Plaintiffs seek to certify a defensive class consisting of “all current record owners—other than Fannie Mae, Freddie Mac, or the Conservator—of Units as to which: (1) HOA Foreclosure Sales have been or will be completed on or after September 18, 2009, (2) an Enterprise Lien had attached and had not been satisfied at the time of the applicable HOA Foreclosure Sale, and (3) the Court may assume and exercise in rem jurisdiction.” Plaintiffs assert that 12 US.C. § 4617(j)(3) preempts Nev. Rev. Stat. § 116.3116 and that HOA Foreclosure Sales do not extinguish Fannie Mae or Freddie Mac liens.

2) Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent. 3) Whether the anti-injunction clause in 12 U.S.C. §4617(f), which precludes courts from taking any action that would “restrain or affect the exercise of powers or functions of the Agency as a conservator,” precludes a federal court from setting aside the Third Amendment to agreements between FHFA and the Department of the Treasury. 4) Whether the federal statute’s succession clause – under which FHFA, as conservator, inherits the shareholders’ rights to bring derivative actions on behalf of the enterprises – precludes the shareholders from challenging the Third Amendment.

Washington & Sandhill Homeowners Ass’n v. Bank of Am., N.A., No. 2:13-CV-01845-GMN-GWF, 2014 WL 4798565, at *6-7 (D. Nev. Sept. 25, 2014) (appeal docketed, No. 14-17032); Saticoy Bay LLC v. SRMOF II 2012-1 Trust, No. 2:13-CV-1199-JCM-VCF, 2015 WL 1990076, at *4 (D. Nev. Apr. 30, 2015) (appeal docketed, No. 15-16092). Likewise, Fannie Mae and Freddie Mac’s interest is subject to 12 U.S.C. § 4617(j)(3) which prohibits extinguishment of the deed of trust. See e.g. Skylights LLC v. Byron, No. 2:15-CV-00043-GMN-VCF , 2015 WL 3887061, -- F. Supp. 3d -- (D. Nev. June 24, 2015); Elmer v. JP Morgan Chase Bank N.A., No. 2:14-CV-01999-GMN-NJK (D. Nev. July 13, 2015).

Chief Judge Navarro’s ruling from yesterday was the first significant decision on the issue. Chief Judge Navarro sided with the lenders and FHFA, holding that the “plain meaning of [12 U.S.C. § 4617(j)] is that when FHFA is acting as a conservator, none of the property sought to be conserved by FHFA may be subject to a foreclosure without its consent.” Op.