Bank of America, N.A. v. Bacara Ridge Association et al

Filing 45

ORDER Granting 44 Stipulation to Stay Litigation. Signed by Judge Richard F. Boulware, II on 4/11/17. (Copies have been distributed pursuant to the NEF - ADR)

Case 2:16-cv-02533-RFB-NJK Document 44 Filed 04/10/17 Page 1 of 4

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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]
[e-mail]

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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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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Plaintiff,
vs.
BACARA RIDGE ASSOCIATION; SFR
INVESTMENTS POOL 1, LLC; and ALESSI &
KOENIG, LLC,

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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Case No.: 2:16 cv 02533-RFB-VCF

SFR INVESTMENTS POOL 1, LLC,
Counter/Cross Claimaint,

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vs.

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BANK OF AMERICA, N.A.; THE BANK OF
NEW YORK MELLON FKA THE BANK OF
NEW YORK, AS THE TRUSTEE FOR THE
BENEFIT OF THE CERTIFICATE
HOLDERS OF THE CWHEQ IN., HOME
EQUITY LOAN ASSET-BACKED
CERTIFICATES, SERIES 2006-S2; and
DEREK L. SMITH, an individual,

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Counter/ Cross Defendants.

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Plaintiff Bank of America, N.A. (BANA) and Defendant SFR Investment Pool 1, LLC

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(collectively, the parties)1 stipulate as follows:
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Defendant Alessi & Koenig, LLC (Alessi) filed a chapter 7 bankruptcy petition in the U.S. Bankruptcy Court
for the District of Nevada on December 13, 2016, under Case No. 16-16593. Accordingly, the stay provisions
of 11 U.S.C. § 362 (a)(1) automatically apply to Alessi.

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{41173453;1}

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Case 2:16-cv-02533-RFB-NJK Document 44 Filed 04/10/17 Page 2 of 4

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1.

This lawsuit involves the parties seeking 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 pursuant to

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NRS 116.

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2.

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 is

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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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3.

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

AKERMAN LLP

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

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

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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

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

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the Ninth Circuit's Bourne Valley decision is April 3, 2017. See Bourne Valley Court Trust 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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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 that 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.

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

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

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

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Trop Owners' Assoc., No. 2:16-cv-01327-GMN-VCF (D. Nev. Oct. 26, 2016); Deutsche Bank Nat'l

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Trust Co. v. Copper Sands HOA, No. 2:16-cv-00763-JAD-CWH (D. Nev. Feb. 28, 2017).

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{41173453;1}

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Case 2:16-cv-02533-RFB-NJK Document 44 Filed 04/10/17 Page 3 of 4

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7.

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

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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AKERMAN LLP

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

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

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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.

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b.

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

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

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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 motion and other

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

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certiorari proceedings before the United States Supreme Court.

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9.

Defendant SFR shall be required to keep current on all property taxes and assessments,

HOA dues, maintain the property, and maintain insurance on the property at issue. SFR shall also be

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Case 2:16-cv-02533-RFB-NJK Document 44 Filed 04/10/17 Page 4 of 4

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required to provide proof of payment and insurance upon reasonable notice to counsel for BANA.
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Defendant SFR shall be prohibited from selling or encumbering the property unless

otherwise ordered by the Court.
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Plaintiff BANA is prohibited from conducting foreclosure proceedings on the property

unless otherwise ordered by the Court.

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12.

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appropriate.

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AKERMAN LLP

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

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Any party may file a written motion to lift stay at any time for either party determines it

AKERMAN LLP

KIM GILBERT EBRON

/s/ Vatana Lay, Esq.
ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
VATANA LAY, ESQ.
Nevada Bar No. 12993
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144
Attorneys for Plaintiff Bank of America, N.A.

/s/ Diana Cline Ebron, Esq.
DIANA CLINE EBRON, ESQ.
Nevada Bar No. 10580
7625 Dean Martin Drive, Suite 110
Las Vegas, Nevada 89139
Attorney for Defendant SFR Investments Pool 1,
LLC

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Hall JAFFE & CLAYTON, LLP
/s/ Ashlie L. Surer
ASHLIE L. SURUR, ESQ.
Nevada Bar No. 11290
7425 Peak Drive
Las Vegas, Nevada 89128
Attorney for Defendant Bacara Ridge Association

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ORDER

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IT IS SO ORDERED:

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_________________________________________
UNITED STATES DISTRICT COURT JUDGE

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April 11, 2017
DATED: _________________________________

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