United States District Court, D. Nevada
BANK OF AMERICA, N.A., successor by merger to BAC HOME LOANS SERVICING, LP fka COUNTRYWIDE HOME LOANS SERVICING, LP and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiffs,
SANTA BARBARA HOMEOWNERS ASSOCIATION; SFR INVESTMENTS POOL 1, LLC; ABSOLUTE COLLECTION SERVICES, LLC, Defendants. AND RELATED CASES
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
case focuses on whether Plaintiffs Bank of America, N.A
(“BANA”) and the Federal National Mortgage
Association (“Fannie Mae”) own a property
interest that is entitled to protection under 12 U.S.C.
§ 4617(j)(3) (“Federal Foreclosure Bar”).
Plaintiffs argue that Fannie Mae's first deed of trust
could not have been extinguished as the Federal Foreclosure
Bar preempts the Nevada HOA foreclosure statute and that the
Ninth Circuit has held that Fannie Mae's property
interest survives an HOA sale when a servicer or nominee
acting on behalf of Fannie Mae appears as record deed of
trust beneficiary. (ECF No. 84.)
February 11, 2019, the Court issued a minute order granting
the parties' stipulation to extend the time to file the
necessary replies to the parties' respective motions for
summary judgment pending in this case (ECF Nos. 84, 119,
121). (ECF No. 129.) In ECF No. 128, the parties particularly
stipulate to extend the deadline for filing their related
replies until 5 days after the Court rules on ECF No. 187.
There are five other pending discovery related motions that
are either related to ECF No. 187 or should be resolved prior
to the Court's consideration of the pending motions for
summary judgment (ECF Nos. 85, 86, 88, 90, 101). ECF No. 187
and these other five motions are collectively referred to as
the Non-MSJ Motions. The Court rules on each of these Non-MSJ
motions as follow:
ECF No. 85
Defendant SFR Investments Pool I, LLC's
(“SFR”) motion to strike (ECF No. 85) is denied.
SFR's contention that Plaintiffs' motion for summary
judgment should be stricken because Plaintiffs'
supporting evidence was produced after the close of discovery
fails in light of the parties' prior submitted joint
status report to the Court, setting a new discovery deadline
for November 16, 2018. (ECF Nos. 78, 79.) The Court viewed
the status report and implicitly accepted the new discovery
deadline per its minute order lifting the stay of the case.
(ECF No. 82; see also ECF No. 117 at 2 (providing
that “unless the Court agrees that the parties'
joint status report reset the discovery deadlines without a
new scheduling order, SFR's Countermotion to strike
should be granted”).)
ECF No. 86
SFR's alternative motion for relief under Fed.R.Civ.P.
56(d) (ECF No. 86) is denied. The crux of this motion is that
SFR seeks further discovery, including to depose Fannie
Mae's Assistant Vice President and declarant Graham Babin
(see ECF No. 84-7) for the purpose of
“discern[ing] if his conjecture about the meaning of
the computer records he testified from is actually supported
by those records.” (See, e.g., ECF No. 86 at
11.) SFR also seeks to obtain discovery on facts SFR claims
Plaintiffs must establish to invoke the Federal Foreclosure
Bar (ECF No. 86 at 23). The latter again focuses on
Babin's declaration and underlying documents. SFR further
contests the admissibility and relevance of FHFA's
Statement on Super-Priority Lien Foreclosures
(“FHFA's Statement”) and Fannie Mae's
servicing guide (ECF Nos. 84-8, 84-9) and insists additional
discovery is needed to challenge Fannie Mae's ownership
of the Loan/Note, the alleged existence of a trust-going to
securitization of the Loan and Plaintiffs' Article III
and prudential standing. (ECF No. 86 at 23-24.)
extent SFR's motion for Rule 56 (d) relief is connected
to its position that certain evidence was undisclosed prior
to the close of discovery, the argument is moot in light of
the Court's finding that discovery was extended until
November 16, 2018-after ECF No. 86 and accompanying reply
(ECF No. 118) were filed. The gist of the SFR's motion is
otherwise that discovery is needed beyond the public records
in this case to establish that Fannie Mae owned the Loan at
the time of the HOA Sale and has a servicing relationship
with the beneficiaries of record. (See, e.g., ECF
No. 118 at 5.) Said differently, SFR argues that it cannot
respond to Plaintiffs' motion for summary judgment
without additional discovery into the nature and extent of
claimed property interests.
the evidence of Babin's declaration, Fannie Mae's
business records and other documents, such as the FHFA's
Statement and Fannie Mae's servicing guide (ECF Nos.
84-8, 84-9) have repeatedly been found as sufficient evidence
establishing Fannie Mae's property interest for purposes
of the Federal Foreclosure Bar. See Berezovsky v.
Moniz, 869 F.3d 923, 932-33 & n.8 & n.9 (9th
Cir. 2017); Williston Invs. Grp. v. JPMorgan Chase Bank,
NA, 736 Fed.Appx. 168, 169 (9th Cir. 2018) (confirming
that Berezovsky held that an Enterprises business
records and a supporting declaration are
“sufficient” to show an Enterprise's property
interest for purposes of summary judgment); see also U.S.
Bank Home Mortg. v. Jensen, No. 3:17-cv-00603-MMD-VPC,
2018 WL 3078753 (D. Nev. June 20, 2018) & Springland
Vill. Homeowners Ass'n v. Pearman, No.
3:16-cv-00423-MMD-WGC, 2018 WL 357853 (D. Nev. Jan. 10, 2018)
(granting summary judgment under the Federal Foreclosure Bar
based on the same kind of evidence Fannie Mae presents here);
see Nationstar Mortg. LLC v. East Trop 2073 Trust,
No. 2:17-cv-01769-MMD-CWH, 2019 WL 469897 (D. Nev. Feb. 6,
2019) & Nationstar Mortg. LLC v. Stonefield
Homeowners Ass'n, No: 3:17-cv-00627-MMD-WGC, 2019 WL
2062952 (D. Nev. May 9, 2019) (deciding issues of standing,
note ownership-based on securitization and what the note
reflects, and providing that FHFA's Statement and Fannie
Mae's servicing guide were judicially noticeable
documents); see also USROF IV Legal Title 2015-1 by U.S.
Bank Nat'l Ass'n v. White Lake Ranch Ass'n,
No. 3:15-cv-00477-MMD-CBC, 2019 WL 539037, at *3 (D. Nev.
Feb. 11, 2019) (also addressing essentially the same standing
and note ownership arguments SFR raises here).
short, the Court is convinced no further discovery is
ECF Nos. 87 and 89
Relatedly, Fannie Mae's motion and BANA's joinder to
stay discovery until the Court rules on Plaintiffs'
motion for summary judgment based on the Federal Foreclosure
Bar (ECF Nos. 87, 89) are granted.
have broad discretionary power to control discovery. See
Little v. City of Seattle, 863 F.2d 681, 685 (9th
Cir.1988). In deciding whether to grant a stay of discovery
the Court is guided by Fed.R.Civ.P. 1's objectives of
ensuring “just, speedy, and inexpensive determination
of every action.” Kor Media Group, LLC v.
Green, 294 F.R.D. 579, 581 (D. Nev. 2013) (internal
quotation and citation omitted). The Court may grant a motion
to stay where “(1) the pending motion is potentially
dispositive; (2) the potentially dispositive motion can be
decided without additional discovery; and (3) the Court has
taken a “preliminary peek” at the merits of the
potentially dispositive motion and is convinced that the
plaintiff will be unable to state a claim for relief.”
conducting a “preliminary peek” of the
parties' motions for summary judgment and based on its
rulings on SFR's motions to strike and for Rule 56(d)
relief the Court finds that a stay of discovery is warranted.
The Court agrees with Plaintiffs that further discovery is
unnecessary to determine whether Fannie Mae had a property
interest at the time of the HOA Sale (ECF No. 105 at 2)
because, as noted, the Ninth Circuit has already determined
that the type of documentary evidence and declaration Fannie