United States District Court, D. Nevada
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT (ECF NO.
P. GORDON UNITED STATES DISTRICT JUDGE
case revolves around whether a deed of trust still encumbers
property located at 3151 Twilight Hills Avenue in Henderson,
Nevada following a non-judicial foreclosure sale conducted by
a homeowners association (HOA). Plaintiff Federal National
Mortgage Association (Fannie Mae) seeks a declaration that
its deed of trust continues to encumber the property. Fannie
Mae moves for summary judgment against the current property
owner, defendant Jong Beom Park, arguing that the federal
foreclosure bar in 12 U.S.C. § 4617(b)(2)(A)(i)
precludes the HOA foreclosure sale from extinguishing Fannie
Mae's interest in the property. I grant the motion.
and David McCallum borrowed money to purchase the property in
July 2005. ECF No. 17-1. The loan was secured by a deed of
trust encumbering the property. Id. The deed of
trust identifies the McCallums as the borrowers; Countrywide
Home Loans, Inc. as the lender; Recontrust Company, N.A. as
the trustee; and Mortgage Electronic Registration Systems,
Inc. (MERS) as the beneficiary as nominee for the lender and
its successors and assigns. Id.at 3. In August 2005,
Fannie Mae acquired ownership of the note and deed of trust,
and has owned them ever since. ECF No. 17-2 at 3.
September 2011, MERS assigned the deed of trust to Bank of
America, N.A. ECF No. 17-3. Bank of America was Fannie
Mae's servicer. ECF No. 17-2 at 4. In December 2011, Bank
of America assigned the deed of trust to Fannie Mae. ECF No.
2013, the HOA conducted a non-judicial foreclosure sale
because the McCallums had not paid their HOA assessments. ECF
No. 17-5. Park purchased the property at the sale for $11,
000. Id. at 4.
judgment is appropriate if the movant shows “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
federal foreclosure bar in 12 U.S.C. § 4617(j)(3)
provides that “in any case in which [the Federal
Housing Finance Agency (FHFA)] is acting as a conservator,
” “[n]o property of [FHFA] shall be subject to .
. . foreclosure[ ] or sale without the consent of
[FHFA].” Fannie Mae argues that under the federal
foreclosure bar, the HOA sale could not extinguish its
interest in the property because at the time of the sale,
FHFA was acting as Fannie Mae's conservator and Fannie
Mae owned an interest in the property.
question of whether the federal foreclosure bar preserves
Fannie Mae's interest in this property following the
HOA's foreclosure sale of its superpriority lien is
controlled by Berezovsky v. Moniz, 869 F.3d 923 (9th
Cir. 2017). In that case, the Ninth Circuit held that the
federal foreclosure bar preempts Nevada law and precludes an
HOA foreclosure sale from extinguishing Fannie
Mae's interest in property without FHFA's
affirmative consent. Id. at 927-31. Because Nevada
law is preempted under the Supremacy Clause in this
circumstance, Park's arguments about Nevada law and
policy are unavailing. Likewise, his argument that Fannie Mae
did nothing to prevent the HOA sale from proceeding does not
preclude judgment in Fannie Mae's favor. See id.
at 929 (“The Federal Foreclosure Bar does not require
the Agency to actively resist
the Berezovsky court accepted as proof of ownership
the same type of evidence offered in this case. Id.
at 932-33. Park offers no evidence raising a genuine dispute
about Fannie Mae's interest, and he does not request
relief under Federal Rule of Civil Procedure 56(d). His
unsupported assertion that Fannie Mae may not be the
“holder of the note” is insufficient to raise a
genuine issue of material fact. Park must show “more
than metaphysical doubt as to the material facts, ” and
he “has not done so here.” Id. at 933
(quotation omitted). Consequently, no genuine dispute remains
that Fannie Mae owned an interest in the property at the time
of the HOA foreclosure sale.
Park offers no authority for his assertion that Fannie Mae
lacks standing because Fannie Mae has not shown
“whether Freddie Mac owned the loan in question, or
whether [Plaintiff] had a contract with Freddie Mac or the
FHFA to service the loan in question.” ECF No. 18 at 7
(alteration in original). It is unclear what Park is
referring to because Freddie Mac is not involved in this
case, nor is a servicer attempting to sue on Fannie Mae or
Freddie Mac's behalf. Fannie Mae is the plaintiff. To the
extent Park is arguing Fannie Mae does not have standing to
assert the federal foreclosure bar, I reject that argument.
See, e.g., Saticoy Bay, LLC Series 2714
Snapdragon v. Flagstar Bank, FSB, 699 Fed.Appx. 658 (9th
Cir. Oct. 20, 2017) (holding a loan servicer acting as Fannie
Mae's agent may assert federal preemption);
Nationstar Mortgage, LLC v. SFR Investments Pool 1,
LLC, 396 P.3d 754, 758 (Nev. 2017) (same).
the federal foreclosure bar and Berezovsky, Fannie
Mae's interest cannot be extinguished without FHFA's
consent. I therefore grant ...