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

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FEDERAL HOME LOAN MORTGAGE No. 19-15910 CORPORATION; et al., D.C. No. Plaintiffs-Appellees, 2:15-cv-02381-GMN-NJK

v. MEMORANDUM* SFR INVESTMENTS POOL 1, LLC,

Defendant-Appellant.

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

Submitted June 9, 2020** San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and ROYAL,*** District Judge.

This case arises out of purchases by SFR Investments Pool 1, LLC, of various

Nevada residential properties (the “Properties”) at non-judicial foreclosure sales

* 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 C. Ashley Royal, United States District Judge for the Middle District of Georgia, sitting by designation. involving homeowners association (“HOA”) liens. The earliest of the HOA sales

was in March 2012. Before the HOA sales, Federal Home Loan Mortgage

Corporation (“Freddie Mac”) or the Federal National Mortgage Association

(“Fannie Mae”) (together, the “Enterprises”) had purchased the loans on the

Properties and acquired the deeds of trust securing the loans.

Nevada law grants an HOA a “superpriority” lien for unpaid assessments; that

lien is superior even to a previously recorded first deed of trust. See Nev. Rev. Stat.

§ 116.3116; Bank of Am., N.A. v. Arlington W. Twilight Homeowners Ass’n, 920

F.3d 620, 621-22 (9th Cir. 2019) (per curiam). However, in 2008, the Federal

Housing Finance Agency (“FHFA”) placed the Enterprises into conservatorship.

See 12 U.S.C. § 4617(a)(2), (b)(2)(A)(i). Under the Federal Foreclosure Bar, 12

U.S.C. § 4617(j)(3), “[n]o property of the [FHFA] 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.” The Federal

Foreclosure Bar preempts the Nevada superpriority lien scheme. See Berezovsky v.

Moniz, 869 F.3d 923, 929-31 (9th Cir. 2017).

In June 2016, the FHFA, Freddie Mac, and Fannie Mae sued SFR to quiet title

to the Properties, arguing that because of the Federal Foreclosure Bar, the non-

judicial foreclosure sales did not extinguish the previously recorded deeds. The

district court granted summary judgment to the plaintiffs. We have jurisdiction of

2 SFR’s appeal under 28 U.S.C. § 1291 and affirm.

1. For the reasons stated in our opinion in M&T Bank v. SFR Investments

Pool 1, LLC., No. 18-17395, the six-year period in 12 U.S.C. § 4617(b)(12)(A)(i)

governs the quiet title claims in this action. The complaint, which was filed less than

six years after the earliest non-judicial foreclosure sale in March 2012, was therefore

timely.

2. The district court did not err in concluding that summary judgment was

appropriate as to twenty Properties for which the record beneficiaries on the deeds

of trust was neither Freddie Mac, Fannie Mae, nor their loan servicers at the time of

the foreclosure sales. 1 For all of those Properties, the recorded beneficiary on the

deed of trust was the agent for one of the Enterprises. See Berezovsky, 869 F.3d at

932-33.2

3. The district court did not abuse its discretion in denying SFR’s request

under Federal Rule of Civil Procedure 56(d) to defer ruling on the plaintiffs’

summary judgment motion to allow further discovery. See Midbrook Flowerbulbs

1 As to the remaining properties, SFR does not argue on appeal that summary judgment should have been granted in its favor on this basis. 2 It does not matter that some of the record beneficiaries on some of the deeds of trust were former servicers who had transferred their servicing rights before the foreclosure sales. A former servicer remains obligated to act on behalf of the Enterprises even after the transfer of servicing rights. See Fannie Mae Servicing Guide § A2-7-03 (2020); Freddie Mac Servicing Guide § 7101.15(a) (2020).

3 Holland B.V. v. Holland Am. Bulb Farms, Inc., 874 F.3d 604, 612 (9th Cir. 2017)

(standard of review). The summary judgment record already made plain that

plaintiffs possessed valid and enforceable interests in all of the Properties at the time

of the foreclosure sales. See e.g., Berezovsky, 869 F.3d at 932-33; Fed. Nat’l Mortg.

Ass’n v. KK Real Estate Inv. Fund, LLC, 772 F. App’x 552, 553 (9th Cir. 2019). A

party seeking Rule 56(d) relief must do “more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986).

AFFIRMED.3

3 We grant SFR’s unopposed motion for judicial notice of orders in six cases before the Eighth Judicial District of the State of Nevada.