BANK OF NEW YORK MELLON AS TRUSTEE FOR BENEFIT OF CERTIFICATE HOLDERS OF CWABS INC ASSET BACKED CERTIFICATES SERIES 2007 SD1 v. SMITH 50 (2019)
United States Court of Appeals, Ninth Circuit.
The BANK OF NEW YORK MELLON, fka The Bank of New York, AS TRUSTEE FOR the BENEFIT OF the CERTIFICATE HOLDERS OF the CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2007-SD1, Plaintiff-Appellant, v. Karen D. SMITH, an individual; Does 1-50, All other persons, parties or occupants unknown claiming any legal or equitable right, title, estate, lien or interest in the real property described in the complaint herein, inclusive, Defendants-Appellees.
Decided: October 28, 2019
Before: CLIFTON and IKUTA, Circuit Judges, and RAKOFF,** District Judge.
Roxana V. Muro, Attorney, Law Offices of Roxana V. Muro, Los Angeles, CA, for Petitioner Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Jeffery R. Leist, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent
The Bank of New York Mellon (BONY) appeals from an order dismissing its foreclosure action with prejudice. We have jurisdiction under 28 U.S.C. § 1291.
The district court did not err in concluding that the statute of limitations ran before BONY filed its action. We reject BONY’s argument that it was entitled to additional tolling of 120 days (30 days after service of notices of default for the four non-judicial foreclosure proceedings) because BONY did not raise this argument below, and it is contrary to the tolling calculations BONY provided to the district court. We therefore decline to address the issue on appeal. Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985).1 On appeal, BONY does not “specifically and distinctly” challenge the district court’s holding that tolling ceased on the dates fixed for each trustee’s sale, so any argument to the contrary is waived. United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).
1. Even if we reached this issue, the record shows that BONY served only two notices of default, one of which did not toll the relevant statute of limitations because it was served before the relevant statute of limitations began to run, and was used to notice a trustee’s sale that was neither held nor continued. And even if we gave BONY credit for additional tolling based on the other notice of default, the statute of limitations would have run.
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