Kevin Gilmore v. Wells Fargo Bank, Na , 693 F. App'x 679 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN E. GILMORE, No. 15-17395
Plaintiff-Appellant, D.C. No. 4:14-cv-02389-CW
v.
MEMORANDUM*
WELLS FARGO BANK, NA; NDEX
WEST, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Submitted July 11, 2017**
Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.
Kevin E. Gilmore appeals pro se from the district court’s summary judgment
and dismissal order in his diversity action arising from foreclosure proceedings.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Living
*
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).
Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 360 (9th Cir. 2005).
We affirm.
The district court properly granted summary judgment on Gilmore’s claim
under the California Homeowner’s Bill of Rights statute because Gilmore failed to
raise a genuine dispute of material fact as to whether his property was “owner-
occupied” and his loan modification application was complete. See Cal. Civ. Code
§ 2923.6(c) (a mortgage servicer may not record a notice of default or notice of
sale while a complete first lien loan modification application is pending); id.
§ 2924.15 (limiting application of section 2923.6 to residential property that is
“owner-occupied”); see also Valbuena v. Ocwen Loan Servicing, LLC, 237 188
Cal. Rptr. 3d 668, 671 (Ct. App. 2015) (discussing elements of a statutory violation
of the California Homeowner’s Bill of Rights).
The district court properly dismissed as time-barred Gilmore’s fraud claim
relating to insurance premiums because Gilmore filed this action after the
applicable statute of limitations had run. See Cal. Civ. Proc. Code § 338(d) (fraud
claims subject to three-year statute of limitations).
We reject as without merit Gilmore’s contention that the district court
violated his First Amendment rights by resolving Wells Fargo’s motions on the
briefs. See Fed. R. Civ. P. 78(b) (“By rule or order, the court may provide for
submitting and determining motions on briefs, without oral hearings.”).
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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 do not consider documents not filed with the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
Gilmore’s request for a refund of his payment of insurance premiums, set
forth in his opening brief, is denied.
AFFIRMED.
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