FILED

NOT FOR PUBLICATION

FEB 9 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FEDERAL NATIONAL MORTGAGE No. 20-15156

ASSOCIATION,

D.C. No. Plaintiff-Appellee, 2:16-cv-02829-JAD-BNW

v.

MEMORANDUM*

FERRELL STREET TRUST,

Defendant-Appellant,

and

WARM SPRINGS RESERVE OWNERS

ASSOCIATION; ALESSI & KOENIG,

LLC,

Defendants.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted February 5, 2021** San Francisco, California

* 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). Before: SILER,*** IKUTA, and NGUYEN, Circuit Judges.

Ferrell Street Trust (the Trust) timely appeals the grant of summary

judgment in favor of Federal National Mortgage Association (Fannie Mae). The

district court had jurisdiction under 28 U.S.C. § 1332, and we have jurisdiction

under 28 U.S.C. § 1291.

Fannie Mae’s action for declaratory relief is not barred by the statute of

limitations because Fannie Mae filed its suit less than six years after the

foreclosure sale occurred in 2012. Under the Housing and Economic Recovery

Act (HERA), Fannie Mae’s quiet title claims and declaratory relief claims are

subject to the six-year statute of limitations for contract claims. See M & T Bank v.

SFR Invs. Pool 1, LLC, 963 F.3d 854, 858–59 (9th Cir. 2020).

Under the Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3), the Trust’s

foreclosure sale did not extinguish Fannie Mae’s first deed of trust on the

*** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 residential property at issue here.1 At the time of the foreclosure sale, Fannie Mae,

the owner of the promissory note, held a security interest in the property through

its agent, Bank of America, which was the record beneficiary of the deed of trust.

See Berezovsky v. Moniz, 869 F.3d 923, 932 (9th Cir. 2017). Fannie Mae was not

required to record its interest, either under Nev. Rev. Stat. § 111.315 or otherwise,

because the acquisition of a loan does not constitute an assignment or conveyance

of property that must be recorded. See Daisy Tr. v. Wells Fargo Bank, N.A., 135

Nev. 230, 233 (2019). Fannie Mae provided reliable evidence that it owned a

security interest in the property, including business records, declarations, and

relevant excerpts from Fannie Mae’s Servicing Guide. See Berezovsky, 869 F.3d at

932–33. Because the Trust was not a party to Fannie Mae’s acquisition of the loan,

it lacks standing to raise a statute of frauds defense. See Easton Bus. Opp. v. Town

Exec. Suites, 126 Nev. 119, 127 n.4 (2010).2

1 The Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3), provides that “[n]o property of the [Federal Housing Finance Agency (FHFA)] shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the [FHFA], nor shall any involuntary lien attach to the property of the [FHFA].” Because the FHFA placed Fannie Mae into a conservatorship, Fannie Mae’s assets are deemed to be property of the FHFA for purposes of the Federal Foreclosure Bar. See 12 U.S.C. § 4617(b)(2)(A)(i); Fed. Home Loan Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1143 (9th Cir. 2018). 2 Because we decide on this ground, we do not reach Fannie Mae’s alternative arguments. 3

AFFIRMED.

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