NEW PENN FINANCIAL, LLC, DBA Shellpoint Mortgage Servicing v. Ricardo Fojas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEW PENN FINANCIAL, LLC, DBA
Shellpoint Mortgage Servicing; FEDERAL
HOME LOAN MORTGAGE
CORPORATION,
Plaintiffs-Appellees,
v.
RICARDO FOJAS,
Defendant-Appellant,
and
RIVERWALK RANCH MASTER
HOMEOWNERS ASSOCIATION,
Defendant.
No. 21-16812
D.C. No. 2:17-cv-02167-APG-VCF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted August 15, 2023**
Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.
* 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).
FILED
AUG 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-16812
Ricardo Fojas appeals pro se from the district court’s summary judgment in
favor of the Federal Home Loan Mortgage Corporation (“Freddie Mac”) and New
Penn Financial, LLC in their action seeking to quiet title and for a declaratory
judgment following a homeowners association (“HOA”) foreclosure sale. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Fed. Home Loan
Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1144 (9th Cir. 2018). We
affirm.
The district court properly granted summary judgment because the record
shows that Freddie Mac preserved its deed of trust by tendering payment on the
superpriority portion of the unpaid HOA dues. See Bank of Am., N.A. v. Arlington
W. Twilight Homeowners Ass’n, 920 F.3d 620, 623 (9th Cir. 2019) (“The full
superpriority amount consists of nine months of unpaid HOA dues and any unpaid
charges for maintenance and nuisance abatement.”); Bank of Am., N.A. v. SFR Invs.
Pool 1, LLC, 427 P.3d 113, 116, 119-21 (Nev. 2018) (en banc) (explaining that “a
first deed of trust holder’s unconditional tender of the superpriority amount due
results in the buyer at foreclosure taking the property subject to the deed of trust,”
that recording of the tender is not required, and that a party’s status as a bona fide
purchaser “is irrelevant when a defect in the foreclosure proceeding renders the
sale void”). Fojas’s reliance on Shadow Wood HOA v. N.Y. Cmty. Bancorp, 366
P.3d 1105 (Nev. 2016), is misplaced.

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3 21-16812
The district did not abuse its discretion by denying Fojas’s request for
additional discovery under Federal Rule of Civil Procedure 56(d) because Fojas
failed to specify the discovery he sought or show that it was essential to oppose
summary judgment. See Fed. R. Civ. P. 56(d); Midbrook Flowerbulbs Holland
B.V. v. Holland Am. Bulb Farms, Inc., 874 F.3d 604, 612, 619-20 (9th Cir. 2017)
(setting forth standard of review and explaining that to prevail on a Rule 56(d)
request, a party must state the specific facts it seeks in further discovery, and show
that such facts exist and are “essential to oppose summary judgment” (citation and
internal quotation marks omitted)).
We reject as without merit Fojas’s contentions that the district court was
required to weigh the equities or allow Fojas to cross-examine declarant Meyer.
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).
AFFIRMED.

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