United States District Court, D. Nevada
LVDG SERIES 125, established under LVDG LLC, a Nevada series limited-liability company, Plaintiff,
FEDERAL HOME LOAN MORTGAGE CORPORATION, a federally chartered corporation; HAROLD M. WELLES, an individual; VALERIE M. WELLES, an individual; WELLS FARGO BANK, N.A., a national banking association; MTC FINANCIAL INC. d/b/a TRUSTEE CORPS, a California corporation; DOE individuals I through XX; and ROE CORPORATIONS I through XX, Defendants. WELLS FARGO BANK, N.A., a national association; FEDERAL HOME LOAN MORTGAGE CORPORATION, Counter-Claimants,
LVDG Series 125, established under LVDG LLC, a Nevada series limited-liability company, Counter-Defendant.
R. HICKS UNITED STATES DISTRICT JUDGE
the court is a motion for summary judgment filed by
defendants and counter-claimants Wells Fargo Bank, N.A.,
(“Wells Fargo”) and Federal Home Loan Mortgage
Corporation (“Freddie Mac”), brought under the
Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3). ECF No.
108. Plaintiff and counter-defendant, LVDG Series 125,
established under LVDG LLC, (“LVDG”) opposed the
motion (ECF No. 109), to which Freddie Mac and Wells Fargo
replied (ECF No. 112). Under the federal foreclosure bar and
Berezovsky v. Moniz, Freddie Mac's interest in
the at-issue property cannot be extinguished by a nonjudicial
foreclosure without consent from the Federal Housing Finance
Agency (“FHFA” or “the Agency”). 869
F.3d 923, 930-31 (9th Cir. 2017). Because no consent was
given, the court grants in part Freddie Mac's and Wells
Fargo's motion for summary judgment.
matter arises from a nonjudicial foreclosure sale on real
property located at 1125 Tule Drive, Reno, Nevada, 89521,
(“the property”), conducted under Nevada Revised
Statute (“NRS”) § 116.3116 et. seq.
ECF Nos. 108-1; 109-5. Harold and Valerie Welles acquired
title to and ownership of the property, and in November 2006,
they executed a deed of trust designating Wells Fargo as the
lender and beneficiary and United Title of Nevada as Trustee,
in the amount of $260, 000.00. ECF No. 108-1. The deed of
trust was recorded in the Washoe County Recorder's Office
on November 15, 2006. Id. The property sits in
Meadows Homeowners Association (“the HOA”) and is
therefore subject to HOA assessments. See ECF No.
109 at 4. Wells Fargo and Freddie Mac argue the loan was
purchased by Freddie Mac in December 2006, which retained
Wells Fargo to act as servicer of the loan. ECF Nos. 108 at
5; 108-2 ¶ 5(c).
the Welles failed to pay HOA assessments that came due, the
HOA, through its agent, recorded a Notice of Delinquent
Assessment (Lien) against the property on January 12, 2010.
ECF Nos. 108-14; 109-2. On June 29, 2010, the HOA filed a
Notice of Default and Election to Sell under Homeowners
Association Lien. ECF Nos. 108-15; 109-3. A Notice of
Trustee's Sale was then recorded on March 13, 2013. ECF
No. 109-4. At the nonjudicial foreclosure sale held on August
15, 2013, LVDG purchased the property for $5, 300.00; a
Trustee's Deed upon Sale was then recorded on August 30,
2013. ECF Nos. 108-3; 109-5. Wells Fargo and Freddie Mac
argue that at no time did the FHFA consent to this
foreclosure. ECF No. 108 at 8.
same month that the HOA recorded the notice of foreclosure
sale, Wells Fargo recorded a certificate from the State of
Nevada Foreclosure Mediation Program, which indicated Wells
Fargo could proceed with the foreclosure process under the
deed of trust. ECF No. 92-9. Wells Fargo then recorded a
notice of trustee's sale on the same day the HOA
conducted its foreclosure sale. Compare ECF No.
92-10 with ECF No. 92-8. Roughly one week later,
LVDG initiated this matter by filing a complaint in the
Second Judicial District Court of Washoe County, Nevada.
See ECF No. 1. After the state court granted a
temporary restraining order that enjoined Wells Fargo from
conducting the foreclosure sale in September 2013, the matter
was removed to this court. Id.; ECF Nos. 92 at 3-4;
98 at 7. After the temporary restraining order expired, Wells
Fargo held a trustee's foreclosure sale on November 1,
2013. ECF No. 108-18; 109-6. Freddie Mac placed the winning
November 8, 2013, Wells Fargo recorded a Corporate Assignment
of Deed of Trust, which reflected that the Deed of Trust was
assigned to Freddie Mac on March 27, 2013. ECF Nos. 108-2
¶ 5(g); 108-17; 109-7. Also on November 8, 2013, a
Trustee's Deed of Sale was recorded which reflects that
Freddie Mac purchased the property at the trustee's sale
held on November 1, 2013, under the Deed of Trust. ECF Nos.
108-2 ¶ 5(h); 108-18.
amended its complaint in July 2016, ultimately asserting six
causes of actionand, in part, seeking an order quieting
title on the property. ECF No. 63. Wells Fargo and Freddie
Mac filed a counterclaim, also seeking declaratory relief and
quiet title to the property.ECF No. 85. In June of 2016, Wells
Fargo moved for summary judgment on the constitutionality of
NRS § 116.3116 et. seq. and, therefore, on its
declaratory-relief counterclaim brought under the U.S.
Constitution. ECF No. 92. On November 8, 2017, the court
granted Wells Fargo's motion for summary judgment finding
the Ninth Circuit's ruling in Bourne Valley Court
Trust v. Wells Fargo Bank, N.A., 832 F.3d 1154, 1158-59
(9th Cir. 2016), was binding on this court. ECF No. 101.
However, in light of the Nevada Supreme Court's ruling in
SFR Invs. Pool 1, LLC v. Bank of N.Y. Mellon, 422
P.3d 1248, 1253 (Nev. 2018), and the Ninth Circuit's
ruling in Bank of America, N.A. v. Arlington West
Twilight Homeowners Association, __ F.3d, 2019 WL
1461317, at *3 (9th Cir. April 3, 2019), the court now
reconsiders its prior ruling sua sponte.
instant motion, filed on October 22, 2018, by Freddie Mac and
Wells Fargo, moves this court for summary judgment based on
the Federal Foreclosure Bar. ECF No. 108. LVDG opposed the
motion (ECF No. 109) and Freddie Mac and Wells Fargo replied
(ECF No. 112). The court's order as to each issue now
for Summary Judgment Pursuant to Federal Civil Procedure Rule
judgment is appropriate only when the pleadings, depositions,
answers to interrogatories, affidavits or declarations,
stipulations, admissions, and other materials in the record
show that “there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). In assessing a motion for
summary judgment, the evidence, together with all inferences
that can reasonably be drawn therefrom, must be read in the
light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); County of Tuolumne v. Sonora
Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).
moving party bears the initial burden of informing the court
of the basis for its motion, along with evidence showing the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those
issues for which it bears the burden of proof, the moving
party must make a showing that is “sufficient for the
court to hold that no reasonable trier of fact could find
other than for the moving party.” Calderone v.
United States, 799 F.2d 254, 259 (6th Cir. 1986);
see also Idema v. Dreamworks, Inc., 162 F.Supp.2d
1129, 1141 (C.D. Cal. 2001).
successfully rebut a motion for summary judgment, the
nonmoving party must point to facts supported by the record
which demonstrate a genuine issue of material fact. Reese
v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir.
2000). A “material fact” is a fact “that
might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Where reasonable minds could differ on
the material facts at issue, summary judgment is not
appropriate. See v. Durang, 711 F.2d 141, 143 (9th
Cir. 1983). A dispute regarding a material fact is considered
genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Liberty Lobby, 477 U.S. at 248. The mere existence
of a scintilla of evidence in support of the party's
position is insufficient to establish a genuine dispute;
there must be evidence on which a jury could reasonably find
for the party. See Id. at 252.
Upon reconsideration, the court denies Wells Fargo's
prior motion for summary judgement because the Nevada Supreme
Court held that the notice provision ...