Bank of America, N.A. v. Arlington West Twilight Homeowners Association, et al

Filing 36

ORDER Granting 35 Stipulation to Stay Litigation. IT IS FURTHER ORDERED that 28 Defendant's Motion to Certify is DENIED. Signed by Judge Kent J. Dawson on 3/16/17. (Copies have been distributed pursuant to the NEF - MR)

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ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
JASON J. ZUMMO, ESQ.
Nevada Bar No. 13995
AKERMAN LLP
1160 Town Center Drive, Suite 330
Las Vegas, NV 89144
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiff Bank of America,
N.A.
UNITED STATES DISTRICT COURT

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AKERMAN LLP

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

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DISTRICT OF NEVADA
BANK OF AMERICA, N.A., SUCCESSOR BY
MERGER
TO
BAC
HOME
LOANS
SERVICING, LP, F/K/A COUNTRYWIDE
HOME LOANS SERVICING, LP,

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Plaintiff,

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vs.

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ARLINGTON
WEST
TWILIGHT
HOMEOWNERS
ASSOCIATION;
SFR
INVESTMENTS POOL 1, LLC; and ALESSI &
KOENIG, LLC,

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Defendants.
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SFR INVESTMENTS POOL 1, LLC, a
Nevada limited liability company,
Counter/Cross Claimant,

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vs.
BANK OF AMERICA, N.A., SUCCESSOR BY
MERGER
TO
BAC
HOME
LOANS
SERVICING, LP, FKA COUNTRYWIDE
HOME LOANS SERVICING, LP; KIMBERLY
McLAUGHLIN, an individual; and JASON
McLAUGHLIN, an individual,

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Counter/Cross Defendants.

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{41172593;1}

Case No.: 2:16-cv-00810-KJD-NJK
STIPULATION AND ORDER TO STAY
LITIGATION PENDING FINAL
RESOLUTION OF PETITION(S) FOR
WRIT OF CERTIORARI TO UNITED
STATES SUPREME COURT

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Plaintiff Bank of America, N.A., successor by merger to BANA Home Loans Servicing, LP

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f/k/a Countrywide Home Loans Servicing, LP (BANA) and defendant SFR Investments Pool 1, LLC

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(SFR) (collectively, the parties), the only parties to have appeared in this action, stipulate to

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temporarily stay this case as follows:

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1.

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

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related to a non-judicial homeowner's association foreclosure sale conducted on a Property pursuant

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to NRS 116.

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2.

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

is facially unconstitutional. The Court of Appeals issued its mandate in the appeal on December 14,

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AKERMAN LLP

Court Tr. v. Wells Fargo Bank, N.A., 832 F.3d 1154, 1159-60 (9th Cir. 2016) holding that NRS 116

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

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2016, vacating and remanding the judgment to the United States District Court, District of Nevada.

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3.

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 Clause of

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the United States Constitution.

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4.

The parties in Bourne Valley and Saticoy Bay are seeking review of both decisions in

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the United States Supreme Court. Bourne Valley's deadline to file its petition for writ of certiorari of

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the Ninth Circuit's Bourne Valley decision is April 3, 2017. See Bourne Valley Court Trust v. Wells

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Fargo Bank, NA., United States Supreme Court Case No. 16A753. Wells Fargo's deadline to file its

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petition for writ of certiorari of the Nevada Supreme Court's Saticoy Bay decision is April 25, 2017.

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Thus, the parties believe that the stay requested herein is appropriate.

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5.

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

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in Saticoy Bay pending the filing of a petition for a writ of certiorari with the United States Supreme

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

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of the certiorari proceedings before the United States Supreme Court.

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{41172593;1}

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6.

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

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exhaustion of all appeals before the United States Supreme Court. E.g., Nationstar Mtg. LLC v.

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Green Valley S. Owners Assoc., No. 2:16-cv-00883-GMN-GWF; Bank of America, N.A. v. Canyon

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Willow Trop Owners' Assoc., No. 2:16-cv-01327-GMN-VCF (D. Nev. Oct. 26, 2016); Deutsche

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Bank Nat'l Trust Co. v. Copper Sands HOA, No. 2:16-cv-00763-JAD-CWH (D. Nev. Feb. 28, 2017).

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7.

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

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

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course of justice. See Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066

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(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 minimal

AKERMAN LLP

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

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

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

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proceedings. Indeed, the parties will be able to avoid the cost and expense of continued legal

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proceedings in light of what is unsettled law to say the least. Moreover, the Court will be relieved of

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expending further time and effort until the conflict between the circuit and Nevada Supreme Court is

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resolved. Thus, a stay will benefit all parties involved herein.

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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 all

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

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

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c.

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

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foreclosure sale under NRS 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 also

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

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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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{41172593;1}

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A temporary stay would

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

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

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certiorari proceedings before the United States Supreme Court.

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8.

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

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

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SFR shall also be required to provide proof of payment and insurance upon reasonable notice to

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counsel for BANA.

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Defendant SFR shall be prohibited from selling or encumbering the property unless

otherwise ordered by the Court.

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10.

Plaintiff BANA is prohibited from conducting foreclosure proceedings on the

AKERMAN LLP

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

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property unless otherwise ordered by the Court.

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{41172593;1}

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11.

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

it appropriate.

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DATED this 15th day of March, 2017.

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AKERMAN LLP

KIM GILBERT EBRON

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/s/ Jason Joseph Zummo, Esq.
ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
JASON J. ZUMMO, ESQ.
Nevada Bar No. 13995
AKERMAN LLP
1160 Town Center Drive, Suite 330
Las Vegas, NV 89144
Telephone: [phone]
Facsimile: [phone]

/s/ Diana Cline Ebron, Esq.
DIANA CLINE EBRON, ESQ.
Nevada Bar No. 10580
JACQUELINE A. GILBERT, ESQ.
Nevada Bar No. 10593
KAREN L. HANKS, ESQ.
Nevada Bar No. 9578
7625 Dean Martin Drive, Suite 110
Las Vegas, Nevada 89139
Telephone: [phone]
Facsimile: [phone]

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AKERMAN LLP

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

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Attorneys for Bank of America, N.A.

Attorneys for Defendant SFR
Investments Pool 1, LLC

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IT IS FURTHER ORDERED that Defendant's Motion to Certify (#28) is DENIED.

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IT IS SO ORDERED.

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________________________________
UNITED STATES DISTRICT JUDGE

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March 16, 2017
DATED:________________________

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{41172593;1}

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