UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ CHARLES C. WALDO and ETHANNE S. WALDO, Plaintiffs-Appellants, v. No. 12-4017 OCWEN LOAN SERVICING, LLC, Defendant-Appellee. (D.C. No. 2:10-CV-00928-CW) (D. Utah)

___________________ _________________ ORDER AND JUDGMENT *

___________________ _________________ Before MURPHY , BALDOCK , and HARTZ , Circuit Judges. **

___________________ _________________ Plaintiffs Charles and Ethanne Waldo lo st their house to fo reclosure in 2009. Since 2006, they have sought to challenge the validity of the foreclos ure in at least four separate legal proceedings against Defendant, Ocwen Loan Servicing, LLC. Plaintiffs filed two cases against Defendant in Utah st ate court. The state court granted summary judgment against Plaintiff in the first case and dismissed th e second for failure to state a claim. Plaintiff then challenged the mort gage interest again in federal bankruptcy proceedings, responding to Defe ndant’s proof of claim by alle ging Defendant engaged in

* This order and judgment is not binding precedent ex cept under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a )(2) and 10th Cir. R. 34.1 (G). The case is therefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### May 18, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - misrepresentation, deception, and fraud. The bankruptcy court granted Defendant summary judgment on th is claim. Finally, Plaintiffs filed this pro se suit in federal district court, alleging viola tion of the Fair Debt Collecti on Practices Act, wire fraud in violation of 18 U.S.C. § 1343, and causes of action for “irreparable harm” and “emotional distress.” The district court adopted the magistrate judge’s report and recommendation granting Defendant’s motion to dismiss on the ba sis of claim preclusion. The court held Plaintiffs’ claims in this case could have been litigated in th e federal bankruptcy action. The district court did not addr ess Plaintiffs’ claims on the me rits. Along with granting the motion to dismiss, the district court imposed filing re strictions on Plaintiffs because they had “engaged in a long and abusive patter n of wasting a great de al of court time and resources.” Plaintiffs, still proceeding pro se , appealed. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. Plaintiffs do not appeal the district court’ s claim preclusion holdi ng. Instead, they reassert their allegations of fraud and ra ise the new argument th at Defendant lacked “standing” to foreclose on thei r property. Unsurprisingly, Defendant argues we should affirm based on claim preclusion. In their repl y brief, Plaintiffs assert the district court’s claim preclusion holding “was wrong,” but th ey do not explain wh y. They merely reassert their argument that Defendant has committed a “fraud on the court.” As a general rule, “a federal appellate c ourt does not consider an issue not passed upon below.” Singlet on v. Wulff, 428 U.S. 106, 120 (19 76). We do have discretion, however, to reach issues that were raised in the district cour t, but not ruled upon,- 3 - particularly where “the proper resolution is beyond any doubt” or where “injustice might otherwise result.” Id. at 121. For example, we have addressed a “purely legal question” that was “implicitly ruled upon by the district court.” Trie rweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1538 (10th Cir. 1996). Here, we must decide whether any issues are properly before us. Although we construe pro se filings liber ally, Erickson v. Pardus, 551 U.S. 89, 94 (2007 ), “the court should not assu me the role of advocate.” Letbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10t h Cir. 2003) (quoting Northington v. Jackso n, 973 F.2d 1518, 1521 (10th Cir. 2003)). We decline to address Plaintiffs’ merits argu ments in this appeal. First, they never raised their argument about Defendant’s standing to foreclose in the district court. They therefore waived that argument. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009) (“Absent extraordinary circ umstances, we will not consider arguments raised for the first time on appeal.”). Se cond, we will not address Plaintiffs’ fraud arguments because the district c ourt did not rule on this issu e. Unlike in Trierweiler, the district court did not “implicitly” rule on the me rits. Its ruling rested on claim preclusion, which is entirely distinct from the merits. Even if Plaintiffs were to prevail on the merits, the dismissal of their claims would be permissible on th e independent basis of claim preclusion. Nor will we review the district court’s claim preclusion hold ing for the simple reason that Plaintiffs did not raise that is sue on appeal. Construi ng Plaintiffs’ opening brief as liberally as possible, we cannot fi nd one reference to cl aim preclusion or res judicata. Even a pro se party waives an appeal where it does not challenge a district- 4 - court’s ruling. See Phillips v. Humble, 587 F.3d 1267, 1274 (10th Cir. 2009) (where a pro se party did not “raise and argue any explicit challe nge” to the district court dismissing certain claims, we did not reach the issue). If Plaintiffs believed the district court’s claim preclusion holding “was wrong,” Ap lt.’s Reply at 1, they could have raised the issue in their opening brief. Instead, they chose to forego that opportunity. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are waived.”). Accordingly, the judgment of the district court is
AFFIRMED. Entered for the Court,

Bobby R. Baldock United States Circuit Judge