                  The Fair Value Defenses Codified at NRS 40.459(1) Do Not Apply to the
                  Sextons
                              NRS 40.459(1)'s fair value defenses do not apply directly to
                  guarantors; instead, NRS 40.495(3) allows guarantors to invoke NRS
                  40.459(1)'s fair value defenses if "the obligee maintains an action to
                  foreclose or otherwise enforce a mortgage or lien." NRS 40.495(3); see Lavi
                  v. Eighth Judicial Dist. Court, 130 Nev., Adv. Op. 38, 325 P.3d 1265, 1268
                  (2014). NRS 40.495(3)'s language is ambiguous because foreclosure is a
                  multi-step process, and two or more reasonably-informed people could
                  reach different conclusions about when an "obligee maintains an action to
                  foreclose or otherwise enforce a mortgage or lien." NRS 40.495(3); see D.R.
                  Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 476, 168 P.3d
                  731, 737-38 (2007). Therefore, we must look beyond NRS 40.495(3)'s plain
                  language to determine when guarantors can invoke NRS 40.459(1)'s fair
                  value defenses.
                              First, our precedent shows NRS 40.495(3) only allows
                  guarantors to invoke the anti-deficiency defenses codified between NRS
                  40.451 and 40.4639 after the actual sale of secured property.    Lavi, 130
                  Nev., Adv. Op. 38, 325 P.3d at 1268. Second, "[i]n determining what the
                  Legislature intended, the title of the statute may be considered in
                  construing the statute." Minor Girl v. Clark Cnty. Juvenile Court Servs.,
                  87 Nev. 544, 548, 490 P.2d 1248, 1250 (1971). NRS 40.495(3) incorporates
                  NRS 40.451 to 40.4639 which have two sub-chapter headings: "Foreclosure
                  Sales and Deficiency Judgments" and "Actions by Holders of Junior Real
                  Mortgages After Foreclosure Sales."      See NRS Chapter 40. Therefore,
                  NRS 40.495(3) incorporates statutes that explain what happens after
                  secured property is sold. Third, the fair value defenses codified at NRS
                  40.459(1) presume the secured property has been sold, requiring the
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                   district court to consider the property's actual sale price and set the
                   property's fair market value "as of the date of foreclosure sale or trustee's
                   sale." NRS 40.457; NRS 40.459(1). Fourth, the relevant legislative
                   histories show the actual sale of secured property triggers NRS 40.495(3).
                   Legislative counsel and banking interests believed NRS 40.495(3) would
                   allow guarantors to invoke NRS 40.459(1)'s fair value defenses once a
                   foreclosure occurred. See Hearing on A.B. 557 Before the Senate Judiciary
                   Comm., 65th Leg. 12 (Nev., June 9, 1989) (statement by Ms. Stern, Legal
                   Counsel); see also Hearing on A.B. 557 Before the Assembly Judiciary
                   Comm., 65th Leg. 14-15 (Nev., June 16, 1989). Further, NRS 40.495(4)
                   was intended to close "a loophole in the law that allows the bank to file a
                   suit [against a guarantor] but not take the property when the loan is
                   secured by the property."      Hearing on A.B. 273 Before the Assembly
                   Commerce & Labor Comm., 76th Leg. 5 (Nev., Mar. 23, 2011) (statement
                   by Assemblyman Marcus Conklin). That loophole only exists, and NRS
                   40.495(4) is only necessary, if NRS 40.495(3) merely protects guarantors
                   after a foreclosure sale. Therefore, the Legislature apparently viewed
                   NRS 40.495(3) and (4) as companions; NRS 40.495(3) provides fair market
                   value defenses after foreclosure sale, and NRS 40.495(4) provides the
                   same protections before any foreclosure.
                               Although NRS 40.495(3) is ambiguous, we conclude it does not
                   allow guarantors to invoke the fair value defenses codified at NRS
                   40.459(1) until an actual foreclosure sale has occurred. Because no sale
                   has occurred here, NRS 40.495(3) cannot apply to the Sextons, and they
                   cannot enjoy the fair value defenses codified at NRS 40.459(1). As such,
                   the Sextons can only invoke a fair value defense to the deficiency
                   judgment against them if NRS 40.495(4) applies.

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                 The Fair Value Defenses Codified at NRS 40.495(4) Do Not Apply to the
                 Sextons
                             AB 273 (codified at NRS 40.495(4)) applies to guarantor
                 actions "commenced on or after the effective date of this act," 2011 Nev.
                 Stat., ch. 311, § 6(3), at 1748, and became effective upon passage and
                 approval, 2011 Nev. Stat., ch. 311, § 7, at 1748. The Governor signed AB
                 273 on June 10, 2011, at 3:00 p.m., as required by the Nevada
                 Constitution and AB 273's enacting provision. Nev. Const. art. IV § 35;
                 2011 Nev. Stat., ch. 311, § 7, at 1748. Wells Fargo filed its complaint
                 several hours earlier that same day. Therefore, NRS 40.495(4) was not an
                 effective law when Wells Fargo filed its complaint, and it cannot apply to
                 the Sextons unless the Legislature intended for NRS 40.495(4) to apply
                 retroactively.
                              "Whether applying a statute in a particular instance
                 constitutes retroactive operation is a question of law that we review de
                 novo."   Sandpointe Apts., LLC v. Eighth Judicial Dist. Court,     129 Nev.,
                 Adv. Op. 87, 313 P.3d 849, 853 (2013). NRS 40.495(4)'s enactment
                 provisions expressly state that it can only apply to breach of guaranty
                 claims filed on or after June 10, 2011. 2011 Nev. Stat., ch. 311, §§ 6(3), 7,
                 at 1748. The Sextons argue the Legislature intended for NRS 40.495(4) to
                 be retroactive as to any claims filed on June 10, 2011, in the hours before
                 the governor signed the bill because the enacting provision expressly
                 states that NRS 40.495(4) applies to any claims "commenced on or after
                 the effective date of this act." 2011 Nev. Stat., ch. 311, § 6(3), at 1748
                 (emphasis added). However, § 7 of AB 273 only made the act effective
                 upon the Governor's approval. 2011 Nev. Stat., ch. 311, § 7, at 1748.
                 Therefore, we reject the Sextons' argument because following the plain
                 language here would violate the Legislature's clear intent to avoid any
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                       retroactive application.   McKay v. Bd. of Supervisors of Carson City,   102
                       Nev. 644, 648, 730 P.2d 438, 441 (1986) ("[W]ords in a statute should be
                       given their plain meaning unless this violates the spirit of the act."); see
                       also Sandpointe Apts., 129 Nev., Adv. Op. 87, 313 P.3d at 858-59 (AB 273
                       was not intended to be retroactive and the language in its enactment
                       provision does not permit retroactive application).
                                   The Sextons cannot invoke the fair value defenses codified at
                       NRS 40.459(1) because NRS 40.495(3) only allows guarantors to invoke
                       those defenses after the secured property is sold. Similarly, the Sextons
                       cannot invoke the fair value defenses from NRS 40.495(4) because
                       applying it here would require an impermissible and unintended
                       retroactive application. Accordingly, we
                                   ORDER the judgment of the district court AFFIRMED.



                                                           Parraguirre

                                                        'Dot.it,                          J.




                                                                                          J.




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                cc: Hon. Scott N. Freeman, District Judge
                     Wm. Patterson Cashill, Settlement Judge
                     Gunderson Law Firm
                     McDonald Carano Wilson LLP/Reno
                     Washoe District Court Clerk




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                 HARDESTY, C.J., with whom SAITTA, J., agrees, concurring in part and
                 dissenting in part:
                              While I concur with the majority's conclusion that NRS
                 40.495(1) does not apply to the Sextons, I respectfully disagree with the
                 majority's analysis and determination that NRS 40.495(4) was not an
                 effective law when Wells Fargo filed its complaint on the morning of June
                 10, 2011. The majority concludes that there is an issue of retroactivity
                 here and that the law did not become effective until 3:00 p.m. on June 10,
                 2011, when the Governor signed AB 273. However, the plain language of
                 the statute and the legislative history indicate that there is no
                 retroactivity issue and that AB 273 became effective at midnight on June
                 10, 2011, not beginning at 3:00 pm when the Governor signed the bill.
                              First, NRS 40.495(4)'s enactment provision expressly states
                 that it applies to any breach of guaranty claims "commenced on or after the
                 effective date of this act." 2011 Nev. Stat., ch. 311, § 6(3), at 1748
                 (emphasis added). The "effective date" in this case is June 10, 2011, which
                 begins at 12:00:00 am and ends at 11:59:59 pm. Thus, the plain language
                 of the statute's own enactment terms dictates that A.B. 273 became
                 effective for the entirety of June 10, 2011, and not at the specific time the
                 Governor signed the bill.
                              Second, the legislative history here demonstrates that there is
                 no retroactivity issue. Specifically, Assemblyman Conklin overtly stated
                 that "[t]here is no retroactivity in this bill. It is simply all future action."
                 Hearing on A.B. 273 Before the Assembly Commerce & Labor Comm., 76th
                 Leg. 12 (Nev., Mar. 28, 2011) (statement by Assemblyman Marcus
                 Conklin). Taken together with the plain language of the bill's enactment



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                  provision, there can be no question but that the bill was meant to take
                  effect for the entirety of June 10, 2011.
                              Moreover, the legislative history reveals that the Legislature
                  wanted to make it difficult for creditors to do exactly what Wells Fargo
                  did, while also ensuring that NRS 40.495(4) did not affect already filed
                  claims. Originally, all of AB 273 would become effective on July 1, 2011.
                  A.B. 273, § 7, 76th Leg. (Nev., Mar. 15, 2011) (as introduced). However,
                  explicit concerns were raised that by making NRS 40.495(4) effective on a
                  set date it would encourage creditors to rush and file suits against
                  guarantors in an effort to avoid the new guarantor protections.    Hearing
                  on A.B. 273 Before the Assembly Commerce & Labor Comm.,        76th Leg. 12
                  (Nev., Mar. 28, 2011) (statement by Assemblyman Marcus Conklin). If the
                  Governor signed AB 273 in April, but NRS 40.495(4) did not take effect
                  until July 1, 2011, creditors could use the intervening months filing suit
                  against guarantors to avoid the new protections.        Id.   As such, the
                  Legislature foresaw the possibility that creditors would do exactly what
                  Wells Fargo has done here: rush to file a suit against a guarantor to avoid
                  the application of NRS 40.495(4).
                              The Legislature responded to these two concerns by making
                  NRS 40.495(4) applicable only to an action against a
                  guarantor.... commenced on or after the effective date of this act." 2011
                  Nev. Stat., ch. 311, § 6(3), at 1748 (emphasis added). That is, MRS
                  40.495(4) became operative upon passage and approval by the Governor
                  for any claims "commenced on or after" June 10, 2011, regardless of the
                  specific hour that the Governor signed the bill.




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                             Therefore, because I concur in part, and dissent in part, I
                 would reverse and remand this case to the district court to determine the
                 fair value defenses created by NRS 40.495(4).




                                                                                  CA.
                                                     Hardesty


                 I concur:


                                                J.
                 Saitta




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