Williston Investment Group, LLC v. JP Morgan Chase Bank NA et al, No. 2:2014cv02038 - Document 64 (D. Nev. 2015)

Court Description: ORDER Granting 60 Motion to Combine Hearings. Motion Hearing re 44 Motion for Summary Judgment reset for 6/18/2015 01:30 PM in LV Courtroom 7D before Chief Judge Gloria M. Navarro. Signed by Chief Judge Gloria M. Navarro on 5/27/15. (Copies have been distributed pursuant to the NEF - MMM)
Download PDF
Williston Investment Group, LLC v. JP Morgan Chase Bank NA et al Doc. 64 4 Abran E. Vigil (SBN 7548) Sylvia O. Semper (SBN 12863) BALLARD SPAHR LLP 100 North City Parkway, Suite 1750 Las Vegas, Nevada 89106 Tel: (702) 471-7000 Fax: (702) 471-7070 vigila@ballardspahr.com; sempers@ballardspahr.com 5 Attorneys for Defendant Federal Home Loan Mortgage Corporation 6 Leslie Bryan Hart, Esq. (SBN 4932) John D. Tennert, Esq. (SBN 11728) FENNEMORE CRAIG, P.C. 300 E. Second St., Suite 1510 Reno, Nevada 89501 Tel: 775-788-2228 Fax: 775-788-2229 lhart@fclaw.com; jtennert@fclaw.com 1 2 3 7 8 9 10 11 12 13 14 (Admitted Pro Hac Vice) Asim Varma, Esq. Michael A.F. Johnson, Esq. Dan A. Leary, Esq. ARNOLD & PORTER LLP 555 12th Street NW Washington, DC 20004 Tel: (202) 942-5000 Fax: (202) 942-5999 Asim.Varma@aporter.com; Michael.Johnson@aporter.com Dan.Leary@aporter.com 15 Attorneys for Intervenor Federal Housing Finance Agency 16 17 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 18 19 20 21 22 23 24 25 26 27 28 WILLISTON INVESTMENT GROUP, LLC, Plaintiff, vs. JPMORGAN CHASE BANK NATIONAL ASSOCIATION; et al., Defendants, and FEDERAL HOUSING FINANCE AGENCY, as Conservator for Federal Home Loan Mortgage Corporation, Intervenor. CASE NO.: 2:14-cv-02038-GMN-PAL FREDDIE MAC AND FHFA’S MOTION TO COMBINE HEARING ON THEIR MOTION FOR SUMMARY JUDGMENT WITH THE CURRENTLY SCHEDULED HEARING IN SATICOY BAY FEDERAL HOME LOAN MORTGAGE CORPORATION, Counterclaimant, and FENNEMORE CRAIG, P.C. 300 E. SECOND ST. SUITE 1510 RENO, NEVADA 89501 (775) 788-2200 Dockets.Justia.com 1 2 3 FEDERAL HOUSING FINANCE AGENCY, as Conservator for Federal Home Loan Mortgage Corporation, Intervenor, vs. 4 5 WILLISTON INVESTMENT GROUP, LLC; and DESERT LINN CONDOMINIUMS, 6 Counter-defendants. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Freddie Mac and FHFA respectfully request that the Court set the pending, fully briefed dispositive motion in this action, as well as the fully briefed dispositive motions in Elmer v. Freddie Mac, No. 2:14-cv-01999-GMN-NJK, and Skylights LLC v. Fannie Mae, No. 2:15-cv0043-GMN-VCF, for argument on June 18, 2015, the date currently scheduled for the hearing on the pending summary judgment motion in a related action, Saticoy Bay, LLC Series 1702 Empire Mine v. Fannie Mae, No. 2:14-cv-1975-GMN-NJK. See Minute Order, Saticoy Bay (Dkt. 76) (granting expedited hearing); Minute Order, Saticoy Bay (Dkt. 83) (setting June 18 as date for hearing). These cases all involve a common and potentially dispositive issue of federal law— whether a federal statute mandating that “[n]o property of [an FHFA conservatorship] shall be subject to ... foreclosure[] or sale without [FHFA’s] consent” preserves Fannie Mae’s and Freddie Mac’s property interests when a homeowners’ association forecloses a super-priority lien in a way that, under state law, might otherwise extinguish mortgage interests. See 12 U.S.C. § 4617(j)(3). As we explained in seeking expedited argument in Saticoy Bay, dozens of cases presenting that issue already are pending in this District, and more are expected. See Joint Motion to Expedite Hearing, Saticoy Bay (Dkt. 72). dispositive common issue therefore will serve the interests of efficiency and judicial economy. We propose that oral argument in Elmer, Williston, and Skylights be combined with argument in Saticoy Bay for two principal reasons. First, in addition to the common issue discussed above, Elmer, Williston, and Skylights all involve a newly minted “constitutional” defense to summary judgment not presented in Saticoy Bay—whether applying Section 4617(j)(3) to preserve the Enterprises’ property interests would violate the due process rights of FENNEMORE CRAIG, P.C. 300 E. SECOND ST. SUITE 1510 RENO, NEVADA 89501 (775) 788-2200 Prompt resolution of this potentially 2 1 parties to the HOA foreclosure sale.1 Resolution of that issue, now being advanced in an ever- 2 growing number of cases in an attempt to anticipate and avoid the dispositive consequences 3 should this Court rule that 12 U.S.C. § 4617(j)(3) prevents the extinguishment of Fannie Mae’s 4 and Freddie Mac’s property interests, will facilitate the expeditious resolution of these litigations. 5 Indeed, this due process argument has been raised in five of the ten similar cases pending in the 6 District in which opposing parties already have filed briefs supporting or opposing dispositive 7 motions.2 Resolving the due process issue contemporaneously with the federal supremacy issue 8 would eliminate the need for piecemeal litigation and would provide more useful guidance to 9 other courts hearing similar cases, thereby serving the interests of efficiency and judicial 10 economy. 11 Second, the Saticoy Bay plaintiff is attempting to prevent this Court from resolving the 12 Section 4617(j)(3) issue promptly by seeking to moot its case unilaterally. Specifically, Saticoy 13 Bay’s counsel reports that his “client has made the decision to pay off the outstanding trust deed 14 in order to make the issues in [its] case moot.” E-mail from Bohn to Varma (May 5, 2015) (copy 15 attached as Ex. A). Saticoy Bay, which is a plaintiff in several pending state court cases—and a 16 few less advanced cases in federal court—raising the same legal issue, may hope to put off the 17 day this federal court resolves the controlling federal-law question.3 18 motivation, Saticoy Bay’s effort to moot the case comes to naught, as a party’s “voluntary 19 cessation of a challenged practice does not deprive a federal court of its power to determine the 20 legality of the practice. If it did, the courts would be compelled to leave the [party] free to return But whatever the 21 1 22 23 24 25 26 27 28 See Elmer’s Response to Motion for Summary Judgment at 9-15, Elmer (March 23, 2015) (Dkt. 71) (arguing a violation of a purchaser’s due process rights); Williston’s Response to Motion for Summary Judgment at 13-18, Williston (April 3, 2015) (Dkt. 54) (same); The Falls at Rhodes Ranch Owners Association’s Response to Motion for Summary Judgment at 14-17, Skylights (April 16, 2015) (Dkt. 31) (arguing a violation of a homeowner association’s due process rights). 2 In addition to Elmer, Williston, and Skylights, these include Fannie Mae v. SFR Investments Pool 1, LLC, No. 2:14-cv-2046-JAD-PAL (D. Nev.), and Nationstar Mortgage, LLC v. SFR Investments Pool 1, LLC, No. 2:15-cv-0267-RFB-NJK (D. Nev.). 3 Indeed, Saticoy Bay sent its payoff request only five days after another court in this District ruled against it on a similar issue of federal preemption involving an HOA Sale. See Order, Saticoy Bay LLC, Series 7342 Tanglewood Park v. SRMOF II 2012-1 Trust, No. 2:13-cv1199-JCM-VCF (Apr. 30, 2015) (Dkt. 53). FENNEMORE CRAIG, P.C. 300 E. SECOND ST. SUITE 1510 RENO, NEVADA 89501 (775) 788-2200 3 1 to his old ways.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 2 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.10 (1982)) 3 (internal quotation marks, brackets, ellipses, and citation omitted). That said, hearing argument 4 contemporaneously in cases that squarely present the substantive issues without the distraction of 5 a mootness determination—such as Elmer, Williston, and Skylights—would likely result in a 6 more thorough airing of the issues the Court anticipated addressing when it expedited the Saticoy 7 Bay argument in the first place, thereby facilitating proper and complete resolution on the merits. 8 Setting argument for June 18 in Elmer, Williston, and Skylights will not unreasonably 9 burden the parties or the Court. That date is more than a month away, leaving each party ample 10 time to prepare to argue issues that are already fully briefed in each case. It will surely conserve 11 judicial resources to hear argument on the Section 4617(j)(3) issue in one combined session 12 rather than in multiple, case-specific sessions on separate dates.4 Moreover, because Elmer, 13 Williston, and Skylights involve an issue not presented in Saticoy Bay, hearing the cases 14 contemporaneously will be more efficient than convening a second argument to resolve 15 separately the due process defense. 16 Counsel for FHFA contacted counsel for all opposing parties—Skylights, the HOA in 17 Skylights, Elmer, and Williston—to seek their positions as to this motion and their availability 18 June 18. Counsel for Skylights responded telephonically that he does not object and is available 19 June 18. Counsel for the HOA in Skylights responded via e-mail that he is available June 18 and 20 does not object generally to expediting argument, albeit with two narrow concerns relating to the 21 possibility that further briefing may be submitted. See E-mail from Dunkley to Johnson (May 22 11, 2015) (attached as Ex. B).5 Counsel for Elmer and Williston interposed no objection to 23 combining the hearings, but objected to scheduling a hearing on June 18 and every other date in 24 the month of June, stating: 25 4 26 27 28 This is even more true here because Elmer and Williston are represented by the same counsel. 5 We have no reason to believe counsel’s concerns cannot be resolved well before June 18. We doubt that any further briefing will be required, but regardless there is ample time for any additional briefs to be submitted substantially in advance of June 18. FENNEMORE CRAIG, P.C. 300 E. SECOND ST. SUITE 1510 RENO, NEVADA 89501 (775) 788-2200 4 I have a weeklong binding arbitration (AAA) starting on June 22nd that is going to take up most of availability in June. Moreover, the beginning of June is filled with a number of outstate depositions. I would be opposed to having any argument on these matters in June. My first availability would be sometime after the July 4th weekend. 1 2 3 4 E-mail from Ayon to Johnson (May 11, 2015) (attached as Ex. C). Counsel for FHFA, Fannie 5 Mae, and Freddie Mac believe that presenting argument in all four cases on June 18 would best 6 facilitate the prompt and efficient resolution of the important issues pending in these cases. As 7 no actual conflict with June 18 has been stated, FHFA, Fannie Mae, and Freddie Mac 8 respectfully ask the Court to maintain that as the date of argument in Saticoy Bay, and to set 9 argument in Elmer, Williston, and Skylights for that date as well. 10 * * * 11 Prompt resolution of the fully briefed dispositive motions in Elmer, Williston, and 12 Skylights will benefit the parties, the Court, other courts in this District, and the public at large by 13 providing guidance on important issues that may affect hundreds of Nevada properties. 14 Combining argument in Elmer, Williston, and Skylights with the already-scheduled argument in 15 Saticoy Bay will enable the Court to resolve all of the principal issues presented in dozens of 16 pending cases, with no unreasonable burden to any party or the Court. Doing so would surely 17 aid in “secur[ing] the just, speedy, and inexpensive determination” of this and many other 18 actions, which is one of this Court’s prime directives. See Fed. R. Civ. Pro. 1. Accordingly, 19 Freddie Mac and FHFA respectfully urge the Court to set argument on the pending dispositive 20 ////// 21 ////// 22 ////// 23 ////// 24 ////// 25 ////// 26 ////// 27 ////// 28 FENNEMORE CRAIG, P.C. 300 E. SECOND ST. SUITE 1510 RENO, NEVADA 89501 (775) 788-2200 5 1 motions in Elmer, Williston, and Skylights for June 18, 2015, to be heard contemporaneously 2 with argument in Saticoy Bay. DATED this 11th day of May, 2015. 3 4 5 BALLARD SPAHR LLP FENNEMORE CRAIG, P.C. 6 By: By: 7 8 9 10 11 /s/ Sylvia O. Semper Abran E. Vigil (SBN 7548) Sylvia O. Semper (SBN 12863) 100 North City Parkway, Suite 1750 Las Vegas, Nevada 89106-4617 Tel: 702-471-7000 Fax: 702-471-7070 vigila@ballardspahr.com sempers@ballardspahr.com Attorneys for Defendants Federal Home Loan Mortgage Corporation /s/ Leslie Bryan Hart Leslie Bryan Hart, Esq. (SBN 4932) John D. Tennert, Esq. (SBN 11728) 300 E. Second St., Suite 1510 Reno, Nevada 89501 Tel: 775-788-2228 Fax: 775-788-2229 lhart@fclaw.com; jtennert@fclaw.com and ARNOLD & PORTER LLP (Admitted Pro Hac Vice) Asim Varma, Esq. Michael A.F. Johnson, Esq. Dan A. Leary, Esq. 12 13 14 Attorneys for Intervenor Federal Housing Financing Agency 15 16 17 18 IT IS SO ORDERED. 19 20 21 ________________________________ Gloria M. Navarro, Chief Judge United States District Court 22 DATED: 05/27/2015 23 24 25 26 27 28 FENNEMORE CRAIG, P.C. 300 E. SECOND ST. SUITE 1510 RENO, NEVADA 89501 (775) 788-2200 6 1 CERTIFICATE OF SERVICE 2 Pursuant to F.R.C.P. 5(b) and Electronic Filing Procedure IV(B), I certify that on the 11th 3 day of May, 2015, a true and correct copy of FREDDIE MAC AND FHFA’S MOTION TO 4 COMBINE HEARING ON THEIR MOTION FOR SUMMARY JUDGMENT WITH 5 THE CURRENTLY SCHEDULED HEARING IN SATICOY BAY, was transmitted 6 7 electronically through the Court’s e-filing electronic notice system to the attorney(s) associated 8 with this case. If electronic notice is not indicated through the court’s e-filing system, then a true 9 and correct paper copy of the foregoing document was delivered via U.S. Mail. 10 Joseph P. Hardy 11 Luis A Ayon 12 jhardy@gordonrees.com laa@mgalaw.com Margaret Schmidt mes@mgalaw.com 13 Matthew David Lamb lambm@ballardspahr.com 14 15 16 Richard J. Reynolds Ryan D Hastings rreynolds@bwslaw.com rhastings@leachjohnson.com 17 18 19 20 21 /s/ Pamela Carmon Pamela Carmon 22 23 24 25 26 27 28 FENNEMORE CRAIG, P.C. 300 E. SECOND ST. SUITE 1510 RENO, NEVADA 89501 (775) 788-2200 7