Capital One, National Association v. SFR Investments Pool 1, LLC

Filing 61

ORDER Granting 60 Stipulation re Discovery Deadlines (Third Request). In the event Plaintiff's motion for summary judgment is denied, the parties shall submit a stipulation and proposed order within 14 days of decision of the pending motion for summary judgment to request reinstatement of the motion to compel and complete the deposition described in this stipulation. Signed by Magistrate Judge Peggy A. Leen on 1/10/2017. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:15-cv-01324-KJD-PAL Document 60 Filed 01/09/17 Page 1 of 4

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Abran E. Vigil
Nevada Bar No. 7548
Matthew D. Lamb
Nevada Bar No. 12991
Joseph P. Sakai
Nevada Bar No. 13578
BALLARD SPAHR LLP
100 North City Parkway, Suite 1750
Las Vegas, Nevada 89106
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Plaintiff/CounterDefendant

DISTRICT OF NEVADA

[phone] FAX [phone]

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LAS VEGAS, NEVADA 89106

BALLARD SPAHR LLP

UNITED STATES DISTRICT COURT

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100 NORTH CITY PARKWAY, SUITE 1750

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CAPITAL ONE, NATIONAL ASSOCIATION,
a national banking association,
Plaintiff,
vs.

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STIPULATION REGARDING
MOTION TO COMPEL,
DISPOSITIVE MOTIONS, AND
JOINT PRETRIAL ORDER

SFR INVESTMENTS POOL 1, LLC, a Nevada
limited liability company; SOUTHERN
(Third Request)
HIGHLANDS COMMUNITY ASSOCIATION,
a Nevada non-profit corporation,

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Case No. 2:15-cv-01324-KJD-PAL

Defendants.
SFR INVESTMENTS POOL 1, LLC, a Nevada
limited liability company,

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Counterclaimant/Cross-Claimant,

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vs.

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CAPITAL ONE, NATIONAL ASSOCIATION,
a national banking association; and EILAT
BENARON, an individual,

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Counter-Defendants/Cross-Defendants.

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Plaintiff Capital One, National Association (“Capital One”), defendant SFR

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Investments Pool 1, LLC (“SFR”), and defendant Southern Highlands Community

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Case 2:15-cv-01324-KJD-PAL Document 60 Filed 01/09/17 Page 2 of 4

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Association (“Southern Highlands,” and together with Capital One and SFR, the

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“Parties”) stipulate as follows:

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1.

On September 5, 2016, the Court entered an order (ECF No. 56)

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granting the Parties’ stipulation to stay litigation based on the Ninth Circuit’s

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decision in Bourne Valley Court Tr. v. Wells Fargo Bank, NA, 832 F.3d 1154 (9th Cir.

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2016).

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the Ninth Circuit issued its mandate in Bourne Valley.

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3.

[phone] FAX [phone]

LAS VEGAS, NEVADA 89106

BALLARD SPAHR LLP

100 NORTH CITY PARKWAY, SUITE 1750

The order further provided that the dispositive motion deadline would

automatically reset to 30 days after the date the Ninth Circuit issued its mandate.

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The order provided that the litigation stay would automatically lift when

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The order further provided that Capital One would be permitted to

depose SFR’s expert witness, Michael Brunson, after the stay was lifted.

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5.

The Court subsequently issued a minute order (ECF No. 57) which

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deemed Capital One’s motion to compel against SFR (ECF No. 52) withdrawn. The

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minute order stated the Parties could request reinstatement of the motion to compel

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after the litigation stay was lifted.

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The Ninth Circuit issued its mandate in Bourne Valley on December 14,

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Accordingly, the dispositive motions deadline automatically reset to

2016.

January 13, 2017.
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On December 29, 2016, SFR filed a Motion to Certify Question of Law to

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Supreme Court of Nevada (ECF No. 58) and a Motion for Partial Summary Judgment

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re: a Pure Issue of Law: Application of the Return Doctrine Post-Bourne Valley (ECF

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No. 59).

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9.

Capital One intends to file a motion for summary judgment on or before

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the January 13, 2017 deadline. The motion will address various arguments which do

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not require the Parties to hold the deposition of Brunson or to reinstate Capital One’s

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motion to compel.

Capital One’s motion will be limited to three issues: (1) that
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Capital One is entitled to summary judgment under Bourne Valley, (2) that the

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Housing and Economic Recovery Act of 2008 preempted the subject foreclosure sale

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from extinguishing the subject deed of trust, and (3) that the Nevada Supreme

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Court’s opinion in SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. Adv.

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Rep. 75, 334 P.3d 408 (2014), does not apply retroactively.

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10.

In the event the Court denies Capital One’s planned motion for

the foreclosure sale price, the validity of the foreclosure sale under Shadow Wood

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Homeowners Ass’n v. N.Y. Cmty. Bancorp. Inc., 132 Nev. Adv. Rep. 5, 366 P.3d 1105

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[phone] FAX [phone]

One’s planned motion. These issues include, among other things, the sufficiency of

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LAS VEGAS, NEVADA 89106

the motion to compel, and to litigate any remaining issues not addressed in Capital

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BALLARD SPAHR LLP

summary judgment, the Parties agree to hold the deposition of Brunson, to reinstate

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100 NORTH CITY PARKWAY, SUITE 1750

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(2016), and Capital One’s argument that the sale is a constructively fraudulent

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transfer.

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Accordingly, if the Court denies Capital One’s planned motion for

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summary judgment, the Parties will submit a further stipulation that reinstates

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Capital One’s motion to compel, schedules a date and time for the deposition of

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Brunson, sets a deadline for filing any dispositive motions on the remaining issues in

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the case, and sets a new deadline for the joint pretrial order.

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Good cause exists for granting this stipulation because it will not be

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necessary to hold the deposition of Brunson, to reinstate the motion to compel, or to

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litigate any additional issues if the Court grants Capital One’s planned motion for

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summary judgment.

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13.

The Court previously granted a stipulation to extend the dispositive

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motions deadline from April 15, 2016 to July 14, 2016 and to extend the pretrial order

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deadline from May 13, 2016 to August 11, 2016 (ECF No. 37). This extension was

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primarily due to a medical issue affecting Southern Highlands’ Rule 30(b)(6)

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deponent. The Court later granted a stipulation to extend the dispositive motion

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deadline to September 12, 2016 and to extend the pretrial order deadline to October
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11, 2016 (ECF No. 43). These deadlines were vacated when the Ninth Circuit issued

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its Bourne Valley opinion and the Court stayed litigation.

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Dated: January 9, 2017.

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KIM GILBERT EBRON

By: /s/ Matthew D. Lamb
Abran E. Vigil
Nevada Bar No. 7548
Matthew D. Lamb
Nevada Bar No. 12991
Joseph P. Sakai
Nevada Bar No. 13578
100 North City Pkwy, Suite 1750
Las Vegas, Nevada 89106

By: /s/ Diana Cline Ebron
Diana Cline Ebron
Nevada Bar No. 10580
Jacqueline Gilbert
Nevada Bar No. 10593
Karen L. Hanks
Nevada Bar No. 9578
7625 Dean Martin Drive, Suite 110
Las Vegas, Nevada 89139

ATTORNEYS FOR CAPITAL ONE, NATIONAL
ASSOCIATION

ATTORNEYS FOR SFR INVESTMENTS POOL
1, LLC

[phone] FAX [phone]

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LAS VEGAS, NEVADA 89106

BALLARD SPAHR LLP

100 NORTH CITY PARKWAY, SUITE 1750

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BALLARD SPAHR LLP

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ALVERSON TAYLOR MORTENSEN &
SANDERS
By: /s/ David J. Rothenberg
Kurt R. Bonds
Nevada Bar No. 6228
David J. Rothenberg
Nevada Bar No. 13576
7401 West Charleston Blvd.
Las Vegas, Nevada 89117

ATTORNEYS FOR SOUTHERN HIGHLANDS
COMMUNITY ASSOCIATION

IT IS ORDERED.
IT IS FURTHER ORDERED that in the event Plaintiff's motion for summary judgment is
IT IS SO ORDERED:
21 denied, the parties shall submit a stipulation and proposed order within 14 days of
decision of the pending motion for summary judgment to request reinstatement of the
22 motion to compel and complete the deposition described in this stipulation.
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UNITED STATES MAGISTRATE JUDGE

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Dated: January 10, 2017.

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