WILLISTON INVESTMENT GROUP, LLC, a Nevada limited liability company v. JP MORGAN CHASE BANK, NA, a National Association;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLISTON INVESTMENT GROUP,
LLC, a Nevada limited liability company,
Plaintiff-counter-
defendant-Appellant,
v.
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,
No. 16-15929
D.C. No.
2:14-cv-02038-GMN-PAL
MEMORANDUM*
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
AUG 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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

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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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