Branch Banking and Trust Company vs Jones/Windmill, LLC, et al.

Filing 146

ORDER Granting 145 Stipulation Regarding Trial. The Jury Trial Scheduled for 8/10/2015 is Vacated. Signed by Judge James C. Mahan on 8/7/2015. (Copies have been distributed pursuant to the NEF - DC)

Case 2:12-cv-00452-JCM-GWF Document 145 Filed 08/06/15 Page 1 of 3

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BART K. LARSEN, ESQ.

Nevada Bar No. 008538
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JANET L. ROSALES,ESQ.

Nevada Bar No. 010736
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KOLESAR 8t LEATHAM

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400 South Rampart Boulevard, Suite 400
Las Vegas, Nevada 89145
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
[e-mail]

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Attorneys for Defendants

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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]
CASE NO. 2: 2-cv-00452-JCM-GWF

BRANCH BANKING AND TRUST
COMPANY,a North Carolina banking
corporation,

STIPULATION AND ORDER
REGARDING TRIAL

Plaintiff,
vs.
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JONES/WINDMILL,LLC,a Nevada limited
liability company, YOEL INY; NOAM
SCHWARTZ; YOEL INY,Trustee of the Y&T
INY FAMILY TRUST dated June 8, 1994;
NOAM SCHWARTZ,Trustee of the NOAM
SCHWARTZ TRUST dated August 19, 1999;
D.M.S.I., L.L.C., a Nevada limited liability
company; and DOES 1 through 10, inclusive,

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Defendants.
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Plaintiff BRANCH BANKING AND TRUST COMPANY ("BB&T" or "Plaintiff"), by

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and through its counsel of record, and Defendants JONES/WINDMILL, LLC; YOEL INY;

26 ~~ NOAM SCHWARTZ; YOEL INY, Trustee of the Y&T INY FAMILY TRUST dated June 8,
27 ~~ 1994; NOAM SCHWARTZ, Trustee of the NOAM SCHWARTZ TRUST dated August 19,
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1920865(8237-11)

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Case 2:12-cv-00452-JCM-GWF Document 145 Filed 08/06/15 Page 2 of 3

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1999; and D.M.S.I., L.L.C., (collectively "Defendants"), by and through their counsel of record,

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hereby as follows:

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Defendants waive their right to a jury trial as to the issue of the amount of

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indebtedness owed as of the date of foreclosure, which is the only remaining issue on which the

5~ Court has determined that Defendants are entitled to a jury trial, and consent to the adjudication
6~ of this issue by the Court.Z
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Accordingly, Plaintiff and Defendants agree to vacate the jury trial set to

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commence on August 10, 2015 and respectfully request that the Court reset this action for a

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bench trial to adjudicate all remaining issues in the case.

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Plaintiff and Defendant do not agree on all issues of fact or law remaining to be

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adjudicated at trial. Plaintiff has filed two motions in limine [Documents 122 and 123] seeking

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clazification as to the issues to be addressed at trial, which remaining pending before the Court.

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The parties positions are as follows:

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a. Plaintiff believes that all issues have been adjudicated except the amount of the

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deficiency judgment, which shall be determined according to Nevada Revised

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Statutes ("NRS") 40.451, et. seq. To determine the deficiency judgment as set

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forth in NRS 40.459, there must only be a determination of the fair market value

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of the subject property on the date of the trustee's sale pursuant to NRS 40.457

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and the amount of the "indebtedness" as defined by NRS 40.451.

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b. In addition to the foregoing issues identified by Plaintiff, Defendants believe other

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issues remain unresolved. These issues include (i) the calculation of interest

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claimed due by Plaintiff, (ii) the application of any offset or reduction to interest

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claimed due by Plaintiff as a result of uncertainty or manipulation of the LIBOR

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rate; and (iii) Plaintiffs mitigation of damages and delays in foreclosing on the

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]Granting Plaintiff's Emergency Motion for Clarification Regarding Trial.
~ See Order [Document ]3]
Z For the sake of clarity, Defendants do not waive their demand for a jury trial as to any other issue or waive their
right to appeal the Court's Order [Document 131] Granting Plaintiffs Emergency Motion for Clarification
Regarding Trial.

1920865 (8237-11)

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Case 2:12-cv-00452-JCM-GWF Document 145 Filed 08/06/15 Page 3 of 3

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subject property and the resulting impact on the fair market value of the subject

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property.

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The Parties enter into this Stipulation in good faith and not for the purpose of delay.

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DATED this day of August, 2015.

day of August, 2015.

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DATED this

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KOLESAR 8i LEAT
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By

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HY f I

HART

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BART K. LARSEN,ESQ..
JANET L. ROSALES,ESQ.

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,TER~,aGIY .T. lyO~tK,~ESQ.
Nicot,E E. I~~~VELOCK ESQ.

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400 South Rampart Boulevard, Suite 400
Las Vegas, Nevada 89145

9555 Hillwood Drive,2nd Floor
Las Vegas, Nevada 89134

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Attorneys for Plaintiff

Attorneys for Defendants
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Jury trial presently scheduled to begin on Monday, August 10, 2015, is hereby
vacated.

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IT' IS SO ORDERED:
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UNITED STATES DISTRICT JUDGE
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Dated:

August 7, 2015

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Respectfully Submitted:
AM

KOLES R &LEA

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By:

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_

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BA
. LARSEN,ESQ.
.TANET L. ROSALES,ESQ.

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400 South Rampart Boulevard, Suite 400
Las Vegas, Nevada 89145
Attorneys for Defendants

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1920885(8237-11)

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