Wells Fargo Bank, N.A. v. Las Vegas Development Group, LLC

Filing 28

ORDER. IT IS HEREBY ORDERED that 27 the parties' Stipulation to Stay the case is GRANTED. IT IS FURTHER ORDERED that 23 Plaintiff's Motion for Summary Judgment is DENIED without prejudice with leave to refile within twenty-one da ys after the stay is lifted. IT IS FURTHER ORDERED that, beginning on 8/14/17, the parties must file a joint status report updating the Court on the status of this case every one-hundred and eighty days. IT IS FURTHER ORDERED that this Order does not prevent the parties from continuing to engage in settlement conference negotiations with the assistance of the magistrate judge. Signed by Chief Judge Gloria M. Navarro on 2/15/17. (Copies have been distributed pursuant to the NEF - ADR)

Case 2:16-cv-00223-GMN-VCF Document 27 Filed 02/13/17 Page 1 of 5

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Andrew M. Jacobs, Esq.
Nevada Bar No. 12787
Wayne Klomp, Esq.
Nevada Bar No. 10109
SNELL & WILMER L.L.P.
50 West Liberty Street, Suite 510
Reno, Nevada 89501
Telephone: [phone]
Facsimile: 775-785-5441
Email: [e-mail]
[e-mail]

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Attorneys for Plaintiff Wells Fargo Bank, N.A.

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

Snell & Wilmer

L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

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WELLS FARGO BANK, N.A.,

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Plaintiff,

Case No. 2:16-cv-00223-GMN-VCF

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vs.

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LAS VEGAS DEVELOPMENT GROUP LLC;
DOES 1 through 10; and ROE BUSINESS
ENTITIES 1 through 10, inclusive,

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Defendants.

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Plaintiff Wells Fargo Bank, N.A. (“Wells Fargo”), and Defendant Las Vegas
Development Group, LLC (“LVDG”), by and through their respective undersigned counsel of
record, hereby stipulate as follows:

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1.

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This lawsuit involves the parties seeking quiet title/declaratory relief and other

claims related to a non-judicial homeowner’s association foreclosure sale conducted on a
Property pursuant to NRS Chapter 116.

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STIPULATION AND ORDER TO STAY
LITIGATION PENDING FINAL
RESOLUTION OF PETITION(S) FOR
WRIT OF CERTIORARI TO UNITED
STATES SUPREME COURT

2.

Currently pending before this Court is LVDG’s Motion to Dismiss filed on March

18, 2016 (ECF No. 8). Additionally, Wells Fargo filed a Motion for Summary Judgment (ECF
No. 23), which is not fully briefed.

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3.
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On August 12, 2016, the Ninth Circuit issued its decision on appeal in Bourne

Case 2:16-cv-00223-GMN-VCF Document 27 Filed 02/13/17 Page 2 of 5

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Valley Court Tr. v. Wells Fargo Bank, N.A., 832 F.3d 1154, 1159-60 (9th Cir. 2016) holding that

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NRS Chapter 116 is facially unconstitutional. The Court of Appeals issued its mandate in the

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appeal on December 14, 2016, vacating and remanding the judgment to the United States District

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Court, District of Nevada.

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4.

On January 26, 2017, the Nevada Supreme Court issued its decision in Saticoy Bay

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LLC Series 350 Durango 104 v. Wells Fargo Home Mortgage, a Div. of Wells Fargo Bank, N.A.,

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133 Nev. Adv. Op. 5, ___ P.3d ___, 2017 WL 398426 (Nev. Jan. 26, 2017), holding, in direct

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contrast to Bourne Valley, that no state action supported a challenge under the Due Process

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Clause of the United States Constitution.

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5.

The Saticoy Bay decision by the Nevada Supreme Court conflicts directly with

Snell & Wilmer

Ninth Circuit’s ruling in Bourne Valley, making the issue appropriate for consideration by the

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L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

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United States Supreme Court. See Sup. Ct. Rule 10(a) & (b) (noting that the High Court will

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consider review when “a United States court of appeals has . . . decided an important federal

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question in a way that conflicts with a decision by a state court of last resort * * * [or] a state

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court of last resort has decided an important federal question in a way that conflicts with the

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decision of . . . a United States court of appeals.”)

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6.

Both parties in Bourne Valley and Saticoy Bay believe their lawsuits should be

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resolved and are seeking review of the state action issue in the United States Supreme Court.

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Bourne Valley’s deadline to file its petition for writ of certiorari of the Ninth Circuit’s Bourne

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Valley decision is March 6, 2017 pursuant to an order granting an extension of time. See Bourne

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Valley Court Trust v. Wells Fargo Bank, NA., United States Supreme Court Case No. 16A753.

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Wells Fargo’s deadline to file its petition for writ of certiorari of the Nevada Supreme Court’s

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Saticoy Bay decision is April 26, 2017. Thus, the parties believe that the stay requested herein is

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appropriate.

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7.

On February 8, 2017, the Nevada Supreme Court issued an order staying its

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issuance of the remittitur pending the filing of a petition for a writ of certiorari with the United

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States Supreme Court, and if a petition is filed, the stay of the remittitur will remain in effect until

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final disposition of the certiorari proceedings before the United States Supreme Court.
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Case 2:16-cv-00223-GMN-VCF Document 27 Filed 02/13/17 Page 3 of 5

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8.

To determine if a continued stay is appropriate, the Court considers (1) damage

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from the stay; (2) hardship or inequity that befalls one party more than the other; and (3) the

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orderly course of justice. See Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d

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1059, 1066 (9th Cir. 2007) (setting forth factors). Here, the factors support a stay of litigation.

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a.

Damage from Stay: Any damage from a temporary stay in this case will be

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minimal if balanced against the potential fees, costs, and time which would surely ensue in this

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matter if litigation were allowed to continue that could be mooted by a decision in Bourne Valley

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certiorari proceedings. Indeed, the parties will both be enabled to avoid the cost and expense of

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continued legal proceedings in light of what is unsettled law to say the least. Moreover, the Court

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will be relieved of expending further time and effort until the conflict between the circuit and

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Nevada Supreme Court is resolved. Thus, a stay will benefit all parties involved herein.

Snell & Wilmer

L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

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b.

Hardship or Inequity: There will be no significant hardship or inequity that befalls

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one party more than the other. This relatively equal balance of equities results from the need for

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both parties to have finality, given the split in the state and federal court decisions. Any hardship

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would be equal in terms of resources expended without a stay. A stay prevents this expenditure

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for all parties.

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c.

Orderly Course of Justice: At the center of this case is an association foreclosure

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sale under NRS Chapter 116. The outcome of the petitions for writ in Bourne Valley and/or

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Saticoy Bay have the potential to affirm or overturn either case. Without a stay, the parties will

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expend resources that will be unnecessary if either or both petitions are granted. A stay would

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also avoid a likely appeal from any subsequent judgment in this case. A temporary stay would

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substantially promote the orderly course of justice in this case. A stay will avoid the moving

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forward without final resolution of the federal issues and the state court / federal court conflict.

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9.

The parties agree that all proceedings, other than as set forth in paragraph 10

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below, in the instant case are stayed pending final resolution of the Bourne Valley and/or Saticoy

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Bay certiorari proceedings before the United States Supreme Court. If the Court enters an order

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staying this case, Wells Fargo’s Motion for Summary Judgment (ECF No. 23) shall be withdrawn

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and may be refiled after the stay is lifted. Otherwise, Wells Fargo shall have fourteen (14) days
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Case 2:16-cv-00223-GMN-VCF Document 27 Filed 02/13/17 Page 4 of 5

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following an order denying the stay in which to file its reply in support of its motion.

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10.

LVDG’s pending Motion to Dismiss [ECF #8] is not withdrawn and may be ruled

upon at the discretion of the Court.

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Defendant LVDG shall be required to keep current on all property taxes and

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assessments, HOA dues, and to reasonably maintain the property at issue. LVDG shall also be

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required to provide proof of payment upon reasonable notice to counsel for Wells Fargo.

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unless otherwise ordered by the Court.

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13.

L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

Snell & Wilmer

Plaintiff Wells Fargo is prohibited from conducting a foreclosure sale on the

property unless otherwise ordered by the Court.

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Defendant LVDG shall be prohibited from selling or encumbering the property

14.

Either party may file a written motion to lift stay at any time for either party

determines it appropriate.

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Case 2:16-cv-00223-GMN-VCF Document 27 Filed 02/13/17 Page 5 of 5
Dated: February 13, 2017.
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Dated: February 13, 2017.

SNELL & WILMER L.L.P.

ROGER P. CROTEAU & ASSOCIATES

By:

By:

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/s/ Wayne Klomp
Andrew M. Jacobs, Esq.
Nevada Bar No. 12787
Wayne Klomp, Esq.
Nevada Bar No. 10109
50 West Liberty Street, Suite 510
Reno, Nevada 89501
Attorneys for Wells Fargo Bank, N.A.

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Snell & Wilmer

L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

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/s/ Timothy E. Rhoda
Roger P. Croteau, Esq.
Nevada Bar No. 4958
Timothy E. Rhoda, Esq.
Nevada Bar No. 7878
9120 West Post Rd, Suite 100
Las Vegas, NV 89148
Attorneys for LVDG
ORDER

In accordance with the foregoing, IT IS HEREBY ORDERED THAT the parties' Stipulation
to Stay the case is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment, (ECF No. 23),
is DENIED without prejudice with leave to refile within twenty-one days after the stay is lifted.
IT IS FURTHER ORDERED that, beginning on August 14, 2017, the parties must file a joint
status report updating the Court on the status of this case every one-hundred and eighty days.
Along with this joint status report, Defendant LVDG shall submit a statement affirming all
expenses necessary to maintain the property, including but not limited to, timely and full
payment of all homeowner association assessments, property taxes, and property insurance
premiums due and owing or past due at any time during the effective period of this Stay are
current and up to date.
IT IS FURTHER ORDERED that this Order does not prevent the parties from continuing to
engage in settlement conference negotiations with the assistance of the magistrate judge.

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_____________________________________

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UNITED STATES DISTRICT JUDGE

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February 15, 2017
DATED: _____________________________

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