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HSBC Bank, USA National Association v. SFR Investments Pool 1, LLC

United States District Court, D. Nevada

April 19, 2018

HSBC BANK, USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR MORTGAGEIT SECURITIES CORP. MORTGAGE LOAN TRUST, SERIES 2007-1, MORTGAGE PASS-THROUGH CERTIFICATES, a national banking association; Plaintiff,
v.
SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company; VIA VALENCIA/VIA VENTURA HOMEOWNERS ASSOCIATION, a Nevada non-profit corporation; ABSOLUTE COLLECTION SERVICES, LLC, a Nevada limited liability company; Defendants. SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company, Counter-Claimant,
v.
HSBC BANK, USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR MORTGAGEIT SECURITIES CORP. MORTGAGE LOAN TRUST, SERIES 2007-1, MORTGAGE PASS-THROUGH CERTIFICATES, national banking association, CITIMORTGAGE, INC.; MAGELLAN A. AQUINO, an individual, Counter-Defendant/Cross-Defendants.

          JEFFREY WILLIS, ESQ., HOLLY E. CHEONG, ESQ., SNELL & WILMER, L.L.P. ATTORNEYS FOR PLAINTIFF HSBC BANK, USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR MORTGAGEIT SECURITIES CORP. MORTGAGE LOAN TRUST, SERIES 2007-1, MORTGAGE PASS-THROUGH CERTIFICATES

          DIANA S. EBRON, ESQ., JACQUELINE A. GILBERT, ESQ., KAREN L. HANKS, ESQ., KIM GILBERT EBRON ATTORNEYS FOR DEFENDANT SFR INVESTMENTS POOL 1, LLC

          SHANE D. COX, ESQ., ABSOLUTE COLLECTION SERVICES, LLC, ATTORNEYS FOR DEFENDANT ABSOLUTE COLLECTION, LLC

          ASHLIE L. SURUR, ESQ., HALL, JAFFE & CLAYTON, L.L.P., ATTORNEYS FOR DEFENDANT VIA VALENCIA/VIA VENTURA HOMEOWNERS ASSOCIATION

          STIPULATION AND ORDER TO STAY LITIGATION PENDING CERTIFIED QUESTION BEFORE NEVADA SUPREME COURT, CASE No. 72931

         It is hereby stipulated and agreed by and between Plaintiff/Counter-Defendant HSBC Bank, USA, National Association, as Trustee for Mortgageit Securities Corp. Mortgage Loan Trust, Series 2007-1, Mortgage Pass-Through Certificates (“HSBC Bank”), Defendant/Counterclaimant/Cross-Claimant SFR Investment Pool 1, LLC (“SFR”), Defendant Via Valencia/Via Ventura Homeowners Association (the “HOA, ”), and Defendant Absolute Collection Services (collectively, the “Parties”), by and through their respective counsel:

         1. This lawsuit is one of hundreds where the parties dispute the effect of a non-judicial foreclosure sale held by an HOA pursuant to NRS 116.3116 et seq. (the “Statute”) for an owner's failure to pay HOA assessments.

         2. On August 12, 2016, the Ninth Circuit issued a decision in Bourne Valley Court Trust v. Wells Fargo Bank, N.A., 832 F.3d 1154 (9th Cir. 2016), holding that NRS 116.3116 et seq. is facially unconstitutional under the due process clause of the Fourteenth Amendment to the United States Constitution.

         3. On March 1, 2017, the Nevada Supreme Court issued a decision in Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo Home Mortgage, 388 P.3d 970 (Nev. 2017), holding that NRS 116.3116 et seq. is not facially unconstitutional.

         4. On May 3, 2017, this Court filed a certified question with the Nevada Supreme Court in SFR Investments Pool 1, LLC v. Bank of New York Mellon, No. 72931, requesting that the Nevada Supreme Court determine whether incorporation of NRS 107.090 into NRS 116.31168 requires homeowners' associations to provide notices of default to lenders, even when lenders do not affirmatively request notice (the “Certified Question”).

         5. Staying this case pending a remittitur in the Certified Question will enable the parties to present arguments and evidence to this Court with complete legal authority, thereby promoting the most efficient use of the Court's and the parties' limited resources.

         6. Because the Certified Question is fully briefed and submitted for decision without oral argument before the Nevada Supreme Court, the stay is not indefinite.

         7. Accordingly, the parties request that all proceedings in this lawsuit are stayed, and all upcoming deadlines, hearings, and conferences be vacated.

         8. The parties agree that SFR will maintain the property at issue in its current condition and will abide by all obligations and responsibilities arising from SFR's alleged ownership interest in the property, including but not limited to the payment of all applicable fees, assessments, taxes, and other financial obligations.

         9. The parties agree that upon written request and reasonable notice, SFR shall allow HSBC Bank access to the property to inspect and ensure ...


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