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Bank of America, N.A. v. Loretto Bay Master Association

United States District Court, D. Nevada

April 6, 2017

BANK OF AMERICA, N.A., Plaintiff,
v.
LORETTO BAY MASTER ASSOCIATION; ABSOLUTE COLLECTION SERVICES, LLC, Defendants.

          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

         Plaintiff 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.

         MEMORANDUMOFPOINTS AND AUTHORITIES

         This 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.

         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 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.

         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, no state action supported a challenge under the Due Process Clause of the United States Constitution.

         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 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.

         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.

         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).

         A. The Stay Is Appropriate.

         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, these factors support a stay of litigation.

         1. ...


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