TRP Fund VI, LLC v. PHH Mortg. Corp.

506 P.3d 1056

TRP FUND VI, LLC, a Delaware Limited Liability Company, Appellant,

v.PHH MORTGAGE CORPORATION, a Foreign Corporation; and Federal National Mortgage Association, a National Banking Entity, Respondents.

No. 84407

Supreme Court of Nevada.

FILED MARCH 31, 2022

The Wright Law Group and John Henry Wright, Las Vegas, for Appellant.

Wright, Finlay & Zak, LLP, and Christina V. Miller, Las Vegas, for Respondents.

BEFORE THE SUPREME COURT, SILVER, CADISH, and PICKERING, JJ.

OPINION

PER CURIAM:

When filing emergency motions and motions for stay, moving parties must meet certain requirements designed to provide prompt notice, quick access to the information needed to resolve the motion, and proof that they have first sought relief in the district court or that doing so is impracticable. Failure to comply with these requirements may result in summary denial of the motion.

FACTS

In the underlying quiet title and declaratory relief action, appellant TRP Fund VI, LLC, sought a preliminary injunction to enjoin respondents PHH Mortgage Corporation and Federal National Mortgage Association from foreclosing under the first position deed of trust on its property. On March 10, 2022, the district court entered an order denying the preliminary injunction, and TRP Fund appealed.

TRP Fund filed in this court an emergency motion for stay and/or injunction on March 21, seeking relief before a foreclosure sale scheduled for April 1, and paid the filing fee the next day. See NRAP 3(e) (requiring the payment of a filing fee); NRAP 45(f) ("The clerk shall not be required to file any paper or record in the clerk's office or docket any proceeding until the fee required by law and these Rules has been paid."). An NRAP 27(e) certificate, which must accompany emergency motions, was not attached to the stay motion but was attached to a simultaneously filed motion to exceed the page limit. In the stay motion, TRP Fund asserted that it was "clearly impracticable" to seek a stay pending appeal in the district court as set forth in NRAP 8(a) because the district court had just refused to grant it a preliminary injunction seeking similar relief, such that it "would be a waste of time and resources" to ask that court for a stay.

Respondents timely filed a response to the stay motion,¹ arguing that the stay motion should be summarily denied because TRP Fund failed to include the NRAP 27(e) certificate with the emergency motion and failed to first seek stay relief in the district court or to demonstrate that doing so was impracticable. In the response, respondents contend that TRP Fund did not attempt to comply with the NRAP 27(e) requirement to notify them of its intent to seek emergency relief before it filed the stay motion.

DISCUSSION

Due to their urgent nature, emergency motions use considerable court and party resources. When relief is needed within 14 days to avoid irreparable harm, NRAP 27 requires the movant to take certain enumerated steps to ensure both that the parties and the court are notified of the emergency as soon as possible and that the information needed to process the motion is readily available. To those ends, NRAP 27(e)(1) requires the movant, before filing the motion, to "make every practicable effort to notify the clerk of the Supreme Court, opposing counsel, and any opposing parties proceeding without counsel and to serve the motion at the earliest possible time." The motion must be accompanied by a certificate providing the contact information for the parties, the facts demonstrating both the existence and the nature of the asserted emergency, and when and how the other parties were notified of the emergency and served with the motion. NRAP 27(e)(3). Further, the movant must explain in the motion whether relief was available and sought in the district court and, if not sought, why the motion should not be denied. NRAP 27(e)(4). Finally, when the movant is seeking a stay or injunction, the movant must also comply with NRAP 8(a)(1), which states that "[a] party must ordinarily move first [for such relief] in the district court." Any movant that seeks a stay from this court without first applying in the district court must demonstrate that first seeking relief in the district court would be "impracticable." NRAP 8(a)(2)(A)(i).

Here, TRP Fund's NRAP 27(e) certificate fails to meet the stated requirements. It was not attached to the emergency stay motion and, while certifying that the motion was made "at the earliest opportunity," TRP Fund does not further explain that statement or demonstrate that it attempted to notify respondents of the emergency before filing the motion.

More problematically, TRP Fund admittedly did not first seek relief in the district court and failed to demonstrate that doing so was impracticable. "Impracticable" requires the movant to show that it was "not capable" of first seeking relief in the district court or that such an act could not be done. Webster's II New College Dictionary, at 556 (1995). TRP Fund argues only that seeking a stay in the district court was unwarranted because the district court denied it a preliminary injunction, not that it was unable to file the motion or that the court was incapable of granting the requested relief. While considerations in determining whether to grant a preliminary...