fnma/fannie Mae v. Ron Haus ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FEDERAL NATIONAL MORTGAGE No. 19-17224
ASSOCIATION,
D.C. No.
Plaintiff-Appellee, 2:17-cv-01756-RFB-DJA
v.
MEMORANDUM*
RON HAUS; EVA BEROU,
Defendants-Appellants,
and
LOS PRADOS COMMUNITY
ASSOCIATION,
Defendant,
v.
FEDERAL HOUSING FINANCE
AGENCY,
Movant.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted September 2, 2020**
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and KENDALL, *** District
Judge.
Ron Haus and Eva Berou (“Appellants”) appeal the district court’s grant of
summary judgment in favor of Federal National Mortgage Association (“Fannie
Mae”) in this declaratory judgment/quiet title action. Appellants purchased certain
real property in Nevada at a foreclosure sale conducted by a homeowner’s
association (“HOA”). Fannie Mae sought application of the Federal Foreclosure
Bar, 12 U.S.C. § 4617(j)(3), because the Federal Housing Finance Agency
(“FHFA”), as conservator for Fannie Mae, did not consent to the foreclosure sale.
We have jurisdiction under 28 U.S.C. § 1291 and review the summary judgment
grant de novo. Berezovsky v. Moniz, 869 F.3d 927, 929 (9th Cir. 2017).
Pursuant to the Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3), without the
FHFA’s express consent, an HOA foreclosure under Nevada law does not extinguish
the interest of FHFA as conservator for Fannie Mae. Fed. Home Loan Mortg. Corp.
v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1146–47 (9th Cir. 2018). Although
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
2
Nationstar Mortgage, LLC, the servicer for Fannie Mae, was the record beneficiary
of the deed of trust at the time of the foreclosure sale, Fannie Mae sufficiently
established its ownership interest in the note and deed of trust at the time of the sale
using authenticated business records. Berezovsky, 869 F.3d at 932–33.
The district court correctly held that Fannie Mae’s failure to record its
ownership interest did not preclude application of the Federal Foreclosure Bar.
When the recording document lists the deed-of-trust beneficiary, but not the note
owner, “an ‘agency relationship’ with the recorded beneficiary preserves the note
owner’s power to enforce its interest under the security instrument, because the note
owner can direct the beneficiary to foreclose on its behalf.” Id. at 932 (citing In re
Montierth, 354 P.3d 648, 650–51 (Nev. 2015)). Accordingly, the district court
correctly concluded that Fannie Mae possessed an ownership interest and properly
applied the Federal Foreclosure Bar. Fed. Home Loan Mortg. Corp., 893 F.3d at
1149–50.
Appellants attempt to use the statute of frauds to circumvent this result, but as
a third party to the note and deed of trust transactions, they cannot invoke the statute.
In re Circle K Corp., 127 F.3d 904, 908 (9th Cir. 1997) (it would be for the original
contracting parties, not a third party, to raise the statute of frauds as a defense); see
also Harmon v. Tanner Motor Tours of Nev., Ltd., 377 P.2d 622, 628 (Nev. 1963)
(stranger to an alleged agreement cannot challenge legal sufficiency of writings).
3
Nor can Appellants rely on Nevada’s Bona Fide Purchaser laws. Appellants had
notice of an adverse interest in the property because the deed of trust was recorded
in the name of Fannie Mae’s agent—its former servicer—at the time of the
foreclosure sale. See Daisy Tr. v. Wells Fargo Bank, N.A., 445 P.3d 846, 849 (Nev.
2019) (en banc).
Finally, application of the Federal Foreclosure Bar does not violate
Appellants’ due process rights. Fed. Home Loan Mortg., 893 F.3d at 1147–50
(federal preemption forecloses purchaser’s purported interest in the property prior to
its vestment; thus, purchaser has no constitutionally protected property interest under
state law).
AFFIRMED.
4