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Bank of America, N.A. v. Spanish Bay Homeowners Association

United States District Court, D. Nevada

March 16, 2017

BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff,
v.
SPANISH BAY HOMEOWNERS ASSOCIATION; NEVADA ASSOCIATION SERVICES, INC.; SFR INVESTMENTS POOL 1, LLC, Defendants. SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company, Counterclaimant,
v.
BANK OF AMERICA, N.A., BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING, LP; and JAMES CARLSON, an individual, Counterdefendants.

          AKERMAN LLP MELANIE D. MORGAN, ESQ. Nevada Bar No. 8215 TENESA S. SCATURRO, ESQ. Nevada Bar No. 12488 Attorneys for Plaintiff Bank of America N.A.

          KIM GILBERT EBRON DIANA CLINE EBRON, ESQ. Nevada Bar No. 10580 JACQUELINE A. GILBERT, ESQ. Nevada Bar No. 10593 KAREN L. HANKS Nevada Bar No. 9578 Attorneys for SFR Investments Pool 1 LLC

          NEVADA ASSOCIATION SERVICES, INC. CHRISTOPHER V. YERGENSEN, ESQ. Nevada Bar No. 6183 Attorneys for Nevada Association Services, Inc.

          LEACH JOHNSON SONG & GRUCHOW SEAN L. ANDERSON, ESQ. Nevada Bar No. 7259 RYAN W. REED, ESQ. Nevada Bar No. 11695 Attorneys for Spanish Bay Homeowners Association

          STIPULATION AND ORDER STAYING CASE

         Plaintiff Bank of America N.A. (BANA), by and through its attorneys of record, Akerman LLP; defendant Spanish Bay Homeowners Association, by and through its counsel Leach Johnson Song & Gruchow; defendant Nevada Association Services Inc.; and defendant SFR Investments Pool 1 LLC (SFR), by and through its counsel Kim Gilbert Ebron, 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 116.

         2. 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 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.

         3. 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, and that a homeowner 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.

         4. The 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 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 25, 2017. Thus, the parties believe that the stay requested herein is appropriate.

         5. On 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.

         6. Since then, several judges in this district have stayed similar cases pending the exhaustion of all appeals before the United States Supreme Court. E.g., Nationstar Mtg. LLC v. Green Valley S. Owners Assoc., No. 2:16-cv-00883-GMN-GWF; Bank of America, N.A. v. Canyon Willow Trop Owners' Assoc., No. 2:16-cv-01327-GMN-VCF (D. Nev. Oct. 26, 2016); Deutsche Bank Nat'l Trust Co. v. Copper Sands HOA, No. 2:16-cv-00763-JAD-CWH (D. Nev. Feb. 28, 2017).

         7. 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 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 herein.

         b. Hardship or Inequity: The parties agree that any hardship or inequity falling on any of them is ...


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