FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEX BEREZOVSKY,

Plaintiff-Counter-DefendantAppellant,

v.

GREGORY MONIZ; IDELL MONIZ;

RED ROCK FINANCIAL SERVICES,

LLC, WELLS FARGO BANK, N.A.;

GARDEN TERRACE HOMEOWNERS

ASSOCIATION,

Defendants,

and

BANK OF AMERICA, N.A.,

Defendant-Appellee,

FEDERAL HOME LOAN MORTGAGE

CORPORATION; FEDERAL HOUSING

FINANCE AGENCY, as Conservator

for the Federal Home Loan

Mortgage Corporation,

Defendants-Counter-ClaimantsAppellees.

No. 16-15066

D.C. No.

2:15-cv-01186-

GMN-GWF

OPINION
2 BEREZOVSKY V. BANK OF AMERICA

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, Chief District Judge, Presiding

Argued and Submitted February 17, 2017

San Francisco, California

Filed August 25, 2017

Before: Marsha S. Berzon and Richard R. Clifton, Circuit

Judges, and Kimberly J. Mueller,*

 District Judge.

Opinion by Judge Mueller

*The Honorable Kimberly J. Mueller, United States District Judge for

the Eastern District of California, sitting by designation.
BEREZOVSKY V. BANK OF AMERICA 3

SUMMARY**

Federal Foreclosure Bar

The panel affirmed the district court’s summary judgment

in favor of the Federal Home Loan Mortgage Corporation, or

Freddie Mac, in a quiet title action brought by a plaintiff who

purchased real property at a homeowners association

foreclosure sale.

The plaintiff argued that the Nevada superpriority lien

provision, Nev. Rev. Stat. § 116.3116, empowered the

homeowners association to sell the property to him free of

any other liens or interests, priority status aside. Freddie Mac

is under Federal Housing Finance Agency conservatorship. 

The panel held that the Federal Foreclosure Bar’s prohibition

on nonconsensual foreclosure of Agency assets preempted

Nevada law, invalidating any purported extinguishment of

Freddie Mac’s interest through the association foreclosure

sale. First, the panel held that the Federal Foreclosure Bar

applies to private association foreclosures generally, and does

not protect the Agency’s property only from state and local

tax liens. The panel rejected the plaintiff’s argument that the

Federal Foreclosure Bar did not apply specifically to this case

because Freddie Mac and the Agency implicitly consented to

the foreclosure when they took no action to stop the sale. 

In analyzing preemption, the panel began with a

presumption against preemption because real estate

foreclosure traditionally is an area regulated by state law. 

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 BEREZOVSKY V. BANK OF AMERICA

The panel held that the presumption was rebutted because

Congress had made its intent to supersede state law clear and

manifest. The panel concluded that the Federal Foreclosure

Bar implicitly demonstrated a clear intent to preempt

Nevada’s superpriority lien law by expressly prohibiting

foreclosures on Agency property without consent. Because

the federal and state statutes impliedly conflicted, the Federal

Foreclosure Bar superseded the Nevada superpriority lien

provision.

The panel held that, under Nevada law, Freddie Mac

proved that it held an enforceable property interest, and

therefore was entitled to summary judgment even though the

recording document listed the deed-of-trust beneficiary but

not the note owner, Freddie Mac. The note was thus “split”

from the deed of trust, but due to Freddie Mac’s agency

relationship with the recorded beneficiary, Freddie Mac

remained a secured creditor with a property interest in the

collateral.

COUNSEL

Luis A. Ayon (argued), Maier Gutierrez Ayon, Las Vegas,

Nevada; Michael V. Infuso and Keith W. Barlow, Green

Infuso LLP, Las Vegas, Nevada; for Plaintiff-CounterDefendant-Appellant.

Michael A.F. Johnson (argued), Matthew J. Oster, Elliott C.

Mogul, Dirk C. Phillips, Asim Varma, and Howard N. Cayne,

Arnold & Porter LLP, Washington, D.C.; Leslie Bryan Hart

and John D. Tennert, Fennemore Craig P.C., Reno, Nevada;

Darren T. Brenner, Akerman LLP, Las Vegas, Nevada; Marc

James Ayers and R. Aaron Chastain, Bradley Arant Boult
BEREZOVSKY V. BANK OF AMERICA 5

Cummings LLP, Birmingham, Alabama; for DefendantsCounter-Claimants-Appellees.

OPINION

MUELLER, District Judge:

If a homeowners association member in Nevada misses

property payments for six months, Nevada law equips the

association with the ability to foreclose on a “superpriority

lien,” quashing all other property liens or interests recorded

after the recordation of the Covenants, Conditions, and

Restrictions attached to the title. On its face, this

superpriority lien has the potential to trump certain federal

property interests, despite Congress’s passage of a provision

known as the Federal Foreclosure Bar, which prohibits

nonconsensual foreclosure of Federal Housing Finance

Agency (“Agency”) assets. This clash of state and federal

law has spawned considerable litigation in Nevada. This

decision resolves the clash in favor of the Federal Foreclosure

Bar.

Appellant Alex Berezovsky purchased a home at a

homeowners association foreclosure sale in 2013. He argues

the Nevada superpriority lien provision empowered the

association to sell the home to him free of any other liens or

interests, priority status aside. The Federal Home Loan

Mortgage Corporation (“Freddie Mac”) claims it has a

priority interest in the home Berezovsky purchased. Freddie

Mac is under Agency conservatorship, meaning the Agency

temporarily owns and controls Freddie Mac’s assets. The

Federal Foreclosure Bar’s prohibition on nonconsensual
6 BEREZOVSKY V. BANK OF AMERICA

foreclosure gives teeth to the Agency’s statutory mandate to

guard its conservatorship assets.

Berezovsky sued to quiet title in Nevada state court. 

Armed with the Federal Foreclosure Bar, Freddie Mac

intervened and counterclaimed for the property’s title,

removed the case to federal district court, and moved for

summary judgment. The Agency joined Freddie Mac’s

counterclaim. Together the federal entities argued that

Berezovsky did not acquire “clean title” in the home because

the Federal Foreclosure Bar preempts Nevada law,

invalidating any purported extinguishment of Freddie Mac’s

interest through the association foreclosure sale. In resolving

the parties’ cross-motions, the district court agreed with the

federal entities.

On appeal, Berezovsky disputes the Federal Foreclosure

Bar’s applicability and contends Freddie Mac lacks an

enforceable propertyinterest. We are unpersuaded and affirm

the district court’s holding.

I.

The home Berezovsky purchased is located in Las Vegas,

Nevada. Gregory and Idell Moniz previously owned the

home, which is located in a community governed by a

homeowners association. On March 5, 2007, the Monizes

took out a $220,000 loan secured by a deed of trust. The

deed of trust listed the Monizes as the loan borrowers and

named Mortgage Electronic Registration Systems, Inc.

(“MERS”) as the beneficiary under the security instrument,

and as nominee for the lender, Countrywide Home Loans,

Inc., and its successors and assigns. Freddie Mac purchased

the Monizes’ loan in 2007 and has owned it ever since. On
BEREZOVSKY V. BANK OF AMERICA 7

July 22, 2011, MERS assigned its beneficial interest under

the deed of trust to Bank of America, N.A. (“BANA”), and

BANA immediately recorded the assignment.

In early 2011, the Monizes missed $1,767.38 in payments

they owed to the homeowners association. This lapse

triggered Nevada’s superpriority lien law, empowering the

homeowners association to record a lien against the home,

which it did on March 17, 2011. The association recorded a

formal notice of default on May 9, 2013, and then exercised

its power to foreclose on the home and extinguish all other

property interests. Berezovsky acquired the home at the June

4, 2013, foreclosure sale for $10,500; he then recorded the

deed in his name.

In his state action to quiet title, Berezovsky sued all those

holding a property interest in the home, including the

Monizes and BANA. Freddie Mac intervened,

counterclaimed for title, removed the case to federal court,

and moved for summary judgment. To establish its priority

property interest under Nevada law, Freddie Mac produced

evidence showing it had owned the Monizes’ loan since 2007,

and that BANA, the recorded deed-of-trust beneficiary, had

been its loan-servicing agent.

The Agencyalso intervened as Freddie Mac’s conservator

and joined the summary judgment motion. See Housing and

Economic Recovery Act of 2008 (“HERA”), 12 U.S.C.

§§ 4511, 4513 (empowering Agency to place entities like

Freddie Mac into conservatorship to protect nation’s housing

market and participate in litigation toward same end). In

placing Freddie Mac into conservatorship in 2008, the

Agency acquired Freddie Mac’s “rights, titles, powers, and

privileges . . . with respect to [its] assets” for the life of the
8 BEREZOVSKY V. BANK OF AMERICA

conservatorship. 12 U.S.C. § 4617(b)(2)(A)(I). The

Agency’s conservatorship assets are shielded from certain

adverse actions as spelled out by statute. See generally id.

§ 4617. The asset protection clause known as the Federal

Foreclosure Bar1 provides that “[n]o property of the Agency

shall be subject to levy, attachment, garnishment, foreclosure,

or sale without the consent of the Agency, nor shall any

involuntary lien attach to the property of the Agency.” Id.

§ 4617(j)(3). In this case, the Agency did not consent to the

association’s foreclosure of Freddie Mac’s lien. For this

reason, the district court concluded, the Federal Foreclosure

Bar supported granting summary judgment for Freddie Mac.

Berezovsky timely appealed. He argues the Federal

Foreclosure Bar does not apply and, even if it does, Freddie

Mac lacks an enforceable property interest. We review the

district court’s decision to grant summary judgment de novo. 

Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.

2009) (citing Burrell v. McIlroy, 464 F.3d 853, 855 (9th Cir.

2006)).

II.

Berezovsky offers two reasons the Federal Foreclosure

Bar does not apply. He says (1) the Bar does not apply to

private association foreclosures generally, because it protects

the Agency’s property only from state and local tax liens; and

(2) it does not apply specifically to this foreclosure, because

1 Nevada district courts consistently refer to the statutory bar in

12 U.S.C. § 4617(j)(3) as the “Federal Foreclosure Bar,” a shorthand this

opinion adopts. See, e.g., Fed. Nat’l Mortg. Ass’n v. SFR Invs. Pool 1,

LLC, No. 2:14-cv-02046-JAD-PAL, 2015 WL 5723647, at *3 (D. Nev.

Sept. 28, 2015).
BEREZOVSKY V. BANK OF AMERICA 9

Freddie Mac and the Agency implicitly consented to the

foreclosure when they took no action to stop the sale.2

Whether the Federal Foreclosure Bar applies to private

foreclosures generally is a matter of first impression. In

answering the question, we turn first to the statute’s structure

and plain language. See Avila v. Spokane Sch. Dist. 81,

852 F.3d 936, 941 (9th Cir. 2017). HERA identifies the

powers granted to the Agency as a conservator and the

exemptions from which it benefits. A subsection of the

statute entitled “Other agency exemptions”3

includes the

Federal Foreclosure Bar as the third exemption, and provides

as follows:

(1) Applicability

The provisions of this subsection shall

apply with respect to the Agency in any

case in which the Agency is acting as a

conservator or a receiver.

2 Berezovsky also argues the Federal Foreclosure Bar violates due

process because the statute “lack[s] procedures for notice to interested

parties and procedures for any hearing.” At oral argument, Berezovsky’s

counsel conceded his due process argument seeks to vindicate the

association’s property rights, not his own, and so he lacks standing to raise

this argument. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

3 The word “other” in this context refers back to the exception

codified in a preceding subsection titled “Exempt tax status.” See

12 U.S.C. § 4617(i)(5).
10 BEREZOVSKY V. BANK OF AMERICA

(2) Taxation

The Agency, including its franchise, its

capital, reserves, and surplus, and its

income, shall be exempt from all taxation

imposed by any State, county,

municipality, or local taxing authority,

except that any real property of the

Agency shall be subject to State,

territorial, county, municipal, or local

taxation to the same extent according to

its value as other real property is taxed,

except that, notwithstanding the failure of

any person to challenge an assessment

under State law of the value of such

property, and the tax thereon, shall be

determined as of the period for which

such tax is imposed.

(3) Property protection

No property of the Agency shall be

subject to levy, attachment, garnishment,

foreclosure, or sale without the consent of

the Agency, nor shall any involuntary lien

attach to the property of the Agency.

(4) Penalties and fines

The Agency shall not be liable for any

amounts in the nature of penalties or fines,

including those arising from the failure of

any person to pay any real property,

personal property, probate, or recording
BEREZOVSKY V. BANK OF AMERICA 11

tax or any recording or filing fees when

due.

12 U.S.C. § 4617(j).

On its face, the first provision makes clear that this

subsection applies to “any case” in which the Agency serves

as conservator, without limitation. Id. § 4617(j)(1). Congress

expressly limited the second exemption to taxation under the

plain language of the provision. See id. § 4617(j)(2) (“shall

be exempt from all taxation,” with specified exceptions). But

the Federal Foreclosure Bar, titled “Property protection,” is

not so limited and does not expressly use the word “taxes” at

all. See id. § 4617(j)(3). Notably, it does not limit

“foreclosure” to a subset of foreclosure types. Id. The text of

exemption four, titled “Penalties and fines,” references taxes,

negating agency liability for penalties or fines arising from

unpaid property, probate, or recording taxes. See id.

§ 4617(j)(4). A plain reading of the statute discloses that the

Federal Foreclosure Bar is not focused on or limited to tax

liens. The text of subsection (j) omits taxation from the

general applicability provision, identifies taxes in the second

and fourth exemptions, and then again omits any reference to

taxation in the third exemption, the Federal Foreclosure Bar. 

On its face, the Federal Foreclosure Bar applies to any

property for which the Agency serves as conservator and

immunizes such property from any foreclosure without

Agency consent. Id. § 4617(j)(1), (3).

Berezovsky cites the Fifth Circuit’s decision in F.D.I.C.

v. McFarland, 243 F.3d 876 (5th Cir. 2001), to support his

argument that the Federal Foreclosure Bar does not apply to

private foreclosures. The court in McFarland interpreted

12 U.S.C. § 1825(b)(2), a provision of the Financial
12 BEREZOVSKY V. BANK OF AMERICA

Institutions Reform, Recovery, and Enforcement Act of 1989

(“FIRREA”) that governs Federal Deposit Insurance

Corporation (“FDIC”) receiverships. See id. at 885. The

FIRREA provision is worded identically to HERA’s Federal

Foreclosure Bar except that the word “Corporation” appears

in the former where “Agency” appears in the latter. Compare

12 U.S.C. § 1825(b)(2) with 12 U.S.C. § 4617(j)(3).4

The court in McFarland declined to extend § 1825(b)(2)

to private foreclosures. See 243 F.3d at 885–86. In doing so,

it considered the statutory framework in which § 1825(b)(2)

appears. See id. Because that framework is distinguishable

from the framework surrounding the Federal Foreclosure Bar,

McFarland does not provide the answer in this case.

As the court in McFarland observed, before FIRREA’s

passage in 1989, § 1825 included only the provision currently

codified as § 1825(a), exempting the FDIC from all taxation

of any kind while it acted in its corporate capacity. See id. at

886 (citing 12 U.S.C. § 1825 (1988)). FIRREA added

subsection (b), extending the exemption to the FDIC in its

role as receiver. This legislative history demonstrates that the

purpose of § 1825 is to extend the FDIC’s general exemption

from taxation to the receivership context. See id. The titles of

the relevant section and subsection, McFarland noted,

confirmed this conclusion. See id. Section 1825 is labeled

“Exemption from taxation; limitations on borrowing.” By

adding the heading “General rule” to subsection (a), and

4 Specifically, the FDIC provision reads as follows: “No property of

the Corporation shall be subject to levy, attachment, garnishment,

foreclosure, or sale without the consent of the Corporation, nor shall any

involuntary lien attach to the property of the Corporation.” 12 U.S.C.

§ 1825(b)(2).
BEREZOVSKY V. BANK OF AMERICA 13

“Other exemptions” to subsection (b), Congress signaled that

subsection 1825(b), which includes the property protection

provision Berezovsky points to, was intended to address tax

exemptions other than those set out in the “General rule.” See

12 U.S.C. § 1825(b)(1)–(3); McFarland, 243 F.3d at 886. In

contrast, the protection provided by the Federal Foreclosure

Bar applicable here cannot fairly be read as limited to tax

liens because, unlike § 1825, § 4617(j) includes no language

limiting its general applicability provision to taxes alone.

Berezovsky also contends even if the Federal Foreclosure

Bar applies to private association foreclosures generally, it

does not apply to the sale at which he purchased the Monizes’

home because Freddie Mac and the Agency implicitly

consented to the foreclosure when they took no action to stop

it. Berezovsky cites no authority for the proposition that

inaction in this context conveys consent, implicit or

otherwise. The Federal Foreclosure Bar does not require the

Agency to actively resist foreclosure. See 12 U.S.C.

§ 4617(j)(3) (flatly providing that “[n]o property of the

Agency shall be subject to . . . foreclosure, or sale without the

consent of the Agency”). Rather, the statutory language

cloaks Agency propertywith Congressional protection unless

or until the Agency affirmatively relinquishes it. Id. Here,

the Agency did not agree to forego its property interest.

The Federal Foreclosure Bar applies generally to private

association foreclosures and specifically to the contested

foreclosure sale here.

III.

The parties dispute whether the Federal Foreclosure Bar

preempts Nevada state law. The district court found the
14 BEREZOVSKY V. BANK OF AMERICA

Federal Foreclosure Bar invalidated the homeowners

association’s use of a state-sanctioned superpriority lien to

foreclose on the Agency’s property without its consent. The

inherent tension between the federal and state laws has

triggered multiple lawsuits, the outcomes of which may

depend on our resolution here.5

“The Supremacy Clause unambiguously provides that if

there is any conflict between federal and state law, federal

law shall prevail.” Gonzales v. Raich, 545 U.S. 1, 29 (2005). 

This is so even if the federal statutory language does not

explicitly manifest Congress’s preemptive intent. See Altria

Grp., Inc. v. Good, 555 U.S. 70, 76–77 (2008) (internal

citations omitted). Preemption arises when “compliance with

both federal and state regulations is a physical impossibility,

or . . . state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of

5 Every federal district court to face this preemption question has

found § 4617(j)(3) preempts Nevada Revised Statutes section 116.3116,

which enacts the superpriority lien. See, e.g., Fed. Home Loan Mortg.

Corp. v. Donel, No. 2:16-CV-176 JCM (PAL), 2017 WL 2692403, at *3

(D. Nev. June 21, 2017); G & P Inv. Enters., LLC v. Wells Fargo Bank,

N.A., 199 F. Supp. 3d 1266, 1269 (D. Nev. 2016); Elmer v. Freddie Mac,

No. 14-01999, 2015WL4393051, at *3 (D. Nev. July 13, 2015); Skylights

LLC v. Byron, 112 F. Supp. 3d 1145, 1159 (D. Nev. 2015), appeal

dismissed (Feb. 2, 2016). Though these courts are unanimous on the

preemption issue, a few courts have denied summary judgment in similar

cases after finding, unlike here, Freddie Mac or Fannie Mae did not

adequately establish a priority property interest. See, e.g., LN Mgmt., LLC

Series 5664 Divot v. Kit Dansker, No. 2:13-cv-01420-RCJ-GWF, 2017

WL 1380414, at *2 (D. Nev. Apr. 13, 2017) (finding a genuine issue of

material fact as to whether the Agency owned the note and deed of trust

at the time ofsale); Nationstar Mortg. LLC v. D’Andrea Cmty. Ass’n, No.

3:15-cv-00377-RCJ-VPC, 2017 WL 58582, at *4 (D. Nev. Jan. 4, 2017)

(same).
BEREZOVSKY V. BANK OF AMERICA 15

Congress.” Bank of Am. v. City & Cty. of S.F., 309 F.3d 551,

558 (9th Cir. 2002) (internal citations and quotation marks

omitted).

A court begins its preemption analysis by assessing

whether the presumption against preemption applies. 

Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)

(“Consideration of issues arising under theSupremacyClause

start[s] with the assumption that the historic police powers of

the States [are] not to be superseded by . . . Federal Act unless

that [is] the clear and manifest purpose of Congress.”)

(internal citation and quotation marks omitted); see also

California v. ARC Am. Corp., 490 U.S. 93, 101 (1989)

(“[A]ppellees must overcome the presumption against finding

pre-emption of state law in areas traditionally regulated by

the States.”) (citation omitted).

Real estate foreclosure traditionally is an area regulated

by state law, so we begin our analysis with a presumption

against pre-emption of the Nevada superpriority lien law. See

BFP v. Resolution Tr. Corp., 511 U.S. 531, 544 (1994); In re

Bledsoe, 569 F.3d 1106, 1112 (9th Cir. 2009). The

presumption against preemption is rebutted, however, where

Congress makes its intent to supersede state law “clear and

manifest.” See Arizona v. United States, 567 U.S. 387, 400

(2012).

We assess first whether the Federal Foreclosure Bar

demonstrates clear and manifest intent to preempt Nevada’s

superpriority lien provision through an express preemption

clause and conclude it does not. Congress did not use

sufficiently definite language to brand § 4617(j)(3) as

expressly preemptive, although it unquestionably knows how

to do so. See, e.g., Nat’l Meat Ass’n v. Harris, 565 U.S. 452,
16 BEREZOVSKY V. BANK OF AMERICA

458 (2012) (finding express preemption in 21 U.S.C. § 678’s

directive that any requirements “in addition to, or different

than those made under [the Federal Meat Inspection Act] may

not be imposed by any State”); Perez v. Nidek Co., 711 F.3d

1109, 1117 (9th Cir. 2013) (finding express preemption in

21 U.S.C. § 360k(a)’s pronouncement that “no State . . . may

establish or continue . . . any requirement . . . which is

different from, or in addition to, any requirement applicable

under this chapter”).

The question, then, is whether the Federal Foreclosure

Bar implicitly demonstrates a clear intent to preempt

Nevada’s superpriority lien law. We conclude it does. The

Federal Foreclosure Bar’s declaration that “[n]o property of

the Agency shall be subject to . . . foreclosure” unequivocally

expresses Congress’s “clear and manifest” intent to supersede

any contrary law, including state law, that would allow

foreclosure of Agency property without its consent. 

Although the Federal Foreclosure Bar permits the Agency to

consent to relinquish its interest in the face of an association’s

superpriority lien, the same Bar expressly prohibits

foreclosures on Agency property without consent. Nevada

law, in contrast, allows homeowners association foreclosures

under the circumstances present in this case to automatically

extinguish the Agency’s property interest without the

Agency’s consent. See Nev. Rev. Stat. § 116.3116.6

6 Section 116.3116, titled “Liens against units for assessments,”

provides as follows:

1. The association has a lien on a unit for any

construction penalty that is imposed against the unit’s

owner pursuant to NRS 116.310305, any assessment

levied against that unit or any fines imposed against the

unit’s owner from the time the construction penalty,
BEREZOVSKY V. BANK OF AMERICA 17

assessment or fine becomes due. Unless the declaration

otherwise provides, any penalties, fees, charges, late

charges, fines and interest charged pursuant to

paragraphs (j) to (n), inclusive, of subsection 1 of NRS

116.3012 and any costs of collecting a past due

obligation charged pursuant to NRS 116.310313 are

enforceable as assessments under this section. If an

assessment is payable in installments, the full amount

of the assessment is a lien from the time the first

installment thereof becomes due.

2. A lien under this section is prior to all other liens

and encumbrances on a unit except:

(a) Liens and encumbrances recorded before the

recordation of the declaration and, in a cooperative,

liens and encumbrances which the association creates,

assumes or takes subject to;

(b) A first security interest on the unit recorded before

the date on which the assessment sought to be enforced

became delinquent or, in a cooperative, the first

security interest encumbering only the unit’s owner’s

interest and perfected before the date on which the

assessment sought to be enforced became delinquent,

except that a lien under this section is prior to a security

interest described in this paragraph to the extent set

forth in subsection 3;

(c) Liens for real estate taxes and other governmental

assessments or charges against the unit or cooperative;

and

(d) Liens for any fee or charge levied pursuant to

subsection 1 of NRS 555.520.

Nev. Rev. Stat. § 116.3116. Asthe Nevada Supreme Court has explained,

subsection 116.3116(2) “elevates the priority of the [homeowners

association] lien over other liens,” with some exceptions. SFR Invest.
18 BEREZOVSKY V. BANK OF AMERICA

Nevada’s law is an obstacle to Congress’s clear and manifest

goal of protecting the Agency’s assets in the face of multiple

potential threats, including threats arising from state

foreclosure law.

“[E]ven if it is possible to comply with both state and

federal law, state law is conflict-preempted whenever it

‘stands as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress.’” Ariz.

Dream Act Coal. v. Brewer, 757 F.3d 1053, 1061 (9th Cir.

2014) (quoting Arizona, 567 U.S. at 399). As the two statutes

impliedlyconflict, the Federal Foreclosure Bar supersedes the

Nevada superpriority lien provision. The district court did

not err in so concluding.

IV.

Berezovskymaintains that even if theFederal Foreclosure

Bar applies to his case and is preemptive, the district court

should not have granted summary judgment to Freddie Mac

because Freddie Mac did not prove beyond dispute that it

holds an enforceable property interest. Berezovsky faults

Freddie Mac for never recording its interest, for “splitting”

the note from the deed of trust, and for pointing to

Pool 1, 334 P.3d at 410. The exceptions clarify that the statute “splits [a

homeowners association’s] lien into two pieces, a superpriority piece and

a subpriority piece. The superpriority piece, consisting of the last nine

months of unpaid [association] dues and maintenance and nuisanceabatement charges, is ‘prior to’ a first deed of trust. The subpriority piece,

consisting of all other [homeowners association] fees or assessments, is

subordinate to a first deed of trust.” Id. at 411. In this case, the

homeowners association’s lien qualifies as superpriority as it covers dues

not paid in early 2011, with the lien recorded within nine months, by

March 2011.
BEREZOVSKY V. BANK OF AMERICA 19

insufficient evidence to establish its interest for purposes of

summary judgment.

Here, we look to the Nevada Supreme Court’s resolution

of these issues. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78

(1938) (“Except in matters governed by the Federal

Constitution or by acts of Congress, the law to be applied in

any case is the law of the state.”). Nevada law requires

recording of a lien for it to be enforceable, but does not

mandate that the recorded instrument identify the note owner

by name. See Nev. Rev. Stat. § 106.210.7

If the named

beneficiary under the recorded deed of trust is someone other

than the note owner, the recordation separates “the note and

the security deed [and] creates a question of what entity

would have authority to foreclose, but does not render either

instrument void.” Edelstein v. Bank of N.Y. Mellon, 286 P.3d

249, 259 (Nev. 2012) (citation omitted).

The Nevada Supreme Court has relied on the Restatement

Third of Property to clarify lien enforceability when the

recording document lists the deed-of-trust beneficiary, here

BANA, but not the note owner, here Freddie Mac. See In re

Montierth, 354 P.3d 648, 650–51 (Nev. 2015) (citing

Restatement (Third) of Property: Mortgages § 5.4 cmt. c

(Am. Law. Inst. 1997)). Under these circumstances—that is,

where the note is “split” from the deed of trust—an “agency

relationship” with the recorded beneficiary preserves the note

owner’s power to enforce its interest under the security

7 This recording provision provides in relevant part, “Any assignment

of a mortgage of real property . . . and any assignment of the beneficial

interest under a deed of trust must be recorded in the office of the recorder

of the county in which the property is located . . . .” Nev. Rev. Stat.

§ 106.210.
20 BEREZOVSKY V. BANK OF AMERICA

instrument, because the note owner can direct the beneficiary

to foreclose on its behalf. See id. An agency relationship

exists if the note owner has the ability to reclaim the deed of

trust from the beneficiary by ordering that the beneficiary

make an assignment. Id. at 651.

Nevada law thus recognizes that, in an agency

relationship, a note owner remains a secured creditor with a

property interest in the collateral even if the recorded deed of

trust names only the owner’s agent. Id. (noting the

Restatement (Third) of Property acknowledges the note

holder retains its security interest even if the beneficial

interest under the deed of trust is assigned to its loanservicing agent).

Although the recorded deed of trust here omitted Freddie

Mac’s name, Freddie Mac’s property interest is valid and

enforceable under Nevada law. Freddie Mac introduced

evidence8in the district court showing it acquired the

Monizes’ loan secured by the property in 2007; BANA is

identified as Freddie Mac’s loan servicer in those documents. 

Freddie Mac also introduced excerpts of its Single-Family

Seller/Servicer Guide (“Guide”), which defines its agency

8 Berezovsky’s objection to the timeliness and admissibility of

Freddie Mac’s evidence is unavailing. Freddie Mac timely filed its

evidence with its cross-motion for summary judgment, and Freddie Mac’s

database printouts are admissible business records. U-Haul Int’l, Inc. v.

Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1043 (9th Cir. 2009). 

Although discovery had not yet opened, Berezovsky himself moved for

summary judgment and agreed to the district court’s resolving the motions

without further discovery.
BEREZOVSKY V. BANK OF AMERICA 21

relationship with BANA.9 The Guide provides that when

Freddie Mac purchases a mortgage, the “Servicer agree[s]

Freddie Mac may, at any time and without limitation, require

the [] Servicer, at the [] Servicer’s expense, to make such

endorsements to and assignments and recordations of any of

the Mortgage documents so as to reflect the interests of

Freddie Mac.” Guide at 1301.10. The Guide also provides

that “Freddie Mac may, at its sole discretion and at any time,

require a Seller/Servicer, at the Seller/Servicer’s expense, to

prepare, execute and/or record assignments of the Security

Instrument to Freddie Mac . . . .” Guide at 6301.6. The

Guide’s language mirrors Montierth’s description of the

requisite agency relationship. BANA is Freddie Mac’s agent

with respect to the Monizes’ loan. Freddie Mac’s property

interest is therefore valid and enforceable under Nevada law.

Berezovsky points to no evidence before the district court

that created a material dispute regarding the legal import of

Freddie Mac’s exhibits concerning its interest in the property. 

He must have shown more than “metaphysical doubt as to the

material facts” to warrant reversal, and has not done so here. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986) (citation omitted). The district court

correctly found Freddie Mac’s priority property interest

enforceable under Nevada law.

V.

Because Freddie Mac possessed an enforceable property

interest and was under the Agency’s conservatorship at the

9 We take judicial notice of the Guide, which governs Freddie Mac’s

relationship with its servicers. See Fed. Rule Evid. 201 (b), (d). The

Guide was properly before the District Court.
22 BEREZOVSKY V. BANK OF AMERICA

time of the homeowners association foreclosure sale, the

Federal Foreclosure Bar served to protect the deed of trust

from extinguishment. Freddie Mac continued to own the

deed of trust and the note after the sale to Berezovsky. The

district court properly granted summary judgment in favor of

Freddie Mac.

AFFIRMED.