Zamora Jordan v. Nationstar Mortgage, Llc

MOTION for Partial Summary Judgment

E.D. Wash.November 15, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 Daniel J. Gibbons, WSBA No. 33036 WITHERSPOON · KELLEY 422 West Riverside Avenue, Suite 1100 Spokane, WA 99201 Telephone: (509) 624-5265 Facsimile: (509) 458-2728 djg@witherspoonkelley.com Howard N. Cayne (pro hac vice) Asim Varma (pro hac vice) David B. Bergman (pro hac vice) ARNOLD & PORTER LLP 601 Massachusetts Ave. NW Washington, DC 20001 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 Howard.Cayne@aporter.com Attorneys for Federal Housing Finance Agency UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON No. 2:14-cv-00175 TOR THE FEDERAL HOUSING FINANCE AGENCY’S MOTION FOR PARTIAL SUMMARY JUDGMENT (Class Action) With Oral Argument Date: January 10, 2017 Time: 1:30pm LAURA ZAMORA JORDAN, as her separate estate, and on behalf of others similarly situated, Plaintiff, vs. NATIONSTAR MORTGAGE, LLC, a Delaware limited liability company, Defendant. Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - i Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ................................................................................ ii INTRODUCTION...................................................................................................1 BACKGROUND AND SUMMARY .....................................................................5 STANDARD OF REVIEW ..................................................................................11 ARGUMENT .........................................................................................................12 A. HERA EXPRESSLY PREEMPTS STATE LAW THAT WOULD LIMIT THE CONSERVATOR’S DISCRETION REGARDING THE PRESERVATION AND CONSERVATION OF COLLATERAL .......12 B. HERA GIVES RISE TO FIELD PREEMPTION AND PROHIBITS STATE LAW THAT WOULD LIMIT THE CONSERVATOR’S POWERS TO PRESERVE AND CONSERVE COLLATERAL .........15 C. APPLYING WASHINGTON STATE LAW HERE WOULD IMPERMISSIBLY FRUSTRATE THE OBJECTIVES AND PURPOSES OF HERA ..............................................................................18 CONCLUSION .....................................................................................................20 Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - ii Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 TABLE OF AUTHORITIES Page(s) Cases Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 133 S. Ct. 2096 (2013) .......................................................................................18 Bank of Am. v. City & Cty. of San Francisco, 309 F.3d 551 (9th Cir. 2002) ...................................................................... 11, 12 Chae v. SLM Corp., 593 F.3d 936 (9th Cir. 2010) .............................................................................20 City of Auburn v. United States, 154 F.3d 1025 (9th Cir. 1998) ...........................................................................15 Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000) .................................................................................... 18, 19 Deming v. First Franklin, No. C09-5418 RJB, 2011 WL 5507210 (W.D. Wash. Nov. 8, 2011), aff’d sub nom Deming v. Merrill Lynch & Co., 528 F. App’x 775 (9th Cir. 2013) ...........................................................................................................18 FHFA v. City of Chicago, 962 F. Supp. 2d 1044 (N.D. Ill. 2013) ....................................................... passim California ex rel. Harris v. FHFA, No. 10-03048, 2011 WL 3794942 (N.D. Cal. Aug. 26, 2011) ................... 17, 20 In re Incretin-Based Therapies Prods. Liab. Litig., 142 F. Supp. 3d 1108 (S.D. Cal. 2015) .............................................................11 Jordan v. Nationstar Mortg., LLC, 374 P.3d 1195 (Wash. 2016) .............................................................................10 Kurns v. R.R. Fricton Prods. Corp., 132 S. Ct. 1261 (2012) .......................................................................................15 Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - iii Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 Massachusetts v. FHFA, 54 F. Supp. 3d 94 (D. Mass. 2014) ....................................................................19 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ...........................................................................................15 Nation v. City of Glendale, 804 F.3d 1293 (9th Cir. 2015) .................................................................... 12, 18 Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341 (2d Cir. 2008) ..............................................................................18 Pagliara v. Fed. Home Loan Mortg. Corp., No. 1:16-cv-337, 2016 WL 4441978 (E.D. Va. Aug. 23, 2016) .........................2 Perry Capital LLC v. Lew, 70 F. Supp. 3d 208 (D.D.C. 2014) .......................................................................2 Robinson v. FHFA, No. 15-cv-109-KKC, 2016 WL 4726555 (E.D. Ky. Sept. 9, 2016) ..................13 RTC v. California, 851 F. Supp. 1453 (C.D. Cal. 1994) ..................................................................13 Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001 (9th Cir. 2008) ...........................................................................17 Whistler Invs., Inc. v. The Depository Tr. & Clearing Corp., 539 F.3d 1159 (9th Cir. 2008) ...........................................................................15 Statutes 12 U.S.C. § 1451 note .................................................................................. 3, 16, 17 12 U.S.C. § 1716(1) ........................................................................................... 3, 16 12 U.S.C. § 1716(4) ..................................................................................................3 12 U.S.C. § 1716 et seq. .........................................................................................17 12 U.S.C. § 1821(c)(2)(C) ......................................................................................13 12 U.S.C. § 4511(b)(1) ...........................................................................................16 Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - iv Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 12 U.S.C. § 4511 et seq. ...........................................................................................1 12 U.S.C. § 4513(a) ..................................................................................................1 12 U.S.C. § 4617(a)(1)-(2) ........................................................................................1 12 U.S.C. § 4617 (a)(7) ............................................................................ 2, 5, 13, 14 12 U.S.C. § 4617(b)(2)(A) ........................................................................................2 12 U.S.C. § 4617(b)(2)(B) ................................................................................. 2, 13 12 U.S.C. § 4617(b)(2)(D) ................................................................................. 2, 13 12 U.S.C. § 4617(f) .............................................................................................. 2, 5 Housing and Economic Recovery Act of 2008, Pub. L. No. 110-289, 122 Stat. 2654 .............................................................................................................1 RCW 7.28.230 ................................................................................................ passim RCW 7.28.230(1) ....................................................................................................10 Other Authorities Fed. R. Civ. P. 56(a) ...............................................................................................11 Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 INTRODUCTION The Federal Housing Finance Agency (“FHFA”), as Conservator of Fannie Mae and Freddie Mac (together, the “Enterprises”), moves for partial summary judgment on the ground that the provisions of the Housing and Economic Recovery Act of 2008, Pub. L. No. 110-289, 122 Stat. 2654 (“HERA”), which governs the conduct and operation of the Enterprises in FHFA conservatorships, prohibit application of RCW 7.28.230 to the Conservator and the Enterprises.1 Accordingly, FHFA requests summary judgment that the entry provisions (paragraphs 7 and 9) of the Uniform Instrument Deed of Trust are enforceable as to all class members’ mortgage loans owned by Fannie Mae or Freddie Mac at the time of the alleged entry. In 2008, Congress enacted HERA and thereby created the FHFA as an independent federal agency with regulatory and oversight authority over the Enterprises. See 12 U.S.C. § 4511 et seq.; id. § 4513(a). HERA authorizes FHFA’s Director, in certain circumstances, to “appoint the [FHFA] as conservator or receiver for [an Enterprise] for the purpose of reorganizing, rehabilitating, or winding up [its] affairs.” Id. § 4617(a)(1)-(2). On September 6, 2008, the Director of FHFA appointed the Agency as Conservator for both Fannie Mae and Freddie Mac. See id. FHFA remains the Conservator of both Enterprises. 1 Although FHFA files this motion as Conservator, the same legal principles would apply to override similar state law applied against FHFA in its own capacity. Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 As Conservator, FHFA is statutorily empowered to “take over the assets of and operate” Fannie Mae and Freddie Mac, to “conduct [their] business” and “perform all [their] functions,” to “preserve and conserve [their] assets and property,” and to “put [them] in a sound and solvent condition.” Id. § 4617(b)(2)(B), (D). “[B]y operation of law,” upon its appointment as Conservator, FHFA also “immediately succeed[ed] to . . . all rights, titles, powers, and privileges of the [Enterprises and their officers, directors, and shareholders].” Id. § 4617(b)(2)(A). Under HERA’s jurisdiction-withdrawal provision, “no court may take any action to restrain or affect” the Conservator’s “exercise of [its] powers or functions” under the statute. Id. § 4617(f). In addition, HERA expressly bars any other agency or State from “direct[ing] or supervis[ing]” the Conservator’s “exercise of [its] rights, powers, and privileges.” Id. § 4617 (a)(7). HERA thus gives FHFA as Conservator the broadest possible grant of rights, titles, powers, and privileges to operate the Enterprises. Pagliara v. Fed. Home Loan Mortg. Corp., No. 1:16-cv-337, 2016 WL 4441978, at *10 (E.D. Va. Aug. 23, 2016) (HERA gave an “extraordinarily broad grant of operational discretion to FHFA.”); Perry Capital LLC v. Lew, 70 F. Supp. 3d 208, 227 (D.D.C. 2014) (“FHFA has . . . broad statutory authority as a conservator.”); FHFA v. City of Chicago, 962 F. Supp. 2d 1044, 1057-58 (N.D. Ill. 2013) (“As conservator, FHFA has broad powers to operate Fannie and Freddie and do what it sees fit to ‘preserve and conserve [their] assets.’” (alteration in original) (quoting 12 U.S.C. § 4617(b)(2)(D)(ii)). Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 The Enterprises are congressionally chartered corporations with the primary purpose of providing stability and liquidity to the national secondary mortgage market. See 12 U.S.C. §§ 1716(1), (4) (Fannie Mae); id. § 1451 note (Freddie Mac). In furtherance of their federal missions, Fannie Mae and Freddie Mac buy mortgages in the secondary market. Combined, the Enterprises own or guarantee approximately $5 trillion of residential mortgages in the United States.2 Fannie Mae owned the mortgage loan used by Plaintiff Laura Zamora Jordan to purchase her home, and the Enterprises also own the loans of many members of the certified class. See ECF No. 46 at ¶ 11; ECF No. 72 at 4. Plaintiff and the class seek to enforce state law to limit the Conservator’s power to secure and safeguard the abandoned homes serving as collateral for the loans on which Plaintiff and the class defaulted. Thus, this action centers on the power of the Conservator to preserve and conserve the single most important category of the Enterprises’ assets—the mortgage loans the Enterprises own and the collateral securing them3—and presents the question whether Congress intended to permit state law to limit this power. 2 See FHFA, 2015 Report to Congress (2016), at 16, http://www.fhfa.gov/AboutUs/Reports/ReportDocuments/FHFA_2015_Report-to- Congress.pdf. 3 The mortgaged property serves as the collateral securing the right of the Enterprises, as loan owners, to repayment of the mortgage loan. To prevent possible (cont’d) Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 Relying on a Washington state statute, RCW 7.28.230, Plaintiff challenges the conduct of the servicer engaged by Fannie Mae, Defendant Nationstar Mortgage LLC (“Nationstar”), to access and secure Plaintiff’s vacant home (as the Plaintiff had contractually agreed it could) after she defaulted on the loan. See ECF No. 3-3 at ¶ 3. The certified class presents similar claims, alleging that the borrowers’ pre-default consent to such actions to preserve collateral should be given no effect. See ECF No. 5- 12. RCW 7.28.230, as applied against the Enterprises in Conservatorship, would impose limits on the Conservator’s ability to preserve and conserve Enterprise collateral, invalidate contractual agreements between borrowers and the Enterprises that are memorialized in longstanding mortgage loan instruments used nationwide, and impose penalties against servicers acting pursuant to the Enterprises’ Servicing Guidelines. Thus, Plaintiff and the class seek to use state law to enjoin Nationstar from taking action that the Enterprises in Conservatorship have prescribed to “preserve and conserve” the most important Conservatorship assets, collateral (real property) securing Enterprise mortgage loans. ________________________ (cont’d from previous page) loss to that collateral, the Enterprises have long sought to ensure that their servicers can step in (1) to assess potentially abandoned properties when a mortgage goes into default and (2) to act to prevent waste, damage, vandalism, or other loss to properties that are determined to be vacant or abandoned. See ECF No. 3-5 at Ex. 19 (Deed of Trust), at § 9. Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 5 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 HERA expressly preempts application of RCW 7.28.230 to the Conservator. In addition, HERA occupies the field with respect to conduct of the Conservatorships and thereby preempts state law that would limit the Conservator’s core powers and discretion to preserve and conserve Enterprise collateral. Moreover, Plaintiff’s attempt to apply RCW 7.28.230 is barred by the doctrine of obstacle preemption because the state statute undermines and stands as an obstacle to Congress’s objective of giving the Conservator the broadest possible powers to operate the Enterprises, free from interference by state regulators4 or judicial injunctive relief.5 BACKGROUND AND SUMMARY Like other large mortgage investors, the Enterprises engage other entities, known as servicers (like Defendant Nationstar here), to handle many of the practical aspects of individual loan management. As described by the FHFA Office of Inspector General, FHFA as Conservator launched a Servicing Alignment Initiative for the Enterprises in conservatorship “to improve the servicers’ management of delinquent mortgages and 4 12 U.S.C. § 4617 (a)(7) (The conservator “shall not be subject to the direction or supervision of any other agency of the United States or any State.”). 5 12 U.S.C. § 4617(f) (“[N]o court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.”). Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 6 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 limit the Enterprises’ anticipated losses [with] uniform servicing requirements.”6 “FHFA directed the Enterprises to update their servicing guidelines by [inter alia] align[ing] servicer requirements for ordering property inspections,” particularly with respect to “vacant, tenant-occupied, and abandoned properties.” 7 To protect the value of the collateral supporting the loans, both Enterprises typically acquire loans only where the underlying mortgage instruments contain a clause allowing servicers to enter, secure, and maintain the property if a borrower defaults on the loan or abandons the residence.8 The clause incorporated in the deed of trust for Plaintiff’s mortgage provides: If . . . Borrower fails to perform the covenants and agreements contained in this Security Instrument, . . . or [if] Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender’s 6 FHFA Office of the Inspector General, EVL-2014-003, FHFA’s Oversight of the Servicing Alignment Initiative (2014) at 10, https://www.fhfaoig.gov/Content/Files/EVL-2014-003.pdf. 7 Id. at 11. 8 See, e.g., Fannie Mae/Freddie Mac Uniform Instrument (Form 3048), Washington Deed of Trust § 7 (Preservation, Maintenance and Protection of the Property; Inspections), § 9 (Protection of Lender’s Interest in the Property and Rights Under this Security Instrument), https://www.fanniemae.com/singlefamily/security-instruments; http://www.freddiemac.com/uniform/unifsecurity.html#highlights. Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 7 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property, and securing and/or repairing the Property. . . . Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off. ECF No. 3-5 at Ex. 19 (Deed of Trust), at § 9. The Enterprises in conservatorships have also established and contracted for consistent loan servicing and delinquency management requirements for loan servicers acting on behalf of the Enterprises, as required by the Conservator.9 Pursuant to the Conservator’s direction, consistent with FHFA’s goals,10 and subject only to FHFA’s supervision, the Enterprises’ Servicing Guidelines provide that Enterprise loan servicers, including Nationstar, should inspect, enter, secure, and maintain properties at certain times following a borrower’s default but prior to a foreclosure sale.11 For example, 9 See FHFA News Release, Fannie Mae and Freddie Mac to Align Guidelines for Servicing Delinquent Mortgages (Apr. 28, 2011), http://www.fhfa.gov/Media/ PublicAffairs/Pages/Fannie-Mae-and-Freddie-Mac-to-Align-Guidelines-for-Servicing- Delinquent-Mortgages.aspx (directing Enterprises to align their servicing guidelines for delinquent mortgages in their portfolios). 10 Id. 11 See Fannie Mae, Servicing Guide (hereinafter “Fannie Mae Servicing Guide”), at § E-3.2-12 (Nov. 12, 2014), https://www.fanniemae.com/content/guide/servicing/e/3.2/12.html; Freddie Mac, (cont’d) Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 8 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 pursuant to the Fannie Mae Servicing Guide, a Fannie Mae servicer is required to “take whatever action [is] necessary” to protect the property “as long as it is authorized to do so by the terms of the mortgage loan,”12 and also “to gain access [to] and complete securing of [a] vacant propert[y] within 7 calendar days.”13 These guidelines help to preserve the value of the collateral supporting Enterprise loans—the Enterprises’ “most important assets.” City of Chicago, 962 F. Supp. 2d at 1060 (“[H]omes in which [the Enterprises] have a security interest . . . are the most important assets Fannie and Freddie have.”). ________________________ (cont’d from previous page) Single-Family Seller/Servicer Guide (hereinafter “Freddie Mac Servicing Guide”) (Mar. 9, 2016), at §§ 8403.1, 8403.2, http://www.freddiemac.com/ singlefamily/guide/bulletins/pdf/030916Guide.pdf. 12 Fannie Mae Servicing Guide, at § A2-1-01 (June 10, 2015), https://www.fanniemae.com/content/guide/servicing/a2/1/01.html. 13 Fannie Mae Servicing Guide, at Property Maintenance and Management: Property Preservation Matrix and Reference Guide (Nov. 12, 2014) p. 2, https://www.fanniemae.com/content/tool/property-preservation-matrix.pdf. The Freddie Mac Servicing Guide similarly provides, for example, that when servicers learn of a distressed property or an abandoned property, they “are responsible for acting without delay” to “take all necessary action to protect the property from waste, damage and vandalism and prevent any loss.” Freddie Mac Servicing Guide, § 8403. Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 9 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 It is critically important for the Enterprises in conservatorships to obtain the borrower’s pre-default consent to secure an abandoned property prior to foreclosure. After default and abandonment of a property, borrowers are often difficult to locate (having abandoned their residence), and in those circumstances their consent to secure a vacant home cannot readily be obtained. This puts Enterprise collateral at great risk of falling into disrepair through neglect, vandalism, and trespass by squatters during the lengthy process for foreclosure. Accordingly, the standard provision in mortgage loan instruments and the Enterprises’ servicing guidelines for securing abandoned properties prior to foreclosure are critical tools for the Conservator to maximize and preserve the value of Enterprise assets. Plaintiff’s complaint asserts various state statutory and common-law claims challenging Nationstar’s actions, following Plaintiff’s default on her mortgage loan, to secure and preserve Fannie Mae’s collateral pursuant to the deed of trust and the Servicing Guidelines required by the Enterprises in conservatorships.14 Relying on a 14 See, e.g., ECF No. 1-2 (2d Amend. Compl.) at ¶ 4.2 (The deed of trust impermissibly authorized “the lender [to] do whatever is reasonable and appropriate to protect the lender’s interest in the Jordan Residence and secure the Jordan Residence.”); ¶¶ 5.1-6.7 (Nationstar’s conduct in securing Jordan’s property constitutes trespass and intentional trespass.); ¶¶ 8.1- 8.11 (Nationstar’s entry upon “the Jordan Residence and (cont’d) Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 10 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 Washington code provision, RCW 7.28.230, Plaintiff contends that the deed of trust’s entry provisions are not enforceable because “Washington law requires a lender to . . . get the borrower’s post-default consent” to “conduct[] the [inspection and preservation remedies] contained in the [deed of trust] Entry provision.” ECF No. 61 at 1-3, 5 (Pl’s Mot. for Partial Summ. J.). Nationstar has responded, inter alia, that the entry provisions in the deed of trust securing Plaintiff’s loan permit its challenged conduct. See ECF No. 45 at 1-2 (Nationstar’s Mot. for Partial Summ. J.). On August 10, 2015, this Court determined that Plaintiff’s claims presented unresolved questions of Washington law, and certified two questions to the Washington Supreme Court. See ECF No. 72. Specifically, this Court asked whether RCW 7.28.230(1), which provides that “[a] mortgage of any interest in real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property, without a foreclosure and sale,” permits “a borrower and lender [to] enter into a contractual agreement[the deed of trust] prior to default that allows the lender to enter, maintain, and secure the encumbered property prior to foreclosure?” Id. at 9. On July 7, 2016, the Washington Supreme Court responded that the entry provisions in Plaintiff’s deed of trust conflict with, and therefore are not enforceable under, RCW 7.28.230. Jordan v. Nationstar Mortg., LLC, 374 P.3d 1195, ________________________ (cont’d from previous page) changing the locks without authorization constitute unfair or deceptive acts.”); ¶¶ 9.1- 9.4 (securing Jordan’s property breached the deed of trust). Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 11 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1202 (Wash. 2016) (Because “changing the locks [is] authorized by the entry provisions, the entry provisions allow the lender to take possession of the property” before foreclosure “in conflict with [Washington] law” and therefore “the entry provisions are unenforceable.”). Regardless of whether RCW 7.28.230 may preclude enforcement of entry provisions with respect to mortgages owned by anyone else, it cannot be applied to collateral of the Enterprises operating in federal conservatorships. To conclude otherwise would permit state law to interfere with the Conservator’s exclusive authority to operate the Enterprises and preserve and conserve their collateral. Congress clearly intended to prohibit any court, state or federal agency, or state law from encroaching on FHFA’s core powers as Conservator to secure and safeguard abandoned homes securing Enterprise loans. Thus, HERA preempts RCW 7.28.230 as applied to the Enterprises’ collateral. STANDARD OF REVIEW A court shall grant summary judgment if the movant shows that no genuine dispute exists as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Questions of preemption, such as presented here, are purely legal and therefore are properly resolved on summary judgment. See, e.g., Bank of Am. v. City & Cty. of San Francisco, 309 F.3d 551, 566 (9th Cir. 2002) (affirming summary judgment based on federal conflict preemption); In re Incretin-Based Therapies Prods. Liab. Litig., 142 F. Supp. 3d 1108, 1114 (S.D. Cal. 2015). Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 12 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 ARGUMENT “A fundamental principle of the Constitution is that Congress has the power to preempt state law.” Nation v. City of Glendale, 804 F.3d 1293, 1297 (9th Cir. 2015) (citation omitted). Congress may do so three ways: by “express, field, and conflict [or obstacle]” preemption. Id. Here, each type of preemption applies to bar Plaintiff’s state law claims with respect to collateral securing Enterprise-owned loans. A. HERA Expressly Preempts State Law That Would Limit the Conservator’s Discretion Regarding the Preservation and Conservation of Collateral HERA expressly prohibits application of any state law such as RCW 7.28.230 that would dictate or limit the Conservator’s decisions regarding the preservation and conservation of collateral securing the loans the Enterprises own. The state law here would go to the very heart of the safe and sound operation of the Enterprises in conservatorship and the Conservator’s core power to preserve and conserve collateral; it plainly does not fall in the narrow category of permissible state action that “does not prevent or significantly interfere with [the Conservator’s] exercise of its powers.” City & Cty. of San Francisco, 309 F.3d at 558-59 (finding preemption of state law with respect to ATM fees charged by national banks). HERA vests FHFA with exclusive rights to operate the conservatorships, and to preserve and conserve the Enterprises’ assets. HERA explicitly specifies that the Conservator shall do so free from state law interference: “When acting as conservator or receiver, the Agency shall not be subject to the direction or supervision of any other Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 13 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 agency of the United States or any State in the exercise of the rights, powers, and privileges of the Agency.” 12 U.S.C. § 4617(a)(7) (emphases added). As one federal court recently observed, “the clear purpose” of Section 4617(a)(7) “is to provide a preemption defense for FHFA in its role as conservator.” Robinson v. FHFA, No. 15-cv- 109-KKC, 2016 WL 4726555, at *6 (E.D. Ky. Sept. 9, 2016). An analogous statute governing FDIC conservatorships similarly provides that the FDIC, as conservator, “shall not be subject to the direction or supervision of any other agency or department of the United States or any State in the exercise of the Corporation’s rights, powers, and privileges.” 12 U.S.C. § 1821(c)(2)(C). Courts have likewise interpreted that statute to mean “that Congress did not intend to allow the States to interfere with the [Corporation’s] specified functions” as conservator. RTC v. California, 851 F. Supp. 1453, 1458 (C.D. Cal. 1994). Here, FHFA’s specified functions as the Enterprises’ Conservator include operating the Enterprises in a safe and sound manner, preserving and conserving their assets and property—including the collateral securing outstanding credit exposures—and ensuring that they fulfill the mandates set forth by their congressional charters. See, e.g., 12 U.S.C. §§ 4617(b)(2)(B), (D). HERA empowers the Conservator alone to perform these functions—free from interference or limitation by any State. See, e.g., City of Chicago, 962 F. Supp. 2d at 1060 (“Looking at the statutory text and purpose of HERA, it is evident that Congress intended for FHFA to possess exclusive authority over Fannie Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 14 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 and Freddie's business operations—including their management of the homes in which they have a security interest.”). Applying RCW 7.28.230 in this case would thus violate Section 4617(a)(7)’s express mandate. Through application of RCW 7.28.230, Plaintiff seeks to limit the Conservator’s fundamental power to preserve and conserve collateral. Plaintiff would invalidate the express terms of the deed of trust entry provisions that she signed and that the Enterprises in Conservatorship rely upon to protect their collateral. She seeks to use state law to invalidate the servicing guidelines that the Enterprises in conservatorships require their servicers, including Nationstar, to follow. See, e.g., ECF No. 61 at 1-3. Plaintiff seeks to do so despite the direction of the Enterprises in conservatorships, through their servicing guidelines and practice, to obtain the borrower’s consent pre- default, which they did, and to protect the Enterprises’ property interests. If permitted, the application of RCW 7.28.230 would circumscribe the Conservator’s authority to preserve and conserve Enterprise assets, and would subject the Conservator to statutorily barred state law direction or supervision with respect to this core function. HERA’s unambiguous instruction that the Conservator “shall not be subject to the direction or supervision of . . . any State” (12 U.S.C. § 4617(a)(7)) thus expressly preempts application of state law to Enterprise collateral. Plaintiff cannot place state law restrictions on the Conservator’s power to exercise its judgment and discretion in ensuring the preservation and conservation of the collateral securing Enterprise-owned mortgage loans. As in a case involving the Federal Surface Transportation Board, “the Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 15 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 congressional intent to preempt this kind of state . . . regulation is explicit in the plain language of [the statute] and the statutory framework surrounding it.” City of Auburn v. United States, 154 F.3d 1025, 1031 (9th Cir. 1998) (A federal statute expressly stating that the federal Surface Transportation Board’s authority is “exclusive” is sufficient ground to find express preemption). B. HERA Gives Rise to Field Preemption and Prohibits State Law That Would Limit the Conservator’s Powers to Preserve and Conserve Collateral “[F]ield preemption [arises] when Congress so thoroughly occupies a legislative field, that it effectively leaves no room for states to regulate conduct in that field.” Whistler Invs., Inc. v. The Depository Tr. & Clearing Corp., 539 F.3d 1159, 1164 (9th Cir. 2008) (internal quotation marks omitted). That is the case here. HERA thoroughly and completely occupies the field with respect to operation of the Enterprises in conservatorships and leaves no room for states to restrict the Conservator’s exclusive powers to operate the Enterprises, including the core function of preserving and protecting the Enterprises’ collateral. As the Supreme Court has repeatedly held, state law is preempted where “the scope of a [federal] statute indicates that Congress intended federal law to occupy a field exclusively.” Kurns v. R.R. Fricton Prods. Corp., 132 S. Ct. 1261, 1266 (2012) (alteration in original); see also Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996); City of Chicago, 962 F. Supp. 2d at 1057 (holding that HERA gives rise to “field preemption [because] the federal regulatory scheme is so pervasive or the federal interest so Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 16 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 dominant that it may be inferred that Congress intended to occupy the entire legislative field” (quotations and citations omitted)). Congress’s intent in this case is clear, and courts have recognized it. For example, in holding that HERA preempts a local ordinance that—like RCW 7.28.230—purported to dictate the Conservator’s conduct with respect to the maintenance of vacant buildings serving as collateral for Enterprise loans, one federal court concluded that: Looking at the statutory text and purpose of HERA, it is evident that Congress intended for FHFA to possess exclusive authority over Fannie [Mae] and Freddie [Mac’s] business operations—including their management of the homes in which they have a security interest. Indeed, those homes, or [the Enterprises’] interest in them, are the most important assets Fannie [Mae] and Freddie [Mac] have. City of Chicago, 962 F. Supp. 2d at 1060 (emphases added). It is difficult to imagine an instance where Congress could exhibit more openly its desire for a federal regulatory scheme to occupy the entire field. In chartering the Enterprises, Congress explicitly announced their important public missions, which include “provid[ing] stability in the secondary market for residential mortgages” and “promot[ing] access to mortgage credit throughout the Nation.” 12 U.S.C. §§ 1716(1), (4); 12 U.S.C. § 1451 note. Congress also established FHFA, through HERA, to “supervis[e] and regulat[e]” the Enterprises. 12 U.S.C. § 4511(b)(1). The specific nationwide public purposes of the Enterprises, taken together with Congress’s decision to vest FHFA as Conservator with plenary authority over the Enterprises, make this a clear case of field preemption. As another federal court has held in a similar case: “[w]ith respect to the maintenance of collateral by [Fannie and Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 17 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 Freddie] in conservatorship, HERA plainly occupies the field.” City of Chicago, 962 F. Supp. 2d at 1059 (alteration in original) (citation omitted); see also Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1005 (9th Cir. 2008) (field preemption barred state law claims against federal savings and loan association because the Home Owners’ Loan Act preempted the entire field of lending regulation). Indeed, multiple courts have concluded that state or local law cannot intrude upon the safety and soundness of the Enterprises’ operations and the Conservator’s power to preserve and conserve their assets. California ex rel. Harris v. FHFA, No. 10-03048, 2011 WL 3794942, at *16 (N.D. Cal. Aug. 26, 2011) (noting the “history of a significant federal presence in the area of regulating the safety and soundness of the Enterprises”); City of Chicago, 962 F. Supp. 2d at 1059 (“[T]he City of Chicago may not encroach” upon the Conservator’s “overall mandate to preserve the assets of Fannie [Mae] and Freddie [Mac]” through application of a city ordinance.).15 Because application of RCW 7.28.230 would impermissibly insert the State into the field regulating the Conservator, it is preempted. Further, in addition to preempting application of state laws that directly limit the central powers of the Conservator, HERA also has preclusive effect where, as here, state 15 The Enterprises’ charters also reflect Congress’s intent that the Enterprises, with their public missions and a federal regulator dedicated to their supervision, should not be subject to conflicting state law with respect to their core operations, even outside a conservatorship. See 12 U.S.C. § 1716 et seq.; id. § 1451 et seq. Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 18 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 law is invoked to regulate or limit the Conservator’s actions indirectly by focusing on the Enterprises’ contract counter-parties. See Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 133 S. Ct. 2096, 2104 (2013) (finding preemption and reasoning that “the target of the sanctions makes [no] difference”); City of Chicago, 962 F. Supp. 2d at 1052 (finding preemption where “the Ordinance is, on its face, only directly applicable to servicers”). Plaintiff cannot contravene HERA’s reach by attempting to “punish[] [Nationstar] . . . with respect to particular [HERA]-authorized activity.” See Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 353 (2d Cir. 2008) (federal law preempted state law that subjected entities performing work on behalf of national banks to liability for carrying out “[National Bank Act]-authorized activity”); Deming v. First Franklin, No. C09-5418 RJB, 2011 WL 5507210, at *5 (W.D. Wash. Nov. 8, 2011) (National Bank Act preempted application of state consumer laws to subsidiary of federally regulated national bank), aff’d sub nom Deming v. Merrill Lynch & Co., 528 F. App’x 775 (9th Cir. 2013). C. Applying Washington State Law Here Would Impermissibly Frustrate the Objectives and Purposes of HERA Finally, state law conflicts with, and is preempted by, federal law where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” City of Glendale, 804 F.3d at 1297. “What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000). But as a general matter, this manner of preemption applies to Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 19 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 state laws that would “undermine[] the intended purpose and ‘natural effect’ of . . . provisions of [a] federal Act.” Id. In such instances, “the state law must yield to the regulation of Congress” Id. Application of RCW 7.28.230 to the Enterprises’ collateral would conflict with and pose an obstacle to the congressional purpose and intended effects of HERA. Pursuant to Congress’s express delegation of statutory authority to the Conservator, “FHFA has broad powers to operate Fannie and Freddie and do what it sees fit to ‘preserve and conserve [their] assets.’” City of Chicago, 962 F. Supp. 2d at 1058 (alteration in original). Allowing state law to restrict the preservation of Enterprise collateral subsequent to a loan default and abandonment of the property would contradict and frustrate this express delegation of authority. See, e.g., id.; see also Massachusetts v. FHFA, 54 F. Supp. 3d 94, 101 n.8 (D. Mass. 2014) (State laws that restrict the Conservator’s powers under HERA are “in direct conflict with Congress’s intent” that FHFA “exercise its rights, powers, and privileges as conservator without being subject to the direction or supervision of . . . any State” and would thus “likely fail a preemption analysis.”) (internal quotation marks and alteration omitted)). Application of state law in this context would effectively permit fifty states—not to mention tens, or even hundreds, or thousands of local jurisdictions with potentially conflicting goals, interests, and direction—to regulate the Enterprises in conservatorships and limit the core functions of the Conservator. Such a result would directly undermine Congress’s objectives that the Conservator operate the Enterprises in Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 20 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 its discretion and under uniform and consistent standards to fulfill their national missions. See Chae v. SLM Corp., 593 F.3d 936, 950 (9th Cir. 2010) (holding that subjecting federally regulated student loans “to the potentially conflicting standards of fifty states . . . would stand as a severe obstacle to the effective promotion of the funding of student loans . . . hostile to the purposes of Congress in this program.”). Accordingly, RCW 7.28.230 is preempted because its application would “obstruct[] Congress’s intent to have one conservator take control of Fannie Mae and Freddie Mac, and take action as may be ‘appropriate to carry on [their business] and preserve and conserve [their] assets and property’ without being ‘subject to the direction or supervision of any other agency of the United States or any State.’” City of Chicago, 962 F. Supp. 2d at 1061 (alterations in original) (quoting 12 U.S.C. § 4617 (b)(2)(D)(ii)); see also Harris, 2011 WL 3794942, at *16-17 (HERA preempted California consumer protection claims that “would undermine the FHFA’s ability to establish uniform and consistent standards for [the Enterprises]” and which could “thwart its mandate to assure their safe and sound operation.”). CONCLUSION For the reasons stated above, HERA preempts application of RCW 7.28.230 to collateral of the Enterprises under Conservatorships. Accordingly, the Court should enter summary judgment that the entry provisions of the Uniform Instrument Deed of Trust are enforceable as to all mortgage loans owned by Fannie Mae or Freddie Mac at the time of the alleged entry. Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 21 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 DATED: November 15, 2016 By: /s/ Daniel J. Gibbons Daniel J. Gibbons, WSBA No. 33036 WITHERSPOON · KELLEY Attorneys for Federal Housing Finance Agency Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 22 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 CERTIFICATE OF SERVICE I hereby certify that on the 15th day of November, 2016, 1. I caused to be electronically filed the foregoing MOTION FOR PARTIAL SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: Beth E. Terrell: bterrell@terrellmarshall.com Clay M. Gatens: clayg@jdsalaw.com Michael D. Daudt: mike@daudtlaw.com Michelle A. Green: michelleg@jdsalaw.com Beau C. Haynes: beau@wageclaimproject.org Blythe H. Chandler: bchandler@terrellmarshall.com John Alan Knox: jknox@williamskastner.com Andrew Weiss Noble: awn@severson.com Jan T. Chilton: jtc@severson.com Mary Kate Sullivan: mks@severson.com 2. I hereby certify that I have mailed by United States Postal Service the foregoing document to the following non-CM/ECF participants at the address listed below: None. 3. I hereby certify that I have mailed by United States Postal Service the foregoing document to the following CM/ECF participants at the address listed below: None. Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR PARTIAL SUMMARY JUDGMENT - 23 Case No. 2:14-cv-00175-TOR {S1474869; 1 } WITHERSPOON  KELLEY 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 4. I hereby certify that I have hand-delivered the foregoing document to the following participants at the addresses listed below: None. s/Daniel J. Gibbons Daniel J. Gibbons WSBA # 33036 WITHERSPOON • KELLEY 422 W. Riverside Ave., Suite 1100 Spokane, WA 99201-0300 Phone: 509-624-5265 Fax: 509-458-2728 djg@witherspoonkelley.com Case 2:14-cv-00175-TOR Document 118 Filed 11/15/16