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

United States District Court, D. Nevada

March 3, 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.

          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

          KIM 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

         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 “Moving Parties”) hereby move to stay litigation in this case. In support of this joint motion, the Moving Parties state as follows:

         1. This 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 “Property”).

         2. Nominal defendant Southern Highlands conducted the Sale and defendant SFR submitted the highest bid at the Sale.

         3. 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 Fourteenth Amendment.

         4. In 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.

         5. In 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.

         6. The 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).

         7. 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.

         8. The 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.

         9. The 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).

         10. The 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 ...


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