Bank of America, N.A. v. Emerald Ridge Landscape Maintenance Association et al

Filing 41

ORDER that all proceedings in the instant case, including responses to any outstanding discovery and other litigation deadlines, are stayed pending final resolution of the Bourne Valley and/or Saticoy Bay certiorari proceedings before the United States Supreme Court. Signed by Judge Richard F. Boulware, II on 4/12/2017. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:16-cv-02759-RFB-NJK Document 40 Filed 04/11/17 Page 1 of 5

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MELANIE D. MORGAN, ESQ.
Nevada Bar No. 8215
VATANA LAY, ESQ.
Nevada Bar No. 12993
AKERMAN LLP
1160 Town Center Drive, Suite 330
Las Vegas, NV 89144
Telephone: [phone]
Facsimile: [phone]
Email: melanie.morgan @akerman.com
[e-mail]

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Attorneys for 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-02759-RFB-NJK

Plaintiff,
vs.
EMERALD RIDGE LANDSCAPE
MAINTENANCE ASSOCIATION; SFR
INVESTMENTS POOL 1, LLC; and RED ROCK
FINANCIAL SERVICES, LLC,
Defendants.

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SFR INVESTMENTS POOL 1, LLC, a Nevada
limited liability company,

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Counter/cross-claimant,

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v.

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BANK OF AMERICA, N.A.; U.S. BANK
TRUST, N.A., AS TRUSTEE FOR LSF9
MASTER PARTICIPATION TRUST; RONALD
M. RHEES, an individual; CAMELLIA F.
PEEBLES, an individual,

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Counter-Defendant.
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STIPULATION AND ORDER TO STAY
LITIGATION PENDING FINAL
RESOLUTION OF PETITION(S) FOR
WRITS OF CERTIORARI TO UNITED
STATES SUPREME COURT

Case 2:16-cv-02759-RFB-NJK Document 40 Filed 04/11/17 Page 2 of 5

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Plaintiff/counter-defendant Bank of America, N.A., Defendant/counter-plaintiff SFR

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Investments Pool 1, LLC, and Defendant Emerald Ridge Landscape Maintenance Association,

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Defendant Red Rock Financial Services, LLC, stipulate as follows1:

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1.

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.

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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.

AKERMAN LLP

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

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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

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the United States Supreme Court. Bourne Valley filed its petition for writ of certiorari of the Ninth

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

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

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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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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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Defendants Camellia Peebles and Ronald M. Rhees have not appeared.

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Case 2:16-cv-02759-RFB-NJK Document 40 Filed 04/11/17 Page 3 of 5

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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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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.

AKERMAN LLP

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

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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.

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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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A temporary stay would

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8.

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

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outstanding discovery and other litigation deadlines, are stayed pending final resolution of the Bourne

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

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AKERMAN LLP

appropriate.

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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 if such party determines it

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Case 2:16-cv-02759-RFB-NJK Document 40 Filed 04/11/17 Page 5 of 5

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Once the stay is lifted, the parties agree they will submit a new proposed scheduling order
addressing any currently unexpired deadlines.

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DATED this April 11, 2017.

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AKERMAN LLP

KOCH & SCOW LLC

/s/ Vatana Lay
MELANIE D. MORGAN, ESQ.
Nevada Bar No. 8215
VATANA LAY, ESQ.
Nevada Bar No. 12993
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144

/s/ Steve B. Scow
STEVE B. SCOW, ESQ.
Nevada Bar No. 9906
BRODY R. WIGHT, ESQ.
Nevada Bar No. 13615
DAVID R. KOCH, ESQ.
Nevada Bar No. 8830
11500 S. Eastern Ave., Suite. 210
Henderson, Nevada 89052

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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 Bank of America, N.A.

Attorney for Red Rock Financial Services, LLC

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KIM GILBERT EBRON

HALL JAFFE & CLAYTON, LLP

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/s/ Diana Cline Ebron
DIANA CLINE EBRON, ESQ.
Nevada Bar No. 10580
7625 Dean Martin Drive, Suite 110
Las Vegas, Nevada 89139

/s/ Ashlie Surur
ASHLIE SURUR, ESQ.
Nevada Bar No. 11290
7425 Peak Drive
Las Vegas, NV 89128

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Attorney for SFR Investments Pool 1, LLC

Attorney for Emerald Ridge Landscape
Maintenance Association

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ORDER

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IT IS SO ORDERED.
______________________________________
UNITED STATES DISTRICT JUDGE

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April 12, 2017
DATED:______________________________

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