The Bank Of New York Mellon v. Tramonto Villaggio Homeowners Association et al

Filing 59

ORDER granting 58 Motion to Lift Stay of Case; Stipulations, motions to modify the discovery plan and scheduling order, or in the absence of such stipulations or motions, dispositive motions are due within forty-five (45) days after the entry of this order. Signed by Judge Kent J. Dawson on 12/19/2018.; Case stay lifted. (Copies have been distributed pursuant to the NEF - JM)

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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 f/k/a
THE BANK OF NEW YORK, as successor in
interest to JPMORGAN CHASE BANK, N.A.,
as Trustee,

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v.
TRAMONTO VILLAGGIO HOMEOWNERS
ASSOCIATION, et al.,

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ORDER

Plaintiff,

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Case No. 2:16-cv-01897-KJD-GWF

Defendants.
Presently before the Court is Plaintiff’s Motion to Lift Stay (#58). Though the time for

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doing so has passed, no response in opposition has been filed.

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I. Background and Analysis

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This case emerges from the non-judicial foreclosure sale by Defendant Tramonto

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Villaggio Homeowners Association on or about September 19, 2012 of the property located at

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9576 Trattoria St., Las Vegas, Nevada 89178 (“the Property”). This case shares a similar fact

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pattern with many cases currently pending before this Court, all having to do with HOA

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foreclosure sales. One of the issues before the Court centers in whole or in part around the

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question of what notice of default the foreclosing party was required to provide Plaintiff prior to

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its foreclosure sale on the Property. After the Nevada Supreme Court’s decision in SFR Invs.

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Pool 1, LLC v. U.S. Bank, the Ninth Circuit decided Bourne Valley Court Trust v. Wells Fargo

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Bank, NA, 832 F.3d 1154, 1160 (9th Cir. 2016) (holding NRS 115.3116(2)’s statutory notice

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scheme was facially unconstitutional).

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On April 21, 2017, in Bank of New York Mellon v. Star Hills Homeowners Ass’n, this

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Court certified the following question to the Nevada Supreme Court: “Whether NRS §

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116.31168(1)’s incorporation of NRS § 107.090 requires homeowners associations to provide

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notices of default to banks even when a bank does not request notice?” Bank of New York

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Mellon v. Star Hill Homeowners Ass’n, 2017 WL 1439671, at *5 (D. Nev. April 21, 2017).

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In granting certification, the Court reasoned the following: In Bourne Valley, the Ninth

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Circuit definitively answered the question that the statute’s “opt-in” framework was

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unconstitutional. Bourne Valley Court Trust v. Wells Fargo Bank, NA, 832 F.3d 1154, 1160 (9th

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Cir. 2016). However, that left the Court with the unresolved question of what notice must be

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provided. “It is solely within the province of the state courts to authoritatively construe state

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legislation.” Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1146 (9th Cir. 2001). As

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such, state law questions of first impression like this one should be resolved by the state’s

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highest court. See Huddleston v. Dwyer, 322 U.S. 232, 237 (1944).

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On August 2, 2018, the Supreme Court of Nevada answered the certified question. See

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SFR Invs. Pool 1, LLC v. Bank of New York Mellon, 422 P.3d 1248 (Nev. 2018). Further, it has

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since issued two new opinions that bear on the issues in this action. See Wells Fargo Bank, N.A.

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v. Tim Radecki, 2018 WL 4402403 (Nev. September 13, 2018); Bank of America, N.A. v. SFR

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Invs. Pool 1, LLC, 2018 WL 4403296 (Nev. September 13, 2018) (tender of the superpriority

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amount prior to foreclosure results in buyer taking property subject to deed of trust).

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Also, since the action was stayed, opinions in several cases have directly addressed the

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Federal Foreclosure Bar at issue in many cases. See Berezovsky v. Moniz, 869 F.3d 923 (9th Cir.

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2017); Elmer v. JPMorgan Chase & Co., 707 Fed. Appx. 426 (9th Cir. 2017); Nationstar Mortg.,

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LLC v. SFR Invs. Pool 1, LLC, 396 P.3d 754 (Nev. 2017).

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A. Stay of the Case

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A district court has the inherent power to stay cases to control its docket and promote the

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efficient use of judicial resources. Landis v. North Am. Co., 299 U.S., 248, 254-55 (1936);

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Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 200). A

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stay is no longer necessary in this action where the certified question has already been decided.

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B. Briefing Schedule

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The parties may either file a stipulation or move the Court for a modified discovery plan

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and scheduling order as necessary. If the parties fail to do so, dispositive motions are due no later

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than forty-five (45) days after the entry of this order. Any future dispositive motions must

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address the most recent case law applicable to the issues in this action.

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II. Conclusion

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Accordingly, IT IS HEREBY ORDERED that the STAY in this action is LIFTED;

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IT IS FURTHER ORDERED that stipulations, motions to modify the discovery plan and

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scheduling order, or in the absence of such stipulations or motions, dispositive motions are due

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within forty-five (45) days after the entry of this order.

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Dated this 19th day of December, 2018.

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_____________________________
Kent J. Dawson
United States District Judge

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