Anthony Coleman v. the Bank of New York Mellon ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY COLEMAN, No. 18-16915
Plaintiff-Appellant, D.C. No. 2:16-cv-01339-RFB-GWF
v.
MEMORANDUM*
THE BANK OF NEW YORK MELLON,
FKA Bank of New York, as Trustee for
American Home Mortgage Investment Trust
2004-4 Mortgaged Backed Notes, Series
2004-4; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Anthony Coleman appeals pro se from the district court’s summary
judgment in his action alleging federal and state law claims arising out of
*
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).
foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1153 (9th
Cir. 2009). We affirm.
The district court properly granted summary judgment on Coleman’s state
law claims because Coleman failed to raise a genuine dispute of material fact as to
whether he has standing to challenge the assignments of the deed of trust or
whether MERS’s involvement rendered the assignments improper. See Wood v.
Germann, 331 P.3d 859, 862 (Nev. 2014) (under Nevada law, because “the
homeowner is neither a party to nor an intended beneficiary of the [Pooling and
Servicing Agreement], the homeowner lacks standing to contest the assignment’s
validity”); Edelstein v. Bank of N.Y. Mellon, 286 P.3d 249, 260-61 (Nev. 2012)
(explaining that MERS’s assignment of the deed of trust along with the promissory
note demonstrates valid transfer of both instruments).
Coleman abandoned his claims under the Truth In Lending Act and the Fair
Debt Collection Practices Act by failing to provide any argument regarding these
claims in his opposition to defendants’ motion for summary judgment. See Shakur
v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (claims not raised in opposition to
summary judgment are deemed abandoned).
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
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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Coleman’s motion to withdraw the motion to dismiss (Docket Entry No. 22)
is granted. Accordingly, Coleman’s request for voluntary dismissal of the appeal
(Docket Entry No. 20) is denied as moot.
AFFIRMED.
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