Bank Of New York Mellon v. Sierra Ranch Homeowners Association et al

Filing 60

ORDER. IT IS HEREBY ORDERED that 10 Motion to Dismiss is DENIED without prejudice. IT IS FURTHER ORDERED that 22 Motion to Dismiss is DENIED without prejudice. IT IS FURTHER ORDERED that plaintiff Bank of New York Mellon shall promptly fil e a notice of constitutional question, pursuant to Federal Rule of Civil Procedure 5.1(a)(1)(B). IT IS FURTHER ORDERED that this court certifies to the Nevada attorney general that it may rule on the constitutionality of the state statute at iss ue in this case, NRS 116.3116. The attorney general shall have thirty (30) days within which to intervene on behalf of the state of Nevada for presentation of argument on the question of the constitutionality of the statute. IT IS FURTHER ORDERED that the clerk of court shall send a copy of this order by certified mail to the Nevada attorney general. Signed by Judge James C. Mahan on 7/25/16. (Copies have been distributed pursuant to the NEF - cc: copy sent by certified mail to Nevada attorney general - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THE BANK OF NEW YORK MELLON,

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Case No. 2:15-CV-1914 JCM (PAL)

Plaintiff(s),

ORDER

v.
SIERRA RANCH HOMEOWNERS
ASSOCIATION, et al.,
Defendant(s).

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James C. Mahan
U.S. District Judge

Presently before the court is defendant Sierra Ranch Homeowners Association’s (“Sierra
Ranch”) motion to dismiss. (ECF No. 10). Also before the court is defendant SFR Investments
Pool 1 LLC’s (“SFR”) motion to dismiss (ECF No. 22).
Plaintiff Bank of New York Mellon’s (“BNYM”) complaint seeks to invalidate Sierra
Ranch’s foreclosure sale of a property, which purportedly extinguished BNYM’s beneficial
interest in a $262,750 mortgage loan. BNYM’s complaint alleges, amongst other things, that
Nevada Revised Statute 116.3116 is unconstitutional. (ECF No. 1 at 7).
A party who files a pleading, written motion, or other paper drawing into question the
constitutionality of a state statute must promptly “file a notice of constitutional question stating
the question and identifying the paper that raises it, if . . . the parties do not include the state, one
of its agencies, or one of its officers or employees in an official capacity . . . .” FED. R. CIV. P.
5.1(a)(1)(B). Additionally, FRCP 5.1 requires the court to “certify to the appropriate attorney
general that a statute has been questioned” under 28 U.S.C. § 2403. FED. R. CIV. P. 5.1(b). Section
2403 states that the court “shall permit the [s]tate to intervene for presentation of evidence, if

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evidence is otherwise admissible in the case, and for argument on the question of

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constitutionality.” 28 U.S.C. § 2403(b).

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In light of the foregoing rule and statute, the court will deny plaintiff and defendants’

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motions without prejudice to allow: (1) BNYM to file a notice of constitutional question, (2) the

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court to comply, and (3) the attorney general to intervene. The parties may renew their motions

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after the attorney general has been afforded time to respond.

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant defendant

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Sierra Ranch Homeowners Association’s motion to dismiss (ECF No. 10) be, and the same hereby

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is, DENIED without prejudice.

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IT IS FURTHER ORDERED that defendant SFR Investments Pool 1 LLC’s motion to
dismiss (ECF No. 22) be, and the same hereby is, DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff Bank of New York Mellon shall promptly file
a notice of constitutional question, pursuant to Federal Rule of Civil Procedure 5.1(a)(1)(B).

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IT IS FURTHER ORDERED that this court certifies to the Nevada attorney general that it

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may rule on the constitutionality of the state statute at issue in this case, NRS 116.3116. The

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attorney general shall have thirty (30) days within which to intervene on behalf of the state of

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Nevada for presentation of argument on the question of the constitutionality of the statute.

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IT IS FURTHER ORDERED that the clerk of court shall send a copy of this order by
certified mail to the Nevada attorney general.
DATED July 25, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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