G & P Investment Enterprises v. Wells Fargo Bank

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2018
• Docket: 16-16557
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 19 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

G & P INVESTMENT ENTERPRISES, No. 16-16557 LLC, D.C. No. Plaintiff-counter- 2:15-cv-00907-JCM-NJK defendant-Appellant,

v. MEMORANDUM*

GEORGE H. BARNEY III and MTC FINANCIAL, INC.,

Defendants,

and

WELLS FARGO BANK, N.A.; et al.,

Defendants-counter- claimants-Appellees.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Submitted October 15, 2018** San Francisco, 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: THOMAS, Chief Judge, KLEINFELD, Circuit Judge, and WU,*** District Judge.

G&P Investment Enterprises, LLC (“G&P”) appeals from a district court

order granting summary judgment in favor of George H. Barney III, Wells Fargo

Bank, Federal Home Loan Mortgage Corporation (“Freddie Mac”), and the Federal

Housing Finance Agency (“Finance Agency”) pursuant to the Federal Foreclosure

Bar, 12 U.S.C. § 4617.1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We

AFFIRM.

Barney purchased a tract of real property (the “Property”) that was part of a

homeowners’ association in Nevada. Barney took out a loan with Wells Fargo to

finance the purchase. Freddie Mac then purchased the loan, recorded its funding

date, and had Wells Fargo act as its servicing agent. When Barney failed to pay his

fees to the homeowners’ association, the homeowners’ association foreclosed on

the Property. G&P purchased the Property at a foreclosure sale.

*** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation. 1 MTC Financial, Inc. was dismissed from this action by stipulation by the state court prior to removal. 2 G&P sued Freddie Mac, Wells Fargo, Barney, and the Finance Agency to

quiet title, claiming superior title under Nevada Revised Statute § 116.3116.

Because G&P’s arguments are foreclosed by Berezovsky v. Moniz, 869 F.3d 923

(9th Cir. 2017), we AFFIRM the district court’s judgment.

1. G&P claims that the homeowners’ association had a “superpriority” lien

that allowed it to sell the Property in a nonconsensual sale, free and clear of the

Finance Agency’s interest pursuant to Nevada Revised Statute § 116.3116. That

statute, however, is preempted by the Federal Foreclosure Bar, 12 U.S.C. §

4617(j)(3). See Fed. Home Loan Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d

1136, 1147 (9th Cir. 2018); Berezovsky, 869 F.3d at 931.

2. G&P argues that Freddie Mac did not provide enough evidence of its

property interest. Freddie Mac, however, provided sufficient evidence in the form

of its internal database records. See Fed. Home Loan Mortg. Corp., 893 F.3d at

1149; Berezovsky, 869 F.3d at 932 n.8; Elmer v. JP Morgan Chase & Co., 707 F.

App’x 426, 428 (9th Cir. 2017).

3 3. G&P argues that Freddie Mac did not have a valid and enforceable

property interest, because the recorded deed of trust omitted Freddie Mac’s name.

Freddie Mac, however, recorded its agent’s name which sufficed to create a valid

and enforceable property interest. See Fed. Home Loan Mortg. Corp., 893 F.3d at

1150; Berezovsky, 869 F.3d at 932-33.

4. G&P argues that when Freddie Mac listed its agent on the recorded

interest, Freddie Mac “split” the note from the deed of trust. But a note owner

maintains an enforceable interest in property even after the note is split from the

deed of trust if it has an agency relationship with the recorded beneficiary. The

note owner retains authority to direct the beneficiary to foreclose on its behalf. See

Fed. Home Loan Mortg. Corp., 893 F.3d at 1150; Berezovsky, 869 F.3d at 932-33.

5. G&P argues that the Federal Foreclosure Bar does not apply because its

consent requirement only applies to tax-related foreclosures. The protection

provided by the Federal Foreclosure Bar, however, “cannot fairly be read as

limited to tax liens because . . . [the statute] includes no language limiting its

general applicability provision to taxes alone.” See Berezovsky, 869 F.3d at 929.

4 6. Lastly, G&P argues that the Federal Foreclosure Bar is unconstitutional

because it deprives parties of a property interest in violation of due process of law.

G&P, however, lacks standing to bring a due process claim on behalf of the

homeowners’ association. See Berezovsky, 869 F.3d at 927 n.2 (citing Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

For these reasons, the district court’s judgment is AFFIRMED.