Nationstar Mortgage LLC v. Travertine Lane Trust ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONSTAR MORTGAGE LLC; No. 19-17197
FEDERAL HOME LOAN MORTGAGE
CORPORATION, D.C. No.
2:17-cv-02624-RFB-BNW
Plaintiffs-Appellees,
v. MEMORANDUM*
TRAVERTINE LANE TRUST,
Defendant-Appellant,
and
COPPER CREEK HOMEOWNERS
ASSOCIATION; ATC ASSESSMENT
COLLECTION GROUP, LLC,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted April 13, 2022**
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: BADE and LEE, Circuit Judges, and CARDONE,*** District Judge.
Travertine Lane Trust appeals the district court’s order granting summary
judgment for Nationstar Mortgage, LLC and the Federal Home Loan Mortgage
Corporation (“Freddie Mac”) in this quiet title action. We have jurisdiction under
28 U.S.C. § 1291. We review de novo, see Oswalt v. Resolute Indus., Inc., 642 F.3d
856, 859 (9th Cir. 2011), and we affirm.
1. Freddie Mac’s claims are timely. The statute of limitations period for
quiet title actions under 12 U.S.C. § 4617(b)(12) is six years. M & T Bank v. SFR
Invs. Pool 1, LLC, 963 F.3d 854, 858–59 (9th Cir. 2020). The claims in this case
accrued on November 26, 2012, when Travertine bought the property at a
foreclosure sale. See id. Freddie Mac filed its claims on October 9, 2017. Freddie
Mac’s claims thus are not barred by the statute of limitations.
2. The district court correctly held that no genuine issue of material fact
exists as to Freddie Mac’s property interest at the time of the foreclosure sale. To
show its interest in the property at issue, Freddie Mac offered evidence from its
computer database showing that in November 2007 Freddie Mac acquired ownership
of a mortgage loan, including both the note and its associated deed of trust, secured
by real property located at 6777 Travertine Lane, Las Vegas, NV 89122. Freddie
***
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
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Mac also offered a declaration from one of its employees to explain and authenticate
the records. Freddie Mac further included excerpts from its servicer guide detailing
its rights and the servicer’s obligations to Freddie Mac. This court, and the Nevada
Supreme Court, have repeatedly affirmed the adequacy of such evidence to invoke
the federal foreclosure bar. See, e.g., Berezovsky v. Moniz, 869 F.3d 923, 932–33
(9th Cir. 2017); Daisy Tr. v. Wells Fargo Bank, N.A., 445 P.3d 846, 849–51 (Nev.
2019). Such evidence is valid even where the employee testifying about the business
records did not personally input each piece of data. Nationstar Mortg. LLC v.
Saticoy Bay LLC, Series 9229 Millikan Ave., 996 F.3d 950, 956–57 (9th Cir. 2021).
Nor does it create a genuine dispute of material fact that the recorded deed of
trust does not name Freddie Mac. In Berezovsky, we held that the law “does not
mandate that the recorded instrument identify the note owner by name.” 869 F.3d
at 932. And based on evidence identical to what is offered in this case, we held that
“Freddie Mac’s property interest is valid and enforceable under Nevada law,” even
though “the recorded deed of trust here omitted Freddie Mac’s name.” Id.
3. State law doctrines do not prevent application of the federal foreclosure
bar. Travertine cannot assert the statute of frauds because that defense “is personal,
and available only to the contracting parties or their successors in interest.” Harmon
v. Tanner Motor Tours of Nev., Ltd., 377 P.2d 622, 628 (Nev. 1963). Travertine was
not a party to the underlying loan agreement under which Freddie Mac acquired the
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loan, and so it cannot invoke the statute of frauds. See Millikan, 996 F.3d at 957.
“The fact that [Freddie Mac] completed such an acquisition more than fifteen years
ago further undermines the applicability of the statute of frauds” because
performance removes a contract from the statute of frauds. Id. (citing Edwards
Indus., Inc. v. DTE/BTE, Inc., 923 P.2d 569, 574 (Nev. 1996) (per curiam)).
Finally, Travertine argues that it should be protected as a bona fide purchaser.
Generally, a purchaser must take the property without notice of the prior equity to
qualify as bona fide. See Shadow Wood Homeowners Ass’n v. N.Y. Cmty. Bancorp,
Inc., 366 P.3d 1105, 1115 (Nev. 2016). In Millikan, we held that the defendant had
record notice of the prior equity because the deed was recorded, the note included
language that it could be “sold one or more times without prior notice,” and the deed
included a footer indicating Fannie Mae’s possible involvement. 996 F.3d at 958.
It thus declined to hold that the defendant was a bona fide purchaser. Id. The facts
in this case are the same as in Millikan. The deed of trust was recorded. The deed
of trust states that “the Note (together with this Security Instrument) can be sold one
or more times without prior notice to the Borrower.” It also includes a footer
indicating that it is a “Fannie Mae/Freddie Mac UNIFORM INSTRUMENT.” So,
just like in Millikan, Travertine had record notice of Freddie Mac’s prior equity and
is therefore not a bona fide purchaser.
AFFIRMED.
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