Opinion
No. 77481-COA
09-11-2020
PREMIER ONE HOLDINGS, INC., A NEVADA CORPORATION, Appellant, v. GREEN TREE SERVICING, LLC, N/K/A DITECH FINANCIAL, LLC, Respondent.
ORDER OF AFFIRMANCE
Premier One Holdings, Inc. (Premier), appeals from a district court order granting a motion for summary judgment in a quiet title action. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.
The original owners of the subject property failed to make periodic payments to their homeowners' association (HOA). The HOA recorded a notice of delinquent assessment lien and later a notice of default and election to sell to collect on the past due assessments and other fees pursuant to NRS Chapter 116. Premier purchased the property at the resulting foreclosure sale and initiated the underlying action seeking to quiet title. The predecessor to respondent Green Tree Servicing, LLC, n/k/a Ditech Financial, LLC (Ditech)—holder of the first deed of trust on the property—counterclaimed seeking the same, and the parties later stipulated to substitute Ditech in place of its predecessor. Ditech ultimately moved for summary judgment, which the district court granted, concluding that the Federal National Mortgage Association (Fannie Mae) owned the underlying loan such that 12 U.S.C. § 4617(j)(3) (the Federal Foreclosure Bar) prevented the foreclosure sale from extinguishing Ditech's deed of trust. This appeal followed.
This court reviews a district court's order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id. When deciding a summary judgment motion, all evidence must be viewed in a light most favorable to the nonmoving party. Id. General allegations and conclusory statements do not create genuine issues of fact. Id. at 731, 121 P.3d at 1030-31.
A review of the record from the underlying proceeding reveals that no genuine issue of material fact exists and that Ditech is entitled to judgment as a matter of law. Id. at 729, 121 P.3d at 1029. We reject Premier's arguments that Fannie Mae was required to be the beneficiary of the deed of trust or otherwise record its interest in order to avail itself of the Federal Foreclosure Bar. See Daisy Tr. v. Wells Fargo Bank, N.A., 135 Nev. 230, 233-34, 445 P.3d 846, 849 (2019) (holding that a deed of trust need not be assigned to a regulated entity in order for it to own the secured loan—meaning that Nevada's recording statutes are not implicated—where the deed of trust beneficiary is an agent of the note holder). Moreover, because Fannie Mae was not required to record its interest, Premier's supposed status as a bona fide purchaser is inapposite. See id. at 234, 445 P.3d at 849. Finally, we conclude that the declaration and business records produced by Ditech were sufficient to prove Fannie Mae's ownership of the note and the agency relationship between it and Ditech in the absence of contrary evidence. See id. at 234-36, 445 P.3d at 849-51 (affirming on similar evidence and concluding that neither the loan servicing agreement nor the original promissory note must be produced for the Federal Foreclosure Bar to apply).
To the extent Premier essentially requests that this court overrule Daisy Trust, we cannot overrule Nevada Supreme Court precedent. See Hubbard v. United States, 514 U.S. 695, 720 (1995) (Rehnquist, C.J., dissenting) (noting that stare decisis "applies a fortiori to enjoin lower courts to follow the decision of a higher court"); cf. People v. Solorza.no, 63 Cal. Rptr. 3d 659, 664 (Ct. App. 2007) ("The Court of Appeal must follow, and has no authority to overrule, the decisions of [the California Supreme Court]." (alteration in the original) (internal quotation marks omitted)).
Premier contends that the publicly recorded deed of trust as of the time of the foreclosure sale constituted contrary evidence because it indicated that Ditech's predecessor might have then been the owner of the underlying note. But Premier fails to address the fact that Fannie Mae acquired the loan after that deed of trust was recorded, see Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (noting that the appellate courts need not consider claims unsupported by cogent argument), and it does not identify any evidence rebutting Ditech's evidence that Fannie Mae acquired the loan or otherwise indicating that Fannie Mae transferred the loan back to Ditech's predecessor, see Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 602-03, 172 P.3d 131, 134 (2007) (discussing the burdens of production that arise in the context of a motion for summary judgment). Accordingly, we reject this argument.
Accordingly, the district court properly concluded that the Federal Foreclosure Bar prevented extinguishment of Ditech's deed of trust and that Premier took the property subject to it. See Saticoy Bay LLC Series 9641 Christine View v. Fed. Nat'l Mortg. Ass'n, 134 Nev. 270, 273-74, 417 P.3d 363, 367-68 (2018) (holding that the Federal Foreclosure Bar preempts NRS 116.3116 such that it prevents extinguishment of the property interests of regulated entities under FHFA conservatorship without affirmative FHFA consent). Thus, given the foregoing, we
ORDER the judgment of the district court AFFIRMED.
Insofar as the parties raise arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. Ronald J. Israel, District Judge
Hong & Hong
Akerman LLP/Las Vegas
Eighth District Court Clerk