United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWABS INC., ASSET-BACKED CERTIFICATES, SERIES 2006-22 Plaintiff,
THE MEWS HOMEOWNERS ASSOCIATION; SATICOY BAY LLC SERIES 1218 COACH; HOMEOWNER ASSOCIATION SERVICES, INC., Defendants.
E. STERN, ESQ., VATANA LAY, ESQ., Akerman LLP., Attorneys for
Plaintiff The Bank of New York Mellon fka The Bank of New
York, as Trustee for the Certificateholders of the CWABS
Inc., Asset-Backed Certificates, Series 2006-22.
W. PENGILLY, ESQ., ELIZABETH B. LOWELL, ESQ.
STIPULATION AND ORDER TO STAY LITIGATIONPENDINGFINAL
RESOLUTION OF PETITION(S) FOR WRIT OF CERTIORARI TO UNITED
STATES SUPREME COURT
Bank of New York Mellon fka The Bank of New York, as Trustee
for the Certificateholders of the CWABS Inc., Asset-Backed
Certificates, Series 2006-22 (BONYM) and The Mews Homeowners
Association (Mews) (collectively the parties) stipulate as
Stipulation to Stay Proceedings
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.
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., 388 P.3d 970 (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.
parties in Bourne Valley are seeking review of the
decision in the United States Supreme Court. Bourne Valley
filed a petition for writ of certiorari of the Ninth
Circuit's Bourne Valley on April 3, 2017. See Bourne
Valley Court Tr. v. Wells Fargo Bank, NA., United States
Supreme Court Case No. 16A753.
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,
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 clearly is unsettled law. Moreover, the Court
will be relieved of expending further time and effort until
the conflict between the circuit and the Nevada Supreme Court
is resolved. A stay will benefit all parties involved herein.
b. 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 any hardship or inequity falling on any of
them is outweighed by the benefits of a stay.
c. Orderly Course of Justice: At the center of this
case is a homeowners' association's foreclosure sale
under NRS 116. The outcome of the petition for writ in
Bourne Valley has the potential to affirm or
overturn the case. Without a stay, the parties will expend
resources that will be unnecessary if either or both
petitions are granted. A stay would also avoid a likely
appeal from any subsequent judgment in this case. A temporary
stay would substantially promote the orderly course of
justice in this case. A stay will avoid the moving forward
without final resolution of the federal issues and the state
court/federal court conflict.
parties agree that all proceedings in the instant case,
including any deadlines for responsive pleadings, are stayed
pending final resolution of the Bourne Valley