NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DITECH FINANCIAL LLC; FEDERAL 

NATIONAL MORTGAGE 

ASSOCIATION, 

Plaintiffs-Appellees, 

 v. 

T-SHACK, INC., 

Defendant-Appellant.

No. 20-15526 

D.C. No. 

2:16-cv-02812-JAD-NJK 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Submitted June 7, 2021**

Pasadena, California

Before: GRABER, CALLAHAN, and FORREST, Circuit Judges.

Defendant T-Shack, Inc., timely appeals the summary judgment in favor of 

Plaintiffs Ditech Financial LLC ("Ditech") and Federal National Mortgage 

Association ("Fannie Mae"). In 2013, Defendant purchased a property in Nevada 

* 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 

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

FILED

JUN 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

at a foreclosure sale by a homeowners association ("HOA"). The district court 

held that, at the time of the sale, Fannie Mae had a secured property interest and 

that, by operation of the Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3), the sale 

did not extinguish the deed of trust. The court declared that Defendant owns the 

property subject to the deed of trust. Reviewing de novo, Berezovsky v. Moniz, 

869 F.3d 923, 927 (9th Cir. 2017), we affirm.

Under Nevada law, a foreclosure by an HOA may, in some circumstances, 

extinguish an existing deed of trust. See generally Bank of Am., N.A. v. Arlington 

W. Twilight Homeowners Ass’n, 920 F.3d 620, 621–22 (9th Cir. 2019) (per 

curiam). But the Federal Foreclosure Bar preempts that result where, at the time of 

sale: (1) Fannie Mae or the Federal Home Loan Mortgage Company ("Freddie 

Mac") has a secured interest in the property; (2) those organizations are under 

conservatorship by the Federal Housing Finance Agency ("Agency"); and (3) the

Agency has not consented to the foreclosure sale. 12 U.S.C. § 4617(j)(3); 

Berezovsky, 869 F.3d at 928–31; Saticoy Bay LLC Series 9641 Christine View v. 

FNMA, 417 P.3d 363, 367–68 (Nev. 2018) (en banc).

1. The district court correctly held that no genuine issue of material fact 

exists as to Fannie Mae’s property interest at the time of the foreclosure sale in 

2013. Business records and sworn declarations by employees of Fannie Mae and 

Ditech sufficiently establish that, in 2013, Fannie Mae owned the note. Nationstar 
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Mortg. LLC v. Saticoy Bay LLC, Series 9229 Millikan Ave., 996 F.3d 950, 956 

(9th Cir. 2021). Additionally, Fannie Mae’s Servicing Guide requires the servicer 

to prepare and record a mortgage assignment whenever requested by Fannie Mae, 

thus establishing the requisite principal-agency relationship such that Fannie Mae 

possessed a secured property interest under Nevada law. Id. Both we and the 

Nevada Supreme Court have rejected the argument, advanced by Defendant here, 

that Fannie Mae’s interest must be recorded. Id. at 957; Daisy Tr. v. Wells Fargo 

Bank, N.A., 445 P.3d 846, 849 (Nev. 2019) (en banc).

2. At the time of the foreclosure sale in 2013, Fannie Mae and Freddie Mac 

were under conservatorship. Nationstar, 996 F.3d at 955–56.

3. The district court correctly held that no genuine issue of material fact 

exists as to whether the Agency has consented to the foreclosure sale. The Agency 

has declared publicly that it has not consented to any foreclosure by an HOA, 

Statement on HOA Super-Priority Lien Foreclosures (Apr. 21, 2015), 

https://www.fhfa.gov/Media/PublicAffairs/Pages/Statement-on-HOA-SuperPriority-Lien-Foreclosures.aspx, and Defendant has not introduced any evidence to 

the contrary. See Berezovsky, 869 F.3d at 929 (holding that the Federal 

Foreclosure Bar "cloaks Agency property with Congressional protection unless or 

until the Agency affirmatively relinquishes it"); accord Christine View, 417 P.3d at 

368.
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4. The Federal Foreclosure Bar does not violate a purchaser’s right to due 

process. Fed. Home Loan Mortg. Co. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 

1147–51 (9th Cir. 2018).

AFFIRMED.