JEFFREY WILTSE v. LOANCARE LLC (2025)

ORDER OF AFFIRMANCE

Jeffrey M. Wiltse appeals from a district court order granting summary judgment. Eighth Judicial District Court, Clark County; Jessica K. Peterson, Judge.

Wiltse filed an amended complaint alleging he purchased a home in 2013 which was secured by a mortgage and that respondent LoanCare, LLC, acted as the mortgage servicer. According to the amended complaint, Wiltse was the victim of a random act of violence which impacted his ability to work and in early 2019, he contacted LoanCare to request information regarding loss mitigation in connection with his mortgage. LoanCare allegedly failed to timely respond to Wiltse's requests, failed to provide a single point of contact, and at one point, changed his contact number to 666-666-6666.¹ In October 2019, Wiltse submitted a mortgage assistance application. Wiltse contended that in December 2019, an employee of LoanCare verbally informed him that his application had been approved. However, later that day, Wiltse received a letter informing him that his application had been denied and that he had until January 16, 2020, to submit an appeal. Wiltse maintained he submitted a timely appeal and despite this, LoanCare recorded a notice of breach and election to sell on January 17, 2020. As a result, Wiltse claims he suffered extreme emotional distress that affected his heart and emotional state. Ultimately, Wiltse sold the home to satisfy the mortgage and avoid foreclosure proceedings. The amended complaint asserted two causes of action: negligence and violation of NRS 107.530, Nevada's dual tracking statute.

LoanCare subsequently filed a motion for summary judgment arguing that Wiltse's NRS 107.530 claim failed as a matter of law because NRS 107.560(1) limited Wiltse's remedy for a violation of NRS 107.530 to injunctive relief, which he failed to request in the amended complaint. LoanCare further moved for summary judgment on the negligence claim, arguing that various courts have held that lenders do not owe a duty of care to borrowers, and thus, as a mortgage servicer, LoanCare did not owe a duty of care to Wiltse. Wiltse opposed, arguing that NRS 107.560(7) provides additional remedies for violations of NRS 107.530 and thus he was not limited to injunctive relief. Regarding the negligence claim, Wiltse agreed that a lender does not owe a duty of care but argued NAC 645F.976(1) “codified” various duties of care owed by mortgage servicers and further argued that NRS 107.530 supported the negligence claim through a negligence per se theory. Wiltse alleged that LoanCare breached these duties by: (1) intentionally entering an offensive number as his telephone number, (2) wrongfully denying his loss mitigation application, and (3) providing incorrect and contradictory information regarding the mitigation process. LoanCare filed a reply that generally repeated the arguments in its motion.

Ultimately, the district court granted summary judgment on both claims. The district court found that Wiltse's remedies for a violation of NRS 107.530 were limited to the remedies in NRS 107.560. Specifically, the court recognized that NRS 107.560(1) permits injunctive relief to prevent a foreclosure sale and NRS 107.560(2) permits monetary damages following a foreclosure sale. Because there was no foreclosure sale, the court concluded Wiltse could not avail himself of the available remedies and thus his claim for violation of NRS 107.530 must be dismissed. Regarding the negligence claim, the district court, citing to extrajurisdictional authorities holding a lender does not owe a general duty of care to a borrower, determined that a mortgage servicer does not owe a duty of care to a borrower. Furthermore, the district court found that administrative codes, such as NAC 645F.976, do not support a negligence per se theory and thus granted summary judgment on Wiltse's negligence claim. Wiltse now appeals.

This court reviews a district court's order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file demonstrate that no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Id. We review questions of statutory interpretation de novo. See Saticoy Bay, LLC, Series 9720 Hitching Rail v. Peccole Ranch Cmty. Ass'n, 137 Nev. 516, 518, 495 P.3d 492, 495 (2021).

On appeal, Wiltse argues that NRS 107.560(7) permits a civil complaint seeking damages for violations of NRS 107.530 regardless of the language in NRS 107.560(1) or (2). We conclude the district court did not err by dismissing Wiltse's NRS 107.530 claim because NRS 107.560 provides the exclusive remedy for the alleged violation of NRS 107.530. NRS 107.560(1) states a borrower may move for an injunction to prevent a foreclosure sale following a material violation of NRS 107.530 and NRS 107.560(2) states if a foreclosure sale has already occurred, a borrower can seek monetary damages. The district court correctly concluded that because Wiltse sold his home before a foreclosure sale occurred, he could not avail himself of the remedies in NRS 107.560 since the plain language of those subsections require either a forthcoming foreclosure sale or a completed foreclosure sale.

Wiltse argues that this conclusion fails to consider NRS 107.560(7), which states “[t]he rights, remedies and procedures provided by this section are in addition to and independent of any other rights, remedies or procedures provided by law.” Wiltse reasons that subsection (7) permits him to file a civil complaint alleging a violation of NRS 107.530 regardless of whether a foreclosure sale occurred. We disagree. The language in NRS 107.560(7) does not create any additional remedies or substantive rights but instead merely recognizes that rights or remedies which predated NRS 107.400 through NRS 107.560, inclusive, such as a claim for wrongful foreclosure, remain valid and are not precluded by the statutory remedies created in subsections (1) and (2). See Allegiant Air, LLC v. AAMG Mktg. Grp., LLC, No. 64182, 2015 WL 6709144, *2 (Nev. Oct. 29, 2015) (Order of Reversal) (holding that Nevada's Uniform Trade Secrets Act does not preclude a common law unjust enrichment claim based on statutory language stating it does not affect “other civil remedies”); Collins v. Union Fed. Sav. & Loan Ass'n, 99 Nev. 284, 304, 662 P.2d 610, 623 (1983) (recognizing the tort of wrongful foreclosure). Accordingly, we affirm the district court's order granting summary judgment on Wiltse's NRS 107.530 claim.

We next address whether the district court erred by concluding LoanCare did not owe a duty of care to Wiltse. To state a claim for negligence, a plaintiff must allege four well-known elements: “(1) an existing duty of care, (2) breach, (3) legal causation, and (4) damages.” Turner u. Mandalay Sports Ent., LLC, 124 Nev. 213, 217, 180 P.3d 1172, 1175 (2008). We review whether LoanCare owed Wiltse a duty of care de novo. Foster v. Costco Wholesale Corp., 128 Nev. 773, 777, 291 P.3d 150, 153 (2012) (holding whether a party owes a duty of care is a question of law we review de novo).

On appeal, Wiltse concedes that lenders do not owe a duty of care to borrowers “to avoid causing purely economic losses outside the contractual framework” but argues that the extrajurisdictional authorities concerning lenders that the district court relied upon are distinguishable from the present case because it involves a mortgage servicer, and NRS 107.530 and NAC 645F.976 impose a duty of care on mortgage servicers. Wiltse asserts that LoanCare breached the duty created by these authorities in various ways. Because Wiltse is arguing that NRS 107.530 and NAC 645F.976 create duties of care and that LoanCare's violation of those duties supports his negligence claim, he is essentially advancing a negligence per se theory, which is the theory he presented in his opposition to LoanCare's motion for summary judgment below. A negligence per se theory arises when the alleged duty of care is created by statute and satisfies the duty and breach elements of a negligence claim. Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 125 Nev. 818. 828, 221 P.3d 1276, 1283 (2009). However, to utilize a statute for negligence per se, the plaintiff must demonstrate (1) they are within the class of persons “whom the statute is intended to protect” and (2) “the injury is the type against which the statute is intended to protect.” Id.

Here, we conclude that Wiltse has failed to cogently argue NRS 107.530 supports a negligence per se theory because he did not address whether he is within the class of persons the statute is intended to protect, nor does he address whether his alleged injury is the type the statute is intended to protect. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (providing that this court need not consider claims that are unsupported by cogent arguments). Consequently, Wiltse has not demonstrated that NRS 107.530 establishes a duty of care applicable to LoanCare or that violation of the statute constitutes negligence per se. See Sagebrush Ltd. v. Carson City, 99 Nev. 204, 209, 660 P.2d 1013, 1016 (1983) (concluding that the plaintiffs failed to establish that a statute created a duty of care or that violation of the statute constituted negligence per se since the plaintiffs did not show that they belonged to the class of persons the statute was intended to protect or that their injury was the type the statute was intended to prevent); see also Builders Assn of N. Nev. v. City of Reno, 105 Nev. 368, 370, 776 P.2d 1234, 1235 (1989) (“If a statute expressly provides a remedy, courts should be cautious in reading other remedies into the statute.”).

Turning to Wiltse's claim that NAC 645F.976 supports a negligence per se theory, we disagree. The supreme court has previously held that “proof of a deviation from an administrative regulation is only evidence of negligence; not negligence per se.” Price v. Sinnott, 85 Nev. 600, 605, 460 P.2d 837, 840 (1969). Administrative regulations generally do not support a negligence per se theory because they “lack[ ] the force and effect of a substantive legislative enactment” and there must be “some leeway for those instances where the rule in issue may be arbitrary and its violation not necessarily unreasonable.” Id. at 605, 46 P.2d at 839-40; see also Vega v. E. Courtyard Assocs., 117 Nev. 436, 441, 24 P.3d 219, 222 (2001) (discussing that a building code supports a negligence per se theory once it is adopted through the passage of a local ordinance).

Here, because NAC 645F.976 is an administrative code, and not a legislative enactment, we conclude it does not support a negligence per se theory and thus does not impose a duty of care on LoanCare. Because Wiltse failed to demonstrate that either NRS 107.530 or NAC 645F.976 satisfies a negligence per se theory, he has not demonstrated that the district court erred in finding that LoanCare did not owe him a duty of care. Absent a duty of care, the district court appropriately granted summary judgment on Wiltse's negligence claim. Turner, 124 Nev. at 217, 180 P.3d at 1175 (establishing the elements of negligence, including the requirement of a duty of care).²

Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   According to Wiltse's opposition to summary judgment, “666” is used to signify the devil or evil in general and was indicative of LoanCare's malice towards him.

2.   Wiltse presents additional argument asserting violations of various federal regulations and a federal housing handbook. However, we do not address this point as Wiltse failed to support his position with cogent argument. Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38 (providing that this court need not consider claims that are unsupported by cogent arguments). We likewise decline to address Wiltse's remaining arguments regarding unjust enrichment, breach of contract, and the implied covenant of good faith and fair dealing because he failed to raise them before the district court and, thus, they are forfeited. 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 forfeited.).