Alessi & Koenig, LLC v. Saticoy Bay LLC Series 10250 ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALESSI & KOENIG, LLC, No. 18-16166
Plaintiff-Appellee, D.C. No.
2:15-cv-00805-JCM-CWH
v.
SATICOY BAY LLC SERIES 10250 SUN
DUSK LN,
MEMORANDUM*
Defendant-Counter-
Defendant-Appellant,
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION; FEDERAL HOUSING
FINANCE AGENCY, as Conservator for
the Federal National Mortgage Association,
Defendants-Counter-
Claimants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge
Submitted January 9, 2020**
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: WATFORD, BENNETT, and LEE, Circuit Judges.
Saticoy Bay LLC appeals the district court’s grant of summary judgment for
The Federal National Mortgage Association (“Fannie Mae”) and the Federal
Housing Finance Agency (“Agency”). We have jurisdiction under 28 U.S.C.
§ 1291, and we review de novo the district court’s grant of summary judgment. See
Berezovsky v. Moniz, 869 F.3d 923, 927 (9th Cir. 2017). We affirm.
In August 2002, a deed of trust reflecting a loan was recorded against a Las
Vegas residential property. Fannie Mae bought the loan in September 2002 and
took ownership of the deed of trust. The property owner defaulted on assessments
owed to a homeowners association (“HOA”). The foreclosure agent for the HOA,
Alessi & Koenig, LLC, recorded a notice of default and election to sell, and on
September 3, 2014, Saticoy bought the property without first obtaining the
Agency’s consent.
Alessi submitted a complaint in interpleader in Nevada state court, Fannie
Mae removed to federal court, and the federal district court granted Fannie Mae
summary judgment based on federal preemption. Saticoy timely appealed, arguing
that the Nevada superpriority lien provision extinguished Fannie Mae’s interest.
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.
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§ 116.3116(2). See Berezovsky, 869 F.3d at 931. It is undisputed that (1) Fannie
Mae held an interest in the property at the time of sale and was under the Agency’s
conservatorship, and (2) the Agency did not affirmatively consent to the
foreclosure. Summary judgment was therefore proper.
Saticoy’s other arguments are unavailing. This court will not infer the
Agency’s consent to the sale because § 4617(j)(3) “cloaks Agency property with
Congressional protection unless or until the Agency affirmatively relinquishes it.”
Id. at 929. In addition, the terms of Fannie Mae’s Servicing Guide do not negate
§ 4617(j)(3). Finally, Saticoy cannot escape the Federal Foreclosure Bar merely
because Fannie Mae did not pay the property owner’s overdue HOA fees. The
homeowner was responsible for the fees, which were not in default until five years
after the Agency’s conservatorship began.
Finally, we note that Saticoy previously made many of the same arguments
in Saticoy Bay, LLC, Series 2714 Snapdragon v. Flagstar Bank, FSB, 699 F. App’x
658, 659 (9th Cir. 2017) — and this court rejected them. Indeed, this court has
repeatedly rejected these same arguments in other cases. See, e.g., Berezovsky, 869
F.3d at 931; Elmer v. JPMorgan Chase & Co., 707 F. App’x 426, 429 (9th Cir.
2017); JP Morgan Chase Bank v. Las Vegas Dev. Grp., LLC, 740 F. App’x 153,
154 (9th Cir. 2018); Fed. Nat’l Mortg. Ass’n v. KK Real Estate Inv. Fund, LLC,
772 F. App’x 552, 553 (9th Cir. 2019). Saticoy has other appeals pending before
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this court advancing these same, explicitly rejected arguments. The court cautions
Saticoy against pursuing non-meritorious appeals.
AFFIRMED.
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