                                                           133 Nev., Advance Opinion 107
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   FRANCO SORO, AN INDIVIDUAL;                                No. 72086
                   MYRA TAIGMAN-FARRELL, AN
                   INDIVIDUAL; ISAAC FARRELL, AN
                   INDIVIDUAL; KATHY ARRINGTON,
                   AN INDIVIDUAL; AND AUDIE
                                                                               F I L Es: Tr')
                   EMBESTRO, AN INDIVIDUAL,                                     DEC 2 8 2017
                   Petitioners,
                   vs.
                   THE EIGHTH JUDICIAL DISTRICT
                   COURT OF THE STATE OF NEVADA,
                   IN AND FOR THE COUNTY OF
                   CLARK; AND THE HONORABLE
                   JERRY A. WIESE, DISTRICT JUDGE,
                   Respondents,
                      and
                   AMERICA FIRST FEDERAL CREDIT
                   UNION, A FEDERALLY CHARTERED
                   CREDIT UNION,
                   Real Party in Interest.



                               Original petition for writ of mandamus and/or prohibition
                   arising from the district court's denial of a motion to dismiss in a foreclosure
                   deficiency action.
                               Petition denied.


                   Reid Rubinstein Bogatz and Charles M. Vlasic, III, Jaimie Stilz, and I. Scott
                   Bogatz, Las Vegas,
                   for Petitioners.

                   Ballard Spahr, LLP, and Matthew D. Lamb and Joseph P. Sakai, Las Vegas;
                   Ballard Spahr, LLP, and Mark R. Gaylord, Salt Lake City, Utah,
                   for Real Party in Interest.


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                   BEFORE SILVER, C.J., TAO and GIBBONS, JJ.

                                                     OPINION
                   By the Court, SILVER, C.J.:
                                 In this opinion, we determine whether Utah's antideficiency
                   statute applies extraterritorially to a Nevada deficiency action. Petitioners
                   moved to dismiss the underlying case on the ground that it was time-barred
                   by Utah's antideficiency statute, which they maintained applied to the
                   dispute pursuant to the parties' choice-of-law provision. The district court
                   considered that statute, concluded it did not apply extraterritorially, and
                   denied petitioners' motion to dismiss. This original petition for a writ of
                   mandamus and/or prohibition seeking to compel the dismissal of the
                   underlying action followed.
                                 The Nevada Supreme Court has notably addressed the
                   application of antideficiency statutes in Key Bank of Alaska v. Donnels, 106
                   Nev. 49, 787 P.2d 382 (1990); Branch Banking & Trust Co. v. Windhaven &
                   Tollway, LLC, 131 Nev.        , 347 P.3d 1038 (2015); and Mardian v. Michael
                   & Wendy Greenberg Family Trust, 131 Nev.         , 359 P.3d 109 (2015). Read
                   together, these cases provide that, in a deficiency action where the parties
                   have an enforceable choice-of-law provision, before the district court applies
                   the antideficiency statute from the parties' chosen jurisdiction, the court
                   must first determine whether that statute, by its terms, has extraterritorial
                   reach. See Mardian, 131 Nev. at       , 359 P.3d at 111-12; Branch Banking,
                   131 Nev. at      , 347 P.3d at 1041-42; Key Bank, 106 Nev. at 52-53, 787 P.2d
                   at 384-85. In this opinion we clarify that, if a party seeks to apply another
                   jurisdiction's antideficiency statute to a Nevada deficiency action, and the
                   courts of that jurisdiction have addressed the statute's extraterritorial
                   application, we will follow that jurisdiction's determination regarding this
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                   issue rather than independently construe the antideficiency statute to
                   assess whether it can be applied extraterritorially. Here, because the Utah
                   Supreme Court has already determined that Utah's antideficiency statute
                   does not apply extraterritorially, that decision controls our resolution of this
                   issue. As a result, we conclude the district court properly denied petitioners'
                   motion to dismiss and we therefore deny the petition.
                                     FACTS AND PROCEDURAL HISTORY
                                In 2002, real party in interest America First Federal Credit
                   Union (America First) loaned petitioners Franco Soro, Myra Taigman-
                   Farrell, Isaac Farrell, Kathy Arrington, and Audie Embestro (collectively
                   Soro) $2.9 million for the purchase of a mini-mart business. The loan was
                   secured by real property in Mesquite, Nevada. The promissory note
                   specified that Utah law governed the agreement and related loan
                   documents.
                                Soro defaulted, and America First proceeded with a nonjudicial
                   foreclosure sale of the Mesquite property in accordance with Nevada law.
                   On October 4, 2012, America First purchased the Mesquite property at a
                   trustee's sale for a little over $1 2 million, resulting in a deficiency on the
                   loan balance of approximately $2.4 million, including interest and fees.
                                Six months after the foreclosure sale, America First filed a
                   deficiency action in Nevada under NRS 40.455(1). Soro then moved to
                   dismiss the action pursuant to NRCP 12(b)(1), arguing that the agreement's
                   forum selection clause divested Nevada of jurisdiction. The district court
                   agreed, but on appeal the Nevada Supreme Court reversed, concluding that
                   the forum selection clause was permissive and Nevada was a proper forum
                   for a deficiency action. See Am. First Fed. Credit Union v. Soro, 131 Nev.
                      , 359 P.3d 105 (2015).

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                                On remand, Soro filed another motion to dismiss, this time
                   under NRCP 12(b)(5), arguing America First's deficiency action was time-
                   barred by Utah's three-month statute of limitations. Critically, although
                   Nevada's antideficiency statute allows a party to bring a deficiency action
                   within six months of the property's foreclosure sale, Utah's antideficiency
                   statute imposes a three-month statute of limitations.       See NRS 40.455(1);
                   Utah Code Ann § 57-1-32 (LexisNexis 2010). The district court concluded
                   that Utah's antideficiency statute does not apply extraterritorially and
                   denied the motion. Thereafter, Soro petitioned for a writ of mandamus
                   and/or prohibition seeking to overturn the denial of the motion to dismiss.
                                                    ANALYSIS
                                In the petition, Soro contends that the district court should
                   have dismissed the deficiency action because the complaint is time-barred
                   by Utah's antideficiency statute. Specifically, Soro asserts that, under Key
                   Bank and Mardian, the parties' choice-of-law provision in the promissory
                   note requires the district court to apply Utah law, and consequently,
                   America First was required to bring the deficiency action within three
                   months of the foreclosure sale pursuant to Utah Code Ann § 57-1-32
                   (LexisNexis 2010). Soro further contends that the district court erred by
                   concluding that Utah Code Ann. § 57-1-32 (LexisNexis 2010) does not apply
                   extraterritorially because, under Key Bank and Branch Banking, the Utah
                   statute is illustrative, not exclusive. America First counters that Mardian
                   and Branch Banking are inapposite and that, under Key Bank, Utah's
                   antideficiency statute does not apply extraterritorially.
                   Propriety of writ relief
                               We first consider whether the petition for writ relief is proper.
                   The grant of a writ petition is extraordinary relief that is rarely warranted,
                   and, for reasons ofjudicial economy, we do not often entertain writ petitions
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                   challenging the denial of a motion to dismiss. See Smith v. Eighth Judicial
                   Dist. Court, 113 Nev. 1343, 1344-45, 950 P.2d 280, 281 (1997).
                   Nevertheless, we may exercise our discretion to consider petitions in cases
                   where "an important issue of law needs clarification and considerations of
                   sound judicial economy and administration militate in favor of granting the
                   petition." State, Office of the Attorney Gen. v. Eighth Judicial Dist. Court
                   (Anzalone), 118 Nev. 140, 147, 42 P.3d 233, 238 (2002).
                               Key Bank, Branch Banking, and Mardian address the effect of
                   a valid choice-of-law provision on a deficiency action and set forth a
                   framework for analyzing the antideficiency statute from the chosen
                   jurisdiction to determine whether it can apply extraterritorially. This case,
                   however, presents a new situation because the Utah Supreme Court has
                   already analyzed the extraterritorial application of the antideficiency
                   statute at issue here, Utah Code Ann. § 57-1-32 (LexisNexis 2010), in
                   Bullington v. Mize, 478 P.2d 500 (Utah 1970). Our supreme court has not
                   addressed whether Nevada courts, in determining the extraterritorial reach
                   of another state's antideficiency statute, must follow that jurisdiction's
                   dispositive caselaw. We therefore exercise our discretion to address the
                   petition and clarify this point in Nevada law. See Anzalone, 118 Nev. at
                   147, 42 P.3d at 238. We review de novo the district court's decision. See
                   Buzz Stew, LLC v. City of N. Las Vegas,     124 Nev. 224, 228, 181 P.3d 670,
                   672 (2008) (addressing questions of law de novo); see also Parametric Sound
                   Corp. v. Eighth Judicial Dist. Court, 133 Nev. „ 401 P.3d 1100, 1104
                   (2017) (reviewing a question of law de novo in the context of a writ petition).
                   Whether Utah's antideficiency statute applies
                               The question before this court is whether Utah Code Ann.
                   § 57-1-32 (LexisNexis 2010) applies to bar America First's deficiency action.

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                   Although Soro frames this issue as a conflict-of-laws question, contending
                   that the parties' choice-of-law provision requires this court to apply Utah
                   Code Ann. § 57-1-32 (LexisNexis 2010), 1 this argument bypasses the
                   underlying question of whether that statute can project extraterritorially.
                   See Key Bank, 106 Nev. at 52-53, 787 P.2d at 384-85 (considering whether
                   Alaska's antideficiency statute applied to a Nevada deficiency action where
                   Alaska law otherwise governed the lawsuit). In short, if Utah's statute
                   cannot apply extraterritorially, then there is no conflict of law.
                               We begin our analysis by reviewing the three cases upon which
                   Soro and America First rely: Key Bank, Branch Banking, and Mardian. In
                   Key Bank, the parties contracted for a loan secured by a deed of trust on
                   real property in Nevada. Id. at 51, 787 P.2d at 383. Under a choice-of-law
                   provision contained in the promissory note, Alaska law governed the debt
                   memorialized in that document.        See id. at 52, 787 P.2d at 384. The
                   borrowers in Key Bank defaulted, and the lender foreclosed on the property
                   and later sued in Nevada to recover the deficiency. See id. at 51, 787 P.2d
                   at 383. The parties disputed whether Alaska's antideficiency statute
                   applied in light of their choice-of-law provision. Id. at 52, 787 P.2d at 384.
                   The Nevada Supreme Court determined that Alaska law governed the
                   action pursuant to the parties' choice-of-law provision, but ultimately
                   concluded Alaska's antideficiency statute did not apply extraterritorially to
                   bar the action. Id. at 52-53, 787 P.2d at 384-85. In reaching this decision,
                   the court scrutinized the statute's structure and language and determined


                         While America First disputes whether the Utah statute has
                   extraterritorial reach, it does not dispute the enforceability of the
                   underlying choice-of-law provision.


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                   that the statute showed "a clear intent to limit the effect of the statute to
                   foreclosures" within Alaska. 2 Id. at 53, 787 P.2d at 384-85. Thus, under
                   Key Bank, the parties' valid choice-of-law provision will control, but, before
                   applying the chosen jurisdiction's antideficiency statute to a Nevada
                   deficiency action, the court must determine whether that statute, by its
                   terms, can apply extraterritorially.
                               While Key Bank dealt with the extraterritorial application of
                   another state's antideficiency statute to a Nevada deficiency action
                   involving Nevada real property, Branch Banking and Mardian dealt with
                   the application of Nevada's antideficiency statute, NRS 40.455, to Nevada
                   deficiency actions where the foreclosure took place in another state. In
                   these latter cases, the parties secured their loans with real property outside
                   Nevada. Mardian, 131 Nev. at           , 359 P.3d at 110; Branch Banking, 131
                   Nev. at         347 P.3d at 1039. The parties in Branch Banking agreed
                   Nevada law would govern the note, but Nevada and Texas would both have
                   jurisdiction in the event of a future dispute, 131 Nev. at „ 347 P.3d
                   at 1039, 1042, whereas in Mardian the parties' agreement included a
                   Nevada choice-of-law provision, 131 Nev. at , 359 P.3d at 110. In each
                   case, the borrower defaulted and the lender sued the borrower in Nevada to
                   recover for a deficiency following the property's foreclosure sale. Mardian,
                   131 Nev. at , 359 P.3d at 110-11; Branch Banking, 131 Nev. at 347
                   P.3d at 1039.




                         2The court based its decision on the antideficiency statute's use of
                   offsetting commas to highlight other Alaskan statutes, including a statute
                   that expressly referenced deed of trust conveyances of property located
                   specifically in Alaska. Id. at 52-53, 787 P.2d at 384-85.
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                               Branch Banking         scrutinized NRS 40.455, Nevada's
                   antideficiency statute, which at that time allowed for a deficiency judgment
                   "within 6 months after the date of the foreclosure sale or the trustee's sale
                   held pursuant to NRS 107.080." 131 Nev. at , 347 P.3d at 1040. The
                   court considered whether this statute allowed a deficiency action to proceed
                   in Nevada where the lender foreclosed on property located in another state
                   and consequently did not foreclose "pursuant to NRS 107.080." Id. at ,
                   347 P.3d at 1039. After examining the structure of the statute and its
                   context in the statutory scheme, the court concluded the statute did not bar
                   the Nevada deficiency action.     See id. at , 347 P.3d at 1041-42. In
                   particular, the court reasoned that NRS 40.455(1) did not specifically
                   address nonjudicial foreclosure sales involving property within another
                   state, and Nevada's statutory scheme contemplates a party's ability to
                   foreclose on property located in another state and thereafter bring a
                   deficiency action in Nevada. See id. at , 347 P.3d at 1041. Thus, Branch
                   Banking provides additional framework for interpreting an antideficiency
                   statute to determine whether it will bar a deficiency action.
                               In Mardian, the supreme court considered the effect of the
                   parties' choice-of-law provision and thereafter determined whether the
                   deficiency action was time-barred by Nevada's antideficiency statute. 131
                   Nev. at , 359 P.3d at 111-12. The court in Mardian applied Key Bank to
                   conclude that the parties' choice-of-law provision controlled and extended
                   Key Bank's holding to statutory limitations periods, thus requiring the
                   parties to abide by the limitations period set forth in Nevada's
                   antideficiency statute. Id. at ,359 P.3d at 111. The court next addressed
                   whether Nevada's antideficiency statute barred the action where the
                   subject property was outside the forum and the lender did not follow

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                   Nevada's foreclosure procedures. Id. at       , 359 P.3d at 111-12. Citing to
                   Branch Banking, and without interpreting Nevada's antideficiency statute,
                   the court in Mardian concluded that the lender's foreclosure in another
                   state pursuant to that state's foreclosure rules did not bar the action.   Id. at
                   , 359 P.3d at 112. But citing to Nevada law addressing NRS 40.455's
                   statute of limitations, the court ultimately concluded that the lender's
                   failure to apply for a deficiency judgment within the statutory limitations
                   period barred the action. Id. at , 359 P.3d at 112-13. Thus, Mardian
                   reinforces that parties in a deficiency action are generally bound by their
                   choice-of-law provision. 3
                                In sum, under Key Bank, Branch Banking, and Mardian, the
                   court presiding over a deficiency action must first determine whether the
                   parties have an enforceable choice-of-law provision and, if so, thereafter
                   determine whether the chosen jurisdiction's antideficiency statute can
                   apply extraterritorially. On the second step, Key Bank and Branch Banking
                   provide a framework for analyzing the statute's structure, language, and
                   context to make that detei mination. But these cases do not address
                   whether, before analyzing another state's antideficiency statute, Nevada
                   courts must first consider whether the chosen jurisdiction's courts have
                   already determined the statute's extraterritorial reach and, if so, apply that
                   ruling.
                                In considering this question, we again turn to Mardian. There,
                   the Nevada Supreme Court, in addressing whether Arizona or Nevada law
                   applied, held "that because of the choice-of-law provision, Nevada law-


                         3 We  have considered the arguments asserting that Mardian is
                   inapplicable in the present case and reject those arguments as without
                   merit in accordance with our decision.
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                   particularly Nevada's limitations period, see NRS 40.455(1)—applie[d] in
                   thlat] case." Mardian, 131 Nev. at ,359 P.3d at 111. And as detailed
                   above, in determining whether the lender timely applied for a deficiency
                   judgment, the court considered Nevada caselaw construing the applicable
                   statute of limitations. See id. at , 359 P.3d at 112-13. Thus, Mardian
                   demonstrates that, when parties in a deficiency action have a valid choice-
                   of-law provision, their chosen state's antideficiency statutes, as well as its
                   caselaw interpreting those statutes, will control the action. This
                   implication is echoed in other Nevada cases where our supreme court has
                   applied another state's caselaw based on a choice-of-law provision.        See
                   Pentax Corp. v. Boyd, 111 Nev. 1296, 1299-1301, 904 P.2d 1024, 1026-28
                   (1995) (applying Colorado's statutes and caselaw pursuant to a choice-of-
                   law provision); Tipton v. Heeren, 109 Nev. 920, 922 n.3, 923-24, 859 P.2d
                   465, 466 n.3, 466-67 (1993) (concluding that a Wyoming choice-of-law
                   provision controls, and considering Wyoming caselaw in construing
                   Wyoming's statutes). In the present context, we therefore hold that if the
                   parties have a valid choice-of-law provision, and the controlling state's
                   courts have addressed whether that state's antideficiency statute projects
                   extraterritorially, we will adhere to that caselaw and not independently
                   interpret the statute.
                               Here, the parties agree their choice-of-law provision is valid,
                   and we therefore conclude Utah law governs the deficiency action. Thus,
                   we must next determine whether Utah Code Ann. § 57-1-32 (LexisNexis
                   2010), Utah's antideficiency statute, may apply extraterritorially to a
                   deficiency action in Nevada. That statute states, in relevant part, that "[alt
                   any time within three months after any sale of property under a trust deed
                   as provided in [Utah Code Ann. §§l 57-1-23, 57-1-24, and 57-1-27

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                   [(LexisNexis 2010)1, an action may be commenced to recover the balance
                   due." The parties expend significant energy applying the analyses of the
                   statutes at issue in Key Bank and Branch Banking to Utah Code Ann. § 57-
                   1-32 (LexisNexis 2010) to argue whether that statute is illustrative or
                   exclusive. However, in Buffington, 478 P.2d 500, the Utah Supreme Court
                   previously addressed whether this statute applies extraterritorially, and we
                   need not embark upon an exhaustive analysis of the statute under the
                   framework set forth in Key Bank and Branch Banking if Buffington is
                   determinative here.
                               In Buffington, the Utah Supreme Court considered whether
                   Texas or Utah law applied to a deficiency action. 478 P.2d at 501. There,
                   the borrower secured a deed of trust with real property in Texas. Id. After
                   the borrower defaulted, the lenders foreclosed on the property, purchased it
                   for $25,000, and sued in Utah to recover the unpaid balance. Id. at 500-01.
                   The borrower argued the purchase price was unconscionably low; but while
                   Utah law took into account the property's fair market value in a deficiency
                   action, Texas law did not. Id. at 501-02. In determining the underlying
                   conflict of law question, the Utah Supreme Court addressed the 1953
                   version of Utah Code Ann. § 57-1-32 as a whole and considered whether "the
                   language of [that statute] express [es] a legislative intent to extend its
                   protection to all debtors whose obligations are secured by trust deeds,
                   regardless of the situs of the land." Id. at 503. Noting that the statute's
                   language "refers solely to the sale of property situated within Utah," the
                   Utah Supreme Court concluded "the entire statutory scheme concerning
                   trust deeds. . . could not have any extra-territorial effect," and, therefore,
                   the court held "the statutory protection extended solely to debtors whose
                   obligations were secured by trust deeds on land in Utah." Id.

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                               As the relevant portion of Utah Code Ann. § 57-1-32 (LexisNexis
                   2010) has remained substantively unchanged since Bullington                 was
                   decided,4 we conclude that Bullington's analysis still applies. And although
                   Bullington concerned fair market value rather than the limitations period,
                   the Utah Supreme Court addressed the statute as a whole and concluded
                   that "the entire statutory scheme" does not have extraterritorial effect. 478
                   P.2d at 503. Thus, while Bullington did not specifically address the choice-
                   of-law issue presented here, that difference does not change our analysis.
                   Indeed, our application of Bullington to this matter is consistent with


                         4VVhen   Bullington was decided, the statute in relevant part read:

                                      At any time within three months after any
                               sale of property under a trust deed, as hereinabove
                               provided, an action may be commenced to recover
                               the balance due upon the obligation for which the
                               trust deed was given as security. . . .
                   Bullington, 478 P.2d at 503 (quoting former Utah Code Ann § 57-1-32
                   (1953)). In comparison, Utah Code Ann. § 57-1-32 (LexisNexis 2010) now
                   reads, in relevant part:

                                     At any time within three months after any
                               sale of property under a trust deed as provided in
                               Sections 57-1-23, 57-1-24, and 57-1-27, an action
                               may be commenced to recover the balance due upon
                               the obligation for which the trust deed was given as
                               security. . . .
                   (Emphasis added.)
                          We have carefully reviewed the referenced statutes and their
                   revisions since Bulling-ton, and note those statutes still demonstrate the
                   requirement of a substantial connection to Utah. Therefore, in the absence
                   of any clear change in the statutory scheme or a pronouncement from the
                   Utah Supreme Court indicating the law on this point has changed,
                   Bullington remains in force and guides the outcome here pursuant to the
                   parties' choice-of-law provision.
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                   Utah's long-standing presumption against giving its statutes
                   extraterritorial effect absent clear language requiring a contrary result. See
                   Nevares v. M.L.S., 345 P.3d 719, 727 (Utah 2015) (explaining that, under
                   Utah law, "unless a statute gives a clear indication of an extraterritorial
                   application, it has none" (internal quotation marks omitted)).
                               Because Utah's Supreme Court has decided Utah Code Ann.
                   § 57-1-32 (LexisNexis 2010) does not project itself extraterritorially, we
                   follow that precedent and do not independently construe the statute. The
                   foreclosed-upon property was located in Nevada, not Utah, and pursuant to
                   Bullington, Utah Code Ann. § 57-1-32 (LexisNexis 2010) does not apply.
                   Bullington, 478 P.2d at 503. Accordingly, America First was not barred by
                   Utah's three-month statute of limitations and timely filed its deficiency
                   action in Nevada within the controlling six-month limitations period. We
                   therefore conclude the district court correctly denied Soro's motion to
                   dismiss, as America First timely filed suit in this case.
                                                  CONCLUSION
                               When a party seeks to apply another state's antideficiency
                   statute to a Nevada deficiency action pursuant to a valid choice-of-law
                   provision, the Nevada court must first look to the chosen jurisdiction's
                   caselaw before independently construing the statute. If the courts of the
                   chosen jurisdiction have already determined whether the statute projects
                   extraterritorially, the Nevada court must apply that law. Under Utah law,
                   Utah Code Ann. § 57-1-32 (LexisNexis 2010) does not apply
                   extraterritorially and, therefore, does not bar the underlying action.




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                   Accordingly, the district court properly denied the motion to dismiss and, as
                   a result, we deny this petition. 5



                                                           Lit)                        C.J.
                                                         Silver


                   We concur:


                                                    J.
                   Tao



                   Gibbons




                         5 111light of this opinion, we vacate the stay imposed on the district
                   court proceedings in this matter, Eighth Judicial District Court Case No.
                   A-13-679511-C, by our April 6,2017, order.
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