fhlmc/freddie Mac v. Sfr Investments Pool 1, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FEDERAL HOME LOAN MORTGAGE No. 16-15962
CORPORATION; FEDERAL HOUSING
FINANCE AGENCY, As Conservator D.C. No.
of Freddie Mac; FEDERAL NATIONAL 2:15-cv-01338-
MORTGAGE ASSOCIATION, GMN-CWH
Plaintiffs-Appellees,

v. OPINION

SFR INVESTMENTS POOL 1, LLC,
Defendant-Appellant,

and

NEVADA NEW BUILDS, LLC; LAS
VEGAS DEVELOPMENT GROUP, LLC,
Defendants.

Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding

Argued and Submitted April 11, 2018
San Francisco, California

Filed June 25, 2018
2 FHLMC V. SFR INVESTMENTS POOL 1

Before: M. Margaret McKeown and Kim McLane
Wardlaw, Circuit Judges, and Gary S. Katzmann, * Judge.

Opinion by Judge Katzmann

SUMMARY **

Housing and Economic Recovery Act

The panel affirmed the district court’s summary
judgment in favor of the Federal National Mortgage
Association (“Fannie Mae”), the Federal Home Loan
Mortgage Corporation (“Freddie Mac”), and the Federal
Housing Finance Agency (“FHFA”) in their action seeking
declaratory relief regarding foreclosures under Nev. Rev.
Stat. § 116.3116, which grants homeowners’ associations
superpriority liens on real property under certain
circumstances.

Nevada homeowners’ associations (“HOAs”) sold five
properties to defendant SFR Investments Pool 1, Inc.,
following foreclosures on liens for unpaid HOA dues.
Fannie Mae and Freddie Mac had purchased mortgage loans
on the properties and had securitized the loans. Fannie Mae
and Freddie Mac had subsequently been placed under the
conservatorship of FHFA pursuant to the Housing and
Economic Recovery Act of 2008 (“HERA”). FHFA did not

*
The Honorable Gary S. Katzmann, Judge for the United States
Court of International Trade, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 FHLMC V. SFR INVESTMENTS POOL 1 3

consent to the HOA foreclosure sales of the properties to
SFR.

The Nevada Foreclosure Statute, § 116.3116, provides
that foreclosure on an HOA superpriority lien quashes all
other property liens or interests recorded after the
recordation of the covenants, conditions, and restrictions
attached to the property’s title.

The panel held that under HERA, FHFA succeeded to
Fannie Mae and Freddie Mac’s securitized mortgage loans,
which were held in trust, upon inception of conservatorship.
Accordingly, FHFA, as conservator, possessed enforceable
interests in the properties at the time of the HOA foreclosure
sales. The Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3),
therefore applied. The Federal Foreclosure Bar, a part of
HERA, provides that the property of an entity in FHFA
conservatorship is not subject to foreclosure without the
consent of FHFA.

The panel held that under Berezovsky v. Moniz, 869 F.3d
923 (9th Cir. 2017), the Federal Foreclosure Bar preempts
the Nevada Foreclosure Statute to the extent that an HOA’s
foreclosure of its superpriority lien cannot extinguish a
property interest of Fannie Mae or Freddie Mac while under
FHFA conservatorship. Accordingly, the HOA foreclosure
sales on the properties did not extinguish Fannie Mae and
Freddie Mac’s interests in the properties and thus did not
convey the properties free and clear of their deeds of trust to
SFR.

The panel further held that FHFA did not deprive SFR of
a property right without due process because (1) Nevada law
did not provide SFR with a constitutionally protected
property interest in purchasing the houses with free and clear
4 FHLMC V. SFR INVESTMENTS POOL 1

title, and (2) assuming a protected property interest, SFR was
not deprived of that interest without adequate procedural
protections.

COUNSEL

Karen L. Hanks (argued), Jesse N. Panoff, Diana Cline
Ebron, Jacqueline A. Gilbert, and Howard C. Kim, Kim
Gilbert Ebron, Las Vegas, Nevada; for Defendant-
Appellant.

Michael A.F. Johnson (argued), Matthew J. Oster, Elliott C.
Mogul, Dirk C. Phillips, Asim Varma, and Howard N.
Cayne, Arnold & Porter Kaye Scholer LLP, Washington,
D.C.; John D. Tennert III and Leslie Bryan Hart, Fennemore
Craig P.C., Reno, Nevada; Michael W. Stark, Tennille J.
Checkovich, and John H. Maddock III, McGuireWoods
LLP, Richmond, Virginia; Robin E. Perkins and Amy
Sorenson, Snell & Wilmer, Salt Lake City, Utah; for
Plaintiffs-Appellees.
 FHLMC V. SFR INVESTMENTS POOL 1 5

OPINION

KATZMANN, Judge:

The economic downturn following the subprime
mortgage crisis of 2007 pushed to near default two
government-sponsored enterprises that were heavily
exposed to the housing market. The Federal National
Mortgage Association (“Fannie Mae”) and the Federal
Home Loan Mortgage Corporation (“Freddie Mac,”
collectively, with Fannie Mae, “the Enterprises”) suffered a
severe drop in the value of their mortgage portfolios, which
previously comprised nearly half of the United States
mortgage market and totaled approximately $5 trillion. In
response, the United States government deployed numerous
measures to keep the Enterprises afloat and combat further
systemic breakdown in the financial and housing markets.
Among those was Congress’ passage of the Housing and
Economic Recovery Act of 2008 (“HERA”), Pub. L. No.
110-289, 122 Stat. 2654 (codified as amended at 12 U.S.C.
§ 4511 et seq.). HERA established an independent agency
known as the Federal Housing Finance Agency (“FHFA” or
“the Agency”) to be the regulator of the Enterprises and the
twelve Federal Home Loan Banks. Exercising a power
provided by that statute, on September 6, 2008, FHFA’s
Director placed the Enterprises under the Agency’s
conservatorship.

This case concerns several provisions of HERA, and
poses the following questions: can FHFA, as conservator,
“succeed to” ownership of the mortgages that were
securitized by the Enterprises pursuant to 12 U.S.C.
§ 4617(b)(2)(A), when those mortgages are also “held in
trust”? Does 12 U.S.C. § 4617(j)(3) (“Federal Foreclosure
Bar”), which provides that property of an entity in FHFA
conservatorship is not “subject to . . . foreclosure . . . without
6 FHLMC V. SFR INVESTMENTS POOL 1

the consent of the Agency,” preempt a Nevada statute, Nev.
Rev. Stat. § 116.3116 (“Nevada Foreclosure Statute”), that
grants homeowners’ associations superpriority liens on real
property under certain circumstances? Further, if FHFA has
not consented to a non-judicial foreclosure sale of a property
in which an entity in conservatorship holds an interest, and
seeks quiet title in that property subsequent to the sale, has
FHFA thereby deprived the property buyer of due process?

Defendant SFR Investments Pool 1, Inc. (“SFR”) owns
several pieces of real property in Nevada. Five of them (“the
Properties”) are at issue in this case. The Properties were
sold to SFR by Nevada homeowners’ associations (“HOAs”)
following foreclosures on liens for unpaid association dues.
Plaintiffs FHFA and the Enterprises sued SFR in the United
States District Court for the District of Nevada, seeking a
declaration that “12 U.S.C. § 4617(j)(3) preempts any
Nevada law that would permit a foreclosure on a superiority
lien to extinguish a property interest of Fannie Mae or
Freddie Mac while they are under FHFA’s conservatorship,”
that “the HOA Sale did not extinguish the Enterprises’
interest in the Properties and thus did not convey the
Properties free and clear to any Defendants,” and that “title
to the Properties is quieted in either Fannie Mae’s or Freddie
Mac’s favor insofar as the Defendants’ interest, if any, is
subject to the interest of the Enterprises or, if applicable, the
interest of the Enterprises’ successors.” The district court
granted Plaintiffs’ Motion for Summary Judgment, and
denied SFR’s Motion to Dismiss. SFR timely appealed. We
affirm.

FACTUAL AND PROCEDURAL HISTORY

The facts relevant to the instant proceeding were recited
by the district court in its opinion, and are not challenged by
either party.
 FHLMC V. SFR INVESTMENTS POOL 1 7

The Properties and the Mortgage Loans they Secure

Four of the Properties are located in Las Vegas, Nevada,
and the fifth is located in Henderson, Nevada. Each of the
Properties is located in a different HOA community. The
Properties’ original owners had mortgage loans on their
respective homes. Those loans were secured by the homes.
Either Fannie Mae or Freddie Mac purchased the mortgage
loans in 2006, and the respective Enterprise has retained
ownership since. Each loan is evidenced by a promissory
note and a deed of trust, both of which came into the
respective Enterprise’s possession upon purchase of the
mortgage loan.

The Enterprises and Securitized Mortgage Loans

“Congress created Fannie Mae (the Federal National
Mortgage Association) and Freddie Mac (the Federal Home
Loan Mortgage Corporation) to foster the secondary market
for home mortgages.” City of Spokane v. Fed. Nat. Mortg.
Ass’n, 775 F.3d 1113, 1114 (9th Cir. 2014). The Enterprises
do not themselves originate loans in the primary market, and
their charters permit only secondary market functions. See
Federal National Mortgage Association Charter Act, 68 Stat.
612 (1954) (codified as amended at 12 U.S.C. § 1716 et seq.)
(reestablishing Fannie Mae as a mixed public-private
corporation); Emergency Home Finance Act of 1970, Pub.
L. No. 91-351, 84 Stat. 450 (codified as amended at
12 U.S.C. § 1451 et seq.) (chartering Freddie Mac); see
generally Perry Capital LLC v. Mnuchin, 864 F.3d 591,
599–601 (D.C. Cir. 2017) (explaining history and purpose of
the Enterprises); Lightfoot v. Cendant Mortg. Corp., 137 S.
Ct. 553 (2017) (providing history of Fannie Mae’s evolution
from public agency to private government-sponsored entity).
Essentially, the Enterprises exist in order to facilitate
liquidity in the mortgage loan market, and thereby distribute
8 FHLMC V. SFR INVESTMENTS POOL 1

the investment capital available for residential mortgage
financing. City of Spokane, 775 F.3d at 1116; 12 U.S.C.
§§ 1451, 1716; see Fed. Hous. Fin. Agency for Fed. Nat’l
Mortg. Ass’n v. Nomura Holding Am., Inc., 873 F.3d 85, 105
(2d Cir. 2017).

In the secondary mortgage market, existing mortgage
loans are bought, sold, and securitized. Perry Capital,
864 F.3d at 599. The Enterprises thus continually purchase
residential mortgage loans secured by property throughout
the nation, and securitize those mortgage loans. Id.; see
Lightfoot, 137 S. Ct. at 557.

To securitize mortgage loans, and thereby create
mortgage-backed securities, the Enterprises place the
purchased loans they own into pools and issue certificates
entitling the certificate-holders to a contractually specified
share of payments borrowers make. Herron v. Fannie Mae,
861 F.3d 160, 163 (D.C. Cir. 2017); Nomura Holding,
873 F.3d at 105. The Enterprises customarily perform this
securitization by placing mortgage loans into common-law
trusts, of which the relevant Enterprise is the trustee.

Passage of HERA and Relevant Provisions

From 2007 through 2008, housing prices fell rapidly as
the subprime mortgage and financial crises developed.
Meanwhile, interest rates on adjustable-rate mortgages rose.
These factors, along with an overabundance of subprime
mortgage lending and shoddy underwriting practices,
resulted in a glut of homeowners who could not make their
mortgage loan payments. Defaulting on mortgage loans thus
became an attractive option for many homeowners. Each
default and resulting foreclosure sale depressed the prices of
nearby homes, promoting a vicious downward spiral in the
 FHLMC V. SFR INVESTMENTS POOL 1 9

housing market. See Nomura Holding, 873 F.3d at 106–08
(providing a history of the housing and financial crises).

During the 2000s, the Enterprises, as major players in the
United States housing market, purchased these risky
mortgage loans, and thus exposed themselves to the eventual
downturn in the housing market. Herron, 861 F.3d at 163.
Overall, in the lead up to 2008, the Enterprises’ mortgage
portfolios had a combined value of $5 trillion and accounted
for nearly half of the United States mortgage market. Perry
Capital, 864 F.3d at 599. The Enterprises subsequently
suffered a severe drop in the value of their mortgage
portfolios and were pushed to the brink of default. Id.;
Herron, 861 F.3d at 163.

As noted, Congress, concerned for the Enterprises’
financial condition and that their default would imperil the
ailing national economy, passed HERA, which became law
in July 2008. See Nomura Holding, 873 F.3d at 108; Perry
Capital, 864 F.3d at 599. Several HERA subsections are
immediate to the issues in this case. HERA established
FHFA as the Enterprises’ regulator under § 4511(a)–(c).
Section 4617(a)(2) authorizes FHFA to place the Enterprises
into conservatorship “for the purpose of reorganizing,
rehabilitating, or winding up [their] affairs.”

Section 4617(b) covers “Powers and duties of the
Agency as conservator or receiver.” Section 4617(b)(2)
refers to “General powers.” Relevant here, § 4617(b)(2)(A)
provides that FHFA “shall, as conservator or receiver, and
by operation of law, immediately succeed to . . . all rights,
titles, powers, and privileges of the regulated entity . . . with
respect to [its] assets.”

Next, § 4617(b)(19) covers “General exceptions.” As
relevant to the parties’ arguments here, § 4617(b)(19)(B)(i)
10 FHLMC V. SFR INVESTMENTS POOL 1

specifies that “[a]ny mortgage . . . held in trust . . . by a
regulated entity for the benefit of any person other than the
regulated entity shall not be available to satisfy the claims of
creditors generally, except that nothing in this clause shall
be construed to expand or otherwise affect the authority of
any regulated entity.” The following provision,
§ 4617(b)(19)(B)(ii), explains that mortgages held in trust
“shall be held by the conservator . . . for the beneficial
owners of such mortgage . . . in accordance with the terms
of the agreement creating such trust.” Next,
§ 4617(b)(19)(B)(iii) states that “[t]he liability of the
conservator . . . for damages shall, in the case of any
contingent or unliquidated claim relating to the mortgages
held in trust, be estimated in accordance with the regulations
of the [FHFA] Director.”

Finally, § 4617(j) covers “Other Agency exemptions.”
Specifically, the Federal Foreclosure Bar, § 4617(j)(3), titled
“Property protection,” states that “No property of the
Agency shall be subject to levy, attachment, garnishment,
foreclosure, or sale without the consent of the Agency, nor
shall any involuntary lien attach to the property of the
Agency.”

In September 2008, as noted, FHFA’s Director placed
Fannie Mae and Freddie Mac into conservatorship, pursuant
to § 4617(a)(2), where they remain today.

The Nevada Foreclosure Statute and the HOA
Foreclosure Sales

The Nevada Foreclosure Statute gives an HOA a
superpriority lien on a homeowner’s property for a limited
 FHLMC V. SFR INVESTMENTS POOL 1 11

amount of unpaid HOA dues. See NRS § 116.3116(2). 1
Under this section, a superpriority lien “is prior to all other
liens and encumbrances” and “all [other] security interests,”
with certain exceptions and guidelines. Id. at (2)–(3).
Foreclosure on a superpriority lien quashes all other property
liens or interests recorded after the recordation of the
Covenants, Conditions, and Restrictions attached to the
property’s title. Berezovsky v. Moniz, 869 F.3d 923, 925 (9th
Cir. 2017). In the case before us, the original owners of the
Properties became delinquent on their homeowners’
associations’ dues. The HOAs thus imposed liens on their

1
NRS § 116.3116(2) provides that

A lien under this section is prior to all other liens and
encumbrances on a unit except:

(a) Liens and encumbrances recorded before the
recordation of the declaration and, in a
cooperative, liens and encumbrances which the
association creates, assumes or takes subject to;

(b) A first security interest on the unit recorded
before the date on which the assessment sought to
be enforced became delinquent or, in a
cooperative, the first security interest
encumbering only the unit’s owner’s interest and
perfected before the date on which the assessment
sought to be enforced became delinquent, except
that a lien under this section is prior to a security
interest described in this paragraph to the extent
set forth in subsection 3;

(c) Liens for real estate taxes and other
governmental assessments or charges against the
unit or cooperative; and

(d) Liens for any fee or charge levied pursuant to
subsection 1 of NRS 444.520.
12 FHLMC V. SFR INVESTMENTS POOL 1

respective Properties for the outstanding balance of HOA
dues, and ultimately foreclosed upon the liens on the
Properties. SFR purchased each of the Properties at an HOA
foreclosure sale in either 2012, 2013, or 2014.

Procedural History

FHFA and the Enterprises asserted claims against SFR
seeking declaratory relief, quiet title, and a permanent
injunction, and moved for summary judgment on December
18, 2015, after having filed an amended complaint on
October 1, 2015. In lieu of filing an answer to FHFA’s
complaint, SFR moved to dismiss on October 23, 2015. On
May 2, 2016, the district court denied SFR’s motion to
dismiss, and granted FHFA’s motion for summary
judgment. In granting summary judgment, the district court
ruled that

[The Federal Foreclosure Bar] preempts [the
Nevada Foreclosure Statute, NRS]
§ 116.3116 to the extent that a[n HOA’s]
foreclosure of its super-priority lien cannot
extinguish a property interest of [the
Enterprises] while those entities are under
FHFA’s conservatorship. Accordingly, the
HOA foreclosure sales on the Properties did
not extinguish Fannie Mae’s or Freddie
Mac’s interests in the Properties and thus did
not convey the Properties free and clear of
their deeds of trusts to SFR. Moreover, title
to the Properties is quieted in either Fannie
Mae’s or Freddie Mac’s favor insofar as
SFR’s interest, if any, is subject to the interest
of Fannie Mae or Freddie Mac or, if
 FHLMC V. SFR INVESTMENTS POOL 1 13

applicable, the interest of Fannie Mae’s or
Freddie Mac’s successors. 2

Judgment was entered May 4, 2016. SFR timely
appealed on May 27, 2016.

STANDARDS OF REVIEW

We review a district court’s grant of summary judgment
de novo and apply the same standard of review as the district
court under Federal Rule of Civil Procedure 56. Flores v.
City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016), cert.
denied sub nom. City of San Gabriel, Cal. v. Flores, 137 S.
Ct. 2117 (2017). Under Rule 56, a court “shall grant
summary judgment if the movant shows that 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). The district court’s denial of a motion to dismiss is

2
The district court premised much of its decision in this case on the
reasoning of its prior opinion, Skylights LLC v. Byron, 112 F. Supp. 3d
1145 (D. Nev. 2015). The court noted that in Skylights, it held the plain
language of § 4617(j)(3) prohibits property of FHFA from being subject
to foreclosure without its consent. See Skylights, 112 F. Supp. 3d at
1159. In the instant matter, the district court found that FHFA, as
conservator for the Enterprises, held an interest in the Properties prior to
the HOA foreclosure sales. Accordingly, the court determined that the
Federal Foreclosure Bar, § 4617(j)(3), “prevents the HOA’s foreclosure
on the Properties from extinguishing the deeds of trust in the Properties.”
As to SFR’s motion to dismiss, which the district court characterized as
“rais[ing] many objections to the application of section 4617(j)(3), which
primarily relate to due process violations,” the court likewise referred to
Skylights, noting that in that opinion, it had “address[ed] many objections
related to, inter alia, preemption and due process violations.” The district
court found “no reason to overturn its prior holding in Skylights,” and
denied SFR’s motion to dismiss.
14 FHLMC V. SFR INVESTMENTS POOL 1

also reviewed de novo. Doe v. United States, 419 F.3d 1058,
1062 (9th Cir. 2005).

DISCUSSION

A. Whether FHFA can “Succeed to” Mortgages that
were “Held in Trust” by an Enterprise.

HERA mandates that FHFA shall “succeed to”
Enterprise assets. 12 U.S.C. § 4617(b)(2)(A)(i). SFR argues
that FHFA did not “succeed to” the mortgages at issue in this
case because they were instead “held in trust” by FHFA
pursuant to § 4617(b)(19)(B). SFR contends that the
“General Exceptions” found under § 4617(b)(19) apply
directly to the “General Powers” found under § 4617(b)(2),
because both are labeled “General” and are structurally
linked. SFR further argues that FHFA cannot “succeed to”
“Mortgages held in trust,” because Congress omitted the
phrase “shall succeed to” from 4617(b)(19)(B), the provision
covering “Mortgages held in trust,” and instead used the
phrase “shall be held by.” Much of SFR’s remaining
argument restates this statutory construction and emphasizes
the dominance of the verb “held” in § 4617(b)(19)(B)(i)–
(iii), while emphasizing the absence of the phraseology
“succeed to.” In sum, SFR argues that FHFA did not, and
could not, “succeed to” the mortgages at issue here, and thus
the Federal Foreclosure Bar, § 4617(j)(3), neither applies nor
preempts the Nevada Foreclosure Statute. 3

3
An unpublished opinion postdating the district court’s proceedings
in this case squarely addressed this issue. See Elmer v. JPMorgan Chase
& Co., 707 F. App’x 426, 428–29 (9th Cir. 2017) (unpublished). Amicus
curiae argued that any mortgage held in trust pursuant to
§ 4617(b)(19)(B) is not Freddie Mac’s asset, and therefore does not
constitute an interest to which FHFA succeeded. Id. Though noting that
 FHLMC V. SFR INVESTMENTS POOL 1 15

We conclude that SFR’s textual arguments lack merit.
As noted supra, FHFA’s right of succession appears under
§ 4617(b)(2), “General Powers,” in § 4617(b)(2)(A)(i):
“The Agency shall, as conservator or receiver, and by
operation of law, immediately succeed to all rights, titles,
powers, and privileges of the regulated entity, and of any
stockholder, officer, or director of such regulated entity with
respect to the regulated entity and the assets of the regulated
entity[.]” Section 4617(b)(19) contains “General
Exceptions,” and § 4617(b)(19)(B) covers “Mortgages held
in trust.” Section 4617(b)(19)(B)(i) specifies that “[a]ny
mortgage . . . held in trust . . . by a regulated entity for the
benefit of any person other than the regulated entity shall not
be available to satisfy the claims of creditors generally.”
Subsection (ii) explains that mortgages held in trust “shall be
held by the conservator . . . for the beneficial owners of such
mortgage . . . in accordance with the terms of the agreement
creating such trust.” 12 U.S.C. § 4617(b)(19)(B)(ii). The
following subsection (iii) directs FHFA to “estimate[]” any
“contingent or unliquidated claim relating to the mortgages
held in trust” according to “regulations of the [FHFA]
Director.” Id. § 4617(b)(19)(B)(iii).

The plain text of these provisions does not state or imply
that FHFA may either “succeed to” mortgages or “h[o]ld
[them] in trust,” rather than perform both of these actions in
regard to a securitized mortgage loan. Section
4617(b)(19)(B) nowhere disallows FHFA from

we generally do “not consider on appeal an issue raised only by an
amicus,” United States v. Gementera, 379 F.3d 596, 607 (9th Cir. 2004),
we nevertheless rejected Amicus’ argument, stating: “The plain language
of the section [12 U.S.C. § 4617(b)(19)(B)] cited by [amicus curiae]
prohibits creditors from drawing on assets held in trust to satisfy
creditors’ claims; it does not bar the Agency from succeeding to Freddie
Mac’s interest in the assets.” Elmer, 707 F. App’x at 429.
16 FHLMC V. SFR INVESTMENTS POOL 1

“succeed[ing] to” mortgages held it trust. Subsection (i)
merely contains the general ban on liquidation of securitized
mortgages “held in trust” to satisfy the claims of general
creditors. Meanwhile, subsection (ii) clarifies that FHFA
shall continue to hold and manage those securitized
mortgages for their various beneficial owners pursuant to the
contractual arrangement underlying the relevant
securitization pool, originally established with one of the
Enterprises. This provision offers assurances to purchasers
of mortgage-backed security certificates, who pay a lump
sum in exchange for a certificate representing the right to a
future stream of income from the mortgage loans’ principal
and income payments. See Nomura Holding, 873 F.3d at
100. Subsection (iii) additionally permits FHFA to
promulgate reasonable regulations to cabin the damages
available on claims relating to the securitized mortgages held
in trust. Thus, it is patent that § 4617(b)(19)(B) confers
additional protections upon the Enterprises’ securitized
mortgage loans, which FHFA succeeds to pursuant to
§ 4617(b)(2)(A)(i). See 12 U.S.C. § 4617(b)(19)(B)(i)–(iii).

Since the statutory protection from creditors effected by
§ 4617(b)(19)(B) does not prevent FHFA from
“succeed[ing] to” the Enterprises’ securitized mortgage
loans upon inception of conservatorship, that protection
complements the bar on nonconsensual foreclosure and sale
of FHFA property imposed by the Federal Foreclosure Bar,
§ 4617(j)(3). SFR’s reading necessitates that the
conservator of the Enterprises would not succeed to
securitized mortgage loans that are integral to the
Enterprises’ Congressionally-chartered function. Indeed,
though asserting that Congress’ structural decisions in
drafting HERA evince intent to exempt mortgages held in
trust from succession, SFR fails to articulate why Congress
would make such a decision. By contrast, justifications for
 FHLMC V. SFR INVESTMENTS POOL 1 17

FHFA’s reading are readily apparent. Mortgage-backed
securities are financial instruments central to the
Enterprises’ collective function as secondary mortgage
market-maker. FHFA, as conservator, would normally be
able to liquidate any asset belonging to the Enterprises in
order to fulfill the claims of general creditors. However,
when the Enterprises were placed into conservatorship at the
height of the subprime mortgage crisis, their mortgage
portfolios constituted nearly half of the United States
mortgage market and were freefalling in value. See Perry
Capital, 864 F.3d at 599; see also Herron, 861 F.3d at 163.
Accordingly, Congress provided that the mortgage loans
backing mortgage-backed securities would receive
additional safeguards in order to combat further systemic
breakdown in the American housing market. Thus,
§ 4617(b)(19)(B) prevents FHFA from liquidating those
securitized mortgage loans in order to fulfill the claims of
general creditors, protects certificate holders, and grants
FHFA some control over related damages.

In sum, HERA’s plain text permits FHFA to “succeed
to” securitized mortgage loans, which are held in trust,
pursuant to § 4617(b)(2)(A)(i), and we see no reason to
inject a rule to the contrary into the statute.

B. Whether the Federal Foreclosure Bar Preempts the
Nevada Foreclosure Statute.

SFR contends that the Federal Foreclosure Bar,
12 U.S.C. § 4617(j)(3), does not preempt the Nevada
Foreclosure Statute. First, SFR argues that the Federal
Foreclosure Bar is unconstitutional because it lacks a process
to request consent or an opportunity to contest FHFA’s
decision not to consent to a foreclosure sale. Second, SFR
argues that the Federal Foreclosure Bar does not expressly
displace state law, nor explicitly manifest Congress’ intent
18 FHLMC V. SFR INVESTMENTS POOL 1

to do so. See Valle del Sol, Inc. v. Whiting, 732 F.3d 1006,
1022 (9th Cir. 2013).

SFR’s arguments lack merit. “The Supremacy Clause
unambiguously provides that if there is any conflict between
federal and state law, federal law shall prevail.” Gonzales v.
Raich, 545 U.S. 1, 29 (2005); see U.S. Const. art. VI, cl. 2.
We squarely addressed the preemption issue before us now
in Berezovsky, 869 F.3d at 930, a decision postdating the
district court’s proceedings in this case. In Berezovsky, we
held that “the Federal Foreclosure Bar implicitly
demonstrates a clear intent to preempt Nevada’s
superpriority lien law. . . . As the two statutes impliedly
conflict, the Federal Foreclosure Bar supersedes the Nevada
superpriority lien provision.” 4 869 F.3d at 930–31.

We see no cause to disturb our precedential decision, and
continue to hold that the Federal Foreclosure Bar preempts
the Nevada Foreclosure Statute for the reasons stated
therein.

C. Whether FHFA Violated Due Process.

SFR argues that FHFA deprived SFR of a property right
without due process, in violation of the Fifth Amendment to
the United States Constitution. See U.S. Const. amend. V.
SFR argues this case involves a due process context not
discussed in Skylights, supra n.2, namely, the interplay
between a federal law and property interests recognized by

4
This conclusion was reiterated in Elmer, 707 F. App’x at 427
(unpublished) (“[T]he Federal Foreclosure Bar preempts the Nevada law
to the extent that the Nevada law would permit a foreclosure on a
superpriority lien to extinguish Freddie Mac’s interest, without the
Agency’s consent, while Freddie Mac is under the Agency’s
conservatorship.”), supra n.3.
 FHLMC V. SFR INVESTMENTS POOL 1 19

state law. SFR contends that, within this context, “the
interplay between state and federal law implicates
deprivation, not preemption.” Specifically, SFR asserts that
“Nevada law recognizes the interests that purchasers obtain
at association sales, including free and clear title,” and that
“Nevada Law recognizes SFR’s interests in the five houses.”
SFR argues that FHFA deprived SFR of its interests by
affirmatively determining not to consent to the HOA
foreclosure sales at issue here.

SFR’s arguments lack merit. First, SFR’s assertions that
Nevada law provided it with a constitutionally protected
property interest in purchasing the houses with free and clear
title are incorrect. Second, assuming arguendo SFR
possessed a protected property interest, it was not deprived
of that interest without adequate procedural protections.

1. The Existence of a Constitutionally Protected
Property Interest.

“A procedural due process claim has two distinct
elements: (1) a deprivation of a constitutionally protected
liberty or property interest, and (2) a denial of adequate
procedural protections.” Brewster v. Bd. of Educ. of
Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir.
1998). Protected property interests derive from “an
independent source such as state law—rules or
understandings that secure certain benefits and that support
claims of entitlement to those benefits.” Thornton v. City of
St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005) (quoting Bd.
of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972)). However, “[t]o have a property interest in a benefit,
a person clearly must have more than an abstract need or
desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim
of entitlement to it.” Roth, 408 U.S. at 577. Thus, “[t]he
20 FHLMC V. SFR INVESTMENTS POOL 1

property interests that due process protects extend beyond
tangible property and include anything to which a plaintiff
has a ‘legitimate claim of entitlement.’” Nozzi v. Hous. Auth.
of City of Los Angeles, 806 F.3d 1178, 1191 (9th Cir. 2015),
as amended on denial of reh’g and reh’g en banc (Jan. 29,
2016) (quoting Roth, 408 U.S. at 576–77). Further, “[a]
legitimate claim of entitlement is ‘determined largely by the
language of the statute and the extent to which the
entitlement is couched in mandatory terms.’” Johnson v.
Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1030 (9th
Cir. 2010) (quoting Wedges/Ledges of Cal., Inc. v. Phoenix,
24 F.3d 56, 62 (9th Cir. 1994)). “A mere ‘unilateral
expectation’ of a benefit or privilege is insufficient[.]”
Nunez v. City of Los Angeles, 147 F.3d 867, 872 (9th Cir.
1998) (quoting Roth, 408 U.S. at 577).

SFR’s claimed property interest in purchasing the
Properties at the HOA foreclosure sales with free and clear
title is unfounded. First, the federal preemption at work in
this case forecloses that purported interest prior to its
vestment in SFR. As stated supra, in Berezovsky, 869 F.3d
at 930–31, we held that “the Federal Foreclosure Bar
implicitly demonstrates a clear intent to preempt Nevada’s
superpriority lien law. . . . As the two statutes impliedly
conflict, the Federal Foreclosure Bar supersedes the Nevada
superpriority lien provision.” Here, because FHFA did not
consent to the HOA foreclosure sales, those sales were not
in accordance with law. Thus, the Nevada Foreclosure
Statute does not function to provide SFR with a
constitutionally protected property interest in purchasing the
Properties with free and clear title. 5

5
Citing Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296,
316 (D.C. Cir. 2014), SFR argues that “state law determines whether
 FHLMC V. SFR INVESTMENTS POOL 1 21

‘property’ exists. If state law recognizes an interest, then due process is
triggered.” SFR’s citation to Ralls is inapposite. Quite apart from the
fact that Ralls comes from the D.C. Circuit and is not binding here, it is
readily distinguishable, and not analogous to the case before us.
Substantively, Ralls presents a scenario wherein it was undisputed that
appellant obtained a protected property interest under Oregon state
law—specifically, ownership in certain companies and their tangible
assets, including local easements permitting construction of wind
turbines, on an Oregon farm. 758 F.3d at 315 (“[T]here can be no doubt
that Ralls’s interests in the Project Companies and their assets constitute
‘property’ under Oregon law.”). The D.C. Circuit agreed with this
conclusion of the district court. Id. Following appellant’s purchase of
that property, the President of the United States cancelled the transaction
on the authority of the Defense Protection Act of 1950 (“DPA”), which
provides that the President may “take such action for such time as the
President considers appropriate to suspend or prohibit any covered
transaction that threatens to impair the national security of the United
States.” 50 U.S.C. § 4565(d)(1) (originally codified as amended at
50 U.S.C. app. § 2170(d)(1)), quoted in Ralls, 758 F.3d at 303.

The Circuit Court reversed the district court’s legal conclusion that
appellant’s state law property interests were not constitutionally
protected due to a federal contingency in the form of the DPA. Instead,
the D.C. Circuit determined, “[t]here is no contingency built into the
state law from which [appellant’s] property interests derive and to which
interests due process protections traditionally apply.” 758 F.3d at 316–
17 (emphasis in Ralls). The D.C. Circuit ultimately concluded that the
President’s action deprived the appellant of its constitutionally protected
property interests without due process of law. Id. at 319.

The state and federal statutory interplay in the instant case is
altogether different. SFR’s argument is deficient because the district
court here did not read a federal contingency into a state law otherwise
pronouncing protected property interests. Instead, the Federal
Foreclosure Bar preempts the Nevada Foreclosure Statute as regards
HOA foreclosure sales on properties in which FHFA maintains an
interest, and proscribes those sales by default.
22 FHLMC V. SFR INVESTMENTS POOL 1

SFR’s asserted accession to property “interests that
purchasers obtain at association sales, including free and
clear title,” is not mandated by the Nevada Foreclosure
Statute. See Johnson, 623 F.3d at 1030. The relevant
provision, NRS § 116.3116(2), provides that “[a] lien under
this section is prior to all other liens and encumbrances on a
unit [with certain exceptions],” and thus generally has
superpriority. This superpriority lien belongs to “[t]he
association.” NRS § 116.3116(1). The statute does not
mandate, and SFR has presented no language mandating,
vestment of rights in purchasers at HOA foreclosure sales.
Id. SFR therefore lacks “a legitimate claim of entitlement,”
Roth, 408 U.S. at 577, deriving from “the language of the
statute,” since, here, the asserted entitlement is not “couched
in mandatory terms.” Johnson, 623 F.3d at 1030 (quoting
Wedges/Ledges of Cal., 24 F.3d at 62). Rather, SFR’s
expectation of obtaining free and clear title at an HOA
foreclosure is more akin to a “unilateral expectation” of a
benefit or privilege. Nunez, 147 F.3d at 872 (quoting Roth,
408 U.S. at 577). 6

6
This approach is consistent with Berezovsky, 869 F.3d at 927 n.2.
In that case, the buyer of a property at an HOA foreclosure sale argued
that the Federal Foreclosure Bar violates due process because the statute
“lack[s] procedures for notice to interested parties and procedures for
any hearing.” Id. (alteration in Berezovsky). At oral argument, the
buyer’s counsel acknowledged his due process contention sought to
vindicate the HOA’s property rights, but not his own, and that he lacked
standing to assert that claim. Id. (citing Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992)); see also Skylights, 112 F. Supp. 3d at 1153–
54 (assuming without analysis that an HOA possessed a protected
property interest in its superpriority lien under the Nevada Foreclosure
Statute for procedural due process purposes, but assuming no property
interest on behalf of the plaintiff property buyer at foreclosure). We note
that here, SFR seeks to assert its own property rights, and no party has
suggested SFR lacks standing to assert its due process argument.
 FHLMC V. SFR INVESTMENTS POOL 1 23

Further, SFR’s characterization of FHFA’s non-consent
to the HOA foreclosure sales as affirmative declinations is
incorrect. The Federal Foreclosure Bar provides that “[n]o
property of the Agency shall be subject to . . . foreclosure . . .
without the consent of [FHFA].” 12 U.S.C. § 4617(j)(3).
The plain text of this provision does not necessitate a
decision by FHFA not to consent to a given foreclosure sale;
rather, the bar on foreclosure sales lacking FHFA’s consents
applies by default. See Berezovsky, 869 F.3d at 929 (“The
Federal Foreclosure Bar does not require the Agency to
actively resist foreclosure. . . . Rather, the statutory language
cloaks Agency property with Congressional protection
unless or until the Agency affirmatively relinquishes it.”)
(citation omitted). Indeed, the record before this Court does
not demonstrate that FHFA made any determinations not to
consent to the HOA sales of the Properties.

Nor did the absence of the Enterprises’ names in the
mortgage loans’ local recording documents at the time of the
HOA sales undercut the Enterprises’ interests and provide
SFR free and clear title to the Properties. In Berezovsky, we
explained that, under Nevada law, the note owner’s name
need not appear in the mortgage’s recording. “Nevada law
requires recording of a lien for it to be enforceable, but does
not mandate that the recorded instrument identify the note
owner by name.” Berezovsky, 869 F.3d at 932 (citing Nev.
Rev. Stat. § 106.210). “Nevada law thus recognizes that, in
an agency relationship, a note owner remains a secured
creditor with a property interest in the collateral even if the
recorded deed of trust names only the owner’s agent.” Id.
(citing In re Montierth, 354 P.3d 648, 651 (Nev. 2015)). In
Berezovsky, though the recorded deed of trust omitted note
owner Freddie Mac’s name, Freddie Mac introduced
evidence in the district court showing it acquired the loan
secured by the relevant property years earlier, and that the
24 FHLMC V. SFR INVESTMENTS POOL 1

recorded deed of trust beneficiary was Freddie Mac’s loan
servicer. Freddie Mac’s property interest was thus valid and
enforceable under Nevada law. Id. at 932–33. Under
HERA, FHFA succeeded to Freddie Mac’s interest in the
property at issue, and the Federal Foreclosure Bar shielded
that interest.

In the case before us, the liens were recorded. The
Enterprises introduced evidence in the district court showing
one of them acquired each of the loans securing the
Properties prior to each of the HOA foreclosure sales. The
district court based its finding that an Enterprise had an
interest in each Property on the fact that, in each case, a
servicer acquired a beneficial interest in the respective
Property’s deed of trust, and serviced the respective
mortgage loan on behalf of one of the Enterprises. Each
acquisition of a Property’s deed of trust by a servicer
occurred on a date prior to the respective HOA foreclosure
sale. The district court thus found that FHFA, which
succeeded to the Enterprises’ assets per HERA, held an
interest in the Properties prior to the sales. Accordingly, the
named beneficiary under the recorded deed of trust in each
case is someone other than the note owner, one of the
Enterprises. However, per Berezovsky, 869 F.3d at 931–33,
and under Nevada law, the Enterprises’ purchases conveyed
valid interests in the Properties. Further, HERA does not
require the Enterprises to have recorded their ownership of
the liens in local recording documents for FHFA to have
succeeded to those valid interests upon inception of
conservatorship.

2. Whether FHFA Denied SFR Adequate
Procedural Protections.

Even assuming arguendo that SFR had some
constitutionally protected property interest, SFR received all
 FHLMC V. SFR INVESTMENTS POOL 1 25

the procedural protections it was due. The second element
of a procedural due process claim is “a denial of adequate
procedural protections.” Brewster, 149 F.3d at 982. “[O]nce
a court determines that a protected property interest has been
taken, ‘the question remains what process is due.’” Roybal
v. Toppenish Sch. Dist., 871 F.3d 927, 933 (9th Cir. 2017)
(alteration in Roybal) (quoting Brewster, 149 F.3d at 983).
SFR argues that it was deprived of due process because the
Federal Foreclosure Bar lacks integral procedural
protections, such as the ability to obtain consent to the HOA
sales from FHFA. See Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 542 (1985); City of W. Covina v. Perkins,
525 U.S. 234, 242 (1999).

SFR’s argument fails. Due process is a flexible concept,
and the procedural protections it demands are molded by the
relevant factual context. Yagman v. Garcetti, 852 F.3d 859,
863 (9th Cir. 2017); see Shinault v. Hawks, 782 F.3d 1053,
1057 (9th Cir. 2015) (“Once a protected interest is found, we
employ the three-part balancing test of Mathews v. Eldridge,
424 U.S. 319[, 335] (1976) . . . . (1) the private interest
affected; (2) the risk of erroneous deprivation through the
procedures used, and the value of additional safeguards; and
(3) the government’s interest, including the burdens of
additional procedural requirements.”) (citation omitted).
The Federal Foreclosure Bar dictates that “[n]o property of
the Agency shall be subject to levy, attachment,
garnishment, foreclosure, or sale without the consent of the
Agency.” 12 U.S.C. § 4617(j)(3). As relevant to the facts
of this case, the provision patently modifies the conduct of a
party seeking to foreclose upon or sell FHFA property.
Therefore, a theoretical deprivation of due process under
§ 4617(j)(3) involving an HOA foreclosure sale, would
implicate the potential seller, or the foreclosing HOA, and
not the buyer. See, e.g., Skylights, 112 F. Supp. 3d at 1153–
26 FHLMC V. SFR INVESTMENTS POOL 1

55 (analyzing, under similar facts, an HOA’s procedural due
process argument and concluding that the HOA’s due
process rights were satisfied by sound legislative procedure
in enacting § 4617(j)(3)). Accordingly, SFR articulates no
risk of erroneous deprivation of a buyer’s interest under the
statute’s procedures, and any additional procedures so
providing would burden the government’s interest, as
codified in the Federal Foreclosure Bar, in protecting the
Enterprises’ assets from foreclosure. We are not persuaded
that the absence of an explicit procedural avenue through
which a possible buyer may obtain, from FHFA, consent to
a foreclosure sale by an HOA constitutes an impermissible
lack of procedural safeguards.

SFR also contends that that the Enterprises’ interests in
the Properties were hidden from the public until the
commencement of this litigation, and were not “reasonably
calculated . . . to apprise interested parties of the pendency
of the action.” Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950); see Bourne Valley Court Tr. v.
Wells Fargo Bank, NA, 832 F.3d 1154, 1158 (9th Cir. 2016),
cert. denied, 137 S. Ct. 2296 (2017). This argument too is
unpersuasive. As explained supra, under Nevada law, the
note owner’s name need not appear in the local recording
documents, and, as the district court found, the Enterprises
possessed valid interests in the Properties at the time of the
HOA foreclosure sales. Again, HERA does not require that
potential buyers received notice of FHFA’s or the
Enterprises’ interests in properties whose sales are prevented
by the Federal Foreclosure Bar. Further, contrary to SFR’s
characterizations, FHFA did not affirmatively decline to
consent to the HOA foreclosure sales; rather, the protections
of the Federal Foreclosure Bar applied by default, rendering
those sales contrary to law. Moreover, SFR does not argue,
and the record does not disclose, that it sought FHFA’s
 FHLMC V. SFR INVESTMENTS POOL 1 27

consent to the relevant HOA foreclosure sales, nor that it was
incapable of learning of the Enterprises’ interests in the
Properties through due diligence. See Gallo v. U.S. Dist.
Court For Dist. of Arizona, 349 F.3d 1169, 1181 (9th Cir.
2003) (“[I]t has never been suggested that each citizen must
in some way be given specific notice of the impact of a new
statute on his property before that law may affect his
property rights.”) (alteration in Gallo) (quoting Texaco, Inc.
v. Short, 454 U.S. 516, 536 (1982)).

D. Whether FHFA Violated “Reasoned
Decisionmaking.”

SFR argues that the process FHFA used in deciding
whether to consent to foreclosure on the Properties was not
“logical and rational,” because no such process exists.
Under the doctrine cited by SFR, “[f]ederal administrative
agencies are required to engage in ‘reasoned
decisionmaking.’” Michigan v. EPA, 135 S. Ct. 2699, 2706
(2015) (quoting Allentown Mack Sales & Service, Inc. v.
NLRB, 522 U.S. 359, 374 (1998)). “Not only must an
agency’s decreed result be within the scope of its lawful
authority, but the process by which it reaches that result must
be logical and rational.” Id. (quoting Allentown Mack,
522 U.S. at 374). Thus agency action is lawful only if it
relies “on a consideration of the relevant factors.” Id.
(quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v.
State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43
(1983)).

SFR’s arguments again lack merit. SFR’s citation to
Michigan, 135 S. Ct. 2699, is inapposite. That case
considered “EPA’s decision to regulate power plants under
[42 U.S.C.] § 7412,” a provision which authorizes the EPA
to regulate power plants “if it finds such regulation is
appropriate and necessary.” 135 S. Ct. at 2706. In the instant
28 FHLMC V. SFR INVESTMENTS POOL 1

case, by contrast, the text of the Federal Foreclosure Bar
reads that “[n]o property of [FHFA] shall be subject to . . .
foreclosure . . . without the consent of [FHFA].” 12 U.S.C.
§ 4617(j)(3). While presuming that FHFA may consent to
foreclosure sales such as those that the HOAs here
conducted, this provision does not require an affirmative
decision by FHFA not to consent. SFR essentially
repackages its argument that FHFA deprived SFR of due
process by again characterizing FHFA’s lack of consent to
the HOA foreclosure sales as a series of affirmative
decisions not to consent to each sale. Here, however, as
explained supra, FHFA did not perform any, and the record
discloses no, agency action subject to an analysis of whether
“the process by which [FHFA] reache[d] that result [was]
logical and rational.” Michigan, 135 S. Ct. at 2706 (quoting
Allentown Mack, 522 U.S. at 374).

CONCLUSION

FHFA, as the Enterprises’ conservator, possessed
enforceable interests in the Properties at the time of the HOA
foreclosure sales. The Federal Foreclosure Bar preempts the
Nevada Foreclosure Statute to the extent that an HOA’s
foreclosure of its superpriority lien cannot extinguish a
property interest of an Enterprise while it is under FHFA’s
conservatorship. Accordingly, the HOA foreclosure sales on
the Properties did not extinguish the Enterprises’ interests in
the Properties and thus did not convey the Properties free and
clear of their deeds of trust to SFR. Further, because the
Nevada Foreclosure Statute did not imbue SFR with a
constitutionally protected property interest, and SFR was not
denied adequate procedural protections, SFR did not suffer
a deprivation of due process by virtue of this statutory
framework.
 FHLMC V. SFR INVESTMENTS POOL 1 29

The district court properly denied Defendant SFR’s
Motion to Dismiss and granted the Motion by Plaintiffs
FHFA and the Enterprises for Summary Judgment. 7

AFFIRMED.

7
Plaintiffs, in their third cause of action in the first amended
complaint, sought “a permanent injunction that enjoins any claim by
named Defendants or absent members of the Proposed Class that an
HOA Foreclosure Sale extinguished an Enterprise Lien, or asserting any
slander of title claim against Plaintiffs in the absence of satisfaction of
the Enterprise Lien.” In issuing its order, the district court “granted
[plaintiffs] summary judgment on all of their claims,” but did not
mention a permanent injunction.

SFR argues that the district court’s order contravened Fed. R. Civ.
Pro. 65(d), which provides that “every order granting an injunction . . .
must: (A) state the reasons why it issued; (B) state the terms specifically;
and (C) describe in reasonable detail . . . the act or acts restrained or
required.” Counsel for FHFA at oral argument agreed that no injunction
is in place. In any event, our holding moots SFR’s contention.