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Ditech Financial LLC v. T-Shack, Inc.

United States District Court, D. Nevada

February 10, 2017

DITECH FINANCIAL LLC, a Delaware limited liability company; FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiffs,
v.
T-SHACK, INC., a foreign corporation; NEVADA ASSOCIATION SERVICES, INC., a domestic corporation; DESERT SANDS VILLAS HOMEOWNERS’ ASSOCIATION, a domestic non-profit corporation; and DOES I through X, inclusive, Defendants.

          Amy F. Sorenson, Esq. Robin E. Perkins, Esq. Jennifer L. McBee, Esq. SNELL & WILMER L.L.P. Attorneys for Plaintiffs Ditech Financial LLC and Federal National Mortgage Association

          MAIER GUTIERREZ AYON PLLC Luis A. Ayon Margaret E. Schmidt Attorneys for Defendant T-Shack, Inc.

          Christopher V. Yergensen Attorneys for Defendant Nevada Association Services, Inc.

          LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C. J. William Ebert David Markman Attorneys for Defendant Desert Sands Villas Homeowners’ Association

          STIPULATION AND ORDER TO STAY LITIGATION PENDING FINAL RESOLUTION OF PETITION(S) FOR WRIT OF CERTIORARI TO UNITED STATES SUPREME COURT ECF No. 20, 23

          Jennifer Dorsey U.S. District Court Judge

         Ditech Financial LLC (“Ditech”) and Federal National Mortgage Association (“Fannie Mae,” and jointly with Ditech, the “Plaintiffs”), Defendant T-Shack, Inc. (“T-Shack”), Defendant Desert Sands Villas Homeowners’ Association (the “HOA”), and Defendant Nevada Association Services, Inc. (“NAS”), (collectively, the “Parties”), by and through their respective undersigned counsel of record, hereby stipulate as follows:

         1. This lawsuit involves the parties seeking quiet title/declaratory relief and other claims related to a non-judicial homeowner’s foreclosure sale conducted on a property pursuant to NRS Chapter 116.

         2. On August 12, 2016, the Ninth Circuit issued a decision on appeal in Bourne Valley Court Tr. v. Wells Fargo Bank, N.A., 832 F.3d 1154, 1159-60 (9th Cir. 2016), holding that NRS Chapter 116 is facially unconstitutional. The Court of Appeals issued its mandate in the appeal on December 14, 2016.

         3. On January 26, 2017, the Nevada Supreme Court issued its decision in Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo Home Mortgage, a Div. of Wells Fargo Bank, N.A., 133 Nev. Adv. Op. 5,___ P.3d___, 2017 WL 398426 (Nev. Jan. 26, 2017) holding, in direct contrast to Bourne Valley, that no state action supported a challenge under the Due Process Clause of the United States Constitution.

         4. The Saticoy Bay decision by the Nevada Supreme Court conflicts directly with Ninth Circuit’s ruling in Bourne Valley, making the issue appropriate for consideration by the United States Supreme Court. See Sup. Ct. Rule 10(a) & (b) (noting that the High Court will consider review when “a United States court of appeals has . . . decided an important federal question in a way that conflicts with a decision by a state court of last resort * * * [or] a state court of last resort has decided an important federal question in a way that conflicts with the decision of . . . a United States court of appeals.”)

         5. Both parties believe the conflict should be resolved and are seeking review of the state action issue in the United States Supreme Court. Bourne Valley’s deadline to file its petition for writ of certiorari of the Ninth Circuit’s Bourne Valley decision is March 6, 2017, pursuant to an order granting an extension of time. See Bourne Valley Court Trust v. Wells Fargo Bank, NA., United States Supreme Court Case No. 16A753. Wells Fargo’s deadline to file its petition for writ of certiorari of the Nevada Supreme Court’s Saticoy Bay decision is April 26, 2017. Thus, the Parties believe that the stay requested herein is appropriate.

         6. On February 8, 2017, the Nevada Supreme Court issued an order staying its issuance of the remittitur pending the filing of a petition for a writ of certiorari with the United States Supreme Court, and if a petition is filed, the stay of the remittitur will in effect until final disposition of the certiorari proceedings before the United States Supreme Court.

         7. To determine if a stay is appropriate, the Court considers (1) damage from the stay; (2) hardship or inequity that befalls one party more than the other; and (3) the orderly course of justice. See Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007) (setting forth factors). Here, the factors support a continued stay of litigation.

a. Damage from Stay: Any damage from a temporary stay in this case will be minimal if balanced against the potential fees, costs, and time which would surely ensue in this matter if litigation were allowed to continue that could be ...

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