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12û Nev.,Advance opinbn


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No. 58664

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Certifed questions under NRAP 5 concerning whether Nevada
law characterizes quiet title actions and unlawful detainer actions as
proceedings in personam, in rem, or quasi in rem. United States Court of
Appeals for the Ninth Circuit; Ronald M. Gould and Milan D. Smith, Jr.,
Circuit Judges, and Amy J. St. Eve, United States District Judge.

Questions answered.

Terry J. Thomas, Reno; Geoffrey L. Giles, Reno,
for Appellants.
Houser & Allison, APC, and Jeffrey S. Allison, Irvine, California,
for Respondents.


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E G E l M e D
JUN 2 3 2213

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By the Court, PICKERING, C.J.:


The United States Court of Appeals for the Ninth Circuit has

ertifîed the following questions to this court:

1. ls a quiet title action under Nevada
Revised Statutes j 40.010, which is premised on
an allegedly invalid trustee's sale under Nevada
Revised Statutes j 107.080(5)(a), . properly
arac erize un er eva a aw as a procee Ing
in personam, in rem, or quasi in rcm? '

2. ls an unlawful detainer action under
Nevada Revised Statutes 9 40.255(1)(c) properly
characterized under Nevada law as a proceeding
inpersonam, in rem, or quasi in rcm?

Chapman v. Deutsche Bank Nat'l Trust Co., 651 F.3d 1039, 1048 (9th Cir.


This dispute arises out of a nonjudicial foreclosure proceeding
that respondent Deutsche Bnnk National Trust Company initiated against
a home owned by appellants George P. Chapman, Jr., and Brenda J. Gully
Chapman. Deutsche Bank purchased the home by credit bid at the
trustee's sale. When the Chapmans did not vacate, Deutsche Bank filed
an unlawful detainer action in Reno justice court, seeking to have them
removed. The Chapmans countered by filing a complaint in Nevada
district court seeking to quiet title to the property. They alleged that
Deutsche Bank did not own the promissory note or deed of trust and had
foreclosed without proper notice under NRS 107.080, invalidating the
trustee's sale.

The Chapmans moved the justice court to transfer the
unlawful detainer proceeding to district court so it could be consolidated


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with the quiet title action. But before the justice court could decide the
Chapmans' motion, Deutsche Bank removed the quiet title action from
state to federal district court and filed a motion to dismiss the complaint
for failure to state a claim upon which relief could be granted under Fed.
R. Civ. P. 12(b)(6). A few days later, the Chapmans moved to remand the
quiet title action back to state court on the basis that the unlawful
detainer action gave the state court exclusive jurisdiction over the real
proper y a lssue m o sm s. e e era court enied the Chapmans'
motion to remand and granted Deutsche Bank's motion to dismiss.

The Chapmans appealed to the Ninth Circuit Court of
Appeals. They argued that the federal district court should not have ruled
on the motion to dismiss because the prior-exclusive-jurisdiction doctrine
required the federal court to abstain in favor of the earlier-filed unlawful
detainer action. The Ninth Circuit agreed with the Chapmans that, tfif
both the Quiet Title Action and the Unlawful Detainer Action are
characterized as in rem or quasi in rem, then the prior exclusive
jurisdiction doctrine requires us to vacate the District Courfs dismissal of
the Quiet Title Action.'' Chapman, 651 F.3d at 1048.

Existing Nevada law does not specify whether quiet title and
unlawful detainer actions are in personam, in rem, or quasi in rem, so the
Ninth Circuit certified questions concerning their proper characterization
to this court.


' The prior-exclusive-jurisdiction doctrine holds that, rfwhen one
court is exercising in rem jurisdiction over a res, a second court will not
assume in rem jurisdiction over the same res.'' Marshall v. Marshall, 547
U.S. 293, 311 (2006). lf Deutsche Bank's unlawful detainer action and the
Chapman's quiet title action are ffstrictly in personamr'' no prior-exclusive-




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jurisdiction problem arises because +0th a state court and a federal court
having concurrent Ein personaml jurisdiction may proceed with the
litigation.'' Penn Gen. Cas. Co. v. Pennsylvania ex rel. Schnader, 294 U.S.
189, 195 (1935). Similarly, if only one of the causes of action is in rem or
quasi in rem, +0th cases may proceed side by side.'' United States v.
$79,123.49 in U.S. Cash 4 Currency, 830 F.2d 94, 97 (7th Cir. 1987). ffBut
if the two suits are in rem or quasi in rem, requiring that the court or its
offcer have possession or control of the property which is the subject of the
suit in order to proceed with the cause and to grant the relief sought, the
jurisdiction of one court must of necessity yield to that of the other.'' Penn
Gen. Cas. Co., 294 U.S. at 195.


The character of the parties' competing quiet title and
unlawful detainer actions thus is determinative of the Chapmans' federal
appeal. Of note, we do not need to decide whether quiet title and unlawful
detainer actions are in personam or in rem or quasi in rem. The prior
exclusive jurisdiction doctrine applies whether the actions are in rem or
quasi in rem, just not if they are in personam. Scc Seitz v. Fed. Nat'l
Mortg. Ass'n, No. 3:12CV633, 2012 WL 5523078, at *2, 8 (E.D. Va. Nov.
14, 2012) (declining to determine whether quiet title actions are in rem or
quasi in rem because the distinction does not impact the prior exclusive
jurisdiction rule in a case ffstrikingly similar'' to Chapman).

Since current Nevada law does not resolve the questions
certified to us by the Ninth Circuit, we exercise our discretion under
NRAP 5 and accept them. Scc Volvo Cars of N. Am. v. Ricci, 122 Nev. 746,
749-51, 137 P.3d 1161, 1163-64 (2006). We reframe the questions,
however, to ask whether the quiet title and unlawful detainer actions are
in personam, on the one hand, or quasi in rem or in rem, on the other





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hand. This obviates the need to debate the exiguous distinction between
in rem and quasi in rem jurisdiction, which was historically signifcant but
now is of questionable importance. Restatement (Second) of Judgments j
6 cmt. a (1982); see Terracon Consultants W., Inc. v. Mandalay Resort
Grp., 125 Nev. 66, 72, 206 P.3d 81, 85 (2009) (this court may exercise its
discretion to reframe certified questions).


TKEAI proceeding in rem is one taken directly against property,
and has for its object the disposition of the property, without reference to
the title of individual claimants . . . .'' Pennoyer v. Ncf/', 95 U.S. 714, 734
(1877), overturned in part on other grounds by Shaffer v. Heitner, 433 U.S.
186, 205-06 (1977). In other words, when an action is in rem, the resulting
judgment applies against the whole world. Restatement (Second) of
Judg-ments ## 6, 30 (1982). By comparison, an in personam judg-ment acts
upon the persons who are parties to the suit. Shaffer, 433 U.S. at 199; see
also State v. Cent. Pac. R.R. Co., 10 Nev. 47, 80 (1875) (explaiGng that
actions in persona> seek personal judg-ments and are directed against
specific persons), overruled on other grounds by State ex rel. Sfcfç Bd. of
Equalization v. Barta, 124 Nev. 612, 626, 188 P.3d 1092, 1101-02 (2008);
Restatement (Second) of Judgments # 5 (1982). Quasi in rem proceedings
are <<a halfway house between in rem and in personam jurisdiction,''
because the ffaction is not really against the propert/' but rather is used
<%0 determine rights in certain property.'' 4A. Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure j 1070 (3d ed. 2002).


A Nevada quiet title action is predominantly in rem or quasi
in rem. NRS 40.010 governs Nevada quiet title actions and provides: ffAn
action may be brought by any person against another who claims an estate



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or interest in real property, adverse to the person bringing the action, for
the purpose of determining such adverse claim.'' A plea to quiet title does
n0t require any particular elements, but tfeach party must plead and prove
his or her own claim to the property in question'' and a d'plaintiffs right to
relief therefore depends on superiority of title.'' Yokeno v. Mafnas, 973
F.2d 803, 808 (9th Cir. 1992)9 see also Hodges Transp., Inc. v. Nevada, 562
F. Supp. 521, 522 (D. Nev. 1983).

In Robinson v. Kind, this court held that a proceeding is
substantially in rem where its ffdirect object is to reach and dispose of the
property of the parties described in the complaint.'' 23 Nev. 330, 343, 47
P. 977, 978-79 (1897). Mter rejecting the argument that an action to quiet
title necessarily invokes in personam jurisdiction because it seeks an
equitable remedy and equity normally acts upon the person, this court
explained that these precepts do not apply when the state has provided by
statute for the adjudication of titles to real estate within its boundaries,
which it deemed to be an in rem proceeding. Id. at 340-42, 47 P. at 978.
Although we decided Robinson more than 100 years ago, its holding that
quiet title affects property and thus is in rem (or quasi in rem) remains
good law. See Cent. Pac. S.S. Co., 10 Nev. at 80 CA judgment in rem is
founded on a proceeding not as against the person as such, but against the
thing or subject-matter itself whose state or condition is to be determined.''
(internal quotations omittedl).

By their complaint, the Chapmans seek to revest title in
themselves based on Deutsche Bnnk's alleged violation of NRS 107.080.
Even though a judgment quieting title vests title in a particular claimant,
and to that extent affects the interests of persons, see Restatement
(Second) of Judgments j 6 cmt. a (1982), its essential purpose is to


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establish superiority of title in property. Arndt v. Griggs, 134 U.S. 316,
321 (1890). This is quintessentially a manifestation of an in rem or quasi
in rem proceeding. Scc Scïfz, 2012 WL 5523078, at *11 (holding that a
suit to quiet title is either in rem or quasi in rem); 1st Nat'l Credit Corp. v.
J/brz Hake, 511 F. Supp. 634, 641-42 (D. Utah 1981) (commenting on the
semantic differences between in rem and quasi-in-rem labels and holding
that the Utah statutory action to quiet title is an actipp ip rqm, pr quasî in
rem); scc also 40235 Washington St. Corp. v. Lusardi, 976 F.2d 587, 589
(9th Cir. 1992) (TW quiet title action is a proceeding in rem.''4; Neagle v.
Brooks, 373 F.2d 40? 43 (10th Cir. 1967) (quiet title is ffpurely an in rem
actionr); Restatement (Second) of Judgments j 30 czht. a (1982) (actions
ffto quiet or remove a cloud on title'' are quasi in rem because the
judgments they produce determine interests in property); Restatement
(Second) of Conflict of Laws q 95 cmt. f (Supp. 1989) (deeming quiet title
actions quasi in rem because judgments rendered in them affect the
interests of particular persons in property).

Deutsche Bank nonetheless insists that the Chapmans' action
is in personam because it does not seek to quiet title so much as to
establish breach of contract and incorporated foreclosure statutes. As
support, Deutsche Bazlk points to the Chapmans' allegations of loan-
servicing irregularities and improper foreclosure notices and their prayer
for compensatory damages. We disagree. The Chapmans' claim is in rem
or quasi in rem because they seek to establish title to property. The
nature of their claim does not change because they request monetary
damages in addition to the central relief- quiet title-that they request.
Here, as in S'cïfz, the Chapmans' quiet title claim ftis quasi in rem or in
rem, (and) it does not lose that nature simply because (they) seekl )


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monetary damages in addition to title to property.'' Seitz, 2012 WL
5523078, at *11.


The primary purpose of an unlawful detainer action is to
restore the possession of property to one from whom it has been forcibly
taken or to give possession to one f'rom whom it is tmlawfully being
withheld. G.C. Wallace, Inc. v. Eigltth Judicial Dist. Court, 127 Ney. ,
, 62 P.3d 1135, 1140 (2011)9 Seitz, 2012 WL 5523078, at *4 (citing
Shorter t). Shelton, 33 S.E.2d 643, 647 (Va. 1945)). Consistent with this
purpose, a person who obtains title to property at a trustee's sale may
remove holdover tenants by means of an unlawful detainer action under
NRS 40.255(1)(c).

To initiate an action under NRS 40.255, the would-be plaintiff
must serve the property's occupants with a notice to quit. If the occupants
do not vacate the property within the time set by the notice, the owner
may file a written complaint for unlawful detainer, seeking restitution of
the premises. NRS 40.300. The plaintiff must serve the complaint with
summons on the occupants, id., and provide the court with proof of service
of the notice to quit as required by NRS 40.28043) or (4).

Thereafter, a trial may ensue if the parties' pleadings
demonstrate an issue of fact. NRS 40.310. But the proceedings are
summary and their scope limited. See G.C. Wallace, 127 Nev. at , 262
P.3d at 1140 (explaining that evidence extrinsic to the issue of immediate
possession cnnnot be introduced at trial). Typically, the issues are
whether the plaintiff gave the statutorily required notice, Davidsohn v.
Doyle, 108 Nev. 145, 150, 825 P.2d 1227, 1230 (1992), and who as between
the plaintiff and the defendant has a superior right to possessioh. NRS
40.3209 Lachman v. Barnett, 18 Nev. 269, 274, 3 P. 38, 41-42 (1884)


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(holding that tmlawful detaine: does not adjudicate title or an absolute
right to possession of property because ffltlhe object of the Eunlawful
detainer) statute was not to try titles, but to preserve the peace and
prevent violenceD); Seitz, 2012 WL 5523078, at *7 (tmlawful detainer
action limits court to determining possession between plaintiff and
defendant). Notably, a superior right to possession does not require proof
of title, although title can be evidence of the right tp posqeysion. Yori v.
henix, 38 Nev. 277, 282, 149 P. 180, 180-81 (1915) (fT(l1t has universally
been held that title to property cannot be an issue in such actions . . . even
though such pleading and proof may incidentally involve the question of
title.''). If after a trial, the court determines that the occupant has no legal
defense to the alleged unlawful detainer, it will issue a summary order for
restitution of the premises. NRS 40.36041).

Mthough possession of property differs from ownership of
roperty, possession is nonetieless a type of property interest. Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (dproperty
rights in a physieal thing have been described as the rights <t0 possess, use
and dispose of it.''' (quoting United States t7. General Motors Corp., 323
U.S. 373, 378 (1945))); Seitz, 2012 WL 5523078, at *5. In his
Commentaries on the Laws of England, Blackstone instructed that frthere
are four 'degrees' of title: (1) Tnaked possession,' (2) fright of possession,' (3)
fmere right of property,' and (4) Tcomplete title.''' Seitz, 2012 WL 5523078,
at *5 (quoting 2 William Blackstone, Commentaries *195-99). Unlawful
detainer actions fall into the second ddegree'' of title in a property, Tfright of
possessiony'' and accordingly, are actions that affect interests in a thing-
real property. As such, unlawful detainer is in rem or quasi in rem. Scc
G.C. Wallace, 127 Nev. at , 262 P.3d at 1140-41 (explaining in the


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analogous summary eviction setting that the key elements and defenses of
unlawful detainer center on possession and property rights, rather than
personal rights or obligations.); Seitz, 2012 WL 5523078, at *8; see also
Hepburn (9 Dundas' Heirs t). Dunlop tî Co., 14 U.S. 179, 203 n.d (1816)
(describing ejectment as a proceeding in reml; Scherbenske t7. Wachovia
Mortg., FSB, 626 F. Supp. 2d 1052, 1057 (E.D. Cal. 2009) (holding that the
unlawful detainer action plaintiff sought to enjoin was a quasi-in-rem
aC lOn .

Thus, in response to the Ninth Circuit's questions, we answer
that quiet title and unlawful detainer proceedings pertain to interests in a
thing and are, thus, dtin rem'' or Rquasi in rem'' in nature. We decline the
parties' invitation to expound on the federal prior-exclusive-jurisdiction
doctrine, as those questions were not certified to us and are best left to the
court of origin.



, C.J.

We c


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