Waldo v. Ocwen Loan Services, 10th Cir. (2012)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
___________________________________
CHARLES C. WALDO and ETHANNE
S. WALDO,
May 18, 2012

Elisabeth A. Shumaker
Clerk of Court
Plaintiffs-Appellants,
v.
No. 12-4017
OCWEN LOAN SERVICING, LLC,
(D.C. No. 2:10-CV-00928-CW)

(D. Utah)
Defendant-Appellee.
____________________________________
ORDER AND JUDGMENT*
____________________________________
Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.**
____________________________________
Plaintiffs Charles and Ethanne Waldo lost their house to foreclosure in 2009.
Since 2006, they have sought to challenge the validity of the foreclosure in at least four
separate legal proceedings against Defendant, Ocwen Loan Servicing, LLC. Plaintiffs
filed two cases against Defendant in Utah state court. The state court granted summary
judgment against Plaintiff in the first case and dismissed the second for failure to state a
claim.
Plaintiff then challenged the mortgage interest again in federal bankruptcy
proceedings, responding to Defendants proof of claim by alleging Defendant engaged in

*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining appellants brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
misrepresentation, deception, and fraud.
The bankruptcy court granted Defendant
summary judgment on this claim. Finally, Plaintiffs filed this pro se suit in federal
district court, alleging violation of the Fair Debt Collection Practices Act, wire fraud in
violation of 18 U.S.C. 1343, and causes of action for irreparable harm and emotional
distress. The district court adopted the magistrate judges report and recommendation
granting Defendants motion to dismiss on the basis of claim preclusion. The court held
Plaintiffs claims in this case could have been litigated in the federal bankruptcy action.
The district court did not address Plaintiffs claims on the merits. Along with granting
the motion to dismiss, the district court imposed filing restrictions on Plaintiffs because
they had engaged in a long and abusive pattern of wasting a great deal of court time and
resources. Plaintiffs, still proceeding pro se, appealed. Exercising jurisdiction pursuant
to 28 U.S.C. 1291, we affirm.
I.
Plaintiffs do not appeal the district courts claim preclusion holding. Instead, they
reassert their allegations of fraud and raise the new argument that Defendant lacked
standing to foreclose on their property. Unsurprisingly, Defendant argues we should
affirm based on claim preclusion. In their reply brief, Plaintiffs assert the district courts
claim preclusion holding was wrong, but they do not explain why. They merely
reassert their argument that Defendant has committed a fraud on the court.
As a general rule, a federal appellate court does not consider an issue not passed
upon below. Singleton v. Wulff, 428 U.S. 106, 120 (1976). We do have discretion,
however, to reach issues that were raised in the district court, but not ruled upon,
-2-
particularly where the proper resolution is beyond any doubt or where injustice might
otherwise result. Id. at 121. For example, we have addressed a purely legal question
that was implicitly ruled upon by the district court. Trierweiler v. Croxton & Trench
Holding Corp., 90 F.3d 1523, 1538 (10th Cir. 1996). Here, we must decide whether any
issues are properly before us. Although we construe pro se filings liberally, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), the court should not assume the role of advocate.
Letbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003) (quoting
Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 2003)).
We decline to address Plaintiffs merits arguments in this appeal. First, they never
raised their argument about Defendants standing to foreclose in the district court. They
therefore waived that argument. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143
(10th Cir. 2009) (Absent extraordinary circumstances, we will not consider arguments
raised for the first time on appeal.). Second, we will not address Plaintiffs fraud
arguments because the district court did not rule on this issue. Unlike in Trierweiler, the
district court did not implicitly rule on the merits. Its ruling rested on claim preclusion,
which is entirely distinct from the merits. Even if Plaintiffs were to prevail on the merits,
the dismissal of their claims would be permissible on the independent basis of claim
preclusion.
Nor will we review the district courts claim preclusion holding for the simple
reason that Plaintiffs did not raise that issue on appeal. Construing Plaintiffs opening
brief as liberally as possible, we cannot find one reference to claim preclusion or res
judicata. Even a pro se party waives an appeal where it does not challenge a district
-3-
courts ruling. See Phillips v. Humble, 587 F.3d 1267, 1274 (10th Cir. 2009) (where a
pro se party did not raise and argue any explicit challenge to the district court
dismissing certain claims, we did not reach the issue). If Plaintiffs believed the district
courts claim preclusion holding was wrong, Aplt.s Reply at 1, they could have raised
the issue in their opening brief. Instead, they chose to forego that opportunity. See Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (Arguments inadequately
briefed in the opening brief are waived.). Accordingly, the judgment of the district court
is
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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Waldo v. Ocwen Loan Services, 10th Cir. (2012)

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FILED

United States Court of Appeals

May 18, 2012

OCWEN LOAN SERVICING, LLC,

(D.C. No. 2:10-CV-00928-CW)

Plaintiff then challenged the mortgage interest again in federal bankruptcy

proceedings, responding to Defendants proof of claim by alleging Defendant engaged in

misrepresentation, deception, and fraud.

The bankruptcy court granted Defendant

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