United States District Court, D. Nevada
NATIONSTAR MORTGAGE LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiffs,
RESIDENTIAL LAND CORPORATION OF NEVADA; LVDG LLC SERIES 107; THE MEADOWS HOMEOWNERS ASSOCIATION, Defendants.
R. HICKS UNITED STATES DISTRICT JUDGE
Nationstar Mortgage LLC (“Nationstar”) and
Federal National Mortgage Association (“Fannie
Mae”) move this court for summary judgment pursuant to
the Federal Foreclosure Bar, 12 U.S.C. 4617(j)(3). ECF No.
31. Defendants Residential Land Corporation of Nevada
(“RLCON”) and LVDG LLC Series 107
(“LVDG”) opposed the motion (ECF No. 39) to which
plaintiffs replied (ECF No. 40). Under the federal
foreclosure bar and Berezovsky v. Moniz, Fannie
Mae's interest in the at-issue property cannot be
extinguished by a nonjudicial foreclosure without the consent
of 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 now grants
plaintiffs' motion for summary judgment.
matter arises from a nonjudicial foreclosure sale on real
property located at 1207 Tule Drive, Reno Nevada, 89511
(“the property”), conducted under Nevada Revised
Statute (“NRS”) § 116.3116 et. seq.
ECF Nos. 32-5; 39-6. Jose D. Gomez and Betty V. Gomez
(“borrowers”) acquired title to and ownership of
the property through a Grant, Bargain and Sale Deed, recorded
in the Washoe County Recorder's Office on February 19,
2003. ECF No. 1 ¶ 22. On May 3, 2004, the borrowers
obtained a loan and executed a deed of trust securing
repayment, designating Wells Fargo Home Mortgage,
as the lender and beneficiary and United Title of Nevada as
Trustee, in the amount of $339, 150.00. Id.
¶¶ 24-25; ECF Nos. 32-3; 39-1. The deed of trust
was recorded in the Washoe County Recorder's Office on
May 7, 2004. ECF No. 1 ¶ 26; ECF Nos. 32-3; 39-1. The
property sits in Meadows Homeowners Association (“the
HOA”) and is therefore subject to HOA assessments. ECF
No. 39 at 3. Plaintiffs alleged and argue that Fannie Mae
acquired ownership of the loan on May 19, 2004, and retained
Wells Fargo to act as servicer of the loan. ECF No. 1
¶¶ 29, 32; ECF Nos. 31; 32-4 ¶4.
the borrowers failed to pay the HOA assessments that came
due, the HOA, through its agent, recorded a Notice of
Delinquent Assessment (Lien) against the property on July 5,
2011. ECF No. 1 ¶ 41; ECF Nos. 32-8; 39-2. On September
23, 2011, the HOA recorded a Notice of Default and Election
to Sell Under Homeowners Association Lien. ECF No. 32-9;
one and a half years later, on February 27, 2013, Wells Fargo
recorded a Notice of Breach and Default and of Election to
Cause Sale of Real Property under Deed of Trust in the Washoe
County Recorder's Office on the May 5, 2004 deed of
trust. ECF No. 39-4. Along with this Notice, Amalia Nix, the
Vice President of Loan Documentation for Wells Fargo,
submitted an Affidavit of Authority in Support of Notice of
Default and Election to Sell. Id. This affidavit
provided that Wells Fargo was the current holder,
beneficiary, and servicer of the loan. Id. This
affidavit also provided that Fannie Mae was a prior
beneficiary; however, the field pertaining to date reads
“Not Applicable.” Id.
then recorded a Notice of Trustee's Sale on March 13,
2013. ECF Nos. 32-10; 39-5. At the nonjudicial foreclosure
sale held on April 4, 2013, LVDG purchased the property for
$17, 500; a Trustee's Deed Upon Sale was then recorded on
May 2, 2013. ECF Nos. 32-5; 39-6. The property was
subsequently conveyed to RLCON by Quitclaim Deed, recorded
March 7, 2014. ECF Nos. 32-11; 39-7. Wells Fargo and Freddie
Mac argue that at no time did the FHFA consent to this
foreclosure. ECF No. 1 ¶ 47; ECF No. 31 at 8.
Fargo initiated this matter on May 22, 2017, asserting eight
causes of action and seeking declaratory relief and quiet
title. ECF No. 1. On October 23, 2017, Wells Fargo assigned
the Deed of Trust to Nationstar, and it was recorded in the
Washoe County Recorder's Office. ECF Nos. 32-12; 39-8.
Per stipulation, on February 26, 2018, Nationstar was
substituted for Wells Fargo and the caption for this action
was amended. ECF No. 24. Also per stipulation, on April 3,
2018, the HOA was dismissed without prejudice. ECF No. 26.
instant motion, filed on September 20, 2018, by Nationstar
and Fannie Mae, moves this court for summary judgment based
on the federal foreclosure bar. ECF No. 31. RLCON and LVDG
opposed the motion (ECF No. 39) and plaintiffs replied (ECF
No. 40). The court's order as to the pending dispositive
motion now follows.
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 ...