United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court are Plaintiff Capital One, National
Association's (“Capital One”) Motion to
Certify Question to the Nevada Supreme Court and Motion to
Stay Case. ECF Nos. 29, 30. For the following reasons, the
Court denies both motions.
Capital One sued Defendants KK Real Estate Investment Fund,
LLC (“Buyer”) and Turnberry Towers East Unit
Owners Association (the “HOA”) seeking quiet
title and a declaration that a nonjudicial foreclosure
pursuant to Chapter 116 of the Nevada Revised Statutes
(“NRS”) did not extinguish its deed of trust on a
Las Vegas property on September 26, 2017. Buyer answer and
counterclaimed against Plaintiff with its own claim for quiet
title on February 13, 2018. ECF No. 10. The HOA answered on
March 6, 2018. ECF No. 14. On October 15, 2018, an order was
approved requiring that any dispositive motions be filed by
November 13, 2018. On that date, Capital One filed its motion
to certify question and motion to stay. ECF Nos. 29, 30. Both
motions are unopposed.
Rule 5 of the Nevada Rules of Appellate Procedure
(“Rule 5”), a United States District Court may
certify a question of law to the Nevada Supreme Court
“upon the court's own motion or upon the motion of
any party to the cause.” Nev. R. App. P. 5(a)-(b). The
Nevada Supreme Court has the power to answer such a question
that “may be determinative of the cause then pending in
the certifying court and ... [where] it appears to the
certifying court there is no controlling precedent in the
decisions of the Supreme Court of this state.” Nev. R.
App. P. 5(a). Rule 5 also provides that a certification order
must specifically address each of six requirements:
(1) The questions of law to be answered; (2) A statement of
all facts relevant to the questions certified; (3) The nature
of the controversy in which the questions arose; (4) A
designation of the party or parties who will be the
appellant(s) and the party or parties who will be the
respondent(s) in the Supreme Court; (5) The names and
addresses of counsel for the appellant and respondent; and
(6) Any other matters that the certifying court deems
relevant to a determination of the questions certified.
Nev. R. App. P. 5(c).
of the certification procedure in any given case ‘rests
in the sound discretion of the federal court.”'
Louie v. U.S., 776 F.2d 819, 824 (9th Cir. 1985).
“Even where state law is unclear, resort to the
certification process is not obligatory.” Riordan
v. State Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1009
(9th Cir. 2009).
One alleges the following in its motion to certify:
Nonparties Orlando and Nila Guastella purchased real property
located at 322 Karen Avenue, Unit 1807, Las Vegas, Nevada
89109 (the “property”). The property was subject
to the conditions, covenants, and restrictions (CC&Rs) of
the Turnberry Towers East Unit Owners Association. The
Guastellas borrowed $712, 000 secured by a deed of trust
against the property. The lender and beneficiary under the
deed of trust was ING Bank, FSB. Capital One is
successor-by-merger to ING.
Guastellas fell behind on their HOA assessments in February
2010. At the time the monthly assessment for the property was
$784.14. A notice of delinquent assessment lien was recorded
on August 9, 2010. The Guastellas entered into a payment plan
with the HOA. Between December 2010 and October 2011, they
made ten partial payments totaling $14, 346.85. Nine
months' assessments is $7057.26 The Guastellas were
ultimately unable to pay the full amount, causing the HOA to
foreclose. The Buyer purchased the property at the HOA sale.
Capital One now seeks to certify the following questions:
1. When a homeowner makes one or more partial payments
against a delinquent assessment lien, and the amount of the
payment(s) is greater than the amount of the lien that is
entitled to a superpriority under NRS 116.3116(2) (2012),
does the homeowner's payment ...