First 100, LLC v. Federal Home Loan Mortgage Corporation et al

Filing 35

ORDER Granting 34 Stipulation to Stay Discovery Deadlines. Signed by Magistrate Judge Peggy A. Leen on 1/21/16. (Copies have been distributed pursuant to the NEF - PS)

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DARREN T. BRENNER, ESQ.
Nevada Bar No. 8386
MATTHEW I. KNEPPER, ESQ.
Nevada Bar No. 12796
Akerman LLP
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Defendant Federal Home Loan Mortgage Corporation

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AKERMAN LLP

UNITED STATES DISTRICT COURT

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1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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DISTRICT OF NEVADA

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FIRST 100, LLC, a Nevada limited liability
company,

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Plaintiff,
STIPULATION AND ORDER TO STAY
DISCOVERY DEADLINES

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v.

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FEDERAL HOME LOAN MORTGAGE
CORPORATION,
a
federally
chartered
corporation; ALEXANDRE DUPRE LLC, a
Nevada limited liability company; Does I
through X and ROE Corporations I through X,

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Case No. 2:15-cv-01303-APG-PAL

(FIRST REQUEST)

Defendants.
FEDERAL HOME
CORPORATION,

LOAN

MORTGAGE

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v.

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FIRST 100, LLC,

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Pursuant to Local Rule 6-1(a) for the United States District Court for the District of Nevada,
Plaintiff First 100, LLC (“Plaintiff”), Defendant Federal Home Loan Mortgage Corporation
(“Freddie Mac”), and Intervenor and Counterclaimant Federal Housing Finance Agency (“FHFA”)
(FHFA and Freddie Mac are referred to collectively herein as “Defendants”; Plaintiff, FHFA, and
{00941747;1}

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Freddie Mac are collectively referred to herein as “the Parties”) stipulate to stay discovery in this

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case pending the Court’s ruling on FHFA and Freddie Mac’s motion for summary judgment, ECF

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No. 32, filed January 11, 2016 (“Defendants’ Motion for Summary Judgment”).

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This is an HOA quiet title dispute. On January 11, 2016, Defendants filed their Motion for

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Summary Judgment, which they believe presents a meritorious basis for summarily adjudicating

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Plaintiff’s Complaint. Specifically, Defendants contend that this loan is owned by Freddie Mac, and

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Defendants argue that under 12 U.S.C. § 4617(j)(3), an HOA foreclosure sale cannot extinguish

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Freddie Mac's interest in the property. See ECF No. 32.

AKERMAN LLP

Plaintiff disputes the merits of Defendants’ Motion for Summary Judgment, as well as

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1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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disputes that there is no issue of material fact, and plans to oppose it. The Parties, however, agree

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that Defendants’ Motion for Summary Judgment, if granted, would potentially be dispositive of the

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issues in this case. The Parties, therefore, agree that staying discovery pending the Court’s ruling on

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Defendants’ Motion for Summary Judgment would be the most efficient and economical action at

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this time because doing so will preserve judicial resources and relieve the Parties from incurring the

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significant and potentially unnecessary costs of taking and defending depositions and responding to

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written discovery should the Court grant Defendant’s Motion for Summary Judgment.

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First 100 and Freddie Mac did not originally contemplate seeking a stay of discovery in this

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case, and, accordingly, discovery has been proceeding. In addition to the issues raised in Defendants'

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Motion for Summary Judgment, Freddie Mac maintains that this case involves questionable

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relationships between the HOA, its trustee, and the purchaser of the property at the HOA’s

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foreclosure sale which require significant discovery and which are related to Freddie Mac’s state law

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claims and defenses.

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homeowners delinquency prior to the sale in a clandestine transaction, that it improperly foreclosed in

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the name of the HOA after purchasing the delinquency, that it separated the note from the deed of

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trust, and that even if the law did not prohibit the foreclosure, the unique factual circumstances

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surrounding this sale gave rise to a commercially unreasonable transaction. First 100 acknowledges

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that it purchased certain rights to the delinquent HOA account, but denies there was anything

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improper about the transaction.
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For example, Freddie Mac alleges that First 100 purchased the former

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Written discovery was served by Plaintiff and by Freddie Mac, and depositions were

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previously noticed, primarily dealing with the state law issues referenced above.

Specifically,

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depositions were set for January 7, 2016—including the plaintiff's deposition, the deposition of the

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HOA, and the deposition of the trustee—and Defendants’ and Plaintiff’s responses to written

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discovery were due January 11, 2016. Faced, however, with significant discovery in this case

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regarding non-parties and a motion for summary judgment based on a discrete legal issue that is both

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potentially dispositive of the issues in this case, the Parties agreed to a stay, taking the depositions off

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calendar, staying responses to discovery, and saving the expense related to that discovery at this

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time.1 The Parties respectfully request that the Court enter the requested stay in this matter.

AKERMAN LLP

1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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“It is within the Court’s broad discretion to control discovery to determine whether a stay of

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discovery is appropriate.” H&N Investments, LLC v. MTC Financial, Inc., 2015 WL 5256947, at *1-

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*2 (D. Nev., Sept. 8, 2015) (citing Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir.1988)). Nevada

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federal courts have held that a stay of discovery may be granted where “(1) the pending motion is

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potentially dispositive of the entire case or at least dispositive of the issue on which discovery is

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sought, and (2) the pending potential dispositive motion can be decided without additional

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discovery.” H&N Investments, 2015 WL 5256947 at *2 (citing Ministerio Roca Solida v. U .S. Dep’t

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of Fish & Wildlife, 288 F.R.D. 500, 506 (D.Nev.2013)). In making its determination, a court will

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take a “preliminary peek” at the merits of the underlying motions. Id.

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Here, Defendants’ Motion for Summary Judgment turns on a discrete, dispositive legal issue:

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namely, whether the HOA foreclosure at issue in this case was barred under the Housing and

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Economic Recovery Act of 2008 (“HERA”), Pub. L. No. 110-289, 122 Stat. 2654, codified at 12

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U.S.C. § 4511 et seq. Courts in this District have recently resolved dispositive motions in favor of

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FHFA, Freddie Mac, and Fannie Mae on this issue in nine cases. See Skylights v. Byron, No. 2:15-

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cv-0043-GMN-VCF, 2015 WL 3887061 (D. Nev. June 24, 2015); Elmer v. Freddie Mac, No. 2:14-

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cv-1999-GMN-NJK, 2015 WL 4393051 (D. Nev. July 14, 2015); Premier One Holdings, Inc. v.

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Fannie Mae, No. 2:14-cv-02128-GMN-NJK, 2015 WL 4276169 (D. Nev. July 14, 2015); Williston

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In the event the Court denies this stipulation, the Parties would need an additional thirty days, at a minimum,
to complete depositions and discovery.
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4276144 (D. Nev. July 14, 2015); My Global Village, LLC v. Fannie Mae, No. 2:15-cv-0211-RCJ-

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NJK, 2015 WL 4523501 (D. Nev. July 27, 2015); 1597 Ashfield Valley Trust v. Fannie Mae, No.

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2:14-cv-2123-JCM, 2015 WL 4581220 (D. Nev. July 28, 2015); Fannie Mae v. SFR Investments Pool

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1, LLC, No. 2:14-CV-2046-JAD-PAL, 2015 WL 5723647 (D. Nev. Sept. 28, 2015); Saticoy Bay,

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LLC Series 1702 Empire Mine v. Fannie Mae, No. 2:14-CV-1975-KJD-NJK, 2015 WL 5709484 (D.

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Nev. Sept. 29, 2015); Berezovsky v. Moniz, No. 2:15-cv-1186-GMN-GWF, 2015 WL 8780198 (D.

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Nev. Dec. 15, 2015). The latter eight cases adopted the court’s reasoning in Skylights. In each of

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these cases, the court held that an HOA foreclosure sale could not have extinguished the Enterprises’

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AKERMAN LLP

Investment Grp., LLC v. JP Morgan Chase Bank, NA, No. 2:14-cv-2038-GMN-PAL, 2015 WL

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1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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property interests pursuant to a straightforward application of the Federal Foreclosure Bar, guided by

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the case law interpreting the similar property protection provision applicable to FDIC receiverships,

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12 U.S.C. § 1825(b)(2).

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Again, while Plaintiff affirmatively opposes Defendants’ Motion for Summary Judgment and

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takes the position that the Court should not grant it, Plaintiff agrees that it is preferable to stay

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discovery pending the Court’s ruling because, if granted, Defendants’ Motion for Summary Judgment

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would potentially be dispositive of the issues in this case. Plaintiff disagrees that discovery is not

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needed to decide the issues in Defendants’ Motion for Summary Judgment and will oppose said

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Motion on Rule 56(d) grounds. Nevertheless, Plaintiff acknowledges that the Motion has been filed

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and agrees to stay discovery in an effort to preserve judicial resources, as well as avoid needless effort

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and costs by the Parties. The Parties have, therefore, removed from their schedules depositions that

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were noticed for the week of January 4, 2016, and have agreed to extend the deadline to respond to

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each other’s outstanding written discovery requests pending the Court’s approval of this stipulation

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and the Court’s ruling on Defendants’ Motion for Summary Judgment.

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Accordingly, by and through their respective counsel of record, the Parties hereby stipulate

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and agree as follows: that all discovery is stayed pending the Court’s ruling on Defendants’ Motion

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for Summary Judgment. The Parties agree that the stay of discovery does not impede Plaintiff’s

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ability to seek Fed. R. Civ. P. 56(d) relief.

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In the alternative, should the Court deny this stipulation, the Parties’ intend to respond to

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each other’s outstanding written discovery requests two weeks after that decision, and further request

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that they be allowed to reset the required deposition discovery within 30 days after the Court’s

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decision.
WEIL & DRAGE, APC

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/s/ Jason Martinez
NEIL B. DURRANT, ESQ.
Nevada Bar No. 7324
C. ROBERT PETERSON, ESQ.
Nevada Bar No. 11680
JASON G. MARTINEZ, ESQ.
Nevada Bar No. 13375
2500 Anthem Village Drive
Henderson, NV 89052

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Attorneys for Plaintiff

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AKERMAN LLP

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1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

AKERMAN LLP

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/s/ Matthew Knepper
DARREN T. BRENNER, ESQ.
Nevada Bar No. 8386
MATTHEW I. KNEPPER, ESQ.
Nevada Bar No. 12796
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
Attorneys for Federal Home Loan Mortgage
Corporation

FENNEMORE CRAIG, P.C.

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/s/ Leslie Bryant Hart
LESLIE BRYAN HART, ESQ.
Nevada Bar No. 4932
JOHN D. TENNERT, ESQ.
Nevada Bar No. 11728
300 E. Second St., Suite 1510
Reno, NV 89501
Attorneys for Intervenor and Counterclaimant
Federal Housing Finance Agency

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ORDER

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IT IS SO ORDERED that the Stipulation for Stay is GRANTED, and the parties shall submit a
proposed schedule for completing any remaining discovery within 14 days after decision of the pending
motion for summary judgment as to any claim that survives.

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______________________________________
UNITED STATES MAGISTRATE JUDGE

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DATED: January 21, 2016

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First 100, LLC v. Federal Home Loan Mortgage Corporation
2:15-cv-01303-APG-PAL

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Submitted by:

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AKERMAN LLP
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/s/ Matthew Knepper_____________
DARREN T. BRENNER, ESQ.
Nevada Bar No. 8386
MATTHEW I. KNEPPER, ESQ.
Nevada Bar No. 12796
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144

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Attorneys for Federal Home Loan Mortgage Corporation
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AKERMAN LLP

1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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{00941747;1}

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