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Federal National Mortgage Association v. KK Real Estate Investment Fund, LLC

United States District Court, D. Nevada

January 23, 2018

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiffs,
v.
KK REAL ESTATE INVESTMENT FUND, LLC, Defendants.

          ORDER

         Presently before the court is plaintiff Federal National Mortgage Association's (“Fannie Mae”) motion for summary judgment. (ECF No. 9). Defendant KK Real Estate Investment Fund, LLC (“KK Real Estate”) filed a response (ECF No. 11), to which Fannie Mae replied (ECF No. 13).

         I. Facts

         This case involves a dispute over real property located at 4670 Spitfire Street, Las Vegas, Nevada 89115 (the “property”). (ECF No. 9 at 4). A deed of trust listing Genita B. Taylor as the borrower (“borrower”), Meridias Capital, Inc. as the lender (“lender”), and Mortgage Electronic Registration Systems, Inc. (“MERS”) as beneficiary solely as nominee for lender and lender's successors and assigns, was recorded on July 28, 2005. Id.

         The deed of trust granted lender a security interest in the property to secure the repayment of a loan originally in the amount of $134, 500.00 to the borrower (the note and deed of trust are referred to together as the “loan”). Id. In September 2005, Fannie Mae purchased the loan, thereby obtaining a property interest in the deed of trust. Id. On January 23, 2013, the date of the HOA sale, Fannie Mae maintained its property interest in the deed of trust. Id.

         On or around April 2, 2012, MERS, as nominee for lender and lender's successors and assigns, recorded an assignment of the deed of trust to Fannie Mae. Id.

         On January 24, 2013, the trustee's deed upon sale was recorded against the property. Id. The trustee's deed upon sale states that the property was sold in an HOA foreclosure sale on January 23, 2013 to KK Real Estate with a purchase price of $4, 351.00 (the “HOA sale”). Id.

         On September 6, 2008, pursuant to the Housing Economic Recovery Act of 2008, 12 U.S.C. § 4617 et seq. (“HERA”), Federal Housing Finance Agency's (“FHFA”) director placed Fannie Mae into conservatorship. Id. at 5.

         At no time did FHFA consent to any purported extinguishment of Fannie Mae's ownership interest in the property. Id. at 4.

         On July 13, 2017, Fannie Mae filed the underlying complaint against KK Real Estate, alleging two claims for relief: (1) declaratory relief; and (2) quiet title. (ECF No. 1). Fannie Mae seeks declaratory judgment that its deed of trust is valid and continues to encumber the property, despite the HOA foreclosure sale. (ECF No. 1).

         On June 22, 2017, KK Real Estate filed an answer and counterclaim for quiet title relief and for a preliminary and permanent injunction that Fannie Mae and its successors, assigns and agents are prohibited from initiating or continuing foreclosure proceedings and from selling or transferring the property. (ECF No. 7).

         In the instant motion, Fannie Mae moves for summary judgment in its favor as to its claims for declaratory relief quiet title pertaining to 12 U.S.C. § 4617(j)(3) and challenging the constitutionality of the non-judicial foreclosure provisions of NRS 116. (ECF No. 9).

         II. Legal Standard

         The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be entitled to a denial of summary judgment, the nonmoving party must “set ...


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