FILED
NOT FOR PUBLICATION
OCT 18 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JP MORGAN CHASE BANK; et al., No. 17-15680
Plaintiffs-Appellees, D.C. No.
2:15-cv-01701-JCM-VCF
v.
LAS VEGAS DEVELOPMENT GROUP, MEMORANDUM*
LLC,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted October 15, 2018**
San Francisco, California
Before: THOMAS, Chief Judge, KLEINFELD, Circuit Judge, and WU,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
Las Vegas Development appeals from the district court’s grant of summary
judgment in favor of JP Morgan Chase (“JP Morgan”), the Federal Home Loan
Mortgage Corporation (“Freddie Mac”), and the Federal Housing Finance Agency
(the “Finance Agency”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We
AFFIRM.
In 2006, a couple named the Browns purchased real property (the
“Property”) in Nevada that was part of a homeowners’ association. The Browns
financed the property with a mortgage loan that Freddie Mac eventually bought.
When the Browns failed to pay their homeowners’ association fees, the
homeowners’ association foreclosed on their property. The homeowners’
association held a foreclosure sale, bought the property, and then sold it to Las
Vegas Development.
Freddie Mac and the Finance Agency, Freddie Mac’s conservator, filed an
action to quiet title and for declaratory relief. The district court granted summary
judgment in favor of Freddie Mac and the Finance Agency, and held that the
Federal Foreclosure Bar, 12 U.S.C. § 4617, preempts Nevada Revised Statute §
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116.3116 and prevents the homeowners’ association sale from extinguishing the
Finance Agency’s interest. As a result, Freddie Mac and the Finance Agency
retained an interest in the property.
Because the district court’s decision was in accordance with Berezovksy v.
Moniz,869 F.3d 923 (9th Cir. 2017), the district court’s judgment is AFFIRMED.
1. First, Las Vegas Development argues that the homeowners’ association
had a superpriority lien pursuant to Nevada Revised Statute § 116.3116 that
allowed it to sell the Property without the Finance Agency’s consent. However,
the Federal Foreclosure Bar, 12 U.S.C. § 4617, preempts Nevada Revised Statute §
116.3116 and prevents the homeowners’ association sale from extinguishing the
Finance Agency’s interest. See Berezovsky, 869 F.3d at 931.
2. Las Vegas Development also argues that Freddie Mac produced
insufficient evidence of a property interest. Freddie Mac, however, produced
sufficient evidence by providing printouts of its internal database records. Id. at
932-33; Elmer v. JP Morgan Chase & Co., 707 F. App’x 426, 428 (9th Cir. 2017).
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3. Las Vegas Development also argues that Freddie Mac lacked an
enforceable property interest because Freddie Mac was not the record beneficiary
of the deed of trust. However, Freddie Mac still held an enforceable property
interest because the record beneficiary was Freddie Mac’s agent. See Berezovsky,
869 F.3d at 932-33; Fed. Home Loan Mortg. Corp. v. SFR Inv. Pool 1, LLC, 893
F.3d 1136 (9th Cir 2018).
4. Las Vegas Development also claims that JP Morgan’s claim is
barred by the statute of limitations. However, Las Vegas Development waived this
defense by not including it in its opposition to JP Morgan’s motion for summary
judgment. See USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276, 1284 (9th
Cir. 1994). While Las Vegas Development attempted to incorporate its answer in
its opposition to the motion for summary judgment by referring to “all pleadings
and papers,” such an incorporation by reference does not suffice. See Carmen v.
San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001).
5. Lastly, Las Vegas Development claims that the district court improperly
granted summary judgment because no discovery had yet occurred. However, Las
Vegas Development was required to object to a lack of discovery and request
4
appropriate relief under Rule 56(d) and did not. See Fed. R. Civ. P. 56(d). Instead,
it objected in its opposition brief. A “[f]ailure to comply with the requirements of
Rule 56(f)1 is grounds for denying discovery and proceeding to summary
judgment.” Weinberg v. Whatcom Cty., 241 F.3d 746, 751 (9th Cir. 2001).
For these reasons, the district court’s judgment is AFFIRMED.
1
Fed. R. Civ. P. 56(d) was formerly Fed. R. Civ. P. 56(f).
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