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Capital One, National Association v. SFR Investments Pool 1, LLC

United States District Court, D. Nevada

January 10, 2017

CAPITAL ONE, NATIONAL ASSOCIATION, a national banking association, Plaintiff,
v.
SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company; SOUTHERN HIGHLANDS COMMUNITY ASSOCIATION, a Nevada non-profit corporation, Defendants. SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company, Counterclaimant/Cross-Claimant,
v.
CAPITAL ONE, NATIONAL ASSOCIATION, a national banking association; and EILAT BENARON, an individual, Counter-Defendants/Cross-Defendants.

          Abran E. Vigil, Matthew D. Lamb, Joseph P. Sakai, Ballard Spahr LLP Attorneys for Plaintiff/Counter-Defendant

          KIM GILBERT EBRON Diana Cline Ebron Jacqueline Gilbert Karen L. Hanks ATTORNEYS FOR SFR INVESTMENTS POOL 1, LLC

          ALVERSON TAYLOR MORTENSEN & SANDERS Kurt R. Bonds, David J. Rothenberg ATTORNEYS FOR SOUTHERN HIGHLANDS COMMUNITY ASSOCIATION

          STIPULATION REGARDING MOTION TO COMPEL, DISPOSITIVE MOTIONS, AND JOINT PRETRIAL ORDER

         Plaintiff Capital One, National Association (“Capital One”), defendant SFR Investments Pool 1, LLC (“SFR”), and defendant Southern Highlands Community Association (“Southern Highlands, ” and together with Capital One and SFR, the “Parties”) stipulate as follows:

         1. On September 5, 2016, the Court entered an order (ECF No. 56) granting the Parties' stipulation to stay litigation based on the Ninth Circuit's decision in Bourne Valley Court Tr. v. Wells Fargo Bank, NA, 832 F.3d 1154 (9th Cir. 2016).

         2. The order provided that the litigation stay would automatically lift when the Ninth Circuit issued its mandate in Bourne Valley.

         3. The order further provided that the dispositive motion deadline would automatically reset to 30 days after the date the Ninth Circuit issued its mandate.

         4. The order further provided that Capital One would be permitted to depose SFR's expert witness, Michael Brunson, after the stay was lifted.

         5. The Court subsequently issued a minute order (ECF No. 57) which deemed Capital One's motion to compel against SFR (ECF No. 52) withdrawn. The minute order stated the Parties could request reinstatement of the motion to compel after the litigation stay was lifted.

         6. The Ninth Circuit issued its mandate in Bourne Valley on December 14, 2016.

         7. Accordingly, the dispositive motions deadline automatically reset to January 13, 2017.

         8. On December 29, 2016, SFR filed a Motion to Certify Question of Law to Supreme Court of Nevada (ECF No. 58) and a Motion for Partial Summary Judgment re: a Pure Issue of Law: Application of the Return Doctrine Post-Bourne Valley (ECF No. 59).

         9. Capital One intends to file a motion for summary judgment on or before the January 13, 2017 deadline. The motion will address various arguments which do not require the Parties to hold the deposition of Brunson or to reinstate Capital One's motion to compel. Capital One's motion will be limited to three issues: (1) that Capital One is entitled to summary judgment under Bourne Valley, (2) that the Housing and Economic Recovery Act of 2008 preempted the subject foreclosure sale from extinguishing the subject deed of trust, and (3) that the Nevada Supreme Court's opinion in SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. Adv. Rep. 75, 334 P.3d 408 (2014), does not apply retroactively.

         10. In the event the Court denies Capital One's planned motion for summary judgment, the Parties agree to hold the deposition of Brunson, to reinstate the motion to compel, and to litigate any remaining issues not addressed in Capital One's planned motion. These issues include, among other things, the sufficiency of the foreclosure sale price, the validity of the foreclosure sale under Shadow Wood Homeowners Ass'n v. N.Y. Cmty. Bancorp. Inc., 132 ...


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