U.S. Bank, N.A. v. Terence Edwards

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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

U.S. BANK, N.A., as trustee for Greenpoint No. 18-35903 Mortgage Funding Trust Mortgage Pass- Through Certificates, Series 2006-AR4, D.C. No. 3:16-cv-01307-AC

Plaintiff-counter- defendant-Appellee, MEMORANDUM*

TERENCE EDWARDS,

Defendant-counter-claimant- Appellant,

and WEST COAST SERVICING, INC.; et al.,

Defendants, v.

ROBINSON TAIT PS; CRAIG PETERSON,

Counter-defendants.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Submitted September 18, 2019** Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

Terence Edwards appeals pro se from the district court’s summary judgment in U.S. Bank, N.A.’s foreclosure action arising out of judicial foreclosure proceedings. Edwards also filed a countercomplaint alleging federal and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Berezovsky v. Moniz, 869 F.3d 923, 927 (9th Cir. 2017). We affirm.

The district court properly granted summary judgment because Edwards failed to raise a genuine dispute of material fact to whether he offered a valid tender of his obligation under the loan. See Or. Rev. Stat. § 81.010; Crane v. Mabry, 802 P.2d 696, 699-700 (Or. Ct. App. 1990) (explaining that § 81.010 was not intended to supersede the common law requirement that the person making the written tender have the present ability to make the tender good).

We do not consider Edward’s counterclaims based on alleged improper assignments because Edwards was provided with leave to amend these claims but failed to replead them in his operative countercomplaint. See Lacey v. Maricopa County, 693 F.3d 896, 925 (9th Cir. 2012) (claims dismissed with leave to amend

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 18-35903 are waived if not repled).

We reject as without merit U.S. Bank’s contention that this court lacks jurisdiction over this appeal because prior to summary judgment all of the remaining counter-defendants had been dismissed or had a default judgment entered against them.

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

Footnotes

[3] 18-35903