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 lost their house to foreclosure in 2009. 

Since 2006, they have sought to challenge the validity of the foreclosure in at least four 

separate legal proceedings against Defendant, Ocwen Loan Servicing, LLC. Plaintiffs 

filed two cases against Defendant in Utah state court. The state court granted summary 

judgment against Plaintiff in the first case and dismissed the second for failure to state a 

claim. Plaintiff then challenged the mortgage interest again in federal bankruptcy 

proceedings, responding to Defendant’s proof of claim by alleging Defendant engaged in 

 * This order and judgment is not binding precedent except under the doctrines 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 would not materially assist 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
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misrepresentation, deception, and fraud. The bankruptcy court granted Defendant 

summary judgment on this claim. Finally, Plaintiffs filed this pro se suit in federal 

district court, alleging violation of the Fair Debt Collection 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 basis of claim preclusion. The court held 

Plaintiffs’ claims in this case could have been litigated in the federal bankruptcy action. 

The district court did not address Plaintiffs’ claims on the merits. Along with granting 

the motion to dismiss, the district court imposed filing restrictions on Plaintiffs because 

they had “engaged in a long and abusive pattern of wasting a great deal 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 holding. Instead, they 

reassert their allegations of fraud and raise the new argument that Defendant lacked 

“standing” to foreclose on their property. Unsurprisingly, Defendant argues we should 

affirm based on claim preclusion. In their reply brief, Plaintiffs assert the district court’s 

claim preclusion holding “was wrong,” but they do not explain why. They merely 

reassert their argument that Defendant has committed a “fraud on the court.” 

As a general rule, “a federal appellate court does not consider an issue not passed 

upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). We do have discretion, 

however, to reach issues that were raised in the district court, but not ruled upon, 
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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.” Trierweiler 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 liberally, Erickson v. 

Pardus, 551 U.S. 89, 94 (2007), “the court should not assume the role of advocate.” 

Letbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003) (quoting 

Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 2003)). 

We decline to address Plaintiffs’ merits arguments 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 circumstances, we will not consider arguments 

raised for the first time on appeal.”). Second, we will not address Plaintiffs’ fraud 

arguments because the district court did not rule on this issue. Unlike in Trierweiler, the 

district court did not “implicitly” rule on the merits. 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 the independent basis of claim 

preclusion. 

Nor will we review the district court’s claim preclusion holding for the simple 

reason that Plaintiffs did not raise that issue on appeal. Construing Plaintiffs’ opening 

brief as liberally as possible, we cannot find one reference to claim preclusion or res 

judicata. Even a pro se party waives an appeal where it does not challenge a district 
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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 challenge” 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,” Aplt.’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