United States District Court, D. Nevada
BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff,
ASPEN MEADOWS - FERNLEY FLOOD CONTROL FACILITY MAINTENANCE ASSOCIATION AKA ASPEN MEADOWS MAINTENANCE ASSOCIATION; REMEDY PROPERTY PARTNERS, LLC; COMSTOCK CAPITAL PARTNERS LLC; and KERN & ASSOCIATES, LTD., Defendants.
AKERMAN LLP Rex D. Garner ARIEL E. STERN, ESQ. Attorneys for
Federal National Mortgage Association and Bank of America,
LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C. David A.
Markman J. WILLIAM EBERT, ESQ. Nevada Bar No. 2697 DAVID A.
MARKMAN, ESQ. Nevada Bar No. 12440 Attorneys for Aspen
BAKER & ROSEVEAR James M. Walsh JAMES M. WALSH, ESQ.
Nevada Bar No. 796 Attorneys for Remedy and Comstock
& ASSOCIATES, LTD. Karen M. Ayarbe KAREN M. AYARBE, ESQ.
Nevada Bar No. 3358 Attorneys for Gayle A. Kern, Ltd. dba
Kern & Associates, Ltd.
STIPULATION AND ORDER TO STAY LITIGATION PENDING
FINAL RESOLUTION OF PETITION(S) FOR WRITS OF CERTIORARI TO
UNITED STATES SUPREME COURT
Plaintiff Bank of America, N.A., successor by merger to BAC
Home Loans Servicing, LP f/k/a Countrywide Home Loans
Servicing, LP (BANA); Aspen Meadows - Fernley Flood Control
Facility Maintenance Association aka Aspen Meadows
Maintenance Association (Aspen Meadows); Remedy Partners, LLC
(Remedy); Comstock Capital Partners LLC (Comstock); and Gayle
A. Kern & Associates, Ltd., dba Kern & Associates,
Ltd. (Kern), (collectively, the parties) stipulate as
lawsuit involves quiet title/declaratory relief and other
claims related to a non-judicial homeowner's association
foreclosure sale conducted pursuant to NRS 116.
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 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 and that a homeowners association's
assessment lien foreclosure sale pursuant to NRS Chapter 116
does not constitute a takings in violation of the Supremacy
Clause of the United States Constitution.
parties in Bourne Valley and Saticoy Bay
are seeking review of both decisions 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 April 3, 2017. See
Bourne Valley Court Tr. 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 25, 2017. Thus, the parties believe the stay requested
herein is appropriate.
February 8, 2017, the Nevada Supreme Court stayed the
issuance of the remittitur in Saticoy Bay 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.
Several judges in this district have stayed similar cases
pending exhaustion of all appeals before the United States
Supreme Court. See e.g., Nationstar Mortg. LLC v. Green
Valley S. Owners Ass'n, No. 2:16-cv-00883-GMN-GWF,
ECF No. 38 (D. Nev. Oct. 5, 2016); Bank of
America, N.A. v. Canyon Willow Trop Owners'
Ass'n, No. 2:16-cv-01327-GMN-VCF, ECF No. 25 (D.
Nev. Oct. 26, 2016); Deutsche Bank Nat'l Tr. Co. v.
Copper Sands HOA, No. 2:16-cv-00763-JAD-CWH, ECF No. 29
(D. Nev. Feb. 28, 2017).
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.
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 be enable 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
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 all parties to have finality, given the split in
the state and federal court decisions. The parties agree that