NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONSTAR MORTGAGE LLC, No. 18-17212

Plaintiff-Appellee, D.C. No. 2:17-cv-01762-JCM-CWH v.

RON HAUS; EVA BEROU, MEMORANDUM*

Defendants-Appellants.

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

Submitted July 8, 2020**

Before: SCHROEDER, CANBY, and TROTT, Circuit Judges.

Ron Haus and Eva Berou appeal the district court’s grant of summary

judgment in a quiet title action brought by Nationstar Mortgage, LLC, after Haus

and Berou purchased real property for $7,900.00 at a nonjudicial foreclosure sale.

Nationstar, beneficiary of the deed of trust on the property and loan servicer for

* 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). Federal National Mortgage Association (“Fannie Mae”), sought application of the

Federal Foreclosure Bar because the Federal Housing Finance Agency (“FHFA”),

conservator for Fannie Mae, did not consent to the foreclosure sale. We review de

novo. Berezovsky v. Monez, 869 F.3d 923, 927 (9th Cir. 2017). We affirm the

district court’s judgment.

Pursuant to the Federal Foreclosure Bar, 12 U.S.C § 4617(j)(3), without

FHFA’s consent, a homeowner’s association (“HOA”) foreclosure sale under

Nevada’s superpriority lien law, Nev. Rev. Stat. § 116.3116, does not extinguish

the interest of FHFA as conservator for Fannie Mae. Fed. Home Loan Mortg.

Corp. v. SFR Investments Pool 1, LLC, 893 F.3d 1136, 1146-47 (9th Cir. 2018);

Berezovsky, 869 F.3d at 931.

The district court properly rejected appellants’ argument that the Federal

Foreclosure Bar did not apply on the ground that Nationstar failed to establish that

Fannie Mae owned the loan or had an interest in the property at the time of the

foreclosure sale. Fannie Mae’s ownership interest was established by its properly

authenticated business records, including a printout from its Servicer & Investor

Reporting (“SIR”) platform. See Berezovsky, 869 F.3d at 932-33 & nn.8-9. A

Fannie Mae assistant vice president sufficiently authenticated the business records

by attesting that he had personal knowledge of the SIR records and describing how

the records were made and kept. See Fed. R. Evid. 901(a) (“To satisfy the

2 requirement of authenticating . . . an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what the proponent claims

it is.”); Fed. R. Evid. 901(b)(1) (testimony of a witness with knowledge satisfies

the requirement of authentication). At issue was Fannie Mae’s ownership of the

note, not its authority to enforce the note through foreclosure as the possessor or

holder of the note. See Nev. Rev. Stat. § 104.3301(2) (different entities may be the

owner of a note and the holder entitled to enforce it). Accordingly, Fannie Mae’s

failure to produce the promissory note was irrelevant to whether it could invoke the

Federal Foreclosure Bar. Further, the SIR printout satisfied the best evidence rule.

See Fed. R. Evid. 1002 (“An original writing . . . is required in order to prove its

content . . ..”); Fed. R. Evid. 1001(d) (“For electronically stored information,

‘original’ means any printout . . . if it accurately reflects the information.”); United

States v. Diaz-Lopez, 625 F.3d 1198, 1202-03 (9th Cir. 2010).

The district court correctly concluded that Fannie Mae’s failure to record its

ownership interest did not preclude application of the Federal Foreclosure Bar.

The assignment of the deed of trust to Nationstar, the beneficiary, was recorded,

and the note was “split” from the deed of trust. “Under these circumstances . . . an

‘agency relationship’ with the recorded beneficiary preserves the note owner’s

power to enforce its interest under the security instrument, because the note owner

can direct the beneficiary to foreclose on its behalf.” Berezovsky, 869 F.3d at 932

3 (citing In re Montierth, 354 P.3d 648, 650-51 (Nev. 2015)). The SIR printout

showed that Fannie Mae owned the note and that Nationstar was the loan servicer,

and the Fannie Mae Single-Family Selling and Servicing Guides submitted by

Nationstar showed that Nationstar was Fannie Mae’s agent. Accordingly, the

district court correctly concluded that Fannie Mae had an ownership interest and

properly applied the Federal Foreclosure Bar. See Fed. Home Loan Mortg. Corp.,

893 F.3d at 1149-50; Berezovsky, 869 F.3d at 932-33.

Appellants’ motion to supplement the record or for judicial notice (Docket

Entry No. 12) is denied. See Vargas v. Howell, 949 F.3d 1188, 1198 (9th Cir.

2020) (in general, documents not filed with the district court cannot be made part

of the record on appeal).

AFFIRMED.

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