United States District Court, D. Nevada
ABSOLUTE COLLECTION SERVICES, LLC, SHANE D. COX, ESQ.,
Attorney for Absolute Collection Services, LLC
AKERMAN LLP, ARIEL E. STERN, ESQ., VATANA LAY, ESQ., Akerman
LLP, Attorneys for Plaintiff Bank of America, N.A.
BANK OF AMERICA, N.A. AND ABSOLUTE COLLECTION
SERVICES, LLC'S JOINT MOTION TO STAY LITIGATION PENDING
FINAL RESOLUTION OF PETITION(S) FOR WRIT OF CERTIORARI TO
UNITED STATES SUPREME COURT
RICHARD F. BOULWARE, II, United States District Judge
Bank of America, N.A. (BANA) and defendant Absolute
Collection Services, LLC (ACS) (collectively, the parties)
respectfully move this Court for an order staying this case
pending final resolution of the Bourne Valley and/or
Saticoy Bay certiorari proceedings before the United
States Supreme Court.
case arises from Loretto Bay Master Association's (the
HOA) September 17, 2013 non-judicial foreclosure sale. ECF
No. 1, ¶ 3. BANA is the beneficiary of the senior deed
of trust on the property. Id. at ¶ 2. BANA
filed this action to obtain a judgment the HOA's
foreclosure sale did not extinguish BANA's interest and
any interest the HOA has in the property is subject to the
senior deed of trust, or, alternatively, obtain damages for
unjust enrichment and tortious interference with BANA's
contract. See id. at Prayer.
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 NRS
116 is facially unconstitutional. Under the Ninth
Circuit's ruling, BANA contends the HOA's foreclosure
sale could not extinguish BANA's interest because the HOA
conducted its sale under the same unconstitutional statute.
See e.g., Bank of New York Mellon Trust Co., N.A. v.
Jentz, No. 2:15-cv-01167-RCJ-CWH, 2016 WL 4487841, at *4
(D. Nev. Aug. 24, 2016) ("Unless and until [Bourne
Valley] is vacated or reversed, pre-2015 HOA
foreclosures under Chapter 116 cannot be found to have
extinguished first deeds of trust[.]"). 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, no state action supported a challenge
under the Due Process Clause of the United States
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.
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,
The Stay Is Appropriate.
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, these factors
support a stay of litigation.