Alex Berezovsky v. Bank of America , 869 F.3d 923 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX BEREZOVSKY, No. 16-15066
Plaintiff-Counter-Defendant-
Appellant, D.C. No.
2:15-cv-01186-
v. GMN-GWF
GREGORY MONIZ; IDELL MONIZ;
RED ROCK FINANCIAL SERVICES, OPINION
LLC, WELLS FARGO BANK, N.A.;
GARDEN TERRACE HOMEOWNERS
ASSOCIATION,
Defendants,
and
BANK OF AMERICA, N.A.,
Defendant-Appellee,
FEDERAL HOME LOAN MORTGAGE
CORPORATION; FEDERAL HOUSING
FINANCE AGENCY, as Conservator
for the Federal Home Loan
Mortgage Corporation,
Defendants-Counter-Claimants-
Appellees.
2 BEREZOVSKY V. BANK OF AMERICA
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted February 17, 2017
San Francisco, California
Filed August 25, 2017
Before: Marsha S. Berzon and Richard R. Clifton, Circuit
Judges, and Kimberly J. Mueller,* District Judge.
Opinion by Judge Mueller
*
The Honorable Kimberly J. Mueller, United States District Judge for
the Eastern District of California, sitting by designation.
BEREZOVSKY V. BANK OF AMERICA 3
SUMMARY**
Federal Foreclosure Bar
The panel affirmed the district court’s summary judgment
in favor of the Federal Home Loan Mortgage Corporation, or
Freddie Mac, in a quiet title action brought by a plaintiff who
purchased real property at a homeowners association
foreclosure sale.
The plaintiff argued that the Nevada superpriority lien
provision, Nev. Rev. Stat. § 116.3116, empowered the
homeowners association to sell the property to him free of
any other liens or interests, priority status aside. Freddie Mac
is under Federal Housing Finance Agency conservatorship.
The panel held that the Federal Foreclosure Bar’s prohibition
on nonconsensual foreclosure of Agency assets preempted
Nevada law, invalidating any purported extinguishment of
Freddie Mac’s interest through the association foreclosure
sale. First, the panel held that the Federal Foreclosure Bar
applies to private association foreclosures generally, and does
not protect the Agency’s property only from state and local
tax liens. The panel rejected the plaintiff’s argument that the
Federal Foreclosure Bar did not apply specifically to this case
because Freddie Mac and the Agency implicitly consented to
the foreclosure when they took no action to stop the sale.
In analyzing preemption, the panel began with a
presumption against preemption because real estate
foreclosure traditionally is an area regulated by state law.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 BEREZOVSKY V. BANK OF AMERICA
The panel held that the presumption was rebutted because
Congress had made its intent to supersede state law clear and
manifest. The panel concluded that the Federal Foreclosure
Bar implicitly demonstrated a clear intent to preempt
Nevada’s superpriority lien law by expressly prohibiting
foreclosures on Agency property without consent. Because
the federal and state statutes impliedly conflicted, the Federal
Foreclosure Bar superseded the Nevada superpriority lien
provision.
The panel held that, under Nevada law, Freddie Mac
proved that it held an enforceable property interest, and
therefore was entitled to summary judgment even though the
recording document listed the deed-of-trust beneficiary but
not the note owner, Freddie Mac. The note was thus “split”
from the deed of trust, but due to Freddie Mac’s agency
relationship with the recorded beneficiary, Freddie Mac
remained a secured creditor with a property interest in the
collateral.
COUNSEL
Luis A. Ayon (argued), Maier Gutierrez Ayon, Las Vegas,
Nevada; Michael V. Infuso and Keith W. Barlow, Green
Infuso LLP, Las Vegas, Nevada; for Plaintiff-Counter-
Defendant-Appellant.
Michael A.F. Johnson (argued), Matthew J. Oster, Elliott C.
Mogul, Dirk C. Phillips, Asim Varma, and Howard N. Cayne,
Arnold & Porter LLP, Washington, D.C.; Leslie Bryan Hart
and John D. Tennert, Fennemore Craig P.C., Reno, Nevada;
Darren T. Brenner, Akerman LLP, Las Vegas, Nevada; Marc
James Ayers and R. Aaron Chastain, Bradley Arant Boult
BEREZOVSKY V. BANK OF AMERICA 5
Cummings LLP, Birmingham, Alabama; for Defendants-
Counter-Claimants-Appellees.
OPINION
MUELLER, District Judge:
If a homeowners association member in Nevada misses
property payments for six months, Nevada law equips the
association with the ability to foreclose on a “superpriority
lien,” quashing all other property liens or interests recorded
after the recordation of the Covenants, Conditions, and
Restrictions attached to the title. On its face, this
superpriority lien has the potential to trump certain federal
property interests, despite Congress’s passage of a provision
known as the Federal Foreclosure Bar, which prohibits
nonconsensual foreclosure of Federal Housing Finance
Agency (“Agency”) assets. This clash of state and federal
law has spawned considerable litigation in Nevada. This
decision resolves the clash in favor of the Federal Foreclosure
Bar.
Appellant Alex Berezovsky purchased a home at a
homeowners association foreclosure sale in 2013. He argues
the Nevada superpriority lien provision empowered the
association to sell the home to him free of any other liens or
interests, priority status aside. The Federal Home Loan
Mortgage Corporation (“Freddie Mac”) claims it has a
priority interest in the home Berezovsky purchased. Freddie
Mac is under Agency conservatorship, meaning the Agency
temporarily owns and controls Freddie Mac’s assets. The
Federal Foreclosure Bar’s prohibition on nonconsensual
6 BEREZOVSKY V. BANK OF AMERICA
foreclosure gives teeth to the Agency’s statutory mandate to
guard its conservatorship assets.
Berezovsky sued to quiet title in Nevada state court.
Armed with the Federal Foreclosure Bar, Freddie Mac
intervened and counterclaimed for the property’s title,
removed the case to federal district court, and moved for
summary judgment. The Agency joined Freddie Mac’s
counterclaim. Together the federal entities argued that
Berezovsky did not acquire “clean title” in the home because
the Federal Foreclosure Bar preempts Nevada law,
invalidating any purported extinguishment of Freddie Mac’s
interest through the association foreclosure sale. In resolving
the parties’ cross-motions, the district court agreed with the
federal entities.
On appeal, Berezovsky disputes the Federal Foreclosure
Bar’s applicability and contends Freddie Mac lacks an
enforceable property interest. We are unpersuaded and affirm
the district court’s holding.
I.
The home Berezovsky purchased is located in Las Vegas,
Nevada. Gregory and Idell Moniz previously owned the
home, which is located in a community governed by a
homeowners association. On March 5, 2007, the Monizes
took out a $220,000 loan secured by a deed of trust. The
deed of trust listed the Monizes as the loan borrowers and
named Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the beneficiary under the security instrument,
and as nominee for the lender, Countrywide Home Loans,
Inc., and its successors and assigns. Freddie Mac purchased
the Monizes’ loan in 2007 and has owned it ever since. On
BEREZOVSKY V. BANK OF AMERICA 7
July 22, 2011, MERS assigned its beneficial interest under
the deed of trust to Bank of America, N.A. (“BANA”), and
BANA immediately recorded the assignment.
In early 2011, the Monizes missed $1,767.38 in payments
they owed to the homeowners association. This lapse
triggered Nevada’s superpriority lien law, empowering the
homeowners association to record a lien against the home,
which it did on March 17, 2011. The association recorded a
formal notice of default on May 9, 2013, and then exercised
its power to foreclose on the home and extinguish all other
property interests. Berezovsky acquired the home at the June
4, 2013, foreclosure sale for $10,500; he then recorded the
deed in his name.
In his state action to quiet title, Berezovsky sued all those
holding a property interest in the home, including the
Monizes and BANA. Freddie Mac intervened,
counterclaimed for title, removed the case to federal court,
and moved for summary judgment. To establish its priority
property interest under Nevada law, Freddie Mac produced
evidence showing it had owned the Monizes’ loan since 2007,
and that BANA, the recorded deed-of-trust beneficiary, had
been its loan-servicing agent.
The Agency also intervened as Freddie Mac’s conservator
and joined the summary judgment motion. See Housing and
Economic Recovery Act of 2008 (“HERA”), 12 U.S.C.
§§ 4511, 4513 (empowering Agency to place entities like
Freddie Mac into conservatorship to protect nation’s housing
market and participate in litigation toward same end). In
placing Freddie Mac into conservatorship in 2008, the
Agency acquired Freddie Mac’s “rights, titles, powers, and
privileges . . . with respect to [its] assets” for the life of the
8 BEREZOVSKY V. BANK OF AMERICA
conservatorship. 12 U.S.C. § 4617(b)(2)(A)(I). The
Agency’s conservatorship assets are shielded from certain
adverse actions as spelled out by statute. See generally id.
§ 4617. The asset protection clause known as the Federal
Foreclosure Bar1 provides that “[n]o property of the Agency
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.” Id.
§ 4617(j)(3). In this case, the Agency did not consent to the
association’s foreclosure of Freddie Mac’s lien. For this
reason, the district court concluded, the Federal Foreclosure
Bar supported granting summary judgment for Freddie Mac.
Berezovsky timely appealed. He argues the Federal
Foreclosure Bar does not apply and, even if it does, Freddie
Mac lacks an enforceable property interest. We review the
district court’s decision to grant summary judgment de novo.
Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.
2009) (citing Burrell v. McIlroy, 464 F.3d 853, 855 (9th Cir.
2006)).
II.
Berezovsky offers two reasons the Federal Foreclosure
Bar does not apply. He says (1) the Bar does not apply to
private association foreclosures generally, because it protects
the Agency’s property only from state and local tax liens; and
(2) it does not apply specifically to this foreclosure, because
1
Nevada district courts consistently refer to the statutory bar in
12 U.S.C. § 4617(j)(3) as the “Federal Foreclosure Bar,” a shorthand this
opinion adopts. See, e.g., Fed. Nat’l Mortg. Ass’n v. SFR Invs. Pool 1,
LLC, No. 2:14-cv-02046-JAD-PAL, 2015 WL 5723647, at *3 (D. Nev.
Sept. 28, 2015).
BEREZOVSKY V. BANK OF AMERICA 9
Freddie Mac and the Agency implicitly consented to the
foreclosure when they took no action to stop the sale.2
Whether the Federal Foreclosure Bar applies to private
foreclosures generally is a matter of first impression. In
answering the question, we turn first to the statute’s structure
and plain language. See Avila v. Spokane Sch. Dist. 81,
852 F.3d 936, 941 (9th Cir. 2017). HERA identifies the
powers granted to the Agency as a conservator and the
exemptions from which it benefits. A subsection of the
statute entitled “Other agency exemptions”3 includes the
Federal Foreclosure Bar as the third exemption, and provides
as follows:
(1) Applicability
The provisions of this subsection shall
apply with respect to the Agency in any
case in which the Agency is acting as a
conservator or a receiver.
2
Berezovsky also argues the Federal Foreclosure Bar violates due
process because the statute “lack[s] procedures for notice to interested
parties and procedures for any hearing.” At oral argument, Berezovsky’s
counsel conceded his due process argument seeks to vindicate the
association’s property rights, not his own, and so he lacks standing to raise
this argument. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
3
The word “other” in this context refers back to the exception
codified in a preceding subsection titled “Exempt tax status.” See
12 U.S.C. § 4617(i)(5).
10 BEREZOVSKY V. BANK OF AMERICA
(2) Taxation
The Agency, including its franchise, its
capital, reserves, and surplus, and its
income, shall be exempt from all taxation
imposed by any State, county,
municipality, or local taxing authority,
except that any real property of the
Agency shall be subject to State,
territorial, county, municipal, or local
taxation to the same extent according to
its value as other real property is taxed,
except that, notwithstanding the failure of
any person to challenge an assessment
under State law of the value of such
property, and the tax thereon, shall be
determined as of the period for which
such tax is imposed.
(3) Property protection
No property of the Agency 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.
(4) Penalties and fines
The Agency shall not be liable for any
amounts in the nature of penalties or fines,
including those arising from the failure of
any person to pay any real property,
personal property, probate, or recording
BEREZOVSKY V. BANK OF AMERICA 11
tax or any recording or filing fees when
due.
12 U.S.C. § 4617(j).
On its face, the first provision makes clear that this
subsection applies to “any case” in which the Agency serves
as conservator, without limitation. Id. § 4617(j)(1). Congress
expressly limited the second exemption to taxation under the
plain language of the provision. See id. § 4617(j)(2) (“shall
be exempt from all taxation,” with specified exceptions). But
the Federal Foreclosure Bar, titled “Property protection,” is
not so limited and does not expressly use the word “taxes” at
all. See id. § 4617(j)(3). Notably, it does not limit
“foreclosure” to a subset of foreclosure types. Id. The text of
exemption four, titled “Penalties and fines,” references taxes,
negating agency liability for penalties or fines arising from
unpaid property, probate, or recording taxes. See id.
§ 4617(j)(4). A plain reading of the statute discloses that the
Federal Foreclosure Bar is not focused on or limited to tax
liens. The text of subsection (j) omits taxation from the
general applicability provision, identifies taxes in the second
and fourth exemptions, and then again omits any reference to
taxation in the third exemption, the Federal Foreclosure Bar.
On its face, the Federal Foreclosure Bar applies to any
property for which the Agency serves as conservator and
immunizes such property from any foreclosure without
Agency consent. Id. § 4617(j)(1), (3).
Berezovsky cites the Fifth Circuit’s decision in F.D.I.C.
v. McFarland, 243 F.3d 876 (5th Cir. 2001), to support his
argument that the Federal Foreclosure Bar does not apply to
private foreclosures. The court in McFarland interpreted
12 U.S.C. § 1825(b)(2), a provision of the Financial
12 BEREZOVSKY V. BANK OF AMERICA
Institutions Reform, Recovery, and Enforcement Act of 1989
(“FIRREA”) that governs Federal Deposit Insurance
Corporation (“FDIC”) receiverships. See id. at 885. The
FIRREA provision is worded identically to HERA’s Federal
Foreclosure Bar except that the word “Corporation” appears
in the former where “Agency” appears in the latter. Compare
12 U.S.C. § 1825(b)(2) with 12 U.S.C. § 4617(j)(3).4
The court in McFarland declined to extend § 1825(b)(2)
to private foreclosures. See 243 F.3d at 885–86. In doing so,
it considered the statutory framework in which § 1825(b)(2)
appears. See id. Because that framework is distinguishable
from the framework surrounding the Federal Foreclosure Bar,
McFarland does not provide the answer in this case.
As the court in McFarland observed, before FIRREA’s
passage in 1989, § 1825 included only the provision currently
codified as § 1825(a), exempting the FDIC from all taxation
of any kind while it acted in its corporate capacity. See id. at
886 (citing 12 U.S.C. § 1825 (1988)). FIRREA added
subsection (b), extending the exemption to the FDIC in its
role as receiver. This legislative history demonstrates that the
purpose of § 1825 is to extend the FDIC’s general exemption
from taxation to the receivership context. See id. The titles of
the relevant section and subsection, McFarland noted,
confirmed this conclusion. See id. Section 1825 is labeled
“Exemption from taxation; limitations on borrowing.” By
adding the heading “General rule” to subsection (a), and
4
Specifically, the FDIC provision reads as follows: “No property of
the Corporation shall be subject to levy, attachment, garnishment,
foreclosure, or sale without the consent of the Corporation, nor shall any
involuntary lien attach to the property of the Corporation.” 12 U.S.C.
§ 1825(b)(2).
BEREZOVSKY V. BANK OF AMERICA 13
“Other exemptions” to subsection (b), Congress signaled that
subsection 1825(b), which includes the property protection
provision Berezovsky points to, was intended to address tax
exemptions other than those set out in the “General rule.” See
12 U.S.C. § 1825(b)(1)–(3); McFarland, 243 F.3d at 886. In
contrast, the protection provided by the Federal Foreclosure
Bar applicable here cannot fairly be read as limited to tax
liens because, unlike § 1825, § 4617(j) includes no language
limiting its general applicability provision to taxes alone.
Berezovsky also contends even if the Federal Foreclosure
Bar applies to private association foreclosures generally, it
does not apply to the sale at which he purchased the Monizes’
home because Freddie Mac and the Agency implicitly
consented to the foreclosure when they took no action to stop
it. Berezovsky cites no authority for the proposition that
inaction in this context conveys consent, implicit or
otherwise. The Federal Foreclosure Bar does not require the
Agency to actively resist foreclosure. See 12 U.S.C.
§ 4617(j)(3) (flatly providing that “[n]o property of the
Agency shall be subject to . . . foreclosure, or sale without the
consent of the Agency”). Rather, the statutory language
cloaks Agency property with Congressional protection unless
or until the Agency affirmatively relinquishes it. Id. Here,
the Agency did not agree to forego its property interest.
The Federal Foreclosure Bar applies generally to private
association foreclosures and specifically to the contested
foreclosure sale here.
III.
The parties dispute whether the Federal Foreclosure Bar
preempts Nevada state law. The district court found the
14 BEREZOVSKY V. BANK OF AMERICA
Federal Foreclosure Bar invalidated the homeowners
association’s use of a state-sanctioned superpriority lien to
foreclose on the Agency’s property without its consent. The
inherent tension between the federal and state laws has
triggered multiple lawsuits, the outcomes of which may
depend on our resolution here.5
“The Supremacy Clause unambiguously provides that if
there is any conflict between federal and state law, federal
law shall prevail.” Gonzales v. Raich, 545 U.S. 1, 29 (2005).
This is so even if the federal statutory language does not
explicitly manifest Congress’s preemptive intent. See Altria
Grp., Inc. v. Good, 555 U.S. 70, 76–77 (2008) (internal
citations omitted). Preemption arises when “compliance with
both federal and state regulations is a physical impossibility,
or . . . state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of
5
Every federal district court to face this preemption question has
found § 4617(j)(3) preempts Nevada Revised Statutes section 116.3116,
which enacts the superpriority lien. See, e.g., Fed. Home Loan Mortg.
Corp. v. Donel, No. 2:16-CV-176 JCM (PAL), 2017 WL 2692403, at *3
(D. Nev. June 21, 2017); G & P Inv. Enters., LLC v. Wells Fargo Bank,
N.A., 199 F. Supp. 3d 1266, 1269 (D. Nev. 2016); Elmer v. Freddie Mac,
No. 14-01999, 2015 WL 4393051, at *3 (D. Nev. July 13, 2015); Skylights
LLC v. Byron, 112 F. Supp. 3d 1145, 1159 (D. Nev. 2015), appeal
dismissed (Feb. 2, 2016). Though these courts are unanimous on the
preemption issue, a few courts have denied summary judgment in similar
cases after finding, unlike here, Freddie Mac or Fannie Mae did not
adequately establish a priority property interest. See, e.g., LN Mgmt., LLC
Series 5664 Divot v. Kit Dansker, No. 2:13-cv-01420-RCJ-GWF, 2017
WL 1380414, at *2 (D. Nev. Apr. 13, 2017) (finding a genuine issue of
material fact as to whether the Agency owned the note and deed of trust
at the time of sale); Nationstar Mortg. LLC v. D’Andrea Cmty. Ass’n, No.
3:15-cv-00377-RCJ-VPC, 2017 WL 58582, at *4 (D. Nev. Jan. 4, 2017)
(same).
BEREZOVSKY V. BANK OF AMERICA 15
Congress.” Bank of Am. v. City & Cty. of S.F., 309 F.3d 551,
558 (9th Cir. 2002) (internal citations and quotation marks
omitted).
A court begins its preemption analysis by assessing
whether the presumption against preemption applies.
Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)
(“Consideration of issues arising under the Supremacy Clause
start[s] with the assumption that the historic police powers of
the States [are] not to be superseded by . . . Federal Act unless
that [is] the clear and manifest purpose of Congress.”)
(internal citation and quotation marks omitted); see also
California v. ARC Am. Corp., 490 U.S. 93, 101 (1989)
(“[A]ppellees must overcome the presumption against finding
pre-emption of state law in areas traditionally regulated by
the States.”) (citation omitted).
Real estate foreclosure traditionally is an area regulated
by state law, so we begin our analysis with a presumption
against pre-emption of the Nevada superpriority lien law. See
BFP v. Resolution Tr. Corp., 511 U.S. 531, 544 (1994); In re
Bledsoe, 569 F.3d 1106, 1112 (9th Cir. 2009). The
presumption against preemption is rebutted, however, where
Congress makes its intent to supersede state law “clear and
manifest.” See Arizona v. United States, 567 U.S. 387, 400
(2012).
We assess first whether the Federal Foreclosure Bar
demonstrates clear and manifest intent to preempt Nevada’s
superpriority lien provision through an express preemption
clause and conclude it does not. Congress did not use
sufficiently definite language to brand § 4617(j)(3) as
expressly preemptive, although it unquestionably knows how
to do so. See, e.g., Nat’l Meat Ass’n v. Harris, 565 U.S. 452,
16 BEREZOVSKY V. BANK OF AMERICA
458 (2012) (finding express preemption in 21 U.S.C. § 678’s
directive that any requirements “in addition to, or different
than those made under [the Federal Meat Inspection Act] may
not be imposed by any State”); Perez v. Nidek Co., 711 F.3d
1109, 1117 (9th Cir. 2013) (finding express preemption in
21 U.S.C. § 360k(a)’s pronouncement that “no State . . . may
establish or continue . . . any requirement . . . which is
different from, or in addition to, any requirement applicable
under this chapter”).
The question, then, is whether the Federal Foreclosure
Bar implicitly demonstrates a clear intent to preempt
Nevada’s superpriority lien law. We conclude it does. The
Federal Foreclosure Bar’s declaration that “[n]o property of
the Agency shall be subject to . . . foreclosure” unequivocally
expresses Congress’s “clear and manifest” intent to supersede
any contrary law, including state law, that would allow
foreclosure of Agency property without its consent.
Although the Federal Foreclosure Bar permits the Agency to
consent to relinquish its interest in the face of an association’s
superpriority lien, the same Bar expressly prohibits
foreclosures on Agency property without consent. Nevada
law, in contrast, allows homeowners association foreclosures
under the circumstances present in this case to automatically
extinguish the Agency’s property interest without the
Agency’s consent. See Nev. Rev. Stat. § 116.3116.6
6
Section 116.3116, titled “Liens against units for assessments,”
provides as follows:
1. The association has a lien on a unit for any
construction penalty that is imposed against the unit’s
owner pursuant to NRS 116.310305, any assessment
levied against that unit or any fines imposed against the
unit’s owner from the time the construction penalty,
BEREZOVSKY V. BANK OF AMERICA 17
assessment or fine becomes due. Unless the declaration
otherwise provides, any penalties, fees, charges, late
charges, fines and interest charged pursuant to
paragraphs (j) to (n), inclusive, of subsection 1 of NRS
116.3012 and any costs of collecting a past due
obligation charged pursuant to NRS 116.310313 are
enforceable as assessments under this section. If an
assessment is payable in installments, the full amount
of the assessment is a lien from the time the first
installment thereof becomes due.
2. A lien under this section is prior to all other liens
and encumbrances on a unit except:
(a) Liens and encumbrances recorded before the
recordation of the declaration and, in a cooperative,
liens and encumbrances which the association creates,
assumes or takes subject to;
(b) A first security interest on the unit recorded before
the date on which the assessment sought to be enforced
became delinquent or, in a cooperative, the first
security interest encumbering only the unit’s owner’s
interest and perfected before the date on which the
assessment sought to be enforced became delinquent,
except that a lien under this section is prior to a security
interest described in this paragraph to the extent set
forth in subsection 3;
(c) Liens for real estate taxes and other governmental
assessments or charges against the unit or cooperative;
and
(d) Liens for any fee or charge levied pursuant to
subsection 1 of NRS 555.520.
Nev. Rev. Stat. § 116.3116. As the Nevada Supreme Court has explained,
subsection 116.3116(2) “elevates the priority of the [homeowners
association] lien over other liens,” with some exceptions. SFR Invest.
18 BEREZOVSKY V. BANK OF AMERICA
Nevada’s law is an obstacle to Congress’s clear and manifest
goal of protecting the Agency’s assets in the face of multiple
potential threats, including threats arising from state
foreclosure law.
“[E]ven if it is possible to comply with both state and
federal law, state law is conflict-preempted whenever it
‘stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.’” Ariz.
Dream Act Coal. v. Brewer, 757 F.3d 1053, 1061 (9th Cir.
2014) (quoting Arizona, 567 U.S. at 399). As the two statutes
impliedly conflict, the Federal Foreclosure Bar supersedes the
Nevada superpriority lien provision. The district court did
not err in so concluding.
IV.
Berezovsky maintains that even if the Federal Foreclosure
Bar applies to his case and is preemptive, the district court
should not have granted summary judgment to Freddie Mac
because Freddie Mac did not prove beyond dispute that it
holds an enforceable property interest. Berezovsky faults
Freddie Mac for never recording its interest, for “splitting”
the note from the deed of trust, and for pointing to
Pool 1, 334 P.3d at 410. The exceptions clarify that the statute “splits [a
homeowners association’s] lien into two pieces, a superpriority piece and
a subpriority piece. The superpriority piece, consisting of the last nine
months of unpaid [association] dues and maintenance and nuisance-
abatement charges, is ‘prior to’ a first deed of trust. The subpriority piece,
consisting of all other [homeowners association] fees or assessments, is
subordinate to a first deed of trust.” Id. at 411. In this case, the
homeowners association’s lien qualifies as superpriority as it covers dues
not paid in early 2011, with the lien recorded within nine months, by
March 2011.
BEREZOVSKY V. BANK OF AMERICA 19
insufficient evidence to establish its interest for purposes of
summary judgment.
Here, we look to the Nevada Supreme Court’s resolution
of these issues. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78
(1938) (“Except in matters governed by the Federal
Constitution or by acts of Congress, the law to be applied in
any case is the law of the state.”). Nevada law requires
recording of a lien for it to be enforceable, but does not
mandate that the recorded instrument identify the note owner
by name. See Nev. Rev. Stat. § 106.210.7 If the named
beneficiary under the recorded deed of trust is someone other
than the note owner, the recordation separates “the note and
the security deed [and] creates a question of what entity
would have authority to foreclose, but does not render either
instrument void.” Edelstein v. Bank of N.Y. Mellon, 286 P.3d
249, 259 (Nev. 2012) (citation omitted).
The Nevada Supreme Court has relied on the Restatement
Third of Property to clarify lien enforceability when the
recording document lists the deed-of-trust beneficiary, here
BANA, but not the note owner, here Freddie Mac. See In re
Montierth, 354 P.3d 648, 650–51 (Nev. 2015) (citing
Restatement (Third) of Property: Mortgages § 5.4 cmt. c
(Am. Law. Inst. 1997)). Under these circumstances—that is,
where the note is “split” from the deed of trust—an “agency
relationship” with the recorded beneficiary preserves the note
owner’s power to enforce its interest under the security
7
This recording provision provides in relevant part, “Any assignment
of a mortgage of real property . . . and any assignment of the beneficial
interest under a deed of trust must be recorded in the office of the recorder
of the county in which the property is located . . . .” Nev. Rev. Stat.
§ 106.210.
20 BEREZOVSKY V. BANK OF AMERICA
instrument, because the note owner can direct the beneficiary
to foreclose on its behalf. See id. An agency relationship
exists if the note owner has the ability to reclaim the deed of
trust from the beneficiary by ordering that the beneficiary
make an assignment. Id. at 651.
Nevada law thus recognizes that, in an agency
relationship, a note owner remains a secured creditor with a
property interest in the collateral even if the recorded deed of
trust names only the owner’s agent. Id. (noting the
Restatement (Third) of Property acknowledges the note
holder retains its security interest even if the beneficial
interest under the deed of trust is assigned to its loan-
servicing agent).
Although the recorded deed of trust here omitted Freddie
Mac’s name, Freddie Mac’s property interest is valid and
enforceable under Nevada law. Freddie Mac introduced
evidence8 in the district court showing it acquired the
Monizes’ loan secured by the property in 2007; BANA is
identified as Freddie Mac’s loan servicer in those documents.
Freddie Mac also introduced excerpts of its Single-Family
Seller/Servicer Guide (“Guide”), which defines its agency
8
Berezovsky’s objection to the timeliness and admissibility of
Freddie Mac’s evidence is unavailing. Freddie Mac timely filed its
evidence with its cross-motion for summary judgment, and Freddie Mac’s
database printouts are admissible business records. U-Haul Int’l, Inc. v.
Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1043 (9th Cir. 2009).
Although discovery had not yet opened, Berezovsky himself moved for
summary judgment and agreed to the district court’s resolving the motions
without further discovery.
BEREZOVSKY V. BANK OF AMERICA 21
relationship with BANA.9 The Guide provides that when
Freddie Mac purchases a mortgage, the “Servicer agree[s]
Freddie Mac may, at any time and without limitation, require
the [] Servicer, at the [] Servicer’s expense, to make such
endorsements to and assignments and recordations of any of
the Mortgage documents so as to reflect the interests of
Freddie Mac.” Guide at 1301.10. The Guide also provides
that “Freddie Mac may, at its sole discretion and at any time,
require a Seller/Servicer, at the Seller/Servicer’s expense, to
prepare, execute and/or record assignments of the Security
Instrument to Freddie Mac . . . .” Guide at 6301.6. The
Guide’s language mirrors Montierth’s description of the
requisite agency relationship. BANA is Freddie Mac’s agent
with respect to the Monizes’ loan. Freddie Mac’s property
interest is therefore valid and enforceable under Nevada law.
Berezovsky points to no evidence before the district court
that created a material dispute regarding the legal import of
Freddie Mac’s exhibits concerning its interest in the property.
He must have shown more than “metaphysical doubt as to the
material facts” to warrant reversal, and has not done so here.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986) (citation omitted). The district court
correctly found Freddie Mac’s priority property interest
enforceable under Nevada law.
V.
Because Freddie Mac possessed an enforceable property
interest and was under the Agency’s conservatorship at the
9
We take judicial notice of the Guide, which governs Freddie Mac’s
relationship with its servicers. See Fed. Rule Evid. 201 (b), (d). The
Guide was properly before the District Court.
22 BEREZOVSKY V. BANK OF AMERICA
time of the homeowners association foreclosure sale, the
Federal Foreclosure Bar served to protect the deed of trust
from extinguishment. Freddie Mac continued to own the
deed of trust and the note after the sale to Berezovsky. The
district court properly granted summary judgment in favor of
Freddie Mac.
AFFIRMED.