Preserving Deficiency Rights in Nevada Where Deed in Lieu of Foreclosure Is Accepted by the Lender

By: Richard F. Holley, Esq.[1] and Andrea M. Gandara, Esq.[2]

Introduction

Lenders in commercial transactions secured by deeds of trust on real property frequently experience borrower defaults and requests to forebear and amend existing loan documents, rather than foreclosing on real property collateral. Borrower requests often involve the extension of the maturity date and modifications to payment terms. Under these circumstances it is not unusual for a lender to consider as a condition of forbearance, accepting a deed in lieu of foreclosure to be executed by the parties, but held pending a future default and failure to cure. The benefits of accepting a deed in lieu of foreclosure include being able to recover real property collateral without initiating the lengthier foreclosure process. In considering this option, however, commercial lenders often question whether accepting and subsequently recording a deed in lieu of foreclosure precludes pursuing the borrower and guarantors for any unpaid balance owing under a promissory note. This article will address this issue.

Analysis

A deed in lieu of foreclosure is defined by Black’s Law Dictionary as “a deed by which a borrower conveys fee-simple title to a lender in satisfaction of a mortgage debt and as a substitute for foreclosure.” Deed in Lieu of Foreclosure, Black’s Law Dictionary (10th ed. 2014). “This deed is often referred to simply as a ‘deed in lieu.’” Id. Although the typical deed in lieu scenario contemplates satisfaction of a mortgage debt in its entirety, it need not do so. A commercial lender may wish to preserve its rights to pursue the unpaid balance exceeding the value of the collateral through a deficiency action.

Nevada Revised Statutes, Chapter 40

Chapter 40 of the Nevada Revised Statutes provides the framework for pursuing a deficiency judgment. First, the creditor or beneficiary of the deed of trust must submit an “application”[1] for a deficiency within six months after the date of the foreclosure sale or the trustee’s sale held pursuant to NRS 107.080. See NRS 40.455(1), amended by Nev. Rev. Stat. Ann. § SB 453, § 5 (West). Second, there are limitations on the amount of money a court may award as a deficiency judgment. A court may not award a judgment for more than: (i) the difference between the amount of the indebtedness and the fair market value of the property at the time of the sale, with interest from the date of sale; (i) the difference between the amount for which the property was actually sold and the amount of the indebtedness, with interest from the date of sale; or (iii) if the person seeking the judgment acquired the right to obtain the judgment from a person who previously held that right, the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale, or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs. NRS 40.459.[2]

Each of these statutory conditions has a common denominator: a foreclosure or trustee’s sale. The occurrence of a foreclosure or trustee’s sale establishes the bar date by which a deficiency action must be pursued. See NRS 40.455(1). Similarly, the date of the foreclosure or trustee’s sale is the date for establishing the value of the property being foreclosed upon and the amount of the deficiency that may be awarded by a court. See NRS 40.459(referring to “date of sale”). Chapter 40 does not address whether a deficiency judgment may be pursued and obtained where no foreclosure or trustee’s sale occurs such as when a deed in lieu of foreclosure is utilized by a lender to transfer ownership of a commercial property upon an event of default.[3]

Persuasive Authority

Case law from Nevada state court likewise provides no guidance on the subject of deficiency judgments resulting from deeds in lieu of foreclosure. However, two federal court opinions may provide some assistance.

In FH Partners, LLC v. Leany, FH Partners, a successor-in-interest to the FDIC, pursued a deficiency action against guarantors. No. 2:11-CV-0796-LRH-NJK, 2014 WL 3853806, at *1 (D. Nev. Aug. 6, 2014). FH Partners had apparently accepted a deed in lieu of foreclosure from the borrower instead of conducting a foreclosure sale. Id. At issue was the fair market value determination pursuant to NRS 40.457. Id. at *2. In order to make the fair market value determination the court first had to determine the “date of sale” pursuant to NRS 40.459.[4] Id. The court stated “[f]or purposes of determining the fair market value of the property, the date a deed in lieu of foreclosure is recorded may be used as the operative valuation date because a deed in lieu is the functional equivalent of a duly noticed foreclosure sale.”[5] Id. (emphasis added). The court then proceeded to value the property, determine the deficiency amount and ultimately award a judgment in favor of FH Partners. Id. at *3.

Mann v. Glens Falls Ins. Co. was an insurance case; however, the ultimate holding turned on a mortgagee accepting a deed in lieu of foreclosure upon the default by the mortgagor. 541 F.2d 819, 823 (9th Cir. 1976). The property at issue was a residential property. Id. at 820. The deed in lieu of foreclosure expressly stated that the mortgagee was accepting the deed in lieu in “full satisfaction of all obligations secured by the Deed of Trust.” Id. at 823 n.12. Seemingly based on the “full satisfaction” language in the deed in lieu, the Ninth Circuit concluded that by accepting the deed in lieu of foreclosure, the mortgagee discharged the mortgagors of their debt and at the same time wiped out her insurable interest. Id. at 823 and n.12. The Mann opinion arguably stands for the proposition that deficiency rights are preserved where the deed in lieu of foreclosure expressly provides that the deed in lieu is only in partial, as opposed to full, satisfaction of an outstanding indebtedness.

Together, these federal cases addressing Nevada law indicate that (1) a deed in lieu of foreclosure is the functional equivalent of a foreclosure sale for purposes of valuation of collateral and pursing a deficiency; (2) the relevant date for purposes of valuation of collateral’s fair market value in a deed in lieu scenario is the date the deed in lieu is recorded; and (3) a lender preserves its deficiency judgment rights if the deed in lieu of foreclosure does not expressly state that it is in full satisfaction of indebtedness.

Other Jurisdictions

Jurisdictions outside of Nevada have relied upon contract principals when analyzing deeds in lieu of foreclosure and preserving deficiency judgments.

For example, in Nash Finch Co. v. Corey Dev., Ltd., 669 N.W.2d 546, 550 (Iowa 2003), the Iowa Supreme Court held that “a party may pursue further remedies after filing a deed in lieu of foreclosure in partial satisfaction of a debt” including obtaining a deficiency judgment. The action arose when a borrower breached a secured promissory note by conveying the mortgaged property without prior consent and failing to make payments. Id. at 547. The parties negotiated a forbearance agreement that required the debtor to provide a deed in lieu of foreclosure in partial satisfaction of the promissory note. Id. When the debtor defaulted under the forbearance agreement, the lender recorded the deed in lieu and then filed suit for failure to pay pursuant to the forbearance agreement and for conduct that diminished the collateral’s value. Id. The borrower argued that by recording the deed in lieu of foreclosure, the lender waived its right to a deficiency judgment. Id. at 548. The Iowa Supreme Court concluded that the parties’ forbearance agreement controlled the outcome as to whether the lender was permitted to pursue the portion of debt that was not satisfied by the deed in lieu. Id. at 549. In reviewing the agreement, the Court was persuaded that the operative language reflected the parties’ intent to leave the lender with remedies in addition to the deed in lieu of foreclosure, such as pursuit of satisfaction of the original note. Id. This language included express statements that the forbearance agreement was in “partial satisfaction of the note” and that the lender “reserve[d] its rights to exercise its right under the note and/or mortgage in the event any of the terms and conditions of the forbearance agreement [we]re not fully satisfied.” Id. (emphasis and original alteration omitted). Because the parties’ agreement preserved the lender’s right to pursue remedies in addition to recording a deed in lieu of foreclosure, and there was no Iowa law prohibiting such an agreement, the Court overruled the borrower’s argument. Id. at 550.

A federal bankruptcy court in Virginia similarly overruled an argument made by debtors that they had been released of their liability by executing a deed in lieu of foreclosure in partial satisfaction of a promissory note secured by a deed of trust against real property. In re Wilkinson, 175 B.R. 627, 628 (Bankr. E.D. Va. 1994). The court concluded that the debtors’ personal liability for a deficiency remained even though they executed a deed in lieu of foreclosure because they were not released of all of their liability by the terms of the parties’ settlement agreement or by the deed in lieu. Id. at 629. In reaching this conclusion, the court considered Va. Code Ann. § 55–66.4, which allows for partial satisfaction of liens upon proper recording. Id. at 628.

Finally, in Myler v. Blackstone Fin. Grp. Bus. Trust, 333 P.3d 1251, 1254 (Utah Ct. App. 2014), the appellate court found that a guarantor remained liable under a guarantee even though the lender took a deed in lieu of foreclosure. The court found it significant that the guarantee stated the guarantor would be liable for any deficiency remaining after foreclosure regardless of whether the borrower received a discharge and that the guarantee “could be affected by nothing ‘except full payment and discharge of the [i]ndebtedeness.’” Id. In addition, the parties’ settlement agreement contained language reflecting that a release of the borrower did not affect the outstanding indebtedness as to the guarantor. Id.

Conclusion: Preserving Deficiency Rights

Although preserving deficiency rights in Nevada is unsettled where a commercial lender accepts and records a deed in lieu of foreclosure upon an event of default, there are steps a lender can take to preserve deficiency rights when accepting a deed in lieu of foreclosure.

First, it is critical to include proper language in any forbearance agreement that expressly preserves the lender’s right to pursue a deficiency upon an event of default, which right survives recording of the deed in lieu of foreclosure. For example, the forbearance agreement should contain an express acknowledgement by the borrower and guarantors that the lender’s deficiency rights are not extinguished based on the agreement. Such language may include, “nothing in this Forbearance Agreement, including, but not limited to, the execution and/or recording of a deed in lieu of foreclosure, shall be deemed to impair the priority of, or to extinguish or otherwise impair, either the indebtedness secured by the Deed of Trust or the liens of the Deed of Trust.” It is also beneficial to include a provision in the forbearance regarding how a deficiency will be determined in the event the lender accepts and then records the deed in lieu of foreclosure.

Second, appropriate language should be included in the deed in lieu of foreclosure to preserve deficiency rights. Importantly, the deed in lieu of foreclosure should contain an express acknowledgment by the borrower and guarantors that the deed in lieu is only a partial satisfaction of debt and does not extinguish the underlying indebtedness. Such language may read as follows: “The acceptance of this Deed in Lieu of Foreclosure shall not prejudice, limit, restrict, or affect claims of priority under the loan documents over any other liens, charges, claims, or encumbrances of any kind whatsoever, or the validity and enforceability of the loan documents except as set forth herein. This conveyance is made in lieu of foreclosure and in partial forgiveness of a debt.”

Third, in Nevada before a lender may record a deed in lieu of foreclosure, a Declaration of Value Form as prescribed by the Nevada Tax Commission must be completed by the lender and reviewed and approved by an auditor at the Office of the County Recorder. See NRS 375.060(1); http://www.clarkcountynv.gov/recorder/Documents/DV_Packet.pdf. Lenders must include documentation to support the value declared and/or exemption claimed at the time of recording. Failure to provide the supporting documentation may result in the document being returned unrecorded. The Declaration of Value Form is used to determine the amount of real property transfer tax that must be paid by the recording party. One must be careful when completing the Form particularly given the instructions that accompany the Form. When completing section 3(a), which asks for the total value/sales price of the subject property, the Instructions direct the recording party to insert the amount of the unpaid debt where a deed in lieu of foreclosure is the operative document. This instruction is potentially problematic where the deed in lieu expressly provides that “the conveyance is made in lieu of foreclosure and in partial forgiveness of a debt.” Rather than inserting the full amount of the outstanding indebtedness, one may instead insert the estimated fair market value of the property as of the approximate date the deed in lieu was recorded and documentation such as a real property appraisal to support the value. By so doing, a lender can avoid the argument that it tacitly agreed that the deed in lieu was accepted and recorded in full satisfaction of the outstanding indebtedness where the deed in lieu expressly provides to the contrary.

[1] Mr. Holley is a named partner with the law firm of Holley Driggs Walch Fine Wray Puzey & Thompson and has practiced law for nearly 29 years in the areas of bankruptcy and commercial litigation.

[2] Ms. Gandara is an associate with Holley Driggs Walch Fine Wray Puzey & Thompson, primarily practicing in the areas of bankruptcy and commercial litigation.

[3] In Lavi v. Eighth Jud. Dist. Ct., the Nevada Supreme Court stated that “a party seeking a deficiency judgment must file the application particularizing the reasons for the requested judgment within six months after selling the property at a trustee’s sale . . . .” 130 Nev. Adv. Op. 38, 325 P.3d 1265, 1267 (2014); see also Guinn v. Fed. Deposit Ins. Corp., No. 60888, 2014 WL 2957258, at *1 (Nev. June 26, 2014) (stating “in Lavi v. Eighth Judicial District Court, 130 Nev. ––––, ––– P.3d –––– (Nev.Adv.Op.38, May 29, 2014), we addressed when and how an application for a deficiency judgment must be made.”)

[4] See Branch Banking & Trust Co. v. Pahrump 194, LLC, 51 F. Supp. 3d 993, 996 (D. Nev. 2014) (discussing three alternative calculations under NRS (1)).

[5] This is distinguished from the situation where a lender accepts a deed in lieu of foreclosure for a single family residence. In that instance, the lender is prohibited from recovering a deficiency from the borrower and guarantors. See NRS 40.458 and amended by Nev. Rev. Stat. Ann. § SB 453, § 5 (West) (amending Chapter 40 of the Nevada Revised Statutes to define “Sale in lieu of foreclosure sale” to include a deed in lieu of foreclosure sale).

[6] FH Partners incorrectly references NRS 40.469 instead of NRS 40.459.

[7] Cf. 1971 Nev. Op. Atty. Gen. No. 45 (Oct. 7, 1971) (answering the question “Is a deed in lieu of foreclosure subject to tax, and if so, how is the value, for purposes of tax, to be computed.” and stating that “The value attributable to that deed [in lieu of foreclosure] is that which his grantee (the original seller) gives in exchange for the deed in lieu of foreclosure. In substance, what the grantee (the original seller) gives up by avoiding the foreclosure proceeding and accepting the deed in lieu of foreclosure in full satisfaction, is the right to a deficiency judgment against his defaulting buyer.”). FH Partners, which was decided more than 40 years after the Nevada Attorney General’s Opinion regarding taxation of conveyances by deeds in lieu of foreclosure and valuation of collateral subject to deeds in lieu, makes no reference to 1971 Nev. Op. Atty. Gen. No. 45 (Oct. 7, 1971).

 

 

 

 

 

 

 

 

 

 

 

 

Holley Driggs Walch Corporate Sponsor for Local Chapter of Medals4Mettle

M4MHDWThe Las Vegas chapter of Medals 4 Mettle (M4M) proudly announces their partnership with the Children’s Specialty Center of Southern Nevada as well as their corporate sponsor, the full-service law firm of Holley Driggs Walch Fine Wray Puzey & Thompson (HDW). M4M is honored to participate in The Children’s Specialty Center of Nevada’s “No More Chemo Parties,” a celebration for children who have recently completed the final chemotherapy session in their cancer treatment. The Children’s Specialty Center of Nevada is the state’s only nonprofit pediatric cancer outpatient treatment center. The clinic is a program of Cure 4 The Kids Foundation.

M4M is an international non-profit organization that facilitates the giving of race medals (half, full finisher medals as well as triathlon medals) to children and adults that are undergoing serious or debilitating illnesses. The local chapter of M4M collects donated medals from athletes, repurposes the medal with a new ribbon, and awards them to patients at the Children’s Specialty Center through the Cure 4 the Kids Foundation. Recognition of the “mettle” these children have shown is part of M4M’s overall vision: no one is alone on their journey.

HDW’s participation in the M4M local chapter will provide the necessary ribbons and materials needed for repurposing the medals. Their support is critical to the success of the chapter. “The Firm has a long history of contributing to organizations that focus on children and their needs, so we are particularly pleased to help give medals to such courageous children, ” said Ron Thompson, managing partner at HDW.

“There is a cost to the ribbons,” says M4M’s chapter coordinator Kimberly Boschee. “Seeing the look on the children’s face when they are given a real race medal – which nowadays are huge, heavy and shiny – is awesome. It’s a very cool moment. HDW’s generous contribution will allow us to make sure we are able to keep kids in medals for the rest of the year.”

If you’d like to donate or participate in M4M’s local chapter, please contact Kimberly Boschee at Kimberly.boschee@medals4mettle.org.

About Medals 4 Mettle

In 2005, Dr. Steven Isenberg, a head and neck surgeon from Indianapolis, created M4M as a vehicle to collect runner’s medals to donate to those battling serious illness or debilitating conditions. Medals4Mettle seeks to celebrate our collective human courage and our innate desire to support each other. In the past ten years, Medals4Mettle has awarded over 18,000 medals to recipients all over the world. Medals have been awarded by Indy 500 race car drivers, Olympic athletes, and individuals who want to experience the incredible joy of giving their hard-earned finisher medals to courageous human beings. Run far. Run fast. Run for the greater good.

About Holley Driggs Walch Fine Wray Puzey & Thompson

HDW, with offices in Las Vegas and Reno, Nevada, is a general practice law firm with a strong corporate and business clientele. Although the firm maintains a general law practice, its shareholders practice primarily in the areas of commercial litigation, business, real estate, natural resources, eminent domain, bankruptcy, construction, and technology and intellectual property. The firm also has broad experience in administrative law, estate planning, probate, and tax law. The firm is committed to public service and community involvement in Nevada and nationally, as evidenced by the political and charitable activities and professional associations of its shareholders.

Meier Fine & Wray and Holley Driggs Walch Puzey & Thompson merge to form Holley Driggs Walch Fine Wray Puzey & Thompson (HDW).

HDW is pleased to announce that Glenn F. Meier, Marilyn Fine, and William J. Wray, Shareholders, along with Rachel E. Donn and Donna DiMaggio, merged with Holley Driggs Walch Puzey & Thompson on April 1, 2015.   The merger has strengthened HDW’s business law, construction law, and litigation practices, adding the expertise of Glenn F. Meier and Marilyn Fine in corporate law, real estate, banking, creditor bankruptcy, business litigation, contracts, title insurance defense, and insurance law. William J. Wray has unique experience in domestic and international construction and development, including expertise in construction contracting practices used in the international marketplace and related international dispute resolution mechanisms and processes. Mr. Wray has special multicultural and multi-language skills that further bolster his international practice. Rachel E. Donn and Donna DiMaggio are seasoned litigators with experience in all aspects of the civil litigation process. HDW is proud to be associated with these exceptional attorneys .

Cami M. Perkins joins Holley, Driggs, Walch, Puzey & Thompson

Cami M. Perkins joins Holley, Driggs, Walch, Puzey & Thompson. Cami M. Perkins has joined Holley, Driggs, Walch, Puzey & Thompson as a shareholder in its Las Vegas office. Ms. Perkins practices in corporate and real estate transactions and business commercial litigation with a broad array of experience in general business and licensing needs, employment contract negotiations, franchise law, and complex business disputes, including contractual obligations, fiduciary duties, business interference, non-competition allegations, and more. Ms. Perkins has been honored multiple times by various business and professional publications, including Nevada Business Magazine’s Elite and 20 Best Up & Coming Attorneys, and Super Lawyers Magazine in the Mountain States.

James W. Puzey elected President of Volunteer Attorneys for Rural Nevadans

James W. Puzey, a partner in the firm, has been re-elected President of Volunteer Attorneys for Rural Nevadans (VARN). Jim has served on VARN’s Board of Directors since 1996 and has previously served as President for over 10 years. VARN’s mission is to provide pro bono legal services to the low-income residents of rural northern Nevada and to provide legal representation to victims of domestic violence and sexual assault. In addition to employing several staff attorneys, VARN utilizes a panel of over 100 private and public volunteer attorneys to provide free or reduced fee legal services in Carson City, Churchill, Douglas, Lyon, Storey, Humboldt, Elko, and White Pine counties. More information on VARN can be found at www.varn.org.

ABA 273: Retroactive Application Limitation

By Richard F. Holley

The long awaited ruling regarding the retroactive application of AB 273 was issued by the Nevada Supreme Court.  (See 129 Nev., Advance Opinion 87).  At issue in the Sandpointe matter was whether NRS 40.459(1)(c), a statute limiting the amount of deficiency judgments in instances where a right to obtain a judgment against the debtor, guarantor, or surety has been transferred from one person to another, applied retroactively to foreclosure sales that occurred before passage of the statute.  The statute became effective on June 10, 2011.  More specifically, the statute provides that “[i]f the person seeking judgment acquired the right to obtain the judgment from a person who previously held that right,” then the person seeking the judgment may only recover “the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of the sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs[.]”  In other words, NRS 40.459(1)(c) limits the amount of a judgment that a successor in interest can recover to the difference between the fair market (or actual sale) value of the property that is foreclosed upon and the amount that the successor paid to acquire an interest from the original creditor.  In its Opinion, the Nevada Supreme Court ruled that NRS 40.459(1)(c) does not apply retroactively, but only applies prospectively.  The Court also concluded that the limitations in NRS 40.459(1)(c) do apply to sales, pursuant to either judicial foreclosures or trustee’s sales, occurring on or after the effective date of the statute.  The Court further concluded, however, that in cases where application of NRS 40.459(1)(c) would not have retroactive effect, it applies to any transfer of the right to obtain a deficiency judgment, regardless of when the right was transferred.  In reaching this conclusion and distinction, the Court reasoned that based on Nevada precedent, “statutes affecting deficiency judgments operate prospectively when the sale, pursuant to a judicial foreclosure or trustee’s sale, occurs after the enactment of the statute. In contrast, when, as here, the trustee’s sale occurs before the effective date of an anti-deficiency statute, application of the statute will generally be deemed retroactive.”  See 129 Nev., Advance Opinion at __; Opinion, at p.17.

This ruling is significant for other reasons beyond the retroactive application limitation that affect purchasers of notes secured by deeds of trust in Nevada.  First, according to the Court, under NRS 40.459(1)(c) “no award may be made for other amounts that the successor in interest may have incurred following the acquisition of the right to obtain the judgment, such as accrued interest, costs and fees, and any advances.”  See 129 Nev., Advance Opinion at __; Opinion, at p.13.  In other words, a deficiency is limited to just the difference between the consideration paid and the fair market (or actual) value of the property foreclosed upon and nothing more.  Second, NRS 40.459(1)(c) applies to limit the amount of a deficiency for a purchased loan, regardless of when the loan was purchased, so long as the foreclosure sale did not take place before the effective date of the statute.  There may be one important caveat to this limitation as it pertains to loans acquired from the FDIC.  In footnote 5 to the Opinion, the Court states as follows:  “CML-NV contends that NRS 40.459(1)(c), which contemplates ‘acquir[ing] the right to obtain the judgment from a person,’ cannot apply under these circumstances because the FDIC is not a person as defined by NRS 0.039.  However, we need not determine this issue because we conclude that NRS 40.459(1)(c) does not apply here, where the trustee’s sale occurred before NRS 40.459(1)(c) became effective.”  See 129 Nev., Advance Opinion at __; Opinion, at p. 22.   This footnote appears to leave open the issue of whether NRS 40.459(1)(c) applies to loans acquired from the FDIC.

HDW attorneys named ‘Super Lawyers’ – Super Lawyers Magazine

Eleven Holley, Driggs, Walch, Puzey  & Thompson attorneys have been ranked by Super Lawyers Magazine among the best in the Mountain States  (Nevada, Utah, Montana, Idaho, and Wyoming) in its 2014 Edition and Ogonna M. Atamoh was recognized as one of the Top 50 Women in the Mountain States.

The Super Lawyers selection process is a rigorous, multiphase process involving peer nominations, evaluations, and third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. No more than five percent of the total lawyers in the state are selected for inclusion in Super Lawyers.

HDW shareholders receiving recognition as Super Lawyers in their practice areas were Dennis R. Haney (construction litigation), J. Douglas Driggs, Jr. (real estate), Gregory J. Walch (environmental), Richard F. Holley (bankruptcy/business litigation), Brian W. Boschee (business litigation), Ogonna M. Atamoh (bankruptcy/business litigation), James W. Puzey (business litigation) and Bryce K. Earl (Intellectual Property). In addition, shareholder F. Thomas Edwards (business litigation) was named in the publication’s “Rising Star” list, along with attorneys Donna M. Wittig (business litigaiton) and William N. Miller (business litigation).

Together Creating Lean, Mean Businesses

By Amile Wilson
Attorney at Law Magazine, Greater Las Vegas Edition, Vol. 2 No. 5

Many people cringe when they hear the word bankruptcy, but for the attorneys at Holley, Driggs, Walch, Puzey & Thompson, they see it as an opportunity for their creditor clients to resolve long standing disputes arising from poorly performing loans.

“Bankruptcy can be an extremely frustrating process, particularly for the uninitiated,” says Richard Holley, one of the firm’s partners.  “We partner with out clients so that they can make informed decisions and meaningfully participate in the process to achieve the best possible result.”

“Bankruptcy affords creditors protections to avoid unnecessary delay and protraction of costly bankruptcy proceedings when there is no viable change for reorganization.  Bankruptcy likewise gives companies the ability to reassess and make deals they otherwise couldn’t or wouldn’t make,” adds Ogonna Atamoh, another of the firm’s partners.

While known for bankruptcy on the creditor rights side, the firm’s practice spans a wide gamut of corporate practices from estate planning to construction to commercial litigation and intellectual property.  This1 2d saves the firm from having to use outside counsel on complex cases.

“This is especially true in corporate bankruptcy cases,” Atamoh explains.  “Our strong IP department means that we can handle much of the complex intellectual property matters in-house, while most firms would have to hire another firm just to help with IP issues during a bankruptcy.”

“Our firm has an open door policy,” explains Atamoh.  “I’ve  never had a colleague say ‘come back later, I’m busy.’  We all share information.  If I need information about an unfamiliar area of law, I know I can trust the information I receive from the partners and staff.”

“From my perspective, we have a team concept and everyone is important to the process,” Holley says.  Among the more than two dozen lawyers at the firm, Holley and Atamoh are two examples of how the firm chooses to recruit and retain some of the best minds in Las Vegas.

Holley chose law as a graduate school opportunity before entering the foreign service.  It was in law school that he changed his mind and decided to practice.  “Ralph R. Mabey, a former bankruptcy judge, was our professor, and I wanted to be like him,” Holley explains.

“Reogranizations class was treated like an actual bankruptcy case,” he explains.  “It’s something that I enjoyed and connected with.”

Atamoh is the child of a Nigerian father and Bulgarian mother, whose mother escaped communist rule to live in Munich.  She came to college in America and after briefly considering medicine decided to pursues a law degree.  “I always wanted to practice international corporate law,” she says.  “I speak three languages so it just seemed to fit.  But, I didn’t want to go into gaming law, which was the closest choice, so I fell into the bankruptcy practice by pure chance.”

While Richard Holley left his partnership with another firm to join Holley Driggs, Atamoh has been a part of the firm since law school.  “I interviewed with the firm while still a law student,” Atamoh says, “and before I finished the drive home, they had called to offer me the job.”

With only a one-year sabbatical to clerk for the 9th Circuit Court of Appeals, Atamoh has spent her entire legal career at the firm eventually rising to the level of partner.

“We  hire attorneys with the perspective that they’ll be our partners,” Holley says.  “We don’t have any corner offices and did that on purpose.  We are a team and architecture reflects personality.”

Not only is the firm personality one of congeniality, it is one of excellence.  Holley is one of only three attorneys in the United States to be named to the American College of Bankruptcy at an installation ceremony in Washington D.C. at the U.S. Supreme Court.

“There was a police escort for the busses,” Atamoh says.  “It was a big deal!”

The firm also places a high priority on giving back to the community.  “If someone here is interested in a cause or charity then everyone is open minded and looks into it,” says Atamoh.

“We have a dedicated contributions committee and have put a lot of work into Shade Tree, a shelter for homeless women,” says Holley.  “Last year we worked with a communities and schools coalition and went to elementary schools to read books to children.”

Whatever the details of the case, or the complexity of the business, the key phrase that drives the Holley, Driggs, Walch, Puzey & Thompson team is advocacy for their client.

U.S. News – Best Lawyers® “Best Law Firms” in 2014

Holley, Driggs, Walch, Puzey & Thompson has been named a Tier 1 firm in Las Vegas for Construction by U.S. News –  Best Lawyers® “Best Law Firms” in 2014.  Best Lawyers® has also named the following attorneys to the 2014 Best Lawyers in America list:  J. Douglas Driggs, Jr., Real Estate Law; Dennis R. Haney, Construction Law; and Richard F. Holley, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Litigation – Bankruptcy.

In their press release on November 1, 2013, U.S. News –  Best Lawyers® stated, “The 2014 rankings are based on the highest number of participating firms and highest number of client ballots on record. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America©, which recognizes the top 4 percent of practicing attorneys in the US. Over 12,000 attorneys provided over 330,000 law firm assessments, and almost 7,000 clients provided close to 20,000 evaluations.  In addition, to provide personal insight, a new Law Firm Leaders Survey was implemented in the decision-making process.”

Holley, Driggs, Walch, Puzey & Thompson was also recognized with Tier 2 rankings in the areas of Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law, Corporate Law, Litigation – Bankruptcy, and Real Estate Law (Las Vegas).

Legal Elite 2013

Four Holley Driggs Walch attorneys have been recognized in Nevada Business Magazines 2013 Legal Elite Edition.  The annual list highlights the 200 top-rated attorneys in Southern Nevada based on peer nominations and votes.  Congratulations to Richard Holley, Ogonna Atamoh, Tom Edwards, and William Miller.