U.S. Bank N.A. v. Antelope Canyon Homeowners Association, et al.

Filing 65

ORDER Granting 63 Motion to Stay. IT IS ORDERED that a temporary stay of proceedings is entered until the order of mandate is entered in the Bourne Valley decision. Signed by Magistrate Judge Peggy A. Leen on 9/23/16. (Copies have been distributed pursuant to the NEF - ADR)

Case 2:15-cv-01423-JCM-PAL Document 63 Filed 09/15/16 Page 1 of 7

1
2
3
4
5
6
7
8

JACQUELINE A. GILBERT, ESQ.
Nevada Bar No. 10593
E-mail: [e-mail]
DIANA CLINE EBRON, ESQ.
Nevada Bar No. 10580
E-mail: [e-mail]
KAREN L. HANKS, ESQ.
Nevada Bar No. 9578
E-mail: [e-mail]
KIM GILBERT EBRON
7625 Dean Martin Drive, Suite 110
Las Vegas, Nevada 89139
Telephone: [phone]
Facsimile: [phone]
Attorneys for SFR Investments Pool 1, LLC

9
UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

12
[phone] FAX [phone]

KIM GILBERT EBRON

7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

11

13

U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR THE HOLDERS OF
THE WMALT 2006-AR8 TRUST,
Plaintiff,

14
15
16
17
18
19
20

Case No. 2:15-cv-01423-JCM-PAL

vs.
ANTELOPE CANYON HOMEOWNERS
ASSOCIATION; SFR INVESTMENTS
POOL 1, LLC; DOE INDIVIDUALS I-X,
inclusive, and ROE CORPORATIONS I-X,
inclusive,

JOINT MOTION TO STAY BRIEFING
AND/OR LITIGATION

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

21

Counter-Claimant,

22

vs.

23

U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR THE HOLDERS OF
THE WMALT 2006-AR8 TRUST; BANK
OF AMERICA, N.A., a national association;
NATIONSTAR MORTGAGE, LLC, a
Delaware limited liability company; WELLS
FARGO BANK, N.A.; and GAIL BUNDY,
an individual,

24
25
26
27
28

Counter-Defendant/Cross-Defendants.
______________________________________
-1-

Case 2:15-cv-01423-JCM-PAL Document 63 Filed 09/15/16 Page 2 of 7

1
2

______________________________________
ANTELOPE CANYON HOMEOWNERS
ASSOCIATION;
Third-Party Plaintiff,

3
4
5

vs.
ALESSI & KOENIG, LLC, a Nevada limited
liability company,

6

Third-Party Defendant.

7

support of the Bank’s 1 motion for summary judgment per the Order entered on September 14,

11

2016, [ECF 59, 62] and/or the entire litigation.

12
[phone] FAX [phone]

Honorable Court to enter an order temporarily staying briefing for the supplemental brief in

10

KIM GILBERT EBRON

SFR Investments Pool 1, LLC (“SFR”) and Alessi & Koenig (“A&K”) hereby move this

9

7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

8

September 20, 2016, for the Bank and September 27, 2016 for SFR. This Motion is based on the

13

papers and pleadings on file herein, the following legal argument, the declaration of Jacqueline

14

A. Gilbert, Esq., attached as “Exhibit A.” and such evidence/and oral argument as may be

15

presented at the time of the hearing on this matter.

16

The deadlines related to this briefing are

I. Background

17

This is a dispute over the effect of a non-judicial foreclosure sale conducted by a

18

homeowners association (“Association”). Specifically, the prior owner failed to pay Association

19

assessments, the Bank failed to preserve its deed of trust by failing to pay the Association lien

20

before the foreclosure sale, and a bona fide purchaser, SFR, bought the property. Subsequently,

21

litigation ensued.

22

The Bank filed its motion for summary judgment on March 14, 2016 [ECF 39] and SFR

23

filed its motion for summary judgment on March 14, 2016 [ECF 40], responses were filed to the

24

motions [ECFs 45 and 47]. Replies were then filed to each response [ECFs 48 and 49].

25

Subsequently, on August 12, 2016, a divided Ninth Circuit panel issued its decision in

26
27
28

1

Herein, “the Bank” refers to U.S. Bank National Association, As Trustee For The Holders Of The
WMALT 2006-AR8 Trust, Bank of America, N.A., Nationstar Mortgage, LLC and any predecessors or
successors in interest to the First Deed of Trust, as well as any agents acting on behalf of these entities,
including but not limited to servicers, trustees and nominee beneficiaries.

-2-

Case 2:15-cv-01423-JCM-PAL Document 63 Filed 09/15/16 Page 3 of 7

1

Bourne Valley Court Trust v. Wells Fargo Bank, ___ F.3d ___, No. 15-15233, 2016 WL

2

4254983 (9th Cir. Aug. 12, 2016). In this decision, the Ninth Circuit held that Nevada Revised

3

Statutes Chapter 116’s Association nonjudicial foreclosure scheme, as it existed before

4

amendment in 2015 “facially violated mortgage lenders’ constitutional due process rights.” Id. at

5

*5. The Bourne Valley majority opinion does not address that the Supreme Court of Nevada

6

construed NRS 116 to require notice to the mortgage lenders. See SFR Investments Pool 1, LLC

7

v. U.S. Bank, NA., 334 P.3d 408, 417-18 (Nev. 2014) (en banc). Even the dissenting justices in

8

SFR agreed this was the proper interpretation of Nevada’s statutory scheme. See Id. at 422.

9

Further, the Supreme Court of Nevada has already concluded that NRS 116 does not offend due

10

process. Id. at 418. The mandate for this decision has yet to issue.
After the Bourne Valley decision, on September 1, 2016, the Bank filed its motion for

12
[phone] FAX [phone]

KIM GILBERT EBRON

7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

11

leave to file supplemental brief regarding their motion for summary judgment [ECF 59]. The

13

motion cites Bourne Valley as support for the Bank’s constitutional challenge to NRS 116. On

14

September 14, 2016, this Honorable Court granted the motion. SFR’s response is due September

15

27, 2016.

16
17

On September 7, 2016 the Ninth Circuit ordered the appellant, Bank to file a response to
the petition for rehearing within 21 days of the order.

18

The Ninth Circuit’s ultimate resolution of this issue may have a dispositive effect upon

19

this litigation, since a due process challenge has been raised. To avoid continued briefing that is

20

sure to require supplemental or new briefing, SFR contacted counsel for the Bank to request a

21

stipulation to stay briefing and/or litigation. The Bank refused. The Association agreed to stay

22

briefing in this matter. SFR and A&K respectfully request a stay of the briefing on the current

23

motions and/or a stay of the litigation pending the issuance of the mandate in Bourne Valley.

24

II. Legal Argument

25

A. This Motion is an Emergency

26

When a party files a motion on an emergency basis, “[i]t shall be in the sole discretion of

27

the Court to determine whether any such matter is, in fact, an emergency.” Cardoza v. Bloomin'

28

Brands, Inc., 141 F. Supp. 3d 1137, 1142 (D. Nev. 2015)(citing Local Rule 7–5(d)(3); Local
-3-

Case 2:15-cv-01423-JCM-PAL Document 63 Filed 09/15/16 Page 4 of 7

1

Rule 26–7(d)). An emergency motion is properly presented to the Court when the movant has

2

shown (1) that it will be irreparably prejudiced if the Court resolves the motion pursuant to the

3

normal briefing schedule and (2) that the movant is without fault in creating the crisis that

4

requires emergency relief. Id. (internal citations omitted).

prejudiced by spending time and resources briefing an issue that will necessarily require

7

supplemental or entirely new briefing after the Petition in Bourne Valley is resolved. Neither

8

SFR nor A&K created this emergency—SFR’s motions [ECF 40] as well as the other parties’

9

motions for summary judgment [ECF 39] were filed before the Bourne Valley decision and the

10

Bank’s motion for leave to file supplemental brief was filed after the Bourne Valley decision.

11

Accordingly, SFR and A&K request this motion be considered on an emergency basis.

12
[phone] FAX [phone]

KIM GILBERT EBRON

Here, if this motion is heard in the regular course, the parties will be irreparably

6

7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

5

B. Staying the Briefing and/or Litigation

13

As this Court has previously found, a district court has the inherent power to stay cases to

14

control its docket and promote the efficient use of judicial resources. Landis v. North American

15

Co., 299 U.S. 248, 254–55 (1936). When determining whether a stay is appropriate pending the

16

resolution of another case, the district court must consider: (1) the possible damage that may

17

result from a stay, (2) any hardship or inequity that a party may suffer if required to go forward,

18

(3) and the orderly course of justice measured in terms of the simplifying or complicating of

19

issues, proof, and questions of law that a stay will engender. Dependable Highway Exp., Inc. v.

20

Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007)(citations omitted). Considering these

21

factors in the context of this case, SFR and A&K request that this Honorable Court stay the

22

briefing on the pending motions and/or the entire case.
1. Damage From stay

23
24

There will be no damage if this Court temporarily stays the case. The resultant damage

25

for a temporary stay in this case will be minimal if balanced against the potential fees, costs, and

26

time which would surely ensue in this matter.

27

///

28

///
-4-

Case 2:15-cv-01423-JCM-PAL Document 63 Filed 09/15/16 Page 5 of 7

2. Hardship or Inequity

1
2

There will be no significant hardship or inequity that befalls one party more than the

3

other. This relatively equal balance of equities results from the need for both parties to have

4

finality in the appellate process. There would an equal hardship on all parties in terms of

5

resources expended if the Court did not stay this litigation. By staying this case, the Court will

6

prevent this expenditure for all parties.
3. Orderly course of justice

7

Presuming that the Bank is able to prove its standing to enforce the underlying note and deed of

11

trust, the outcome in Bourne Valley has the potential to be dispositive of certain issues in this

12
[phone] FAX [phone]

the competing arguments that the sale extinguished the Bank’s security interest under SFR.

10

KIM GILBERT EBRON

At the center of this case is an Association foreclosure sale under NRS Chapter 116 and

9

7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

8

case, specifically the constitutionality of Chapter 116. If this Court does not stay the briefing

13

and/or the case, it is likely that the parties will file new motions or move to supplement pending

14

motions based on the final decision in Bourne Valley. Furthermore, to the extent this Court is

15

bound by Bourne Valley, and has to determine the result of that opinion on the case, any final

16

judgment will ultimately result in an appeal, at least until the mandate issues.

17

A temporary stay would substantially promote the orderly course of justice in this case. A

18

stay will avoid the parties filing various motions related to the split panel’s decision in Bourne

19

Valley. Courts in this district have disagreed with Bourne Valley’s majority analysis on both the

20

statute’s interpretation and on the presence of a state actor. 2

21

Upon an issuance of the mandate in Bourne Valley, the Court will be in a position to

22

completely and finally resolve the issues related to Bourne Valley in this case. This will

23
24
25
26
27
28

2

See Morgan Chase Bank v. SFR Investments Pool, 2:14-cv-02080-RFB-GWF, 2016 WL
4084036, at *8 (D. Nev. July 28, 2016) (Boulware, J.); Capital One v. Las Vegas Dev. Group,
No. 2:15-cv-01436-JAD-PAL, 2016 WL 3607160, at 5 (D. Nev. June 30, 2016) (Dorsey, J.);
Bank of Amer. v. Rainbow Bend HOA, No. 3:15-cv-00291- MMD-WGC, 2016 WL 1298114, at
*3 (D. Nev. Mar. 31, 2016) (Du, J.); Deutsche Bank v. TBR I, LLC, No. 3:15-cv-00401-LRHWGC, 2016 WL 3965195, at *3 (D. Nev. July 22, 2016) (Hicks, S.J.); Las Vegas Dev. Grp., LLC
v. Yfantis, --- F. Supp. 3d ---, No. 2:15-cv-01127-APG-CWH, 2016 WL 1248693, at *3-6 (D.
Nev. Mar. 24, 2016).
-5-

Case 2:15-cv-01423-JCM-PAL Document 63 Filed 09/15/16 Page 6 of 7

1

streamline and simplify the proceedings and minimize the unnecessary expenditure of the

2

parties’ and the Court’s time and resources.

3

III. Conclusion

4

SFR and A&K respectfully request that this Honorable Court enter an order temporarily

5

staying this matter pending the decision in Bourne Valley as: there will be no damage; there will

6

be no significant hardship or inequity; and, a stay would promote the orderly course of justice.

7

DATED September 15, 2016.

8
9
10

12
[phone] FAX [phone]

KIM GILBERT EBRON

7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

11

13
14
15

KIM GILBERT EBRON

ALESSI & KOENIG, LLC

/s/ Jacqueline A. Gilbert
JACQUELINE A. GILBERT, ESQ.
Nevada Bar No. 10593
DIANA CLINE EBRON, ESQ.
Nevada Bar No. 10580
KAREN L. HANKS, ESQ.
Nevada Bar No. 9578
7625 Dean Martin Drive, Suite 110
Las Vegas, Nevada 89139
Attorneys for SFR Investments Pool 1, LLC

/s/_Steve T. Loizzi______
Steve J. Loizzi, Jr., Esq.
Nevada Bar No. 10920
Alessi & Koenig, LLC
9500 W. Flamingo Road, Suite 205
Las Vegas, NV 89147
Attorneys for Alessi & Koenig, LLC

16
17
18
19

IT IS ORDERED that a temporary stay of proceedings is entered until the order of
mandate is entered in the Bourne Valley decision.
Dated: September 23, 2016
___________________________
Peggy A. Leen
United States Magistrate Judge

20
21
22
23
24
25
26
27
28
-6-

Case 2:15-cv-01423-JCM-PAL Document 63 Filed 09/15/16 Page 7 of 7

1
CERTIFICATE OF SERVICE

2
3
4
5

I HEREBY CERTIFY that on this 15th day of September 2016, pursuant to FRCP 5, I
served via the CM-ECF electronic filing system the foregoing Joint Emergency Motion to
Stay, to the following parties:

6
7
8
9
10

12
[phone] FAX [phone]

KIM GILBERT EBRON

7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

11

13
14
15
16
17
18
19

Ariel E. Stern, Esq.
AKERMAN LLP
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
[e-mail]
[e-mail]
Attorneys for U.S. Bank National Association
Elizabeth B. Lowell, Esq.
James W. Pengilly, Esq.
PENGILLY ROBBINS
1995 Village Center Circle., Suite 190
Las Vegas, Nevada 89134-0562
[e-mail]
[e-mail]
Attorneys for Antelope Canyon Homeowners Association
Steve J. Loizzi, Jr., Esq.
Alessi & Koenig, LLC
9500 W. Flamingo Road, Suite 205
Las Vegas, NV 89147
Email: [e-mail]
Attorneys for Alessi & Koenig, LLC

20
/s/
Jherna A. Shahani
An employee of Kim Gilbert Ebron

21
22
23
24
25
26
27
28
-7-

Case 2:15-cv-01423-JCM-PAL Document 63-1 Filed 09/15/16 Page 1 of 4

Exhibit 1
Declaration of Jacqueline Gilbert, Esq.

Case 2:15-cv-01423-JCM-PAL Document 63-1 Filed 09/15/16 Page 2 of 4

DECLARATION OF JACQUELINE A. GILBERT, ESQ.

1
2

I, Jacqueline A. Gilbert, Esq., declare as follows:

3

1.

4

I am an attorney with Kim Gilbert Ebron, formerly known as Howard Kim &

Associates, admitted to practice law in the State of Nevada.

5

2.

I am counsel for SFR Investments Pool 1, LLC (“SFR”) in this action.

6

3.

I make this declaration in support of SFR’s Emergency Motion to Stay Briefing

7

and/or Litigation.

8

4.

I have personal knowledge of the facts set forth below based upon my review of

information and belief, and as to those facts, I believe them to be true, and I am competent to

11

testify.

12
[phone] FAX [phone]

KIM GILBERT EBRON

the case law referenced in this matter, except for those factual statements expressly made upon

10

7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

9

13
14
15
16
17

5.

The deadline to file responses to the Bank’s supplemental brief to its motion for

summary judgment is September 27, 2016.
6.

On August 12, 2016, a divided Ninth Circuit panel issued its decision in Bourne

Valley Court Trust v. Wells Fargo Bank, 2016 WL 4254983 (9th Cir. Aug. 12, 2016).
7.

The Bourne Valley court held that NRS 116 facially violates constitutional due

process.

18

8.

In this case, the Bank has raised a constitutional challenge [ECF 59].

19

9.

However, the Bourne Valley Appellee filed a Petition for rehearing en banc on

20

August 26, 2016. On September 7, 2016, the Ninth Circuit Ordered Appellant, Bank to file a

21

response to the petition for rehearing within 21 days of the Order.

22
23
24

10.

On September 9, 2016, and September 12, 2016, I called Ariel Stern of Akerman,

LLP, and left voice messages.
11.

On September 12, 2016, Darren Brenner, another attorney from Akerman, and I

25

spoke on the phone about potential stays in multiple cases. Mr. Brenner stated that his client would

26

not agree to a stay in any case in which there was an alleged payment attempt. I subsequently

27

received an email from Mr. Stern stating that Mr. Brenner would coordinate all stay issues for

28
-1-

Case 2:15-cv-01423-JCM-PAL Document 63-1 Filed 09/15/16 Page 3 of 4

1

cases in which Akerman is counsel. In this case the Bank has alleged an attempted payment. See

2

ECF 3 at ¶ 26-29. Thus, according to Mr. Brenner, the Bank will not agree to stay litigation in

3

this case.
12.

4

On September 9, 2016, my office contacted Pengilly Robbins, counsel for the

5

Association. On September 12, 2016, the Association agreed to the stay if “other parties agree.”

6

Steven Loizzi, Esq., representing Alessi & Koenig, has also agreed and joined the motion.
13.

7
8

Without waiving any arguments for my client, I expect that additional briefing will

be necessary after the mandate in Bourne Valley issues based on the legal issues presented therein.
14.

9

Even if this Court decides the remaining issues, not related to Bourne Valley, any

appeal.
15.

12
[phone] FAX [phone]

KIM GILBERT EBRON

final decision will necessarily need to address the final outcome of Bourne Valley, as will any

11
7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

10

13

and resources to seek this stay pending a resolution of the Bourne Valley appellate process.
16.

14
15

The moving parties agree it is in the interest of judicial economy, and client time

The name, office address, and telephone numbers of all affected parties are as

follows:
a. Ariel E. Stern, Esq., Akerman LLP, 1160 Town Center Drive, Suite 330, Las

16

Vegas, Nevada 89144, telephone number (702)-634-5000.

17

b. Brett M. Coombs, Esq., Akerman LLP, 1160 Town Center Drive, Suite 330,

18

Las Vegas, Nevada 89144, telephone number (702)-634-5000.

19
20

c. Steven T. Loizzi, Jr., Esq., Alessi & Koenig, LLC, 9500 West Flamingo Road,

21

Suite 205, Las Vegas, Nevada 89147, telephone number (702)-222-4033.

22

d. James W. Pengilly, Esq., Pengilly Robbins, 1995 Village Center Circle, Suite
190, Las Vegas, Nevada 89134, telephone number (702)-889-6665.

23
24

///

25

///

26

///

27

///

28
-2-

Case 2:15-cv-01423-JCM-PAL Document 63-1 Filed 09/15/16 Page 4 of 4

1
2

e. Elizabeth B. Lowell, Esq., Pengilly Robbins, 1995 Village Center Circle, Suite
190, Las Vegas, Nevada 89134, telephone number (702)-889-6665.

3

I declare under penalty of perjury that the foregoing is true and correct.

4

Dated this 15th day of September, 2016.

5
/s/ Jacqueline A. Gilbert_______
JACQUELINE A. GILBERT, ESQ

6
7
8
9
10

12
[phone] FAX [phone]

KIM GILBERT EBRON

7625 DEAN MARTIN DRIVE, SUITE 110
LAS VEGAS, NEVADA 89139

11

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-