Pensco Trust Company v. Lorina Delfierro ( 2018 )

NOT FOR PUBLICATION FILED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
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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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