FILED

NOT FOR PUBLICATION

OCT 18 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JP MORGAN CHASE BANK; et al., No. 17-15680

Plaintiffs-Appellees, D.C. No. 2:15-cv-01701-JCM-VCF v.

LAS VEGAS DEVELOPMENT GROUP, MEMORANDUM*

LLC,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted October 15, 2018** San Francisco, California

Before: THOMAS, Chief Judge, KLEINFELD, Circuit Judge, and WU,*** District Judge.

* 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). *** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation. Las Vegas Development appeals from the district court’s grant of summary

judgment in favor of JP Morgan Chase (“JP Morgan”), the Federal Home Loan

Mortgage Corporation (“Freddie Mac”), and the Federal Housing Finance Agency

(the “Finance Agency”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We

AFFIRM.

In 2006, a couple named the Browns purchased real property (the

“Property”) in Nevada that was part of a homeowners’ association. The Browns

financed the property with a mortgage loan that Freddie Mac eventually bought.

When the Browns failed to pay their homeowners’ association fees, the

homeowners’ association foreclosed on their property. The homeowners’

association held a foreclosure sale, bought the property, and then sold it to Las

Vegas Development.

Freddie Mac and the Finance Agency, Freddie Mac’s conservator, filed an

action to quiet title and for declaratory relief. The district court granted summary

judgment in favor of Freddie Mac and the Finance Agency, and held that the

Federal Foreclosure Bar, 12 U.S.C. § 4617, preempts Nevada Revised Statute §

2 116.3116 and prevents the homeowners’ association sale from extinguishing the

Finance Agency’s interest. As a result, Freddie Mac and the Finance Agency

retained an interest in the property.

Because the district court’s decision was in accordance with Berezovksy v.

Moniz,869 F.3d 923 (9th Cir. 2017), the district court’s judgment is AFFIRMED.

1. First, Las Vegas Development argues that the homeowners’ association

had a superpriority lien pursuant to Nevada Revised Statute § 116.3116 that

allowed it to sell the Property without the Finance Agency’s consent. However,

the Federal Foreclosure Bar, 12 U.S.C. § 4617, preempts Nevada Revised Statute §

116.3116 and prevents the homeowners’ association sale from extinguishing the

Finance Agency’s interest. See Berezovsky, 869 F.3d at 931.

2. Las Vegas Development also argues that Freddie Mac produced

insufficient evidence of a property interest. Freddie Mac, however, produced

sufficient evidence by providing printouts of its internal database records. Id. at

932-33; Elmer v. JP Morgan Chase & Co., 707 F. App’x 426, 428 (9th Cir. 2017).

3 3. Las Vegas Development also argues that Freddie Mac lacked an

enforceable property interest because Freddie Mac was not the record beneficiary

of the deed of trust. However, Freddie Mac still held an enforceable property

interest because the record beneficiary was Freddie Mac’s agent. See Berezovsky,

869 F.3d at 932-33; Fed. Home Loan Mortg. Corp. v. SFR Inv. Pool 1, LLC, 893

F.3d 1136 (9th Cir 2018).

4. Las Vegas Development also claims that JP Morgan’s claim is

barred by the statute of limitations. However, Las Vegas Development waived this

defense by not including it in its opposition to JP Morgan’s motion for summary

judgment. See USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276, 1284 (9th

Cir. 1994). While Las Vegas Development attempted to incorporate its answer in

its opposition to the motion for summary judgment by referring to “all pleadings

and papers,” such an incorporation by reference does not suffice. See Carmen v.

San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001).

5. Lastly, Las Vegas Development claims that the district court improperly

granted summary judgment because no discovery had yet occurred. However, Las

Vegas Development was required to object to a lack of discovery and request

4 appropriate relief under Rule 56(d) and did not. See Fed. R. Civ. P. 56(d). Instead,

it objected in its opposition brief. A “[f]ailure to comply with the requirements of

Rule 56(f)1 is grounds for denying discovery and proceeding to summary

judgment.” Weinberg v. Whatcom Cty., 241 F.3d 746, 751 (9th Cir. 2001).

For these reasons, the district court’s judgment is AFFIRMED.

1 Fed. R. Civ. P. 56(d) was formerly Fed. R. Civ. P. 56(f). 5