                           IN THE SUPREME COURT OF THE STATE OF NEVADA


                   IN RE: JEFFREY J. SWAN AND                               No. 64808
                   MAUREEN A. SWAN

                   SIERRA MEDICAL SERVICES, LLC,                             FILED
                   Appellant,
                   vs.                                                       JAN 1 2 2016
                   YVETTE WEINSTEIN, CHAPTER 7
                   TRUSTEE,
                   Respondent.

                           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.

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                    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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