NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DITECH FINANCIAL, LLC, FKA Green No. 17-16576
Tree Servicing, LLC,
D.C. No.
Plaintiff-Appellant, 2:15-cv-00476-JCM-CWH
v.
MEMORANDUM*
SFR INVESTMENTS POOL 1, LLC; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted November 13, 2019**
Pasadena, California
Before: GRABER, BERZON, and CHRISTEN, Circuit Judges.
Plaintiff-Appellant Ditech Financial, LLC, appeals the district court’s order
denying its motion for summary judgment and granting summary judgment for
*
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).
SFR Investments Pool 1, LLC and the Elkhorn Community Association, a
homeowners association (“HOA”). We have jurisdiction pursuant to 28 U.S.C. §
1291, and we review de novo a district court’s grant of summary judgment.
Berezovsky v. Moniz, 869 F.3d 923, 927 (9th Cir. 2017). We reverse and remand
with directions to enter judgment in favor of Ditech.
Fannie Mae acquired the loan for the subject property in 2007. In 2012,
Elkhorn sold the property to SFR in a nonjudicial foreclosure sale authorized by a
Nevada law that grants an HOA a “superpriority” lien for certain unpaid fees. See
NEV. REV. STAT. § 116.3116; Saticoy Bay LLC Series 9641 Christine View v. Fed.
Nat’l Mortg. Ass’n, 417 P.3d 363, 365 (Nev. 2018) (en banc). Ditech sought to
obtain declaratory relief and to quiet title, arguing that the Federal Foreclosure Bar,
12 U.S.C. § 4617(j)(3), barred the HOA foreclosure sale from extinguishing Fannie
Mae’s property interest.
The Federal Foreclosure Bar preempts Nevada’s superlien law when applied
to assets of the Federal Housing Finance Agency (FHFA). Berezovsky, 869 F.3d at
931. “[T]he Federal Foreclosure Bar applies to any property for which the [FHFA]
serves as conservator and immunizes such property from any foreclosure without
[FHFA] consent.” Id. at 928 (citing § 4617(j)(1), (3)); see also Fed. Home Loan
Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1140–41 (9th Cir. 2018),
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cert. denied, 139 S. Ct. 1618 (2019) (mem.). Fannie Mae has been in FHFA
conservatorship since 2008. SFR Invs. Pool 1, 893 F.3d at 1140.
1. The district court erred by misidentifying the federal agency with a
property interest in this case and by concluding that the Federal Foreclosure Bar
did not apply. Because Fannie Mae owned the loan at the time of the HOA
foreclosure sale, the sale involved an asset owned by the FHFA, not the Federal
Housing Administration (FHA). The Federal Foreclosure Bar therefore applied
and prevented Fannie Mae’s interest from being extinguished by the sale.
2. Elkhorn argues that the Federal Foreclosure Bar does not apply because
Ditech lacks standing to raise it and neither Fannie Mae nor the FHFA is a named
party. Ditech, as the loan servicer, acts as Fannie Mae’s agent and has standing to
assert the Federal Foreclosure Bar. See Berezovsky, 869 F.3d at 932 (discussing
the agency relationship between Freddie Mac and its loan servicer).
3. SFR argues that, because the deed of trust did not name Fannie Mae as the
record beneficiary, Fannie Mae failed to comply with Nevada’s recording statutes
and therefore lacked an enforceable property interest. We rejected this argument in
Berezovksy. 869 F.3d at 932; see also SFR Invs. Pool 1, 893 F.3d at 1149. The
Nevada Supreme Court has since confirmed our interpretation of state law,
explaining that Nevada’s recording statutes do not require that Fannie Mae “be
3
identified as the beneficiary on the publicly recorded deed of trust to establish its
ownership interest in the subject loan.” Daisy Trust v. Wells Fargo Bank, N.A.,
445 P.3d 846, 847 (Nev. 2019) (en banc).
4. Elkhorn and SFR argue that, even if the Federal Foreclosure Bar might
apply, there is a triable issue as to whether Fannie Mae owned the deed of trust at
the time of the foreclosure sale.
Ditech supported its summary judgment motion with business records,
employee declarations, and Fannie Mae’s Servicing Guide. We have accepted the
same types of evidence as sufficient to obtain summary judgment in other cases
applying the Federal Foreclosure Bar. See, e.g., Berezovsky, 869 F.3d at 932 &
n.8; Elmer v. JPMorgan Chase & Co., 707 F. App’x 426, 428 (9th Cir. 2017)
(unpublished); accord Daisy Trust, 445 P.3d at 847, 849–51.
Elkhorn and SFR rely on an erroneous view of Nevada law to argue that
Ditech failed to establish that Fannie Mae owned the deed of trust at the time of the
foreclosure sale. Because Fannie Mae was not required to record its interest
publicly, the absence of such a record does not create a material factual dispute.
See Berezovsky, 869 F.3d at 932–33; Daisy Trust, 445 P.3d at 847.
SFR contends that Ditech’s evidence of Fannie Mae’s ownership interest is
incomplete and unreliable. Contrary to SFR’s assertions, the employees’
4
declarations are consistent as to the time period in which Fannie Mae acquired the
loan, which was years before the foreclosure sale. By contending that
screenshots of Fannie Mae’s database records cannot be used to establish its
ownership interest, SFR ignores that we accepted similar “database printouts” in
Berezovsky. 869 F.3d at 932 n.8; see also Elmer, 707 F. App’x at 428. SFR
contends that there is a factual dispute as to whether Fannie Mae transferred its
ownership interest before the foreclosure sale, but cites no evidence that could
show Fannie Mae lacked a protected property interest.1 SFR’s other efforts to
discredit Ditech’s evidence are unavailing.
5. Neither Elkhorn nor SFR points to evidence before the district court that
created a genuine dispute of material fact that would preclude granting summary
judgment in favor of Ditech. See Berezovsky, 869 F.3d at 933.
Because the Federal Foreclosure Bar’s application is dispositive, we need
not address the other issues raised by the parties.
REVERSED and REMANDED, with directions to enter judgment in favor
of Ditech.
1
To the extent SFR suggests that the Federal Foreclosure Bar does not apply
to securitized mortgage loans held in trust by the FHFA, we have rejected that
argument. See SFR Invs. Pool 1, 893 F.3d at 1142, 1144–45.
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