The 30 Day Deadline to Elect Nevada Foreclosure Mediation

deadline
The Supreme Court of Nevada in its June 30, 2009 adoption of the Rules, sets forth its version of the 30 day time limit for the Homeowner to elect mediation as follows:

Rule 5(4). “The mediation process under these rules shall be initiated by the preparation and delivery of an Election of Mediation by a grantor or person who holds title of record of an owner-occupied residence on a form provided by the Administrator and payment of the fee required by Rule 14 herein. (a) The eligible participant shall, not later than 30 days after the service upon him or her in the manner required by NRS 107.080 of the notice of default and election to sell, complete the Election/Waiver of Mediation Form and deliver the form to the trustee, by certified mail, return receipt requested. The eligible participant shall also mail a copy of the Election/Waiver of mediation to the Administrator.”

The Nevada Legislature sets forth its version of the 30 day time limit for the Homeowner to elect mediation under NRS 107.080 as follows:

“The grantor or the person who holds the title of record shall, not later than 30 days after service of the notice upon him in the manner required by NRS 107.080, complete the form required by subparagraph (3) of paragraph (a) of subsection 2, and return the form to the trustee by certified mail, return receipt requested. If the grantor or the person who holds the title of record indicates on the form his election to enter into mediation, the trustee shall notify the beneficiary of the deed of trust and every other person with an interest as defined in NRS 107.090, by certified mail, return receipt requested, of the election of the grantor or the person who holds the title of record, to enter into mediation and file the form with the mediation administrator, who shall assign the matter to a senior justice, judge, hearing master or other designee, and schedule the matter for mediation. No further action may be taken to exercise the power of sale until completion of the mediation….” [emphasis added]

SUBTLE DIFFERENCES
There exist some differences between the two versions. Also, please note these versions may be outdated by the time you are reading this, although we believe them to be accurate as of the date of this article.

TWO CRITICAL CONSIDERATIONS
1. A homeowner has only 30 days to send the mediation letter; and
2. The Bank cannot sell the house until completion of the mediaiton.

POTENTIAL ISSUES WITH THE 30 DAYS
The bank initiates the Nevada foreclsoure process by sending the homeowner a Notice of Default (NOD) by certified mail, and records it. It appears that the 30 day clock starts ticking the day the bank drops the NOD in the mailbox. However, this will be the subject of much debate wherein the homeowner will be arguing that the date should start after the homeowner actually receives the NOD after having to walk down to the post office to retrieve it. The homeowner may not actually get notice of the NOD for several days after it is mailed, or if the homeowner is the kind of person that refuses certified mail, she may never get it. So when does the deadline really start?

Likewise, when does the “Request for Mediation” begin? Is it when the bank receives the Request? Is it when the homeowner mails the Request? What if the bank never gets it, but the homeowner swears she sent it? What if the homeowner mails it on the 31st day, would the homeowner lose her right to mediation based on a “mere” technicality? Who decides these issues? The mediator? The Court?

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