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48 any "new pleading, motion or other document without prior leave of the court." A.R.S. ยง 12- 3201(B). NEVADA Unlike Arizona, Nevada does not have a specific vexatious litigant statute. Instead, Nevada looks to the Federal Ninth Circuit for guidance, which has defined vexatious litigation as "without reasonable or probable cause or excuse, harassing, or annoying." Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 886 (9th Cir. 2012). To determine whether the litigant's conduct is frivolous or ha- rassing, the court evaluates both the number and content of the filings as indicia of the frivolous- ness of the litigant's claims. Albanese v. Las Vegas Metro. Police Dep't, 2:17-cv-01600-JAD-VCF, 2017 WL 2622759, at *6 (D. Nev. June 15, 2017). Additionally, Nevada courts also utilize similar factors outlined above from Arizona in evaluating what constitutes "harassing" or "with- out reasonable cause." Again, there is no bright line number of unsuccessful lawsuits or motions needed to deem a borrower a vexatious litigant; however, usually a second motion to deem the borrower vexatious will gain more traction. When successful, the borrower will be barred from continuing to file suits and delay the foreclosure without first obtaining court approval to file. CONCLUSION Regardless of whether your case is in Nevada or Arizona, it is important to emphasize the mantra of "if you do not succeed, try, try again." Courts are inherently sympathetic and skittish to deem a pro se borrower litigant (or any litigant for that matter) as "vexatious," given the effects of doing so (i.e. forcing them to obtain leave before any new filings). us, for instance, if you prevail on a Motion to Dismiss in "Case A," and the borrower subse- quently brings an identical "Case B," you are well within your right to seek not only a dismissal, but also an order deeming the borrower vexatious. In so doing, a Court will likely grant your request for a dismissal, but in many cases deny the portion deeming the borrower vexatious. But that does not mean that portion of the Motion was for naught. Because borrowers who file two unsuccessful lawsuits are highly likely to do it again and again, anything to forestall the inevitable foreclosure. us, when "Case C" eventually comes about, the lender has already greased the wheels with the court and can file a renewed motion, highlighting how its fears became realized when the borrower filed yet another meritless lawsuit. At that point, the court should seriously consider deeming overly aggressive borrowers a vexatious litigant, preventing them from filing new litigation with- out first obtaining court approval after proving to the court that the proposed lawsuit has merit. Disclaimer: e above information is intended for information purposes alone and is not intended as legal advice. Please consult with counsel before taking any steps in reliance on any of the information contained herein. Robert A. Riether Esq. is a Senior Associate with the Wright, Finlay & Zak LLP's Nevada office. He comes from a diverse background, having worked as an auditor with PricewaterhouseCoopers LLP in New York City. Riether entered private practice in New York City in 2008 before moving to Las Vegas in 2012 and continuing in the private sector. Since joining Wright, Finlay & Zak in 2017, Riether's practice has focused primarily on real estate litigation, including lender and servicer liability defense, wrongful foreclosure defense, fair debt collection practices defense, and title disputes. He regularly practices in state and federal courts throughout Nevada and is also licensed in Arizona, New Mexico, New York, and New Jersey. Riether is also a Certified Public Accountant licensed in both Nevada and New York. Feature By Robert A. Riether Esq. Unfortunately, there is no bright line rule on how many unsuccessful lawsuits or baseless motions are needed before the court deems the borrower a vexatious litigant.

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