Nolotag:www.nolo.com,2021-05-18://1562024-03-29T00:41:28ZNevada Foreclosure Laws and Procedures4599482013-06-13T18:30:31Z2024-02-06T17:55:33ZAmy LoftsgordonBefore the foreclosure crisis, federal and state laws regulating mortgage servicers and foreclosure procedures were relatively limited and tended to favor foreclosing lenders. Now, however, many federal and state laws give protections to borrowers. Servicers generally must provide borrowers with loss mitigation opportunities, account for each foreclosure step, and carefully comply with foreclosure laws.
Also, most people who take out a loan to buy a residential property in Nevada sign a promissory note and a deed of trust, which is like a mortgage. These documents give homeowners some contractual rights in addition to federal and state legal protections.
So, don’t get caught off guard if you're a Nevada homeowner behind in mortgage payments. Learn about Nevada's foreclosure laws and process, from missing your first payment to a foreclosure sale.
What Are My Rights During Foreclosure in Nevada?
In a Nevada foreclosure, you’ll most likely get the right to:
receive preforeclosure notice
apply for loss mitigation
receive certain foreclosure notices
get current on the loan and stop the foreclosure sale
receive special protections if you’re in the military
pay off the loan to prevent a foreclosure sale
file for bankruptcy, and
get any excess money after a foreclosure sale.
Once you understand the Nevada foreclosure process and your rights, you can make the most of your situation and, hopefully, work out a way to save your home or at least get through the process with as little anxiety as possible.
What Is Preforeclosure?
The period after you fall behind in payments, but before a foreclosure officially starts, is generally called the "preforeclosure" stage. (Sometimes, people refer to the period before a foreclosure sale happens as "preforeclosure," too.)
During this time, the servicer can charge you various fees, including late and inspection fees, and, in most cases, must let you know how to avoid foreclosure, and send you a breach letter.
What Is the Nevada Homeowner’s Bill of Rights?
The Nevada Homeowner’s Bill of Rights, which has protections for borrowers similar to federal law, protects borrowers facing possible foreclosure in Nevada. (Nev. Rev. Stat. §§ 107.400 and following).
Notice to Distressed Borrowers Under Nevada's Homeowner's Bill of Rights
At least 30 calendar days before recording a Notice of Default (see below) or starting a judicial foreclosure action (see below) and at least 30 calendar days after a borrower’s default, the servicer must provide the borrower a written notice containing, among other things:
a summary of the borrower’s account, including information related to the loan, such as the total amount needed to cure the default, the principal balance, the date of the last payment, and contact information to inquire about the loan
information about available foreclosure prevention alternatives
contact information for one or more housing counseling agencies, and
a statement of the facts supporting the servicer’s or lender's right to foreclose. (Nev. Rev. Stat. § 107.500).
Servicer Must Reach Out to Distressed Borrowers
The servicer must contact the borrower in person or by telephone to discuss the borrower’s financial situation and explore options to avoid foreclosure 30 days before starting a foreclosure. However, if the servicer can't reach the borrower, it may proceed with foreclosure if it meets certain calling and mailing requirements. (Nev. Rev. Stat. § 107.510).
No Dual Tracking Under Nevada's Homeowner's Bill of Rights
Once the borrower submits a complete loss mitigation application, the foreclosure is stalled while the loan servicer reviews the application and makes a decision. The servicer must decide to approve or deny loss mitigation no later than 30 days after the borrower submits a complete application. (Nev. Rev. Stat. § 107.530).
Even if the lender denies the loss mitigation, it generally can't foreclose until any applicable appeals period, usually 30 days, has expired. (Nev. Rev. Stat. § 107.530).
Single Point of Contact Requirement
Under the Nevada Homeowner’s Bill of Rights, the servicer must establish a single point of contact whose responsibilities include:
communicating with the borrower about the process of obtaining a foreclosure prevention alternative
coordinating the receipt of all documentation needed to complete a loss mitigation application
informing the borrower of the status of the application
ensuring the borrower is considered for all foreclosure alternatives, and
contacting the person with the ability and authority to stop the foreclosure process when necessary.
The contact person remains assigned to the account until all loss mitigation options are exhausted or until the borrower brings the account current. (Nev. Rev. Stat. § 107.540).
Applicability of Nevada's Homeowner's Bill of Rights
The Nevada Homeowner’s Bill of Rights protections generally apply to first mortgage loans for properties that are residential and owner-occupied. (Nev. Rev. Stat. § 107.450). But the protections don't apply to borrowers who have:
surrendered the property as evidenced by a letter confirming the surrender or the delivery of keys to the property to the lender or
filed bankruptcy, and the bankruptcy court has not dismissed the case or granted relief from the bankruptcy stay. (Nev. Rev. Stat. § 107.410).
Institutions that foreclosed on 100 or fewer owner-occupied homes in the preceding annual reporting period, as established by their primary regulator, are exempt from the requirements under the Homeowner’s Bill of Rights. (Nev. Rev. Stat. § 107.460).
When Can a Foreclosure Start in Nevada?
Under federal law, the servicer usually can't start a foreclosureuntil the borrower is over 120 days delinquent on payments, subject to a few exceptions.(12 C.F.R. § 1024.41).
Which Type of Foreclosure Is Permitted in Nevada?
If you default on your mortgage payments in Nevada, the lender may foreclose using a judicial or nonjudicial method.
How Judicial Foreclosures Work
A judicial foreclosure begins when the lender files a lawsuit asking a court for an order allowing a foreclosure sale. The lender will automatically win the case if you don’t respond with a written answer.
But if you choose to defend the foreclosure lawsuit, the court will review the evidence and determine the winner. If the lender wins, the judge will enter a judgment and order your home sold at auction.
How Nonjudicial Foreclosures Work
A nonjudicial foreclosure is also known as a “statutory foreclosure,” which means the foreclosure follows the requirements that state law sets out. In this kind of foreclosure, the lender conducts the out-of-court procedures described in the state statutes. After finishing the required steps, the lender can sell the home at a foreclosure sale.
Most lenders opt for the nonjudicial process because it’s quicker and cheaper than litigating the matter in court.
What Are the Steps Involved in the Nevada Nonjudicial Foreclosure Process?
Again, most residential foreclosures in Nevada are nonjudicial. Here’s how the process works.
Preforeclosure Notice Under Nevada Law
Again, the Nevada Homeowner's Bill of Rights requires that at least 30 calendar days before officially starting a foreclosure and at least 30 calendar days after the default, the servicer or loan owner must send you (the borrower) a notice that contains information about the account. The notice must include the total amount needed to cure the default and information about foreclosure prevention alternatives, among other things. (Nev. Rev. Stat. § 107.500).
This information might be included as part of the breach letter.
Notice of Default and Election to Sell
The Nevada nonjudicial foreclosure process formally begins when the trustee records a Notice of Default and Election to Sell (NOD) in the office of the recorder in the county where the property is located, providing three months to cure the default. (Nev. Rev. Stat. § 107.080).
Mailing Requirements
A copy of the NOD must be sent to each person with a recorded request for a copy and each person with an interest or claimed interest in the property by registered or certified mail within ten days after the NOD is recorded. (Nev. Rev. Stat. § 107.090).
Posting Requirements
For a residential foreclosure, a copy of the NOD must be posted on the property 100 days before the sale. (Nev. Rev. Stat. § 107.087).
Affidavit Requirement
The trustee or beneficiary (lender) must record a notarized affidavit along with the NOD that gives, based on a review of business records, information about the trustee, loan, and loan owner. (Nev. Rev. Stat. § 107.0805).
At least 60 days before the sale date, the trustee must provide the borrower with a separate “Danger Notice” stating that they’re in danger of losing their home to foreclosure, along with a copy of the original promissory note.
For owner-occupied housing, the notice must be:
personally served to the borrower
left with a person of suitable age and discretion (if the borrower is not available) and a copy mailed, or
if a person of suitable age and discretion is not available, then the notice may be posted in a conspicuous place on the property, left with a person residing in the property, and then mailed to the borrower. (Nev. Rev. Stat § 107.085).
Notice of Sale
After the expiration of the three months following the NOD recording, the trustee must give notice of the time and place of the sale by recording the notice of sale and by:
providing the notice of sale to each required party by personal service or by mailing the notice by registered or certified mail to the last known address 20 days before sale
posting the notice of sale on the property 15 days before the sale
posting the notice of sale for 20 days successively in a public place in the county where the property is situated, and
publishing a copy of the notice of sale three times, once each week for three consecutive weeks, in a newspaper of general circulation in the county where the property is situated. (Nev. Rev. Stat § 107.080, § 107.087, § 107.090.)
How Do Foreclosure Sales in Nevada Work?
At the sale, the lender usually makes a credit bid. The lender can bid up to the total amount owed, including fees and costs, or it may bid less.
In some states, including Nevada, when the lender is the high bidder at the sale but bids less than the total debt, it can get a deficiency judgment against the borrower, subject to some limitations (see below).
The property becomes “Real Estate Owned” (REO) if the lender is the highest bidder. But if a bidder, say a third party, is the highest bidder and offers more than you owe, and the sale results in excess proceeds—that is, money over and above what’s needed to pay off all the liens on your property—you're entitled to that surplus money.
What Are the Options Available for Borrowers During Foreclosure in Nevada?
A few potential ways to stop a foreclosure include reinstating the loan, redeeming the property before the sale, or filing for bankruptcy. Of course, if you can work out a loss mitigation option, like a loan modification, that will also stop a foreclosure.
Reinstating the Loan
For owner-occupied housing, the borrower can reinstate the loan by paying the arrearage, costs, and fees. This right expires five days before the date of the foreclosure sale. (Nev. Rev. Stat. § 107.0805, § 40.430).
Does Nevada Have a Redemption Period After Foreclosure?
One way to stop a foreclosure is by “redeeming” the property. To redeem, you must pay off the full loan amount before the foreclosure sale.
Some states also provide foreclosed borrowers a redemption period after the foreclosure sale, during which they can buy back the home. However, Nevada law doesn't provide a redemption period following a nonjudicial foreclosure sale. (Nev. Rev. Stat. § 107.080).
Filing for Bankruptcy
If you're facing a foreclosure, filing for bankruptcy might help. In fact, if a foreclosure sale is scheduled to occur in the next day or so, the best way to stop the sale immediately is by filing for bankruptcy.
Once you file for bankruptcy, something called an "automatic stay" goes into effect. The stay functions as an injunction, which prohibits the lender from foreclosing on your home or otherwise trying to collect its debt, at least temporarily.
In many cases, filing for Chapter 7 bankruptcy can delay the foreclosure by a matter of months. Or, if you want to save your home, filing for Chapter 13 bankruptcy might be the answer. To find out the options available, speak with a local bankruptcy attorney.
Foreclosure Protections and Military Servicemembers
Are Deficiency Judgments Allowed After Foreclosures in Nevada?
The borrower’s total mortgage debt sometimes exceeds the foreclosure sale price in a foreclosure. The difference between the total debt and the sale price is called a “deficiency.”
For example, say the total debt owed is $600,000, but the home sells for $550,000 at the foreclosure sale. The deficiency is $50,000. In some states, the lender can seek a personal judgment against the debtor to recover the deficiency. In most cases, once the lender gets a deficiency judgment, the lender may collect this amount—in the above example, $50,000—from the borrower.
Deficiency judgments are generally allowed in Nevada, subject to some limitations.
Nevada Statute of Limitations for Deficiency Judgments
In Nevada, a lender may obtain a deficiency judgment following a foreclosure sale if it files the suit within six months. (Nev. Rev. Stat. § 40.455).
Limitations on Deficiency Judgment Amount in Nevada
But the amount of the judgment is limited to the lesser of:
the difference between the borrower's total debt and the home's fair market value as of the sale date, plus interest, or
the difference between the borrower's total debt and foreclosure sale price, plus interest. (Nev. Rev. Stat. § 40.459).
If the party seeking the deficiency judgment acquired the right to obtain the judgment from a party that previously held that right, the judgment is limited to the difference between the amount the party paid to acquire the loan and the larger of the property's fair market value or the amount paid for the property at the foreclosure sale, plus interest and reasonable costs. (Nev. Rev. Stat. § 40.459).
When the Lender Can't Get a Deficiency Judgment in Nevada
For loans taken out after October 1, 2009, deficiencies are prohibited for purchase money loans (that haven’t been refinanced) held by a bank or other financial institution on single-family residences owned by the borrower at the time of the foreclosure sale, which have been occupied continuously by the borrower since taking out the loan. (Nev. Rev. Stat. § 40.455).
Can the Bank Get a Deficiency Judgment After a Short Sale or Deed in Lieu In Nevada?
the foreclosing creditor is a banking or financial institution
the property is a single-family residence that you own at the time of the short sale or deed in lieu of foreclosure
you used the borrowed amount to buy the property
you have continuously occupied the property as your principal residence since getting the loan
the short sale or deed in lieu agreement doesn't expressly state the amount of money still owed to the bank or doesn't authorize the bank to recover that amount, and
the agreement contains a conspicuous statement that the bank has waived the right to seek a deficiency and says how much is being waived. (Nev. Rev. Stat. § 40.458, § 40.429).
How Long Do You Have to Move Out After Foreclosure in Nevada?
After a Nevada foreclosure sale, the property's new owner must give you a notice to quit (move out) before starting an eviction action in court.
What Are the Potential Consequences of Foreclosure?
If you have questions about Nevada’s foreclosure process or want to learn about potential defenses to a foreclosure and possibly fight the foreclosure in court, consider talking to a foreclosure attorney.
]]>Deficiency Judgments Laws in Nevada4517782012-09-12T22:47:15Z2023-09-22T22:42:14ZAmy LoftsgordonWhen the foreclosure sale price doesn’t cover the balance of the borrower's mortgage debt, the difference between the total debt and the sale price is called a “deficiency.” In most states, including Nevada, if a foreclosure sale results in a deficiency, the lender may get a "deficiency judgment" against the borrower for the deficiency amount.
But Nevada law limits the deficiency amount if the property’s fair market value is more than the foreclosure sale price. And in specific circumstances, state law prohibits the lender from getting a deficiency judgment altogether.
Example of a Deficiency in a Foreclosure
If the borrower’s total debt is $600,000, but the home sells to the highest bidder at a foreclosure sale for $550,000, the deficiency is $50,000.
What Is a “Deficiency Judgment” After a Foreclosure Sale?
If state law allows it, the lender can seek a personal judgment against the borrower to recover the deficiency, if one exists. This kind of money judgment is called a “deficiency judgment.”
What Is the Legal Process to Get a Deficiency Judgment?
In some states, the lender may ask for a deficiency judgment as part of a judicial foreclosure process. In other states, the lender has to file a separate lawsuit against the borrower after the foreclosure to get a deficiency judgment.
Will I Definitely Have to Pay a Deficiency Judgment After Foreclosure?
If the sale price is equal to, or more than, the mortgage debt amount, you’re off the hook because no deficiency exists. In fact, if the sale results in excess proceeds, you might be entitled to that extra money following the foreclosure auction.
But if any junior liens were on the home, like a second mortgage or HELOC, or if a creditor recorded a judgment lien against the property, those parties get the funds to satisfy the amount they’re owed. Then, any proceeds left over after paying off these liens belong to the foreclosed homeowner.
How Lenders Collect Deficiency Judgments
Generally, once a lender gets a deficiency judgment, it may collect this amount (in the example above, $50,000) from the borrower using basic collection methods, like garnishing wages or levying a bank account.
Will My Lender Sue Me for a Deficiency Judgment?
Even if your lender has the right under state law to go after you for a deficiency judgment, it might decide not to do so—especially if you don’t have many assets to satisfy the judgment. The lender might decide it isn’t worth the expense and effort of getting a deficiency judgment.
Still, you should know whether your lender can pursue you for a deficiency after a foreclosure. Also, even if the lender decides not to sue you for a deficiency judgment, it could sell the debt to a debt buyer who might file a lawsuit against you for the deficiency later on.
Legal Requirements for a Deficiency Judgment in Nevada
In Nevada, the lender could alternatively choose to foreclose through the state court system, called a "judicial foreclosure." However, in states where a nonjudicial process is available, lenders almost always choose this route because it's relatively quick and inexpensive.
Because Nevada foreclosures are ordinarily nonjudicial, this article focuses on laws concerning that process.
Are Deficiency Judgments Allowed Against Defaulted Homeowners in Nevada?
Under Nevada law, a lender can get a deficiency judgment by filing a lawsuit within six months following a foreclosure. (Nev. Rev. Stat. § 40.455).
But the amount of the judgment is limited to the lesser of:
the difference between the borrower’s total debt and the home’s fair market value at the time of the sale, plus interest, or
the difference between the borrower’s total debt and the foreclosure sale price, plus interest. (Nev. Rev. Stat. § 40.459).
If the party seeking the deficiency judgment acquired the right to obtain the judgment from a party that previously held that right, the judgment is limited to the lesser of:
the difference between the consideration paid and the property's fair market value at the time of sale (plus interest from the date of sale and reasonable costs), or
the difference between the consideration paid and the foreclosure sale amount (plus interest from the date of sale and reasonable costs).
This limitation applies to loans taken out after June 10, 2011. (Nev. Rev. Stat. § 40.459).
How the Court Establishes the Property’s Fair Market Value
Before awarding a deficiency judgment, the court will hold a hearing to receive evidence from the lender and the borrower about the property’s fair market value as of the foreclosure sale date. The lender has to provide the borrower with notice of the hearing 15 days ahead of time. The court will appoint an appraiser to appraise the property on its own motion, or if the lender or borrower requests it, at least ten days before the hearing date. (Nev. Rev. Stat. § 40.457).
When Deficiency Judgments Are Prohibited in Nevada
Under Nevada law, the lender can’t get a deficiency judgment against the borrower when all of the following apply:
the lender is a financial institution
the borrower used the mortgage loan to buy the property, and the loan wasn’t refinanced
the property is a single-family residence that the borrower owned at the time of the foreclosure sale
the borrower continuously occupied the property as a principal residence after getting the loan, and
the loan was obtained on or after October 1, 2009. (Nev. Rev. Stat. § 40.455).
Or you might have a defense to the deficiency that could reduce the amount you owe or prohibit the lender from getting a deficiency judgment, such as if you qualify under the provisions of Nev. Rev. Stat. § 40.455.
]]>Nevada Timeshare Foreclosure and Right to Cancel Laws4599792013-10-04T18:44:06Z2023-04-05T21:12:00ZAmy LoftsgordonIf you buy a timeshare and regret it, most states have "cooling-off" laws. These laws let you get out of a timeshare contract if you act quickly, usually within three to ten days. In Nevada, the cooling-off period is five calendar days after the date you executed (signed) the contract.
Also, Nevada law provides consumers with several protections when it comes to timeshare transactions. For instance, the timeshare developer can’t deceive you when making the sale and must disclose specific information to you by providing a copy of its public offering statement.
Even though Nevada law provides quite a few protections for timeshare purchasers, you still need to be cautious when buying a timeshare, and you should understand that if you take out a mortgage loan to buy a deeded timeshare and stop making the payments, the lender, usually the resort developer, will probably foreclose.
In addition, timeshare owners typically must pay annual maintenance fees and special assessments. If, as an owner, you don't pay the fees and assessments, you might face a lawsuit for a money judgment or a foreclosure of your timeshare. (With a right-to-use timeshare, people generally sign a contract and agree to make monthly payments. While a developer may foreclose a deeded timeshare, a right-to-use timeshare is typically repossessed, which is a different legal process than a foreclosure.)
Your Right to Cancel a Nevada Timeshare
In Nevada, you may cancel, by written notice, a contract of sale for a timeshare purchase up until midnight of the fifth calendar day following the date you signed the contract. The contract of sale must include a statement about your right to cancel the deal. (Nev. Rev. Stat. § 119A.410(1)).
How to Cancel a Timeshare Contract in Nevada
The written notice of cancellation may be:
delivered personally to the developer
sent by certified mail, return receipt requested to the business address of the developer, or
sent by express, priority, or recognized overnight delivery service, with proof of service to the business address of the developer. (Nev. Rev. Stat. § 119A.410(3)).
You may cancel the purchase of a timeshare without penalty or obligation and are legally entitled to the return of all money and other considerations that you’ve given toward the purchase. If you cancel, the developer must return all payments within 20 days after receipt of the notice of cancellation. (Nev. Rev. Stat. § 119A.410(4)).
You Can’t Waive the Right of Cancellation
If the developer attempts to get you to waive your cancellation rights, you may void the contract. (Nev. Rev. Stat. § 119A.410(2)).
Other Protections for Timeshare Purchasers Under Nevada Law
Timeshare salespeople are known for using hard-sell tactics and misrepresentations to get you to make a snap decision about buying a timeshare. Nevada law protects you in timeshare sale transactions, like by prohibiting deceptive practices, requiring the developer to give you a copy of the public offering statement, and setting certain requirements for timeshare resellers.
Deceptive Timeshare Sales Practices Are Prohibited
Nevada law prohibits timeshare developers or salespeople from engaging in unfair or deceptive acts in a timeshare transaction, including:
misrepresenting or failing to disclose any material fact concerning a timeshare
including a provision in a timeshare agreement that purports to waive any right or benefit provided for purchasers in the timeshare agreement
receiving any money or other valuable consideration from a prospective purchaser before the purchaser has received a public offering statement
misrepresenting the amount of time or period of time the unit will be available to a purchaser
misrepresenting the size, nature, extent, qualities, or characteristics of the unit
misrepresenting the conditions under which a purchaser may exchange occupancy rights to a unit in one location for occupancy rights to a unit in another location
failing to disclose initially that any promised entertainment, food, or other inducements are being offered to solicit the sale of a timeshare
conducting or participating in any type of lottery or contest, or offering prizes or gifts to induce or encourage a person to visit a project, attend a meeting at which a timeshare will be discussed, attend a presentation or purchase a timeshare without prior approval by the Nevada Real Estate Division
failing to disclose initially to a prospective purchaser any agreement between the project broker or sales agent and the developer that results in a sharing of sales proceeds in excess of a minimum sales price for a timeshare, and
various other unfair or deceptive acts or practices. (Nev. Rev. Stat. § 119A.710).
You Must Get a Copy of the Public Offering Statement
The timeshare developer must provide each prospective purchaser with a copy of the developer’s public offering statement, which must contain a copy of the developer’s permit to sell timeshares. (Nev. Rev. Stat. § 119A.400(1)).
The timeshare broker or sales agent must:
review the public offering statement with each prospective purchaser before the purchaser signs the contract, and
get a signed receipt from the purchaser indicating the receipt of a copy of the public offering statement. (Nev. Rev. Stat. § 119A.400(2)).
Nevada Timeshare Resale Protection Laws
Timeshare owners often find it extremely difficult to sell their timeshares; there’s virtually no after-market for them. So, some scam artists falsely tell timeshare owners that they have ready and willing buyers for timeshares—but the timeshare owner must pay hundreds or thousands of dollars in upfront fees to process the transaction.
After the timeshare owner pays the fees, the scammer often disappears, or the buyer never materializes. Nevada law provides some protection to shield consumers from this type of resale scam.
Resellers Must Be Licensed
In Nevada, a person who, on behalf of an owner (other than a developer), wishes to list, advertise or promote for resale, or solicit prospective purchasers of timeshares that were previously sold (if they are selling more than 12 units) must:
be licensed as a real estate broker
register as a timeshare resale broker with the Nevada Real Estate Division, and
pay any applicable fees. (Nev. Rev. Stat. § 119A.4771).
If You Pay Upfront Fees, They Must Go Into an Escrow Account
A timeshare resale broker who charges or collects an advance fee must place 80% of the fee into a trust account. If the broker closes escrow on the timeshare resale, the broker is deemed to have earned the advance fee. But if the listing of the timeshare expires before the broker closes escrow on the timeshare resale, the broker must return the money held in the trust account to the owner of the timeshare within ten days after the listing’s expiration date. (Nev. Rev. Stat. § 119A.4779).
A Written Contract Is Required
A timeshare resale agreement must be in writing and contain the following disclosures:
whether any person other than the purchaser may use the timeshare during the period before the timeshare is resold
whether any person other than the purchaser may rent the use of the timeshare during the period before the timeshare is resold
the name of any person who will receive any rents or profits generated from the use of the timeshare during the period before the timeshare is resold
a detailed description of any relationship between the person who resells the timeshare and any other person who receives any benefit from the use of the timeshare, and
information about the right to cancel. (Nev. Rev. Stat. § 119A.4777).
Timeshare Foreclosure Procedures
If you take out a loan to purchase an interest in a deeded timeshare and fail to make your timeshare mortgage payments or keep up with the assessments, you could face foreclosure. (In addition to monthly mortgage payments, timeshare owners are ordinarily responsible for maintenance fees, special assessments, utilities, and taxes, collectively referred to as “assessments.”)
In Nevada, timeshare foreclosures are typically nonjudicial, which means the foreclosure takes place without court supervision.
donating the timeshare to a charity (not all charities will take a timeshare, but some might, and you'll have to get current on payments first)
negotiating with the resort to reduce the amount you owe
arranging a repayment plan, or
working out a deal to give the timeshare back to the resort (called a "deed in lieu of foreclosure" or "deedback").
Talk to a Lawyer
If you want more information about timeshare laws in your state or need assistance canceling a timeshare, consider talking to a real estate attorney. Contact a foreclosure attorney if you're facing a timeshare foreclosure and have questions about the process or your options.
]]>Foreclosure Mediation Program in Nevada6917762021-09-14T21:55:47Z2021-09-17T07:00:00ZAmy LoftsgordonSome states, like Nevada, offer homeowners who are facing a foreclosure the opportunity to participate in a foreclosure mediation program. In general terms, “mediation” is a form of alternative dispute resolution. Foreclosure mediation, specifically, is a process in which a homeowner, the loan servicer (on the lender’s behalf), and a neutral mediator get together to try to work out a loss mitigation option, like a loan modification, and avoid foreclosure.
Participating in mediation doesn’t guarantee you'll be able to prevent a foreclosure. But you might be able to figure out a way to keep your home or exit the property, like by completing a short sale or deed in lieu of foreclosure, under terms you can live with.
While Nevada's mediation law was initially supposed to be temporary to help resolve the foreclosure crisis that occurred around 2007-2010, the state legislature has made the program permanent. Under state law, borrowers in foreclosure who live in Nevada get the option to participate in mediation if the property is owner-occupied.
What Is the Nevada Foreclosure Process?
Most Nevada foreclosures are "nonjudicial," which means the lender doesn’t have to go through state court to foreclose. As part of a Nevada nonjudicial foreclosure, the lender has to offer you the opportunity to attend mediation to explore alternatives to foreclosure.
Sometimes, foreclosures in Nevada are judicial (through the court system) rather than nonjudicial. When Nevada's mediation law was first implemented, homeowners in judicial foreclosures didn't get the right to participate in mediation. But Nevada's Homeowner's Bill of Rights, which was passed in 2013, expanded the mediation program to homeowners in judicial foreclosures. (Foreclosure Mediation Rules, Rule 9).
How Does Foreclosure Mediation in Nevada Work?
In a Nevada foreclosure mediation, the borrower, the lender (or the servicer on behalf of the lender), and a mediator attend a meeting to discuss ways to avoid a foreclosure. First, though, you’ll have to participate in a document conference call.
Conference Call
When you attend the conference call, pay close attention to what your lender says. The lender will let you know what documents they need from you. You’ll then get some time to gather up the necessary paperwork, like your last two pay stubs, tax returns, bank statements, utility bills, a hardship letter, and so on.
Mediation Process
At the mediation, the mediator acts as a neutral facilitator. The parties discuss the borrower's finances and try to resolve the delinquency. The mediation might take place at a courthouse or at an office. Show up early and bring copies of all your documents. The mediation won’t be longer than four hours.
liquidating the property with a sale, short sale, or deed in lieu of foreclosure.
If the mediation is successful and the parties agree on a way for the borrower to retain the home or exit the property in a manner other than through a foreclosure, then the foreclosure process stops.
But if the parties can’t reach an agreement, or if you waive your right to participate in the mediation program (see below), the foreclosure will continue.
Eligibility to Participate in Nevada's Foreclosure Mediation Program
Nevada law says that borrowers get the option to participate in mediation if the property is owner-occupied; the property can’t be a timeshare, vacation home, second home, rental property, or another property where you don’t live. (Nev. Rev. Stat. § 107.086). You must also meet some other criteria. Generally, you may participate in mediation once:
you’ve received a Notice of Default and Election to Sell (the first official step in a Nevada nonjudicial foreclosure), which was served (mailed) within the last 30 days
you’re served a complaint for judicial foreclosure within the last 20 days, or
if you and the lender agree to participate in mediation. (Nev. Rev. Stat. § 107.086, § 107.0865, Foreclosure Mediation Rules, Rule 8.)
Even if you’re not already behind in payments (called being in “default” on the loan), you may participate in mediation if a mortgage default is imminent and you have a documented financial hardship. Eligible hardships generally include the death of a co-borrower, serious illness, divorce or separation, a long-distance job transfer, job loss, a reduction in pay, or some other event that prevents you from repaying the loan.
But you aren't eligible for mediation if:
you've surrendered the property (as evidenced by a letter confirming the surrender or delivery of the keys to the property to the lender, foreclosure trustee, or their authorized agent)
you're in bankruptcy and the bankruptcy court has not entered an order closing or dismissing the case or granting relief from a stay of foreclosure.
How to Opt-In to Mediation in Nevada
When a lender starts a foreclosure, it also provides the borrower with information on the foreclosure mediation program and how to apply for it. To opt into mediation, you have to file a Petition for Mediation Assistance with the court and serve it on the other parties to the case.
You’ll also have to pay a mediation fee, usually $250, plus a filing fee of around $25. If you can’t afford the $25 filing fee, you can request a fee waiver. But you can’t waive the $250 mediation fee. You must also submit a Civil Cover Sheet when you apply for mediation.
Briefly, here’s what you need to do to participate in mediation, no matter what stage your foreclosure is in.
How to participate in mediation if a nonjudicial foreclosure has started. If a nonjudicial foreclosure has already begun, you’ll receive a copy of the mediation petition in the mail, or in some cases, through electronic transmission (email). No later than 30 days after the Notice of Default and Election to Sell is served, you must complete the Petition for Mediation Assistance and deliver it, along with the required fee to the District Court. You also have to serve a copy to Home Means Nevada, Inc. (the program administrator), the lender, and to the trustee, by certified or registered mail, return receipt requested (or by electronic transmission if the parties have authorized it). Note that if you miss the deadline, your lender might still agree to participate in mediation, but it isn’t required to do so.
How to participate in mediation if a judicial foreclosure has started. In a judicial foreclosure, you’ll get a copy of the Petition for Mediation Assistance along with the complaint that starts the foreclosure. You can opt-in by filing the Petition with the court, serving it to the involved parties, and paying the mediation fee by the deadline to answer the complaint.
How to participate if you think you’re about to fall behind in payments. If you believe you're in imminent danger of defaulting on the loan and want to participate in mediation, contact a HUD-approved housing counselor or agency to get a recommendation. The counselor or agency has to certify that you have a documented financial hardship and you're in imminent risk of default. You'll also have to file the Petition with the District Court, serve it to the various parties, and pay the required fee.
For a detailed description of each step you must take, see the Legal Aid Center of Southern Nevada’s Foreclosure Mediation website. A lot of steps are required and the process can be confusing. If you need help applying for Nevada’s foreclosure mediation program, consider hiring a local foreclosure attorney to help you complete all of the steps correctly and on time.
After you file your petition for mediation, a few different things could happen: The lender might decide to rescind the Notice of Default (nonjudicial foreclosures) or file a motion with the court to dismiss the case (judicial foreclosures) and, in exchange, ask you to cancel the mediation. (If this happens, consider talking to a lawyer to determine your best course of action.) Or the mediation process, as described above, might go forward.
Getting Help from "Home Means Nevada
Home Means Nevada, Inc., a state-affiliated nonprofit organization, provides resources and information on Nevada's foreclosure mediation program.
Also, Home Means Nevada's The Homeowner Connect (THOC) system offers help to homeowners online. This web-based portal makes it easier for consumers to seek relief under various COVID-19 assistance programs by providing access to forbearances and other federal relief programs.
Should You Participate in Nevada's Foreclosure Mediation Program?
If you don’t want to participate in the foreclosure mediation program, you must complete the State of Nevada Foreclosure Mediation Program Waiver. But in most cases, waiving mediation isn’t a good idea. One study showed that homeowners who participate in mediation are more likely to avoid foreclosure than those who didn't.
While participating in Nevada's foreclosure mediation program doesn't force the lender to give you a foreclosure alternative, it doesn't hurt to go through the process. The lender could be more likely to agree to a nonforeclosure solution when you go through official mediation procedures, or you might qualify for a loss mitigation option that you hadn't previously considered.
Even if mediation doesn't help you avoid a foreclosure, it will likely buy you some extra time to remain in the home without making any payments.
Getting Help
Foreclosure mediators are typically trained in mediation and federal and state foreclosure laws, and also usually know about different community-based resources and mortgage assistance programs that could be available to help homeowners facing foreclosure. But they don’t represent either party in the mediation process and they can’t give legal advice.
So, while you don’t have to hire a lawyer to represent you in your foreclosure mediation, it’s often a good idea. A lawyer can give you legal advice specific to your situation and advocate on your behalf, helping you negotiate a way to avoid foreclosure. A lawyer will also ensure that your legal rights are protected in the process. And, if you’re thinking about filing a response to the foreclosure, or any other motion with the court, consider talking to an attorney beforehand to discuss the consequences of doing so and your various options.
You might also consider consulting with a HUD-approved housing counselor to learn more about foreclosure avoidance options.