Saticoy Bay, LLC, Series 2714 Snapdragon v. Flagstar Bank, FSB ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SATICOY BAY, LLC, Series 2714 No. 16-15478
Snapdragon,
D.C. No. 2:13-cv-01589-JCM-VCF
Plaintiff-Appellant,
v. MEMORANDUM*
FLAGSTAR BANK, FSB; BRYANT
SPARKS; KATHERINE SPARKS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted October 18, 2017**
San Francisco, California
Before: HAWKINS, W. FLETCHER, and TALLMAN, Circuit Judges.
Plaintiff Saticoy Bay, LLC, Series 2714 Snapdragon (“Saticoy”) appeals the
district court’s grant of summary judgment for Defendant Flagstar Bank, FSB
(“Flagstar”). We have jurisdiction under 28 U.S.C. § 1291, and we review a
*
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).
district court’s grant of summary judgment de novo. Gordon v. Virtumundo, Inc.,
575 F.3d 1040, 1047 (9th Cir. 2009). We affirm.
After Bryant and Katherine Sparks failed to pay homeowners association
(“HOA”) dues, Eastbridge Gardens Condominiums Homeowners Association sold
Saticoy the Sparks’ property at a non-judicial foreclosure sale without first
obtaining consent of the owner of beneficial interest, Fannie Mae. Saticoy sought
declaratory relief and to quiet title in Nevada state court, Flagstar removed the
case, and the federal district court granted Flagstar summary judgment based on
federal preemption. Saticoy argues Flagstar did not have standing to assert federal
preemption, Fannie Mae was not the owner of the property, and the “new
evidence” presented in support of summary judgment was insufficient. These
arguments are unavailing.
The Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3), which prohibits
foreclosure of federally owned or controlled property “without the consent of the
Agency,” preempts Nevada HOA superpriority liens under Nev. Rev. Stat.
116.3116(2). Berezovsky v. Moniz, 869 F.3d 923, 931 (9th Cir. 2017). Without the
consent of the Federal Housing Finance Agency, Fannie Mae’s Conservator, the
foreclosure and sale of Fannie Mae’s property to Saticoy was unlawful.
Flagstar, as the loan servicer, acts as Fannie Mae’s agent, and has standing
to assert a claim of federal preemption. See id. at 932; Nationstar Mortg., LLC v.
SFR Invs. Pool 1, LLC, 396 P.3d 754, 758 (Nev. 2017). Furthermore, Flagstar
established that there were no genuine issues of material fact regarding Fannie
Mae’s ownership. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317 (1986). Flagstar’s discussion of evidence in its reply brief was not new
evidence before the district court, SEC v. Platforms Wireless Int’l Corp., 617 F.3d
1072, 1100 (9th Cir. 2010), and its affidavit and documentary evidence were
properly considered, see Matthews v. Nat’l Football League Mgmt. Council, 688
F.3d 1107, 1113 (9th Cir. 2012). Additionally, Saticoy did not conduct discovery
or provide any evidence to show more than a “metaphysical doubt as to the
material facts” that would preclude summary judgment. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Costs are awarded to Flagstar.
AFFIRMED.