Ditech Financial LLC v. Saticoy Bay LLC Series 8829 ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DITECH FINANCIAL LLC; FEDERAL No. 18-16199
NATIONAL MORTGAGE
ASSOCIATION, D.C. No.
2:17-cv-02164-JCM-GWF
Plaintiffs-Appellees,
v. MEMORANDUM*
SATICOY BAY LLC SERIES 8829
CORNWALL GLEN,
Defendant-Appellant,
and
AMERICAN WEST VILLAGE II
OWNERS ASSOCIATION; NEVADA
ASSOCIATION SERVICES, INC.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted February 7, 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: BOGGS,*** IKUTA, and LEE, Circuit Judges.
Saticoy Bay appeals from the district court’s entry of summary judgment in
favor of Ditech Financial LLC and the Federal National Mortgage Association
(Fannie Mae). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. This court has already found that 12 U.S.C. § 4617(j)(3), also known
as the Federal Foreclosure Bar, preempts Nev. Rev. Stat. § 116.3116(2).
Berezovsky v. Moniz, 869 F.3d 923, 931 (9th Cir. 2017). Moreover, “the Federal
Foreclosure Bar applies to any property for which the [Federal Housing Finance
Agency (FHFA)] serves as conservator,” so the Federal Foreclosure Bar applies to
all of Fannie Mae’s property, id. at 928, because FHFA serves as Fannie Mae’s
conservator, see, e.g., 12 U.S.C. § 4617(i)(2)(A)(i).
2. Fannie Mae has presented admissible evidence, specifically business
records and an employee declaration authenticating those records, that it had a
valid interest in the property at issue. We have found that this is enough to
establish ownership over the property interest. See id. at 932–33 & n.8; see also
U-Haul Int’l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1044 (9th Cir.
2009) (“It is not necessary for each individual who entered a record of payment
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
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into the database to testify as to the accuracy of each piece of data entered.”).
Saticoy Bay’s arguments that Fannie Mae did not have a valid property interest due
to Nevada’s statute of frauds and because Fannie Mae did not appear as the deed of
trust’s record beneficiary are unavailing. Easton Bus. Opportunities v. Town Exec.
Suites, 230 P.3d 827, 832 n.4 (Nev. 2010) (noting “the general law that, while
statute of frauds provisions may ‘prevent enforcement against an assignor unless
there is a memorandum in writing or some substitute formality, . . . they cannot
ordinarily be asserted by third persons, including the obligor of an assigned
right’”); Berezovsky, 869 F.3d at 932 (“Although the recorded deed of trust here
omitted Freddie Mac’s name, Freddie Mac’s property interest is valid and
enforceable under Nevada law.”).
3. Equitable considerations do not require a different result. Saticoy Bay
is not a bona fide purchaser because there was constructive notice of an adverse
interest to the deed of trust. The deed of trust states on its first page that a “Rider”
to the deed of trust is the “NEVADA-Single Family- Fannie Mae/Freddie Mac
UNIFORM INSTRUMENT WITH MERS.” Moreover, there is no adequate
remedy at law for what Fannie Mae seeks: an affirmance that it continues to have
an interest in the property at issue. Finally, § 4617(j)(3) gives FHFA protection
until it “affirmatively relinquishes it,” Berezovsky, 869 F.3d at 929, which
necessarily precludes implying consent from inaction.
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4. Ditech and Fannie Mae request that we admonish Saticoy Bay for
taking positions that are irreconcilable with published, on-point decisions. In light
of the published cases foreclosing Saticoy’s arguments, Saticoy and its counsel are
warned not to raise such meritless arguments in the future.
AFFIRMED.
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