Bank of America, N.A. v. Loretto Bay Master Association et al

Filing 20

ORDER Granting 18 Joint Motion to Stay Litigation Pending Final Resolution of Petition(s) for Writ of Certiorari to United States Supreme Court. Signed by Judge Richard F. Boulware, II on 4/6/17. (Copies have been distributed pursuant to the NEF - MR)

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ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
VATANA LAY, ESQ.
Nevada Bar No. 12993
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
DISTRICT OF NEVADA

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BANK OF AMERICA, N.A.,

AKERMAN LLP

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

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Case No.: 2:16-cv-02190-RFB-CWH
Plaintiff,

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vs.

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LORETTO BAY MASTER ASSOCIATION;
ABSOLUTE COLLECTION SERVICES, LLC,

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Defendants.

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Plaintiff Bank of America, N.A. (BANA) and defendant Absolute Collection Services, LLC
(ACS) (collectively, the parties) respectfully move this Court for an order staying this case pending
final resolution of the Bourne Valley and/or Saticoy Bay certiorari proceedings before the United
States Supreme Court.

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BANK OF AMERICA, N.A. AND
ABSOLUTE COLLECTION SERVICES,
LLC'S JOINT MOTION TO STAY
LITIGATION PENDING FINAL
RESOLUTION OF PETITION(S) FOR
WRIT OF CERTIORARI TO UNITED
STATES SUPREME COURT

MEMORANDUM OF POINTS AND AUTHORITIES
This case arises from Loretto Bay Master Association's (the HOA) September 17, 2013 nonjudicial foreclosure sale. ECF No. 1, ¶ 3. BANA is the beneficiary of the senior deed of trust on the
property. Id. at ¶ 2. BANA filed this action to obtain a judgment the HOA's foreclosure sale did not
extinguish BANA's interest and any interest the HOA has in the property is subject to the senior deed
of trust, or, alternatively, obtain damages for unjust enrichment and tortious interference with BANA's
contract. See id. at Prayer.

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

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

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unconstitutional. Under the Ninth Circuit's ruling, BANA contends the HOA's foreclosure sale could

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not extinguish BANA's interest because the HOA conducted its sale under the same unconstitutional

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statute. See e.g., Bank of New York Mellon Trust Co., N.A. v. Jentz, No. 2:15-cv-01167-RCJ-CWH,

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2016 WL 4487841, at *4 (D. Nev. Aug. 24, 2016) ("Unless and until [Bourne Valley] is vacated or

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reversed, pre-2015 HOA foreclosures under Chapter 116 cannot be found to have extinguished first

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deeds of trust[.]"). The Court of Appeals issued its mandate in the appeal on December 14, 2016,

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

AKERMAN LLP

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

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

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350 Durango 104 v. Wells Fargo Home Mortgage, a Div. of Wells Fargo Bank, N.A., 133 Nev. Adv.

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Op. 5, ___ P.3d ___, 2017 WL 398426 (Nev. Jan. 26, 2017), holding, in direct contrast to Bourne

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Valley, no state action supported a challenge under the Due Process Clause of the United States

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Constitution.

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

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

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

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

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

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parties believe the stay requested herein is appropriate.

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

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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 of

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the certiorari proceedings before the United States Supreme Court.

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Several judges in this district have stayed similar cases pending exhaustion of all appeals

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before the United States Supreme Court. See e.g., Nationstar Mortg. LLC v. Green Valley S. Owners

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Ass'n, No. 2:16-cv-00883-GMN-GWF, ECF No. 38 (D. Nev. Oct. 5, 2016); Bank of America, N.A. v.

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Canyon Willow Trop Owners' Ass'n, No. 2:16-cv-01327-GMN-VCF, ECF No. 25 (D. Nev. Oct. 26,

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

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29 (D. Nev. Feb. 28, 2017).

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A.

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

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(2) hardship or inequity that befalls one party more than the other; and (3) the orderly course of justice.

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See Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007)

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(setting forth factors). Here, these factors support a stay of litigation.

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The Stay Is Appropriate.

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Damage from Stay.

AKERMAN LLP

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

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Any damage from a temporary stay in this case will be minimal if balanced against the

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potential fees, costs, and time which would surely ensue in this matter if litigation were allowed to

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continue that could be mooted by a decision in Bourne Valley certiorari proceedings. Indeed, the

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parties will be able to avoid the cost and expense of continued legal proceedings in light of what is

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

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

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benefit all parties involved herein.

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2.

Hardship or Inequity.

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There will be no significant hardship or inequity that befalls one party more than the other.

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This relatively equal balance of equities results from the need for all parties to have finality, given the

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split in the state and federal court decisions. The parties agree that any hardship or inequity falling on

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

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3.

Orderly Course of Justice.

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At the center of this case is the HOA's foreclosure sale under NRS 116. The outcome of the

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petitions for writ in Bourne Valley and/or Saticoy Bay have the potential to affirm or overturn either

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case. Without a stay, the parties will expend resources that will be unnecessary if either or both

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petitions are granted. A stay would also avoid a likely appeal from any subsequent judgment in this

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case. A temporary stay would substantially promote the orderly course of justice in this case. A stay

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will avoid the moving forward without final resolution of the federal issues and the state court/federal

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court conflict.

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WHEREFORE, BANA and ACS respectfully request the Court issue an order staying this

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litigation pending final resolution of the Bourne Valley and/or Saticoy Bay certiorari proceedings

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before the United States Supreme Court.

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DATED this March 10, 2017.

ABSOLUTE COLLECTION SERVICES, LLC

AKERMAN LLP

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/s/ Shane D. Cox.
SHANE D. COX, ESQ.
Nevada Bar No. 13852
8440 W Lake Mead Blvd., Ste 210
Las Vegas, NV 89128

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Attorney for Absolute Collection Services, LLC

/s/ Vatana Lay
ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
VATANA LAY, ESQ.
Nevada Bar No. 12993
Akerman LLP
1160 Town Center Drive, Suite 330
Las Vegas, NV 89144

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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 Plaintiff Bank of America, N.A.

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IT IS SO ORDERED:

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__________________________
RICHARD F. BOULWARE, II
United States District Judge

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DATED this 6th day of April, 2017.

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CERTIFICATE OF SERVICE

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I HEREBY CERTIFY that on the March 10, 2017 I served a true and correct copy of the

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foregoing BANK OF AMERICA, N.A. AND ABSOLUTE COLLECTION SERVICES, LLC'S

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JOINT MOTION TO STAY LITIGATION PENDING FINAL RESOLUTION OF

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PETITION(S) FOR WRIT OF CERTIORARI TO UNITED STATES SUPREME COURT, via

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the court's electronic filing system as follows:

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AKERMAN LLP

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

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BOYACK ORME & ANTHONY
EDWARD D. BOYACK
CHRISTOPHER B. ANTHONY
401 N. Buffalo Drive #202
Las Vegas, Nevada 89145
Attorneys for Defendant
Loretto Bay Master Association

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/s/ Tracey Wayne
An employee of AKERMAN LLP

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{41138409;2}

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