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Wells Fargo Bank, N.A. v. Pine Barrens Street Trust

United States District Court, D. Nevada

November 22, 2017

WELLS FARGO BANK, N.A.; FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff,
v.
PINE BARRENS STREET TRUST; RMI MANAGEMENT, LLC d/b/a RED ROCK FINANCIAL SERVICES; VENEZIA COMMUNITY ASSOCIATION, Defendant.

          MICHAEL F. BOHN, ESQ., ADAM R. TRIPPIEDI, ESQ. Attorney for defendant Pine Barrens Street Trust

          DEFENDANT PINE BARRENS STREET TRUST'S MOTION TO STAY CASE FOR ALL PURPOSES

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         Defendant Pine Barrens Street Trust (hereinafter “defendant”), by and through its attorneys, the Law Offices of Michael F. Bohn, Esq., Ltd., moves to stay this case for all purposes pending a determination from the Nevada Supreme Court of a certified question involving the Ninth Circuit's interpretation of the Bourne Valley decision. This motion is based on the points and authorities contained herein.

         POINTS AND AUTHORITIES

         A. A certified question is pending before the Nevada Supreme Court

         In the myriad of cases which have been filed before the courts in the state of Nevada, involving HOA foreclosure sales, the wiped out mortgage holders have been claiming a due process violation. This position was accepted by the Ninth Circuit in the case of Bourne Valley Court Trust v. Wells Fargo 832 F.3d 1154 (9th Cir. 2016).

         The Ninth Circuits opinion, in summation, is that Chapter 116's notice requirements contained an opt-in provision which required lenders to affirmatively request notice. The decision expressly rejected the argument that NRS 116.31168 incorporated the notice rules from NRS 107.090.

         The Nevada Supreme Court declined to follow the Bourne Valley decision in Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo 133 Nev. Adv. Op. 5, 388 P.3d 970 (2017). The court held that due process was not implicated in an HOA's nonjudicial foreclosure. However, the decision turned on the absence of state action, and the court did not determine if the notice requirements in NRS 107.090 were incorporated into NRS 116. 31168.

         This court has certified a question to the Nevada Supreme Court, which was accepted by the Nevada Supreme Court. Nevada Supreme Court docket no. 72931. The question which the Nevada Supreme Court agreed to address is:

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 October 1, 2015?

         A review of the Nevada Supreme Court's website indicates that briefing on the case will be completed on November 27, 2017.

         More recently, the Nevada Supreme Court issued a decision today in another HOA foreclosure case. In the case of Nationstar Mortgage v. Saticoy Bay LLC Series 2227 Shadow Canyon 133 Nev. Adv. Op 91 (November 22, 2017) the court included a lengthy footnote, number 11 which provides in part:

While not an exhaustive list, irregularities that may rise to the level of fraud, unfairness, or oppression include an HOA's failure to mail a deed of trust beneficiary the statutorily required notices, see SFR Investments Pool 1, LLC v. U.S. Bank N.A. 130 Nev. Adv. Op 75, 334 P.3d 408, 418 (2014) (observing that NRS 116.31168 incorporates NRS 107.090, which requires that notices be sent to a deed of trust beneficiary); id. at 422 (Gibbons, C.J., dissenting)(same); Bourne Valley Court Trust v. Wells Fargo Bank NA 832 F.3d 1154, 1163-64 (9th Cir. 2016) (Wallace, J. dissenting)(same), cert. Denied, .___ U.S..___, ___ S.Ct.___, 2017 WL 1300223;....

         As there is a pending certified question, and published case law indicates that the Nevada Supreme Court will be ruling that the notice provisions of NRS 107.090 are incorporated into NRS Chapter 116, it is ...


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