Deutsche Bank Trust Company Americas v. Los Prados Community Association, Inc. et al

Filing 28

ORDER Granting 27 Stipulation to Stay Litigation; and Withdrawing 24 Motion to Lift Stay. Signed by Judge Richard F. Boulware, II on 3/23/17. (Copies have been distributed pursuant to the NEF - MR)

1
2
3
4
5
6
7
8
9

DARREN T. BRENNER, ESQ.
Nevada Bar No. 8386
TENESA S. SCATURRO, ESQ.
Nevada Bar No. 12488
AKERMAN LLP
1160 Town Center Drive, Suite 330
Las Vegas, NV 89144
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Deutsche Bank Trust Company
Americas, as Trustee for Dover Mortgage
Capital Corporation Grantor Trust Certificate
Series 2004-A
UNITED STATES DISTRICT COURT

AKERMAN LLP

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

10

DISTRICT OF NEVADA

11
12
13
14

DEUTSCHE BANK TRUST COMPANY
AMERICAS, AS TRUSTEE FOR DOVER
MORTGAGE
CAPITAL
CORPORATION
GRANTOR TRUST CERTIFICATE SERIES
2004-A,
Plaintiff,

15
16

vs.

17

LOS PRADOS COMMUNITY ASSOCIATION,
INC.; SATICOY BAY LLC SERIES 5105
KINGSBRIDGE
DRIVE;
and
NEVADA
ASSOCIATION SERVICES, INC.,

18
19
20

Defendants.
SATICOY
BAY
LLC
KINGSBRIDGE DRIVE,

21
22
23
24
25

SERIES

5105

Counterclaimant,
vs.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, AS TRUSTEE FOR DOVER
MORTGAGE
CAPITAL
CORPORATION
GRANTOR TRUST CERTIFICATE SERIES
2004-A.,

26

Counter-defendant.

27
28
{41141997;1}

1

Case No.: 2:16-cv-580-RFB-PAL
STIPULATION AND ORDER TO STAY
LITIGATION
PENDING
FINAL
RESOLUTION OF PETITION(S) FOR
WRIT OF CERTIORARI TO THE
UNITED STATES SUPREME COURT

1

Plaintiff and counter-defendant Deutsche Bank Trust Company Americas, as Trustee for Dover

2

Mortgage Capital Corporation Grantor Trust Certificate Series 2004-A (Deutsche Bank), defendant

3

Los Prados Community Association, Inc., defendant and counter-claimant Saticoy Bay LLC Series

4

5105 Kingsbridge Drive (Saticoy Bay), and defendant Nevada Association Services, Inc. stipulate as

5

follows:

6

1.

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

7

related to a non-judicial homeowner's association foreclosure sale conducted pursuant to NRS chapter

8

116.

9

2.

On August 12, 2016, the Ninth Circuit held, in Bourne Valley, Nevada's "opt-in" notice

AKERMAN LLP

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

10

scheme for homeowners' association super-priority foreclosure is facially unconstitutional under the

11

Fourteenth Amendment's due process clause. Bourne Valley Court Trust v. Wells Fargo Bank, N.A.,

12

832 F.3d at 1159-60.

13

3.

This Court issued an order staying this case pending the Ninth Circuit's mandate on

14

August 30, 2016, to "avoid potentially unnecessary further litigation." ECF No. 23 at 1. The order

15

directs any party may move to lift the stay when the Ninth Circuit issues its mandate. Id. at 3.

16
17
18

4.

The Ninth Circuit issued its mandate on December 14, 2016. Bourne Valley, Ninth

Circuit Case No. 15-15233.
5.

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

19

LLC Series 350 Durango 104 v. Wells Fargo Home Mortg., a Div. of Wells Fargo Bank, N.A., 133

20

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

21

to Bourne Valley, no state action supported a challenge under the due process clause.

22

6.

Bourne Valley intends to file a petition for writ of certiorari in Bourne Valley. Its

23

current deadline is April 3, 2017. See Bourne Valley, U.S. Supreme Court Docket No. 16A753.

24

Wells Fargo's deadline to file its petition for writ of certiorari in Saticoy Bay is April 25, 2017. Thus,

25

the parties believe the stay the parties request is appropriate.

26
27

7.

On February 8, 2017, the Nevada Supreme Court stayed the issuance of remittitur in

Saticoy Bay pending the filing of a writ of certiorari with the United States Supreme Court and, if a

28
{41141997;1}

2

1

petition is filed, the stay of remittitur will stay in effect until final disposition of the certiorari

2

proceedings before the United States Supreme Court.

3

8.

Since then, several judges in this district have stayed similar cases pending the

4

exhaustion of all appeals before the United States Supreme Court. See e.g., Nationstar Mortg. LLC v.

5

Green Valley S. Owners Ass'n, No. 2:16-cv-00883-GMN-GWF, ECF No. 38 (D. Nev. Oct. 5, 2016);

6

Bank of America, N.A. v. Canyon Willow Trop Owners' Ass'n, No. 2:16-cv-01327-GMN-VCF, ECF

7

No. 25 (D. Nev. Oct. 26, 2016); Deutsche Bank Nat'l Tr. Co. v. Copper Sands HOA, No. 2:16-cv-

8

00763-JAD-CWH, ECF No. 29 (D. Nev. Feb. 28, 2017).

9

9.

To determine if a stay is appropriate, the Court must consider (1) the possible damage

AKERMAN LLP

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

10

which may result from the stay, (2) any hardship or inequity which may result from the stay, and (3)

11

the orderly course of justice measured in terms of simplifying or complicating the issues, proof, and

12

questions of law. Dependable Hwy. Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir.

13

2007). Here, the factors support a stay of litigation:

14

a.

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

15

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

16

were allowed to continue that could be mooted by a decision in Bourne Valley certiorari proceedings.

17

Indeed, the parties will be enable to avoid the cost and expense of continued legal proceedings in light

18

of what is unsettled law to say the least. Moreover, the Court will be relieved of expending further

19

time and effort until the conflict between the circuit and Nevada Supreme Court is resolved. Thus, a

20

stay will benefit all parties involved herein.

21

b.

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

22

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

23

to have finality, given the split in the state and federal court decisions. The parties agree that any

24

hardship or inequity falling on any of them is outweighed by the benefits of a stay.

25

c.

Orderly Course of Justice: At the center of this case is a homeowners' association's

26

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

27

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

28
{41141997;1}

3

1

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

2

avoid a likely appeal from any subsequent judgment in this case.

3

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

4

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

5

10.

A temporary stay would

The parties agree that all proceedings in the instant case, including motion and other

6

litigation deadlines, are stayed pending final resolution of the Bourne Valley and/or Saticoy Bay

7

certiorari proceedings before the United States Supreme Court.

8
9

11.

24, shall be deemed withdrawn.

AKERMAN LLP

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

10
11

12.

13.

Deutsche Bank shall be prohibited from selling or encumbering the property unless

otherwise ordered by the Court.

14
15

Saticoy Bay shall be required to keep current on all property taxes and assessments,

HOA dues, maintain the property, and maintain insurance on the property at issue.

12
13

If this stipulation is approved, Deutsche Bank's motion to partially lift stay, ECF No.

14.

Deutsche Bank is prohibited from conducting foreclosure proceedings on the property

unless otherwise ordered by the Court.

16

15.

The parties agree that all proceedings in the instant case, including motion and other

17

litigation deadlines, are stayed pending final resolution of the Bourne Valley and/or Saticoy Bay

18

certiorari proceedings before the United States Supreme Court.

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28
{41141997;1}

4

1
2
3

16.

Any party may file a written motion to lift stay at any time it deems appropriate.

Dated this 21st day of March, 2017.

Dated this 13th day of March, 2017.

AKERMAN LLP

LAW OFFICES OF MICHAEL F. BOHN,
ESQ., LTD.

/s/ Tenesa S. Scaturro, Esq.
DARREN T. BRENNER, ESQ.
Nevada Bar No. 8386
TENESA S. SCATURRO, ESQ.
Nevada Bar No. 12488
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144

/s/ Michael F. Bohn, Esq.
MICHAEL F. BOHN, ESQ.
Nevada Bar. No. 1641
376 E. Warm Springs Road, Suite 140
Las Vegas, Nevada 89119

4
5
6
7
8
9

AKERMAN LLP

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

10
11
12
13
14

Attorneys for defendant and counter-claimant
Saticoy Bay LLC Series 5106 Kingsbridge Drive

Attorneys for plaintiff and counter-defendant
Deutsche Bank Trust Company Americas, as *E-signature affixed by Akerman LLP; approved by
Trustee for Dover Mortgage Capital counsel via email
Corporation Grantor Trust Certificate Series
2004-A

Dated this 21st day of March, 2017.

Dated this 21st day of March, 2017.

15
16
17
18
19
20
21
22

ALVERSON, TAYLOR, MORTENSEN &
SANDERS
/s/ David J. Rothenberg, Esq.*
KURT R. BONDS, ESQ.
Nevada Bar No. 6228
DAVID J. ROTHENBERG, ESQ.
Nevada Bar No. 13576
7401 W. Charleston Boulevard
Las Vegas, Nevada 89117

/s/ Christopher Yergensen, Esq.*
CHRISTOPHER YERGENSEN, ESQ.
Nevada Bar No. 6183
Nevada Association Services, Inc.
6224 W. Desert Inn Road
Las Vegas, Nevada 89146

Attorneys for defendant Nevada Association
Attorneys for defendant Los Prados Community Services, Inc.
Association, Inc.

23
24

*E-signature affixed by Akerman LLP; approved by
counsel via email

*E-signature affixed by Akerman LLP; approved by
counsel via email

IT IS SO ORDERED:

25
26

__________________________
RICHARD F. BOULWARE, II
United States District Judge
DATED this 23rd day of March, 2017.

27
28
{41141997;1}

5

1

CERTIFICATE OF SERVICE

2

I certify on the 21st day of March, 2017, and pursuant to Federal Rule of Civil Procedure 5, I

3

filed and served a true and correct copy of the foregoing STIPULATION AND ORDER TO STAY

4

LITIGATION PENDING FINAL RESOLUTION OF PETITION(S) FOR WRIT OF

5

CERTIORARI TO THE UNITED STATES SUPREME COURT via the Court's CM/ECF system

6

on the following:

7

Kurt R. Bonds, Esq.
David J. Rothenberg, Esq.
ALVERSON, TAYLOR, MORTENSEN & SANDERS
7410 W. Charleston Boulevard
Las Vegas, Nevada 89117

8
9

AKERMAN LLP

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

10
11
12
13
14
15
16
17
18
19

Attorneys for defendant Los Prados Community
Association, Inc.
Michael F. Bohn, Esq.
LAW OFFICES OF MICHAEL F. BOHN
376 E. Warm Springs Road, Suite 140
Las Vegas, Nevada 89119
Attorney for Defendant and Counterclaimant
Saticoy Bay LLC Series 5106 Kingsbridge Drive
Chris Yergensen, Esq.
NEVADA ASSOCIATION SERVICES, INC.
6224 West Desert Inn Road
Las Vegas, Nevada 89146
Attorney for defendant Nevada Association
Services, Inc.

20
21
22
/s/ Nick Mangels
An employee of AKERMAN LLP

23
24
25
26
27
28
{41141997;1}

6