IN THE SUPREME COURT OF THE STATE OF NEVADA 

IN RE: JEFFREY J. SWAN AND 

MAUREEN A. SWAN 

SIERRA MEDICAL SERVICES, LLC, 

Appellant, 

vs. 

YVETTE WEINSTEIN, CHAPTER 7 

TRUSTEE, 

Respondent. 

No. 64808 

FILED 

JAN 1 2 2016 

ORDER REGARDING NRAP 5 CERTIFICATION ORDER 

This NRAP 5 certified question asks whether a medical 

services financier asserting a lien against the personal property of a 

debtor-patient must file a UCC financing statement to perfect its interest 

in a bankruptcy proceeding. The certified order first classifies the right as 

"a lien" but subsequently states that "Sierra Medical Services [(SMS)] was 

the contractual assignee of [Las Vegas Radiology (LVR)]'s rights to 

payment for its services and lien rights in connection with the Claim." 

The contract signed by Maureen Swan uses the terms "lien" and 

"assignment" seemingly interchangeably, and notably never explicitly 

gives SMS an "interest [that] secures payment . . . of an obligation." NRS 

104.1201(2)(ii). 

NRAP 5(a) authorizes this court to answer certified "questions 

of law of this state which may be determinative of the case then pending 

in the certifying court." We believe that the question, as certified, requires 

an interpretation of the SMS contract which presents a mixed factual and 

legal inquiry that exceeds the scope of NRAP 5(a). Whether the SMS 

contract is a "lien" or "assignment" is critical to answering the certified 

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legal inquiry that exceeds the scope of NRAP 5(a). Whether the SMS 

contract is a "lien" or "assignment" is critical to answering the certified 

question. "A lien is a security interest in property," S.E.C. v. Credit 

Bancorp, Ltd., 297 F.3d 127, 138 (2d Cir. 2002), whereas an assignment is 

"a right in the property itself," Ford Motor Credit Co. v. Allstate Ins. Co., 2 

S.W.3d 810, 812 (Mo. Ct. App. 1999). 

In an affidavit filed in the bankruptcy court proceedings and 

signed by the president of SMS, the president attempts to clarify the 

contractual relationship by stating that, under the contract, SMS receives 

an interest in personal injury claim proceeds in "full satisfaction of the 

amount at issue." He also states that when there are insufficient claim 

proceeds to compensate SMS, it takes a loss and does not further pursue 

collection against debtor-patients. Finally, the contract also references a 

"Master Assignment Agreement" between SMS and LVR, which was not 

included in the record provided to this court, but may be relevant to what 

interest was created in the contract signed by Swan. 

As such, it is unclear whether the contract created a lien, a 

pure assignment, or an assignment of a lien. Such a determination cannot 

be made by this court pursuant to NRAP 5(a). Accordingly, this court 

requests that the United States Bankruptcy Court undertake the 

proceedings necessary to clarify this issue and, if appropriate, then submit 

an amended certification order to this court within 60 days. 

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It is so ORDERED. 

budot 

Parraguirre 

Hardesty :4?,ecriA 

Douglas 

Gibbons 

cc: Hon. Mike K. Nakagawa, Bankruptcy Court Judge 

Greene Infuse, LLP 

Schwartzer & McPherson Law Firm 

Clerk, U.S. Bankruptcy Court, Las Vegas, NV 

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