United States District Court, D. Nevada
AKERMAN LLP, ARIEL E. STERN, ESQ. VATANA LAY, ESQ. Attorneys
for Federal National Mortgage Association
PENGILLY LAW FIRM, JAMES W. PENGILLY, ESQ. ELIZABETH B.
LOWELL, ESQ. Attorneys for Blue Diamond Ranch Landscape
D. COX, SHANE D. COX, ESQ. Attorney for Absolute Collection
STIPULATION AND ORDER TO STAY LITIGATION PENDING
FINAL RESOLUTION OF PETITION(S) FOR WRIT OF CERTIORARI TO
UNITED STATES SUPREME COURT ECF No. 18
National Mortgage Association (Fannie Mae), Blue Diamond
Ranch Landscape Maintenance Association (Blue Diamond), and
Absolute Collection Services, LLC (Absolute)(collectively the
parties) stipulate as follows:
Stipulation to Stay Proceedings
lawsuit involves claims for 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.
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. 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
for the 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 Mortg., 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
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 that 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.
Since then, several judges in this district have stayed
similar cases pending the 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); Ditech Fin. Servs., LLC v.
Highland Ranch Homeowners Ass'n, No.
3:16-cv-00194-MMD-WGC (D. Nev. Mar. 7, 2017); Wells
Fargo Bank, N.A. v. Las Vegas Dev. Group, LLC,
2:16-cv-02621-RFB-NJK (D. Nev. Mar. 9, 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 as
well as the Court.
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