United States District Court, D. Nevada
AKERMAN LLP, ARIEL E. STERN, ESQ., VATANA LAY, ESQ.,
Attorneys for Plaintiff Federal National Mortgage Association
LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C., WILLIAM
EBERT, ESQ., JULIE A. FUNAI, ESQ. Attorney for Warm Springs
Reserve Owners Association
OFFICE OFMICHAEL F. BOHN, MICHAEL F. BOHN, ESQ., ADAM R.
TRIPPIEDI, ESQ., Attorney for Ferrell Street Trust
STIPULATION AND ORDER TO STAY LITIGATION PENDING
FINAL RESOLUTION OF PETITION(S) FOR WRIT OF CERTIORARI TO
UNITED STATES SUPREME COURT
National Mortgage Association ("Fannie Mae"), Warm
Springs Reserve Owners Association, and Ferrell Street Trust
stipulate as follows:
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
parties in Bourne Valley and Saticoy Bay
are seeking review of both decisions in the United States
Supreme Court. Bourne Valley filed its petition for writ of
certiorari of the Ninth Circuit's Bourne Valley
decision on 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,
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:
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.