HSBC Bank, USA, National Association v. SFR Investments Pool 1, LLC et al, No. 2:2017cv01512 - Document 44 (D. Nev. 2018)

Court Description: ORDER granting 43 Stipulation to Stay Case; Signed by Judge Andrew P. Gordon on 4/19/2018. (Copies have been distributed pursuant to the NEF - JM)
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HSBC Bank, USA, National Association v. SFR Investments Pool 1, LLC et al Doc. 44 Case 2:17-cv-01512-APG-GWF Document 43 Filed 04/17/18 Page 1 of 7 1 2 3 4 5 6 7 8 9 Jeffrey Willis, Esq. Nevada Bar No. 4797 Holly E. Cheong, Esq. Nevada Bar No. 11936 SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252 Email: jwillis@swlaw.com hcheong@swlaw.com Attorneys for Plaintiff HSBC Bank, USA, National Association, as Trustee for Mortgageit Securities Corp. Mortgage Loan Trust, Series 2007-1, Mortgage PassThrough Certificates L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 UNITED STATES DISTRICT COURT 11 Snell & Wilmer 10 DISTRICT OF NEVADA 12 13 14 15 16 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; 17 18 Case No.: 2:17-cv-01512-APG-VCF STIPULATION AND ORDER TO STAY LITIGATION PENDING CERTIFIED QUESTION BEFORE NEVADA SUPREME COURT, CASE NO. 72931 Plaintiff, vs. 19 20 21 22 23 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. 24 25 26 SFR INVESTMENTS POOL 1, LLC, a Nevada limited liability company, Counter-Claimant, 27 28 vs. -14831-7834-7873 Dockets.Justia.com Case 2:17-cv-01512-APG-GWF Document 43 Filed 04/17/18 Page 2 of 7 1 2 3 4 HSBC BANK, USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR MORTGAGEIT SECURITIES CORP. MORTGAGE LOAN TRUST, SERIES 20071, MORTGAGE PASS-THROUGH CERTIFICATES, national banking association, CITIMORTGAGE, INC.; MAGELLAN A. AQUINO, an individual, 5 Counter-Defendant/Cross-Defendants. 6 7 8 It is hereby stipulated and agreed by and between Plaintiff/Counter-Defendant HSBC 9 Bank, USA, National Association, as Trustee for Mortgageit Securities Corp. Mortgage Loan L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Trust, 11 Snell & Wilmer 10 Defendant/Counterclaimant/Cross-Claimant SFR Investment Pool 1, LLC (“SFR”), Defendant 12 Via Valencia/Via Ventura Homeowners Association (the “HOA,”), and Defendant Absolute 13 Collection Services (collectively, the “Parties”), by and through their respective counsel: 14 Series 1. 2007-1, Mortgage Pass-Through Certificates (“HSBC Bank”), This lawsuit is one of hundreds where the parties dispute the effect of a non- 15 judicial foreclosure sale held by an HOA pursuant to NRS 116.3116 et seq. (the “Statute”) for an 16 owner’s failure to pay HOA assessments. 17 2. On August 12, 2016, the Ninth Circuit issued a decision in Bourne Valley Court 18 Trust v. Wells Fargo Bank, N.A., 832 F.3d 1154 (9th Cir. 2016), holding that NRS 116.3116 et 19 seq. is facially unconstitutional under the due process clause of the Fourteenth Amendment to the 20 United States Constitution. 21 3. On March 1, 2017, the Nevada Supreme Court issued a decision in Saticoy Bay 22 LLC Series 350 Durango 104 v. Wells Fargo Home Mortgage, 388 P.3d 970 (Nev. 2017), holding 23 that NRS 116.3116 et seq. is not facially unconstitutional. 24 4. On May 3, 2017, this Court filed a certified question with the Nevada Supreme 25 Court in SFR Investments Pool 1, LLC v. Bank of New York Mellon, Case No. 72931, requesting 26 that the Nevada Supreme Court determine whether incorporation of NRS 107.090 into NRS 27 116.31168 requires homeowners’ associations to provide notices of default to lenders, even when 28 lenders do not affirmatively request notice (the “Certified Question”). -24831-7834-7873 Case 2:17-cv-01512-APG-GWF Document 43 Filed 04/17/18 Page 3 of 7 1 5. Staying this case pending a remittitur in the Certified Question will enable the 2 parties to present arguments and evidence to this Court with complete legal authority, thereby 3 promoting the most efficient use of the Court’s and the parties’ limited resources. 4 5 6. oral argument before the Nevada Supreme Court, the stay is not indefinite. 6 7 Because the Certified Question is fully briefed and submitted for decision without 7. Accordingly, the parties request that all proceedings in this lawsuit are stayed, and all upcoming deadlines, hearings, and conferences be vacated. 8 8. The parties agree that SFR will maintain the property at issue in its current ownership interest in the property, including but not limited to the payment of all applicable fees, 11 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 condition and will abide by all obligations and responsibilities arising from SFR’s alleged 10 Snell & Wilmer 9 assessments, taxes, and other financial obligations. 12 9. The parties agree that upon written request and reasonable notice, SFR shall allow 13 HSBC Bank access to the property to inspect and ensure the property is being reasonably 14 maintained. 15 16 10. at issue during the stay. 17 18 The parties agree that HSBC Bank will not pursue foreclosure against the property 11. The parties agree that SFR will not sell, transfer, or convey the property while this case is stayed. 19 12. The parties further agree that their claims and defenses will be tolled, if necessary, 20 for the duration of the stay, beginning on the date this stipulation is filed until the Court issues an 21 order lifting the stay. 22 13. 23 Certified Question. 24 14. 25 This stay will expire after the Nevada Supreme Court issues a remittitur in the Within fifteen (15) days after the remittitur is issued, the parties shall file a notice informing the Court that the stay has expired. 26 15. The parties agree that upon dissolution of this stay, the parties will meet and confer 27 and submit a stipulation and order setting forth an updated discovery schedule. 28 /// -34831-7834-7873 Case 2:17-cv-01512-APG-GWF Document 43 Filed 04/17/18 Page 4 of 7 1 16. SFR and HSBC Bank agree that HSBC Bank shall respond to SFR’s written 2 discovery requests, served on or about April 6, 2018, within forty-five (45) days after an order 3 lifting the stay is entered. 4 17. SFR agrees to vacate HSBC Bank’s deposition, currently set for April 25, 2018. 5 After an order lifting the stay is entered, the parties will provide HSBC Bank with at least sixty 6 (60) days notice of any deposition of HSBC Bank’s person most knowledgeable, or any other 7 employee, representative, or agent of HSBC Bank identified for any deposition in this matter. 8 IT IS SO STIPULATED. 9 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 11 12 13 14 15 16 17 18 19 20 DATED this 17th day of April, 2018 DATED this 17th day of April, 2018 By: /s/ Holly E. Cheong Jeffrey Willis, Esq. Nevada Bar No. 4797 Holly E. Cheong, Esq. Nevada Bar No. 11936 Snell & Wilmer, L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252 jwillis@swlaw.com hcheong@swlaw.com Attorneys for Plaintiff HSBC Bank, USA, National Association, as Trustee for Mortgageit Securities Corp. Mortgage Loan Trust, Series 2007-1, Mortgage PassThrough Certificates By: /s/ Diana S. Ebron Diana S. Ebron, Esq. Nevada Bar No. 10580 Jacqueline A. Gilbert, Esq. Nevada Bar No. 10593 Karen L. Hanks, Esq. Nevada Bar No. 9578 Kim Gilbert Ebron 7625 Dean Martin Drive, Suite 110 Las Vegas, NV 89139 Telephone: (702) 485-3300 Facsimile: (702) 485-3301 diana@kgelegal.com jackie@kgelegal.com karen@kgelegal.com Attorneys for Defendant SFR Investments Pool 1, LLC SIGNATURES CONTINUED ON NEXT PAGE 21 22 23 24 25 26 27 28 -44831-7834-7873 Case 2:17-cv-01512-APG-GWF Document 43 Filed 04/17/18 Page 5 of 7 1 DATED this 17th day of April, 2018 DATED this 17th day of April, 2018 2 By: /s/ Shane D. Cox Shane D. Cox, Esq. Nevada Bar No. 13852 Absolute Collection Services, LLC 8440 West Lake Mead Boulevard, Suite 210 Las Vegas, NV 89128 Telephone: (702) 531-3394 Facsimile: (702) 531-3396 shane@absolute-collection.com Attorneys for Defendant Absolute Collection, LLC By: /s/ Ashlie L. Surur Ashlie L. Surur, Esq. Nevada Bar No. 11290 Hall, Jaffe & Clayton, L.L.P. 7425 Peak Drive Las Vegas, NV 89128 Telephone: (702) 316-4111 Facsimile: (702) 316-4114 asurur@lawhjc.com Attorneys for Defendant Via Valencia/Via Ventura Homeowners Association 3 4 5 6 7 8 9 ORDER 10 The Court having considered the attached stipulation of the parties, IT IS ORDERED L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 11 12 THAT: 13 14 15 1. All proceedings in this lawsuit are stayed, and all upcoming deadlines, hearings, and conferences be vacated. 16 2. SFR will maintain the property at issue in its current condition and will abide by all 17 obligations and responsibilities arising from SFR’s alleged ownership interest in the 18 property, including but not limited to the payment of all applicable fees, assessments, 19 taxes, and other financial obligations. 20 21 3. Upon written request and reasonable notice, SFR shall allow HSBC Bank access to the property to inspect and ensure the property is being reasonably maintained. 22 4. HSBC Bank will not pursue foreclosure against the property at issue during the stay. 23 5. SFR will not sell, transfer, or convey the property while this case is stayed. 24 6. The parties’ claims and defenses will be tolled, if necessary, for the duration of the stay, 25 beginning on the date this stipulation is filed until the Court issues an order lifting the 26 stay. 27 7. This stay will expire after the Nevada Supreme Court issues a remittitur in the Certified 28 Question, SFR Investments Pool 1, LLC v. Bank of New York Mellon, Case No. 72931. -54831-7834-7873 Case 2:17-cv-01512-APG-GWF Document 43 Filed 04/17/18 Page 6 of 7 1 2 3 4 8. Within fifteen (15) days after the remittitur is issued, the parties shall file a notice informing the Court that the stay has expired. 9. Upon dissolution of this stay, the parties will meet and confer and submit a stipulation and order setting forth an updated discovery schedule. 5 IT IS SO ORDERED: 6 7 8 _____________________________________ U.S. DISTRICT COURT JUDGE Dated: April 19, 2018. 9 10 DATED: L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -64831-7834-7873 _________________________