United States District Court, D. Nevada
CAPITAL ONE, NATIONAL ASSOCIATION, a national banking association, Plaintiff,
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,
CAPITAL ONE, NATIONAL ASSOCIATION, a national banking association; and EILAT BENARON, an individual, Counter-Defendants/Cross-Defendants.
BALLARD SPAHR LLP Abran E. Vigil Nevada Bar No. 7548 Matthew
D. Lamb Nevada Bar No. 12991 Joseph P. Sakai Nevada Bar No.
13578 ATTORNEYS FOR CAPITAL ONE, NATIONAL ASSOCIATION
ALVERSON TAYLOR MORTENSEN & SANDERS Kurt R. Bonds Nevada
Bar No. 6228 David J. Rothenberg Nevada Bar No. 13576
ATTORNEYS FOR SOUTHERN HIGHLANDS COMMUNITY ASSOCIATION
GILBERT EBRON Diana Cline Ebron Nevada Bar No. 10580
Jacqueline Gilbert Nevada Bar No. 10593 Karen L. Hanks Nevada
Bar No. 9578 ATTORNEYS FOR SFR INVESTMENTS POOL 1, LLC
JOINT MOTION TO STAY LITIGATION
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 “Moving
Parties”) hereby move to stay litigation in this case.
In support of this joint motion, the Moving Parties state as
is a quiet title action arising from an HOA foreclosure sale
(the “Sale”) of a residential property located at
5004 Benezette Court, Las Vegas, Nevada 89141 (the
Nominal defendant Southern Highlands conducted the Sale and
defendant SFR submitted the highest bid at the Sale.
Plaintiff Capital One argues, among other things, that the
notice provisions of NRS Chapter 116 are facially
unconstitutional under the Due Process Clause of the
Bourne Valley Court Tr. v. Wells Fargo Bank, NA, 832
F.3d 1154 (9th Cir. 2016), the Ninth Circuit Court of Appeals
accepted this argument and held that Chapter 116's notice
provisions facially violate due process by requiring
purported junior lienholders to “opt in” for
notice of a sale.
Saticoy Bay LLC v. Wells Fargo Home Mortg., No.
68630, 133 Nev. Adv. Rep. 5 (2017), the Nevada Supreme Court
disagreed with Bourne Valley by holding that a
foreclosure sale under Chapter 116 does not involve
sufficient state action to implicate the Due Process Clause
of the Fourteenth Amendment. The Nevada Supreme Court did not
address whether the notice provisions of Chapter 116 require
purported junior lienholders to opt in for notice.
non-prevailing parties in Bourne Valley and
Saticoy Bay have indicated they will petition the
United States Supreme Court for certiorari to resolve the
split between the Ninth Circuit and Nevada Supreme Court.
See Application to Extend the Time to File a
Petition for a Writ of Certiorari, Bourne Valley Court
Tr. v. Wells Fargo Bank, NA, No. 16A753 (Jan. 19, 2017);
Motion to Stay Remittitur, Saticoy Bay (No. 68630).
Capital One further argues that 12 U.S.C. § 4617(j)(3)
bars a foreclosure sale under NRS Chapter 116 from
extinguishing a deed of trust owned by the Federal Home Loan
Mortgage Corporation without the consent of its conservator,
the Federal Housing Finance Agency.
Ninth Circuit heard oral arguments on this issue on February
17, 2017 in the cases Elmer v. JP Morgan Chase Bank,
N.A., No. 15-17407, and Berezovsky v. Bank of Am.,
N.A., No. 16-15066.
Nevada Supreme Court has scheduled oral arguments on this
issue for March 7, 2017. See Notice of Oral Argument
Setting, Nationstar Mortg., LLC v. SFR Invs. Pool 1,
LLC, No. 69400 (Nev. Jan. 26, 2017).
Moving Parties request a stay of litigation to allow the
United States Supreme Court to address the certiorari
petitions in Bourne Valley and Saticoy Bay
and to allow the Ninth Circuit and Nevada Supreme Court ...