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Bank of New York Mellon v. Church

United States District Court, D. Nevada

October 20, 2017

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-4CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-4CB, Plaintiff,
v.
MICHELLE R. CHURCH; SFR INVESTMENTS POOL 1, LLC; HAMPTON & HAMPTON COLLECTIONS LLC; SILVERSTONE RANCH COMMUNITY ASSOCIATION; DOE INDIVIDUALS I-X, inclusive, and ROE CORPORATIONS I-X, inclusive, Defendants. SILVERSTONE RANCH COMMUNITY ASSOCIATION, Cross-Claimant,
v.
HAMPTON & HAMPTON COLLECTIONS LLC, a Professional Corporation, Cross-Defendant. SFR INVESTMENTS POOL 1, LLC, Counter/Cross-Claimant,
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006- 4CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-4CB; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR BRS CITIZENS, N.A.; MICHELLE R. CHURCH, an individual, Counter/Cross-Defendants.

          AKERMAN LLP Darren Brenner, Esq. ARIEL E. STERN, ESQ. Nevada Bar No. 8276 NATALIE L. WINSLOW, ESQ. Nevada Bar No. 12125 Attorneys for Plaintiff, The Bank of New York Mellon fka, The Bank of New York, as Trustee 10 for the Certi.ficateholders CWALT, Inc., Alternative Loan Trust 2006-4CB, Mortgage Pass-Through Certificates, Series 2006-4CB and cross-defendant, Mortgage Electronic Registration Systems, Inc., as nominee for BRS Citizens, N.A.

          CHRISTOPHER V. YERGENSEN, ESQ. Nevada Bar. No. 6183 Attorney for Hampton & Hampton Collections LLC

          JACQUELINE A. GILBERT, ESQ. Nevada Bar. No. 10593 DIANA S. EBRON, ESQ. Nevada Bar No. 10580 KAREN L. HANKS, ESQ. Nevada Bar No. 9578 Attorneys for Defendant SFR Investments Pool J, LLC

          JAMES W. PEN GILLY, ESQ. Nevada Bar. No. 6085 ELIZABETH B. LOWELL, ESQ. Nevada Bar No. 8551 Attorneys for Silverstone Ranch Community Association

          STIPULATION AND ORDER TO STAY LITIGATIONPENDINGFINAL RESOLUTION OF THE CERTIFIED QUESTION TO THE NEVADA SUPREME COURT

          RICHARD F. BOULWARE, II United States District Judge

         Plaintiff, The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders CWALT, Inc., Alternative Loan Trust 2006-4CB, Mortgage Pass-Through Certificates, Series 2006-4CB and cross-defendant, Mortgage Electronic Registration Systems, Inc., as nominee for BRS Citizens, N.A. (BNYM), and defendants SFR Investments Pool 1, LLC, Hampton & Hampton Collections LLC, and Silverstone Ranch Community Association, respectfully submit the following stipulation and proposed order:

         1. This case arises out of a homeowners association foreclosure, which BNYM contends did not impact its lien position.

         2. On April 21, 2017 the Judge Boulware certified the following question to the Nevada Supreme Court:

Whether NRS § 116.31168(1)'s incorporation of NRS § 107.090 required a homeowner's association to provide notices of default and/or sale to persons or entities holding a subordinate interest even when such persons or entities did not request notice, prior to the amendments that took effect on Oct 1, 2015?

See Bank of N.Y. Mellon, etc. v. Star Hill Homeowners Assoc., et al, Case No. 2:16-cv-02561-RFB-PAL (D. Nev. Apr. 21, 2017).

         3. The Nevada Supreme Court accepted the certified question on June 13, 2017, setting forth a briefing schedule. See SFR Investments Pool 1, LLC, v. Bank of New York Mellon, etc., Case No. 72931 (Nev. 2017). Briefing is in progress. In order to avoid discovery and dispositive

         4. Judge Boulware has indicated since stayed the above-referenced HOA litigation until that question is resolved. See 2:16-cv-02561 at ECF No. 45. Because the Nevada Supreme Court's answer to the certified question may impact the course of discovery and the claims and issues in this case, the parties similarly request a stay of this litigation.

         5. "[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes of action on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). "A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case." Leyva v. Certified Grocers of Cal, Ltd., 593 F.2d 857, 863 (9th Cir. 1979).

         6. To determine if a 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 ...


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