Ditech Financial LLC v. Saticoy Bay LLC Series 8829

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 20, 2020
• Docket: 18-16199
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DITECH FINANCIAL LLC; FEDERAL No. 18-16199 NATIONAL MORTGAGE ASSOCIATION, D.C. No. 2:17-cv-02164-JCM-GWF Plaintiffs-Appellees,

v. MEMORANDUM*

SATICOY BAY LLC SERIES 8829 CORNWALL GLEN,

Defendant-Appellant,

and

AMERICAN WEST VILLAGE II OWNERS ASSOCIATION; NEVADA ASSOCIATION SERVICES, INC.,

Defendants.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted February 7, 2020** Pasadena, California

* 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). Before: BOGGS,*** IKUTA, and LEE, Circuit Judges.

Saticoy Bay appeals from the district court’s entry of summary judgment in

favor of Ditech Financial LLC and the Federal National Mortgage Association

(Fannie Mae). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. This court has already found that 12 U.S.C. § 4617(j)(3), also known

as the Federal Foreclosure Bar, preempts Nev. Rev. Stat. § 116.3116(2).

Berezovsky v. Moniz, 869 F.3d 923, 931 (9th Cir. 2017). Moreover, “the Federal

Foreclosure Bar applies to any property for which the [Federal Housing Finance

Agency (FHFA)] serves as conservator,” so the Federal Foreclosure Bar applies to

all of Fannie Mae’s property, id. at 928, because FHFA serves as Fannie Mae’s

conservator, see, e.g., 12 U.S.C. § 4617(i)(2)(A)(i).

2. Fannie Mae has presented admissible evidence, specifically business

records and an employee declaration authenticating those records, that it had a

valid interest in the property at issue. We have found that this is enough to

establish ownership over the property interest. See id. at 932–33 & n.8; see also

U-Haul Int’l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1044 (9th Cir.

2009) (“It is not necessary for each individual who entered a record of payment

*** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 into the database to testify as to the accuracy of each piece of data entered.”).

Saticoy Bay’s arguments that Fannie Mae did not have a valid property interest due

to Nevada’s statute of frauds and because Fannie Mae did not appear as the deed of

trust’s record beneficiary are unavailing. Easton Bus. Opportunities v. Town Exec.

Suites, 230 P.3d 827, 832 n.4 (Nev. 2010) (noting “the general law that, while

statute of frauds provisions may ‘prevent enforcement against an assignor unless

there is a memorandum in writing or some substitute formality, . . . they cannot

ordinarily be asserted by third persons, including the obligor of an assigned

right’”); Berezovsky, 869 F.3d at 932 (“Although the recorded deed of trust here

omitted Freddie Mac’s name, Freddie Mac’s property interest is valid and

enforceable under Nevada law.”).

3. Equitable considerations do not require a different result. Saticoy Bay

is not a bona fide purchaser because there was constructive notice of an adverse

interest to the deed of trust. The deed of trust states on its first page that a “Rider”

to the deed of trust is the “NEVADA-Single Family- Fannie Mae/Freddie Mac

UNIFORM INSTRUMENT WITH MERS.” Moreover, there is no adequate

remedy at law for what Fannie Mae seeks: an affirmance that it continues to have

an interest in the property at issue. Finally, § 4617(j)(3) gives FHFA protection

until it “affirmatively relinquishes it,” Berezovsky, 869 F.3d at 929, which

necessarily precludes implying consent from inaction.

3 4. Ditech and Fannie Mae request that we admonish Saticoy Bay for

taking positions that are irreconcilable with published, on-point decisions. In light

of the published cases foreclosing Saticoy’s arguments, Saticoy and its counsel are

warned not to raise such meritless arguments in the future.

AFFIRMED.