New Penn Financial, LLC v. Ricardo Fojas

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 18, 2023
• Docket: 21-16812
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NEW PENN FINANCIAL, LLC, DBA No. 21-16812 Shellpoint Mortgage Servicing; FEDERAL HOME LOAN MORTGAGE D.C. No. 2:17-cv-02167-APG-VCF CORPORATION,

Plaintiffs-Appellees, MEMORANDUM*

v.

RICARDO FOJAS,

Defendant-Appellant,

and

RIVERWALK RANCH MASTER HOMEOWNERS ASSOCIATION,

Defendant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted August 15, 2023**

Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Ricardo Fojas appeals pro se from the district court’s summary judgment in

favor of the Federal Home Loan Mortgage Corporation (“Freddie Mac”) and New

Penn Financial, LLC in their action seeking to quiet title and for a declaratory

judgment following a homeowners association (“HOA”) foreclosure sale. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Fed. Home Loan

Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1144 (9th Cir. 2018). We

affirm.

The district court properly granted summary judgment because the record

shows that Freddie Mac preserved its deed of trust by tendering payment on the

superpriority portion of the unpaid HOA dues. See Bank of Am., N.A. v. Arlington

W. Twilight Homeowners Ass’n, 920 F.3d 620, 623 (9th Cir. 2019) (“The full

superpriority amount consists of nine months of unpaid HOA dues and any unpaid

charges for maintenance and nuisance abatement.”); Bank of Am., N.A. v. SFR Invs.

Pool 1, LLC, 427 P.3d 113, 116, 119-21 (Nev. 2018) (en banc) (explaining that “a

first deed of trust holder’s unconditional tender of the superpriority amount due

results in the buyer at foreclosure taking the property subject to the deed of trust,”

that recording of the tender is not required, and that a party’s status as a bona fide

purchaser “is irrelevant when a defect in the foreclosure proceeding renders the

sale void”). Fojas’s reliance on Shadow Wood HOA v. N.Y. Cmty. Bancorp, 366

P.3d 1105 (Nev. 2016), is misplaced.

2 21-16812 The district did not abuse its discretion by denying Fojas’s request for

additional discovery under Federal Rule of Civil Procedure 56(d) because Fojas

failed to specify the discovery he sought or show that it was essential to oppose

summary judgment. See Fed. R. Civ. P. 56(d); Midbrook Flowerbulbs Holland

B.V. v. Holland Am. Bulb Farms, Inc., 874 F.3d 604, 612, 619-20 (9th Cir. 2017)

(setting forth standard of review and explaining that to prevail on a Rule 56(d)

request, a party must state the specific facts it seeks in further discovery, and show

that such facts exist and are “essential to oppose summary judgment” (citation and

internal quotation marks omitted)).

We reject as without merit Fojas’s contentions that the district court was

required to weigh the equities or allow Fojas to cross-examine declarant Meyer.

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.

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