fnma/fannie Mae v. Saticoy Bay LLC Series 6671

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2020
• Docket: 19-17133
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FEDERAL NATIONAL MORTGAGE No. 19-17133 ASSOCIATION, D.C. No. Plaintiff-counter- 2:17-cv-01758-RFB-EJY defendant-Appellee,

v. MEMORANDUM*

CASA MESA VILLAS HOMEOWNERS ASSOCIATION,

Defendant,

and

SATICOY BAY LLC SERIES 6671 W. TROPICANA 103,

Defendant-counter-claimant- Appellant.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted November 17, 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: RAWLINSON, HUNSAKER, and VANDYKE, Circuit Judges.

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

favor of the Federal National Mortgage Association (Fannie Mae). We have

jurisdiction under 28 U.S.C. § 1291, we review the grant of summary judgment de

novo, Berezovsky v. Moniz, 869 F.3d 923, 927 (9th Cir. 2017), and we affirm.

1. For purposes of 12 U.S.C. § 4617(j)(3) (the Federal Foreclosure Bar) and

Nevada law, Fannie Mae provided sufficient evidence to establish its interest in the

Las Vegas residential property located at 6671 W. Tropicana Ave # 103 (Property)

at and before the date of the Casa Mesa Villas Homeowners Association’s (HOA)

foreclosure sale. See Daisy Tr. v. Wells Fargo Bank, N.A., 445 P.3d 846, 849 n.3,

850–51 (Nev. 2019) (finding that business records supported by employee

declarations and the judicially noticeable loan servicing guide sufficiently

established Freddie Mac’s property interest even where it was omitted from the

recorded deed of trust); Berezovsky, 869 F.3d at 932–33 (same). Here, Fannie Mae

retained a secured interest in the Property because the deed’s recorded beneficiary,

Mortgage Electronic Registration Systems, Inc. (MERS), had authority to foreclose

on Fannie Mae’s behalf, and Fannie Mae could compel MERS to assign the deed to

Fannie Mae. See In re Montierth, 354 P.3d 648, 650–51 (Nev. 2015); see also

Nationstar Mortg., LLC v. Guberland LLC-Series 3, 2018 WL 3025919, at *2 (Nev.

2 June 15, 2018) (unpublished disposition)1 (applying Montierth’s rationale to facts

nearly identical to those here).

Saticoy Bay’s statute of frauds arguments likewise fail. Saticoy Bay was not

party to Fannie Mae’s acquisition of the note and deed, so under current Nevada law,

it may not invoke the statute of frauds. See Easton Bus. Opportunities, Inc. v. Town

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

statue of frauds … cannot ordinarily be asserted by third persons” (quoting

Restatement (Second) of Contracts § 324 cmt. b (1981))). And the transaction

Saticoy Bay impugns—Fannie Mae’s April 2007 purchase of the note and deed—

fully closed long ago, which also renders Nevada’s statute of frauds inapplicable.

See Edwards Indus., Inc. v. DTE/BTE, Inc., 923 P.2d 569, 574 (Nev. 1996) (noting

that full performance can render the statute of frauds inapplicable).

There is moreover no evidence in the record that the Federal Housing Finance

Agency (FHFA), which holds Fannie Mae and its assets in conservatorship,

affirmatively consented to the extinguishment of the interest in the Property. See

Berezovsky, 869 F.3d at 929 (rejecting that Freddie Mac and the FHFA could

“implicitly consent[]” to the foreclosure of a property interest). In fact, the evidence

1 Under Nevada’s appellate rules, unpublished dispositions may “establish mandatory precedent … in a related case ….” Nev. R. App. P. 36(c)(2). The Nevada Supreme Court also permits citation to its unpublished dispositions for “persuasive value, if any ….” Id. at 36(c)(3). The unpublished Nevada Supreme Court dispositions we cite herein grapple with issues in all important respects identical to those before us, and therefore possess especially persuasive value.

3 runs contrary: “FHFA confirms that it has not consented, and will not consent in the

future, to the foreclosure or other extinguishment of any Fannie Mae or Freddie Mac

lien or other property interest in connection with HOA foreclosures of super-priority

liens.”

Clear precedent likewise forecloses Saticoy Bay’s remaining arguments that

Fannie Mae failed to properly establish its property interest under Nevada law. See,

e.g., Daisy Tr., 445 P.3d at 849 (“Nevada’s recording statutes did not require Freddie

Mac to publicly record its ownership interest as a prerequisite for establishing that

interest”); see also Berezovsky, 869 F.3d at 930–31 (“The Federal Foreclosure Bar’s

declaration … supersede[s] any contrary law, including state law, that would allow

foreclosure of Agency property without its consent.”).

The Federal Foreclosure Bar accordingly applies, and the HOA foreclosure

sale did not extinguish Fannie Mae’s interest in the Property.2

2. Saticoy Bay cannot seek refuge under the bona fide purchaser doctrine

because it is not a bona fide purchaser—it had constructive notice of Fannie Mae’s

interest in the property. See Shadow Wood HOA v. N.Y. Cmty. Bancorp., 366 P.3d

2 Saticoy Bay’s “conclusive statutory presumption” arguments that MERS—not Fannie Mae—is the beneficial owner of the deed also fail. Saticoy Bay was not party either to the deed of trust or its subsequent transfer to Fannie Mae, so it cannot invoke the presumption in NEV. REV. STAT. § 47.240(2). But § 47.240(2)’s presumption is inapplicable because Nevada law permits Fannie Mae to record its property interest as it did here. Daisy Tr., 445 P.3d at 849. And § 47.240(2) is similarly inapplicable because there’s no evidence Fannie Mae intentionally misled Saticoy Bay (or anyone) and falsified the deed.

4 1105, 1115 (Nev. 2016) (a purchaser is bona fide if it makes a purchase “without

notice of facts which upon diligent inquiry would be indicated and from which notice

would be imputed to him, if he failed to make such inquiry” (citation omitted)).

We’ve already noted that Nevada law does not require Fannie Mae “to publicly

record its ownership interest as a prerequisite for establishing [its property] interest.”

Daisy Tr., 445 P.3d at 849; Berezovsky, 869 F.3d at 932–33. And the 2007 Deed of

Trust contains a footer on every page that says: “NEVADA – Single Family – Fannie

Mae/Freddie Mac UNIFORM INSTRUMENT – MERS.” This indicator of Fannie

Mae’s potential interest provides sufficient notice to later purchasers under Nevada

law. See CitiMortgage, Inc. v. TRP Fund VI, LLC, 2019 WL 1245886, at *1 (Nev.

Mar. 14, 2019) (unpublished disposition).3

3. Saticoy Bay’s remaining argument that the district court improperly granted

Fannie Mae equitable relief is beside the point and lacks merit. When a court

determines that a deed of trust survives a foreclosure sale by virtue of the Federal

Foreclosure Bar, it grants relief “by operation of law.” Collegium Fund LLC Series

7 v. Ditech Fin., LLC, 2020 WL 3469189, at *1 n.2 (Nev. June 24, 2020)

(unpublished disposition). That is precisely what happened here.

AFFIRMED.

3 Because Saticoy Bay is not a bona fide purchaser, we need not consider whether NEV. REV. STAT. § 111.325 is preempted by the Federal Foreclosure Bar.