WILLISTON INVESTMENT GROUP LLC v. MTC (2018)

MEMORANDUM ****

Williston Investment Group, LLC (“Williston”) appeals from the district court's order granting partial summary judgment in favor of Federal Home Loan Mortgage Corporation (“Freddie Mac”), intervenor Federal Housing Finance Agency (“FHFA”), and other defendants. The district court certified its decision as a final and appealable judgment under Federal Rule of Civil Procedure 54(b). As the parties are familiar with the facts, we do not recount them here. We affirm.

Williston argues that the district court erred in holding that the Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3), which prohibits foreclosure of FHFA conservatorship property without the FHFA's consent, preempts Nevada Revised Statutes § 116.3116(2), which gives a superpriority lien to homeowners’ associations (“HOAs”). However, this argument is resolved by our intervening decision in Berezovsky v. Moniz, 869 F.3d 923, 931 (9th Cir. 2017), which held that “the Federal Foreclosure Bar supersedes the Nevada superpriority lien provision.” See also Fed. Home Loan Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1146-47 (9th Cir. 2018) (SFR).

Williston also argues that the district court erred in determining that there were no genuine issues of material fact regarding whether Freddie Mac and FHFA possessed an interest in the subject property at the time of the HOA foreclosure sale. Specifically, Williston contends that Freddie Mac provided inadequate evidence of its property interest. However, we held that similar evidence was sufficient in Berezovsky, 869 F.3d at 926, 932 & n.8. Likewise, in Berezovsky, we rejected the argument, similar to the one made by Williston here, that Freddie Mac's interest was unenforceable because it failed to record its interest before the HOA foreclosure sale. See id. at 932-33; see also SFR, 893 F.3d at 1149-50.

Finally, Williston argues that the application of the Federal Foreclosure Bar deprived it of a property right without due process. However, we recently rejected similar arguments in SFR, 893 F.3d at 1147-51. In particular, we explained that Nevada Revised Statutes § 116.3116(2) “does not function to provide [an HOA foreclosure sale purchaser] with a constitutionally protected property interest in purchasing the Properties with free and clear title.” Id. at 1148.

AFFIRMED.