# Garcia v. Federal National Mortgage Ass'n

> Court of Appeals for the Sixth Circuit · April 7, 2015 · 782 F.3d 736

URL: https://www.frixlaw.com/law-library/cases/9806717

## Case

- **Full name:** Angel GARCIA; Estela Garcia, Plaintiffs-Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION; Mortgage Electronic Registration Systems, Inc.; BAC Home Loans Servicing, LP; Bank of America, N.A., Defendants-Appellees, Federal Housing Finance Agency, Intervenor-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 7, 2015
- **Citations:** 782 F.3d 736; 2015 FED App. 0064P; 2015 U.S. App. LEXIS 5532; 2015 WL 1529012
- **Precedential status:** Published
- **Opinion:** Concurrence by Donald
- **Judges:** , Donald, Merritt, Stranch
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9806717

## How later opinions describe it (automated extraction)

- declining to rule on state-action issue but holding Michigan non­ judicial foreclosure statute providing (1) pre-foreclosure notice including that borrower “has 30 days to request a meeting to attempt to work out a loan modification,” and (2) post-foreclosure redemption period…
- noting holdings in Lebron and Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d 149 (6th Cir. 2014) that “a necessary condition precedent to consider a once-private entity a state actor is that the government has ‘permanent’ control over the entity,” and concluding that “FHFA’s con…
- concluding that because agency was not state actor, plaintiff’s due process claims failed without regard to Michigan’s non-judicial foreclosure statute

## Opinion text

BERNICE BOUIE DONALD, Circuit Judge,
concurring in the judgment.
I agree with the majority’s decision to affirm the judgment of the district court. I write separately to express my view that the majority’s discussion of whether Fannie Mae’s compliance with Michigan’s foreclosure-by-advertisement procedures satisfied the Due Process Clause is unnecessary to the disposition of this case.
The majority opinion declines to “wade into” a discussion of whether Fannie Mae is a state actor for purposes of the Fifth and Fourteenth Amendments. (Maj. Op. at 740.) But because state action is a prerequisite to due process claims, this is a threshold — and dispositive — issue in this case. See Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir.2001) (noting that, in the context of due process claims, the state-action issue is “a threshold matter”); Northrip v. Fed. Nat’l Mortg. Ass’n, 527 F.2d 23, 25 (6th Cir.1975) (“[A] predicate to finding a due process violation is a finding of state action.”). I posit that no wading is required: our recent published decisions foreclose Plaintiffs’ argument that Fannie Mae is a state actor by virtue of its conservatorship under the supervision of the Federal Housing Finance Agency (“FHFA”).
In Mik v. Federal Home Loan Mortgage Corp., we held as a matter of law that Freddie Mac was not a state actor “even though the [FHFA] became Freddie Mac’s conservator in 2008.” 743 F.3d 149, 168 (6th Cir.2014). The reasoning in Mik is clear: a necessary condition precedent to consider a once-private entity a state actor is that the government has “permanent” control over the entity. Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 399 , 115 S.Ct. 961 , 130 L.Ed.2d 902 (1995). FHFA’s conservatorship of Freddie Mac “for the purpose of reorganizing, rehabilitating, or winding up [its] affairs” is, by definition, temporary. 12 U.S.C. § 4617 (a)(2). Later panels of this Court have extended Mik’s holding to Fannie Mae. See, e.g., Rubin v. Fannie Mae, 587 Fed.Appx. 273, 274-75 (6th Cir.2014); Bernard v. Fed. Nat’l Mortg. Ass’n, 587 Fed.Appx. 266, 271 (6th Cir.2014); Heibel v. Fed. Nat’l Mortg. Ass’n, 581 Fed.Appx. 543, 544 (6th Cir.2014) (per curiam). Thus, on the threshold issue of state action, Plaintiffs’ constitutional claims fail. In my view, this renders any discussion of Michigan foreclosure-by-advertisement law unnecessary.
Because I agree with the district court’s Rule 12(b)(6) dismissal of Plaintiffs’ due process claims, albeit on the separate grounds discussed above, I concur in the judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9806717. Public record. Not legal advice.