NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EAGLE SPE NV 1, INC.,

Plaintiff

- Appellant,

v.

SOUTHERN HIGHLANDS DEVELOPMENT CORP.; et al.,

Defendants

- Appellees. No. 17

- 15639

D.C. No. 2:12

- cv
- 00550

- MMD

- PAL

MEMORANDUM *

EAGLE SPE NV 1, INC.,

Plaintiff

- Appellee,

v.

SOUTHERN HIGHLANDS DEVELOPMENT CORP.; et al.,

Defendants

- Appellants. No. 18

- 15588

D.C. No. 2:12

- cv
- 00550

- MMD

- PAL

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding
Submitted May 13, 2019 **

* 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 

# FILED

MAY 21 2019

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 San Francisco, California
Before: McKEOWN and GOULD, Circuit Judges, and BASTIAN, *** District Judge.
In this deficiency action, Eagle SPE NV 1, Inc., appeals the entry of
summary judgment in favor of its debtors and guarantors

— Southern Highlands
Development Corporation ; Olympia Group, LLC ; Olympia Land Corporation ; Gary Goett, Guy Inzalaco ; the Goett Fami ly Trust Dated September 4, 1987 ; and
the Inzalaco Family Trust Dated November 7, 1997 (collectively, “Defendants”)

— and Defendants appeal the district court’s denial of attorneys’ fees. Because the
parties are familiar with the facts, we do not recite the m here. We have jurisdiction
under 28 U.S.C. § 1291, and we review de novo the district court’s entry of
summary judgment and its preemption determination

. Bravo v. City of Santa

Maria , 665 F.3d 1076, 1083 (9th Cir. 2011); Hickcox

- Huffman v. US Airways, Inc. , 855 F.3d 1057, 1060 (9th Cir. 2017) . We reverse the entry of summary judgment
and vacate the order denying attorneys’ fees.
During the relevant timeframe, a Nevada statute, NRS 40.459(1)(c) , limited
the recovery available in deficiency actions. W ith nuances not relevant here , the
Nevada law prohibited a mortgage assignee from recovering in a deficiency action

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Stanley Allen Bastian, United States District Judge for the Eastern District of Washington, sitting by designation.3

more than the assignee paid in consideration to acquire the asset. The district court
granted summary judgment to Defendants because it det ermined that the Nevada

statute foreclosed recovery by Eagle, which acquired the subject loan for nominal

consideration from its corporate parent, Branch Banking and Trust Company
(“BB&T”)

. State law is preempted where it “frustrates the purpose of the national
legislation, or impairs the efficiencies of these agencies of the federal government
to discharge the duties for the performance of which they were created.”
McClellan v. Chipman , 164 U.S. 347, 357 (1896) (quotat ion omitted)

. T he
Financial Institutions Reform, Recovery, and Enforcement Act of 1989
(“FIRREA”)

— enacted “to enable the federal government to respond swiftly and
effectively to the declining financial condition of the nation’s banks and savings

instituti ons , ” Henderson v. Bank of New England , 986 F.2d 319, 320 (9th Cir.
1993)

— preempts the Nevada statute in this context.

This conclusion follows directly from Branch Banking & Tr ust Co. v.

D.M.S.I., LLC , which we decided after the district court entered sum mary judgment. 871 F.3d 751, 762 (9th Cir. 2017) ; see also Munoz v. Branch Banking

& Tr. Co. , 348 P.3d 689 , 692

– 93 (Nev. 2015)

. The sole difference between this

case and D.M.S.I. is inconsequential to conflict preemption : D.M.S.I. addressed a

direct transferee of the Federal Deposit Insurance Corporation (“FDIC”), whereas4

Eagle was an indirect transferee , having received the loan via BB&T

. D.M.S.I. ,
871 F.3d at 762 ; see also Coastline Re Holdings NV Corp. v. Willin, LLC , 398 P.3d
291 (Nev. 2017) (unpublished) ( Nevada court extending the same analysis to an
indirect transferee)

. Assignment to “ foreclosure subsidiaries , ” such as Eagle,
permit s FDIC assignees to insulate themselves from exposure stemming from
failed bank assets, whic h are often risky and hastily analyzed. This role is
important to the FDIC’s mission, under FIRREA, of disposing of failed banks’

assets. See D.M.S.I. , 871 F.3d at 762. A pplying the Nevada statute here , as in

D.M.S.I. , would “frustrate[] the purpose of the national legislation” and “impair[]

the efficiencies of” the FDIC. McClellan , 164 U.S. at 357. In this context too , FIRREA preempts NRS 40.459( 1)(c ) , and summary judgment was improper

. 1
Because the attorneys’ fees motion and appeal were premised on

Defendants ’ success on the merits , we vacate the order denying attorneys’ fees

.
REVERSED in part, VACATED in part, and REMANDED.
Defendants shall bear costs on appeal.

1 We need not reach Eagle’s alternative argument that applying NRS 40.459(1)(c) violates the Contract Clause.