PNC Bank, National Association v. Starfire Condominium Owners' Association

Filing 49

ORDER STAYING CASE Granting 48 Stipulation to Stay. Status Check set for 90 days from date of this Order. Signed by Judge Richard F. Boulware, II on 9/2/16. (Copies have been distributed pursuant to the NEF - ADR)

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COLT B. DODRILL, ESQ.
Nevada Bar No. 9000
GREGORY S. BEAN, ESQ.
Nevada Bar No. 12694
WOLFE & WYMAN LLP
6757 Spencer Street
Las Vegas, NV 89119
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
PNC BANK, NATIONAL ASSOCIATION

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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PNC BANK, NATIONAL ASSOCIATION, a
National Banking Association,

CASE NO. 2:15-cv-00108-RFB-CWH

Plaintiff,

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STIPULATION AND ORDER
TO STAY CASE

v.
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STARFIRE CONDOMINIUM OWNERS’
ASSOCIATION; CHERYL FLEMING; DOES 1
through 10, inclusive; ROES Business Entities 1
through 10, inclusive; and all others who claim
interest in the subject property located at 8725 West
Flamingo Road, #113, Las Vegas, Nevada, 89147,
Defendants.

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STARFIRE CONDOMINIUM OWNERS’
ASSOCIATION, a Nevada non-profit corporation,
Counterclaimant,
v.
PNC BANK, NATIONAL ASSOCIATION, a
National Banking Association,
Counter-Defendant.

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STARFIRE CONDOMINIUM OWNERS’
ASSOCIATION, a Nevada non-profit corporation,

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Third-Party Plaintiff,
v.
DANNY FRANK HARRINGTON a/k/a/ DANIEL
F. HARRINGTON, an individual; NAM TU
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HARRINGTON, an individual; REPUBLIC
MORTGAGE, A DIVISION OF OLD KENT
MORTGAGE COMPANY, a foreign corporation;
HOUSEHOLD FINANCE REALTY
CORPORATION OF NEVADA, a foreign
corporation; DOE INDIVIDUALS I though X,
inclusive; and ROE CORPORATIONS I through I,
inclusive,

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Third-Party Defendants.
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STIPULATION AND ORDER TO STAY CASE

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Plaintiff/Counter-Defendant,

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PNC

BANK,

NATIONAL

ASSOCIATION,

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Defendant/Counterclaimant, STARFIRE CONDOMINIUM OWNERS’ ASSOCIATION, and

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Defendant CHERYL FLEMING, either individually or by and through their respective counsel

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of record, hereby stipulate as follows:

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1. This lawsuit is one of hundreds where the parties dispute the effect of a non-judicial

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foreclosure sale held by an HOA pursuant to NRS 116.3116 et seq. (the "Statute") for an

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owner's failure to pay HOA assessments.

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2. On August 12, 2016, the Ninth Circuit issued a decision in Bourne Valley Court Trust v.

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Wells Fargo Bank, NA., No. 15-15233, slip op. (9th Cir. August 12, 2016), holding that NRS

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116.3116 et seq. is facially unconstitutional under the due process clause of the Fourteenth

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Amendment to the United States Constitution.

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3. The Parties dispute the impact that Bourne Valley has on the claims in this lawsuit.

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4. Counsel for the petitioner in Bourne Valley has stated that he will be filing a petition for re-

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hearing by August 26, 2016, and in connection therewith, requested that the Ninth Circuit

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stay publication of the opinion.

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5. The Nevada Supreme Court has set oral argument for September 8, 2016, in Saticoy Bay LLC

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Series 350 Durango 104 v. Wells Fargo Home Mortgage, Nevada Supreme Court case

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68630, Nevada District Court case A-13-688410-C. This case addresses the same issues as

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Bourne Valley.

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6. On information and belief, the Nevada Supreme Court will expedite issuing an opinion in in

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in Saticoy Bay LLC Series 350 Durango 104 that will construe NRS 116.3116 et seq. and
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eliminate substantial uncertainty that currently exists in this area of the law.

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7. Staying this case pending the Nevada Supreme Court and Ninth Circuit’s opinion will avoid

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premature arguments or briefing on the Bourne Valley decision and will enable the Parties to

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present argument and evidence to this Court with complete legal authority, thereby

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promoting the most efficient use of the Court's and the Parties' limited resources.
8. Because the oral argument in Saticoy Bay LLC Series 350 Durango 104 is imminent and the

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Nevada Supreme Court is certainly aware of the hundreds of lawsuits that will affected, if not

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resolved, by the Nevada Supreme Court’s decision, the stay is not indefinite.
9. Accordingly, the parties request that all proceedings in this lawsuit are stayed, and all

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upcoming deadlines, hearings, and conferences be vacated.

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10. The parties agree that Defendant Cheryl Fleming will maintain the property at issue in its

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current condition and will abide by all obligations and responsibilities arising from

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Plaintiff’s alleged ownership interest in the property, including but not limited to the

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payment of all applicable fees, assessments, taxes, and other financial obligations.

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11. The Parties agree that upon written request and reasonable notice, Defendant Cheryl Fleming

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shall allow PNC access to the property to inspect and ensure the property is being reasonably

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maintained.
12. The Parties agree that PNC will not pursue foreclosure against the property at issue during

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the stay.

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13. The Parties agree that Defendant Cheryl Fleming will not sell, transfer, or convey the

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property while this case is stayed.

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14. This stay will expire after the Ninth Circuit issues a mandate in Bourne Valley and the

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Nevada Supreme Court issues an opinion in Saticoy Bay LLC Series 350 Durango 104.

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15. Within fifteen (15) days after the mandate is issued, the parties shall file a notice

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informing the Court that the stay has expired and requesting that the Court set a status

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hearing.

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16. If the Court desires, the parties request that the Court set a status check for approximately 90
days from the date of entry of this Stipulation and Order.

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Dated: August 31, 2016

Dated: August 31, 2016

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WOLFE & WYMAN, LLP

ALESSI & KOENIG, LLC

By: /s/ Gregory S. Bean
Colt B. Dodrill, Esq.
Nevada Bar # 9000
Gregory S. Bean, Esq.
Nevada Bar # 12694
6575 Spencer Street
Las Vegas, NV 89119
Attorneys for Plaintiff/Counter-Defendant,
PNC Bank, National Association

By: /s/ Steven T. Loizzi, Jr.
Steven T. Loizzi, Jr., Esq.
Nevada Bar # 10920
9500 West Flamingo Road, Suite 205
Las Vegas, NV 89147
Attorneys for Defendant/
Counterclaimant,
Starfire Condominium Owners’
Association

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Dated: August 31, 2016

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By: /s/ Cheryl Fleming
Cheryl Fleming
8725 West Flamingo Road, Unit 113
Las Vegas, NV 89147
Defendant

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ORDER

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IT IS SO ORDERED.

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September 2, 2016.
DATED: ________________________

____________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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