Pensco Trust Company v. Lorina Delfierro

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2018
• Docket: 17-35644
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PENSCO TRUST COMPANY, FBO Jeffrey No. 17-35644 D. Hermann, IRA Account Number 20005343, D.C. No. 2:16-cv-01926-RSM

Plaintiff-Appellee, MEMORANDUM* v.

LORINA DELFIERRO,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, Chief Judge, Presiding

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Lorina Delfierro appeals pro se from the district court’s summary judgment

in this diversity action stemming from judicial foreclosure proceedings. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo cross-motions for

* 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). summary judgment. Guatay Christian Fellowship v. County of San Diego, 670

F.3d 957, 970 (9th Cir. 2011). We affirm.

The district court properly granted summary judgment for PENSCO Trust

Company, FBO Jeffrey D. Hermann, IRA Account Number 20005343

(“PENSCO”) because Delfierro failed to raise a genuine dispute of material fact as

to whether PENSCO was not entitled to seek judicial foreclosure. See Wash. Rev.

Code 61.12.040 (requirements for judicial foreclosure); Deustche Bank Nat. Trust

Co. v. Slotke, 367 P.3d 600, 604 (Wash. App. 2016) (“[I]t is the holder of the note

who is entitled to enforce it.”).

The district court properly dismissed Delfierro’s counterclaims as barred by

the doctrine of res judicata because Delfierro’s counterclaims were raised, or could

have been raised, in Delfierro’s prior action between the same parties that resulted

in a final judgment on the merits. See Holcombe v. Hosmer, 477 F.3d 1094, 1097

(9th Cir. 2007) (setting forth standard of review and stating that federal courts must

apply state law regarding res judicata to state court judgments); Kelly-Hansen v.

Kelly-Hansen, 941 P.2d 1108, 1112 (Wash. App. 1997) (doctrine of res judicata

bars litigation of claims that could have been raised in the prior action).

The district court did not abuse its discretion by striking Delfierro’s untimely

2 17-35644 response to PENSCO’s motion to dismiss her counterclaims. See Bias v.

Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007) (setting forth standard of review

and explaining that “[b]road deference is given to a district court’s interpretation of

its local rules”).

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).

We reject as meritless Delfierro’s contention that the re-recorded

instruments create a new cause of action.

AFFIRMED.

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