With over two times as many payday loan stores than there are casinos, you’ll find a payday loan storefront at almost every major intersection in Las Vegas. The payday loan industry in Nevada is about a half a billion dollars a year. This post provides a general overview of the current version Nevada’s payday loan statute, NRS 604A.
This post discusses the rules and caselaw relating to consumers filing a motion to set aside a default judgment in Las Vegas, Nevada. When a consumer has a default judgment entered against him or her, the company who got the judgment can try to collect the money judgment by garnishing wages, levying bank accounts, taking cars, among other methods of collecting the judgment.
The rule to set aside a default judgment applies regardless of whether the debt is for credit cards, car loan, HOA debt, payday loans, personal loans, or other debts. If a default judgment has been granted against you, there is still hope.
Applicable Rules of Civil Procedure
Rule 60(b) of the Nevada Rules of Civil Procedure (“NRCP”) and the Justice Court Rules of Civil Procedure (“JCRCP”) provides that, upon a motion to set aside, the court may relieve a party from a final judgment or order for the following reasons: “(1) mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; or, (5) the judgment has been satisfied. . . .” The JCRCP apply in Nevada’s Justice Courts, while the NRCP apply in Nevada’s District Courts.
The Nevada Supreme Court has ruled Nevada’s public policy requires cases be adjudicated on their merits where possible. E.g., Kahn v. Orme, 108 Nev. 510, 516, 835 P.2d 790, 794 (1992). “The salutary purpose of Rule 60(b) is to redress any injustices that may have resulted because of excusable neglect or the wrongs of the opposing party. Rule 60 should be liberally construed to effectuate that purpose.” Nev. Indus. Dev. v. Benedetti, 103 Nev. 360, 364, 741 P.2d 802, 805 (1987) (citing Mendenhall v. Kingston, 610 P.2d 1287, 1289 (Utah 1980)).
Setting aside a judgment rests within the sound discretion of the district court. Bennett v. Fid. & Deposit Co., 396 F.2d 909, 911 (9th Cir. 1968) (citing Smith v. Stone, 308 F.2d 15, 17-18 (9th Cir. 1962)); Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360 P.2d 839, 841 (1961); Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050.
Consumers do not Need to Show a Winning Case to Have a Judgment Set Aside
In some states, a consumer who is trying to have a judgment set aside must show that they have a meritorious case. That means that the consumer needs to show that once the judgment is set aside, she will be able to present a defense on the merits in the case (for example, “it’s not my debt” or “I already paid the credit card bill”). In Nevada, a consumer does not need to make such a showing. “[A] party need not show a meritorious defense in order to have a court set aside a default judgment.” Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997).
Judgments Should be Set Aside When the Default is Not the Consumer’s Fault
The court may set aside the default judgment if the consumer can show that the default judgment was not her fault. Cicerchia v. Cicerchia, 77 Nev. 158, 160, 360 P.2d 839, 840 (1961) (finding the court’s setting aside of default judgment was proper when the default was not the fault of the defendant); Velasco v. Mis Amigos Meat Mkt., Inc., 2009 U.S. Dist. LEXIS 20604, at *6 (E.D. Cal. Mar. 16, 2009) (setting aside default since it was “clear that defendants intend to proceed in the defense of this action, thus promoting the overriding public policy that cases be decided on their merits.”); see also Velasco v. Mis Amigos Meat Mkt., Inc., 2009 U.S. Dist. LEXIS 20604, at *14 (E.D. Cal. Mar. 16, 2009) (“Even a final judgment of default may be successfully challenged based upon a showing of the defaulting party’s ‘mistake, inadvertence, surprise, or excusable neglect.’”).
Plaintiffs are Generally Not Prejudiced (Harmed) by a Short Delay
When the case involves a breach of contract claim based on a defaulted debt, courts have found those matters not time sensitive. See Velasco v. Mis Amigos Meat Mkt., Inc., 2009 U.S. Dist. LEXIS 20604, at *16 (E.D. Cal. Mar. 16, 2009) (“[A] mere delay in satisfying plaintiff’s claim, if he should ultimately succeed at trial, is not sufficient prejudice to require denial of a motion to set aside default.”).
For more information regarding setting aside a default in a consumer debt matter, contact Mike.
Many people are scared of debt collectors. And for good reason: debt collectors are often accused of using unfair and deceptive tactics. These tactics may include making improper threats or harassing people who allegedly owe money.
Effects of Unfair Debt Collection Practices
In the 1970s, the U.S. government conducted a study about debt collection throughout the country. It was determined that abusive debt collection practices contribute to bankruptcies, marital instability, the loss of jobs, invasions of peoples’ privacy, and other unwanted results.
Congress enacted the Fair Debt Collection Practices Act (FDCPA) to eliminate abusive debt collection practices by debt collectors. The FDCPA creates guidelines under which debt collectors may conduct business, defines the rights of consumers involved with debt collectors, and prescribes penalties and remedies for violations of the rules.
Prohibited acts under the FDCPA
The FDCPA generally prohibits unfair and deceptive collection practices, restricts communication by debt collectors, and requires transparency through disclosures. For example:
a debt collector is not allowed to communicate with someone when the collector knows that the person is represented by an attorney. 15 U.S. Code Section 1692c(a)(2)
a debt collector’s ability to communicate with a debtor who disputes the debt is restricted. Section 1692c(c)
a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Section 1692e
a collector may not falsely represented the amount or the legal status of a debt. Section 1692e(2)
a collector cannot threaten to take action against a person which could not be legally taken (arrests, etc.). Section 1692e(5)
a collector may not use any false representation or deceptive means to collect or attempt to collect any debt. Section 1692e(10)
the false representation or implication that documents are not legal process forms or do not require action by the consumer is prohibited. Section 1692e(15)
a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Section 1692f
a collector may not collect or attempt to collect an amount not expressly authorized by the agreement creating the debt or permitted by law. Section 1692f(1)
debt collectors must provide certain disclosures when attempting to collect debt from people. Section 1692g
What is considered a “misleading” statement under the FDCPA?
The FDCPA’s prohibition on misleading statements poses the question, “Misleading to whom?” Does the answer depend on whether the collector meant for the statement to be misleading? Does the answer lie in whether the person was actually misled? Does it matter if that person happens to be extra gullible or uniquely sophisticated about debt collection issues? Or does the judge look to see if the person could have been misled? This approach isn’t easy because some people are more easily tricked than others.
In Nevada (which is in the Ninth Circuit), courts use the third approach: they evaluate the tendency of language to deceive. That means, courts don’t assess whether the person was actually deceived but whether she could have been misled. The test used is whether the least sophisticated reader would be misled or deceived by the language. Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061-62 (9th Cir. 2011) (The standard is designed to protect consumers of below average sophistication or intelligence, or those who are uninformed or naive; “The ‘least sophisticated debtor’ standard is lower than simply examining whether particular language would deceive or mislead a reasonable debtor”).
The FDCPA is a strict liability statute
Is the debt collection company excused if they can prove that the violation was a mistake?
No. The FDCPA is a strict liability law, meaning that a plaintiff does not need to prove that an FDCPA violation was intentional in order to prevail. E.g., Reichert v. Nat’l Credit Sys., 531 F.3d 1002, 1004 (9th Cir. 2008); Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162 (9th Cir. 2006)); McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 948 (9th Cir. 2011).
Under the FDCPA, a victim of unfair to deceptive collection practices may recover any damages proven, up to $1,000, plus reasonable attorney’s fees and costs.
For more information about FDCPA claims, contact Mike.