Bank of New York Mellon v. Christine Stabenow

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BANK OF NEW YORK MELLON, FKA No. 19-35108 Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc, CHL D.C. No. 3:16-cv-01590-MO Mortgage Pass-Through Trust 2007-15 Mortgage Pass-Through Certificates, Series 2007-15, MEMORANDUM*

Plaintiff-counter- defendant-Appellee,

v.

CHRISTINE M. STABENOW; JOHN F. STABENOW,

Defendants-counter- claimants-Appellants,

BANK OF AMERICA, NA, AKA Bank of America Loan Servicing, LP, AKA Countrywide Financial Corporation, AKA Countrywide Home Loans, Inc.,

Counter-defendant- Appellee,

and

NEW PENN FINANCIAL, DBA Shellpoint Mortgage Servicing,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Counter-defendant.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Submitted July 14, 2020**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

Defendants Christine M. Stabenow and John F. Stabenow appeal pro se from

the district court’s judgment of foreclosure following a bench trial. We have

jurisdiction under 28 U.S.C. § 1291. We review for clear error the district court’s

findings of fact following a bench trial. Allen v. Iranon, 283 F.3d 1070, 1076 (9th

Cir. 2002). We affirm.

The district court did not commit clear error in finding that plaintiff had

possession of the promissory note secured by a deed of trust on defendants’

property when plaintiff filed for foreclosure. See Allen, 283 F.3d at 1076

(explaining that the clear error standard is significantly deferential, and that this

court would “accept the lower court’s findings of fact” unless this court is left with

a “definite and firm conviction that a mistake has been committed”); see also Or.

Rev. Stat. § 73.0301 (a person entitled to enforce an instrument includes the

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 19-35108 “holder of the instrument”); Or. Rev. Stat. § 71.2010(2)(u)(A) (a “[h]older” is a

“person in possession of a negotiable instrument . . . .”); Inv. Serv. Co. v. Martin

Bros. Container & Timber Prod. Corp., 465 P.2d 868, 869 (Or. 1970) (noting that

the plaintiff became the holder when it “received” the negotiable instrument).

We reject as unsupported by the record defendants’ contention that the

district court did not grant their motion to strike testimony regarding the bailee

letter.

The district court did not abuse its discretion in overruling defendants’

hearsay objection. See United States v. Whittemore, 776 F.3d 1074, 1082 (9th Cir.

2015) (“[P]ersonal knowledge includes opinions and inferences grounded in

observations and experience.” (citation omitted)); United States v. Kirk, 844 F.2d

660, 663 (9th Cir. 1988) (standard of review).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 19-35108