130 Nev., Advance Opinion 5b 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

DONNA WOOD, AS PERSONAL 

REPRESENTATIVE OF THE ESTATE 

OF DANNY WOOD, 

Appellant, 

vs. 

KEN GERMANN; MICHAEL LINTON; 

MERIDIAN FORECLOSURE SERVICE, 

INC., A FOREIGN CORPORATION; 

AND INDYMAC MORTGAGE 

SERVICES, 

Respondents. 

No. 62768 

FILED 

AUG 0 7 2014 

CLEW& 

Yy_pip,EMAN 

BY 

CHIEF DEPUVIICLERK 

Appeal from a district court order denying a petition for 

judicial review in a Foreclosure Mediation Program matter. Eighth 

Judicial District Court, Clark County; Kathleen E. Delaney, Judge. 

Affirmed. 

Brandon L. Phillips, Attorney at Law, PLLC, Las Vegas, 

for Appellant 

Brooks Hubley LLP and Michael R. Brooks and Jeffrey J. Todd, Las 

Vegas, 

for Respondents. 

BEFORE HARDESTY, DOUGLAS and CHERRY, JJ. 

OPINION 

PER CURIAM: 

In this appeal, we examine the legal effect of a loan 

assignment from a homeowner's original lender to a subsequent purchaser 

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when that assignment violates the terms of the original lender and 

subsequent purchaser's Pooling and Servicing Agreement (PSA). In 

particular, we consider whether a loan assignment that is executed after 

the PSA's "closing date" renders the assignment void and ineffective to 

transfer ownership of the homeowner's loan. We conclude that a postclosing-date loan assignment does not render the assignment void, but 

merely voidable, and that a homeowner therefore lacks standing to rely on 

the timing of the assignment as a basis for challenging the subsequent 

purchaser's authority to enforce the loan. We therefore affirm the district 

court's denial of appellant's petition for judicial review. 

FACTS 

In conjunction with obtaining a 2004 home loan from IndyMac 

Bank, F.S.B., appellant Danny Wood' executed a promissory note and 

deed of trust in favor of IndyMac F.S.B. The deed of trust indicated that 

IndyMac F.S.B. was appointing Mortgage Electronic Registration 

Systems, Inc. (MERS), as the legal beneficiary of the deed of trust. See 

Edelstein v. Bank of N.Y. Mellon, 128 Nev. „ 286 P.3d 249, 256-57 

(2012) (explaining this practice and considering its legal implications). 

Shortly thereafter, IndyMac F.S.B. contracted to sell appellant's loan and 

others to Deutsche Bank National Trust Company, who, in turn, was to 

maintain ownership of these loans as the trustee for investors of a 

securitization trust. See BlackRock Fin. Mgmt. Inc. v. Segregated Account 

of Ainbac Assurance Corp., 673 F.3d 169, 173 (2d Cir. 2012) (summarizing 

the process of loan securitization); Cervantes v. Countrywide Home Loans, 

'While this appeal was pending, Donna Wood, as personal 

representative of Danny Wood's estate, was substituted as the appellant. 

NRAP 43(a)(1). 

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Inc., 656 F.3d 1034, 1039 (9th Cir. 2011) (same). IndyMac F.S.B.'s and 

Deutsche Bank's respective obligations were spelled out in a PSA. As 

relevant to this appeal, the PSA required IndyMac F.S.B. to transfer all 

subject loans into the trust by a September 2004 "closing date" and 

provided that IndyMac F.S.B. would retain the servicing rights to the 

transferred loans. 

Appellant defaulted on his loan and elected to participate in 

Nevada's Foreclosure Mediation Program (FMP) in 2012. Appellant, who 

was not represented by counsel, attended mediation with respondent 

IndyMac Mortgage Services, who appeared as Deutsche Bank's loan 

servicer and representative. 2Among other documents, IndyMac Mortgage 

Services produced certified copies of appellant's original promissory note 

that IndyMac F.S.B. had endorsed in blank, appellant's deed of trust, and 

an assignment from MERS purporting to assign appellant's deed of trust 

and promissory note to Deutsche Bank in January 2012. The mediation 

concluded unsuccessfully, with the mediator noting summarily that 

appellant disputed whether IndyMac Mortgage Services had complied 

with the FMP's document-production requirements. 

Appellant, then represented by counsel, filed a petition for 

judicial review in district court. Appellant argued that his loan had been 

improperly securitized and that, consequently, IndyMac Mortgage 

2IndyMac F.S.B., which was Deutsche Bank's original servicer and 

appellant's original lender, subsequently entered FDIC receivership, and 

OneWest Bank acquired IndyMac F.S.B.'s assets. Respondent IndyMac 

Mortgage Services is a division of OneWest Bank. Although the other 

named respondents in this appeal were involved to some extent in the 

underlying mediation, the issues presented in this appeal do not directly 

concern those respondents. 

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Services had failed to establish that Deutsche Bank owned his note and 

held the beneficial interest in his deed of trust. Specifically, according to 

appellant, because the terms of the PSA required appellant's original 

lender to transfer his loan to Deutsche Bank no later than the PSA's 

September 2004 closing date, the January 2012 MERS assignment 

necessarily violated the PSA's terms and was therefore "void." The district 

court denied appellant's petition for judicial review, and this appeal 

followed. 

DISCUSSION 

On appeal, appellant maintains his argument that the 

January 2012 MERS assignment was "void" because it was executed after 

the PSA's closing date. According to appellant, because the assignment 

was void, respondents therefore failed to produce the documents necessary 

to demonstrate that Deutsche Bank was the entity entitled to enforce his 

note and to foreclose. 3While appellant points to an unpublished New 

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3Respondents suggest that the FMP judicial review process should 

be limited to determining whether the required documents have been 

produced and that a homeowner's concerns regarding the veracity of those 

documents are beyond the FMP's limited scope. We disagree with this 

suggestion. As this court has repeatedly recognized, the purpose of the 

FMP's document-production requirements is to ensure that the party 

seeking to enforce the homeowner's promissory note and to proceed with 

foreclosure is actually authorized to do so. Einhorn v. BAG Home Loans 

Servicing, LP, 128 Nev. „ 290 P.3d 249, 251 (2012); Edelstein v. 

Bank of N.Y. Mellon, 128 Nev. „ 286 P.3d 249, 255 (2012); Leyva v. 

Nat'l Default Servicing Corp., 127 Nev. „ 255 P.3d 1275, 1279 

(2011). It is not difficult to envision how this purpose might be defeated if 

a homeowner were prohibited from challenging the veracity of a lender's 

documents. Thus, we reject respondents' broader proposition. To the 

extent that respondents are simply suggesting that not all documentrelated improprieties call into question a party's authority to enforce the 

continued on next page... 

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York trial court decision in arguing that an assignment executed after a 

PSA's closing date is void, see Wells Fargo Bank, N.A. v. Erobobo, No. 

31648/2009, 2013 WL 1831799, at *8 (N.Y. Sup. Ct. Apr. 29, 2013), and 

while some authority exists to support that argument, see, e.g., Glaski v. 

Bank of Am., N.A., 160 Cal. Rptr. 3d 449, 463 (Ct. App. 2013), most courts 

to consider this issue instead hold that the assignment is voidable at the 

option of the parties to the PSA. 

These courts have recognized that a PSA is a contract between 

the originating lender and the subsequent purchaser/trustee and that, 

under traditional principles of contract law, a contracting party is capable 

of ratifying conduct that is done in violation of the contract. See, e.g., 

Rajam,in v. Deutsche Bank Nat'l Trust Co., F.3d „ 2014 WL 

2922317, at *7-9 (2d Cr. 2014); Calderon v. Bank of Am., N.A., 941 F. 

Supp. 2d 753, 766-67 (W.D. Tex. 2013); Dernier v. Mortg. Network, Inc., 87 

A.3d 465, 473-74 (Vt. 2013). Thus, although a post-closing-date loan 

assignment violates the terms of the PSA, these courts conclude that such 

an assignment is not void, 4but is merely voidable, because the trustee has 

...continued 

note and to foreclose (and may therefore not require further district court 

scrutiny), we agree with this proposition. 

4A scenario in which a loan assignment might be void is where the 

assignor did not possess the rights it was purporting to assign. See 

Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282, 291 (1st Cir. 2013). 

Here, while appellant raises various arguments regarding the authority of 

MERS to assign his loan, this court has confirmed MERS' authority to 

assign a loan on behalf of an original lender or the original lender's 

successor. See Edelstein v. Bank of N.Y. Mellon, 128 Nev. „ 286 

P.3d 249, 258 (2012). Because appellant's deed of trust contains language 

identical to the language considered in Edelstein, appellant's arguments 

regarding MERS' authority do not warrant further consideration. 

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the option of accepting the loan assignment despite its untimeliness. See, 

e.g., Rajamin, F.3d at , 2014 WL 2922317, at *9; Calderon, 941 F. 

Supp. 2d at 766-67; Dernier, 87 A.3d at 474. Applying these traditional 

principles of contract law, these courts further hold that the homeowner, 

who is neither a party to the PSA nor an intended third-party beneficiary, 

lacks standing to challenge the validity of the loan assignment. See, e.g., 

Rajamin, F.3d at , 2014 WL 2922317, at *7-8; Calderon, 941 F. 

Supp. 2d at 767; Dernier, 87 A.3d at 474-75. 

We are persuaded by the reasoning of these courts because 

their reasoning comports with Nevada law regarding who is entitled to 

enforce a contract. 5 See Morelli v. Morelli, 102 Nev. 326, 328, 720 P.2d 

704, 705-06 (1986) (recognizing that a nonparty to a contract has standing 

to enforce the contract only when the nonparty is an intended third-party 

beneficiary). Thus, we conclude that the January 2012 MERS assignment 

was not void, but was merely voidable, as Deutsche Bank was entitled to 

ratify the post-closing-date loan assignment; and appellant, who is neither 

a party nor an intended third-party beneficiary of the PSA, lacked 

standing to challenge the assignment's validity. Consequently, by 

5Appellant contends that consideration of this issue should be 

governed by New York trust law, which, under N.Y. Estates, Powers & 

Trusts Law § 7-2.4 (McKinney 2002), purportedly renders a trustee's ultra 

vires act void. We note that the "vast majority" of courts to consider this 

argument, Butler v. Deutsche Bank Trust Co. Ams., 748 F.3d 28, 37 n.8 

(1st Cir. 2014), including those that this opinion follows, see Rajamin, 

F.3d at , 2014 WL 2922317, at *9-11; Calderon, 941 F. Supp. 2d at 766; 

Dernier, 87 A.3d at 473-75, have rejected the contention that a loan 

assignment in violation of a PSA is void. See also Bank of Am. Nat'l Ass'n 

v. Bassman FBT, L.L.C., 981 N.E.2d 1, 8-9 (Ill. App. Ct. 2012) (reaching 

the same conclusion). 

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appearing at the mediation and producing certified copies of appellant's 

original promissory note, deed of trust, and the January 2012 MERS 

assignment, IndyMac Mortgage Services produced the documents 

necessary to establish that Deutsche Bank was the entity entitled to 

enforce appellant's note and to proceed with foreclosure. NRS 107.086(4) 

and (5) (2011) 6(providing that a deed of trust beneficiary must bring to 

the mediation the original or a certified copy of the deed of trust, mortgage 

note, and each assignment of the deed of trust or note, and that the 

beneficiary or its authorized representative must participate in good faith 

in order to obtain an FMP certificate); see Leyva v. Nat'l Default Servicing 

Corp., 127 Nev. , , 255 P.3d 1275, 1278-79 (2011) (discussing 

document-production requirements under the FMP's statutory and rule 

provisions). The district court therefore properly denied appellant's 

petition for judicial review and ordered the issuance of an FMP certificate. 

Edelstein, 128 Nev. at , 286 P.3d at 260 (noting that this court defers to 

the district court's factual determinations and reviews de novo its legal 

determinations in appeals from orders resolving FMP petitions for judicial 

review). 

CONCLUSION 

A loan assignment made in violation of a PSA is not void, but merely 

voidable and may be ratified or rejected at the option of the parties 

6Effective October 1, 2013, the Legislature added a new subsection 4 

to NRS 107.086. See 2013 Nev. Stat., ch. 536, §§ 3, 6(2), at 3480, 3484. 

While the previous subsections 4 and 5 were not substantively changed, 

they are now codified at NRS 107.086(5) and (6) (2013). Because the 

mediation in this case took place before the 2013 amendment's effective 

date, this opinion refers to the version of NRS 107.086 in effect at that 

time. 

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to the PSA. Because the homeowner is neither a party to nor an intended 

beneficiary of thefl PSA, the homeowner lacks standing to contest the 

assignment's validity. Here, although respondents produced an 

assignment at the mediation that was executed after the PSA's closing 

date, the assignment was nevertheless effective to transfer ownership of 

appellant's loan to Deutsche Bank. Consequently, respondents produced 

the documents necessary to establish that Deutsche Bank was entitled to 

enforce appellant's note and to proceed with foreclosure. We therefore 

affirm the judgment of the district court. 

KlecA.,62.-ct-\ 

Hardesty 

WA AS 1 

Douglas 

J. 

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