United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, not in its individual capacity but solely as Trustee for the Benefit of the Certificate holders of the CWABS Inc., Asset-Backed Certificates, Series 2007-SEA1, Plaintiff,
HILLCREST AT SUMMIT HILLS HOMEOWNERS ASSOCIATION, et al., Defendants.
J. Dawson United States District Judge.
before the Court is Plaintiff's Motion to Lift Stay
(#82). Though the time for doing so has passed, no response
in opposition has been filed.
Background and Analysis
case emerges from the non-judicial foreclosure sale by
Defendant Hillcrest at Summit Hills Homeowners Association of
the property located at 2216 Calm Sea Avenue, Las Vegas,
Nevada 89106 (“the Property”). This case shares a
similar fact pattern with many cases currently pending before
this Court, all having to do with HOA foreclosure sales. One
of the issues before the Court centers in whole or in part
around the question of what notice of default the foreclosing
party was required to provide Plaintiff prior to its
foreclosure sale on the Property. After the Nevada Supreme
Court's decision in SFR Invs. Pool 1, LLC v. U.S.
Bank, the Ninth Circuit decided Bourne Valley Court
Trust v. Wells Fargo Bank, NA, 832 F.3d 1154, 1160 (9th
Cir. 2016) (holding NRS 115.3116(2)'s statutory notice
scheme was facially unconstitutional).
April 21, 2017, in Bank of New York Mellon v. Star Hills
Homeowners Ass'n, this Court certified the following
question to the Nevada Supreme Court: “Whether NRS
§ 116.31168(1)'s incorporation of NRS § 107.090
requires homeowners associations to provide notices of
default to banks even when a bank does not request
notice?” Bank of New York Mellon v. Star Hill
Homeowners Ass'n, 2017 WL 1439671, at *5 (D. Nev.
April 21, 2017).
granting certification, the Court reasoned the following: In
Bourne Valley, the Ninth Circuit definitively
answered the question that the statute's
“opt-in” framework was unconstitutional.
Bourne Valley Court Trust v. Wells Fargo Bank, NA,
832 F.3d 1154, 1160 (9th Cir. 2016). However, that left the
Court with the unresolved question of what notice must be
provided. “It is solely within the province of the
state courts to authoritatively construe state
legislation.” Cal. Teachers Ass'n v. State Bd.
of Educ., 271 F.3d 1141, 1146 (9th Cir. 2001). As such,
state law questions of first impression like this one should
be resolved by the state's highest court. See
Huddleston v. Dwyer, 322 U.S. 232, 237 (1944).
August 2, 2018, the Supreme Court of Nevada answered the
certified question. See SFR Invs. Pool 1, LLC v. Bank of
New York Mellon, 422 P.3d 1248 (Nev. 2018). Further, it
has since issued two new opinions that bear on the issues in
this action. See Wells Fargo Bank, N.A. v. Tim
Radecki, 2018 WL 4402403 (Nev. September 13, 2018);
Bank of America, N.A. v. SFR Invs. Pool 1, LLC, 2018
WL 4403296 (Nev. September 13, 2018) (tender of the
superpriority amount prior to foreclosure results in buyer
taking property subject to deed of trust).
since the action was stayed, opinions in several cases have
directly addressed the Federal Foreclosure Bar at issue in
many cases. See Berezovsky v. Moniz, 869 F.3d 923
(9th Cir. 2017); Elmer v. JPMorgan Chase & Co.,
707 Fed.Appx. 426 (9th Cir. 2017); Nationstar Mortg., LLC
v. SFR Invs. Pool 1, LLC, 396 P.3d 754 (Nev. 2017).
Stay of the Case
district court has the inherent power to stay cases to
control its docket and promote the efficient use of judicial
resources. Landis v. North Am. Co., 299 U.S., 248,
254-55 (1936); Dependable Highway Exp., Inc. v.
Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 200).
A stay is no longer necessary in this action where the
certified question has already been decided.
parties may either file a stipulation or move the Court for a
modified discovery plan and scheduling order as necessary. If
the parties fail to do so, dispositive motions are due no
later than forty-five (45) days after the entry of this
order. Any future dispositive motions must address
the most recent case law applicable to the issues in this
IT IS HEREBY ORDERED that the STAY in ...