Palm Avenue Hialeah Trust v. Spinnaker Point Avenue Trust

1 MAURICE WUTSCHER LLP Patrick J. Kane (Pro Hac Vice) 440 Stevens Avenue, Suite 200 Solana Beach, California 92075 Phone No.: (858) 381-7860 Email: [email protected] Attorney for Plaintiff/Counter-Defendant, PROF-2013-M4 Legal Title Trust IV, by U.S. Bank National Association, as Legal Title Trustee

8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA PROF-2013-M4 LEGAL TITLE TRUST IV, ) Case No.: 2:17-cv-00445-APG-VCF BY U.S. BANK NATIONAL ) ASSOCIATION, AS LEGAL TITLE ) STIPULATION AND ORDER TO TRUSTEE, ) CONTINUE TRIAL ) 13 Plaintiff, ) [SECOND REQUEST TO CONTINUE ) TRIAL] 14 v. ) ) Current Trial Date: September 12, 2022 SPINNAKER POINT AVENUE TRUST; ) Trial Calendar Call: August 25, 2022 RIVER GLIDER AVENUE TRUST; ) Proposed New Trial Date: March 14, 2023 SATICOY BAY, LLC SERIES 5982 ) SPINNAKER POINT AVENUE; ) MOUNTAIN GATE AT SUNRISE ) MOUNTAIN HOMEOWNERS’ ) ASSOCIATION; ABSOLUTE ) COLLECTION SERVICES, LLC, ) 19 ) Defendant. ) 20 ) ) SATICOY BAY, LLC SERIES 5982 ) SPINNAKER POINT AVENUE, ) 22 ) 23 Counterclaimant, ) ) vs. ) 24 ) PROF-2013-M4 LEGAL TITLE TRUST IV, ) BY U.S. BANK NATIONAL ) ASSOCIATION, AS LEGAL TITLE ) TRUSTEE, ) ) 27 Counter-Defendant ) 1 IT IS HEREBY STIPULATED Plaintiff/Counter-Defendant, PROF-2013-M4-Legal Title Trust IV, by U.S. Bank National Association, (“Trustee”), Defendant Mountain Gate at Sunrise Mountain Homeowners’ Association (“Mountain Gate”), Defendants and Counterclaimants Saticoy Bay, LLC Series 5982 and Spinnaker Point Avenue (“Defendants”) (collectively, the “Parties”), by their attorneys, hereby submit the following Stipulation and Order to Continue the March 14, 2022 by one hundred and eighty days (180) pursuant to LR IA 6-1 and LR 7-1. This is the Parties’ second request to continue the currently scheduled trial date and is submitted in good faith and not intended to cause any delay to this Court.

9 RECITALS 10 WHEREAS, Trustee’s predecessor-in-interest filed the instant action on February 9, 2017.

11 See Dkt. 1.

12 WHEREAS, on April 12, 2017, the instant action was stayed (the “Stay”). See Dkt. 21.

13 WHEREAS, on August 10, 2017, this Court lifted the Stay. See Dkt. 26.

14 WHEREAS, on August 22, 2017 Trustee’s predecessor-in-interest filed an Amended Complaint asserting the following claims: (1) quiet title; (2) declaratory relief; (3) permanent and preliminary injunction; and (5) unjust enrichment (the “FAC”). See Dkt. 27.

17 WHEREAS, on October 10, 2019, Defendants filed their Answer and Affirmative Defenses to the FAC and filed the following counterclaims against the Trustee: (1) quiet title; and (2) declaratory relief. See Dkt. 49.

20 WHEREAS, on October 10, 2019, Defendants renewed their previously filed Motion to Dismiss. See Dkt. 50.

22 WHEREAS, on April 20, 2020, the Parties filed a “Stipulation for Extension of Time Re: Discovery,” which this Court granted on April 20, 2020. See Dkt. 69-70.

24 WHEREAS, on August 10, 2020, this Court granted Second Motion to Dismiss in part dismissing all of the FAC’s causes of action with the exception of Trustee’s unjust enrichment claim. See, Dkt. 76.

27 WHEREAS, on September 7, 2020, Trustee filed a motion for reconsideration requesting applicable case law that occurred after Defendants’ Motion to Dismiss was fully briefed. See Dkt. at 80.

3 WHEREAS, on March 3, 2021, the Court denied Trustee’s Motion for Reconsideration.

4 See Dkt. at 85.

5 WHEREAS, on May 4, 2021, this Court set this matter for a bench trial on March 14, 2022 while separately setting this matter for a March 8, 2022 calendar call. See Dkt. 90.

7 WHEREAS, on August 31, 2021, the Parties attended a mandatory settlement conference before the Honorable Magistrate Elayna J. Yochah. See Dkt. 90.

9 WHEREAS, the Parties did not reach a settlement due to the pending statute of limitation question raised by the Ninth Circuit Court of Appeals, which was certified to the Nevada Supreme Court captioned as U.S. Bank v. Thunder Props., Inc., Supreme Court Case No. 8112 (“Thunder Props”). Because the outcome in Thunder Props would likely bear upon the application of the statute of limitation in this case. See Dkt. 98.

14 WHEREAS, on August 31, 2021, the Honorable Magistrate Elayna J. Yochah issued an Order: (1) continuing the settlement conference to date after the Nevada Supreme Court issued its opinion in Thunder Props; and (2) instructing the Parties to file a joint status report within ten days of a decision in Thunder Props being issued while separately requesting the Parties submit three dates of availability to attend a second settlement conference. See Dkt. 98.

19 WHEREAS, on February 2, 2022, the Nevada Supreme Court issued its Opinion in Thunder Props holding that: (1) “declaratory relief actions are not categorically exempt from statutes of limitations under City of Fernley v. Nevada Department of Taxation, 366 P.3d 699 (Nev. 2016)”; (2) NRS 11.220’s four year “catch all” statute of limitations applies to actions seeking to determine the validity of a lien under NRS 40.010; and (3) the four-year statute of limitations begins to run when “the titleholder affirmatively repudiates the lien, which does not necessarily happen at the foreclosure sale.” See Dkt. 101 26 WHEREAS, on February 10, 2022, the Parties filed their Joint Status Report outlining the holding of the Thunder Props decisions and providing the following dates to attend a second 1 WHEREAS, Honorable Magistrate Elayna J. Yochah scheduled the continued settlement conference for May 31, 2022.

3 WHEREAS, Trustee’s counsel contracted COVID-19 and could not attend the settlement conference as a result so the settlement conference was reset for August 11, 2022 at 9:00 a.m.

5 WHEREAS, the Parties attended the August 11, 2022 settlement conference and while the matter did not settle, the Parties believe they made progress towards reaching a settlement.

7 WHEREAS, trial is currently scheduled for September 12, 2022.

8 WHEREAS, Trustee previously filed a Motion to Reconsider the Court’s Order granting Defendants’ Motion to Dismiss in light of the Thunder Props’ holding concerning what triggers the applicable statute of limitation (“Motion to Reconsider”). See, Dkt. 104 11 WHEREAS, Trustee’s Motion to Reconsider is fully briefed and the Court has not yet issued its ruling on said Motion.

13 WHEREAS, the Parties cannot move forward until Trustee’s Motion to Reconsider is ruled upon as the pleadings will remain unsettled until a ruling is received.

15 WHEREAS, the loan at issue was recently sold to a new investor and service transferred to a new loan servicer requiring the new investor substitute into this matter.

17 WHEREAS, there have been additional delays in this litigation due to the COVID-19 pandemic and resulting government, court and health orders and restrictions, including Trustee’s counsel contracting COVID-19 at the end of May 2022.

20 WHEREAS, the parties have been diligent in attempting to bring this matter to a conclusion, including settlement discussions and conducting discovery.

22 WHEREAS, the Parties need additional time to complete settlement discussions and for the Court to rule on Trustee’s Motion to Reconsider in light of the recent Thunder Props holding so the parties can narrow down the issues in this litigation before moving forward with dispositive motion practice and trial preparation.

26 WHEREAS, the Parties agree that, subject to this Court’s approval, the September 12, 2022 trial date should be continued for at least one hundred and eighty days (180) or to a date to settle this litigation now that they have the benefit of guidance from the Nevada Supreme Court on the statute of limitation issue in this case and, after the parties obtain a ruling on Trustee’s Motion to Reconsider in light of the new applicable case law.

4 Agreement 5 NOW THEREFORE, IT IS HEREBY STIPULATED by and between the Parties to this litigation as follows: 7 1. The September 12, 2022 trial date be continued for at least 180 days, or to a date convenient to this Court.

9 Dated: August 12, 2022 MAURICE WUTSCHER LLP /s/ Patrick J. Kane 11 Patrick J. Kane (Pro Hac Vice) Stevens Avenue, Suite 200 12 Solana Beach, California 92075 Phone No.: (858) 381-7860 13 Email: [email protected] 14 Attorneys for Plaintiff/Counter-Defendant, PROF-2013-M4 Legal Title Trust IV, by U.S. Bank National Association, as Legal 16 Title Trustee Dated: August 12, 2022 BOYACK ORME ANTHONY & MCKIEVER 19 /s/ Patrick Orme Patrick A. Orne 20 7432 W. Sahara Ave. Las Vegas, Nevada 89117 21 Phone No.: (702) 562-3415 Email: [email protected] Attorneys for Defendant, MOUNTAIN GATE AT SUNRISE 24 MOUNTAIN HOMEOWNERS’ ASSOCIATION Dated: August 12, 2022 ROGER P. CROTEAU & ASSOCIATES Christopher L. Benner 1 2810 Charleston Boulevard, No. H-75 Las Vegas, Nevada 89102 2 Phone No.: (702) 254-7775 3 Email: [email protected] 4 Attorneys for Defendant and Counterclaimants, SPINNAKER POINT AVENUE TRUST, 6 RIVER GLIDER AVENUE TRUST, and SATICOY BAY, LLC SERIES 5982 7 SPINNAKER POINT AVENUE 11 Signature Attestation 12 I hereby attest under the penalty of perjury that on August 12, 2022, counsel for defendants || approved this Stipulation and gave me permission to electronically sign this Stipulation on his || behalf. /s/ Patrick J. Kane 15 Patrick Kane 18 ORDER || This case is set for court trial on the stacked calendar on March 27, 2023 at 9:00 a.m. Calendar 20 will be held on March 21, 2023 at 9:00 a.m. in Courtroom 6C.

22 || IT IS SO ORDERED: || Dated: August 15, 2022 24 ( ee 25 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE