Federal National Mortgage Association v. Warm Springs Reserve Owners Association et al

Filing 16

ORDER that all proceedings in the instant case, including responses to any pending summary judgment motions and other litigation deadlines, are stayed pending final resolution of the Bourne Valley and/or Saticoy Bay certiorari proceedings before t he United States Supreme Court. The 8 Motion to Dismiss is DENIED without prejudice to its refiling within 10 day of an order lifting the stay. Signed by Judge Jennifer A. Dorsey on 4/12/2017. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:16-cv-02829-JAD-PAL Document 15 Filed 04/11/17 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
Las Vegas, NV 89144
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Federal National Mortgage
Association

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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330

FEDERAL NATIONAL MORTGAGE
ASSOCIATION;

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Case No.: 2:16-cv-02829-JAD-PAL

Plaintiff,

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

vs.
WARM SPRINGS RESERVE OWNERS
ASSOCIATION; FERRELL STREET TRUST;
ALESSI & KOENIG, LLC;

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Defendants.

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Federal National Mortgage Association ("Fannie Mae"), Warm Springs Reserve Owners

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Association, and Ferrell Street Trust stipulate as follows1:
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 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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Defendant Alessi & Koenig, LLC has not appeared. The case is currently temporarily stayed due to
Alessi's bankruptcy case, which is pending in the United States Bankruptcy Court for the District of
Nevada, Petition No. 16-16593-abl.

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Case 2:16-cv-02829-JAD-PAL Document 15 Filed 04/11/17 Page 2 of 4

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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

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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AKERMAN LLP

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

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

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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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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.

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a.

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

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Case 2:16-cv-02829-JAD-PAL Document 15 Filed 04/11/17 Page 3 of 4

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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.

AKERMAN LLP

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

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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 responses to any

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pending summary judgment motions and other litigation deadlines, are stayed pending final resolution

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

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Court.

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9.

Defendant Ferrell Street Trust shall be required to keep current on all property taxes

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and assessments, HOA dues, maintain the property, and maintain insurance on the property at issue.

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Ferrell Street Trust shall also be required to provide proof of payment and insurance upon reasonable

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notice to counsel for Fannie Mae.

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10.

Defendant Ferrell Street Trust shall be prohibited from selling or encumbering the

property unless otherwise ordered by the Court.
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Plaintiff Fannie Mae is prohibited from conducting foreclosure proceedings on the

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Case 2:16-cv-02829-JAD-PAL Document 15 Filed 04/11/17 Page 4 of 4

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property unless otherwise ordered by the Court.
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Any party may file a written motion to lift stay at any time if such party determines it

appropriate.
DATED this April 11, 2017.

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AKERMAN LLP
LIPSON, NEILSON, COLE, SELTZER & GARIN,
P.C.

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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/ 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

/s/ Julie A. Funai, Esq.
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J. WILLIAM EBERT, ESQ.
Nevada Bar No. 2697
JULIE A. FUNAI, ESQ.
Nevada Bar No. 8725
9900 Covington Cross Drive, Suite 120
Las Vegas, NV 89144

Attorneys for Plaintiff Federal National
Mortgage Association
Attorney for Warm Springs Reserve Owners
Association

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LAW OFFICE OF MICHAEL F. BOHN

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/s/ Adam R. Trippiedi, Esq.
MICHAEL F. BOHN, ESQ.
Nevada Bar No. 1641
ADAM R. TRIPPIEDI, ESQ.
Nevada Bar No. 12294
376 East Warm Springs Rd., Ste. #140
Las Vegas, NV 89119

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Attorney for Ferrell Street Trust
ORDER
IT IS SO ORDERED.
SO ORDERED. The Motion to Dismiss [8] is DENIED without prejudice to its refiling within
10 days of an order lifting the stay.
10 days of an order lifting the stay.
______________________________________
UNITED STATES DISTRICT JUDGE
Dated: April 12, 2017.
__________________________________
UNITED STATES DISTRICT JUDGE
DATED:______________________________

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