                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SATICOY BAY, LLC, Series 2714                   No.    16-15478
Snapdragon,
                                                D.C. No. 2:13-cv-01589-JCM-VCF
                Plaintiff-Appellant,

 v.                                             MEMORANDUM*

FLAGSTAR BANK, FSB; BRYANT
SPARKS; KATHERINE SPARKS,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                           Submitted October 18, 2017**
                             San Francisco, California

Before: HAWKINS, W. FLETCHER, and TALLMAN, Circuit Judges.

      Plaintiff Saticoy Bay, LLC, Series 2714 Snapdragon (“Saticoy”) appeals the

district court’s grant of summary judgment for Defendant Flagstar Bank, FSB

(“Flagstar”). We have jurisdiction under 28 U.S.C. § 1291, and we review a


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court’s grant of summary judgment de novo. Gordon v. Virtumundo, Inc.,

575 F.3d 1040, 1047 (9th Cir. 2009). We affirm.

      After Bryant and Katherine Sparks failed to pay homeowners association

(“HOA”) dues, Eastbridge Gardens Condominiums Homeowners Association sold

Saticoy the Sparks’ property at a non-judicial foreclosure sale without first

obtaining consent of the owner of beneficial interest, Fannie Mae. Saticoy sought

declaratory relief and to quiet title in Nevada state court, Flagstar removed the

case, and the federal district court granted Flagstar summary judgment based on

federal preemption. Saticoy argues Flagstar did not have standing to assert federal

preemption, Fannie Mae was not the owner of the property, and the “new

evidence” presented in support of summary judgment was insufficient. These

arguments are unavailing.

      The Federal Foreclosure Bar, 12 U.S.C. § 4617(j)(3), which prohibits

foreclosure of federally owned or controlled property “without the consent of the

Agency,” preempts Nevada HOA superpriority liens under Nev. Rev. Stat.

116.3116(2). Berezovsky v. Moniz, 869 F.3d 923, 931 (9th Cir. 2017). Without the

consent of the Federal Housing Finance Agency, Fannie Mae’s Conservator, the

foreclosure and sale of Fannie Mae’s property to Saticoy was unlawful.

      Flagstar, as the loan servicer, acts as Fannie Mae’s agent, and has standing

to assert a claim of federal preemption. See id. at 932; Nationstar Mortg., LLC v.
SFR Invs. Pool 1, LLC, 396 P.3d 754, 758 (Nev. 2017). Furthermore, Flagstar

established that there were no genuine issues of material fact regarding Fannie

Mae’s ownership. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

317 (1986). Flagstar’s discussion of evidence in its reply brief was not new

evidence before the district court, SEC v. Platforms Wireless Int’l Corp., 617 F.3d

1072, 1100 (9th Cir. 2010), and its affidavit and documentary evidence were

properly considered, see Matthews v. Nat’l Football League Mgmt. Council, 688

F.3d 1107, 1113 (9th Cir. 2012). Additionally, Saticoy did not conduct discovery

or provide any evidence to show more than a “metaphysical doubt as to the

material facts” that would preclude summary judgment. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

      Costs are awarded to Flagstar.

      AFFIRMED.
