of sale concerning certain trust agreements: Applicability; service of notice upon grantor; scheduling of date of sale; form of notice; judicial foreclosure not prohibited; “unfair lending practice” defined.

NRS 107.090            Request for notice of default and sale: Recording and contents; mailing of notice; effect of request.

NRS 107.095            Notice of default: Mailing to guarantor or surety of debt; effect of failure to give.

NRS 107.100            Receiver: Appointment after filing notice of breach and election to sell.

STATEMENT FROM BENEFICIARY OF DEED OF TRUST

NRS 107.200            Contents of statement regarding debt secured by deed of trust.

NRS 107.210            Contents of statement of amount necessary to discharge debt secured by deed of trust.

NRS 107.220            Persons authorized to request statement from beneficiary; proof of identity of successor in interest.

NRS 107.230            Proof of authorization to request statement.

NRS 107.240            Grounds for refusal to deliver statement.

NRS 107.250            Reliance upon accuracy of statement and amended statement; notification of amended statement; recovery of money by beneficiary if statement is deficient.

NRS 107.260            Copy of note or deed of trust for authorized requester.

NRS 107.270            Address to which request for statement must be mailed.

NRS 107.280            Debt to which information contained in statement is applicable.

NRS 107.290            Unclear request for statement deemed to be request for amount necessary to discharge debt.

NRS 107.300            Penalty for failure to deliver statement; bar to recovery of certain damages.

NRS 107.310            Fee for furnishing statement.

NRS 107.311            Applicability of NRS 107.310.

_________

 

GENERAL PROVISIONS

NRS 107.015  Definitions.  As used in this chapter:

      1.  “Facsimile machine” means a device which receives and copies a reproduction or facsimile of a document or photograph which is transmitted electronically or telephonically by telecommunications lines.

      2.  “Title insurer” has the meaning ascribed to it in NRS 692A.070.

      (Added to NRS by 1995, 1518)

NRS 107.020  Transfers in trust of real property to secure obligations.  Transfers in trust of any estate in real property may be made after March 29, 1927, to secure the performance of an obligation or the payment of any debt.

      [Part 1:173:1927; A 1949, 70; 1943 NCL § 7710]

NRS 107.025  Estate for years: Encumbrance by deed of trust; foreclosure by exercise of power of sale.  A deed of trust may encumber an estate for years however created, including a lease of a dwelling unit of a cooperative housing corporation, unless prohibited by the instrument creating the estate, and foreclosure may be had by the exercise of a power of sale in accordance with the provisions of this chapter.

      (Added to NRS by 1967, 954; A 1979, 708; 1989, 506)

NRS 107.026  Priority of certain deeds of trust over other liens.  Except as otherwise provided in NRS 104.9335, a deed of trust given to secure a loan made to purchase the real property on which the deed of trust is given has priority over all other liens created against the purchaser before he acquires title to the real property.

      (Added to NRS by 1995, 1522; A 1999, 387)

NRS 107.027  Lease of dwelling unit of cooperative housing corporation: Shares in corporation appurtenant to lease; encumbrances.

      1.  The shares which accompany a lease of a dwelling unit in a cooperative housing corporation are appurtenant to the lease. Any security interest in or lien on the lease encumbers the shares whether or not the instrument creating the interest or lien expressly includes the shares.

      2.  No security interest in or lien on shares of a cooperative housing corporation is effective unless the instrument which purports to create the interest or lien encumbers the lease to which the shares pertain.

      (Added to NRS by 1979, 708)

ADOPTION OF COVENANTS

NRS 107.030  Adoption of covenants by reference.  Every deed of trust made after March 29, 1927, may adopt by reference all or any of the following covenants, agreements, obligations, rights and remedies:

      1.  Covenant No. 1. That grantor agrees to pay and discharge at maturity all taxes and assessments and all other charges and encumbrances which now are or shall hereafter be, or appear to be, a lien upon the trust premises, or any part thereof; and that he will pay all interest or installments due on any prior encumbrance, and that in default thereof, beneficiary may, without demand or notice, pay the same, and beneficiary shall be sole judge of the legality or validity of such taxes, assessments, charges or encumbrances, and the amount necessary to be paid in satisfaction or discharge thereof.

      2.  Covenant No. 2. That the grantor will at all times keep the buildings and improvements which are now or shall hereafter be erected upon the premises insured against loss or damage by fire, to the amount of at least $…….., by some insurance company or companies approved by beneficiary, the policies for which insurance shall be made payable, in case of loss, to beneficiary, and shall be delivered to and held by the beneficiary as further security; and that in default thereof, beneficiary may procure such insurance, not exceeding the amount aforesaid, to be effected either upon the interest of trustee or upon the interest of grantor, or his assigns, and in their names, loss, if any, being made payable to beneficiary, and may pay and expend for premiums for such insurance such sums of money as the beneficiary may deem necessary.

      3.  Covenant No. 3. That if, during the existence of the trust, there be commenced or pending any suit or action affecting the conveyed premises, or any part thereof, or the title thereto, or if any adverse claim for or against the premises, or any part thereof, be made or asserted, the trustee or beneficiary may appear or intervene in the suit or action and retain counsel therein and defend same, or otherwise take such action therein as they may be advised, and may settle or compromise same or the adverse claim; and in that behalf and for any of the purposes may pay and expend such sums of money as the trustee or beneficiary may deem to be necessary.

      4.  Covenant No. 4. That the grantor will pay to trustee and to beneficiary respectively, on demand, the amounts of all sums of money which they shall respectively pay or expend pursuant to the provisions of the implied covenants of this section, or any of them, together with interest upon each of the amounts, until paid, from the time of payment thereof, at the rate of ……………. percent per annum.

      5.  Covenant No. 5. That in case grantor shall well and truly perform the obligation or pay or cause to be paid at maturity the debt or promissory note, and all moneys agreed to be paid by him, and interest thereon for the security of which the transfer is made, and also the reasonable expenses of the trust in this section specified, then the trustee, its successors or assigns, shall reconvey to the grantor all the estate in the premises conveyed to the trustee by the grantor. Any part of the trust property may be reconveyed at the request of the beneficiary.

      6.  Covenant No. 6. That if default be made in the performance of the obligation, or in the payment of the debt, or interest thereon, or any part thereof, or in the payment of any of the other moneys agreed to be paid, or of any interest thereon, or if any of the conditions or covenants in this section adopted by reference be violated, and if the notice of breach and election to sell, required by this chapter, be first recorded, then trustee, its successors or assigns, on demand by beneficiary, or assigns, shall sell the above-granted premises, or such part thereof as in its discretion it shall find necessary to sell, in order to accomplish the objects of these trusts, in the manner following, namely:

      The trustees shall first give notice of the time and place of such sale, in the manner provided in NRS 107.080 and may postpone such sale not more than three times by proclamation made to the persons assembled at the time and place previously appointed and advertised for such sale, and on the day of sale so advertised, or to which such sale may have been postponed, the trustee may sell the property so advertised, or any portion thereof, at public auction, at the time and place specified in the notice, at a public location in the county in which the property, or any part thereof, to be sold, is situated, to the highest cash bidder. The beneficiary, obligee, creditor, or the holder or holders of the promissory note or notes secured thereby may bid and purchase at such sale. The beneficiary may, after recording the notice of breach and election, waive or withdraw the same or any proceedings thereunder, and shall thereupon be restored to his former position and have and enjoy the same rights as though such notice had not been recorded.

      7.  Covenant No. 7. That the trustee, upon such sale, shall make (without warranty), execute and, after due payment made, deliver to purchaser or purchasers, his or their heirs or assigns, a deed or deeds of the premises so sold which shall convey to the purchaser all the title of the grantor in the trust premises, and shall apply the proceeds of the sale thereof in payment, firstly, of the expenses of such sale, together with the reasonable expenses of the trust, including counsel fees, in an amount equal to ……………. percent of the amount secured thereby and remaining unpaid, which shall become due upon any default made by grantor in any of the payments aforesaid; and also such sums, if any, as trustee or beneficiary shall have paid, for procuring a search of the title to the premises, or any part thereof, subsequent to the execution of the deed of trust; and in payment, secondly, of the obligation or debts secured, and interest thereon then remaining unpaid, and the amount of all other moneys with interest thereon herein agreed or provided to be paid by grantor; and the balance or surplus of such proceeds of sale it shall pay to grantor, his heirs, executors, administrators or assigns.

      8.  Covenant No. 8. That in the event of a sale of the premises conveyed or transferred in trust, or any part thereof, and the execution of a deed or deeds therefor under such trust, the recital therein of default, and of recording notice of breach and election of sale, and of the elapsing of the 3-month period, and of the giving of notice of sale, and of a demand by beneficiary, his heirs or assigns, that such sale should be made, shall be conclusive proof of such default, recording, election, elapsing of time, and of the due giving of such notice, and that the sale was regularly and validly made on due and proper demand by beneficiary, his heirs and assigns; and any such deed or deeds with such recitals therein shall be effectual and conclusive against grantor, his heirs and assigns, and all other persons; and the receipt for the purchase money recited or contained in any deed executed to the purchaser as aforesaid shall be sufficient discharge to such purchaser from all obligation to see to the proper application of the purchase money, according to the trusts aforesaid.

      9.  Covenant No. 9. That the beneficiary or his assigns may, from time to time, appoint another trustee, or trustees, to execute the trust created by the deed of trust or other conveyance in trust. A copy of a resolution of the board of directors of beneficiary (if beneficiary be a corporation), certified by the secretary thereof, under its corporate seal, or an instrument executed and acknowledged by the beneficiary (if the beneficiary be a natural person), shall be conclusive proof of the proper appointment of such substituted trustee. Upon the recording of such certified copy or executed and acknowledged instrument, the new trustee or trustees shall be vested with all the title, interest, powers, duties and trusts in the premises vested in or conferred upon the original trustee. If there be more than one trustee, either may act alone and execute the trusts upon the request of the beneficiary, and all his acts thereunder shall be deemed to be the acts of all trustees, and the recital in any conveyance executed by such sole trustee of such request shall be conclusive evidence thereof, and of the authority of such sole trustee to act.

      [2:173:1927; NCL § 7711]—(NRS A 1967, 143; 2005, 1621)

NRS 107.040  Adoption of covenants by reference in instrument.

      1.  In order to adopt by reference any of the covenants, agreements, obligations, rights and remedies in NRS 107.030, it shall only be necessary to state in the deed of trust the following: “The following covenants, Nos. ……………., ……………. and ……………. (inserting the respective numbers) of NRS 107.030 are hereby adopted and made a part of this deed of trust.”

      2.  A deed of trust or other conveyance in trust, in order to fix the amount of insurance to be carried, need not reincorporate the provisions of Covenant No. 2 of NRS 107.030, but may merely state the following: “Covenant No. 2,” and set out thereafter the amount of insurance to be carried.

      3.  In order to fix the rate of interest under Covenant No. 4 of NRS 107.030, it shall only be necessary to state in such trust deed or other conveyance in trust, “Covenant No. 4,” and set out thereafter the rate of interest to be charged thereunder.

      4.  In order to fix the amount or percent of counsel fees under Covenant No. 7 of NRS 107.030, it shall only be necessary to state in such deed of trust, or other conveyance in trust, the following: “Covenant No. 7,” and set out thereafter the percentage to be allowed.

      [3:173:1927; NCL § 7712] + [4:173:1927; NCL § 7713]

NRS 107.050  Parties may enter into different or additional covenants.  Nothing in NRS 107.030 and 107.040 shall prevent the parties to any transfer in trust from entering into other, different or additional covenants or agreements than those set out in NRS 107.030.

      [5:173:1927; NCL § 7714]

ASSUMPTION FEE

NRS 107.055  Amount must be stated in instrument.  If a party to a deed of trust, executed after July 1, 1971, desires to charge an assumption fee for a change in parties, the amount of such charge must be clearly set forth in the deed of trust at the time of execution.

      (Added to NRS by 1971, 314)

ASSIGNMENTS; SUBORDINATION AND WAIVERS AS TO PRIORITY

NRS 107.070  Recording of assignments of beneficial interests and instruments subordinating or waiving priority of deeds of trust.  The provisions of NRS 106.210 and 106.220 apply to deeds of trust as therein specified.

      [Part 1:120:1935; 1931 NCL § 2122.31]—(NRS A 1965, 926)

DISCHARGE

NRS 107.073  Marginal entries; reconveyance must be recorded if deed of trust recorded by photographic process; presentation of certificate executed by trustee or his personal representative or assignee.

      1.  Except as otherwise provided in subsection 2, a recorded deed of trust may be discharged by an entry on the margin of the record thereof, signed by the trustee or his personal representative or assignee in the presence of the recorder or his deputy, acknowledging the satisfaction of or value received for the deed of trust and the debt secured thereby. The recorder or his deputy shall subscribe the entry as witness. The entry has the same effect as a reconveyance of the deed of trust acknowledged and recorded as provided by law. The recorder shall properly index each marginal discharge.

      2.  If the deed of trust has been recorded by a microfilm or other photographic process, a marginal release may not be used and an acknowledged reconveyance of the deed of trust must be recorded.

      3.  If the recorder or his deputy is presented with a certificate executed by the trustee or his personal representative or assignee, specifying that the deed of trust has been paid or otherwise satisfied or discharged, the recorder or his deputy shall discharge the deed of trust upon the record.

      (Added to NRS by 1991, 1103; A 1993, 2335)

NRS 107.077  Delivery of documents by beneficiary to trustee; recording by trustee; liability for failure to deliver or record documents; requirements for release of deed of trust when reconveyance not recorded; liability for improperly recording deed of trust; criminal penalty.

      1.  Within 21 calendar days after receiving written notice that a debt secured by a deed of trust made on or after October 1, 1991, has been paid or otherwise satisfied or discharged, the beneficiary shall deliver to the trustee or the trustor the original note and deed of trust, if he is in possession of those documents, and a properly executed request to reconvey the estate in real property conveyed to the trustee by the grantor. If the beneficiary delivers the original note and deed of trust to the trustee or the trustee has those documents in his possession, the trustee shall deliver those documents to the grantor.

      2.  Within 45 calendar days after a debt secured by a deed of trust made on or after October 1, 1991, is paid or otherwise satisfied or discharged, and a properly executed request to reconvey is received by the trustee, the trustee shall cause to be recorded a reconveyance of the deed of trust.

      3.  If the beneficiary fails to deliver to the trustee a properly executed request to reconvey pursuant to subsection 1, or if the trustee fails to cause to be recorded a reconveyance of the deed of trust pursuant to subsection 2, the beneficiary or the trustee, as the case may be, is liable in a civil action to the grantor, his heirs or assigns in the sum of $500, plus a reasonable attorney’s fee and the costs of bringing the action, and he is liable in a civil action to any party to the deed of trust for any actual damages caused by his failure to comply with the provisions of this section and for a reasonable attorney’s fee and the costs of bringing the action.

      4.  Except as otherwise provided in this subsection, if a reconveyance is not recorded pursuant to subsection 2 within:

      (a) Seventy-five calendar days after the payment, satisfaction or discharge of the debt, if the payment, satisfaction or discharge was made on or after October 1, 1993; or

      (b) Ninety calendar days after the payment, satisfaction or discharge of the debt, if the payment, satisfaction or discharge was made before October 1, 1993,

Ê a title insurer may prepare and cause to be recorded a release of the deed of trust. At least 30 calendar days before the recording of a release pursuant to this subsection, the title insurer shall mail, by first-class mail, postage prepaid, notice of the intention to record the release of the deed of trust to the trustee, trustor and beneficiary of record, or their successors in interest, at the last known address of each such person. A release prepared and recorded pursuant to this subsection shall be deemed a reconveyance of a deed of trust. The title insurer shall not cause a release to be recorded pursuant to this subsection if the title insurer receives written instructions to the contrary from the trustee, the trustor, the owner of the land, the holder of the escrow or the owner of the debt secured by the deed of trust or his agent.

      5.  The release prepared pursuant to subsection 4 must set forth:

      (a) The name of the beneficiary;

      (b) The name of the trustor;

      (c) The recording reference to the deed of trust;

      (d) A statement that the debt secured by the deed of trust has been paid in full or otherwise satisfied or discharged;

      (e) The date and amount of payment or other satisfaction or discharge; and

      (f) The name and address of the title insurer issuing the release.

      6.  A release prepared and recorded pursuant to subsection 4 does not relieve a beneficiary or trustee of the requirements imposed by subsections 1 and 2.

      7.  A trustee may charge a reasonable fee to the trustor or the owner of the land for services relating to the preparation, execution or recordation of a reconveyance or release pursuant to this section. A trustee shall not require the fees to be paid before the opening of an escrow, or earlier than 60 calendar days before the payment, satisfaction or discharge of the debt secured by the deed of trust. If a fee charged pursuant to this subsection does not exceed $100, the fee is conclusively presumed to be reasonable.

      8.  In addition to any other remedy provided by law, a title insurer who improperly causes to be recorded a release of a deed of trust pursuant to this section is liable for actual damages and for a reasonable attorney’s fee and the costs of bringing the action to any person who is injured because of the improper recordation of the release.

      9.  Any person who willfully violates this section is guilty of a misdemeanor.

      (Added to NRS by 1991, 1103; A 1993, 2336; 1995, 1522; 1999, 57)

NRS 107.078  Partial discharge: Delivery of documents by beneficiary to trustee; recording by trustee; liability for failure to deliver or record documents; requirements for partial release of deed of trust when reconveyance not recorded; criminal penalty.

      1.  If a deed of trust made on or after October 1, 1995, authorizes the grantor to discharge in part the debt secured by the deed of trust and the deed of trust authorizes a partial reconveyance of the estate in real property in consideration of a partial discharge, the beneficiary shall, within 21 calendar days after receiving notice that the debt secured by the deed of trust has been partially discharged, deliver to the trustee a properly executed request for a partial reconveyance of the estate in real property conveyed to the trustee by the grantor.

      2.  Within 45 calendar days after a debt secured by a deed of trust made on or after October 1, 1995, is partially discharged and a properly executed request for a partial reconveyance is received by the trustee, the trustee shall cause to be recorded a partial reconveyance of the deed of trust.

      3.  If the beneficiary fails to deliver to the trustee a properly executed request for a partial reconveyance pursuant to subsection 1, or if the trustee fails to cause to be recorded a partial reconveyance of the deed of trust pursuant to subsection 2, the beneficiary or the trustee, as the case may be, is liable in a civil action to the grantor, his heirs or assigns in the amount of $500, plus a reasonable attorney’s fee and the costs of bringing the action, and he is liable in a civil action to any party to the deed of trust for any actual damages caused by his failure to comply with the provisions of this section and for a reasonable attorney’s fee and the costs of bringing the action.

      4.  Except as otherwise provided in this subsection, if a partial reconveyance is not recorded pursuant to subsection 2 within 75 calendar days after the partial satisfaction of the debt and if the satisfaction was made on or after October 1, 1995, a title insurer may prepare and cause to be recorded a partial release of the deed of trust. At least 30 calendar days before the recording of a partial release pursuant to this subsection, the title insurer shall mail, by first-class mail, postage prepaid, notice of the intention to record the partial release of the deed of trust to the trustee, trustor and beneficiary of record, or their successors in interest, at the last known address of each such person. A partial release prepared and recorded pursuant to this subsection shall be deemed a partial reconveyance of a deed of trust. The title insurer shall not cause a partial release to be recorded pursuant to this subsection if the title insurer receives written instructions to the contrary from the trustee, trustor, owner of the land, holder of the escrow or owner of the debt secured by the deed of trust or his agent.

      5.  The release prepared pursuant to subsection 4 must set forth:

      (a) The name of the beneficiary;

      (b) The name of the trustor;

      (c) The recording reference to the deed of trust;

      (d) A statement that the debt secured by the deed of trust has been partially discharged;

      (e) The date and amount of partial payment or other partial satisfaction or discharge;

      (f) The name and address of the title insurer issuing the partial release; and

      (g) The legal description of the estate in real property which is reconveyed.

      6.  A partial release prepared and recorded pursuant to subsection 4 does not relieve a beneficiary or trustee of the requirements imposed by subsections 1 and 2.

      7.  A trustee may charge a reasonable fee to the trustor or the owner of the land for services relating to the preparation, execution or recordation of a partial reconveyance or partial release pursuant to this section. A trustee shall not require the fees to be paid before the opening of an escrow or earlier than 60 calendar days before the partial payment or partial satisfaction or discharge of the debt secured by the deed of trust. If a fee charged pursuant to this subsection does not exceed $100, the fee is conclusively presumed to be reasonable.

      8.  In addition to any other remedy provided by law, a title insurer who improperly causes to be recorded a partial release of a deed of trust pursuant to this section is liable for actual damages and for a reasonable attorney’s fee and the costs of bringing the action to any person who is injured because of the improper recordation of the partial release.

      9.  Any person who willfully violates this section is guilty of a misdemeanor.

      (Added to NRS by 1995, 1521; A 1999, 58)

DEFAULT AND SALE

NRS 107.080  Trustee’s power of sale: Power conferred; required notices; effect of sale; circumstances in which sale may be declared void.

      1.  Except as otherwise provided in NRS 107.085, if any transfer in trust of any estate in real property is made after March 29, 1927, to secure the performance of an obligation or the payment of any debt, 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.

      2.  The power of sale must not be exercised, however, until:

      (a) In the case of any trust agreement coming into force:

             (1) On or after July 1, 1949, and before July 1, 1957, the grantor, or his successor in interest, a beneficiary under a subordinate deed of trust or any other person who has a subordinate lien or encumbrance of record on the property, has for a period of 15 days, computed as prescribed in subsection 3, failed to make good the deficiency in performance or payment; or

             (2) On or after July 1, 1957, the grantor, or his successor in interest, a beneficiary under a subordinate deed of trust or any other person who has a subordinate lien or encumbrance of record on the property, has for a period of 35 days, computed as prescribed in subsection 3, failed to make good the deficiency in performance or payment;

      (b) The beneficiary, the successor in interest of the beneficiary or the trustee first executes and causes to be recorded in the office of the recorder of the county wherein the trust property, or some part thereof, is situated a notice of the breach and of his election to sell or cause to be sold the property to satisfy the obligation; and

      (c) Not less than 3 months have elapsed after the recording of the notice.

      3.  The 15- or 35-day period provided in paragraph (a) of subsection 2 commences on the first day following the day upon which the notice of default and election to sell is recorded in the office of the county recorder of the county in which the property is located and a copy of the notice of default and election to sell is mailed by registered or certified mail, return receipt requested and with postage prepaid to the grantor, and to the person who holds the title of record on the date the notice of default and election to sell is recorded, at their respective addresses, if known, otherwise to the address of the trust property. The notice of default and election to sell must describe the deficiency in performance or payment and may contain a notice of intent to declare the entire unpaid balance due if acceleration is permitted by the obligation secured by the deed of trust, but acceleration must not occur if the deficiency in performance or payment is made good and any costs, fees and expenses incident to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment are paid within the time specified in subsection 2.

      4.  The trustee, or other person authorized to make the sale under the terms of the trust deed or transfer in trust, shall, after expiration of the 3-month period following the recording of the notice of breach and election to sell, and before the making of the sale, give notice of the time and place thereof by recording the notice of sale and by:

      (a) Providing the notice to each trustor and any other person entitled to notice pursuant to this section by personal service or by mailing the notice by registered or certified mail to the last known address of the trustor and any other person entitled to such notice pursuant to this section;

      (b) Posting a similar notice particularly describing the property, for 20 days successively, in three public places of the township or city where the property is situated and where the property is to be sold; and

      (c) Publishing a copy of the notice three times, once each week for 3 consecutive weeks, in a newspaper of general circulation in the county where the property is situated.

      5.  Every sale made under the provisions of this section and other sections of this chapter vests in the purchaser the title of the grantor and his successors in interest without equity or right of redemption. A sale made pursuant to this section may be declared void by any court of competent jurisdiction in the county where the sale took place if:

      (a) The trustee or other person authorized to make the sale does not substantially comply with the provisions of this section;

      (b) Except as otherwise provided in subsection 6, an action is commenced in the county where the sale took place within 90 days after the date of the sale; and

      (c) A notice of lis pendens providing notice of the pendency of the action is recorded in the office of the county recorder of the county where the sale took place within 30 days after commencement of the action.

      6.  If proper notice is not provided pursuant to subsection 3 or paragraph (a) of subsection 4 to the grantor, to the person who holds the title of record on the date the notice of default and election to sell is recorded, to each trustor or to any other person entitled to such notice, the person who did not receive such proper notice may commence an action pursuant to subsection 5 within 120 days after the date on which the person received actual notice of the sale.

      7.  The sale of a lease of a dwelling unit of a cooperative housing corporation vests in the purchaser title to the shares in the corporation which accompany the lease.

      [Part 1:173:1927; A 1949, 70; 1943 NCL § 7710]—(NRS A 1957, 631; 1959, 10; 1961, 23; 1965, 611, 1242; 1967, 198; 1979, 708; 1987, 1644; 1989, 1770; 2003, 2893; 2005, 1623; 2007, 2447)

NRS 107.081  Time and place of sale; agent holding sale not to be purchaser.

      1.  All sales of property pursuant to NRS 107.080 must be made at auction to the highest bidder and must be made between the hours of 9 a.m. and 5 p.m. The agent holding the sale must not become a purchaser at the sale or be interested in any purchase at such a sale.

      2.  All sales of real property must be made:

      (a) In a county with a population of less than 100,000, at the courthouse in the county in which the property or some part thereof is situated.

      (b) In a county with a population of 100,000 or more, at the public location in the county designated by the governing body of the county for that purpose.

      (Added to NRS by 2005, 1620)

     NRS 107.082  Oral postponement of sale.

      1.  If a sale of property pursuant to NRS 107.080 is postponed by oral proclamation, the sale must be postponed to a later date at the same time and location.

      2.  If such a sale has been postponed by oral proclamation three times, any new sale information must be provided by notice as provided in NRS 107.080.

      (Added to NRS by 2005, 1621)

NRS 107.083  Proceedings after purchaser refuses to pay amount bid.

      1.  If a purchaser refuses to pay the amount bid by him for the property struck off to him at a sale pursuant to NRS 107.080, the agent may again sell the property to the highest bidder, after again giving the notice previously provided.

      2.  If any loss is incurred from the purchaser refusing to pay his bid, the agent may recover the amount of the loss, with costs, for the benefit of the party aggrieved, by motion upon previous notice of 5 days to the purchaser, before any court of competent jurisdiction.

      3.  The court shall proceed in a summary manner in the hearing and disposition of such a motion, and give judgment and issue execution therefor forthwith, but the refusing purchaser may request a jury. The same proceedings may be had against any subsequent purchaser who refuses to pay, and the agent may, in his discretion, thereafter reject the bid of any person so refusing.

      4.  An agent is not liable for any amount other than the amount bid by the second or subsequent purchaser and the amount collected from the purchaser who refused to pay.

      (Added to NRS by 2005, 1621)

NRS 107.084  Liability for removing or defacing notice of sale.  A person who willfully removes or defaces a notice posted pursuant to subsection 4 of NRS 107.080, if done before the sale or, if the default is satisfied before the sale, before the satisfaction of the default, is liable in the amount of $500 to any person aggrieved by the removal or defacing of the notice.

      (Added to NRS by 2005, 1620)

NRS 107.085  Restrictions on trustee’s power of sale concerning certain trust agreements: Applicability; service of notice upon grantor; scheduling of date of sale; form of notice; judicial foreclosure not prohibited; “unfair lending practice” defined.

      1.  With regard to a transfer in trust of an estate in real property to secure the performance of an obligation or the payment of a debt, the provisions of this section apply to the exercise of a power of sale pursuant to NRS 107.080 only if:

      (a) The trust agreement becomes effective on or after October 1, 2003; and

      (b) On the date the trust agreement is made, the trust agreement is subject to the provisions of § 152 of the Home Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1602(aa), and the regulations adopted by the Board of Governors of the Federal Reserve System pursuant thereto, including, without limitation, 12 C.F.R. § 226.32.

      2.  The trustee shall not exercise a power of sale pursuant to NRS 107.080 unless:

      (a) In the manner required by subsection 3, not later than 60 days before the date of the sale, the trustee causes to be served upon the grantor a notice in the form described in subsection 3; and

      (b) If an action is filed in a court of competent jurisdiction claiming an unfair lending practice in connection with the trust agreement, the date of the sale is not less than 30 days after the date the most recent such action is filed.

      3.  The notice described in subsection 2 must be:

      (a) Served upon the grantor by personal service or, if personal service cannot be timely effected, in such other manner as a court determines is reasonably calculated to afford notice to the grantor; and

      (b) In substantially the following form, with the applicable telephone numbers and mailing addresses provided on the notice and a copy of the promissory note attached to the notice:

 

NOTICE

YOU ARE IN DANGER OF LOSING YOUR HOME!

 

Your home loan is being foreclosed. In 60 days your home will be sold and you will be forced to move. For help, call:

 

Consumer Credit Counseling _______________

The Attorney General __________________

The Division of Financial Institutions ________________

Legal Services ______________________

Your Lender ___________________

Nevada Fair Housing Center ________________

 

      4.  This section does not prohibit a judicial foreclosure.

      5.  As used in this section, “unfair lending practice” means an unfair lending practice described in NRS 598D.010 to 598D.150, inclusive.

      (Added to NRS by 2003, 2892)

NRS 107.090  Request for notice of default and sale: Recording and contents; mailing of notice; effect of request.

      1.  As used in this section, “person with an interest” means any person who has or claims any right, title or interest in, or lien or charge upon, the real property described in the deed of trust, as evidenced by any document or instrument recorded in the office of the county recorder of the county in which any part of the real property is situated.

      2.  A person with an interest or any other person who is or may be held liable for any debt secured by a lien on the property desiring a copy of a notice of default or notice of sale under a deed of trust with power of sale upon real property may at any time after recordation of the deed of trust record in the office of the county recorder of the county in which any part of the real property is situated an acknowledged request for a copy of the notice of default or of sale. The request must state the name and address of the person requesting copies of the notices and identify the deed of trust by stating the names of the parties thereto, the date of recordation, and the book and page where it is recorded.

      3.  The trustee or person authorized to record the notice of default shall, within 10 days after the notice of default is recorded and mailed pursuant to NRS 107.080, cause to be deposited in the United States mail an envelope, registered or certified, return receipt requested and with postage prepaid, containing a copy of the notice, addressed to:

      (a) Each person who has recorded a request for a copy of the notice; and

      (b) Each other person with an interest whose interest or claimed interest is subordinate to the deed of trust.

      4.  The trustee or person authorized to make the sale shall, at least 20 days before the date of sale, cause to be deposited in the United States mail an envelope, registered or certified, return receipt requested and with postage prepaid, containing a copy of the notice of time and place of sale, addressed to each person described in subsection 3.

      5.  No request recorded pursuant to the provisions of subsection 2 affects the title to real property.

      (Added to NRS by 1961, 74; A 1969, 42, 95; 1989, 644, 1772; 2001, 1751)

NRS 107.095  Notice of default: Mailing to guarantor or surety of debt; effect of failure to give.

      1.  The notice of default required by NRS 107.080 must also be sent by registered or certified mail, return receipt requested and with postage prepaid, to each guarantor or surety of the debt. If the address of the guarantor or surety is unknown, the notice must be sent to the address of the trust property. Failure to give the notice, except as otherwise provided in subsection 3, releases the guarantor or surety from his obligation to the beneficiary, but does not affect the validity of a sale conducted pursuant to NRS 107.080 nor the obligation of any guarantor or surety to whom the notice was properly given.

      2.  Failure to give the notice of default required by NRS 107.090, except as otherwise provided in subsection 3, releases the obligation to the beneficiary of any person who has complied with NRS 107.090 and who is or may otherwise be held liable for the debt or other obligation secured by the deed of trust, but such a failure does not affect the validity of a sale conducted pursuant to NRS 107.080 nor the obligation of any person to whom the notice was properly given pursuant to this section or to NRS 107.080 or 107.090.

      3.  A guarantor, surety or other obligor is not released pursuant to this section if:

      (a) The required notice is given at least 15 days before the later of:

             (1) The expiration of the 15- or 35-day period described in NRS 107.080; or

             (2) Any extension of that period by the beneficiary; or

      (b) The notice is rescinded before the sale is advertised.

      (Added to NRS by 1989, 1770)

NRS 107.100  Receiver: Appointment after filing notice of breach and election to sell.

      1.  At any time after the filing of a notice of breach and election to sell real property under a power of sale contained in a deed of trust, the trustee or beneficiary of the deed of trust may apply to the district court for the county in which the property or any part of the property is located for the appointment of a receiver of such property.

      2.  A receiver shall be appointed where it appears that personal property subject to the deed of trust is in danger of being lost, removed, materially injured or destroyed, that real property subject to the deed of trust is in danger of substantial waste or that the income therefrom is in danger of being lost, or that the property is or may become insufficient to discharge the debt which it secures.

      (Added to NRS by 1965, 252)

STATEMENT FROM BENEFICIARY OF DEED OF TRUST

NRS 107.200  Contents of statement regarding debt secured by deed of trust.  Except as otherwise provided in NRS 107.230, the beneficiary of a deed of trust secured on or after October 1, 1995, shall, within 21 days after receiving a request from a person authorized to make such a request pursuant to NRS 107.220, cause to be mailed, postage prepaid, or sent by facsimile machine to that person a statement regarding the debt secured by the deed of trust. The statement must include:

      1.  The amount of the unpaid balance of the debt secured by the deed of trust, the rate of interest on the unpaid balance and the total amount of principal and interest which is due and has not been paid.

      2.  The amount of the periodic payments, if any, required under the note.

      3.  The date the payment of the debt is due.

      4.  The period for which real estate taxes and special assessments have been paid, if that information is known to the beneficiary.

      5.  The amount of property insurance covering the real property and the term and premium of that insurance, if that information is known to the beneficiary.

      6.  The amount in an account, if any, maintained for the accumulation of money for the payment of taxes and insurance premiums.

      7.  The amount of any additional charges, costs or expenses paid or incurred by the beneficiary which is a lien on the real property described in the deed of trust.

      8.  Whether the debt secured by the deed of trust may be transferred to a person other than the grantor.

      (Added to NRS by 1995, 1519)

NRS 107.210  Contents of statement of amount necessary to discharge debt secured by deed of trust.  Except as otherwise provided in NRS 107.230 and 107.240, the beneficiary of a deed of trust secured on or after October 1, 1995, shall, within 21 days after receiving a request from a person authorized to make such a request pursuant to NRS 107.220, cause to be mailed, postage prepaid, or sent by facsimile machine to that person a statement of the amount necessary to discharge the debt secured by the deed of trust. The statement must set forth:

      1.  The amount of money necessary to discharge the debt secured by the deed of trust on the date the statement is prepared by the beneficiary; and

      2.  The information necessary to determine the amount of money required to discharge the debt on a per diem basis for a period, not to exceed 30 days, after the statement is prepared by the beneficiary.

      (Added to NRS by 1995, 1519)

NRS 107.220  Persons authorized to request statement from beneficiary; proof of identity of successor in interest.

      1.  A statement described in NRS 107.200 or 107.210 may be requested by:

      (a) The grantor of, or his successor in interest in, the property which is the subject of the deed of trust;

      (b) A person who has a subordinate lien or encumbrance of record on the property which is secured by the deed of trust;

      (c) A title insurer; or

      (d) An authorized agent of any person described in paragraph (a), (b) or (c).

Ê A written statement signed by any person described in paragraph (a), (b) or (c) which appoints a person to serve as his agent if delivered personally to the beneficiary or delivered by mail, return receipt requested, is proof of the identity of an agent.

      2.  For the purposes of paragraph (a) of subsection 1, a policy of title insurance, preliminary report issued by a title company, certified copy of letters testamentary or letters of guardianship, or an original or photographic copy of a deed, if delivered personally to the beneficiary or delivered by mail, return receipt requested, is proof of the identity of a successor in interest of the grantor, if the person demanding the statement is named as successor in interest in the document.

      (Added to NRS by 1995, 1519)

NRS 107.230  Proof of authorization to request statement.  A beneficiary may, before mailing a statement described in NRS 107.200 or 107.210, require the person who requested the statement to prove that he is authorized to request that statement pursuant to NRS 107.220. If the beneficiary requires such proof, he must mail the statement within 21 days after he receives that proof from the requester.

      (Added to NRS by 1995, 1520)

NRS 107.240  Grounds for refusal to deliver statement.  If the debt secured by a deed of trust for which a statement described in NRS 107.210 has been requested is subject to a recorded notice of default or a filed complaint commencing a judicial foreclosure, the beneficiary may refuse to deliver the statement unless the written request for the statement is received before the publication of a notice of sale or the notice of the date of sale established by a court.

      (Added to NRS by 1995, 1520)

NRS 107.250  Reliance upon accuracy of statement and amended statement; notification of amended statement; recovery of money by beneficiary if statement is deficient.

      1.  A person who receives a statement pursuant to NRS 107.200 or 107.210 may rely upon the accuracy of the information contained in the statement. If the beneficiary notifies the person who requested the statement of any amendment to the statement, the amended statement may be relied upon by that person in the same manner as the original statement.

      2.  If notification of an amendment to a statement is not given in writing, a written amendment to the statement must be delivered to the person who requested the original statement not later than the next business day after notification.

      3.  If a statement prepared by the beneficiary pursuant to NRS 107.200 does not contain the entire amount necessary to discharge the debt secured by the deed of trust and:

      (a) A transaction has occurred which has resulted in the transfer of title or recordation of a lien; or

      (b) A trustee’s sale or a sale supervised by a court has taken place,

Ê the beneficiary may recover that money as an unsecured debt of the grantor pursuant to the terms of the note.

      (Added to NRS by 1995, 1520)

NRS 107.260  Copy of note or deed of trust for authorized requester.  If a person who is authorized pursuant to NRS 107.220 to request a statement described in NRS 107.200 or 107.210 includes in his request for such a statement a request for a copy of the note or deed of trust, the beneficiary shall mail a copy of the note or deed of trust with the statement at no additional charge.

      (Added to NRS by 1995, 1520)

NRS 107.270  Address to which request for statement must be mailed.  If the beneficiary has more than one place of business, a request for a statement described in NRS 107.200 or 107.210 must be made to the address to which the periodic payments under the note are made. If no periodic payments are made under the note, the request must be mailed to the address of the beneficiary listed on the note or deed of trust.

      (Added to NRS by 1995, 1520)

NRS 107.280  Debt to which information contained in statement is applicable.  Except as otherwise provided in a statement described in NRS 107.200 or 107.210, the information contained in the statement applies only to the debt secured by the deed of trust which is payable at the address to which the periodic payments are made. If periodic payments are not made under the note, the statement applies only to the entire debt secured by the deed of trust.

      (Added to NRS by 1995, 1520)

NRS 107.290  Unclear request for statement deemed to be request for amount necessary to discharge debt.  If a person requests a statement described in NRS 107.200 or 107.210 and it is not clear from the request which statement is requested, the request shall be deemed a request for a statement of the amount necessary to discharge the debt secured by a deed of trust.

      (Added to NRS by 1995, 1521)

      NRS 107.300  Penalty for failure to deliver statement; bar to recovery of certain damages.

      1.  A beneficiary who willfully fails to deliver a statement requested pursuant to NRS 107.200 or 107.210 within 21 days after it is requested is liable to the person who requested the statement in an amount of $300 and any actual damages suffered by the person who requested the statement.

      2.  A judgment awarded to a person who requested a statement pursuant to NRS 107.200 or 107.210 for failure to deliver a statement bars recovery of damages for any other failure to deliver that statement pursuant to a demand made within 6 months before or after the demand for which the judgment was awarded.

      3.  As used in this section, “willfully” means an intentional failure to comply with the requirements of NRS 107.200 or 107.210 without just cause.

      (Added to NRS by 1995, 1521)

NRS 107.310  Fee for furnishing statement.  The beneficiary may charge a fee of not more than $60 for each statement furnished pursuant to NRS 107.200 or 107.210.

      (Added to NRS by 1995, 1521)

NRS 107.311  Applicability of NRS 107.310.  The provisions of NRS 107.310 do not apply to deeds of trust insured by the Federal Housing Administrator or guaranteed by the Secretary of Veterans Affairs.

      (Added to NRS by 1995, 1518)

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