Absolute Business Solutions, Inc. et al v. Mortgage Electronic Registration Sys. Inc (MERS) et al

Filing 17

ORDER Granting 15 Stipulation Permitting Federal Housing Finance Agency to Intervene as Conservator of the Federal National Mortgage Association. Federal Housing Finance Agency answer due 9/30/2015. Signed by Magistrate Judge Carl W. Hoffman on 9/23/15. (Copies have been distributed pursuant to the NEF - TR)

Case 2:15-cv-01325-JCM-CWH Document 15 Filed 09/21/15 Page 1 of 4

4

Leslie Bryan Hart, Esq. (SBN 4932)
John D. Tennert, Esq. (SBN 11728)
FENNEMORE CRAIG, P.C.
300 E. Second St., Suite 1510
Reno, Nevada 89501
Tel: [phone] Fax: [phone]
[e-mail]; [e-mail]

5

Attorneys for Proposed Intervenor Federal Housing Finance Agency

1
2
3

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8
9
10
11
12
13

ABSOLUTE BUSINESS SOLUTIONS, INC.,
Plaintiff,
vs.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEM; BANK OF
AMERICA, N.A.; IRMA MENDEZ; DOES 125, inclusive; and ROE CORPORATIONS IX, inclusive,
Defendants.

16
17
18

STIPULATION TO ENTRY OF ORDER
AND [PROPOSED] ORDER
PERMITTING FEDERAL HOUSING
FINANCE AGENCY TO INTERVENE AS
CONSERVATOR OF THE FEDERAL
NATIONAL MORTGAGE ASSOCIATION

ALESSI & KOENIG, LLC,

14
15

CASE NO. 2:15-cv-01325-JCM-CWH

Plaintiff in Intervention,
vs.
JAMES M. McCORD; CROSSBOX;
FEDERAL NATIONAL MORTGAGE
ASSOC.; DOE INDIVIDUALS I-X; and ROE
CORPORATIONS I-X, inclusive,
Defendants in Intervention.

19
20

1.

The Federal Housing Finance Agency (“FHFA” or “Conservator”), as

21

Conservator for Intervenor-Defendant Federal National Mortgage Association (“Fannie Mae”),

22

seeks to intervene in the above-captioned action pursuant to 12 U.S.C. § 4617(b)(2)(A)(i) and

23

Fed. R. Civ. P. 24.

24

2.

On September 6, 2008, FHFA’s Director appointed the FHFA Conservator of

25

Fannie Mae and the Federal Home Loan Mortgage Corporation in accordance with the Housing

26

and Economic Recovery Act of 2008, Pub. L. 110-289, 122 Stat. 2654 (codified at 12 U.S.C.

27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10781975.1

Case 2:15-cv-01325-JCM-CWH Document 15 Filed 09/21/15 Page 2 of 4

1

§ 4617) (“HERA”), and the Federal Housing Enterprises Financial Safety and Soundness Act of

2

1992 (12 U.S.C. § 4501, et. seq.).

3

3.

The FHFA, as Conservator, has succeeded to “all rights, titles, powers, and

4

privileges” of Fannie Mae, including its right to sue and be sued in the federal courts. See

5

12 U.S.C. § 4617(b)(2)(A)(i).

6

4.

Accordingly, FHFA asserts that it has an unconditional federal statutory right to

7

intervene in this matter, see Fed. R. Civ. P. 24(a)(1), and to assert its interests in a manner

8

consistent with the Conservator’s powers and duties.

9

5.

10

Answer.

11

///

12

///

13

///

14

///

15

///

16

///

17

///

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

Pursuant to Fed. R. Civ. P. 24(c), FHFA attaches as Exhibit A its intended

///

FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10781975.1

2

Case 2:15-cv-01325-JCM-CWH Document 15 Filed 09/21/15 Page 3 of 4

1

STIPULATION

2
3

FHFA, Plaintiff/Counter-defendant Absolute Business, Inc., Defendants Mortgage
Electronic Registration System and Bank of America, N.A., Intervenor-Plaintiff Alessi &

4
Koenig, LLC, Intervenor/Defendant/Counterclaimant Federal National Mortgage Association,
5
6
7

through their attorneys of record, hereby stipulate and request that the Court make this
stipulation an order of the Court:
The FHFA shall be permitted to intervene in the above-referenced action
pursuant to 12 U.S.C. § 4617(b)(2)(A)(i) and Fed. R. Civ. P. 24.

8
9

DATED this 21st day of September, 2015.

10
11

KANG & ASSOCIATES, PLLC

FENNEMORE CRAIG, P.C.

By:

By:

12
13
14
15
16
17
18

/s/ Erica D. Loyd
Erica D. Loyd, Esq.
Patrick W. Kang, Esq.
6480 W. Spring Mountain Rd., Suite 1
Las Vegas, NV 89146
Tel: [phone] Fax: [phone]
[e-mail]
[e-mail]

/s/ Leslie Bryan Hart
Leslie Bryan Hart, Esq. (SBN 4932)
John D. Tennert, Esq. (SBN 11728)
300 E. Second St., Suite 1510
Reno, Nevada 89501
Tel: [phone] Fax: [phone]
[e-mail]; [e-mail]

Attorneys for Proposed Intervenor Federal
Housing Financing Agency

Attorneys for Plaintiff/Counterdefendant
Absolute Business, Inc.

19
20
21
22
23
24
25
26

AKERMAN LLP
By:

ALESSI & KOENIG, LLC

/s/ Darren T. Brenner
Darren T. Brenner, Esq. (SBN 8386)
By:
/s/ Steven T. Loizzi
Tenesa S. Scaturro, Esq. (SBN 12488)
Steven T. Loizzi, Jr., Esq. (SBN 10920)
1160 Town Center Drive, Suite 330
Huong X Lam, Esq. (SBN 10916)
Las Vegas, NV 89144
9500 West Flamingo Road, Suite 205
Tel: [phone] Fax: [phone]
Las Vegas, Nevada 89147
[e-mail]
Tel: [phone] Fax: [phone]
[e-mail]
[e-mail]

Attorneys for Defendants MERS; and Bank of
America, N.A.

Attorneys for Intervenor Plaintiff Alessi &
Koenig, LLC

27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10781975.1

3

Case 2:15-cv-01325-JCM-CWH Document 15 Filed 09/21/15 Page 4 of 4

1

WRIGHT, FINLAY & ZAK, LLP

2
By:
3
4
5
6
7
8

/s/ Dana Jonathon Nitz
Dana Jonathon Nitz, Esq. (SBN 00050)
Chelsea Crowton (SBN 11547)
5532 South Fort Apache Rd., Suite 110
Las Vegas, NV 89148
Tel: [phone] Fax [phone]
[e-mail]
[e-mail]

Attorney for Intervenor Defendant/Counter
claimant Federal National Mortgage
Association

9
10
11

ORDER
IT IS SO ORDERED. The Federal Housing Agency shall file its answer on the record no
IT IS SO ORDERED.
later than September 30, 2015.

12
________________________________
UNITED STATES DISTRICT JUDGE
United States Magistrate Judge
DATED: ________________________
DATED: September 23, 2015

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10781975.1

4

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 1 of 11

Exhibit A

Exhibit A

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 2 of 11

4

Leslie Bryan Hart, Esq. (SBN 4932)
John D. Tennert, Esq. (SBN 11728)
FENNEMORE CRAIG, P.C.
300 E. Second St., Suite 1510
Reno, Nevada 89501
Tel: [phone] Fax: [phone]
[e-mail]; [e-mail]

5

Attorneys for Intervenor Federal Housing Finance Agency

1
2
3

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7

ABSOLUTE BUSINESS SOLUTIONS, INC.,

CASE NO. 2:15-cv-01325-JCM-CWH

8
9

Plaintiff,
vs.
[PROPOSED]

10
11
12
13

MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; BANK
OF AMERICA, N.A., as Successor by Merger
to BAC Home Loans Servicing LP; IRMA
MENDEZ; DOES 1-25, inclusive; and ROE
CORPORATIONS I-X, inclusive,

14
15
16
17

Defendants.
and
FEDERAL HOUSING FINANCE AGENCY,
as Conservator for the Federal National
Mortgage Association,

18
Intervenor.
19
20

ALESSI & KOENIG, LLC,
Plaintiff in Intervention,

21
vs.
22
23
24
25
26
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

JAMES M. McCORD; CROSSBOX;
FEDERAL NATIONAL MORTGAGE
ASSOC.; DOE INDIVIDUALS I-X; and ROE
CORPORATIONS I-X, inclusive,
Defendants in Intervention.

ANSWER AND COUNTERCLAIMS BY
INTERVENOR THE FEDERAL
HOUSING FINANCE AGENCY AS
CONSERVATOR FOR THE FEDERAL
NATIONAL MORTGAGE ASSOCIATION

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 3 of 11

1
2
3
4
5

FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Counterclaimant,
and
FEDERAL HOUSING FINANCE AGENCY,
as Conservator of the Federal National
Mortgage Assoc.,

6
7
8

Intervenor,
vs.
ABSOLUTE BUSINESS SOLUTIONS, INC,
Counter-defendant.

9
10

Simultaneously with this Answer, the Federal Housing Finance Agency (“FHFA”), in its
11
capacity as Conservator for the Federal National Mortgage Association (“Fannie Mae”), is filing
12
a stipulation jointly with Plaintiff/Counter-defendant Absolute Business Solutions, Inc.
13
(“Absolute Business Solutions” or “Plaintiff”), Defendants Mortgage Electronic Registration
14
System (“MERS”) and Bank of America, N.A. (“BofA”), Intervenor-Plaintiff Alessi & Koenig,
15
LLC (“Alessi”) and Intervenor/Defendant/Counterclaimant Federal National Mortgage
16
Association to permit FHFA’s intervention as a defendant in this case pursuant to Federal Rule
17
of Civil Procedure 24. In accordance with Rule 24(c), FHFA submits this Answer to respond as
18
follows to the Amended Complaint filed by Plaintiff on March 17, 2014.
19
20
1.

PARTIES
FHFA admits that a Trustee’s Deed Upon Sale was recorded in the Official

21
Records of the Clark County Recorder on March 3, 2014 as Book and Instrument Number
22
20140303-0003787, stating that Absolute Business Solutions was the purported buyer at a
23
trustee’s sale of real property located at 3416 Casa Alto Avenue, North Las Vegas, NV 89031
24
(the “Property”), and that this recording speaks for itself. FHFA is without knowledge or
25
information sufficient to form a belief as to the truth of the remaining allegations within
26
Paragraph 1 of the Complaint.
27
2.

FHFA admits the allegations within Paragraph 2 of the Complaint.

28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

2

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 4 of 11

1

3.

FHFA admits the allegations of Paragraph 3 of the Complaint.

2

4.

FHFA is without knowledge or information sufficient to form a belief as to the

3
4
5

truth of the allegations within Paragraph 4 of the Complaint.
5.

FHFA is without knowledge or information sufficient to form a belief as to

Fannie Mae the truth of the allegations within Paragraph 5 of the Complaint.

6

VENUE AND JURISDICTION

7

6.

FHFA admits that venue is proper in this Court.

8

7.

FHFA admits that this Court has jurisdiction over this action pursuant to 28

9
10

U.S.C. §§ 1331 and 1441.
8.

FHFA admits the allegations within Paragraph 8 of the Complaint.

11
12

GENERAL ALLEGATIONS
1.

FHFA admits that a Trustee’s Deed Upon Sale was recorded in the Official

13

Records of the Clark County Recorder on March 3, 2014 as Book and Instrument Number

14

20140303-0003787 (the “Trustee’s Deed Upon Sale”), stating that Absolute Business Solutions

15

was the purported buyer of the Property at a trustee’s sale held on February 26, 2014, and that

16

this recording speaks for its itself. FHFA denies the remaining allegations within Renumbered

17

Paragraph 1 of the Complaint.1

18

2.

FHFA admits that the Trustee’s Deed Upon Sale states that Absolute Business

19

Solutions was the purported buyer of the Property at a trustee’s sale held on February 26, 2014,

20

and that this recording otherwise speaks for itself.

21

3.

FHFA admits that the Trustee’s Deed Upon Sale states that Fiesta Del Norte

22

Homeowners Association (the “HOA”) was the foreclosing beneficiary, that the sale price is

23

listed as $20,600.00, that the “amount of unpaid debt together with costs” is listed as $4,954.97,

24

and that this recording otherwise speaks for itself.

25
26
27
28

1

Following Paragraphs 1-8 on pages 1-2 of the Complaint, the first paragraph on page 3
of the Complaint is labeled “Paragraph 1.” FHFA refers to this second Paragraph 1 as
“Renumbered Paragraph 1.” Subsequent paragraphs in the Complaint, which are labeled
consecutively beginning with Renumbered Paragraph 1, also bear the “renumbered” designation.

FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

3

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 5 of 11

1

4.

FHFA denies the allegations concerning Fannie Mae within Renumbered

2

Paragraph 4 of the Complaint. FHFA is without knowledge or information sufficient to form a

3

belief as to the truth of the allegations within Renumbered Paragraph 4 of the Complaint that

4

concern defendants other than Fannie Mae.

5

5.

FHFA denies the allegations concerning Fannie Mae within Renumbered

6

Paragraph 5 of the Complaint. FHFA is without knowledge or information sufficient to form a

7

belief as to the truth of the allegations within Renumbered Paragraph 5 of the Complaint that

8

concern defendants other than Fannie Mae.

9

6.

FHFA denies the allegations concerning Fannie Mae within Renumbered

10

Paragraph 6 of the Complaint. FHFA is without knowledge or information sufficient to form a

11

belief as to the truth of the allegations within Renumbered Paragraph 6 of the Complaint that

12

concern defendants other than Fannie Mae.

13

7.

FHFA denies the allegations concerning Fannie Mae within Renumbered

14

Paragraph 7 of the Complaint. FHFA is without knowledge or information sufficient to form a

15

belief as to the truth of the allegations within Renumbered Paragraph 7 of the Complaint that

16

concern defendants other than Fannie Mae.

17

8.

18

Property.

19

9.

FHFA denies the allegations within Renumbered Paragraph 9 of the Complaint.

20

10.

Renumbered Paragraph 10 of the Complaint states legal conclusions that do not

21
22
23
24
25
26
27
28

FHFA admits that Fannie Mae had, and continues to have, an interest in the

require a response. To the extent a response is required, denied.
11.

Renumbered Paragraph 11 of the Complaint states legal conclusions that do not

require a response. To the extent a response is required, denied.
12.

Renumbered Paragraph 12 of the Complaint states claims for relief that do not

require a response. To the extent a response is required, denied.
13.

FHFA admits that Fannie Mae had, and continues to have, an interest in the

Property.
14.

FHFA denies the allegations within Renumbered Paragraph 14 of the Complaint.

FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

4

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 6 of 11

1
2

15.

Renumbered Paragraph 15 of the Complaint states legal conclusions that do not

require a response. To the extent a response is required, denied.

3

16.

FHFA denies the allegations within Renumbered Paragraph 16 of the Complaint.

4

17.

Renumbered Paragraph 17 of the Complaint states claims for relief that do not

5

require a response. To the extent a response is required, denied.

6

FIRST CLAIM FOR RELIEF
(Quiet Title)

7
8
9
10
11
12
13
14
15
16
17

18.

FHFA repeats its responses to Paragraphs 1-8 and Renumbered Paragraphs 1-17

as if fully stated herein.
19.

FHFA denies that Plaintiff owns the Property free and clear of any other interest

and is without knowledge or information sufficient to form a belief as to the truth of the
allegations within Renumbered Paragraph 19 of the Complaint.
20.

FHFA denies the allegations within Renumbered Paragraph 20 of the Complaint.

21.

Renumbered Paragraph 21 of the Complaint states legal conclusions that do not

require a response. To the extent a response is required, denied.
22.

Renumbered Paragraph 22 of the Complaint states claims for relief that do not

require a response. To the extent a response is required, denied.
SECOND CLAIM FOR RELIEF
(Declaratory Relief)

18
19
23.

FHFA repeats its responses to Paragraphs 1-8 and Renumbered Paragraphs 1-22

20
as if fully stated herein.
21
24.

Renumbered Paragraph 24 of the Complaint states a claim for relief that does not

22
require a response. To the extent a response is required, denied.
23
THIRD CLAIM FOR RELIEF
(Preliminary Injunction)

24
25
26
27
28

25.

FHFA repeats its responses to Paragraphs 1-8 and Renumbered Paragraphs 1-24

as if fully stated herein.
26.

Renumbered Paragraph 26 of the Complaint states a claim for relief that does not

require a response. To the extent a response is required, denied.

FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

5

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 7 of 11

1

27.

FHFA admits that Fannie Mae had, and continues to have, an interest in the

2

Property. Renumbered Paragraph 27 of the Complaint also states legal conclusions that do not

3

require a response. To the extent a response is required, denied.

4
5
6
7
8
9
10

28.

Renumbered Paragraph 28 of the Complaint states legal conclusions and claims

for relief that do not require a response. To the extent a response is required, denied.
29.

Renumbered Paragraph 29 of the Complaint states legal conclusions and claims

for relief that do not require a response. To the extent a response is required, denied.
30.

Renumbered Paragraph 30 of the Complaint states legal conclusions and claims

for relief that do not require a response. To the extent a response is required, denied.
31.

Renumbered Paragraph 29 of the Complaint states claims for relief that do not

11

require a response. To the extent a response is required, denied.

12

AFFIRMATIVE DEFENSES

13
14

FHFA’s investigation of these claims is continuing. By this Answer, FHFA waives no
affirmative defenses and reserves its right to amend the Answer to insert any subsequently

15
16
17

discovered affirmative defenses.
FIRST AFFIRMATIVE DEFENSE

18

The Complaint fails to state a claim for which relief can be granted because, among other

19

reasons, Plaintiff’s claim of free and clear title to the Property is barred by 12 U.S.C.

20

§ 4617(j)(3), which precludes an homeowners’ association sale from extinguishing Fannie Mae’s

21

interest in the Property and preempts any state law to the contrary.

22
SECOND AFFIRMATIVE DEFENSE
23
24
25

Plaintiff’s claims are barred by the doctrines of laches, estoppel, waiver, unjust
enrichment, and/or unclean hands.

26

THIRD AFFIRMATIVE DEFENSE

27

The damages, if any, that were allegedly sustained by Plaintiff as a result of the acts

28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

6

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 8 of 11

1

described in the Complaint were caused in whole or were contributed to in part by reason of the

2

acts, omissions, negligence, and/or intentional misconduct of Plaintiff.

3

FOURTH AFFIRMATIVE DEFENSE

4
The damages, if any, that were allegedly sustained by Plaintiff as a result of the acts
5
6

described in the Complaint were caused in whole or were contributed to in part by reason of the

7

acts, omissions, negligence, and/or intentional misconduct of one or more third parties over

8

whom neither FHFA nor Fannie Mae had control.

9

FIFTH AFFIRMATIVE DEFENSE

10

Plaintiff has an adequate remedy at law and has, through its own acts and/or omissions,

11

failed to mitigate its damages, the existence of which are denied.

12
SIXTH AFFIRMATIVE DEFENSE
13
Plaintiff failed to join one or more indispensable parties.

14

SEVENTH AFFIRMATIVE DEFENSE

15
16

Fannie Mae breached no duty with regard to Plaintiff.

17

CAUSES OF ACTION

18

FIRST CAUSE OF ACTION

19

(Declaratory Judgment versus Plaintiff)

20
21

1.

fully set forth herein.

22
23

2.

Pursuant to 28 U.S.C. § 2201, this Court has the power and authority to declare

FHFA and Fannie Mae’s rights and interests in the Property.

24
25

FHFA incorporates by reference the responses of all previous paragraphs, as if

3.

FHFA is an agency of the federal government of the United States of America and

is also the Conservator for Fannie Mae.

26

4.

The Conservator has succeeded by law to all of Fannie Mae’s “rights, titles,

27

powers, and privileges.” 12 U.S.C. § 4617(b)(2)(A)(i).

28

///

FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

7

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 9 of 11

1

5.

During the Conservatorship, “[n]o property of [FHFA] shall be subject to levy,

2

attachment, garnishment, foreclosure, or sale without the consent of the [FHFA], nor shall any

3

involuntary lien attach to the property of [FHFA].” 12 U.S.C. § 4617(j)(3).
6.

4
5

At the time of the foreclosure sale, the Deed of Trust was a first secured interest

on the Property as intended by NRS 116.3116(2)(b).
7.

6

Fannie Mae’s interest at issue is property of the Conservator. Therefore, applying

7

NRS Chapter 116 or other state law in a manner that extinguishes Fannie Mae’s interest in the

8

Property would violate 12 U.S.C. § 4617(j)(3).
8.

9
10
11

12 U.S.C. § 4617(j)(3) preempts any state law that would permit a foreclosure on

a superpriority lien to extinguish a property interest of Fannie Mae while it is under FHFA’s
conservatorship.
9.

At no time did Plaintiff, the HOA, Alessi & Koenig, LLC, or any other person or

12
entity obtain consent from FHFA to extinguish the Deed of Trust or otherwise extinguish Fannie
13

Mae’s interest.

14
15

10.

could not extinguish Fannie Mae’s interest in the Property.

16
17
18

Pursuant to 12 U.S.C. § 4617(j)(3), the foreclosure sale conducted by the HOA

11.

FHFA and Fannie Mae are entitled to a determination from this Court, pursuant to

28 U.S.C. § 2201, that 12 U.S.C. § 4617(j)(3) precludes an HOA foreclosure sale from
extinguishing Fannie Mae’s interest in the Property.

19

SECOND CAUSE OF ACTION

20

(Quiet Title versus Plaintiff)

21
22

12.

fully set forth herein.

23
24

13.

27

Pursuant to 28 U.S.C. § 2201 and NRS § 40.010, this Court has the power and

authority to resolve the parties’ adverse claims in the Property.

25
26

FHFA incorporates by reference the responses of all previous paragraphs, as if

14.

At the time of the foreclosure sale, the Deed of Trust was a first secured interest

on the Property as intended by NRS 116.3116(2)(b).
///

28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

8

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 10 of 11

1
2
3

15.

FHFA, as Fannie Mae’s conservator, has succeeded by law to all of Fannie Mae’s

“rights, titles, powers, and privileges.” 12 U.S.C. § 4617(b)(2)(A)(i).
16.

Plaintiff claims an interest in the Property through its purported purchase of the

4

Property at an HOA foreclosure sale conducted on February 26, 2014, and claims that the

5

foreclosure sale extinguished the Deed of Trust.

6

17.

Pursuant to 12 U.S.C. § 4617(j)(3), “[n]o property of [FHFA] shall be subject to

7

levy, attachment, garnishment, foreclosure, or sale without the consent of [FHFA], nor shall any

8

involuntary lien attach to the property of [FHFA].”

9

18.

Based on the adverse claims being asserted by the parties, FHFA and Fannie Mae

10

are entitled to a judicial determination regarding the rights and interests of the respective parties

11

to the case.

12

19.

FHFA and Fannie Mae are entitled to a determination from this Court, pursuant to

13

28 U.S.C. § 2201 and NRS § 40.010, that the HOA Sale did not extinguish Fannie Mae’s interest

14

in the Property.

15

20.

FHFA and Fannie Mae are entitled to a determination from this Court, pursuant to

16

28 U.S.C. § 2201 and NRS § 40.010 that Fannie Mae’s interest in the Property is superior to the

17

interest, if any, acquired by Plaintiff through the foreclosure deed.

18

PRAYER FOR RELIEF

19

WHEREFORE, FHFA prays for the following relief:

20

1.

That Plaintiff take nothing by way of its Complaint;

21

2.

That the Court declare that 12 U.S.C. § 4617(j)(3) preempts any Nevada law that

22

would permit a foreclosure on a superpriority lien to extinguish Fannie Mae’s

23

interest while it is under FHFA’s conservatorship;

24

3.

25
26

in the Property and thus did not convey the Property free and clear to Plaintiff;
4.

27
28

That the Court declare that the HOA sale did not extinguish Fannie Mae’s interest

That the Court declare that Fannie Mae’s property interest is superior to the
interest, if any, of Plaintiff;

5.

That Plaintiff’s claim for injunctive relief be denied;

FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

9

Case 2:15-cv-01325-JCM-CWH Document 15-1 Filed 09/21/15 Page 11 of 11

1

6.

That FHFA be awarded reasonable attorneys’ fees and costs; and

2

7.

That FHFA receive such other relief as the Court deems just and proper.

3

DATED this ___ day of September, 2015.

4

FENNEMORE CRAIG, P.C.

5
By:
6

Leslie Bryan Hart, Esq. (SBN 4932)
John D. Tennert, Esq. (SBN 11728)
300 E. Second St., Suite 1510
Reno, Nevada 89501
Tel: [phone] Fax: [phone]
[e-mail]; [e-mail]

7
8
9
10

Attorneys for Intervenor Federal Housing
Financing Agency

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FENNEMORE CRAIG, P.C.
300 E. SECOND ST.
SUITE 1510
RENO, NEVADA 89501
[phone]

10