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Wells Fargo Bank, N.A. v. Las Vegas Development Group, LLC

United States District Court, D. Nevada

February 15, 2017


v.
LAS VEGAS DEVELOPMENT GROUP LLC; DOES 1 through 10; and ROE BUSINESS ENTITIES 1 through 10, inclusive, Defendants.

          SNELL & 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.

          ROGER P. CROTEAU & ASSOCIATES Roger P. Croteau, Esq. Nevada Bar No. 4958 Timothy E. Rhoda, Esq. Nevada Bar No. 7878 Attorneys for LVDG

          STIPULATION AND ORDER TO STAY LITIGATION PENDING FINAL RESOLUTION OF PETITION(S) FOR WRIT OF CERTIORARI TO UNITED STATES SUPREME COURT

         Plaintiff 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:

         1. This 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.

         2. 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.

         3. On 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.

         4. 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.

         5. 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.")

         6. Both 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 appropriate.

         7. 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 remain in effect until final disposition of the certiorari proceedings before the United States Supreme Court.

         8. To 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 parties.
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 ...

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