NOT FOR PUBLICATION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 purc hased 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 APPEALS2

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 foreclosur e 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 resu lt where, at the time of sale: (1) Fannie Mae or the Federal Home Loan Mortgage Company ("Freddie Mac") has a secured interest in t h e 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 genui ne 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 not e. Nationstar3

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
possesse d 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 conse nted 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

- Super

Priority

- 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 aff

irmatively relinquishes it"); accord Christine View , 417 P.3d at
368.4

4. The Federal Foreclosure Bar does not violate a purchaser ’ s right to due
process. F ed. Home Loan Mortg. Co. v. SFR Invs

. Pool 1, LLC , 893 F.3d 1136,
1147

– 51 (9th Cir. 2018).
AFFIRM ED.