Berberich Vs. Citimortgage, Inc.

IN THE SUPREME COURT OF THE STATE OF NEVADA

KENNETH BERBERICH, AN No. 76891 INDIVIDUAL, Appellant, vs.

CITIMORTGAGE, INC., A NATIONAL ASSOCIATION, MAR 1 3 2020 Res ondent. EL1ZA8ET4 A. i'3ROWN CLERK OF 1_,,1 r:REME COURT BY DEPUTY CLERK ORDER OF AFFIRMANCE This is an appeal from a district court order granting summary judgment in an action to quiet title. Eighth Judicial District Court, Clark County; James Crockett, Judge. Reviewing the summary judgment de novo, Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005), we affirm.' In Saticoy Bay LLC Series 9641 Christine View v. Federal National Mortgage Assn, 134 Nev. 270, 272-74, 417 P.3d 363, 367-68 (2018) (Christine View), this court held that 12 U.S.C. § 4617(j)(3) (2012) (the Federal Foreclosure Bar) preempts NRS 116.3116 and prevents an HOA foreclosure sale from extinguishing a first deed of trust when the subject loan is owned by the Federal Housing Finance Agency (or when the FHFA is acting as conservator of a federal entity such as Freddie Mac or Fannie Mae). And in Nationstar Mortgage, LLC v. SFR Investments Pool 1, LLC, 133 Nev. 247, 250-51, 396 P.3d 754, 757-58 (2017), this court held that loan servicers such as respondent have standing to assert the Federal Foreclosure Bar on behalf of Freddie Mac or Fannie Mae. Consistent with

'Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.

these decisions, the district court correctly determined that respondent had standing to assert the Federal Foreclosure Bar on Freddie Mac's behalf and that the foreclosure sale did not extinguish the first deed of trust because Freddie Mac owned the secured loan at the time of the sale. Appellant contends that it is protected as a bona fide purchaser from the Federal Foreclosure Bar's effect. But we recently held that an HOA foreclosure sale purchaser's putative status as a bona fide purchaser is inapposite when the Federal Foreclosure Bar applies because Nevada law does not require Freddie Mac to publicly record its ownership interest in the subject loan. Daisy Tr. v. Wells Fargo Bank, N.A., 135 Nev., Adv. Op. 30, 445 P.3d 846, 849 (2019). Appellant also raises arguments challenging the sufficiency and admissibility of respondent's evidence demonstrating Freddie Mac's interest in the loan, but we recently addressed and rejected similar arguments with respect to similar evidence. Id. at 850-51. Appellant additionally contends that application of the Federal Foreclosure Bar violated appellant's due process rights. However, we agree with the Ninth Circuit Court of Appeals decision in Federal Home Loan Mortgage Corp. v. SFR Investments Pool I, LLC, 893 F.3d 1136, 1147-51 (9th Cir. 2018), that (1) an HOA foreclosure sale purchaser does not have a constitutionally protected property interest in obtaining a property free and clear of a first deed of trust; and (2) in any event, the lack of a procedure to obtain the FHFNs consent only implicates an HONs (and not a purchaser's) procedural due process rights. We similarly reject appellant's argument that respondent bore the burden of showing the FHFA did not consent to the first deed of trust being extinguished. Cf. Christine View, 134 Nev. at 274, 417 P.3d at 368 (recognizing that the FHFA must "'affirmatively relinquish[ ] its rights under the Federal Foreclosure Bar for its property

SUPREME Coup-r OF NEyADA 2 (0) 1947A cleMo

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interest to be extinguished by a foreclosure sale (quoting Berezovsky v. Moniz, 869 F.3d 923, 929 (9th Cir. (2017))). Accordingly, the district court correctly determined that appellant took title to the property subject to the first deed of trust. We therefore ORDER the judgment of the district court AFFIRMED.

Pickering

, J. Silver

cc: Hon. James Crockett, District Judge James A. Kohl, Settlement Judge Ayon Law, PLLC Akerman LLP/Las Vegas Fennemore Craig P.C./Reno Eighth District Court Clerk