United States District Court, D. Nevada
U.S. BANK, N.A., SUCCESSOR TRUSTEE TO BANK OF AMERICA, N.A., SUCCESSOR TO LASALLE BANK, N.A., AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE WAMU MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR16 TRUST, Plaintiff,
v.
SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company; CANYON GATE MASTER ASSOCIATION, a Nevada non-profit corporation, Defendants. SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company, Counter/Cross-Claimant,
v.
U.S. BANK, N.A., SUCCESSOR TRUSTEE TO BANK OF AMERICA, N.A., SUCCESSOR TO LASALLE BANK, N.A., AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE WAMU MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR16 TRUST; THE MIDORA TRUST FUND, DAHN MIDORA, TRUSTEE OF THE TRUST; and JPMORGAN CHASE BANK,
KIM
GILBERT EBRON, DIANA S. EBRON, ESQ. Nevada Bar No. 10580
JACQUELINE A. GILBERT, ESQ. Nevada Bar No. 10593, Attorney
for SFR Investments Pool 1, LLC
TYSON
& MENDES, LLP, CHRISTOPHER AMMON LUND, ESQ. Nevada Bar
No. 12435 THOMAS E. MCGRATH, ESQ. Nevada Bar No. 7086,
Attorney for Canyon Gate Master Association
BALLARD SPAHR LLP, ABRAN E. VIGIL, ESQ. Nevada Bar No. 7548
SYLVIA O. SEMPER, ESQ. Nevada Bar No. 12863, Attorney for
Plaintiff/Counter-Defendant
STIPULATION AND ORDER TO STAY LITIGATION PENDING
FINAL RESOLUTION OF CERTIFIED QUESTION BEFORE THE NEVADA
SUPREME COURT (FIRST REQUEST)
Pursuant
to LR IA 6-2 and LR 7-1,
Defendant/Counterclaimant/Cross-Claimant, SFR INVESTMENTS
POOL 1, LLC (“SFR”), Plaintiff/Counter-defendant
U.S. BANK, N.A., SUCCESSOR TRUSTEE TO BANK OF AMERICA, N.A.,
SUCCESSOR TO LASALLE BANK, N.A., AS TRUSTEE, ON BEHALF OF THE
HOLDERS OF THE WAMU MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR16 TRUST (“U.S. Bank”), and
Defendant/Third-Party Plaintiff CANYON GATE MASTER
ASSOCIATION (collectively, the “Parties”), by and
through their respective undersigned counsel of record,
hereby submit the following Stipulation and Order Staying
Case Pending Resolution of Certified Question Before the
Nevada Supreme Court:
1. This
lawsuit involves the parties seeking quiet title/declaratory
relief and other claims related to a non-judicial
homeowner's foreclosure sale conducted on a Property
pursuant to NRS Chapter 116.
2. On
August 12, 2016, the Ninth Circuit issued its decision in
Bourne Valley Court Trust v. Wells Fargo Bank, N.A.,
832 F.3d 1154, 1156 (9th Cir. 2016) (“Bourne
Valley ”) holding that NRS Chapter 116 is facially
unconstitutional.
3. On
January 26, 2017, the Nevada Supreme Court issued its
decision in Saticoy Bay LLC Series 350 Durango v. Wells
Fargo Home Mortg, 388 P.3d 970 (Nev. 2017)
(“Saticoy Bay”), holding, in direct
contrast to Bourne Valley, that no state action
supported a challenge under the Due Process Clause of the
United States Constitution. The Nevada Supreme Court further
concluded in Saticoy Bay that since due process was
not implicated and it “need not determine whether NRS
116.3116 et seq. incorporates the notice requirements set
forth in NRS 107.090, ” thereby requiring notice to
subordinate mortgage lenders. Saticoy Bay, 388 P.3d
at 974.
4. The
Nevada Supreme Court's decision in Saticoy Bay
calls into question the Bourne Valley court's
conclusions and creates a split in authority between the
state and federal courts on the same issue.
5.
Accordingly, on April 26, 2017, a certified a question was
presented to the Nevada Supreme Court regarding NRS 116's
notice requirement. See The Bank of New York Mellon v.
Star Hill Homeowners Association, et al., No.
2:16-cv-02561-RFB-PAL, [ECF No. 41].
6.
Specifically, the certified question presented is as follows:
“Whether NRS § 116.31168(1)'s incorporation of
NRS § 107.090 requires homeowner's association to
provide notices of default to banks even when a bank does not
request notice?” 7. The Nevada Supreme Court issued an
Order accepting the certified question on June 13, 2017.
See Nevada Supreme Court, No. 72931. Briefing in
that matter is currently completed.
8. An
answer to this certified question in a published opinion
pronouncing that NRS 116.31168 fully incorporates NRS
107.090, and mandates notice to junior lienholders of record,
has the potential to cure the conflict between Nevada's
courts and provide a singular, binding authority on the issue
which is central to the instant case.
9. U.S.
Bank and SFR filed their respective motions for summary
judgment in the instant case on February 5, 2018. [ECF
No.'s 62, 63]. Each party's response to the other
party's motion for summary judgment was filed on February
26, 2018. [ECF No.'s 65, 66]. Pursuant to a Stipulation
and Order entered on March 13, 2018, the deadline for each
party to file replies in support of their respective motions
for summary judgment is currently set for March 23, 2018.
10. The
parties believe that the stay requested herein is
appropriate.
11. To
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
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