Handley v. Bank Of America, N.A. et al

Filing 17

ORDER Granting 4 Defendants' Motion to Dismiss. IT IS FURTHER ORDERED that 14 Plaintiff's Motion for Temporary Restraining Order is DENIED as moot. Signed by Chief Judge Roger L. Hunt on 11/4/10. (Copies have been distributed pursuant to the NEF - EDS)

Handley v. Bank Of America, N.A. et al

Doc. 17

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ***
RACHEL HANDLEY, ) ) Plaintiff, ) ) vs. ) ) BANK OF AMERICA, N.A.; REAL TIME ) RESOLUTION, INC.; and DOES, 1 through ) 50, ) ) Defendants. ) _______________________________________) Case No.: 2:10-cv-01644-RLH-PAL ORDER (Motion to Dismiss­#4; Motion for Temporary Restraining Order­#14)

Before the Court is Defendant Bank of America, N.A.'s Motion to Dismiss (#4), filed September 30, 2010. The Court has also considered Defendant Real Time Resolution, Inc.'s Joinder (#7), filed October 4, 2010, Plaintiff Rachel Handley's Response (#9), filed October 14, 2010, and Bank of America's Reply (#13), filed October 29, 2010. Also before the Court is Plaintiff Rachel Handley's Motion for Temporary Restraining Order (#14), filed November 2, 2010. BACKGROUND This dispute arises from Plaintiff Rachel Handley's home mortgage loan and her allegations that Defendants' are now attempting to improperly foreclose on the real property 1
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located at 5024 North Lisa Lane in Las Vegas, Nevada. On September 1, 2010, Ely J. Ades filed this action on Plaintiff's behalf in the Eighth Judicial District Court of the State of Nevada. (Dkt. #1, Pet. for Removal Ex. A, Compl.) Ades is currently acting as Plaintiff's attorney-in-fact pursuant to a power of attorney form, which Plaintiff signed in June 2010. (Id., Compl. Ex. A.) On September 23, 2010, Defendant Bank of America removed the case to this Court based on the parties' diversity of citizenship. Defendant Real Time Resolution subsequently filed its consent and joinder to removal. (Dkt. #7, Joinder, Oct. 4, 2010.) Defendants ask the Court to dismiss Plaintiff's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff asks the Court to issue emergency injunctive relief to prevent Defendants from foreclosing upon or selling her home. For the reasons discussed below, the Court grants Defendants' motion and denies Plaintiff's motion. DISCUSSION I. Unauthorized Practice of Law In a Nevada court of law, only a licensed attorney--an active member of the State Bar of Nevada admitted to practice under the Nevada Supreme Court Rules ("SCR")-- is duly authorized to represent a client. Guerin v. Guerin, 993 P.2d 1256, 1258 (Nev. 2000) (citing NRS 7.285); Martinez v. Eighth Jud. Dist. Ct., 729 P.2d 487, 488 (Nev. 1986) (citing SCR 77; NRS 7.285); see also SCR 42­72. An individual engages in the unauthorized practice of law when he engages in activities customarily performed by licensed attorneys. In re Discipline of Lerner, 197 P.3d 1067, 1071 (Nev. 2008). Examples of such activities include evaluating legal claims, filing documents, and appearing in court on behalf of someone else. Id. In addition, a person who engages in the unauthorized practice of law may face criminal charges. Guerin, 993 P.2d at 258. Although an individual is entitled to represent himself or herself in the district court, no rule or statute permits a non-attorney to represent any other person, a company, a trust, or any other entity in Nevada courts. Salman v. Newell, 885 P.2d 607, 608 (Nev. 1994) (citing SCR 44). Therefore, an individual "has no right to be represented by an agent other than counsel in a 2

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court of law." Martinez, 729 P.2d at 488 (citing SCR 77; NRS 7.285). The overarching reason for requiring that only lawyers engage in the practice of law is to "ensure that the public is served by those who have demonstrated training and competence and who are subject to regulation and discipline." In re Discipline of Lerner, 197 P.3d at 1072 (citing multiple cases from other jurisdictions that similarly emphasize Nevada's high standards of training and ethics for lawyers); see also Pioneer Title v. State Bar, 326 P.2d 408, 410 (Nev. 1958). The Court must dismiss Plaintiff's action because Nevada law clearly prohibits Ades, a non-attorney, from representing her in this action. Plaintiff cannot delegate her right to represent herself under SCR44 to another person who is not a licenced attorney--even though she granted Ades a power of attorney. The power of attorney defined in NRS Chapter 162A does not circumvent NRS 7.285's prohibition on the unauthorized practice of law. Ades may be able to secure proper legal representation for Plaintiff pursuant to Plaintiff's power of attorney. See NRS 162A.470. However, Nevada law prevents Ades from representing Plaintiff as a so called attorney-in-fact. The Court therefore grants Defendants' motion to dismiss. As a result, the Court must also deny Plaintiff's motion for temporary restraining order as moot. CONCLUSION Accordingly, and for good cause appearing, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (#4) is GRANTED. Plaintiff's claims are dismissed without prejudice. IT IS FURTHER ORDERED that Plaintiff's Motion for Temporary Restraining Order (#14) is DENIED as moot. Dated: November 4, 2010.

____________________________________ ROGER L. HUNT Chief United States District Judge

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