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 6505 Za Zu Pitts Avenue #103 in Las Vegas
following a non-judicial foreclosure sale conducted by a
homeowners association (HOA). Plaintiff Federal National
Mortgage Association (Fannie Mae) seeks a declaration that
the deed of trust continues to encumber the property. Fannie
Mae also seeks damages if the court rules its deed of trust
on the subject property was extinguished by the HOA
foreclosure sale. I previously dismissed the claims against
defendant Hollywood Ranch Homeowners Association. ECF No. 46.
Fannie Mae has moved for reconsideration of that decision.
ECF No. 47.
Mae moves for summary judgment against the current property
owners (defendants Nohemi Pena, Sarai Santana, Aldo Santana,
and Samantha Santana), seeking a declaration that the deed of
trust continues to encumber the property after the HOA
foreclosure sale. These defendants have not answered the
complaint, have not asserted any defenses, and did not oppose
Fannie Mae's summary judgment motion.
Santana purchased the property located at 6505 Za
Zu Pitts Avenue #103 in Las Vegas, Nevada in 2007 through a
loan from First National Bank of Nevada. ECF No. 45-1 at 2.
That loan was secured by a deed of trust listing Nohemi
Santana as the buyer, First National Bank of Nevada as the
lender, DHI Title as the trustee, and Mortgage Electronic
Registration Systems, Inc. (MERS) as the beneficiary of
record as nominee for the lender and its assigns and
successors. Id. at 2-3. In September 2007, Fannie
Mae purchased the note and deed of trust, and has owned them
ever since. ECF No. 45-7 at 3.
March 2009, Hollywood Ranch recorded a notice of delinquent
assessment because Nohemi Santana had failed to pay her HOA
assessments. ECF No. 45-3. Hollywood Ranch recorded a notice
of default and election to sell on January 20, 2010. ECF No.
45-4. In August 2010, MERS assigned the deed of trust to BAC
Home Loans Servicing. ECF No. 45-2.
August 21, 2012, Hollywood Ranch filed a notice of
trustee's sale, with the sale set for September 19, 2012.
ECF No. 45-5. The sale took place on that date and the
property was sold to Hollywood Ranch for $8, 263.96. ECF No.
45-6. At the time of the sale, Fannie Mae still owned the
note and deed of trust, and Bank of America, N.A. was Fannie
Mae's loan servicer. ECF No. 45-7 at 4. On February 11,
2015, Hollywood Ranch quitclaimed the deed to Nohemi Pena,
Sarai Santana, Aldo Santana, and Samantha Santana. ECF No.
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 Fannie
Mae's 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 applies to
preserve Freddie Mac'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 Freddie
Mac's interest in property without FHFA's affirmative
consent. Id. at 927-31. Additionally, that court
accepted as proof of ownership the same type of evidence
offered in this case. Id. at 932-33.
defendants offer no evidence raising a genuine dispute about
Fannie Mae's interest, and they do not request relief
under Federal Rule of Civil Procedure 56(d). Consequently, no
genuine dispute remains that Fannie Mae owned an interest in
the property at the time of the HOA foreclosure sale. Under
the federal foreclosure bar and Berezovsky, this
interest cannot be extinguished without FHFA's consent. I
therefore grant Fannie Mae's motion for summary judgment.