NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 31 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLISTON INVESTMENT GROUP, No. 16-15929 LLC, a Nevada limited liability company, D.C. No. Plaintiff-counter- 2:14-cv-02038-GMN-PAL defendant-Appellant,

v. MEMORANDUM*

JP MORGAN CHASE BANK, NA, a National Association; et al.,

Defendants-counter- claimants-Appellees,

DESERT LINN CONDOMINIUMS,

Counter-defendant-Appellee,

FEDERAL HOUSING FINANCE

AGENCY, Conservator of the Federal National Mortgage Association,

Intervenor-Defendant- Appellee.

MTC FINANCIAL, INC.; ROBERT

WAKEFIELD,

Defendants-Appellees,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, Chief Judge, Presiding

Submitted August 29, 2018** Pasadena, California

Before: CALLAHAN*** and OWENS, Circuit Judges, and SETTLE,**** District Judge.

Williston Investment Group, LLC (“Williston”) appeals from the district

court’s order granting partial summary judgment in favor of Federal Home Loan

Mortgage Corporation (“Freddie Mac”), intervenor Federal Housing Finance

Agency (“FHFA”), and other defendants. The district court certified its decision as

a final and appealable judgment under Federal Rule of Civil Procedure 54(b). As

the parties are familiar with the facts, we do not recount them here. We affirm.

Williston argues that the district court erred in holding that the Federal

Foreclosure Bar, 12 U.S.C. § 4617(j)(3), which prohibits foreclosure of FHFA

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). This case is resubmitted as of August 29, 2018. *** Following Judge Kozinski’s retirement, Judge Callahan was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Callahan has read the briefs and reviewed the record. **** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation.

2 conservatorship property without the FHFA’s consent, preempts Nevada Revised

Statutes § 116.3116(2), which gives a superpriority lien to homeowners’

associations (“HOAs”). However, this argument is resolved by our intervening

decision in Berezovsky v. Moniz, 869 F.3d 923, 931 (9th Cir. 2017), which held

that “the Federal Foreclosure Bar supersedes the Nevada superpriority lien

provision.” See also Fed. Home Loan Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893

F.3d 1136, 1146-47 (9th Cir. 2018) (SFR).

Williston also argues that the district court erred in determining that there

were no genuine issues of material fact regarding whether Freddie Mac and FHFA

possessed an interest in the subject property at the time of the HOA foreclosure

sale. Specifically, Williston contends that Freddie Mac provided inadequate

evidence of its property interest. However, we held that similar evidence was

sufficient in Berezovsky, 869 F.3d at 926, 932 & n.8. Likewise, in Berezovsky, we

rejected the argument, similar to the one made by Williston here, that Freddie

Mac’s interest was unenforceable because it failed to record its interest before the

HOA foreclosure sale. See id. at 932-33; see also SFR, 893 F.3d at 1149-50.

Finally, Williston argues that the application of the Federal Foreclosure Bar

deprived it of a property right without due process. However, we recently rejected

similar arguments in SFR, 893 F.3d at 1147-51. In particular, we explained that

Nevada Revised Statutes § 116.3116(2) “does not function to provide [an HOA

3 foreclosure sale purchaser] with a constitutionally protected property interest in

purchasing the Properties with free and clear title.” Id. at 1148.

AFFIRMED.

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