Federal Housing Finance Agency v. Thunder Properties, Inc. ( 2019 )

2 4 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 8 ) Case #3:16-cv-00461-RCJ-WGC FEDERAL HOUSING FINANCE ) — 91 AGENCY, etal, ) . ) VERIFIED PETITION FOR 10 Plaintiff(s), ) PERMISSION TO PRACTICE ) IN THIS CASE ONLY BY Il vs. ) ATTORNEY NOT ADMITTED ) TO THE BAR OF THIS COURT 12 4 ) AND DESIGNATION OF THUNDER PROPERTIES, INC., ) LOCAL COUNSEL 13 ) Defendant(s). ) 14 ) FILING FEE IS $250.00 15 16 Michael A. F. Johnson , Petitioner, respectfully represents to the Court: (name of petitioner) 17 1, That Petitioner is an attorney at law and a member of the law firm of Arnold & Porter Kaye Scholer LLP eee (fii name) || with offices at 601 Massachusetts Ave., NW □ (street address) a Washington : District of Columbia ,___ 20001 □ (city) (state) (zip code) 23 202-942-5783 , __ michael johnson@amoldporter.com (area code + telephone number) (Email address) 24 as That Petitioner has been retained personally or as a member of the law firm by 25 . Federal Housing Finance Agency to provide legal representation in connection with 26 [chent(s)] 27||_ the above-entitled case now pending before this Court. 28 Rev. 5/16 1 3, That since December 7, 1998 , Petitioner has been and presently is a || member in good standing of the bar of □□ uickiost Court of the State of __ District of Columbia _ where Petitioner regularly practices law. Petitioner shall attach a certificate from le cae bar or from the clerk of the supreme court or highest admitting court of each state, territory, or insular || possession of the United States in which the applicant has been admitted to practice law certifying 6|| the applicant's membership therein is in good standing. 7 4, That Petitioner was admitted to practice before the following United States District □□ Courts, United States Circuit Courts of Appeal, the Supreme Court of the United States and Courts 91 of other States on the dates indicated for each, and that Petitioner is presently a member in good standing of the bars of said Courts. 11 Court Date Admitted Bar Number 12 See attached IP nt ee □□□ er eee aes 19 5. That there are or have been no disciplinary proceedings instituted against petitioner, = nor any suspension of any license, certificate or privilege to appear before any judicial, regulatory or administrative body, or any resignation or termination in order to avoid disciplinary or = disbarment proceedings, except as described in detail below: (State “none” if Petitioner has no disciplinary proceedings, etc.) None 24 25 26 27 28 2 Rev, 5/16 I 6, That Petitioner has never been denied admission to the State Bar of Nevada. (Give particulars if ever denied admission): |(State “none” if Petitioner has never been denied admission.) None 5 6 th That Petitioner is a member of good standing in the following Bar Associations. 7 (State “none” if Petitioner is not a member of other Bar Associations.) District of Columbia Court of Appeals Supreme Court of Virginia 10 8. Petitioner has filed application(s) to appear as counsel under Local Rule IA 11-2 11 (formerly LR 1A 10-2) during the past three (3) years in the following matters: (State “none” if no applications.) 12 Date of Application Cause Title of Court Was Application Administrative Body Granted or 13 or Arbitrator Denied 14 See Attached Df Ma 19 (If necessary, please attach a statement of additional applications) 20 9, Petitioner consents to the jurisdiction of the courts and disciplinary boards of the 21 State of Nevada with respect to the law of this state governing the conduct of attorneys to the same extent as a member of the State Bar of Nevada. 23 10. Petitioner agrees to comply with the standards of professional conduct required of 24|| the members of the bar of this court. 25 11. Petitioner has disclosed in writing to the client that the applicant is not admitted to 26]| practice in this jurisdiction and that the client has consented to such representation. 27 28 3 Rev. $/16 1 That Petitioner respectfully prays that Petitioner he admitted to practice before this Court FOR THE PURPOSES OF THIS CASE ONLY. 4 . N ue A . Petitioner's signature □ STATE OF PrstrictofCehimbra- ) 5 ae * ) county of U\a* ) 7 Michael A. F. Johnson __, Petitioner, beixg firs sworn, deposes and says: That the foregoing statements are true. —~$h 6 Petitioner's signature 10] Subscribed and sworn to before me this 5 lgvim bee A day of he eS "| 12 Cdn MORGANNE ae — far en. NOTARY PUBL! 7Y)MN’ Po □ Ca) STATE OF NEVADA - : ae —_—APPT. NO. 10-1647-1 4 Notary Public or Clerk of Court ee MY APPT. EXPIRES AUGUST 29, 2028 15 16 DESIGNATION OF RESIDENT ATTORNEY ADMITTED TO THE BAR OF THIS COURT AND CONSENT THERETO. 17 Pursuant to the requirements of the Local Rules of Practice for this Court, the Petitioner 18 believes it to be in the best interests of the client(s) to designate Leslie Bryan Hart 3 19 (name of local counsel) Attorney at Law, member of the State of Nevada and previously admitted to practice before the 20 above-entitled Court as associate resident counsel in this action. The address and email address of 21 said designated Nevada counsel is: 22 23 Fennemore Craig, P.C. - 300 E. Second St., Suite 1510 □ (street address) 24 Reno Nevada □□□□□□ 25 (city) (state) (zip code) 26 775-788-2228 ls tart@iclaw.com “(area code + telephone number) (Email address) 27 28 4 Rev. 5/16 1 By this designation the petitioner and undersigned party(ies) agree that this designation constitutes 2|| agreement and authorization for the designated resident admitted counsel to sign stipulations 3 {| binding on all of us. 5 APPOINTMENT OF DESIGNATED RESIDENT NEVADA COUNSEL 7 The undersigned party(ies) appoint(s) Leslie Bryan Hart, Esq. as (name of local counsel) gi! his/her/their Designated Resident Nevada Counsel in this case. 9 : , 10 - arty's signature 11 ‘ Michhe!l Sitepp AssoncuTe Geta □□ 12 (type or print party name, title) (fee (HER 13 ne (party's signature) 14 15 poco gi NE (type or print party name, title) 16 17 CONSENT OF DESIGNEE The undersigned hereby consents to séiVe as associate resident Nevada counsel in this case. 18 □ 19 if. wae Cn 2 Lo ete 20 Designated Resident da Counsel’s signature 24 4932 lhart@fclaw.com Bar number Email address 23 APPROVED: 24 DATEDANip 23'S of December, 2019. 25 i = ‘ 26 : ] NITED STATEY DISTRICT JUDGE 27 28 5 Rev. 8/14 Question 4 Michael Alexander Johnson - Federal Court Admissions Good Standing? States First Circuit Second Circuit U.S. Court of Appeals for the | April 29, 2013 tract ee [AE Fourth Circuit Sixth Circuit Seventh Circuit U.S. Court of Appeals for the | May 6, 2013 pgincrae [MES Ninth Circuit Eleventh Circuit District of Columbia Circuit Federal Circuit Federal Claims Eastern District of Virginia District of Columbia U.S. District Court for the February 5, 2007 Yes 16941 Dassen Le [es Western District of Michigan U.S. District Court for the February 10, 2012 Yes No bar number assigned. EaenbancratMicign [ee |e [exam Eastern District of Wisconsin U.S. District Court for the June 26, 2013 Yes No bar number assigned. [Wesenbavirornevvox | | ne 61634812 Michael Alexander Johnson - State Court Admissions Court Date Active Status & Good Bar Number Standing? District of Columbia Court | December 7, 1998 Yes 460879 of Appeals Supreme Court of Virginia | October 9, 1997 41588 61634812 Question 8 Michael A.F. Johnson - Prior Applications to Appear as Counsel App. or Arbitrator Granted or Denied Mortgage Association et al. District of Nevada (Las Vegas) Case Number: 2:15-cv-01692-JAD-VCF 5/16/17 Federal Housing Finance Agency v. LN Management, United States District Court Granted LLC District of Nevada (Las Vegas) Case Number: 2:17-cv-00910-APG-VCF 5/16/17 Federal Housing Finance Agency v. Las Vegas United States District Court Denied [cam Cptbe ns [erent em Case Number: 2:17-cv-00908-JAD-VCF Federal Housing Finance Agency v. Nevada New Builds, | United States District Court Denied ene ee eee [iano vee [| Case Number: 2:17-cv-00912-JAD-VCF 5/16/17 Federal Housing Finance Agency v. SFR Investments United States District Court Granted 0 Ee Case Number: 2:17-cv-009 L4-GMN-PAL 5/16/17 Federal Housing Finance Agency v. Thunder Properties, | United States District Court Granted [rege nei ines eee [toon vero | Case Number: 2:17-cv-00915-RFB-CWH 3/20/18 Federal Housing Finance Agency, et al. v. GR United States District Court Granted Investments, et al. District of Nevada (Las Vegas) Case Number 2:17-cv-03005-JAD-VEH 3/28/18 Federal Housing Finance Agency, et al. v. LN United States District Court Granted Management LLC, Series 2937 Barboursville, et al. District of Nevada (Las Vegas) Case Number 2:17-cv-03006-JAD-GWF Management, LLC District of Nevada (Las Vegas) Case Number 2:18-cv-00371-RFB-GWF 3/28/18 Federal Housing Finance Agency, et al. v. Placer Bullion | United States District Court Granted Trust #9166, et al. District of Nevada (Las Vegas) Case Number 2:18-cv-00289-JCM-PAL Case Number 2:17-cv-01867-JCM-CWH District of Nevada (Las Vegas Novecientos Dos S.A. Corp. ID 3-101-454-51 District of Nevada (Las Vegas) | Settled Case Number 2:18-cv-00453-GMN-CWH PHVMoot 6/22/18 Saticoy Bay LLC Series 970 Flapjack Drive v. Federal United States District Court Granted National Mortgage Assoc. District of Nevada (Las Vegas) Case Number 2:18-cv-00961-RFB-NJK et al. District of Nevada (Las Vegas) Case Number 2:17-cv-01772-RFB-PAL TAS Ditech Financial, LLC v. Talasera and Vicanto United States District Court Granted Homeowners’ Association, et al. District of Nevada (Las Vegas) Case Number 2:16-cv-02906-JAD-NJK Association, et al. District of Nevada (Las Vegas 10297259 Question 8 Michael A.F. Johnson - Prior Applications to Appear as Counsel Date of Cause Title of Court Admin. Body | Was App. App. or Arbitrator Granted or Denied | | Case Number 2: 15-cv-02151-JAD-NJK po 10297259 ete ein. RO TSP (_—S □□ oie) A a oo i, a wae Sha! D er a Fat ae Pr □□ pf RG Py i appearance in this case. 6. I am an attorney with the law firm of Arnold & Porter Kaye Scholer LLP, an 73 international law firm acting as counsel for the Federal Housing Finance Agency (“FHFA”). 7. FHFA is an independent federal agency responsible for the oversight of vital 25 components of the national secondary mortgage market, including the Federal National 26 Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) (together, “the Enterprises”). | s:0167 ° 8. On September 6, 2008, FHFA’s Director invoked the power granted FHFA under 5 the Housing and Economic Recovery Act of 2008 (“HERA”), Pub. L. No. 110-289, 122 Stat. 3 2654, to place the Enterprises into conservatorships. See U.S.C. § 4617(a). Since then, FHFA 4 has been each Enterprise’s Conservator. 5 9, In its capacity as Conservator, FHFA succeeded to “all rights, titles, powers, and privileges” of the Enterprises and their respective stockholders, boards of directors and officers. 4 See 12 U.S.C. § 4617(b)(2)(A)(i). Accordingly, the Conservator is authorized to participate, at its discretion, in litigation involving the Enterprises in a manner consistent with the conservator’s duties. id 10. There are hundreds of cases pending in the Nevada Supreme Court, the District ty Courts of the State of Nevada, in the United States District Court for the District of Nevada and in the United States Court of Appeals for the Ninth Circuit in which the Enterprises and other ig parties are litigating the interpretation and application of NRS 116.3116(2), which allows an ia HOA a limited super-priority lien security payment for past due HOA fees, and permits properly conducted foreclosures and public auctions to extinguish all other deed-of-trust interests. □□□ Invs. Pool I, LLC v. U.S. Bank, NA., 334 P.3d 408 (Nev. 2014) (“the Chapter 116 Cases”). ig However, as the Nevada Supreme Court and the Ninth Circuit have concluded, federal law ig precludes this result when the owner of the deed of trust is an Enterprise in FHFA conservatorship. See 12 U.S.C. § 4617()(3) (“No property” of the Conservator “shall be subject to ... foreclosure ... without the [FHFA’s] consent.”); id. § 4617(b )(2)(A)Q@) (the Conservator succeeds to “all rights, titles, powers, and privileges” of the Enterprises); Freddie Mac v. SFR Invs. Pool 1, LLC, 893 F.3d 1136 (9th Cir. 2018); Berezovsky v. Moniz, 869 F.3d 923 (9th Cir. 2017); Elmer v. JPMorgan Chase Co., 707 F. App’x 426 (9th Cir. 2017) (unpublished); and Saticoy Bay LLC Series 9641 Christine View v. Fed. Nat’l Mortg. Ass'n, 417 P.3d 363 (2018). 8 11. FHFA has retained Arnold & Porter Kaye Scholer LLP to coordinate and implement its legal strategy in these actions. I am the primary contact person at Arnold & Porter a Kaye Scholer LLP for these matters. FHFA has retained Leslie Bryan Hart and the law firm of a Fennemore Craig, P.C. to assist as local counsel in these cases. ceo, 15301670 ° 12. In the past three years I have submitted 16 applications for pro hac vice admission in the District Court for the District of Nevada. A list of those cases is attached hereto as Exhibit A. Only four of these cases are still active in the District of Nevada. 4 13. Granting this application will serve judicial efficiency and save party resources as 5 FHFA has retained my firm and me in connection with matters raised in this state and in other states that similarly involve the interpretation of FHFA’s governing statute and the scope of the Conservator’s authority under federal law. Although Arnold & Porter Kaye Scholer LLP has a group of attorneys working on the cases pending in the federal and state courts of Nevada, I 5 have been the FHFA’s principal representative at numerous hearings in the United States District Court for the District of Nevada, and the Ninth Circuit, as well as other courts around i the country. 14, Of particular significance, I argued the Berezovsky, Elmer, and Freddie Mac cases, in which the Ninth Circuit applied the Federal Foreclosure Bar and addressed statutory, 4 constitutional, and precedent-based arguments concerning the scope of its application. I also 1 argued the Christine View appeal, where the Nevada Supreme Court followed the Ninth Circuit’s precedent. I believe my experience arguing these three cases before the Ninth Circuit 13 and Nevada Supreme Court will allow FHFA to provide the Court with important background is and perspective more efficiently than if FHFA had to present its arguments through another 6 counsel. 15. In my view, my participation in these cases, including at oral argument, assisted the Court in each of these cases. 16, FHFA respectfully requests that the Court find that special circumstances and good cause exist to grant my application in this case. 24 25 26 27 28 CRAIG, P.C. 17, Based on the foregoing, special circumstances and good cause exist to permit my 3 appearance in this case. = , DATED: { J lor 2019. 6 ichadl A. F. Johnson 7 Subscribed and Sworn to before me this © "Way a Kaas = MORGANNE wesTo ma eee 10 NotaryPublic Na uh AUST, 2028 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 e e Exhibit A 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 : Exhibit A 27 ro 15301670 Michael A. F. Johnson Applications to Appear as Counsel Pro Hac Vice in Last 3 Years PP Pp 2 Date of | Case Title of Court Admin. Was App. App. Body or Arbitrator Granted 3 or Denied 4 11/9/16 | Terra West Collections Group, LLC v. Fannie Mae, | U.S. District Court, Granted No. 2:15-cv-01692-JAD-VCF D. Nev. (Las Vegas) 5 5/16/17 | FHFA v. LN Mgmt., LLC, No. 2:17-cv-009 10- U.S. District Court, Granted APG-VCF D. Nev. (Las Vegas) 6 5/16/17 | FHFA v. Las Vegas Development Group, LLC, US. District Court, Denied 7 No. 2:17-cv-00908-JAD-VCF D. Nev. (Las Vegas) 5/16/17. | FHFA v. Nevada New Builds, LLC, No. 2:17-cv- USS. District Court, Denied 8 00912-JAD-VCF D. Nev. (Las Vegas) 9 5/16/17. | FHFA v. SFR Investments Pool 1, LLC, No. 2:17- USS. District Court, Granted cv-00914-GMN-PAL D. Nev. (Las Vegas) 10 5/16/17 | FHFA v. Thunder Properties, LLC, No. 2:17-cv- U.S. District Court, Granted 1 00915-RFB-CWH D. Nev. (Las Vegas) 3/20/18 | FHFA v. GR Investments, No. 2:17-cv-03005-JAD- | U.S. District Court, Granted 12 VEH D. Nev. (Las Vegas) 3/28/18 | FHFA v. LN Mgm’t LLC, Series 2937 US. District Court, Granted 13 Barboursville, No. 2:17-cv-03006-JAD-GWF D. Nev. (Las Vegas) 14 3/28/18 | FHFA v. LN Mgm’t, LLC, No. 2:18-cv-00371- U.S. District Court, Granted RFB-GWF D. Nev. (Las Vegas) 15 3/28/18 | FHFA v. Placer Bullion Trust #9166, No. 2:18-cv- U.S. District Court, Granted 00289-JCM-PAL D. Nev. (Las Vegas) 16 6/13/18 | M&T Bank v. SFR Investments Pool 1, LLC, USS. District Court, Granted 7 No. 2:17-cv-01867-JCM-CWH D. Nev. (Las Vegas) 6/19/18 | FHFA v. BG Novecientos Dos S.A. Corp. ID 3-101- | U.S. District Court, Case 18 454-51, No. 2:18-cv-00453-GMN-CWH D. Nev. (Las Vegas) Settled; PHV-Moot 19 6/22/18 | Saticoy Bay LLC Series 970 Flapjack Drive v. U.S. District Court, Granted Fannie Mae, No. 2:18-cv-00961-RFB-NJK D. Nev. (Las Vegas) 20 6/26/19 | Ditech Financial, LLC v. SFR Investments Pool 1, U.S. District Court, Granted 21 LLC, No. 2:17-cv-01772-RFB-PAL D. Nev. (Las Vegas) 22 TAO Ditech Financial, LLC v. Talasera and Vicanto | U.S. District Court, Granted Homeowners’ Ass’n, No. 2:16-cv-02906-JAD-NJK_ | D. Nev. (Las Vegas) 23 8/29/19 | Nationstar Mortg. v. Independence II Homeowners | U.S. District Court, Granted Ass’n, No. 2:15-cv-02151-JAD-NJK D. Nev. (Las Vegas) 25 26 27 28 ENNEMORE CRAIG, P.C. 300 E. SECOND ST. SUITE 1510 RENO, NEVADA 89501 15301670 (775) 788-2200