United States District Court, D. Nevada
WELLS FARGO BANK, N.A.; FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff,
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.
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
A certified question is pending before the Nevada Supreme
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).
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.
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.
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?
review of the Nevada Supreme Court's website indicates
that briefing on the case will be completed on November 27,
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;....
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 ...