                                 On an unspecified date in 2010, the Hineses' attorney
                     purportedly called Wells Fargo or NDSC and expressed a desire to
                     mediate the foreclosure. In February 2010, NDSC submitted an affidavit
                     to the Foreclosure Mediation Program (FMP) administrator stating that
                     the Hineses had failed to return the form upon which they were to elect or
                     waive participation in the FMP. An FMP certificate authorizing a
                     foreclosure sale was issued. NDSC then recorded a notice of a trustee's
                     sale, and the Hineses' house was sold at a trustee's sale.
                                 The Hineses filed a complaint against NDSC and Wells Fargo
                     alleging multiple claims, including wrongful foreclosure and fraud claims.
                     Wells Fargo filed a motion to compel the production of documents, which
                     the Hineses did not oppose. The district court then granted Wells Fargo's
                     motion to compel.
                                 The district court subsequently granted summary judgment to
                     Wells Fargo and NDSC. It also ordered the Hineses to pay $1,500 to Wells
                     Fargo for its expenses relating to the motion to compel because the district
                     court found that the Hineses had failed to respond to the motion to compel
                     or to produce the requested discovery after the motion to compel was
                     granted. After the district court issued its order, the Hineses filed a
                     motion to reconsider, which the district court denied.
                                 The Hineses now appeal and raise the following issues: (1)
                     whether the district court erred by granting summary judgment against
                     the Hineses on their wrongful foreclosure claim, (2) whether the district
                     court erred by granting summary judgment against the Hineses on their
                     fraud claim, and (3) whether the district court abused its discretion by




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                ordering the Hineses to pay Wells Fargo's expenses relating to the motion
                to compel.'
                Standard of review
                               We review de novo a district court order granting summary
                judgment, Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
                (2005), and will affirm a district court order reaching a correct result for
                the wrong reason. See Holcomb v. Ga. Pac., LLC, 128 Nev., Adv. Op. 56,
                289 P.3d 188, 200 (2012).
                               We review a district court's discovery rulings, including an
                order imposing a discovery sanction, for an abuse of discretion.   Club Vista
                Fin, Servs., L.L.C. v. Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 21,
                276 P.3d 246, 249 (2012) (reviewing discovery decisions for an abuse of
                discretion); Foster v. Dingwall, 126 Nev. 56, 65, 227 P.3d 1042, 1048
                (2010) (reviewing the imposition of discovery sanctions for an abuse of
                discretion).




                       'NDSC argues that this court lacks jurisdiction to consider the
                Hineses' appeal because the Hineses did not timely file their notice of
                appeal after the district court entered its order granting summary
                judgment. Here, the Hineses' post-judgment motion to reconsider sought
                for the district court to alter or amend its judgment. Therefore, it was a
                motion made pursuant to NRCP 59(e), which tolled the deadline by which
                to file the notice of appeal. See NRAP 4(a)(4); AA Primo Builders, LLC v.
                 Washington, 126 Nev. 578, 585, 245 P.3d 1190, 1195 (2010). As a result,
                the Hineses' notice of appeal was timely. See NRAP 4(a)(4). Thus,
                NDSC's jurisdiction argument is without merit.

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                The district court did not err by granting summary judgment against the
                Hineses on their wrongful foreclosure claim
                              The Hineses argue that the district court erred by granting
                summary judgment against them on their wrongful foreclosure claim
                because there was a genuine issue of material fact as to whether the notice
                of rescission rescinded the 2009 Notice of Default. As part of this
                argument, they contend that the rule providing that an ambiguous
                contract be interpreted against its drafter applies to the notice of
                rescission.
                              Wells Fargo and NDSC argue that because the notice of
                recession's deficiencies make its meaning unascertainable, the notice of
                recession is without effect and does not rescind the 2009 Notice of Default.
                Alternatively, they contend that if the notice of rescission is to be given
                effect, extrinsic evidence should be relied upon to conclude that the notice
                of rescission only applies to the 2007 Notice of Default.
                              The Hineses' wrongful foreclosure claim may either be alleging
                a tort of wrongful foreclosure or a violation of NRS Chapter 107. Since we
                evaluate a claim by "look[ing] at the substance of the claim{ ], not just the
                labell I used in the . . . complaint," Nev. Power Co. v. Eighth Judicial Dist.
                Court, 120 Nev. 948, 960, 102 P.3d 578, 586 (2004), we address both
                versions of the claim here.
                      The district court did not err by granting summary judgment with
                      respect to the tort claim for wrongful foreclosure
                              To prevail on a wrongful foreclosure tort claim, a plaintiff
                must prove that the foreclosing party did not have a legal right to foreclose
                on the property.    Collins v. Union Fed. Say. & Loan Ass'n, 99 Nev. 284,
                304, 662 P.2d 610, 623 (1983). "Therefore, the material issue of fact in a
                wrongful foreclosure claim is whether the trustor was in default when the

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                   power of sale was exercised."      Id.       If the plaintiff does not or cannot
                   demonstrate that it was not in default, then it cannot prevail on a tort
                   claim for wrongful foreclosure.    See In re Mortg. Elec. Registration Sys.,
                   Inc., 754 F.3d 772, 785 (9th Cir. 2014).
                               Here, the Hineses fail to establish that they were not in
                   default Instead, the evidence in the record shows the opposite: the
                   Hineses were in default because they missed multiple payments that were
                   not subsequently made. Thus, the district court correctly granted
                   summary judgment to the extent that the Hineses' claim was for the tort
                   of wrongful foreclosure.
                         The district court did not err in granting summary judgment with
                         respect to the claim of a violation of NRS Chapter 107
                               When the grantor of a deed of trust defaults on the underlying
                   loan, the deed of trust beneficiary may pursue a nonjudicial foreclosure if
                   NRS Chapter 107's requirements are satisfied.          Edelstein v. Bank of N.Y.
                   Mellon, 128 Nev., Adv. Op. 48, 286 P.3d 249, 254-55 (2012). Of NRS
                   Chapter 107's requirements, those set out in NRS 107.080 (2010) and NRS
                   107.086 (2009)—statutes which were in force at the time of the foreclosure
                   and sale of the Hineses' house—are relevant to our analysis. 2
                               NRS 107.080 (2010) requires the trustee to provide two notices
                   before selling a property. First, the trustee must "execute[ ] and cause[ I
                   to be recorded . . . a notice of the breach and of the election to sell." NRS
                   107.080(2)(c) (2010). Second, the trustee must, no earlier than three

                         2Although  the Hineses alleged a violation of NRS 107.087 in their
                   complaint, they waived this issue by not addressing it in their appellate
                   briefs. See Powell v. Liberty Mut, Fire Ins. Co., 127 Nev. 156, 161 n.3, 252
                   P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's opening brief
                   are deemed waived.").

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                months after recording the notice of default, have a notice of sale recorded.
                NRS 107.080(4) (2010). If a trustee fails to substantially comply with NRS
                107.080's requirements, then the nonjudicial foreclosure sale may be
                voided. NRS 107.080(5) (2010); Edelstein, 128 Nev., Adv. Op. 48, 286 P.3d
                at 255.
                             NRS 107.086(2)(a)(3) (2009) requires a trustee seeking to
                complete a nonjudicial foreclosure• of an owner-occupied residence to
                provide the homeowner with a form upon which to elect or decline to
                participate in FMP mediation. If the homeowner waives mediation or fails
                to return the form, then the trustee is entitled to obtain an FMP certificate
                stating that no mediation is required. NRS 107.086(3).
                            After initiating a nonjudicial foreclosure proceeding, a trustee
                may 'rescind the process before its completion.        Holt w Reg'l Tr. Servs.
                Corp., 127 Nev., Adv. Op. 80, 266 P.3d 602, 606 (2011) (quoting Trident
                Gtr. v. Conn. Gen. Life Ins. Co., 847 F.2d 564, 567 (9th Cir. 1988)). Thus, a
                notice of rescission invalidates a notice of default and "renders moot
                disputes concerning the notice of default or its timing."    Id. As a result, a
                trustee who files a notice of rescission that operates against a notice of
                default must record a new notice of default in order to complete a
                nonjudicial foreclosure.   See Coley v. Accredited Home Lenders, Inc.,     No.
                4:10CV01870 JLH, 2011 WL 1193072, at *4 (E.D. Ark. Mar 29, 2011).
                            The notice of rescission should not be interpreted as if it were a
                            contract
                            The district court applied contract principles when
                interpreting the notice of rescission. Therefore, we first address whether
                the notice of rescission should be interpreted as if it were a contract.




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                                "Generally, the purpose of recording statutes is to provide
                    subsequent purchasers with knowledge concerning the state of title for
                    real property." State Dep't of Taxation v. Kawahara, 131 Nev., Adv. Op.
                    42, P.3d (June 25, 2015). Thus, a recorded document serves to
                    advise all persons of the contents of the document.    See 7912 Limbwood
                    Court Trust v. Wells Fargo Bank, N.A., 979 F. Supp. 2d 1142, 1152 (D.
                    Nev. 2013); see also In re Century Offshore Mgmt. Corp., 119 F.3d 409,413
                    (6th Cir. 1997) ("The purpose of the recording statutes at issue here is to
                    allow third parties to deal with immovable property without searching
                    beyond the public records."). The recording of a document constructively
                    "impart[s] notice to all persons of the contents thereof; and subsequent
                    purchasers and mortgagees shall be deemed to purchase and take with
                    notice." NRS 111.320. However, it does not impart constructive notice of
                    information not presented in the document.       See Kawahara, 131 Nev.,
                    Adv. Op. 42, P.3d at (holding that the recording of a tax lien does
                    not establish constructive notice of a mortgage lien even if the recording
                    •party desired to record a mortgage lien). Thus, a recorded document
                    serves to inform others about the information contained in the document
                    and makes third parties legally responsible for knowledge of its contents.
                                By contrast, "[a] contract is generally defined as a promise, or
                    a set of promises, actionable upon breach." Minster Farmers Coop. Exch.
                    Co. v. Meyer, 884 N.E.2d 1056, 1061 (Ohio 2008) (internal quotations
                    omitted). Thus, it governs a relationship between parties and generally
                    does not apply to uninvolved third parties. Because the notice of
                    rescission is a recorded notice which can apply to uninvolved third parties




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                 and does not memorialize an exchange of promises, contract principles are
                 inapplicable to its interpretation. 3
                              A recorded notice is to be interpreted on its face in conjunction
                              with other recorded documents to which it refers
                              Since a recorded notice is a legal document, its interpretation
                 is an issue of law. 4 See, e.g., Streck v. Bd. of Educ. of the E. Greenbush
                 Cent. Sch. Dist., 408 F. App'x 411, 414 (2d Cir. 2010) (holding that the
                 "[i]nterpretation of a legal document is [an issue] of law"); Sanders v. Dias,
                 947 A.2d 1026, 1031 (Conn. App. Ct. 2008) ("Intent as expressed in deeds
                 and other recorded documents is a matter of law." (emphasis added)
                 (internal quotations omitted)); Red Hill Outing Club u. Hammond, 722
                 A.2d 501, 504 (N.H. 1998) (holding that "[t]he construction of [a] deed[ ] is
                 an issue of law").
                              Although our caselaw has not addressed how to interpret a
                 notice of default or a notice of rescission, federal cases interpreting tax
                 liens provide meaningful guidance. A federal tax lien arises when the
                 Internal Revenue Service assesses a lien "upon all property and rights to
                 property, whether real or personal," of a person or entity who failed to pay
                 a tax demand. 26 U.S.C. § 6321 (2012). "The primary power of a tax
                 lien . . . lies not in its effect against the taxpayer, but in its priority vis-a-
                 vis other lienholders and subsequent purchasers." In re Crystal Cascades
                 Civil, LLC, 398 B.R. 23, 28 (Bankr. D. Nev. 2008), aff'd, 415 B.R. 403, 415


                       3 Therefore,  we necessarily reject the dissent's apparent reliance on
                 the contract law principle of interpreting ambiguous contracts against the
                 drafter because it is inapplicable to the present case.

                       4We  decline to adopt the dissent's novel and unsupported theory that
                 the interpretation of the present recorded notice is an issue of fact.

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                 (B.A.P. 9th Cir. 2009). Thus, a tax lien "is not valid until placed [in the]
                 public record."   United States v. Pioneer Am. Ins. Co., 374 U.S. 84, 88
                 (1963). If a tax lien fails to adequately identify the person or entity
                 against whom it is to operate, "[t]his defect is fatal [and] results in a
                 failure to provide even constructive notice." In re Focht, 243 B.R. 263, 266-
                 67 (W.D. Pa. 1999) (finding that the failure to identify an entity's co-owner
                 on a tax lien prevented the lien from operating against the co-owner). If,
                 however, an error or omission is minor and the true identity of the person
                 or entity subject to the lien is readily discernable, then an Internal
                 Revenue Service tax lien is valid. See In re Spearing Tool & Mfg. Co., 412
                 F.3d 653, 656 (6th Cir. 2005) (holding that a tax lien's identification of
                 "Spearing Tool and Manufacturing" as "Spearing Tool & Mfg." did not
                 prevent the lien from providing constructive notice).
                             Furthermore, federal courts have held that the notice that a
                 tax lien provides can include the content of recorded documents whose
                 connections to the tax lien are readily discoverable.    See Kiwi v. United
                 States, 878 F.2d 301, 304-05 (9th Cir. 1989) (holding•that a tax lien
                 naming "Bobbie Morgan Lane" was effective against a property held by
                 that person under the name "Bobbie M. Morgan" because the recorded
                 documents connected to the title of the property and to the tax lien
                 demonstrated that both names represented the same person). Thus,
                 federal caselaw establishes two principles that guide our interpretation of
                 the notice of rescission: (1) that a defect in a recorded notice that omits a
                 material term can prevent the notice from having a legal effect, and (2)
                 that a recorded notice may be interpreted by reference to other recorded
                 documents to which it refers.



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                              Here, the notice of rescission does not identify which notice of
                  default it was to rescind. Therefore, it does not establish on its face that it
                  rescinds the 2009 Notice of Default. Furthermore, the only recorded
                  document to which the notice of rescission refers is the Hineses' deed of
                  trust. Thus, the notice of rescission does not demonstrate by reference to
                  other recorded documents that it rescinds the 2009 Notice of Default.
                              Therefore, the notice of rescission does not rescind the 2009
                  Notice of Default. 5 Because the record does not show that the 2009 Notice
                  of Default had been rescinded, it does not suggest that NDSC or Wells
                  Fargo violated NRS 107.080 by foreclosing on the Hineses' property
                  without having a notice of default in force.
                              Furthermore, NDSC submitted a request• for an FMP
                  certificate in which it represented that the Hineses failed to submit the
                  form on which they were to elect or waive mediation. The record is devoid
                  of evidence suggesting that the Hineses returned the FMP enrollment
                  form to NDSC, Wells Fargo, or the FMP administrator. Therefore, the
                  undisputed material facts demonstrate that NDSC and Wells Fargo
                  complied with the applicable NRS 107.086 requirements.°              See MRS
                  107.086(2)-(3).


                        5 Sinceit does not affect our holding, we do not address whether the
                  notice of rescission made sufficient reference to recorded documents to
                  demonstrate that it rescinded the 2007 Notice of Default.

                        °Although the dissent identifies a potentially meritorious policy
                  concern about the potential for bad faith conduct when seeking an FMP
                  certificate, we decline to adopt its suggestion that NRS 107.086(6)'s
                  requirement for the beneficiary of a deed of trust to act in good faith at
                  mediation be extended to apply to the request for an FMP certificate
                  because NRS 107.086 does not impose such a requirement. See NRS
                  107.086(2)-(3); see also S. Nev. Homebuilders Ass'n v. Clark Cnty., 121
                                                                    continued on next page...
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                              Here, the district court granted summary judgment to Wells
                  Fargo and NDSC because it found that extrinsic evidence demonstrated
                  that the notice of rescission applied to the 2007 Notice of Default and not
                  the 2009 Notice of Default. Although the district court incorrectly applied
                  contract principles in its analysis, it correctly found that the notice of
                  rescission does not rescind the 2009 Notice of Default. Because the
                  district court reached the correct result, albeit for the wrong reason, it did
                  not err by granting summary judgment against the Hineses on their
                  wrongful foreclosure claim. See Holcomb v. Ga. Pac., LLC, 128 Nev., Adv.
                  Op. 56, 289 P.3d 188, 200 (2012).
                  The district court did not err by granting summary judgment against the
                  Hineses on their fraud or intentional misrepresentation claim
                              The Hineses argue that there is a genuine issue of material
                  fact as to whether Wells Fargo committed fraud when obtaining the FMP
                  certificate by making a false statement about the Hineses' desire to
                  mediate the foreclosure.
                              The first element of a fraud claim is that "the defendant made
                  a false representation that the defendant knew or believed was false."
                  Franchise Tax Bd. of Cal. v. Hyatt, 130 Nev., Adv. Op. 71, 335 P.3d 125,


                  ...continued
                  Nev. 446, 451, 117 P.3d 171, 174 (2005) (stating that "it is not the business
                  of this court to fill in alleged legislative omissions based on conjecture as
                  to what the legislature would or should have done" (internal quotations
                  omitted)). Therefore, whether NDSC and Wells Fargo acted in good faith
                  when requesting the FMP certificate after the Hineses failed to return the
                  form on which they were to elect or waive mediation is immaterial to this
                  issue and does not provide a basis to reverse the grant of summary
                  judgment. See Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026,
                   1031 (2005).

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                     144 (2014). "With respect to the false representation element, the
                     suppression or omission of a material fact which a party is bound in good
                     faith to disclose is equivalent to a false representation, since it constitutes
                     an indirect representation that such fact does not exist."       Nelson v. Heer,
                     123 Nev. 217, 225, 163 P.3d 420, 426 (2007) (internal quotations omitted).
                                 Here, NDSC submitted a request for an FMP certificate in
                     which it represented that the Hineses failed to return the FMP form on
                     which they were to elect or waive mediation. The record includes no
                     evidence suggesting that the Hineses did in fact return the FMP
                     enrollment form to NDSC, Wells Fargo, or the FMP administrator.
                     Therefore, the Hineses failed to proffer evidence to show that NDSC's
                     request for an FMP certificate contained an express misrepresentation.
                                 Instead of providing evidence to challenge the veracity of
                     NDSC's request for an FMP certificate, the Hineses proffered evidence
                     suggesting that their attorney orally told Wells Fargo that the Hineses
                     desired to mediate. NDSC did not reveal this purported conversation in
                     its request for an FMP certificate. However, the Hineses have not shown
                     that this evidence of NDSC's purported omission creates a genuine issue of
                     material fact for two reasons.
                                 First, the Hineses proffered no evidence or analysis to suggest
                     that NDSC or Wells Fargo had a duty to disclose this purported
                     conversation when requesting the FMP certificate. The FMP rules state
                     that a person whose house is subject to foreclosure "shall . . . complete the
                     IFMPI Enrollment Form and deliver it. . . to the [FM13 Administrator."
                                                                                  ]




                     FMR 8(2)(a) (emphasis added). The person seeking mediation "shall also
                     mail a copy of the Enrollment of Mediation to the trustee."         FMR 8(2)(b)
                     (emphasis added). If the person does not complete and return the form to

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                  the FMP administrator during this time period, the FMP 'shall . . issu[e]
                  a certificate stating no mediation is required, and that a foreclosure sale
                  may be noticed according to law." FMR 8(4) (emphasis added). Because
                  these FMP rules use the word "shall," they impose mandatory duties.     See
                  Pasillas v. HSBC Bank USA, 127 Nev., Adv. Op. 39, 255 P.3d 1281, 1285
                  (2011). Thus, the FMP rules require the FMP to issue a certificate stating
                  that mediation is not required if the homeowner fails to return the
                  mediation enrollment form.
                              Furthermore, the Hineses have provided no authority or
                  analysis to show that the FMP rules allow a person subject to foreclosure
                  to fulfill the duty to return an FMP enrollment form by orally expressing a
                  desire to mediate. Cf. FMR 8. Nor do they provide authority or analysis
                  to show that a lender has a duty to inform the FMP when the borrower
                  orally expresses an interest in mediation. Therefore, NDSC and Wells
                  Fargo did not have a duty to inform the FMP about the Hineses' attorney's
                  purported telephone call.
                              Second, the Hineses proffered no evidence or analysis to show
                  that NDSC's refusal to mention the Hineses' attorney's purported oral
                  statement made its representation that the Hineses failed to return the
                  FMP enrollment form false or misleading. The existence or nonexistence
                  of the Hineses' attorney's statement has no bearing on whether the
                  Hineses completed or submitted the FMP enrollment form. Therefore, the
                  Hineses failed to proffer evidence to show that NDSC's request for an FMP
                  certificate made a misrepresentation. As a result, we conclude that the




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                   district court did not err in granting summary judgment against the
                   Hineses on their fraud claim. 7
                   The district court did not abuse its discretion by ordering the Hineses to
                   pay Wells Fargo's expenses related to the motion to compel
                                The Hineses argue that the district court abused its discretion
                   in granting Wells Fargo's motion to compel because the Hineses
                   substantially complied with Wells Fargo's discovery requests and the
                   deficiencies in their responses were technical and not substantive.
                   Alternatively, the Hineses argue that if the district court properly granted
                   the motion to compel, an award of expenses to Wells Fargo was
                   unwarranted because Wells Fargo failed to make a good faith effort to
                   acquire the discovery from them before filing its motion to compel.
                         The district court did not abuse its discretion in granting Wells
                         Fargo's motion to compel
                                If a party does not file and serve a timely opposition to a
                   motion, this failure "may be construed as an admission that the motion is
                   meritorious and a consent to granting it."    Las Vegas Fetish & Fantasy
                   Halloween Ball, Inc. v. Ahern Rentals, Inc., 124 Nev. 272, 278, 182 P.3d
                   764, 768 (2008); see also King v. Cartlidge, 121 Nev. 926, 927, 124 P.3d
                   1161, 1162 (2005) (providing the same). Here, Wells Fargo filed a motion



                         7 To  the extent that the Hineses contend on appeal that their fraud
                   claim is based on something other than the statements made in NDSC's
                   request for an FMP certificate, they are arguing for a claim that they did
                   not make in their complaint. Therefore, we decline to consider this new
                   claim. See Laird v. State Pub. Emps. Ret. Bd., 98 Nev. 42,46, 639 P.2d
                   1171, 1173 (1982) (refusing to consider a claim made for the first time on
                   appeal); see also Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d
                   981, 983 (1981) (failure to properly raise a non-jurisdictional issue before
                   the district court waives the issue on appeal).

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                   to compel written discovery, which the Hineses did not oppose. Whether
                   the Hineses substantially complied with the discovery requests or made
                   only technical errors in their discovery responses does not alter the fact
                   that they failed to oppose the motion. Therefore, the district court acted
                   within its discretion in granting Wells Fargo's uncontested motion to
                   compel. See Las Vegas Fetish & Fantasy Halloween Ball, Inc., 124 Nev. at
                   278, 182 P.3d at 768.
                         The district court did not abuse its discretion by ordering the Hineses
                         to pay Wells Fargo's expenses relating to the motion to compel
                                NRCP 37(a)(4)(A) provides that "[i]f the motion [to compel] is
                   granted. . . , the court shall ... require the party or deponent whose
                   conduct necessitated the motion. . . to pay to the moving party the
                   reasonable expenses incurred in making the motion," unless an exception
                   enumerated in the rule applies. In a court rule, the term "shall" is
                   mandatory.    See State Emps. Ass'n, Inc. v. Daines,   108 Nev. 15, 19, 824
                   P.2d 276, 278 (1992) (holding that "in statutes, 'may' is permissive and
                   'shall' is mandatory unless the statute demands a different construction to
                   carry out the clear intent of the legislature"); see also Webb v. Clark Cnty.
                   Sch. Dist., 125 Nev. 611, 618, 218 P.3d 1239, 1244 (2009) (stating that "the
                   rules of statutory interpretation apply to Nevada's Rules of Civil
                   Procedure"). Thus, NRCP 37(a)(4)(A) requires the district court to award
                   expenses to a party who succeeds on its motion to compel discovery unless
                   an exception applies.
                                Here, the district court granted Wells Fargo's motion to
                   compel discovery. Therefore, NRCP 37(a)(4)(A) required the district court
                   to order the Hineses to pay Wells Fargo's expenses associated with the
                   motion to compel unless an exception applies.


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                                     On appeal, the Hineses contend that NRCP 37(a)(4)(A)'s
                       exception for when the movant fails to make a good faith effort to obtain
                       the discovery before filing the motion to compel precludes an award of
                       expenses. 8 However, they waived this argument by not raising it before
                       the district court. 8 See Old Aztec Mine, Inc. v. Brown,   97 Nev. 49, 52, 623
                       P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to
                       the jurisdiction of that court, is deemed to have been waived and will not
                       be considered on appeal."). Therefore, we conclude that the district court
                       did not abuse its discretion in awarding Wells Fargo's expenses.
                       Conclusion
                                     The district court did not err by granting summary judgment
                       against the Hineses on their wrongful foreclosure claim because the
                       Hineses failed to establish a genuine issue of material fact as to whether
                       they were in default on their loan or whether the notice of rescission
                       rescinds the 2009 Notice of Default. The district court did not err by
                       granting summary judgment against the Hineses on their fraud claim
                       because the Hineses failed to establish a• genuine issue of material fact as
                       to whether NDSC or Wells Fargo made a misrepresentation on the
                       application for the FMP certificate. Finally, the district court did not

                             8 TheHineses do not argue in their appellate briefing that NRCP
                       37(a)(4)(A)'s other exceptions apply. Therefore, they waive these issues on
                       appeal. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3,
                       252 P.3d 668, 672 n.3 (2011).

                             8 1fthe Hineses' appellate arguments about the technical deficiencies
                       and substantial compliance of their discovery responses are also intended
                       to be arguments against liability for Wells Fargo's expenses under NRCP
                       37(a)(4)(A), the Hineses waived these arguments by not making them with
                       regard to this issue before the district court. See Old Aztec Mine, 97 Nev.
                       at 52, 623 P.2d at 983.


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                 abuse its discretion in ordering the Hineses to pay Wells Fargo's expenses
                 related to the motion to compel because the Hineses did not file and serve •
                 a written opposition to the motion or demonstrate that an exception to
                 NRCP 37(a)(4)(A)'s imposition of liability for expenses applies. 10
                 Therefore, we
                               ORDER the judgment of the district court AFFIRMED.




                 PICKERING, J., concurring in part and dissenting in part:
                               The district court granted summary judgment against
                 borrowers Keith and Deena Hines on their chapter 107 claim. In my view,
                 genuine issues of material fact precluded summary judgment on that
                 claim. This lender, or its agent, recorded notices of default in 2007 and
                 2009 and a notice of rescission of notice of default in 2010. The 2010
                 notice of rescission did not specify whether it invalidated the 2007 notice
                 of default, the 2009 notice of default, or both. Adding to the confusion, the
                 lender and its agent spoke to the borrowers' attorney before recording the
                 notice of rescission and were told that the borrowers expected the lender to
                 restart foreclosure, whereupon the borrowers would elect mediation under

                       10 We have considered the parties' remaining arguments and
                 conclude that they are without merit.


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                        Nevada's foreclosure mediation program (FMP). Despite these events, the
                        lender went ahead with foreclosure based on the 2009 notice of default
                        and, to obtain the required certificate from the FMP administrator,
                        represented that the borrowers had not requested mediation, not
                        disclosing that the lender knew the borrowers expected a fresh notice of
                        default and had declared their intention, on receipt of such notice, to
                        demand mediation. Viewing these facts most favorably to the Hineses, as
                        the summary judgment context requires, I cannot say, as a matter of law,
                        that the lender: (1) substantially complied with NRS chapter 107, see NRS
                        107.080(5)(a); or (2) met the FMP's good faith requirement,          see NRS
                        107.086(6). For these reasons, while I join the decision affirming the
                        discovery sanctions imposed, I respectfully dissent from the majority's
                        affirmance of the district court's summary judgment in favor of the lender.
                                    The Hineses were represented by counsel during part of their
                        foreclosure and from the filing of their complaint up until the district court
                        denied the first motion for summary judgment. Their litigation counsel
                        withdrew, however, before Wells Fargo and NDSC renewed their motion
                        for summary judgment after the close of discovery. Nevertheless, in
                        opposing the renewed motion, the Hineses presented sufficient evidence to
                        show issues of fact prevented summary judgment on their chapter 107
                        claim. Their evidence showed that in December 2009 a Wells Fargo
                        representative called and informed them that their foreclosure "was to be
                        dismissed and procedures need to take place under [the] Hamp Bill."
                        After the Hineses learned that Wells Fargo had not halted foreclosure,
                        they contacted an attorney on January 20, 2010, who called Wells Fargo
                        and NDSC "and informed them that this was not in compliance with
                        Nevada Foreclosure Laws and needed[ ]to be cancelled and refil[ed] again

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                  [and] advised that once refil[ed] we would request mediation." The
                  Hineses' attorney told them to contact her once the new notice of default
                  was filed and they could begin the request for mediation. The next day,
                  January 21, NDSC recorded the notice of rescission.
                             But on February 1, 2010, NDSC altered course and proceeded
                  with the foreclosure, signing and submitting an affidavit to the FMP
                  seeking a foreclosure certificate on the grounds no mediation was required
                  because the Hineses had failed to return the form to elect or waive
                  mediation. In March 2010, Keith contacted Wells Fargo to inform it that
                  he had been having serious medical problems that required extensive
                  surgery and thus he could only make a half payment that month; the
                  Wells Fargo representative he spoke to told him to send in the
                  documentation demonstrating his medical hardships "and, as long as it's
                  curable, as long as we know it's a curable issue, we're going to work with
                  you." The Hineses then mailed in their partial $700 payment for that
                  month. In April 2010 NDSC received its certificate from the FMP
                  allowing it to proceed with the foreclosure sale, which occurred on August
                  3, 2010.
                              Summary judgment requires the reviewing court to consider
                  the evidence and all inferences fairly derived therefrom in favor of the
                  non-moving party. Winn v. Sunrise Hosp. & Med. Gtr., 128 Nev., Adv. Op.
                  23, 277 P.3d 458, 462 (2012). Doing so here suggests that despite Wells
                  Fargo's December 2009 statement that its foreclosure was "to be
                  dismissed," the January 2010 communication between the Hineses'
                  attorney and Wells Fargo and NDSC, and the subsequent immediate
                  recording of the notice of rescission, NDSC still sought and obtained a
                  mediation certificate based upon the Hineses failure to return a mediation

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                   election form. These facts at minimum raise a question as to whether
                   Wells Fargo and NDSC substantially complied with NRS 107.080 and
                   NRS 107.086. 1
                               The usual substantial compliance issue in this context is
                   whether the foreclosing entity sufficiently noticed the foreclosure.      See,
                   e.g., Schleining u. Cap One, Inc., 130 Nev., Adv. Op. 36, 326 P.3d 4, 8-9
                   (2014) (considering whether foreclosing entity substantially complied with
                   the notice provisions concerning guarantors provided in NRS 107.095);
                   Banks v. Freddie Mac, No. 2:11-CV-00648-GMN, 2014 WL 2741875, at *7
                   (D. Nev. June 17, 2014) (summary judgment denied where lender and
                   servicer failed to show that they had substantially complied with the
                   statutory foreclosure notice mandates to the grantor/borrower and thus
                   had "failed to meet their initial burden"). Here, however, the unique issue
                   presented is whether the foreclosing entity substantially complied with
                   the statutory foreclosure procedure when it recorded a notice of rescission
                   of notice of default and election to sell in the midst of its foreclosure, and
                   thereafter claimed the notice of rescission undid an earlier, ostensibly
                   superseded notice of default, not the notice of default about which the
                   borrowers and their lawyer had corresponded with the lender.
                               The majority focuses on whether the notice of rescission can
                   have any legal effect on the 2009 notice of default given that it does not
                   specifically reference that notice of default, looking to tax lien cases for
                   support. But those cases concern whether a flawed tax lien notice
                   recorded against the property can be held to provide constructive notice of

                          'The. Hineses did not file a cross-motion for summary judgment.
                   Thus, the sole issue presented is whether the lender showed it was
                   entitled to judgment as a matter of law.


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                       the tax lien to a third-party (not the tax debtor) and thus allow the tax
                       lien to have priority. See Majority at 7-8. So, a seriously flawed tax lien
                       would be held against the entity that created and recorded it. The
                       majority uses this principle here, however, to• shield Wells Fargo and
                       NDSC from the effect of the problematic notice of rescission that NDSC
                       recorded, a document that they were not required to record but that, as
                       the majority recognizes, has the effect of cancelling a given foreclosure.
                                   The more relevant factual inquiry, then, would be what the
                       notice of rescission would mean to a third party who viewed the document
                       in the context of the entire foreclosure process.    See NRS 247.190(1) ("A
                       document acknowledged or proved and certified and recorded in the
                       manner prescribed in this chapter from the time of depositing the
                       document with the county recorder of the proper county for record,
                       provides notice to all persons of the contents thereof, and all third parties
                       shall be deemed to purchase and take with notice."); see also NRS 111.320
                       ("Every such conveyance or instrument of writing, acknowledged or proved
                       and certified, and recorded . . . , must from the time of filing the same with
                       the Secretary of State or recorder for record, impart notice to all persons of
                       the contents thereof; and subsequent purchasers and mortgagees shall be
                       deemed to purchase and take with notice."); State Dep't of Taxation v.
                       Kawahara, 131 Nev., Adv. Op. 42, P.3d (2015) ("Generally, the
                       purpose of recording statutes is to provide subsequent purchasers with
                       knowledge concerning the state of title for real property."). Though
                       NDSC's notice of rescission appears to reference the 2007 notice of default
                       by listing the same internal reference number, the recording date strongly
                       suggests that it applies to the 2009 notice of default. Thus, a third-party
                       reader looking at these recorded documents would not automatically

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                     conclude that the notice of rescission applied only to the 2007 notice of
                     default, or that the notice of rescission had no effect at all (because why
                     would a trustee have such a notice recorded in the first place if not to have
                     some effect on the recorded foreclosure documents).       See Holt v. Reg'l Tr,
                     Servs. Corp., 127 Nev., Adv. Op. 80, 266 P.3d 602, 606 (2011) (the purpose
                     of a notice of rescission is to render "moot disputes concerning the notice of
                     default or its timing"). But these are the only two options the majority's
                     holding leaves. And, in any event, resolution of this factual inquiry is not
                     proper at summary judgment.
                                 NDSC voluntarily caused the notice of rescission to be
                     recorded in the middle of its foreclosure under the 2009 notice of default
                     and this raises an issue about whether NDSC and Wells Fargo
                     substantially complied with the foreclosure procedure outlined in NRS
                     107.080, specifically whether a third party would view the document as
                     rescinding one, both, or none of the notices of default. This issueS of fact is
                     material, and prevents summary judgment in Wells Fargo and NDSC's
                     favor, especially because the two argue only that the Hineses failed to cure
                     their 2009 default, and a 2007 loan modification document indicates the
                     Hineses may have cured their 2007 default. If this is the case, then Wells
                     Fargo could not have foreclosed pursuant to the 2007 notice of default. See
                     NRS 107.080(2)-(3) (trustee can exercise power of sale only if the grantor
                     fails to make good the deficiency in performance of payment within a
                     certain period of time of recording the notice of default).
                                 Furthermore, issues of fact surround whether Wells Fargo and
                     NDSC substantially complied with NRS 107.086's FMP-specific
                     provisions. The foreclosure mediation process demands that the lenders
                     and their agents attend mediation and act in good faith, and if they do not,

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                then the certificate of mediation may not issue and the lender must start
                the foreclosure process over.   See NRS 107.086(6); Holt, 266 P.3d at 607
                ("[D]enial of an FMP certificate follows automatically from a finding the
                statutory FMP requirements have been shirked."). The Legislature also
                instructed this court to establish "procedures• to protect the mediation
                process from abuse and to ensure that each party to the mediation acts in
                good faith." NRS 107.086(11)(d) (emphasis added); see also FMR 22
                (authorizing judicial review to determine, among other things, whether
                the trust deed beneficiary participated in the mediation in good faith).
                Given the factual issue as to Wells Fargo's December 2009 representations
                that it was to restart the foreclosure process and the Hineses' attorney's
                January 2010 communication with Wells Fargo and NDSC that the
                Hineses wanted to mediate but that the foreclosure had to be redone, a
                genuine issue of fact remains as to whether Wells Fargo and NDSC's
                actions in still seeking the FMP certificate based upon the Hineses failure
                to elect mediation in writing amounted to a bad faith abuse of the
                mediation process such that they failed to substantially comply with NRS
                107.086.
                            The majority states that it will not review the argument just
                considered because the Hineses did not plead it as part of their fraud
                claim. The fact remains that their chapter 107 claim encompasses this
                argument. The complaint alleges that Wells Fargo and NDSC "failed to
                comply with applicable provisions of AB 149 [which enacted the FMP
                requirements], now incorporated into NRS 107.080, 107.086 and 107.087."
                It also avers that the 2009 notice of default, the notice of rescission, the
                notice of sale, the deed upon sale, and the FMP certificate "evidence
                failures to adhere to the notice provisions required by law and constitute

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                      'substantial irregularities" supporting vacation of the sale. The Hineses
                      also advanced this argument in opposing the renewed summary judgment
                      motion by maintaining that the foreclosure did not comply with the laws of
                      this state and that a person reviewing the public records could reasonably
                      conclude that the notice of rescission rescinded the 2009 notice of default
                      or both notices of default. Thus, whether the sequence and nature of
                      events render Wells Fargo and NDSC's foreclosure noncompliant with
                      chapter 107 is a fair argument that we should consider on appeal.
                                  Viewing the facts favorably to the Hineses, there are genuine
                      issues of material fact as to whether Wells Fargo, through NDSC,
                      substantially complied with NRS 107.080 and NRS 107.086 and thus
                      summary judgment was improper on their chapter 107 claim. I thus
                      would reverse and remand for the district court to address these
                      substantial compliance issues. See Las Vegas Plywood & Lumber, Inc. v.
                      D & D Enters., 98 Nev. 378, 380, 649 P.2d 1367, 1368 (1982) ("The district
                      court has discretion to determine whether there has been substantial
                      compliance with the statute."); Schleining, 326 P.3d at 8 (applying Las
                      Vegas Plywood's substantial compliance rules to chapter 107).




                                                         Picker




                      cc: Hon. David A. Hardy, District Judge
                           Lemons, Grundy & Eisenberg
                           Snell & Wilmer, LLP/Las Vegas
                           Tiffany & Bosco, P. A.
                           Washoe District Court Clerk

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