United States District Court, E.D. Washington
LAURA ZAMORA JORDAN, as her separate estate, and on behalf of others similarly situated, Plaintiff,
NATIONSTAR MORTGAGE, LLC, a Delaware limited liability company, Defendant, and FEDERAL HOUSING FINANCE AGENCY, Intervenor.
ORDER DENYING FEDERAL HOUSING FINANCE AGENCY'S
MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL
O. RICE Chief United States District Judge.
THE COURT is the Federal Housing Finance Agency's Motion
for Certification for Interlocutory Appeal Pursuant to 28
U.S.C. § 1292(b). ECF No. 152. This matter was submitted
for consideration without oral argument. The Court has
reviewed the briefing and the record and files herein, and is
challenges Defendant Nationstar Mortgage, LLC's policy of
taking possession of homes in default by entering and
changing locks prior to foreclosure. See ECF No.
1-2. On November 15, 2016, Federal Housing Finance Agency
moved for partial summary judgment, see ECF No. 118,
on the ground that the Housing and Economic Recovery Act of
2008 (“HERA”) preempts RCW 7.28.230, a Washington
state law prohibiting lenders from pre-foreclosure property
possession. On March 9, 2017, this Court issued its Order
Denying FHFA's Motion for Partial Summary Judgment (the
“Order”). ECF No. 147.
now seeks final resolution from the Ninth Circuit on whether
HERA broadly “prohibit[s] the application of Washington
state law to claims involving Enterprise-owned deeds of trust
under any theory of preemption-express, field, or
conflict.” See ECF No. 152 at 7. In its Order,
however, the Court narrowly held that HERA does not preempt
RCW 7.28.230 because (1) 12 U.S.C. § 4617(a)(7) does not
expressly preempt the state statute; (2) Congress left room
for state law compliance with RCW 7.28.230 as it does not
conflict with the FHFA's powers; and (3) there is no
conflict between HERA and RCW 7.28.230. ECF No. 147.
moves the Court to certify an order for interlocutory appeal
on this issue pursuant to 28 U.S.C. § 1292(b). ECF No.
152. For the reasons discussed below, the Court DENIES the
Standard of Review
to 28 U.S.C. § 1292(b), an otherwise non-final order may
be subject to interlocutory appeal if the district court
certifies, in writing, the following: (1) the order involves
a “controlling issue of law, ” (2) the
controlling issue of law is one to which there is a
“substantial ground for difference of opinion, ”
and (3) “an immediate appeal from the order may
materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). The Ninth
Circuit has observed that the “the legislative history
of 1292(b) indicates that this section was to be used only in
exceptional situations in which allowing an
interlocutory appeal would avoid protracted and expensive
litigation.” In re Cement Antitrust Litig.,
673 F.2d 1020, 1026 (9th Cir. 1982) (emphasis added)
the Court declines to certify an order for interlocutory
appeal because, although the first factor is arguably
satisfied, FHFA has not shown a substantial ground for a
difference of opinion or that an immediate appeal may
materially advance the ultimate termination of this action.
Moreover, there are no “exceptional
circumstances” warranting immediate appeal. See
Substantial Ground for Difference of Opinion
is substantial ground for a difference of opinion when
“reasonable judges might differ.” Reese v. BP
Exploration (Alaska), Inc., 643 F.3d 681, 688 (9th Cir.
2011) (citing In re Cement, 673 F.2d at 1029).
However, a movant's “strong disagreement with the
Court's ruling is not sufficient for there to be a
substantial ground for difference.” Couch v.
Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010)
(internal quotation marks omitted). “[T]he mere
presence of a disputed issue that is a question of first
impression, standing alone, is insufficient to demonstrate a
substantial ground for difference of opinion.”
Id. (internal quotation marks and citations
omitted). Importantly, “interlocutory appellate
jurisdiction does not turn on a prior court's having
reached a conclusion adverse to that from which appellants
seek relief.” Reese, 643 F.3d at 688.
preliminary matter, FHFA mischaracterizes the issue as
“whether HERA protects FHFA from any state law
that infringes upon the exercise of its rights, powers, and
privileges, . . . or whether it protects FHFA only from
infringements by state agencies, as the Court held.”
ECF No. 152 at 5 (emphasis added). FHFA's portrayal is
inaccurate. The issue is narrowly confined to whether HERA
preempts RCW 7.28.230, specifically. See ECF No. 147
at 2. Likewise, the Court did not hold that HERA
“protects FHFA only from infringements by state
agencies.” See ECF No. 147 (merely finding,
inter alia, that “12 U.S.C. § 4617(a)(7)
does not evince a clear and manifest congressional intent to
expressly preempt state law” and “Congress left
room in HERA for state law compliance, provided that such
laws do not conflict with FHFA's power[s]”).
maintains that HERA preempts RCW 7.28.230 and there are
actual and substantial grounds for a difference of opinion.
The Court disagrees. FHFA argues that City of
Chicago is a decision concerning an
“identical” issue, see ECF No. 152 at 9,
despite that it concerns FHFA's refusal to comply with a
local building ordinance (rather than impairing real property
rights). Fed. Hous. Fin. Agency v. City of Chicago,
962 F.Supp.2d 1044 (N.D. Ill. 2013). This Court
comprehensibly explained why the facts in City of
Chicago are distinguishable and the district court's
reasoning was unpersuasive. Id.; see also
ECF No. 147 at 15-22. FHFA next argues that a smattering of
other cases are in “significant tension” with the
Court's decision, but each is unpersuasive for many of
the same reasons the Court previously articulated in its
Order. See ECF No. 147 at 11 (renouncing dicta in
Robinson v. FHFA, No. 7:15-cv-109-KKC, 2016 WL
4726555, at *6 (E.D. Ky. 2016), appeal docketed, No. 16-6680
(6th Cir. ...