NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DITECH FINANCIAL LLC; FEDERAL No. 20-15526
NATIONAL MORTGAGE
ASSOCIATION, D.C. No.
2:16-cv-02812-JAD-NJK
Plaintiffs-Appellees,
v. MEMORANDUM*
T-SHACK, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted June 7, 2021**
Pasadena, California
Before: GRABER, CALLAHAN, and FORREST, Circuit Judges.
Defendant T-Shack, Inc., timely appeals the summary judgment in favor of
Plaintiffs Ditech Financial LLC ("Ditech") and Federal National Mortgage
Association ("Fannie Mae"). In 2013, Defendant purchased a property in Nevada
*
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).
at a foreclosure sale by a homeowners association ("HOA"). The district court
held that, at the time of the sale, Fannie Mae had a secured property interest and
that, by operation of the Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3), the sale
did not extinguish the deed of trust. The court declared that Defendant owns the
property subject to the deed of trust. Reviewing de novo, Berezovsky v. Moniz,
869 F.3d 923, 927 (9th Cir. 2017), we affirm.
Under Nevada law, a foreclosure by an HOA may, in some circumstances,
extinguish an existing deed of trust. See generally Bank of Am., N.A. v. Arlington
W. Twilight Homeowners Ass’n, 920 F.3d 620, 621–22 (9th Cir. 2019) (per
curiam). But the Federal Foreclosure Bar preempts that result where, at the time of
sale: (1) Fannie Mae or the Federal Home Loan Mortgage Company ("Freddie
Mac") has a secured interest in the property; (2) those organizations are under
conservatorship by the Federal Housing Finance Agency ("Agency"); and (3) the
Agency has not consented to the foreclosure sale. 12 U.S.C. § 4617(j)(3);
Berezovsky, 869 F.3d at 928–31; Saticoy Bay LLC Series 9641 Christine View v.
FNMA, 417 P.3d 363, 367–68 (Nev. 2018) (en banc).
1. The district court correctly held that no genuine issue of material fact
exists as to Fannie Mae’s property interest at the time of the foreclosure sale in
2013. Business records and sworn declarations by employees of Fannie Mae and
Ditech sufficiently establish that, in 2013, Fannie Mae owned the note. Nationstar
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Mortg. LLC v. Saticoy Bay LLC, Series 9229 Millikan Ave., 996 F.3d 950, 956
(9th Cir. 2021). Additionally, Fannie Mae’s Servicing Guide requires the servicer
to prepare and record a mortgage assignment whenever requested by Fannie Mae,
thus establishing the requisite principal-agency relationship such that Fannie Mae
possessed a secured property interest under Nevada law. Id. Both we and the
Nevada Supreme Court have rejected the argument, advanced by Defendant here,
that Fannie Mae’s interest must be recorded. Id. at 957; Daisy Tr. v. Wells Fargo
Bank, N.A., 445 P.3d 846, 849 (Nev. 2019) (en banc).
2. At the time of the foreclosure sale in 2013, Fannie Mae and Freddie Mac
were under conservatorship. Nationstar, 996 F.3d at 955–56.
3. The district court correctly held that no genuine issue of material fact
exists as to whether the Agency has consented to the foreclosure sale. The Agency
has declared publicly that it has not consented to any foreclosure by an HOA,
Statement on HOA Super-Priority Lien Foreclosures (Apr. 21, 2015),
https://www.fhfa.gov/Media/PublicAffairs/Pages/Statement-on-HOA-Super-
Priority-Lien-Foreclosures.aspx, and Defendant has not introduced any evidence to
the contrary. See Berezovsky, 869 F.3d at 929 (holding that the Federal
Foreclosure Bar "cloaks Agency property with Congressional protection unless or
until the Agency affirmatively relinquishes it"); accord Christine View, 417 P.3d at
368.
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4. The Federal Foreclosure Bar does not violate a purchaser’s right to due
process. Fed. Home Loan Mortg. Co. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136,
1147–51 (9th Cir. 2018).
AFFIRMED.
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