United States District Court, D. Nevada
& WILMER L.L.P. Andrew M. Jacobs, Esq. Nevada Bar No.
12787 Wayne Klomp, Esq. Nevada Bar No. 10109 Attorneys for
Wells Fargo Bank, N.A.
P. CROTEAU & ASSOCIATES Roger P. Croteau, Esq. Nevada Bar
No. 4958 Timothy E. Rhoda, Esq. Nevada Bar No. 7878 Attorneys
STIPULATION AND ORDER TO STAY LITIGATION PENDING
FINAL RESOLUTION OF PETITION(S) FOR WRIT OF CERTIORARI TO
UNITED STATES SUPREME COURT
Wells Fargo Bank, N.A. ("Wells Fargo"), and
Defendant Las Vegas Development Group, LLC
("LVDG"), by and through their respective
undersigned counsel of record, hereby stipulate as follows:
lawsuit involves the parties seeking quiet title/declaratory
relief and other claims related to a non-judicial
homeowner's association foreclosure sale conducted on a
Property pursuant to NRS Chapter 116.
Currently pending before this Court is LVDG's Motion to
Dismiss filed on March 18, 2016 (ECF No. 8). Additionally,
Wells Fargo filed a Motion for Summary Judgment (ECF No. 23),
which is not fully briefed.
August 12, 2016, the Ninth Circuit issued its 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, vacating and remanding the judgment to the
United States District Court, District of Nevada.
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.
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
parties in Bourne Valley and Saticoy Bay
believe their lawsuits 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
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 remain in effect until final disposition of
the certiorari proceedings before the United States Supreme
determine if a continued 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 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 mooted by a decision in Bourne Valley certiorari
proceedings. Indeed, the parties will both be enabled to
avoid the cost and expense of continued legal proceedings in
light of what is unsettled law to say the least. Moreover,
the Court will be relieved of expending further time and
effort until the conflict between the circuit and Nevada
Supreme Court is resolved. Thus, a stay will benefit all
parties involved herein.
b. Hardship or Inequity: There will be no
significant hardship or inequity that befalls one party more
than the other. This relatively equal balance of equities
results from the need for both parties to have finality,
given the split in the state and federal court decisions. Any
hardship would be equal in terms of resources expended
without a stay. A stay prevents this expenditure for all
c. Orderly Course of Justice: At the center of this
case is an association foreclosure sale under NRS Chapter
116. The outcome of the petitions for writ in Bourne
Valley and/or Saticoy Bay have the potential to
affirm or overturn either case. Without a stay, the parties
will expend resources that will be unnecessary if either or
both petitions are granted. A stay would also avoid a likely
appeal from any subsequent judgment in this case. A temporary
stay would substantially promote the orderly course of
justice in this ...