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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 9 10 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, 13 v. TRAMONTO VILLAGGIO HOMEOWNERS ASSOCIATION, et al., 14 15 ORDER Plaintiff, 11 12 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 16 doing so has passed, no response in opposition has been filed. 17 I. Background and Analysis 18 This case emerges from the non-judicial foreclosure sale by Defendant Tramonto 19 Villaggio Homeowners Association on or about September 19, 2012 of the property located at 20 9576 Trattoria St., Las Vegas, Nevada 89178 (“the Property”). This case shares a similar fact 21 pattern with many cases currently pending before this Court, all having to do with HOA 22 foreclosure sales. One of the issues before the Court centers in whole or in part around the 23 question of what notice of default the foreclosing party was required to provide Plaintiff prior to 24 its foreclosure sale on the Property. After the Nevada Supreme Court’s decision in SFR Invs. 25 Pool 1, LLC v. U.S. Bank, the Ninth Circuit decided Bourne Valley Court Trust v. Wells Fargo 26 Bank, NA, 832 F.3d 1154, 1160 (9th Cir. 2016) (holding NRS 115.3116(2)’s statutory notice 27 scheme was facially unconstitutional). 28 1 On April 21, 2017, in Bank of New York Mellon v. Star Hills Homeowners Ass’n, this 2 Court certified the following question to the Nevada Supreme Court: “Whether NRS § 3 116.31168(1)’s incorporation of NRS § 107.090 requires homeowners associations to provide 4 notices of default to banks even when a bank does not request notice?” Bank of New York 5 Mellon v. Star Hill Homeowners Ass’n, 2017 WL 1439671, at *5 (D. Nev. April 21, 2017). 6 In granting certification, the Court reasoned the following: In Bourne Valley, the Ninth 7 Circuit definitively answered the question that the statute’s “opt-in” framework was 8 unconstitutional. Bourne Valley Court Trust v. Wells Fargo Bank, NA, 832 F.3d 1154, 1160 (9th 9 Cir. 2016). However, that left the Court with the unresolved question of what notice must be 10 provided. “It is solely within the province of the state courts to authoritatively construe state 11 legislation.” Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1146 (9th Cir. 2001). As 12 such, state law questions of first impression like this one should be resolved by the state’s 13 highest court. See Huddleston v. Dwyer, 322 U.S. 232, 237 (1944). 14 On August 2, 2018, the Supreme Court of Nevada answered the certified question. See 15 SFR Invs. Pool 1, LLC v. Bank of New York Mellon, 422 P.3d 1248 (Nev. 2018). Further, it has 16 since issued two new opinions that bear on the issues in this action. See Wells Fargo Bank, N.A. 17 v. Tim Radecki, 2018 WL 4402403 (Nev. September 13, 2018); Bank of America, N.A. v. SFR 18 Invs. Pool 1, LLC, 2018 WL 4403296 (Nev. September 13, 2018) (tender of the superpriority 19 amount prior to foreclosure results in buyer taking property subject to deed of trust). 20 Also, since the action was stayed, opinions in several cases have directly addressed the 21 Federal Foreclosure Bar at issue in many cases. See Berezovsky v. Moniz, 869 F.3d 923 (9th Cir. 22 2017); Elmer v. JPMorgan Chase & Co., 707 Fed. Appx. 426 (9th Cir. 2017); Nationstar Mortg., 23 LLC v. SFR Invs. Pool 1, LLC, 396 P.3d 754 (Nev. 2017). 24 A. Stay of the Case 25 A district court has the inherent power to stay cases to control its docket and promote the 26 efficient use of judicial resources. Landis v. North Am. Co., 299 U.S., 248, 254-55 (1936); 27 Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 200). A 28 stay is no longer necessary in this action where the certified question has already been decided. -2- 1 B. Briefing Schedule 2 The parties may either file a stipulation or move the Court for a modified discovery plan 3 and scheduling order as necessary. If the parties fail to do so, dispositive motions are due no later 4 than forty-five (45) days after the entry of this order. Any future dispositive motions must 5 address the most recent case law applicable to the issues in this action. 6 II. Conclusion 7 Accordingly, IT IS HEREBY ORDERED that the STAY in this action is LIFTED; 8 IT IS FURTHER ORDERED that stipulations, motions to modify the discovery plan and 9 scheduling order, or in the absence of such stipulations or motions, dispositive motions are due 10 within forty-five (45) days after the entry of this order. 11 Dated this 19th day of December, 2018. 12 13 14 _____________________________ Kent J. Dawson United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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