108.2275 - Frivolous or excessive notice of lien: Motion; hearing; consequences of failure to appear; effect on action to foreclose; order; appeal; recording of certified copy of order releasing or re
108.2275 Frivolous or excessive notice of lien: Motion; hearing; consequences of failure to appear; effect on action to foreclose; order; appeal; recording of certified copy of order releasing or reducing notice of lien.
1. The debtor of the lien claimant or a party in interest in the property subject to the notice of lien who believes the notice of lien is frivolous and was made without reasonable cause, or that the amount of the notice of lien is excessive, may apply by motion to the district court for the county where the property or some part thereof is located for an order directing the lien claimant to appear before the court to show cause why the relief requested should not be granted.
2. The motion must:
(a) Set forth in detail the legal and factual grounds upon which relief is requested; and
(b) Be supported by:
(1) A notarized affidavit signed by the applicant setting forth a concise statement of the facts upon which the motion is based; and
(2) Documentary evidence in support of the affidavit, if any.
3. If the court issues an order for a hearing, the applicant shall serve notice of the application and order of the court on the lien claimant within 3 days after the court issues the order. The court shall conduct the hearing within not less than 15 days or more than 30 days after the court issues the order for a hearing.
4. The order for a hearing must include a statement that if the lien claimant fails to appear at the time and place noted, the notice of lien will be released with prejudice and the lien claimant will be ordered to pay the reasonable costs the applicant incurs in bringing the motion, including reasonable attorney’s fees.
5. If, at the time the application is filed, an action to foreclose the notice of lien has not been filed, the clerk of the court shall assign a number to the application and obtain from the applicant a filing fee of $85. If an action has been filed to foreclose the notice of lien before the application was filed pursuant to this section, the application must be made a part of the action to foreclose the notice of lien.
6. If, after a hearing on the matter, the court determines that:
(a) The notice of lien is frivolous and was made without reasonable cause, the court shall make an order releasing the lien and awarding costs and reasonable attorney’s fees to the applicant for bringing the motion.
(b) The amount of the notice of lien is excessive, the court may make an order reducing the notice of lien to an amount deemed appropriate by the court and awarding costs and reasonable attorney’s fees to the applicant for bringing the motion.
(c) The notice of lien is not frivolous and was made with reasonable cause or that the amount of the notice of lien is not excessive, the court shall make an order awarding costs and reasonable attorney’s fees to the lien claimant for defending the motion.
7. Proceedings conducted pursuant to this section do not affect any other rights and remedies otherwise available to the parties.
8. An appeal may be taken from an order made pursuant to subsection 6. A stay may not be granted if the district court does not release the lien pursuant to subsection 6.
9. If an order releasing or reducing a notice of lien is entered by the court, and the order is not stayed, the applicant may, within 5 days after the order is entered, record a certified copy of the order in the office of the county recorder of the county where the property or some part thereof is located. The recording of a certified copy of the order releasing or reducing a notice of lien is notice to any interested party that the notice of lien has been released or reduced.
(Added to NRS by 1995, 1505; A 1997, 2693; 2003, 2600; 2005, 1900)