NRS
107.028 Trustees: Qualifications; limitations on powers; appointment of
new trustee; duties; immunity from liability for certain good faith errors;
damages in certain civil actions.
1. Except as otherwise provided in
subsection 4, the trustee under a deed of trust must be:
(a) An attorney licensed to practice law in this
State;
(b) A title insurer or title agent authorized to
do business in this State pursuant to chapter
692A of NRS;
(c) A person licensed pursuant to chapter 669 of NRS;
(d) A domestic or foreign entity which holds a
current state business license issued by the Secretary of State pursuant to chapter 76 of NRS;
(e) A person who does business under the laws of
this State, the United States or another state relating to banks, savings
banks, savings and loan associations or thrift companies;
(f) A person who is appointed as a fiduciary
pursuant to NRS 662.245;
(g) A person who acts as a registered agent for a
domestic or foreign corporation, limited-liability company, limited partnership
or limited-liability partnership;
(h) A person who acts as a trustee of a trust
holding real property for the primary purpose of facilitating any transaction
with respect to real estate if he or she is not regularly engaged in the
business of acting as a trustee for such trusts;
(i) A person who engages in the business of a
collection agency pursuant to chapter 649 of
NRS; or
(j) A person who engages in the business of an
escrow agency, escrow agent or escrow officer pursuant to the provisions of chapter 645A or 692A
of NRS.
2. A trustee under a deed of trust must
not be the beneficiary of the deed of trust for the purposes of exercising the
power of sale pursuant to NRS 107.080.
3. A trustee under a deed of trust must
not:
(a) Lend its name or its corporate capacity to
any person who is not qualified to be the trustee under a deed of trust
pursuant to subsection 1.
(b) Act individually or in concert with any other
person to circumvent the requirements of subsection 1.
4. A beneficiary of record may:
(a) Replace its trustee with another trustee; or
(b) Substitute as trustee only for the purposes
of executing a substitution of trustee and a full or partial reconveyance of a
deed of trust.
5. The appointment of a new trustee is not
effective until the substitution of trustee is recorded in the office of the
recorder of the county in which the real property is located.
6. The trustee does not have a fiduciary
obligation to the grantor or any other person having an interest in the
property which is subject to the deed of trust. The trustee shall act
impartially and in good faith with respect to the deed of trust and shall act
in accordance with the laws of this State. A rebuttable presumption that a
trustee has acted impartially and in good faith exists if the trustee acts in
compliance with the provisions of NRS
107.080. In performing acts required by NRS
107.080, the trustee incurs no liability for any good faith error resulting
from reliance on information provided by the beneficiary regarding the nature
and the amount of the default under the obligation secured by the deed of trust
if the trustee corrects the good faith error not later than 20 days after
discovering the error.
7. If, in an action brought by a grantor,
a person who holds title of record or a beneficiary in the district court in
and for the county in which the real property is located, the court finds that
the trustee did not comply with this section, any other provision of this
chapter or any applicable provision of chapter 106
or 205 of NRS, the court must award to the
grantor, the person who holds title of record or the beneficiary:
(a) Damages of $5,000 or treble the amount of
actual damages, whichever is greater;
(b) An injunction enjoining the exercise of the
power of sale until the beneficiary, the successor in interest of the
beneficiary or the trustee complies with the requirements of subsections 2, 3
and 4; and
(c) Reasonable attorney’s fees and costs,
Ê unless the
court finds good cause for a different award.
(Added to NRS by 2011,
329; A 2011,
1746, 1748;
2015,
1613)
Notes of Decisions
Edelstein v. Bank of New York Mellon, 286 P.3d 249 (Nev. 2012).
“Thus, the borrower, or grantor, executes both the note and the deed of trust in favor of the lender, who was historically the beneficiary under both, and who names a trustee on the deed of trust “to assure the payment of the debt secured by the trust deed.”
Harlow v. MTC Fin. Inc., 865 F. Supp. 2d 1095 (D. Nev. 2012).
· cites it 6× “” Nev.Rev.Stat. § 107.028(5). This amendment was effective October 1, 2011.”
Wishengrad v. Carrington Mortg. Servs., 529 P.3d 880 (Nev. 2023).
· cites it 2× “In their complaint, the Wishengrads asserted claims for declaratory relief/permanent injunction, intentional infliction of emotional distress (IIED), violation of NRS 107.028(7), and slander of title. After the district court dismissed the IIED and slander of title claims,…”
6344 Legend Falls Trust v. Nat'l Default Servicing Corp., No. 2:22-cv-01023 (D. Nev. June 29, 2023).
· cites it 20× “See Nev. Rev. Stat. § 107.028 13 (“The trustee shall act impartially and in good faith with respect to the deed of trust and shall 14 act in accordance with the laws of this State.”
Benko Vs. Quality Loan Serv. Corp., 2019 NV 64 (Nev. 2019).
· cites it 14× “As we explain within this opinion, the Legislature has since addressed the question of whether trustees who exercise a power of sale under a deed of trust pursuant to NRS Chapter 107 must be licensed pursuant to NRS Chapter 649 with the enactment of NRS 107.028 in 2011. 2011…”
White v. 5 Arch Income Fund 2, LLC, No. 2:22-cv-00133 (D. Nev. Dec. 13, 2024).
· cites it 14× “028, the Court’s order held that Defendant Prestige substantially complied 17 with NRS 107.”
White v. 5 Arch Income Fund 2, LLC, No. 2:22-cv-00133 (D. Nev. Mar. 31, 2024).
· cites it 5× “028 states that “[t]he appointment of a new trustee is not effective until the 5 substitution of trustee is recorded[.]” NRS 107.028(5). At the time Plaintiffs filed 6 their complaint, Prestige allegedly had not been appointed as trustee under DOT- 7 1601, so Plaintiffs claim…”
Clark v. US Bank Nat'l Ass'n, No. 2:23-cv-00493 (D. Nev. May 31, 2024).
· cites it 4× “First, Plaintiff alleges that Defendant Western 1 Progressive, who was acting as trustee, breached its duty of good faith under NRS 107.028. 2 (SAC ¶¶ 154–62). Second, Plaintiff asserts that Defendants PHH and U.”
White v. 5 Arch Income Fund 2, LLC, No. 2:22-cv-00199 (D. Nev. Sept. 30, 2023).
· cites it 3× “Ninth Cause of Action against Prestige Default Services, LLC 20 Plaintiff’s ninth cause of action asserts that Prestige Default Services violated NRS 107.028 21 in the execution of the sale of the property.”
Nev. Rev. Stat. § 107.028(2): 1 case
Nev. Rev. Stat. § 107.028(4): 3 cases
Nev. Rev. Stat. § 107.028(4)(b): 2 cases
Nev. Rev. Stat. § 107.028(5): 4 cases
Harlow v. MTC Fin. Inc., 865 F. Supp. 2d 1095 (D. Nev. 2012).
“” Nev.Rev.Stat. § 107.028(5). This amendment was effective October 1, 2011.”
White v. 5 Arch Income Fund 2, LLC, No. 2:22-cv-00199 (D. Nev. Sept. 30, 2023).
“Ninth Cause of Action against Prestige Default Services, LLC 20 Plaintiff’s ninth cause of action asserts that Prestige Default Services violated NRS 107.028 21 in the execution of the sale of the property.”
White v. 5 Arch Income Fund 2, LLC, No. 2:22-cv-00133 (D. Nev. Mar. 31, 2024).
“028 states that “[t]he appointment of a new trustee is not effective until the 5 substitution of trustee is recorded[.]” NRS 107.028(5). At the time Plaintiffs filed 6 their complaint, Prestige allegedly had not been appointed as trustee under DOT- 7 1601, so Plaintiffs claim…”
White v. 5 Arch Income Fund 2, LLC, No. 2:22-cv-00133 (D. Nev. Dec. 13, 2024).
“028, the Court’s order held that Defendant Prestige substantially complied 17 with NRS 107.”
Nev. Rev. Stat. § 107.028(6): 1 case
Clark v. US Bank Nat'l Ass'n, No. 2:23-cv-00493 (D. Nev. May 31, 2024).
“First, Plaintiff alleges that Defendant Western 1 Progressive, who was acting as trustee, breached its duty of good faith under NRS 107.028. 2 (SAC ¶¶ 154–62). Second, Plaintiff asserts that Defendants PHH and U.”
Nev. Rev. Stat. § 107.028(7): 1 case
Wishengrad v. Carrington Mortg. Servs., 529 P.3d 880 (Nev. 2023).
“In their complaint, the Wishengrads asserted claims for declaratory relief/permanent injunction, intentional infliction of emotional distress (IIED), violation of NRS 107.028(7), and slander of title. After the district court dismissed the IIED and slander of title claims,…”
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