Bank of America, N.A. v. Mountain Shadows Community Association et al

Filing 23

ORDER Granting 22 Stipulation to Stay Litigation. Signed by Judge Richard F. Boulware, II on 3/23/17. (Copies have been distributed pursuant to the NEF - MR)

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ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
THERA A. COOPER
Nevada Bar No. 13468
AKERMAN LLP
1160 Town Center Drive, Suite 330
Las Vegas, NV 89144
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiff Bank of America, N.A.

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

AKERMAN LLP

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

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BANK OF AMERICA, N.A.,

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Case No.:

2:16-cv-02210-RFB-GWF

Plaintiff,
vs.
MOUNTAIN
SHADOWS
COMMUNITY
ASSOCIATION;
LAS
VEGAS
DEVELOPMENT GROUP LLC; and NEVADA
ASSOCIATION SERVICES, INC.,

STIPULATION AND ORDER TO
STAY LITIGATION PENDING FINAL
RESOLUTION OF PETITION(S) FOR
WRIT OF CERTIORARI TO UNITED
STATES SUPREME COURT

Defendants.

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Bank of America, N.A., Mountain Shadows Community Association, and Las Vegas

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Development Group LLC stipulate as follows:1
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This lawsuit involves quiet title/declaratory relief and other claims related to a non-

judicial homeowner's association foreclosure sale conducted pursuant to NRS 116.
2.

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

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

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

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Defendant Nevada Association Services, Inc. was served but has not appeared.
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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., 133

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

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

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States Constitution.

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4.

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

the Ninth Circuit's Bourne Valley decision is April 3, 2017. See Bourne Valley Court Tr. 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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AKERMAN LLP

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

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

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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 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 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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6.

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

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

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

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

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Oct. 26, 2016); Deutsche Bank Nat'l Tr. Co. v. Copper Sands HOA, No. 2:16-cv-00763-JAD-CWH,

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ECF No. 29 (D. Nev. Feb. 28, 2017).

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

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

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7.

Ditech Financial Services, LLC v. Highland Ranch

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 course

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

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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 if

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

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

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Indeed, the parties will be enable to avoid the cost and expense of continued legal proceedings in light

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

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

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stay will benefit all parties involved herein as well as the Court.

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b.

Hardship or Inequity: There will be no significant hardship or inequity that befalls one

AKERMAN LLP

party more than the other. This relatively equal balance of equities results from the need for all parties

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

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

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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 forward

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without final resolution of the federal issues and the state court/federal court conflict.

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8.

A temporary stay would

The parties agree that all proceedings in the instant case, including any responses to any

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outstanding discovery requests and any litigation deadlines, are stayed pending final resolution of the

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Bourne Valley and/or Saticoy Bay certiorari proceedings before the United States Supreme Court.

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9.

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appropriate.

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Any party may file a written motion to lift stay at any time if such party determines it

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Once the stay is lifted, the parties agree they will submit a new proposed scheduling order

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addressing any currently unexpired deadlines including any deadlines to respond to pending summary

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judgment motions.

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DATED: March 21, 2017.

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AKERMAN LLP

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/s/ Thera A. Cooper
Ariel E. Stern, Esq.
Nevada Bar No. 8276
Thera A. Cooper, Esq.
Nevada Bar No. 13468
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
Attorneys for Plaintiff Bank of America, N.A.

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AKERMAN LLP

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

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/s/Ryan D. Hastings
Sean L. Anderson, Esq.
Ryan D. Hastings, Esq.
Nevada Bar No. 12394
LEACH JOHNSON SONG & GRUCHOW
8945 W. Russell Road, Suite 300
Las Vegas, Nevada 89148
Attorneys for Mountain Shadows
Community Association

/s/ Timothy E. Rhoda
Roger P. Croteau, Esq.
Timothy E. Rhoda, Esq.
Nevada Bar No. 7878
ROGER P. CROTEAU & ASSOCIATES, LTD.
9120 West Post Road, Suite 100
Las Vegas, Nevada 89148
[e-mail]
Attorneys for Las Vegas Development Group,
LLC

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ORDER
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IT IS SO ORDERED.
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______________________________________
UNITED STATES DISTRICT JUDGE

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DATED:______________________________
DATED this 23rd day of March, 2017.

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