U.S. Bank National Association v. Spinnaker Point Avenue Trust, et al
Filing
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ORDER Granting 123 Stipulation to Continue Trial. Calendar Call set for 3/21/2023 at 09:00 AM in LV Courtroom 6C before Judge Andrew P. Gordon. Bench Trial set for 3/27/2023 at 09:00 AM in LV Courtroom 6C before Judge Andrew P. Gordon. Signed by Judge Andrew P. Gordon on 8/15/2022. (Copies have been distributed pursuant to the NEF - KF)
Case 2:17-cv-00445-APG-EJY Document 124 Filed 08/15/22 Page 1 of 6
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MAURICE WUTSCHER LLP
Patrick J. Kane (Pro Hac Vice)
440 Stevens Avenue, Suite 200
Solana Beach, California 92075
Phone No.: (858) 381-7860
Email: pkane@mauricewutscher.com
Attorney for Plaintiff/Counter-Defendant,
PROF-2013-M4 Legal Title Trust IV, by
U.S. Bank National Association, as Legal
Title Trustee
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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PROF-2013-M4 LEGAL TITLE TRUST IV,
BY U.S. BANK NATIONAL
ASSOCIATION, AS LEGAL TITLE
TRUSTEE,
)
)
)
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Plaintiff,
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v.
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SPINNAKER POINT AVENUE TRUST;
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RIVER GLIDER AVENUE TRUST;
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SATICOY BAY, LLC SERIES 5982
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SPINNAKER POINT AVENUE;
)
MOUNTAIN GATE AT SUNRISE
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MOUNTAIN HOMEOWNERS’
)
ASSOCIATION; ABSOLUTE
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COLLECTION SERVICES, LLC,
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Defendant.
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SATICOY BAY, LLC SERIES 5982
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SPINNAKER POINT AVENUE,
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Counterclaimant,
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vs.
)
PROF-2013-M4 LEGAL TITLE TRUST IV, )
)
BY U.S. BANK NATIONAL
)
ASSOCIATION, AS LEGAL TITLE
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TRUSTEE,
)
)
Counter-Defendant
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Stipulation to Continue Trial
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Case No.: 2:17-cv-00445-APG-VCF
STIPULATION AND ORDER TO
CONTINUE TRIAL
[SECOND REQUEST TO CONTINUE
TRIAL]
Current Trial Date: September 12, 2022
Trial Calendar Call: August 25, 2022
Proposed New Trial Date: March 14, 2023
2:17-cv-00445-APG-VCF
Case 2:17-cv-00445-APG-EJY Document 124 Filed 08/15/22 Page 2 of 6
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IT IS HEREBY STIPULATED Plaintiff/Counter-Defendant, PROF-2013-M4-Legal Title
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Trust IV, by U.S. Bank National Association, (“Trustee”), Defendant Mountain Gate at Sunrise
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Mountain Homeowners’ Association (“Mountain Gate”), Defendants and Counterclaimants
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Saticoy Bay, LLC Series 5982 and Spinnaker Point Avenue (“Defendants”) (collectively, the
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“Parties”), by their attorneys, hereby submit the following Stipulation and Order to Continue the
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March 14, 2022 by one hundred and eighty days (180) pursuant to LR IA 6-1 and LR 7-1. This
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is the Parties’ second request to continue the currently scheduled trial date and is submitted in
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good faith and not intended to cause any delay to this Court.
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RECITALS
WHEREAS, Trustee’s predecessor-in-interest filed the instant action on February 9, 2017.
See Dkt. 1.
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WHEREAS, on April 12, 2017, the instant action was stayed (the “Stay”). See Dkt. 21.
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WHEREAS, on August 10, 2017, this Court lifted the Stay. See Dkt. 26.
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WHEREAS, on August 22, 2017 Trustee’s predecessor-in-interest filed an Amended
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Complaint asserting the following claims: (1) quiet title; (2) declaratory relief; (3) permanent and
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preliminary injunction; and (5) unjust enrichment (the “FAC”). See Dkt. 27.
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WHEREAS, on October 10, 2019, Defendants filed their Answer and Affirmative
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Defenses to the FAC and filed the following counterclaims against the Trustee: (1) quiet title; and
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(2) declaratory relief. See Dkt. 49.
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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.
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WHEREAS, on August 10, 2020, this Court granted Second Motion to Dismiss in part
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dismissing all of the FAC’s causes of action with the exception of Trustee’s unjust enrichment
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claim. See, Dkt. 76.
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WHEREAS, on September 7, 2020, Trustee filed a motion for reconsideration requesting
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this Court reconsider its Order on Defendants’ Motion to Dismiss based upon changes in
Stipulation to Continue Trial
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2:17-cv-00445-APG-VCF
Case 2:17-cv-00445-APG-EJY Document 124 Filed 08/15/22 Page 3 of 6
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applicable case law that occurred after Defendants’ Motion to Dismiss was fully briefed. See
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Dkt. at 80.
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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.
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WHEREAS, the Parties did not reach a settlement due to the pending statute of limitation
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question raised by the Ninth Circuit Court of Appeals, which was certified to the Nevada Supreme
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Court captioned as U.S. Bank v. Thunder Props., Inc., Supreme Court Case No. 8112 (“Thunder
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Props”). Because the outcome in Thunder Props would likely bear upon the application of the
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statute of limitation in this case. See Dkt. 98.
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WHEREAS, on August 31, 2021, the Honorable Magistrate Elayna J. Yochah issued an
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Order: (1) continuing the settlement conference to date after the Nevada Supreme Court issued
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its opinion in Thunder Props; and (2) instructing the Parties to file a joint status report within ten
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days of a decision in Thunder Props being issued while separately requesting the Parties submit
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three dates of availability to attend a second settlement conference. See Dkt. 98.
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WHEREAS, on February 2, 2022, the Nevada Supreme Court issued its Opinion in
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Thunder Props holding that: (1) “declaratory relief actions are not categorically exempt from
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statutes of limitations under City of Fernley v. Nevada Department of Taxation, 366 P.3d 699
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(Nev. 2016)”; (2) NRS 11.220’s four year “catch all” statute of limitations applies to actions
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seeking to determine the validity of a lien under NRS 40.010; and (3) the four-year statute of
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limitations begins to run when “the titleholder affirmatively repudiates the lien, which does not
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necessarily happen at the foreclosure sale.” See Dkt. 101
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WHEREAS, on February 10, 2022, the Parties filed their Joint Status Report outlining the
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holding of the Thunder Props decisions and providing the following dates to attend a second
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settlement conference: (1) March 4, 2022; (2) March 9, 2022; or (3) April 8, 2022. See Dkt. 101.
Stipulation to Continue Trial
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2:17-cv-00445-APG-VCF
Case 2:17-cv-00445-APG-EJY Document 124 Filed 08/15/22 Page 4 of 6
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WHEREAS, Honorable Magistrate Elayna J. Yochah scheduled the continued settlement
conference for May 31, 2022.
WHEREAS, Trustee’s counsel contracted COVID-19 and could not attend the settlement
conference as a result so the settlement conference was reset for August 11, 2022 at 9:00 a.m.
WHEREAS, the Parties attended the August 11, 2022 settlement conference and while
the matter did not settle, the Parties believe they made progress towards reaching a settlement.
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WHEREAS, trial is currently scheduled for September 12, 2022.
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WHEREAS, Trustee previously filed a Motion to Reconsider the Court’s Order granting
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Defendants’ Motion to Dismiss in light of the Thunder Props’ holding concerning what triggers
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the applicable statute of limitation (“Motion to Reconsider”). See, Dkt. 104
WHEREAS, Trustee’s Motion to Reconsider is fully briefed and the Court has not yet
issued its ruling on said Motion.
WHEREAS, the Parties cannot move forward until Trustee’s Motion to Reconsider is
ruled upon as the pleadings will remain unsettled until a ruling is received.
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.
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WHEREAS, there have been additional delays in this litigation due to the COVID-19
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pandemic and resulting government, court and health orders and restrictions, including Trustee’s
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counsel contracting COVID-19 at the end of May 2022.
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WHEREAS, the parties have been diligent in attempting to bring this matter to a
conclusion, including settlement discussions and conducting discovery.
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WHEREAS, the Parties need additional time to complete settlement discussions and for
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the Court to rule on Trustee’s Motion to Reconsider in light of the recent Thunder Props holding
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so the parties can narrow down the issues in this litigation before moving forward with dispositive
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motion practice and trial preparation.
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WHEREAS, the Parties agree that, subject to this Court’s approval, the September 12,
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2022 trial date should be continued for at least one hundred and eighty days (180) or to a date
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convenient for this Court to allow the Parties additional time continue their good faith attempts
Stipulation to Continue Trial
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2:17-cv-00445-APG-VCF
Case 2:17-cv-00445-APG-EJY Document 124 Filed 08/15/22 Page 5 of 6
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to settle this litigation now that they have the benefit of guidance from the Nevada Supreme Court
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on the statute of limitation issue in this case and, after the parties obtain a ruling on Trustee’s
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Motion to Reconsider in light of the new applicable case law.
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Agreement
NOW THEREFORE, IT IS HEREBY STIPULATED by and between the Parties to
this litigation as follows:
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The September 12, 2022 trial date be continued for at least 180 days, or to a date
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convenient to this Court.
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Dated: August 12, 2022
MAURICE WUTSCHER LLP
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/s/ Patrick J. Kane
Patrick J. Kane (Pro Hac Vice)
440 Stevens Avenue, Suite 200
Solana Beach, California 92075
Phone No.: (858) 381-7860
Email: pkane@mauricewutscher.com
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Attorneys for Plaintiff/Counter-Defendant,
PROF-2013-M4 Legal Title Trust IV, by
U.S. Bank National Association, as Legal
Title Trustee
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BOYACK ORME
MCKIEVER
Dated: August 12, 2022
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&
/s/ Patrick Orme
Patrick A. Orne
7432 W. Sahara Ave.
Las Vegas, Nevada 89117
Phone No.: (702) 562-3415
Email: Patrick@boyacklaw.com
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Attorneys for Defendant,
MOUNTAIN GATE AT SUNRISE
MOUNTAIN HOMEOWNERS’
ASSOCIATION
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ANTHONY
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ROGER
P.
ASSOCIATES
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/s/ Christopher L. Benner
Dated: August 12, 2022
Stipulation to Continue Trial
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CROTEAU
&
2:17-cv-00445-APG-VCF
Case 2:17-cv-00445-APG-EJY Document 124 Filed 08/15/22 Page 6 of 6
Christopher L. Benner
2810 Charleston Boulevard, No. H-75
Las Vegas, Nevada 89102
Phone No.: (702) 254-7775
Email: chris@croteaulaw.com
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Attorneys for Defendant and
Counterclaimants,
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SPINNAKER POINT AVENUE TRUST,
RIVER GLIDER AVENUE TRUST, and
SATICOY BAY, LLC SERIES 5982
SPINNAKER POINT AVENUE
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Signature Attestation
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I hereby attest under the penalty of perjury that on August 12, 2022, counsel for defendants
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approved this Stipulation and gave me permission to electronically sign this Stipulation on his
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behalf.
/s/ Patrick J. Kane
Patrick Kane
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ORDER
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This case is set for court trial on the stacked calendar on March 27, 2023 at 9:00 a.m. Calendar
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call will be held on March 21, 2023 at 9:00 a.m. in Courtroom 6C.
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IT IS SO ORDERED:
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August 15, 2022
Dated:__________________
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________________________
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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Stipulation to Continue Trial
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2:17-cv-00445-APG-VCF
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