By the Court, DOUGLAS, J.:
This original petition for a writ of mandamus or prohibition presents the issue of whether the counterclaim, cross-claim, and written motion setting the grounds for the application and the relief sought satisfies the requirements of NRS Chapter 40 for seeking a deficiency judgment based upon a breach of guaranty. We conclude that it does and deny petitioner William T. Walters' request for extraordinary relief.
This case involves the sale of Stallion Mountain Golf Course for $24,480,000 to a group of 26 investors (the Borrowers) in February 2006. To complete the purchase, the Borrowers contributed $9,230,000 in cash and financed the remaining balance owed ($15,250,000) through a nonrecourse loan (the Loan) with Community Bank of Nevada (CBN). In order to facilitate the sale, Walters entered into a separate guaranty with CBN where he personally guaranteed the Loan. In Walters' guaranty, he expressly waived the requirements of NRS 40.430 (the one-action rule), "which provides that a creditor can pursue only one action to recover a debt secured by a mortgage or lien on real property."
Prior to the Borrowers' default and the eventual foreclosure of Stallion Mountain, Walters filed a complaint in the district court in May 2008, asserting causes of action for declaratory relief and breach of the implied covenant of good faith and fair dealing against CBN.
In September 2008, CBN filed its initial answer, counterclaim, cross-claim, and third-party complaint in response to Walters' complaint. In its counterclaim, CBN alleged that Walters breached his personal guaranty. Specifically, CBN asserted that Walters "absolutely and unconditionally agree[d] to pay the indebtedness of the Borrowers under the Loan" and his failure to pay was a default on his guaranty. In December 2008, a trustee's sale was held for Stallion Mountain, and CBN purchased the property with a credit bid of $5 million.
CBN filed a motion for summary judgment on its breach of guaranty action against Walters and sought damages of $12,470,919.37, which, at the time, was the remaining amount of the unpaid balance of the Loan on Stallion Mountain. In June 2009, Walters filed a motion for partial summary judgment on CBN's counterclaim for breach of the guaranty arguing that (1) CBN failed to apply for a deficiency judgment within six months after the foreclosure pursuant to NRS 40.455(1) (the anti-deficiency statute), (2) CBN's failure afforded him the protection of the anti-deficiency statutes pursuant to NRS 40.495(3), and (3) CBN was barred from recovering any amount against him under the guaranty. This motion was filed six months and one day after the date of the Stallion Mountain foreclosure. The district court denied the motion, finding that CBN's breach of guaranty counterclaim served as an "application" for relief as contemplated under NRS 40.455 because CBN framed the deficiency issue in moving for summary judgment against Walters on its breach of guaranty counterclaim. Thus, the district court concluded that CBN's counterclaim and motion for summary judgment met the requirements of an "application" for deficiency under NRS 40.455. The court also concluded that CBN was not seeking double recovery as it clearly stated in its motion for summary judgment that it was giving Walters credit for the sale price of Stallion Mountain.
In August 2009, the district court granted in part CBN's motion for summary judgment, concluding that no genuine issues of material fact existed as to Walters' guaranty liability to CBN. However, the district court concluded that factual issues still remained as to the amount of Walters' liability. The court ordered a hearing to determine the fair market value of Stallion Mountain in order to establish the amount of Walters' liability under the guaranty and ensure that Walters received appropriate credit for the value of the property as applied to his guaranty.
The Nevada Financial Institutions Division subsequently closed CBN and real party in interest, Federal Deposit Insurance Corporation (FDIC), has acted as receiver since that time. Walters now petitions this court for a writ compelling the district court to vacate its partial summary judgment in favor of CBN, to vacate its decision denying Walters' motion for partial summary judgment, and to preclude CBN from recovering any amount from Walters under his guaranty.
Walters argues that extraordinary writ relief is appropriate because the district court was required to grant his motion for partial summary judgment and deny CBN's motion, based on CBN's failure to apply to the district court for a deficiency judgment within the statutory six-month time period. As a result, CBN is barred as a matter of law from recovering any amount under the guaranty.
Both mandamus and prohibition are extraordinary remedies, and whether a petition for extraordinary relief will be considered is solely within this court's discretion. See Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Neither writ
According to CBN, it clearly asserted a claim that comported with NRS 40.459 by calculating the amount Walters owed as a result of the deficiency (total indebtedness less the property's fair market value). We agree.
"Statutory interpretation is a question of law that we review de novo, even in the context of a writ petition." International Game Tech. v. Dist. Ct., 124 Nev. 193, 198, 179 P.3d 556, 559 (2008). "`Where the language of a statute is plain and unambiguous and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.'" Madera v. SIIS, 114 Nev. 253, 257, 956 P.2d 117, 120 (1998) (quoting Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995)).
The parties dispute whether CBN's counterclaim, cross-claim, and summary judgment motion, which asserted a deficiency against Walters, met NRS 40.455(l)'s requirements that a judgment creditor apply for a deficiency judgment within six months after a foreclosure sale. NRS 40.455(1) states:
The statute requires an application within six months after the foreclosure sale but does not state that it must be specifically labeled as a deficiency judgment application as Walters asserts. Walters fails to argue persuasively that CBN's motion for summary judgment did not meet the application requirement. Although NRS 40.455(1) does not state how an application should be made, NRCP 7(b)(1) supports CBN's argument that its motion for summary judgment served as an application for a deficiency as required by NRS 40.455(1). NRCP 7(b)(1) provides that
Here, CBN's motion for summary judgment meets the requirements of NRCP 7(b)(1) as an application because it was made in writing, set forth in particularity the grounds for the application, and set forth the relief sought. Under the clear and unambiguous language of NRS 40.455(1), an application must be made within six months, and CBN's application was well within that time frame. The trustee's sale was conducted on December 8, 2008. The counterclaim and cross-claim were filed April 13, 2009, within six months of the date of the trustee's sale. The district court also found that CBN's motion for summary judgment constituted an application made within six months as required under NRS 40.455(1). Based on this determination, the district court concluded that CBN was not barred from attempting to prove a deficiency.
Accordingly, we deny Walters' petition for a writ of mandamus or prohibition.
We concur: SAITTA, C.J., CHERRY, GIBBONS, HARDESTY, and PARRAGUIRRE, JJ.