NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DITECH FINANCIAL, LLC, 

Plaintiff-Appellee, 

 v. 

RESOURCES GROUP, LLC, as Trustee of 

the Thompson Drive Trust, 

Defendant-Appellant, 

and 

GRAPEVINE VILLAS HOMEOWNERS' 

ASSOCIATION, 

Defendant.

No. 19-16368 

D.C. No. 

2:16-cv-02287-APG-NJK 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

DITECH FINANCIAL, LLC; FEDERAL 

NATIONAL MORTGAGE 

ASSOCIATION, 

Plaintiffs-Appellees, 

 v. 

No. 19-16427 

D.C. No. 

2:17-cv-01823-JAD-CWH 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

RESOURCES GROUP, LLC, as Trustee of 

the Reber Dr. Trust, 

Defendant-Appellant.

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Submitted August 11, 2020**

San Francisco, California

Before: GRABER and BRESS, Circuit Judges, and DAWSON,*** District Judge.

Defendant Resources Group, LLC, Trustee of the Reber Dr. Trust and the 

Thompson Drive Trust, (Resources Group) appeals the summary judgment entered

in favor of Ditech Financial, LLC, (Ditech) and Federal National Mortgage 

Association (Fannie Mae) in two consolidated actions concerning non-judicial 

foreclosure sales arising from delinquencies in homeowners’ association 

assessments. Reviewing de novo, Berezovsky v. Moniz, 869 F.3d 923, 927 (9th 

Cir. 2017), we affirm. 

A. The Reber Drive Property

** The panel unanimously concludes this case is suitable for decision 

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

*** The Honorable Robert T. Dawson, United States District Judge for the 

Western District of Arkansas, sitting by designation.
3 

Fannie Mae purchased the Reber loan in August 2006. Ditech began 

servicing the loan in 2013 and became the named Beneficiary by assignment 

recorded May 12, 2015. When the owners of the Reber home fell behind on their 

assessments, the Grapevine homeowners’ association (HOA) commenced 

nonjudicial foreclosure proceedings pursuant to Nevada state law. Reber Dr. Trust 

purchased the property by paying the high bid at a public auction.

Reber Dr. Trust’s interest in the Reber property is subject to Fannie Mae’s 

deed of trust. Under Nevada law, a properly conducted nonjudicial foreclosure 

sale by an HOA to enforce a super-priority lien extinguishes the first deed of trust. 

See Nev. Rev. Stat. § 116.3116; Saticoy Bay LLC Series 9641 Christine View v. 

Fed. Nat’l Mortg. Ass’n, 417 P.3d 363, 365 (Nev. 2018) (en banc). However, 

because the deed of trust belonged to Fannie Mae and the sale occurred while 

Fannie Mae was under the conservatorship of the Federal Hiring Finance Agency 

(FHFA) and without FHFA’s consent, the Federal Foreclosure Bar shielded the 

security interest from extinguishment.

1. The Federal Foreclosure Bar applies generally to private association 

foreclosures, supersedes Nevada’s super-priority-lien law, and invalidates a

homeowners’ association’s use of a state-sanctioned super-priority lien to foreclose 

on the FHFA’s property without its consent. 12 U.S.C. § 4617(j)(3); Berezovsky, 

869 F.3d at 931. Fannie Mae has been in FHFA conservatorship since 2008. Fed. 
4 

Home Loan Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1140 (9th Cir. 

2018).

2. The servicer of a loan owned by an entity regulated by the FHFA has 

standing to assert the Federal Foreclosure Bar in a quiet-title action without joining 

FHFA as a party. See Berezovsky, 869 F.3d at 932.

3. In support of their motion for summary judgment, Fannie Mae and 

Ditech offered the affidavit of Graham Babin, Fannie Mae Assistant VicePresident, and corroborating business records to show that Fannie Mae had a valid 

and enforceable interest in the property and that Ditech was acting as Fannie Mae’s 

agent and authorized loan servicer at the time of the HOA sale. Under 

Berezovsky, Fannie Mae’s business records constitute sufficient evidence of 

Fannie Mae’s ownership of the loan. Berezovsky, 869 F.3d at 932–33 & n.8. 

4. Resources Group argues that Nevada law requires a “signed writing” 

for Fannie Mae to hold an interest in the deed of trust, citing Leyva v. National 

Default Servicing Corp., 255 P.3d 1275, 1279 (Nev. 2011). Leyva is inapplicable 

here because that case concerned Nevada’s Foreclosure Mediation statute, Nev. 

Rev. Stat. section 107.086, and that statute was not implicated in the HOA 

foreclosure of the Reber property.

5. Resources Group contends that Fannie Mae’s claim of ownership in 

the deed of trust was unrecorded and void under Nevada law, because Fannie Mae 
5 

is not identified as Lender on the Reber trust deed and there is no publicly recorded 

document showing ownership was transferred to Fannie Mae. But Nevada law 

does not require a recorded instrument to prove Fannie Mae’s ownership of the 

Reber loan. Daisy Trust v. Wells Fargo Bank, N.A., 445 P.3d 846, 849 (Nev. 

2019) (en banc); see also Berezovsky, 869 F.3d at 932 & n.8; SFR Invs. Pool 1, 

893 F.3d at 1149. 

6. Resources Group asserts that, under Nev. Rev. Stat. section 

111.205(1), Fannie Mae was required to produce a signed writing in the form of 

the loan servicing agreement and the original promissory note to prove its claim of 

interest in the property. The Nevada Supreme Court ruled long ago that “[t]he 

defense of the statute of frauds is personal, and available only to the contracting 

parties or their successors in interest.” Harmon v. Tanner Motor Tours of Nev., 

Ltd., 377 P.2d 622, 628 (Nev. 1963). Neither Resources Group nor Reber Dr. 

Trust was a party to the underlying loan agreement. As a result, Resources Group 

cannot raise the statute of frauds. 

7. Resources Group argues that Nevada’s bona fide purchaser laws 

support its claim to free-and-clear title to the Reber property. These arguments are 

unavailing. Nevada’s bona fide purchaser laws are preempted to the extent that the 

laws would allow for the extinguishment of Fannie Mae’s interest without FHFA’s 

consent. Berezovsky, 869 F.3d at 931.
6 

8. Resources Group contends that Fannie Mae and FHFA implicitly 

consented to the extinguishment of Fannie Mae’s interest during the foreclosure 

sale by failing to act. But “[t]he Federal Foreclosure Bar does not require [FHFA] 

to actively resist foreclosure.” Berezovsky, 869 F.3d at 929. Absent FHFA’s 

affirmative relinquishment, Resources Group’s interest in the Reber property is 

subject to Fannie Mae’s deed of trust. There is no evidence in the record of an 

affirmative act of consent by FHFA or Fannie Mae. Accordingly, the district court 

properly granted summary judgment on this issue.

B. The Thompson Drive Property

Fannie Mae acquired ownership of the Thompson loan on December 1, 2002 

and remains the owner. On May 1, 2014, Green Tree Servicing LLC (now known 

as Ditech) became Fannie Mae’s authorized servicer, and an assignment was 

recorded February 18, 2015. When the owners of the Thompson Drive home fell 

behind on their assessments, the Grapevine HOA commenced nonjudicial 

foreclosure pursuant to Nevada state law. Prior to the foreclosure sale, counsel for 

Fannie Mae’s agent and authorized servicer tendered nine months’ worth of 

assessments to the HOA. The HOA proceeded with its foreclosure, and Thompson 

Trust obtained title to the property after paying the high bid at a public auction. 

Ditech filed suit on September 21, 2018, seeking quiet title and declaratory 

relief that the Thompson deed of trust survived the nonjudicial foreclosure sale. 
7 

The district court granted Ditech’s motion for summary judgment after finding that 

Ditech had tendered the super-priority amount and was entitled to judgment as a 

matter of law. Resources Group, as trustee for the Thompson Drive Trust, timely 

appeals contending the district court should be reversed, because the amount of the 

pre-sale tender by Fannie Mae’s authorized servicer was insufficient to extinguish 

the super-priority lien. 

1. Resources Group did not raise this issue below, and it is thus waived. 

See Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998). But 

the arguments are without merit regardless.

2. Resources Group contends that the district court was required to 

weigh the equities before it could find a valid tender of the super-priority portion 

of the lien, citing Shadow Wood Homeowners Ass’n v. New York Community 

Bancorp., 366 P.3d 1105 (Nev. 2016). Shadow Wood is inapplicable here, because 

the district court did not set aside the HOA foreclosure sale. Moreover, Ditech 

need not resort to equity to prevail on the issue of tender, as the valid tender 

discharged the super-priority lien “by operation of law.” Bank of America v. SFR 

Investments Pool 1, 427 P.3d 113, 120 (Nev. 2018) (en banc).

3. Resources Group claims that even if the tender satisfied the superpriority portion of the HOA lien, its status as a bona fide purchaser gives it title to 

the property free and clear of Ditech’s interest. The Nevada Supreme Court has 
8 

held that bona fide purchaser status is irrelevant when the holder of a first deed of 

trust makes a valid tender of the super-priority portion of an HOA lien. Id. at 121. 

It does not matter that Ditech’s predecessor did not record its claim of tender. 

Tendering the super-priority portion of an HOA lien “preserves a pre-existing 

interest [in property], which does not require recording.” Id. at 119.

AFFIRMED.