Amicus Curiae Brief — Neris Montilla, et al., Petitioners v. Federal National Mortgage Association, et al.

Supreme Court briefDec 9, 2021

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No. 21-688

In the Supreme Court of the United States

__________________

NERIS MONTILLA, ET AL.,

Petitioners,

FEDERAL NATIONAL MORTGAGE ASSOCIATION, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the First Circuit

__________________

BRIEF OF AMICI CURIAE VIRGINIA

POVERTY LAW CENTER, DIRECT ACTION

FOR RIGHTS AND EQUALITY, LEGAL AID

JUSTICE CENTER, MISSISSIPPI CENTER

FOR JUSTICE, AND PUBLIC JUSTICE

CENTER IN SUPPORT OF PETITIONERS

__________________

STEVEN FISCHBACH

Counsel of Record

VIRGINIA POVERTY LAW CENTER

919 E. Main Street

Suite 610

Richmond, Virginia 23219

(804) 351-5266

steve@vplc.org

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTIONS PRESENTED

1. Whether the Federal National Mortgage

Association, when under the conservatorship of the

Federal Housing and Finance Agency, is a state actor

for purposes of constitutional claims.

2. Whether the Federal Housing and Finance

Agency, when acting as conservator for the Federal

National Mortgage Association, is a state actor for

purposes of constitutional claims.

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

TABLE OF AUTHORITIES ...................................... iv

IDENTITY AND INTERESTS OF AMICI

CURIAE .......................................................................1

SUMMARY OF ARGUMENT .....................................4

REASONS FOR GRANTING THE WRIT ..................5

This Court Should Grant Review to

Vindicate

the

Principle

that

the

Constitution Constrains Governmental

Action by whatever modes that action may

taken

and

under

whatever

Congressional Label .........................................5

II.

The Determination of Fannie Mae’s

Governmental Status is not Governed

Solely by Lebron and American Railroads,

and this Court Should Grant Review to

Correct the First Circuit’s Improper Refusal

to Consider and Determine Fannie Mae a

Governmental Actor Under Brentwood ...........9

III.

The First Circuit’s Ruling in Montilla

Conflicts With this Court’s Ruling in Collins

that FHFA Acting as Conservator Wields

Executive Power and is, thus, a

Governmental Actor .......................................18

iii

IV.

The Plain and Unambiguous Language of

HERA does not Support the First Circuit’s

Ruling that FHFA, as Conservator Acts as

a Private Entity ..............................................21

CONCLUSION ..........................................................25

APPENDIX

Foreclosure Prevention & Refinance Report

Federal Property Manager’s Report Second

Quarter 2021............................................................ A-1

BAXTER DUNAWAY, 2 L. DISTRESSED REAL EST.

Appendix 17A. State Statutes Sanctioning and

Governing Nonjudicial Foreclosure (November

2021 Update)............................................................ A-3

TABLE OF AUTHORITIES

Cases

Azar v. Allina Health Servs.,

___ U.S. ___, 139 S. Ct. 1804 (2019) ...................... 24

Blum v. Yaretsky,

457 U.S. 991 (1982) ................................................ 15

Bond v. United States,

564 U.S. 211 (2011) ................................................ 20

Bowsher v. Synar,

478 U.S. 714 (1986) ................................................ 20

Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Ass’n, 531 U.S. 288 (2001) .... 4, 9, 10, 11, 17

Collins v. Yellen,

___U.S. ___, 141 S. Ct. 1761 (2021) ............... passim

Dept. of Transportation v. Ass’n of American

Railroads, 135 S.Ct. 1225 (2015) ......... 4, 5, 9, 10, 20

Evans v. Newton,

382 U.S. 296 (1966) ................................................ 16

Geneva Towers Tenants Org. v. Federated Mortg.

Invs., 504 F.2d 483 (9th Cir. 1974) .................... 9, 10

Goshen Run Homeowners Assoc., Inc. v. Cisneros,

467 Md. 74 (2020) ..................................................... 3

Herron v. Fannie Mae,

857 F. Supp. 2d 87 (D.D.C. 2012), aff’d,

861 F.3d 160 (D.C. Cir. 2017) ................................ 17

Jackson v. Metro. Edison Co.,

419 U.S. 345 (1974) ................................................ 10

Jacobellis v. State of Ohio,

378 U.S. 184 (1964) .......................................... 11, 12

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ........................................ passim

Lewis v. Chicago,

560 U.S. 205 (2010) ................................................ 24

Lilia Maria Abbatematteo v. FHFA et al.,

C.A. No. 1:17-cv-331 WES-LDA ............................... 2

Little Sisters of the Poor Saints Peter & Paul

Home v. Pennsylvania, ___ U.S. ___,

140 S. Ct. 2367 (2020) ............................................ 24

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) .......................................... 15, 16

Moose Lodge No. 107 v. Irvis,

407 U.S. 163 (1972) .................................................. 6

Murphy v. Nat’l Collegiate Athletic Ass’n,

___ U.S. ___, 138 S. Ct. 1461 (2018) ...................... 24

O’Melveny & Myers v. FDIC,

512 U.S. 79 (1994) ...................................... 18, 19, 23

Pennsylvania v. Board of Directors of City Trusts of

Philadelphia,

353 U.S. 230 (1957) (per curiam) ..................... 15, 17

Public Utilities Comm’n v. Pollak,

343 U.S. 451 (1952) .................................................. 6

Railroad Retirement Bd. v. Alton R. Co.,

295 U.S. 330 (1935) ................................................ 24

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997) ................................................ 21

Sisti v. Fed. Hous. Fin. Agency,

324 F. Supp. 273 (D.R.I. 2018)................................. 1

Stop the Beach Renourishment, Inc. v. Fla. Dep’t

of Env’t Prot., 560 U.S. 702 (2010)......................... 20

Sweeney v. Savings First Mortg.,

897 A.2d 1037 (Md. 2005) ........................................ 3

United States v. James Daniel Good Real Prop.,

510 U.S. 43 (1993) .................................................... 7

United States v. Price,

383 U.S. 787 (1966) ................................................ 16

Warren v. Gov’t Nat. Mortg. Ass’n,

611 F.2d 1229 (8th Cir. 1980) .................................. 9

Wells Fargo Home Mortg., Inc. v. Neal,

922 A.2d 538 (Md. 2007) .......................................... 3

Wheeling v. Selene Finance LP,

473 Md. 356 (2021) ................................................... 3

Statutes

12 U.S.C. § 1821(d)(2)(A)(i) ....................................... 23

12 U.S.C. § 4502 .................................................... 4, 12

12 U.S.C. § 4502(2) .................................................... 22

12 U.S.C. § 4511(a) .......................................... 6, 22, 24

12 U.S.C. § 4511(b) ................................................ 4, 12

12 U.S.C § 4617(a)(4)(D)............................................ 13

vii

12 U.S.C. § 4617(b)(2) ................................ 5, 21, 22, 23

12 U.S.C. § 4617(b)(2)(A) ....................................... 5, 21

12 U.S.C. § 4617(b)(2)(A-J)........................................ 23

12 U.S.C. § 4617(b)(2)(B) ..................................... 16, 17

Housing and Economic Recovery Act of 2008,

Pub. L. No. 110-289, 122 Stat. 2654 ...................... 12

Other Authorities

BAXTER DUNAWAY, 2 L. DISTRESSED REAL EST.

Appendix 17A. State Statutes Sanctioning and

Governing Nonjudicial Foreclosure (November

2021 Update) ............................................................ 7

Fed. Hous. Fin. Agency, Foreclosure Prevention and

Refinance Report – Second Quarter 2021,

https://www.fhfa.gov/AboutUs/Reports/ReportDocu

ments/FPR_2Q2021.pdf ........................................... 8

IDENTITY AND INTERESTS OF

AMICI CURIAE 1

The Virginia Poverty Law Center (“VPLC”)

is the state support center for all the nine Legal Aid

field organizations in the Commonwealth of Virginia,

a nonjudicial foreclosure jurisdiction. In this role,

VPLC periodically submits amicus-curiae briefs on

issues affecting low-income Virginians and the nine

Legal Aid organizations. Also, VPLC provides legal

support to the nine Legal Aid organizations on issues

affecting low-income borrowers in foreclosure matters.

VPLC’s Litigation Director argued as Amicus when

this matter was heard by the First Circuit Court of

Appeals and prior to moving to Virginia, successfully

argued that the Federal Housing Finance Agency

(“FHFA”), the Federal National Mortgage Association

(“Fannie Mae’) and the Federal Home Loan Mortgage

Corporation (“Freddie Mac”) are governmental actors

subject to the due process clause. Sisti v. Fed. Hous.

Fin. Agency, 324 F. Supp. 273 (D.R.I. 2018).

1Pursuant to this Court’s Rule 37.2, all parties with counsel listed

on the docket have consented to the filing of this brief. Counsel of

record for all listed parties received notice at least 10 days prior

to the due date of the Amici Curiae’s intention to file this brief.

Letters evidencing such consent will be filed with the Clerk of the

Court.

Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amici Curiae, its members or its counsel made a monetary

contribution to its preparation or submission.

Direct Action for Rights and Equality

(“DARE”) is a grassroots membership organization

founded in 1986 that works on a wide range of issues

affecting low income and minority residents of Rhode

Island, a nonjudicial foreclosure jurisdiction. Since

2010, DARE has organized homeowners and tenants

facing the loss of their homes because of foreclosures

into a statewide Bank Tenant and Homeowner

Association. Since 2013, three members of said

Association filed cases in the United States District

Court for the District of Rhode Island against FHFA

and Fannie Mae, alleging that FHFA and Fannie Mae

are governmental actors and are subject to the Due

Process Clause of the Fifth Amendment. One of those

cases is still pending: Lilia Maria Abbatematteo v.

FHFA et al., C.A. No. 1:17-cv-331 WES-LDA.

The Legal Aid Justice Center (“LAJC”) is a

Virginia nonprofit legal aid organization that provides

legal advice and direct legal representation each year

to thousands of low-income individuals who cannot

afford private counsel in civil practice areas such as

consumer protection, landlord-tenant, employment,

immigration, and civil rights. LAJC’s interest in this

case flows from its decades-long history of work on

low-income housing issues, both as counsel for lowincome tenants facing eviction and low-income

homeowners facing foreclosure, as well as policy and

legislative work aimed at ensuring the availability of

stable housing for people at all income levels. Since

Virginia is a non-judicial foreclosure state, LAJC

knows from firsthand experience the shortcomings of

this process in failing to protect the rights of

homeowners.

The Mississippi Center for Justice (“MCJ”)

is a non-profit public interest law firm committed to

promoting racial and economic justice throughout the

state of Mississippi, a non-judicial foreclosure

jurisdiction. MCJ has assisted families facing

foreclosure since 2009. MCJ has advocated for changes

to Mississippi’s foreclosure laws for many years

because non-judicial foreclosures create great

hardship for homeowners who do not always get

adequate notice or appropriate due process when

facing foreclosure. MCJ is interested in this suit

because Mississippi borrowers from Fannie Mae need

the protections other borrowers lack in non-judicial

foreclosure proceedings.

The Public Justice Center (PJC) is a

Maryland-based non-profit civil rights and antipoverty legal organization established in 1985.

Maryland is a non-judicial foreclosure jurisdiction.

The PJC uses impact litigation, public education, and

legislative advocacy through a race equity lens to

accomplish law reform for its clients. The PJC’s

Appellate Advocacy Project expands and improves

representation of indigent and disadvantaged persons

and civil rights issues before the Maryland and federal

trial and appellate courts. The organization has a

longstanding commitment to protecting the rights of

low-income homeowners and mortgage holders. See,

e.g., Wheeling v. Selene Finance LP, 473 Md. 356

(2021); Goshen Run Homeowners Assoc., Inc. v.

Cisneros, 467 Md. 74, 110 (2020); Wells Fargo Home

Mortg., Inc. v. Neal, 922 A.2d 538 (Md. 2007)

(amicus); Sweeney v. Savings First Mortg., 897 A.2d

1037 (Md. 2005) (amicus). In this case, PJC has an

interest in protecting its client community from nonjudicial foreclosures with inadequate procedural

safeguards.

SUMMARY OF ARGUMENT

The two questions presented by Petitioners’

Writ of Certiorari, whether the Federal National

Mortgage Corporation (“Fannie Mae”) and its

conservator, the Federal Housing Finance Agency

(“FHFA”), are governmental actors for purposes of

Petitioners’ due process claims, are inextricably tied to

a fundamental principle of Constitutional law: “The

Constitution constrains governmental action by

whatever instruments or in whatever modes that

action may be taken . . . [and] under whatever

congressional label.” Lebron v. Nat’l R.R. Passenger

Corp., 513 U.S. 374, 392–93 (1995)(“Lebron”). The

First Circuit’s decision undermines this fundamental

principle by finding both Fannie Mae and FHFA

governmental actors and is contrary to several

decisions of this Court.

In addition to the two cases primarily relied

upon by Petitioners, and Dept. of Transportation v.

Ass’n of American Railroads, 135 S.Ct. 1225 (2015)

(“American

Railroads”),

Fannie

Mae

governmental actor because the foreclosure of

Petitioners’ homes is “fairly attributable” to FHFA,

Brentwood Acad. v. Tennessee Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 295 (2001), as Fannie Mae has

since September of 2008 been under the complete

control of FHFA, an “independent agency of the

Federal Government,” 12 U.S.C. §§ 4502, 4511(b), and

a governmental actor by virtue of this Court’s decision

last term in Collins v. Yellen, ___U.S. ___, 141 S. Ct.

1761 (2021) (“Collins”).

The Collins decision, which found that when

acting as conservator, FHFA wields executive power

for purposes of a separation of powers challenge,

governs the determination of FHFA’s governmental

status for purposes of an individual rights challenge

under the Constitution, since “[t]he structural

principles secured by the separation of powers protect

the individual as well.” American Railroads, supra,

575 U.S. at 55. Furthermore, the First Circuit’s

decision that FHFA “steps into the shoes” of Fannie

Mae and shed its governmental character based on the

Housing and Economic Recovery Act of 2008’s

(“HERA”)

“succession

clause,”

U.S.C.

§ 4617(b)(2)(A), runs afoul both of this Court’s decision

in Collins, and the plain and unambiguous language

of HERA’s provisions setting forth FHFA’s

conservatorship powers. 12 U.S.C. § 4617(b)(2).

REASONS FOR GRANTING THE WRIT

This Court Should Grant Review to

Vindicate the Principle that the

Constitution Constrains Governmental

Action by whatever modes that action

may be taken and under whatever

Congressional Label.

The Petition for a Writ of Certiorari (hereafter,

“Petition”) filed in this matter raises two very

important questions of federal law: whether the

Federal National Mortgage Corporation (“Fannie

Mae”) and its conservator, the Federal Housing

Finance Agency (“FHFA”) are governmental actors 2

and, thus, subject to the constraints of the U.S.

Constitution. These questions are inextricably tied to

a fundamental principle of Constitutional law: “The

Constitution constrains governmental action by

whatever instruments or in whatever modes that

action may be taken . . . [and] under whatever

congressional label.” Lebron v. Nat’l R.R. Passenger

Corp., 513 U.S. 374, 392–93 (1995) (citations and

quotations omitted). This principle was significantly

undermined by the First Circuit’s decision finding

both FHFA, created by Congress as “an independent

agency of the Federal Government,” 12 U.S.C.

§ 4511(a), and Fannie Mae, another entity created by

Congress and since 2008 under the complete and

indefinite control of its conservator, FHFA, to be free

from Constitutional constraints due to the private

status accorded to both in the First Circuit’s Montilla

decision.

Not only does the First Circuit’s decision

undermine the principle that governmental action is

subject to Constitutional constraints but does so in the

context of governmental action that has the potential

to dispossess literally hundreds of thousands of

Americans of their most important and valuable asset

— their home — through nonjudicial foreclosure,

where the home is sold at auction without any

2 The term “governmental actor” is used herein instead of “state

actor” since Petitioners due process claims are brought under the

Fifth Amendment, which applies to the federal government,

Public Utilities Comm’n v. Pollak, 343 U.S. 451, 461 (1952); while

the fourteenth amendment due process clause applies to the

states. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172-73 (1972).

opportunity to be heard prior to the sale. 3 See, United

States v. James Daniel Good Real Prop., 510 U.S. 43,

53-56 (1993) (absent extraordinary circumstances, due

process requires notice and opportunity to be heard

prior to the government’s seizure of the homeowner’s

residence). According to FHFA’s Foreclosure

Prevention & Refinance Report for the Second Quarter

of 2021, 4 the most current report available, in

nonjudicial foreclosure states (31 states plus the

District of Columbia) 5 there are presently 314,533

single family loans in in the portfolios of the

Enterprises under FHFA’s conservatorship (Fannie

Judicial foreclosure proceedings required in the 19 judicial

foreclosure states provide homeowners with notice and an

opportunity to be heard prior to foreclosure.

The

complete

report

available

https://www.fhfa.gov/AboutUs/Reports/ReportDocuments/FPR_2

Q2021.pdf. Two tables derived from the report are reproduced in

the Appendix to this brief. Discussion, infra, at A-1 and A-2. The

first table was derived from the table appearing on page 36 of the

report entitled, “Enterprises Single-Family Book Profile – As of

June 30, 2021;” and the second table was derived from the table

appearing on page 37 of the report entitled, “Fannie Mae Single

Family Book Profile – As of June 30, 2021.” The “Enterprises”

table attached to the Appendix lists the number of delinquent

loans in both Fannie Mae and Freddie Mac’s respective single

family loan portfolios, while the “Fannie Mae” table lists the

number of delinquent single-family loan in Fannie Mae’s single

family loan portfolio only. The tables in the Appendix provide

data for those 31 states plus the District of Columbia with nonjudicial foreclosure laws. A list of non-judicial foreclosure

jurisdictions is found on pages A-3 to A-6 of the Appendix. The

source of the list is BAXTER DUNAWAY, 2 L. DISTRESSED REAL EST.

App. 17A (November 2021 Update).

5 BAXTER DUNAWAY, 2 L. DISTRESSED REAL EST. App. 17A

(November 2021 Update).

Mae and its sister corporation, the Federal Home Loan

Mortgage Corporation (“Freddie Mac”)) (collectively

referred to herein as “the GSEs”) that are “seriously

delinquent”, of which 192,275 single family loans are

“seriously delinquent” in Fannie Mae’s portfolio alone.

Discussion, infra, at A-1 and A-2, respectively. FHFA

defines “seriously delinquent” as “[a]ll loans in the

process of foreclosure plus loans that are three or more

payments delinquent (including loans in the process of

bankruptcy).” Fed. Hous. Fin. Agency, Foreclosure

Prevention and Refinance Report – Second Quarter

2021,

https://www.fhfa.gov/AboutUs/Reports

/ReportDocuments/FPR_2Q2021.pdf. These numbers

demonstrate how “FHFA’s control over Fannie Mae

and Freddie Mac can deeply impact the lives of

millions of Americans by affecting their ability to buy

and keep their homes.” Collins v. Yellen, ___ U.S. ___,

141 S. Ct. 1761, 1786 (2021).

To vindicate the principle that the Constitution

constrains governmental action as set forth in Lebron,

and, more specifically, to constrain governmental

action that has the potential to dispossess hundreds of

thousands of Americans of their homes through

nonjudicial foreclosure without the opportunity to be

heard prior to the foreclosure, this Court should grant

review to confirm that both Fannie Mae and its

conservator, FHFA, are governmental actors for

purposes of Petitioners’ due process claims.

II.

The Determination of Fannie Mae’s

Governmental Status is not Governed

Solely by Lebron and American

Railroads, and this Court Should Grant

Review to Correct the First Circuit’s

Improper Refusal to Consider and

Determine Fannie Mae a Governmental

Actor Under Brentwood.

Petitioners urge this Court to determine Fannie

Mae a governmental actor under only two Supreme

Court decisions, Lebron v. National Railroad

Passenger Corporation, 513 U.S. 374 (1995) (“Lebron”)

and Dept. of Transportation v. Ass’n of American

Railroads, 135 S.Ct. 1225 (2015) (“American

Railroads”). Petition for Writ of Certiorari at 25-33,

Montilla v. Fed. Nat’l Mortg. Ass’n, No. 21-688 (S.Ct.

Nov. 8, 2021) (hereafter, “Pet.”). Amici agree those two

cases support the determination of Fannie Mae as a

governmental actor, and that the First Circuit

misapplied those two cases; however, they are not the

only Supreme Court precedent governing that

determination.

Lebron and American Railroads govern the

determination of governmental actor status for

government

created

corporations;

and

any

government created corporation NOT determined a

governmental actor under those two cases is a private

actor. The governmental actor status of private actors

is subject to a separate test. “State action” 6 on the part

6 The standard for finding federal government action under the

fifth amendment is the same as that for finding state action

under the fourteenth amendment. Warren v. Gov’t Nat. Mortg.

Ass’n, 611 F.2d 1229, 1232 (8th Cir. 1980); Geneva Towers

of private actors occurs where there is such a “close

nexus between the State and the challenged action”

that seemingly private behavior “may be fairly treated

as that of the State itself.” Brentwood Acad. v.

Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288,

295 (2001) (“Brentwood”) (citing Jackson v. Metro.

Edison Co., 419 U.S. 345, 345 (1974)). Stated

differently, where the actions of Fannie Mae, if a

private actor under Lebron and American Railroads,

are “fairly attributable” to a governmental actor such

as FHFA, Brentwood, 531 U.S. at 295, Fannie Mae is,

likewise, a governmental actor. Last term this Court

found FHFA when acting as conservator wields

executive power, Collins v. Yellen, ___U.S. ___, 141 S.

Ct. 1761 (2021), and thus, is a governmental actor for

purposes of Petitioners due process claims, rendering

Brentwood applicable to the determination of Fannie

Mae’s status as a governmental actor. 7

As the First Circuit observed, Petitioners failed

to argue that Lebron was not the only relevant

precedent

for

determining

Fannie

Mae’s

governmental actor status. Pet., at App. 19. However,

since that argument was made in two related cases

heard the same day as Montilla 8, the First Circuit

addressed and rejected the argument, holding “that

[because] FHFA acted privately and not as the

government in its role as the GSE’s conservator, we do

Tenants Org. v. Federated Mortg. Invs., 504 F.2d 483, 487 (9th

Cir. 1974).

7 FHFA’s governmental actor status is addressed more

thoroughly below. See, Discussion, infra, at 18-25.

8 One case was filed by Judith Sisti against Freddie Mac and

FHFA and the other was filed by Cynthia Boss against Fannie

Mae and FHFA. Pet., at App. 7 n.3.

not need to address whether FHFA’s private actions

on behalf of the private GSE’s constituted state

action.” Pet., at App. 20. The First Circuit’s ruling that

FHFA acted privately is wrong as a matter of law, 9

and hence its failure to consider Brentwood, too, was

improper.

This Court in Brentwood Court explained that

the determination whether the actions of a private

actor are those of a governmental actor does not lend

itself to a particular set of facts or a single set legal

theory:

What is fairly attributable is a matter of

normative judgment, and the criteria

lack rigid simplicity. From the range of

circumstances that could point toward

the State behind an individual face, no

one fact can function as a necessary

condition across the board for finding

state action; nor is any set of

circumstances absolutely sufficient, for

there may be some countervailing reason

against attributing activity to the

government.

Brentwood, 531 U.S. at 295–96.

In essence, the “normative judgement” of

whether the actions of a private entity are those of the

government are akin to Justice Stewart’s famous

statement in his concurring opinion in Jacobellis v.

9 See, Discussion, infra, at 18-25.

State of Ohio, 378 U.S. 184, 197 (1964) “. . . I know

[governmental action] it when I see it.”

Here, there is an abundance of governmental

action for this court to “see.” FHFA was established by

Congress in the Housing and Economic Recovery Act

of 2008 (“HERA”), Pub. L. No. 110-289, 122 Stat. 2654

(codified in various sections of 12 U.S.C.) as “an

independent agency of the Federal Government” to

supervise and regulate the GSEs. 12 U.S.C. §§ 4502,

4511(b). The Director of FHFA was empowered to

place Fannie Mae into conservatorship under FHFA,

which FHFA did more than 13 years ago on September

7, 2008. Since September 2008, FHFA has controlled

and will continue to control indefinitely all rights,

titles, powers and privileges of the shareholders and

board of directors of Fannie Mae.

Pursuant to its powers to act as conservator of

Fannie Mae, FHFA stripped Fannie Mae of key

characteristics

unique

privately

owned

corporations. FHFA determines the size of Fannie

Mae’s Board of Directors and the scope of its authority.

Since the inception of the conservatorship, FHFA has

elected all the directors and the Chief Executive

Officer of Fannie Mae. FHFA delegated certain

authority to the Board of Directors, while retaining

certain significant authorities for itself. FHFA also

controls amendment to or withdrawal of the

delegation of authority at any time. Fannie Mae’s

directors serve on behalf of, and exercise their

authority as directed by, FHFA. As a result of the

conservatorship, Fannie Mae is being managed to

serve a public mission, which may negatively impact

Fannie Mae’s business and profitability. Under FHFA

conservatorship, Fannie Mae is not managed to

maximize shareholder returns. Further, FHFA, as

both conservator and regulator, and the United States

Treasury, pursuant to a senior preferred stock

purchase agreement, prohibit Fannie Mae from

paying any dividends to common shareholders.

As a result of FHFA’s conservatorship of Fannie

Mae, since September 6, 2008, and continuing for the

foreseeable future, FHFA directly controls and

operates Fannie Mae with all the powers of the

shareholders, directors, and officers of Fannie Mae,

owns title to all the assets of Fannie Mae, and has

broad powers over all business of Fannie Mae.

Pursuant to the provisions of HERA, FHFA’s

conservatorship of Fannie Mae can only be terminated

if FHFA’s director appoints FHFA as receiver of

Fannie Mae. 12 U.S.C § 4617(a)(4)(D). However,

FHFA’s control over Fannie Mae will not be

terminated upon its being appointed as receiver.

There is no other law, regulation, policy, or directive

that provides either a date or specifies conditions by

which FHFA’s control over Fannie Mae will terminate.

In its ordinary course of business, Fannie Mae

purchases mortgages from originators such as banks.

Fannie Mae holds these mortgages in its retained

portfolios or packages them into mortgage-backed

securities that it sells to investors. For mortgages that

Fannie Mae purchases, Fannie Mae enters into

contracts with mortgage servicers, which includes a

“Servicing Guide” and other agreements. Under the

terms of these agreements, the servicer collects

mortgage payments, sets aside taxes and insurance

premiums in escrow, forwards interest and principal

payments to the contractually designated party, and

responds to payment defaults.

With the conservatorship in place and having

stripped the GSEs of key characteristics of private

ownership, FHFA began engaging in continuous

supervision of the GSE’s oversight of the GSEs’

mortgage servicers. As part of that supervision, FHFA

created the Servicer Alignment Initiative in April

2011 (“SAI”), by which FHFA directs the actions of

servicers of Fannie Mae’s mortgages. In the SAI,

FHFA created a policy that requires servicers of

Fannie Mae owned mortgages to follow specific statelevel timelines for the processing of foreclosures from

the date of referral to the attorney/trustee through the

date of the foreclosure sale. In the SAI, FHFA directed

Fannie Mae’s servicers to use non-judicial foreclosure

procedures when foreclosing on residential properties

in Rhode Island, including Petitioners’ homes. FHFA

and Fannie Mae foreclosed on Petitioners’ homes in

2016 without first providing Petitioners adequate

notice and a meaningful hearing prior to the

deprivation of Petitioners’ property through

foreclosure.

Clearly, FHFA’s hands were all over Fannie

Mae’s foreclosure of Petitioners’ homes: from

developing the policy enabling Fannie Mae and its

servicers to foreclose without providing a predeprivation hearing, to ensuring that policy was

carried out by Fannie Mae through its continuous

supervision of the GSEs. Without question, Fannie

Mae’s foreclosure of Petitioners’ homes was plausibly

attributable to the actions of FHFA, an independent

agency of the Federal Government and a

governmental actor under the Fifth Amendment,

rendering Fannie Mae itself a governmental actor.

Of the various approaches endorsed by the

Supreme Court this Court could use to find actions of

Fannie Mae attributable to FHFA, rending Fannie

Mae a governmental actor, four approaches are

applicable to the case at hand:

•

When the challenged activity results from

the State’s exercise of “coercive power or has

provided such significant encouragement,

either overt or covert, that the choice must

in law be deemed to be that of the State.”

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)

(“Coercion or Encouragement theory”);

•

When a private party’s joint participation

with state officials in the seizure of disputed

property is sufficient to characterize that

party as a “state actor” for purposes of the

Fourteenth

Amendment. Lugar

Edmondson Oil Co., 457 U.S. 922, 941

(1982) (Joint Participation theory”);

•

When a nominally private entity is deemed

a state actor because it is controlled by an

“agency of the State.” Pennsylvania v. Board

of Directors of City Trusts of Philadelphia,

353 U.S. 230, 231 (1957) (per curiam)

(“Philadelphia”)

(Government

Control

theory); and

•

When the private actor is “entwined with

governmental policies,” or when government

is “entwined in [its] management or control.”

Evans v. Newton, 382 U.S. 296 (1966) and

Brentwood (Entwinement theory).

Under the “Coercion or Encouragement theory,

Fannie Mae’s foreclosure on Petitioners homes was

either coerced or encouraged by FHFA’s promulgation

of the SAI, directing Fannie Mae to use non-judicial

procedures when it foreclosed on Petitioners’ homes

without first affording Petitioners a pre-deprivation

hearing. Due to Fannie Mae’s being under the

complete control of FHFA, Fannie Mae had no choice

but to comply with FHFA’s SAI directive.

Under the Joint Participation theory, the

private actor need not be coerced or encouraged by the

government to be considered a governmental actor. “It

is enough that he is a willful participant in joint

activity with the State or its agents.” Lugar v.

Edmondson Oil Co., 457 U.S. 922, 941, 102 S. Ct. 2744,

2756, 73 L. Ed. 2d 482 (1982) (quoting United States

v. Price, 383 U.S. 787, 794 (1966)). Thus, if Fannie Mae

was not coerced or encouraged by FHFA to foreclose

on Petitioners’ homes without providing them a

deprivation hearing, no doubt, Fannie Mae was a

willful participant with FHFA in that activity. Since

under HERA, FHFA, as conservator has the ultimate

power to operate Fannie Mae, 12 U.S.C.

§ 4617(b)(2)(B), FHFA has acted jointly with Fannie

Mae to deprive Petitioners of their homes through

foreclosure.

Under the Government Control theory, there

can be little question that FHFA as conservator

controls Fannie Mae, and that control led to the loss of

Petitioners’ homes when Fannie Mae foreclosed on

them. FHFA, a governmental actor, unquestionably

has indefinite control over the GSEs. Herron v. Fannie

Mae, 857 F. Supp. 2d 87, 95 (D.D.C. 2012), aff’d, 861

F.3d 160 (D.C. Cir. 2017) (“the duration of [FHFA’s]

conservatorship [of the GSE’s] is indefinite . . . .”). See,

also, 12 U.S.C. § 4617(b)(2)(B). Unlike Lebron, there is

no requirement in Philadelphia that the government’s

control be permanent.

Lastly, under the Entwinement theory, Fannie

Mae’s operations are so intertwined with those of

FHFA, that “there is no substantial reason to claim

unfairness in applying constitutional standards to it.”

Brentwood, 531 U.S. at 298. Fannie Mae’s Board was

replaced by FHFA, such that FHFA directly controls

and operates Fannie Mae with all the powers of the

shareholders, directors, and officers of Fannie Mae,

owns title to all the assets of Fannie Mae, and has

broad powers over all business of Fannie Mae. By

eliminating key characteristics of Fannie Mae’s

private ownership of the corporation, the governance

of Fannie Mae shifted from private to government

hands.

The First Circuit’s refusal to consider whether

Fannie Mae is a governmental actor under Brentwood

was based on its flawed reasoning that FHFA is not a

governmental actor. 10 Thus, this Court should grant

certiorari to correct the First Circuit’s failure to

consider Brentwood and determine Fannie Mae a

governmental actor under Brentwood.

10 See, Discussion, infra, at 18-25.

III.

The First Circuit’s Ruling in Montilla

Conflicts With this Court’s Ruling in

Collins

that

FHFA

Acting

Conservator Wields Executive Power

and is, thus, a Governmental Actor.

The First Circuit’s ruling in Montilla that per

this Court’s ruling in O’Melveny & Myers v. FDIC, 512

U.S. 79 (1994) (“O’Melveny”), FHFA “steps into the

shoes” of Fannie Mae when acting as its conservator

and no longer acts as the government, Pet., at App. 9,

conflicts with this Court’s ruling in Collins v. Yellen,

___U.S. ___, 141 S. Ct. 1761 (2021) (“Collins”), decided

15 days later, which expressly rejected the application

of O’Melveny’s “steps into the shoes” metaphor to

analyze whether FHFA wielded executive power for

purposes of a separation-of powers challenge to

FHFA’s structure.

When confronted with the argument advanced

by court appointed Amicus that FHFA, as conservator,

stepped into the shoes of the regulated entities such

as Fannie Mae and took on the private status of those

entities, this Court in Collins ruled, “. . . even when it

acts as conservator or receiver, [FHFA’s] authority

stems from a special statute, not the laws that

generally govern conservators and receivers . . . [and]

the FHFA’s powers under the [Housing and Economic]

Recovery Act differ critically from those of most

conservators and receivers.” Collins, 141 S. Ct. at

1785. Then, this Court then listed out the many

distinctive powers FHFA possessed under that Act:

[FHFA] can subordinate the best

interests of the company to its own best

interests and those of the public. See 12

U.S.C. § 4617(b)(2)(J)(ii). Its business

decisions are protected from judicial

review. § 4617(f ). It is empowered to

issue a “regulation or order” requiring

stockholders, directors, and officers to

exercise

certain

functions.

§ 4617(b)(2)(C). It is authorized to issue

subpoenas. § 4617(b)(2)(I). And of course,

it has the power to put the company into

conservatorship and simultaneously

appoint

itself

conservator.

§ 4617(a)(1).

Id., at 1785-86.

This Court concluded, “[f]or these reasons, the FHFA

clearly exercises executive power” Id., at 1786, and in

a footnote rejected the application of O’Melveny from

which the “steps into the shoes” metaphor derives.

Noting that O’Melveny was “far afield,” this Court

concluded that “[t]he nature of the FDIC’s authority in

that capacity sheds no light on the nature of the

FHFA’s distinctive authority as conservator under the

Recovery Act.” Collins, 141 S.Ct. at 1786 n.20.

While Montilla does not involve a separation of

powers challenge but a due process challenge under

the Fifth Amendment to the Constitution, there is no

reason for FHFA to be found a private actor for

purposes of a due process challenge. Here, too, FHFA’s

conservatorship powers derive from HERA, not the

laws that generally govern conservators and receivers.

Moreover, as was the case in Collins, “[i]n deciding

what it must do, what it cannot do, and the standards

that govern its work, the FHFA must interpret the

Recovery Act, and ‘[i]nterpreting a law enacted by

Congress to implement the legislative mandate is the

very essence of ‘execution’ of the law.’” Collins v.

Yellen, ___ U.S. ___,141 S. Ct. 1761, 1785, 210 L. Ed.

2d 432 (2021) (citing Bowsher v. Synar, 478 U.S. 714,

733 (1986)).

Support for finding FHFA a governmental actor

in the due process context (an individual right

provided by our Constitution) when it was found to

wield executive power (and hence, governmental

actor) in the separation of powers context, is found in

this Court’s determination that Amtrak is a

governmental actor for both an individual rights

challenge and a separation of powers challenge to

Amtrak’s actions. Compare Lebron (finding Amtrak a

part of the governmental for purposes of a First

Amendment challenge), with American Railroads

(finding Amtrak a governmental entity not a private

one for purposes of a separation of powers challenge).

While the sequence of constitutional challenges differs

here from the Amtrak cases (the separation of powers

challenge in Collins preceded this Court’s review of

Petitioners’ due process claims), that should be of no

consequence since “[t]he structural principles secured

by the separation of powers protect the individual as

well.” American Railroads, 575 U.S. at 55 (quoting

Bond v. United States, 564 U.S. 211, 222 (2011)). See,

also, Stop the Beach Renourishment, Inc. v. Fla. Dep’t

of Env’t Prot., 560 U.S. 702, 713–14 (2010) (noting that

the takings clause of the Fifth Amendment, which

immediately follows the due process clause, “is not

addressed to the action of a specific branch or

branches . . . [but] is concerned simply with the act,

and not with the governmental actor . . . .”)

To resolve the conflict between the First

Circuit’s decision in Montilla and its decision in

Collins, this Court should grant review to confirm that

Collins resolves the conflict and to confirm that FHFA,

when acting as conservator of Fannie Mae is a

governmental actor for purposes of Petitioners’ due

process claims.

IV.

The Plain and Unambiguous Language

of HERA does not Support the First

Circuit’s Ruling that FHFA, as

Conservator Acts as a Private Entity.

Not only does the First Circuit’s Montilla

decision conflict with this Court’s Collins decision, but

the result in Montilla finding FHFA a private entity

conflicts with the plain and unambiguous language of

HERA, specifically, the provisions in HERA setting

forth FHFA’s powers and duties as conservator or

receiver set forth in 12 U.S.C. § 4617(b)(2). When

construing statutes, this Court determines “[t]he

plainness or ambiguity of statutory language . . . by

reference to the language itself, the specific context in

which that language is used, and the broader context

of the statute as a whole.” Robinson v. Shell Oil Co.,

519 U.S. 337, 341 (1997).

The First Circuit’s ruling that FHFA as

conservator acts as a private entity is grounded in

HERA’s “succession clause”, codified at 12 U.S.C.

§ 4617(b)(2)(A). Pet., at App. 9. The succession clause

provides:

The Agency shall, as conservator or

receiver, and by operation of law,

immediately succeed to—

(i) all rights, titles, powers, and

privileges of the regulated entity, and of

any stockholder, officer, or director of

such regulated entity with respect to the

regulated entity and the assets of the

regulated entity; and

(ii) title to the books, records, and assets

of any other legal custodian of such

regulated entity.

The succession clause is the first of ten “General

Powers” Congress delegated to FHFA when acting as

conservator or receiver. 12 U.S.C. § 4617(b)(2). HERA

defines the term “Agency” as “the Federal Housing

Finance Agency established under section 4511 of this

title.” 12 U.S.C. § 4502(2). Section 4511 of Title 12

“established the Federal Housing Finance Agency . . .

[as] an independent agency of the Federal

Government.” 12 U.S.C. § 4511(a).

Nothing in the plain language of HERA’s

succession clause provides that by succeeding to the

“rights, titles, powers, and privileges of the regulated

entity” FHFA’s status changes from an “independent

agency of the Federal Government” to that of a private

entity. The term “rights, titles, powers, and privileges”

refers to tangibles possessed the regulated entity, not

the regulated entity’s private status. FHFA possesses

its own rights, titles, powers, and privileges as set

forth in HERA and elsewhere, and the succession

clause makes no mention that FHFA’s “rights, titles,

powers, and privileges” or its status as an

“independent agency of the Federal Government” are

altered by FHFA’s succeeding to those of the GSEs.

Moreover, the use of the words “immediately succeeds

to” indicates that the succession clause was not

intended to apply to rights, titles, powers, and

privileges that FHFA accrued after placing the GSEs

into conservatorship, but only to those “rights, titles,

powers, and privileges” possessed by the GSEs at the

time FHFA placed them under conservatorship.

Accord, O’Melveny, 512 U.S. at 86. (“[the FDIC’s

“nearly identical” 11 succession clause’s] language

appears to indicate that the FDIC as receiver “steps

into the shoes” of the failed S & L, obtaining the rights

“of the insured depository institution” that existed

prior to receivership.” (quoting 12 U.S.C.

§ 1821(d)(2)(A)(i)) (citations omitted, italics original,

bold emphasis added).

Since HERA’s succession clause only governs

“rights, titles, powers, and privileges” of the GSE’s

that existed prior to being placed into conservatorship,

that clause cannot be the source of authority for the

actions complained of here: FHFA’s promulgation of

the SAI in 2011 and the foreclosures of Petitioners’

homes in 2016. These events occurred after, not prior

to, FHFA’s placing the GSEs into conservatorship 13

years ago. Therefore, FHFA’s authority for these

actions lies in its other conservatorship powers set

forth in 12 U.S.C. § 4617(b)(2). The term “Agency” is

used in all ten of FHFA’s general powers when acting

as conservator or receiver, 12 U.S.C. § 4617(b)(2)(A-J),

reinforcing FHFA’s status as an “independent agency

11 Pet., at App. 9.

of the Federal Government,” not a private entity,

when it exercises any of those powers.

HERA would require significant redrafting to

support the First Circuit’s conversion of FHFA, an

“independent agency of the Federal Government,” 12

U.S.C. § 4511(a), to the private status of the entities

FHFA placed into conservatorship. At minimum, the

succession clause would need language to the effect

that “The Agency shall, as conservator or receiver, and

by operation of law, obtain the private status of the

regulated entity when acting as conservator and

immediately succeeds to . . .” for the First Circuit’s

decision to be consistent with HERA. Such judicial

redrafting is impermissible under numerous decisions

of this Court. See, e.g., Little Sisters of the Poor Saints

Peter & Paul Home v. Pennsylvania, ___ U.S. ___, 140

S. Ct. 2367, 2381 (2020) (“It is not for us

to rewrite the statute so that it covers only what we

think is necessary to achieve what we think Congress

really intended.” (quoting Lewis v. Chicago, 560 U.S.

205, 215 (2010)); Azar v. Allina Health Servs., ___ U.S.

___, 139 S. Ct. 1804, 1815 (2019) (“[C] ourts aren’t free

to rewrite clear statutes under the banner of our own

policy concerns.”); Murphy v. Nat’l Collegiate Athletic

Ass’n, ___ U.S. ___, 138 S. Ct. 1461, 1482 (2018) (“[W]e

cannot rewrite a statute and give it an effect

altogether different from that sought by the measure

viewed as a whole . . . .” (quoting Railroad Retirement

Bd. v. Alton R. Co., 295 U.S. 330, 362 (1935)).

To resolve the conflict between the First

Circuit’s decision in Montilla and the plain and

unambiguous language of HERA, this Court should

grant review to confirm that HERA does not convert

FHFA from being an independent agency of the

federal government to a private entity by virtue of

HERA’s succession clause and to confirm that under

HERA, FHFA, when acting as conservator of Fannie

Mae, is a governmental actor for purposes of

Petitioners’ due process claims.

CONCLUSION

For the reasons stated herein this Court should

grant the Petition.

Respectfully Submitted,

STEVEN FISCHBACH

Counsel of Record

VIRGINIA POVERTY LAW CENTER

919 E. Main Street, Suite 610

Richmond, Virginia 23219

(804) 351-5266

steve@vplc.org

Counsel for Amici Curiae

APPENDIX

TABLE OF CONTENTS

Foreclosure Prevention & Refinance Report

Federal Property Manager’s Report Second

Quarter 2021............................................................ A-1

BAXTER DUNAWAY, 2 L. DISTRESSED REAL EST.

Appendix 17A. State Statutes Sanctioning and

Governing Nonjudicial Foreclosure (November

2021 Update)............................................................ A-3

A-i

FHFA Foreclosure Prevention and Refinance

Second Quarter

Enterprises Single‐Family Book Profile ‐ As of June 30, 2021

Delinquent Loans (DLQ)

State

Total

Total Loan

Count

Total

30-59

Days

DLQ1

60-89

Days

DLQ

90-179

Days

DLQ

180-364

Days

DLQ

365+

Days

DLQ

Serious

Delinquent

(90+ FC In)

Serious

Delinquent

(90+ FC In)

Rates

% of DLQ

Loans

> =365

Days DLQ

55,234

1,487

338

103

183

300

563

1,046

1.9%

37.9%

342,725

10,803

3,408

957

1,264

1,979

3,195

6,442

1.9%

29.6%

191,571

5,052

1,570

405

597

1,024

1,456

3,077

1.6%

28.8%

845,838

17,989

4,872

1,236

2,075

3,819

5,987

11,891

1.4%

33.3%

3,901,131 100,273

22,795

6,317

11,248

18,616

41,297

71,180

1.8%

41.2%

72,599

3,145

517

179

355

623

1,471

2,449

3.4%

46.8%

924,787

32,074

8,166

2,367

3,776

6,018

11,747

21,547

2.3%

36.6%

289,312

5,419

1,823

510

644

984

1,458

3,087

1.1%

26.9%

210,528

3,757

1,407

244

360

759

987

2,107

1.0%

26.3%

714,606

19,135

5,115

1,434

2,161

3,597

6,828

12,593

1.8%

35.7%

676,364

24,938

5,323

1,698

3,138

4,784

9,995

17,920

2.6%

40.1%

108,688

2,805

782

188

243

405

1,187

1,836

1.7%

42.3%

1,012,233

23,578

7,935

2,075

2,574

4,110

6,884

13,569

1.3%

29.2%

718,782

14,835

4,081

1,079

1,656

3,194

4,825

9,679

1.3%

32.5%

567,117

13,062

4,057

1,105

1,508

2,439

3,953

7,909

1.4%

30.3%

138,615

5,605

1,735

468

687

1,080

1,635

3,402

2.5%

29.2%

109,403

1,869

552

144

202

368

603

1,173

1.1%

32.3%

60,004

1,152

291

126

244

413

783

1.3%

35.9%

177,535

3,435

1,082

296

411

705

941

2,057

1.2%

27.4%

152,334

3,427

1,053

280

388

609

1,097

2,095

1.4%

32.0%

335,755

12,657

1,896

670

1,325

2,836

5,930

10,098

3.0%

46.9%

247,612

7,905

2,157

608

890

1,627

2,623

5,143

2.1%

33.2%

499,663

11,001

2,611

699

1,082

2,396

4,213

7,693

1.5%

38.3%

101,990

2,927

806

206

298

555

1,062

1,917

1.9%

36.3%

72,246

1,185

403

158

199

337

694

1.0%

28.4%

521,724

12,961

4,031

1,049

1,520

2,492

3,869

7,890

1.5%

29.9%

2,095,065

72,247

17,954

5,327

8,862

14,633

25,471

48,983

2.3%

35.3%

410,712

7,002

2,240

507

782

1,378

2,095

4,259

1.0%

29.9%

885,094

23,156

5,640

1,671

2,684

4,585

8,576

15,849

1.8%

37.0%

61,036

1,435

395

100

148

289

503

940

1.5%

35.1%

903,519

18,448

4,398

1,094

1,979

4,028

6,949

12,960

1.4%

37.7%

85,781

3,008

1,112

268

290

518

820

1,630

1.9%

27.3%

52,174

1,044

323

130

240

265

635

1.2%

25.4%

17,541,777 468,816

120,868

33,536

53,744

91,433 169,235

314,533

1.8%

36.1%

Source: Fed. Hous. Fin. Agency, Foreclosure Prevention and Refinance Report – Second Quarter 2021, 36 available at

https://www.fhfa.gov/AboutUs/Reports/ReportDocuments/FPR_2Q2021.pdf

A‐1

Second Quarter

FHFA Foreclosure Prevention and Refinance Report

Fannie Mae Single‐Family Book Profile ‐ As of June 30, 2021

Delinquent Loans (DLQ) 1

State

Total Loan

Count

Total

30-59

Days

DLQ

60-89

Days

DLQ

180364

Days

DLQ

90179

Days

DLQ

365+

Days

DLQ

Serious

Delinque

nt (90+

FC In)

Serious

Delinquen

t (90+ FC

In)

Rates

% of

DLQ

Loans

=365

Days

DLQ

29,593

851

188

105

174

320

599

2.0%

37.6%

209,540

6,743

2,082

588

805

1,230

2,038

4,075

1.9%

30.2%

111,422

3,028

956

243

363

593

873

1,829

1.6%

28.8%

493,759

11,188

2,910

741

1,289

2,423

3,825

7,547

1.5%

34.2%

2,350,709

60,850

13,870

3,729

6,727

11,072

25,452

43,270

1.8%

41.8%

42,219

1,898

294

207

378

923

1,508

3.6%

48.6%

533,492

18,784

4,543

1,340

2,215

3,463

7,223

12,907

2.4%

38.5%

182,743

3,486

1,173

347

416

622

928

1,967

1.1%

26.6%

133,180

2,419

1,006

141

214

464

594

1,273

1.0%

24.6%

400,808

11,303

2,886

812

1,267

2,077

4,261

7,612

1.9%

37.7%

381,468

14,426

2,922

895

1,783

2,735

6,091

10,609

2.8%

42.2%

55,245

1,613

428

127

212

755

1,095

2.0%

46.8%

564,220

13,034

4,166

1,114

1,445

2,265

4,044

7,755

1.4%

31.0%

417,789

8,411

2,222

605

905

1,875

2,804

5,588

1.3%

33.3%

314,987

7,303

2,237

604

851

1,310

2,301

4,471

1.4%

31.5%

94,078

3,863

1,224

319

461

726

1,133

2,320

2.5%

29.3%

68,194

1,149

346

117

216

386

719

1.1%

33.6%

33,077

648

170

132

243

448

1.4%

37.5%

118,312

2,317

723

184

285

465

660

1,410

1.2%

28.5%

82,135

1,933

552

152

233

335

661

1,230

1.5%

34.2%

205,396

8,185

1,148

417

854

1,801

3,965

6,627

3.2%

48.4%

147,058

4,945

1,337

362

519

996

1,731

3,249

2.2%

35.0%

287,806

6,421

1,519

401

626

1,392

2,483

4,503

1.6%

38.7%

58,531

1,738

456

106

160

349

667

1,178

2.0%

38.4%

50,146

780

250

104

133

242

479

1.0%

31.0%

301,579

7,701

2,338

606

863

1,484

2,410

4,766

1.6%

31.3%

1,264,539

45,346

10,925

3,186

5,544

9,209

16,482

31,252

2.5%

36.3%

237,468

4,074

1,281

274

446

785

1,288

2,523

1.1%

31.6%

501,571

13,734

3,221

946

1,558

2,734

5,275

9,571

1.9%

38.4%

28,425

798

199

173

288

543

1.9%

36.1%

543,334

11,425

2,723

660

1,206

2,483

4,353

8,046

1.5%

38.1%

47,052

1,683

607

155

171

289

461

923

2.0%

27.4%

34,981

661

222

140

158

383

1.1%

23.9%

Total

10,324,856

282,738

71,124

19,455

32,106

54,735

105,318

192,275

1.9%

37.2%

Source: Fed. Hous. Fin. Agency, Foreclosure Prevention and Refinance Report – Second Quarter 2021, 37 available at

https://www.fhfa.gov/AboutUs/Reports/ReportDocuments/FPR_2Q2021.pdf

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2 L. Distressed Real Est. Appendix 17A

Law of Distressed Real Estate | November 2021

Update

Baxter Dunaway

Part D. Foreclosure and Other Terminations of

Mortgages

Chapter 17. Nonjudicial Foreclosure*

Appendices

References

APPENDIX 17A. State Statutes Sanctioning and

Governing Nonjudicial Foreclosure

This appendix lists the statutes in jurisdictions in

which nonjudicial foreclosure is the normal method of

foreclosure for uncomplicated foreclosures. Pertinent

references are also included. For more detail on

jurisdictional foreclosure practices, see Appendix 19A

in Ch 19.

Alabama: Ala. Code §§ 35-10-12 to 35-10-15.

Alaska: Alaska Stat. §§ 34.20.090 to 34.20.100.

Arizona: Ariz. Rev. Stat. Ann. §§ 33-807 to 33-814. See

Arizona Practice Ch 63 in Part M.

Arkansas: Ark. Code Ann. § 18-50-108; 18-50-116.

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California: Cal. Civ. Code §§ 2924 to 2924h. See

California Practice Ch 64 in Part M.

D.C.: D.C. Code §§ 42-815 to 42-818.

Georgia: Ga. Code Ann. § 9-13-141; 44-14-162 to 162.4;

44-14-48; 44-14-180 to 187.

Idaho: Idaho Code § 6-101; 104; 45-1502 to 45-1506.

Iowa: Iowa Code Ann. § 654.18.

Maine: Me. Rev. Stat. Ann. tit. 14, § 6203-A; 6203-E.

Maryland: Md. Real Prop Code Ann. § 7-105; 7-202.

Massachusetts: Mass. Gen. Laws Ann. ch. 183, §§ 19,

21; ch. 244, §§ 11–15.

Michigan: Mich. Comp. Laws Ann. §§ 451.401 et seq.;

600.2431; 600.3170; 600.3201 et seq.. See Michigan

Practice Ch 70 in Part M.

Minnesota: Minn. Stat. Ann. §§ 580.01 to 580.30;

582.01 et seq.

Mississippi: Miss. Code Ann. § 11-5-111; 15-1-23; 891-55.

Missouri: Mo. Ann. Stat. §§ 443.290 to 443.325.

Montana: Mont. Code Ann. § 25-13-802; 71-1-111; 711-223 to 232; 71-1-311 to 317.

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Nebraska: Neb. Rev. Stat. §§ 76-1001 to 1018.

Nevada: Nev. Rev. Stat. § 107.020; 107.025; 107.080 to

107.100; 40.050; 40.453.

New Hampshire: N.H. Rev. Stat. Ann. §§ 479:22 to

479:27.

North Dakota: N.D. Cent. Code § 35-22-01.

Oklahoma: Okla. Stat. Ann. tit. 46, §§ 40 to 49.

Oregon: Or. Rev. Stat. §§ 86.705 to 86.815.

Rhode Island: R.I. Gen. Laws § 34-11-22; 34-20-4; 3423-1; 34-27-1.

South Dakota: S.D. Codified Laws Ann. §§ 21-48-1 to

21-48-26; 21-48A-1 to 21-48A-5.

Tennessee: Tenn. Code Ann. §§ 35-5-101 to 35-5-112.

Texas: Tex. Prop. Code Ann. § 51.002; 51.003; 51.005.

Utah: Utah Code Ann. §§ 57-1-23 to 57-1-34.

Vermont: Vt. Stat. Ann. tit. 12, §§ 4961 to 4970.

Virginia: Va. Code Ann. §§ 55-59.1 to 55-59.4; 55-61 to

55-66.7.

Washington: Wash. Rev. Code Ann. §§ 61.24.010 to

61.24.130.

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West Virginia: W. Va. Code §§ 38-1-3 to 38-1-12.

Wyoming: Wyo. Stat. §§ 34-4-101 to 34-4-113.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.