HSBC Bank USA, National Association v. Griboski et al

Filing 46

ORDER granting ECF No. 45 Stipulation of Dismissal Without Prejudice as to Gayle A. Kern, Ltd., dba Kern & Associates, Ltd. Signed by Judge Miranda M. Du on 1/22/2018. (Copies have been distributed pursuant to the NEF - LH)

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Robin E. Perkins, Esq. (NV Bar No. 9891)
Adam Tully, Esq. (NV Bar No. 13601)
SNELL & WILMER L.L.P.
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
Telephone: [phone]
Facsimile: 702.784.5252
Email: [e-mail]
[e-mail]
Attorneys for Plaintiff HSBC Bank
USA, National Association

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

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HSBC BANK USA, NATIONAL
ASSOCIATION, as Trustee for Wells Fargo
Asset Securities Corporation, Mortgage PassThrough Certificates, Series 2006-18;

Case No.:

3:17-cv-00514-MMD-VPC

STIPULATION AND ORDER FOR
DISMISSAL WITHOUT PREJUDICE
OF GAYLE A. KERN, LTD., DBA
KERN & ASSOCIATES, LTD.

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Plaintiff,
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vs.
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MICHAEL GRIBOSKI, an individual; CODY
LOGAN, an individual; LAKE VILLAGE
HOMEOWNERS ASSOCIATION, a Nevada
non-profit corporation; and GAYLE A. KERN,
LTD., a Nevada professional corporation, d/b/a
Kern & Associates, Ltd.;

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Defendants.

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Plaintiff HSBC Bank USA, National Association, as Trustee for Wells Fargo Asset

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Securities Corporation, Mortgage Pass-Through Certificates, Series 2006-18 (“HSBC”) and

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Defendant Gayle A. Kern, Ltd., dba Kern & Associates, Ltd., (“Kern,” and together with HSBC,

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the “Parties”), by and through their undersigned counsel of record, hereby stipulate and agree as

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follows:

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WHEREAS, the above-captioned action concerns Defendant Lake Village Homeowners

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Association’s (“Association”) NRS Chapter 116 foreclosure sale on or about December 16,

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2015 (the “Foreclosure Sale”) of that certain real property in Douglas County, Nevada with
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APN 1318-23-310-060, commonly known as 2 Manzanita Court, Zephyr Cove, Nevada 89448

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(the “Property”);

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WHEREAS, HSBC filed its Complaint on August 24, 2017, alleging several causes of
action against Kern; and
WHEREAS, Kern has never claimed any interest in the Property.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED that:
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The Complaint is dismissed without prejudice as to Kern only, with each party to

bear its own fees/costs.

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2.

Any statute of limitations for the causes of action which may have expired since

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Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

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the Complaint was filed on August 24, 2017, shall be tolled from the date this Stipulation is

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signed by the Parties until the litigation is fully and finally concluded, which shall include any

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appeals and proceedings following remand from an appellate court.

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3.

Except as is set forth in the preceding paragraph, nothing in this Stipulation shall

diminish or affect any defense available to any Party as of the date of this Stipulation, and this
Stipulation shall not be deemed to revive any claim, remedy, and/or cause of action, legal or

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equitable, that is or was already barred as of the date of this Stipulation, nor shall this Stipulation
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create any new claim, remedy, and/or cause of action, legal or equitable, against any Party

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hereto. Nothing in this Stipulation, or in the circumstances that gave rise to this Stipulation shall

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be construed as an acknowledgement by any Party that any claim, remedy, and/or cause of

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action, legal or equitable, has or has not been barred, or is about to be barred, by the statute of

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limitations, laches, or other defense based on the lapse of time.
4.

This Stipulation shall not operate as an admission of liability by any Party.

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Neither this Stipulation nor any action taken pursuant to this Stipulation shall be offered or
received in evidence in any action or proceeding as an admission of liability or wrongdoing by
any Party.
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5.

Within 30 days after this Stipulation is executed by the Court, Kern shall provide

to the Association’s counsel of record the Association’s records, which are in Kern’s possession,
concerning the Association’s NRS Chapter 116 assessment lien foreclosure on the Property for

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production by the Association’s defense counsel in the course of discovery under the Nevada
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Rules of Civil Procedure, subject to any and all applicable objections. Notwithstanding the

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foregoing, HSBC reserves its right to exercise all rights and remedies—including but not limited

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to the rights and remedies set forth in the Federal Rules of Civil Procedure for procuring

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evidence from non-parties—to seek and acquire documents directly from Kern. Likewise, Kern

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Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

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reserves any and all rights, remedies, defenses, and objections including, but not limited to,
attorney client and/or work product privilege, to any discovery requests by HSBC.

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6.

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Upon proper notice by Plaintiff, in accord with the Nevada Rules of Civil

Procedure, Kern shall make available a knowledgeable witness for deposition limited to the

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Association’s assessment lien foreclosure sale of the Property, and subject to any and all

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applicable objections and privileges. Kern shall be provided 30 days’ notice of the deposition,

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and an opportunity to coordinate with Counterclaimants’ counsel, a mutually convenient time,

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date and location of such deposition.

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7.

In regard to Kern’s appearance for depositions, as described in Paragraph 6 herein,

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Kern shall have the same rights, defenses, and remedies as a party to the litigation relative to any

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notice of deposition addressed to Kern. Notwithstanding the foregoing, HSBC reserves its right

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to exercise all rights and remedies—including but not limited to the rights and remedies set forth

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in the Federal Rules of Civil Procedure for compelling the appearance of non-parties for

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deposition and trial—to secure Kern’s appearance for deposition or trial.

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8.

The Parties reserve any and all rights, privileges, and defenses under applicable

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law.
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Nothing herein shall be construed as a waiver of the attorney client and/or work

product privileges that exists among and between Kern and the Association, or any other
association client of Kern.

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Wherefore, the undersigned request this Court enter an Order granting the above

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stipulation.

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Dated: January 19, 2018.

Dated: January 19, 2018.

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SNELL & WILMER L.L.P.

KERN & ASSOCIATES, LTD.

By: /s/ Adam Tully
Robin E. Perkins, Esq. (NV Bar No. 9891)
Adam Tully, Esq. (NV Bar No. 13601)
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
Telephone: [phone]
Facsimile: [phone]

By: /s/ Karen Ayarbe
Karen M. Ayarbe, Esq.
5421 Kietzke Lane, Suite 200
Reno, Nevada 89511
Telephone: [phone]
Facsimile: [phone]

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Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

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Attorneys for Defendant Gayle A. Kern,
Ltd., dba Kern & Associates, Ltd.

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Attorneys for Plaintiff HSBC Bank
USA, National Association

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ORDER

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IT IS SO ORDERED.

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UNITED STATES DISTRICT COURT JUDGE

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DATED: January 22, 2018

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4853-0827-9889

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