Bank Of New York Mellon v. Church et al

Filing 40

ORDER Granting 39 Stipulation to Stay Litigation Pending Final Resolution of the Certified Question to the Nevada Supreme Court. Signed by Judge Richard F. Boulware, II on 10/20/17. (Copies have been distributed pursuant to the NEF - ADR)

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DARREN T. BRENNER, ESQ.
Nevada Bar No. 8386
NATALIE L. WINSLOW, ESQ.
Nevada Bar No. 12125
AKERMANLLP
1160 Town Center Drive, Suite 330
Las Vegas, NV 89144
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

Attorneys for The Bank of New York Mellon fka
The Bank of New York, as Trustee for the
Cert(ficateholders CWALT, Inc., Alternative
Loan Trust 2006-4CB, Mortgage Pass-Through
Certificates, Series 2006-4CB and Mortgage
Electronic Registration Systems, Inc., as
nominee for BRS Citizens, NA.

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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THE BANK OF NEW YORK MELLON FKA
THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS CWALT,
INC., ALTERNATIVE LOAN TRUST 20064CB,
MORTGAGE
PASS-THROUGH
CERTIFICATES, SERIES 2006-4CB,
Plaintiff,

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vs.

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MICHELLE
R.
CHURCH;
SFR
INVESTMENTS POOL 1, LLC; HAMPTON &
HAMPTON
COLLECTIONS
LLC;
SILVERSTONE
RANCH
COMMUNITY
ASSOCIATION; DOE INDIVIDUALS I-X,
inclusive, and ROE CORPORATIONS I-X,
inclusive,

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Defendants.

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L1..-wis and Roca LLP
JIJ9~ Hnwurd Hughes Parkway
Suite 600
Las Vegas, N(..'VU<lu k91/19

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Case No.: 2: 17-cv-00238-RFB-NJK

STIPULATION AND ORDER TO STAY
LITIGATION
PENDING
FINAL
RESOLUTION OF THE CERTIFIED
QUESTION
TO
THE
NEVADA
SUPREME COURT

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SILVERSTONE
RANCH
COMMUNITY
ASSOCIATION,
Cross-Claimant,
vs.
HAMPTON & HAMPTON COLLECTIONS
LLC, a Professional Corporation,
Cross-Defendant.

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SFR INVESTMENTS POOL 1, LLC,

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Counter/Cross-Claimant,

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vs.
THE BANK OF NEW YORK MELLON FKA
THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS CWALT,
INC., ALTERNATIVE LOAN TRUST 20064CB,
MORTGAGE
PASS-THROUGH
CERTIFICATES,
SERIES
2006-4CB;
MORTGAGE
ELECTRONIC
REGISTRATION SYSTEMS, INC., AS
NOMINEE FOR BRS CITIZENS, N.A.;
MICHELLE R. CHURCH, an individual,

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Counter/Cross-Defendants.

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Plaintiff, The Bank of New York Mellon tka The Bank of New York, as Trustee for the

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Certificateholders CWALT, Inc., Alternative Loan Trust 2006-4CB, Mortgage Pass-Through

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Certificates, Series 2006-4CB and cross-defendant, Mortgage Electronic Registration Systems,

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Inc., as nominee for BRS Citizens, N .A. (BNYM), and defendants SFR Investments Pool I, LLC,

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Hampton & Hampton Collections LLC, and Silverstone Ranch Community Association,

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respectfully submit the following stipulation and proposed order:

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I.

This case arises out of a homeowner's association foreclosure, which BNYM

contends did not impact its lien position.

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Lt:wis anti Roen LLP
W9J Howard Hughe,; Parkway
Sui1c600
Las Vcgns, Nwmlu 891119

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2.

On April 21, 2017 the Judge Boulware certified the following question to the

Nevada Supreme Court:

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Whether NRS § 116.31168(1)'s incorporation of NRS § 107.090 required a
homeowner's association to provide notices of default and/or sale to persons or
entities holding a subordinate interest even when such persons or entities did not
request notice, prior to the amendments that took effect on Oct 1, 2015?

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See Bank of NY Mellon, etc. v. Star Hill Homeowners Assoc., et al, Case No. 2:16-cv-02561-

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RFB-PAL (D. Nev. Apr. 21, 2017).

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3.

The Nevada Supreme Court accepted the certified question on June 13, 2017,

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setting forth a briefing schedule. See SFR Investments Pool 1, LLC, et al v. Bank of New York

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Mellon, etc., Case No. 72931 (Nev. 2017). Briefing is in progress. In order to avoid discovery

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and dispositive

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4.

Judge Boulware has indicated since stayed the above-referenced HOA litigation

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until that question is resolved. See 2:16-cv-02561 at ECF No. 45. Because the Nevada Supreme

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Court's answer to the certified question may impact the course of discovery and the claims and

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issues in this case, the parties similarly request a stay of this litigation.

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5.

"[T]he power to stay proceedings is incidental to the power inherent in every court

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to control the disposition of the causes of action on its docket with economy of time and effort for

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itself, for counsel, and for litigants." Landis v. N Am. Co., 299 U.S. 248,254 (1936). "A trial

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court may, with propriety, find it is efficient for its own docket and the fairest course for the

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parties to enter a stay of an action before it, pending resolution of independent proceedings which

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bear upon the case." Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857,863 (9th Cir. 1979).

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U:wis :lnd Roca LLP
J99'.i Howard Hughes Parkway
Suilc 600
Lus Vegas, Ncvatla K<Jlfl9

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6.

To determine if a 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

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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). The factors support a stay of this case.

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a. Damage from Stay: Any damage from a temporary stay in this case will be

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

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matter if litigation were allowed to continue that could be rendered moot by the Nevada Supreme

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Court's answer to the certified question. The parties will be able to avoid the cost and expense of

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continued legal proceedings in light of what is unsettled law. The Court will also be relieved of

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expending further time and effort until the certified question is answered. A stay will benefit all

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parties involved.

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

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

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all parties to have finality on an important issue. The parties agree that any hardship or inequity

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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. Without a stay, the parties will likely expend resources that may

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be unnecessary once the certified question is answered. A temporary stay would substantially

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promote the orderly course of justice in this case.

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7.

The parties agree that all proceedings in the instant case, including discovery,

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motion, and other litigation deadlines, are stayed pending an answer to the certified question from

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the Nevada Supreme Court.

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8.

The parties agree that reasoning set forth in this stipulation is negotiated solely in

relation to the applicable to the facts and circumstances of this case.

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Ll..'Wis ond Roca LLP
3993 Huwurd Hugh~ Pm-kway
Suitc600
Ul.'i V t.iµt."i, Nt."VlKW 89 I09

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Any party may file a written motion to lift stay at any time if either party

determines it appropriate.
Dated: September_, 2017.

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AKERMAN LLP

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Isl Darren Brenner, Esq.
ARIEL E. STERN, ESQ.
Nevada Bar No. 8276
NATALIE L. WINSLOW, ESQ.
Nevada Bar No. 12125
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144

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KIM GILBERT EBRON

Isl Diana S. Ebron, Esq.

JACQUELINE A. GILBERT, ESQ.
Nevada Bar. No. 10593
DIANA S. EBRON, ESQ.
Nevada Bar No. 10580
KAREN L. HANKS, ESQ.
Nevada Bar No. 9578
7625 Dean Martin Drive, Suite 110
Las Vegas, Nevada 89139
Attorneys for Plaintiff, The Bank of New York

Mellon fka, The Bank of New York, as Trustee
for the Certi.ficateholders CWALT, Inc., Attorneys for Defendant SFR Investments Pool
Alternative Loan Trust 2006-4CB, Mortgage J,LLC
Pass-Through Certificates, Series 2006-4CB
and cross-defendant, Mortgage Electronic
Registration Systems, Inc., as nominee for BRS
Citizens, N.A.
PENGILLY LAW FIRM

NEVADA ASSOCIATION SERVICES,
INC.
fl}V /')~
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Isl~
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fo,1,~
CHRISTOPHER V. YERGENSEN, ESQ.
Nevada Bar. No. 6183
6224 West Desert Inn Road
Las Vegas, Nevada 89146
Attorney for Hampton & Hampton Collections
LLC

Isl Elizabeth B. Lowell
JAMES W. PEN GILLY, ESQ.
Nevada Bar. No. 6085
ELIZABETH B. LOWELL, ESQ.
Nevada Bar No. 8551
7625 Dean Martin Drive, Suite 110
Las Vegas, Nevada 89139

Attorneys for Silverstone Ranch Community
Association

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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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20th day of October, 2017.

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DATED:

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L<."Wis and Roca LLP
3993 Howard Hughu,; Purkway
Suilc61KI
Los Vt.'(!DS. Nt."Vllda K9109

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