US Bank National Association v. LVDG, LLC et al

Filing 36

ORDER Granting 35 Stipulation Staying Case. Signed by Judge Richard F. Boulware, II on 3/29/17. (Copies have been distributed pursuant to the NEF - ADR)

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ATTORNEYS
HILLS CENTER BUSINESS PARK
1935 VILLAGE CENTER CIRCLE
LAS VEGAS, NEVADA 89134
[phone] ∙ [phone]

SMITH LARSEN & WIXOM

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Kent F. Larsen, Esq.
Nevada Bar No. 3463
Christopher L. Benner, Esq.
Nevada Bar No. 8963
SMITH LARSEN & WIXOM
1935 Village Center Circle
Las Vegas, Nevada 89134
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Plaintiff, U.S. Bank National Association,
as Trustee, Successor in Interest to Bank of America
National Association as Successor by Merger
to Lasalle Bank National Association as Trustee
for Certificateholders of Bear Stearns Asset
Backed Securities I LLC Asset-Backed
Certificates Series 2005-HE8

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE, SUCCESSOR IN INTEREST TO
CASE NO.: 2:16-cv-02158-RFB-NJK
BANK OF AMERICA NATIONAL
ASSOCIATION AS SUCCESSOR BY
MERGER TO LASALLE BANK NATIONAL
STIPULATION AND ORDER
ASSOCIATION AS TRUSTEE FOR
STAYING CASE
CERTIFICATEHOLDERS OF BEAR STEARNS
ASSET BACKED SECURITIES I LLC ASSETBACKED CERTIFICATES SERIES 2005-HE8,
v.

Plaintiff,

LVDG, LLC, a Nevada limited liability company;
MOUNTAIN GATE HOMEOWNERS
ASSOCIATION, a Nevada non-profit
corporation; MOUNTAIN GATE AT SUNRISE
MOUNTAIN HOMEOWNERS’
ASSOCIATION, a Nevada non-profit
corporation; MELINDA HARRIS, an individual,
EXCELL HARRIS, an individual,
Defendants.

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Plaintiff U.S. Bank National Association as Trustee Successor in Interest to Bank of
America National Association as Successor by Merger to Lasalle Bank National Association
as Trustee for Certificateholders of Bear Stearns Asset Backed Securities I LLC AssetBacked Certificates Series 2005-HE8 (“U.S. Bank”), by and through its attorney of record,
Smith Larsen & Wixom; defendant LVDG, LLC, (“LVDG”) by and through its attorney of
record Timothy Rhoda of Roger P. Croteau & Associates, Ltd.; and defendant Mountain

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Gate at Sunrise Mountain Homeowners’ Association, by and through its attorney of record

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Julie Funai of Lipson Neilson Cole Seltzer & Garin, P.C. hereby stipulate as follows:

ATTORNEYS
HILLS CENTER BUSINESS PARK
1935 VILLAGE CENTER CIRCLE
LAS VEGAS, NEVADA 89134
[phone] ∙ [phone]

SMITH LARSEN & WIXOM

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1.

This lawsuit involves a claim for 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

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pursuant to NRS 116.

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2.

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

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

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that NRS 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

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District Court, District of Nevada.

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3.

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

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Bay LLC Series 350 Durango 104 v. Wells Fargo Home Mortgage, a Div. of Wells Fargo

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Bank, N.A., 133 Nev. Adv. Op. 5, ___ P.3d ___, 2017 WL 398426 (Nev. Jan. 26, 2017),

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holding, in direct contrast to Bourne Valley, that no state action supported a challenge under

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the Due Process Clause of the United States Constitution.
4.

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

decisions in the United States Supreme Court. Bourne Valley's deadline to file its petition for
writ of certiorari of the Ninth Circuit's Bourne Valley decision is April 3, 2017. See Bourne
Valley Court Trust v. Wells Fargo Bank, NA., United States Supreme Court Case No.
16A753. Wells Fargo's deadline to file its petition for writ of certiorari of the Nevada

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Supreme Court's Saticoy Bay decision is April 25, 2017. Thus, the parties believe that the
stay requested herein is appropriate.
5.

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

remittitur in Saticoy Bay pending the filing of a petition for a writ of certiorari with the United
States Supreme Court, and if a petition is filed, the stay of the remittitur will remain in effect
until final disposition of the certiorari proceedings before the United States Supreme Court.
6.

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

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

ATTORNEYS
HILLS CENTER BUSINESS PARK
1935 VILLAGE CENTER CIRCLE
LAS VEGAS, NEVADA 89134
[phone] ∙ [phone]

SMITH LARSEN & WIXOM

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

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

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2016); Deutsche Bank Nat'l Trust Co. v. Copper Sands HOA, No. 2:16-cv-00763-JAD-CWH

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(D. Nev. Feb. 28, 2017); Ditech Financial Services, LLC v. Highland Ranch Homeowners

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Assoc., No. 3:16-cv-00194-MMD-WGC (D. Nev. Mar. 7, 2017); Wells Fargo Bank, N.A. v.

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Las Vegas Dev. Group, LLC, 2:16-cv-02621-RFB-NJK (D. Nev. Mar. 9, 2017).

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7.

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

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F.3d 1059, 1066 (9th Cir. 2007) (setting forth factors). Here, the factors support a stay of

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litigation.

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a.

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

minimal if balanced against the potential fees, costs, and time which would surely ensue in
this matter if litigation were allowed to continue that could be mooted by a decision in Bourne
Valley certiorari proceedings. Indeed, the parties will be able to avoid the cost and expense of
continued legal proceedings in light of what is unsettled law to say the least. Moreover, the
Court will be relieved of expending further time and effort until the conflict between the
circuit and Nevada Supreme Court is resolved. Thus, a stay will benefit all parties involved
herein, as well as the Court.
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b.

Hardship or Inequity: The parties agree that any hardship or inequity falling

on any of them is outweighed by the benefits of a stay.
c.

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

association's foreclosure sale under NRS 116. The outcome of the petitions for writ in Bourne
Valley and/or Saticoy Bay have the potential to affirm or overturn either case. Without a stay,
the parties will expend resources that will be unnecessary if either or both petitions are
granted. A stay would also avoid a likely appeal from any subsequent judgment in this case.
A temporary stay would substantially promote the orderly course of justice in this case. A

ATTORNEYS
HILLS CENTER BUSINESS PARK
1935 VILLAGE CENTER CIRCLE
LAS VEGAS, NEVADA 89134
[phone] ∙ [phone]

SMITH LARSEN & WIXOM

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stay will avoid the need for moving forward without final resolution of the federal issues and

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the state court/federal court conflict.

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8.

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

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

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Saticoy Bay certiorari proceedings before the United States Supreme Court.

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9.

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

assessments, HOA dues, and reasonably maintain the property for the duration of the stay.
10.

Defendant LVDG shall be prohibited from selling or encumbering the property

unless otherwise ordered by the Court.
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Plaintiff U.S. Bank is prohibited from conducting foreclosure proceedings on

the property unless otherwise ordered by the Court.
12.

Any party may file a written motion to lift stay at any time for any reason the

party determines to be appropriate.

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Continued on next page

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ATTORNEYS
HILLS CENTER BUSINESS PARK
1935 VILLAGE CENTER CIRCLE
LAS VEGAS, NEVADA 89134
[phone] ∙ [phone]

SMITH LARSEN & WIXOM

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13.

If this stipulation is granted, all pending motions that are not fully briefed as of

the date of this stipulation shall be deemed withdrawn and may be re-filed upon expiration of
the stay if appropriate. The Court may rule upon any fully briefed motions as it deems
appropriate.
DATED this 22nd day of March, 2017.
SMITH LARSEN & WIXOM

LIPSON, NIELSON, COLE, SELTZER &
GARIN P.C.

By: /s/ Christopher L. Benner
Kent F. Larsen, Esq. (SBN 3462)
Christopher L. Benner, Esq. (SBN 8963)
1935 Village Center Circle
Las Vegas, Nevada 89134
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff U.S. Bank

By: /s/ Kaleb D. Anderson
Kaleb D. Anderson, Esq. (SBN 7582)
Julie A. Funai, Esq. (SBN 8725)
9900 Covington Cross Drive, Suite 120
Las Vegas, Nevada 89144
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant Mountain Gate
at Sunrise Mountain HOA

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ROGER P. CROTEAU & ASSOCIATES,
LTD.

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By: /s/ Roger P. Croteau
Roger P. Croteau, Esq. (SBN 4958)
Timothy Rhoda, Esq. (SBN 7878)
9120 West Post Road Ste 100
Las Vegas, Nevada 89148
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendant LVDG, LLC

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ORDER
IT IS SO ORDERED.

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UNITED STATES MAGISTRATE JUDGE

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March 29, 2017.
DATED: _________________________

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U.S. Bank N.A. v. LVDG, LLC
2:16-cv-02158-RFB-NJK

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