U.S. Bank National Association v. Spinnaker Point Avenue Trust, et al

Filing 103

ORDER Granting 102 Stipulation to Continue Trial. Calendar Call set for 9/6/2022 at 09:00 AM in LV Courtroom 6C before Judge Andrew P. Gordon. Bench Trial set for 9/12/2022 at 09:00 AM in LV Courtroom 6C before Judge Andrew P. Gordon. Signed by Judge Andrew P. Gordon on 2/23/2022. (Copies have been distributed pursuant to the NEF - KF)

Case 2:17-cv-00445-APG-EJY Document 103 Filed 02/23/22 Page 1 of 6

1
2
3
4
5
6

MAURICE WUTSCHER LLP
Patrick J. Kane (Pro Hac Vice)
440 Stevens Avenue, Suite 200
Solana Beach, California 92075
Phone No.: [phone]
Email: [e-mail]
Attorney for Plaintiff/Counter-Defendant,
U.S. Bank National Association as Legal Title Trustee
on behalf of USROF IV Legal Title Trust 2015-1

7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9
10
11

USROF IV LEGAL TITLE TRUST 2015-1,
BY U.S. BANK NATIONAL
ASSOCIATION, AS LEGAL TITLE
TRUSTEE,

12

Plaintiff,

13

v.

14
15
16
17
18

SPINNAKER POINT AVENUE TRUST;
RIVER GLIDER AVENUE TRUST;
SATICOY BAY, LLC SERIES 5982
SPINNAKER POINT AVENUE;
MOUNTAIN GATE AT SUNRISE
MOUNTAIN HOMEOWNERS’
ASSOCIATION; ABSOLUTE
COLLECTION SERVICES, LLC,
Defendant.

19
20
21

SATICOY BAY, LLC SERIES 5982
SPINNAKER POINT AVENUE,
Counterclaimant,

22
23
24
25
26

vs.
USROF IV LEGAL TITLE TRUST 2015-1,
BY U.S. BANK NATIONAL
ASSOCIATION, AS LEGAL TITLE
TRUSTEE, LLC,
Counter-Defendant

27
28
Stipulation to Continue Trial

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
1

Case No.: 2:17-cv-00445-APG-VCF
STIPULATION AND ORDER TO
CONTINUE TRIAL
[FIRST REQUEST TO CONTINUE
TRIAL]
Current Trial Date: March 14, 2022
Trial Calendar Call: March 8, 2022
Proposed New Trial Date: September
14, 2022

2:17-cv-00445-APG-VCF

Case 2:17-cv-00445-APG-EJY Document 103 Filed 02/23/22 Page 2 of 6

1

IT IS HEREBY STIPULATED Plaintiff/Counter-Defendant, PROF-2013-M4-Legal Title

2

Trust IV, by U.S. Bank National Association, (“Trustee”), Defendant Mountain Gate at Sunrise

3

Mountain Homeowners’ Association (“Mountain Gate”), Defendants and Counterclaimants

4

Saticoy Bay, LLC Series 5982 and Spinnaker Point Avenue (“Defendants”) (collectively, the

5

“Parties”), by their attorneys, hereby submit the following Stipulation and Order to Continue the

6

March 14, 2022 by one hundred and eighty days (180) pursuant to LR IA 6-1 and LR 7-1. This

7

is the Parties’ first request to continue the currently scheduled trial date and is submitted in good

8

faith and not intended to cause any delay to this Court.

9

RECITALS

10
11

WHEREAS, Trustee’s predecessor-in-interest filed the instant action on February 9, 2017.
See Dkt. 1.

12

WHEREAS, on April 12, 2017, the instant action was stayed (the “Stay”). See Dkt. 21.

13

WHEREAS, on August 10, 2017, this Court lifted the Stay. See Dkt. 26.

14

WHEREAS, on August 22, 2017 Trustee’s predecessor-in-interest filed an Amended

15

Complaint asserting the following claims: (1) quiet title; (2) declaratory relief; (3) permanent and

16

preliminary injunction; and (5) unjust enrichment (the “FAC”). See Dkt. 27.

17

WHEREAS, on October 10, 2019, Defendants filed their Answer and Affirmative

18

Defenses to the FAC and filed the following counterclaims against the Trustee: (1) quiet title; and

19

(2) declaratory relief. See Dkt. 49.

20
21
22
23

WHEREAS, on October 10, 2019, Defendants renewed their previously filed Motion to
Dismiss. See Dkt. 50.
WHEREAS, on April 20, 2020, the Parties filed a “Stipulation for Extension of Time Re:
Discovery,” which this Court granted on April 20, 2020. See Dkt. 69-70.

24

WHEREAS, on August 10, 2020, this Court granted Second Motion to Dismiss in part

25

dismissing all of the FAC’s causes of action with the exception of Trustee’s unjust enrichment

26

claim. See, Dkt. 76.

27

WHEREAS, on September 7, 2020, Trustee filed a motion for reconsideration requesting

28

this Court reconsider its Order on Defendants’ Motion to Dismiss based upon changes in
Stipulation to Continue Trial

2

2:17-cv-00445-APG-VCF

Case 2:17-cv-00445-APG-EJY Document 103 Filed 02/23/22 Page 3 of 6

1

applicable case law that occurred after Defendants’ Motion to Dismiss was fully briefed. See

2

Dkt. at 80.

3
4
5
6
7
8

WHEREAS, on March 3, 2021, the Court denied Trustee’s Motion for Reconsideration.
See Dkt. at 85.
WHEREAS, on May 4, 2021, this Court set this matter for a bench trial on March 14,
2022 while separately setting this matter for a March 8, 2022 calendar call. See Dkt. 90.
WHEREAS, on August 31, 2021, the Parties attended a mandatory settlement conference
before the Honorable Magistrate Elayna J. Yochah. See Dkt. 90.

9

WHEREAS, the Parties did not reach a settlement due to the pending statute of limitation

10

question raised by the Ninth Circuit Court of Appeals, which was certified to the Nevada Supreme

11

Court captioned as U.S. Bank v. Thunder Props., Inc., Supreme Court Case No. 8112 (“Thunder

12

Props”). Because the outcome in Thunder Props would likely bear upon the application of the

13

statute of limitation in this case. See Dkt. 98.

14

WHEREAS, on August 31, 2021, the Honorable Magistrate Elayna J. Yochah issued an

15

Order: (1) continuing the settlement conference to date after the Nevada Supreme Court issued

16

its opinion in Thunder Props; and (2) instructing the Parties to file a joint status report within ten

17

days of a decision in Thunder Props being issued while separately requesting the Parties submit

18

three dates of availability to attend a second settlement conference. See Dkt. 98.

19

WHEREAS, on February 2, 2022, the Nevada Supreme Court issued its Opinion in

20

Thunder Props holding that: (1) “declaratory relief actions are not categorically exempt from

21

statutes of limitations under City of Fernley v. Nevada Department of Taxation, 366 P.3d 699

22

(Nev. 2016)”; (2) NRS 11.220’s four year “catch all” statute of limitations applies to actions

23

seeking to determine the validity of a lien under NRS 40.010; and (3) the four-year statute of

24

limitations begins to run when “the titleholder affirmatively repudiates the lien, which does not

25

necessarily happen at the foreclosure sale.” See Dkt. 101

26

WHEREAS, on February 10, 2022, the Parties filed their Joint Status Report outlining the

27

holding of the Thunder Props decisions and providing the following dates to attend a second

28

settlement conference: (1) March 4, 2022; (2) March 9, 2022; or (3) April 8, 2022. See Dkt. 101.
Stipulation to Continue Trial

3

2:17-cv-00445-APG-VCF

Case 2:17-cv-00445-APG-EJY Document 103 Filed 02/23/22 Page 4 of 6

1

WHEREAS, trial is currently scheduled for March 14, 2022.

2

WHEREAS, the second settlement conference has not been set to date, but will likely

3

occur after the currently scheduled trial date.

4

WHEREAS, Trustee intends to file a Motion to Reconsider the Court’s Order granting

5

Defendants’ Motion to Dismiss in the immediate future in light of the Thunder Props’ holding

6

concerning what triggers the applicable statute of limitation (“Motion to Reconsider”).

7
8
9
10
11
12

WHEREAS, the loan at issue was recently sold to a new investor and service transferred
to a new loan servicer requiring the new investor substitute into this matter.
WHEREAS, there have been additional delays in this litigation due to the COVID-19
pandemic and resulting government, court and health orders and restrictions.
WHEREAS, the parties have been diligent in attempting to bring this matter to a
conclusion, including settlement discussions and conducting discovery.

13

WHEREAS, the Parties need additional time to complete settlement discussions and for

14

Trustee to file the above referenced Motion to Reconsider in light of the recent Thunder Props

15

holding.

16

WHEREAS, the Parties agree that, subject to this Court’s approval, the March 14, 2022

17

trial date should be continued for at least one hundred and eighty days (180) or to a date

18

convenient for this Court to allow the Parties additional time continue their good faith attempts

19

to settle this litigation now that they have the benefit of guidance from the Nevada Supreme Court

20

on the statute of limitation issue in this case and, if necessary to obtain a ruling on Trustee’s

21

Motion to Reconsider in light of the new applicable case law.

22
23
24
25

Agreement
NOW THEREFORE, IT IS HEREBY STIPULATED by and between the Parties to
this litigation as follows:
1.

The March 14, 2022 trial date be continued for at least 180 days, or to a date

26

convent to this Court.

27

Dated: February 22, 2022

MAURICE WUTSCHER LLP

28
Stipulation to Continue Trial

4

2:17-cv-00445-APG-VCF

Case 2:17-cv-00445-APG-EJY Document 103 Filed 02/23/22 Page 5 of 6

/s/ Patrick J. Kane
Patrick J. Kane (Pro Hac Vice)
440 Stevens Avenue, Suite 200
Solana Beach, California 92075
Phone No.: [phone]
Email: [e-mail]

1
2
3
4

Attorneys for Plaintiff/Counter-Defendant,
U.S. Bank National Association as Legal
Title Trustee on behalf of USROF IV Legal
Title Trust 2015-1

5
6
7

BOYACK ORME
MCKIEVER

Dated: February 22, 2022

8
9

&

/s/ Patrick Orme
Patrick A. Orne
7432 W. Sahara Ave.
Las Vegas, Nevada 89117
Phone No.: [phone]
Email: [e-mail]

10
11
12

Attorneys for Defendant,
MOUNTAIN GATE AT SUNRISE
MOUNTAIN HOMEOWNERS’
ASSOCIATION

13
14
15
16

ANTHONY

ROGER
P.
ASSOCIATES

Dated: February 22, 2022

17
18

CROTEAU

&

/s/ Christopher L. Benner
Christopher L. Benner
2810 Charleston Boulevard, No. H-75
Las Vegas, Nevada 89102
Phone No.: [phone]
Email: [e-mail]

19
20
21

Attorneys for Defendant and
Counterclaimants,

22
23

SPINNAKER POINT AVENUE TRUST,
RIVER GLIDER AVENUE TRUST, and
SATICOY BAY, LLC SERIES 5982
SPINNAKER POINT AVENUE

24
25
26
27
28
Stipulation to Continue Trial

5

2:17-cv-00445-APG-VCF

Case 2:17-cv-00445-APG-EJY Document 103 Filed 02/23/22 Page 6 of 6

1

Signature Attestation

2

I hereby attest under the penalty of perjury that on February 22, 2022, counsel for

3

defendants approved this Stipulation and gave me permission to electronically sign this

4

Stipulation on his behalf.

/s/ Patrick J. Kane
Patrick Kane

5
6
7
8
9
10
11

ORDER
IT IS ORDERED that the Bench Trial currently scheduled for March 14, 2022, is
vacated and continued to September 12, 2022, at 9:00 a.m. in Courtroom 6C.
Calendar is continued to September 6, 2022, at 9:00 a.m. in Courtroom 6C.

12
13
14

IT IS SO ORDERED:
February 23, 2022
Dated:__________________

15

________________________
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
Stipulation to Continue Trial

6

2:17-cv-00445-APG-VCF