UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MARK D. NIEDERQUELL; JUDITH A. NIEDERQUELL, Plaintiffs - Appellants,

v. BANK OF AMERICA N.A.; THE BANK OF NEW YORK MELLON; PEGGY J. KERN; GREEN TREE SERVICING, LLC, Defendants - Appellees. No. 16-1107 (D.C. No. 1:11-CV-03185-RM-MJW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , McKAY , and MORITZ , Circuit Judges.

________________ _________________ In 2005, Plaintiffs obtained a loan fro m Countrywide Home Loans, Inc., to refinance their mortgage. The loan was secu red by a deed of trust and evidenced by a promissory note indorsed in bl ank. Plaintiffs made regular loan payments until 2009 when they defaulted. In 20 11, Bank of New York Mellon asse rted that it was the holder

* After examining the briefs and appella te record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value c onsistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 6, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - of the promissory note, and therefore entitled to foreclose on the property, and commenced foreclosure procee dings by filing a Notice of El ection and Demand for Sale by Public Trustee with the Rio Grande County Public Trustee. The bank then filed in state court a Rule 120 motion under Colorado Rule of Civil Procedure for an order authorizing sale. Attached were copies of th e promissory note and the deed of trust. Plaintiffs did not oppose the Rule 120 moti on, which was subsequently granted. For whatever reason, the property was not sold. Instead, two years later Bank of New York Mellon sought voluntary dismissal of the order authorizing sale. But before the order was dismissed, Plai ntiffs commenced a separate action in state court against Bank of New York Mellon and Bank of America, the loan servicer, seeking (1) a declaratory judgment stating that the Rule 120 order authorizing sale was void because the Bank of New York Mellon di d not have standing to invoke the sale provision of the deed of trust and (2) a decl aration that neither Bank of America nor Bank of New York Mellon holds a valid lien agains t the property. Defendants removed the matter to federal court. A fe w months later, Plaintiffs ame nded their complaint, adding the county public trustee as a defendant, as well as a new cl aim against Bank of America under the federal Fair Debt Collec tion Practices Act, 15 U.S.C. § 1692 et seq . A few months after that, servicing on the loan transferred from Bank of America to Ditech (formerly Green Tree Servicing), and Plainti ffs filed a second amended complaint to add Ditech as a defendant. After limited discovery, Defendants moved for summary judgment. Copies of the promissory note and deed of trust were atta ched as exhibits. The motions were fully- 3 - briefed by May 2015. In Nove mber 2015, Ditech’s counsel notified Plaintiffs that the original promissory note had been obtained. A month later, Defe ndants filed a joint motion to supplement their moti ons for summary judgment to add the original promissory note as an exhibit. Plaintiffs objected to the motion to supplement , and the court set a hearing on this motion as well as th e pending motions for summary judgment. At the hearing, the district court gr anted the motion to supplement after it inspected the promissory note and deed of trust. The presiding judge explained: “I have no doubt and so find that these documents that have been give n to me . . . are, in fact, original documents.” (Appellants’ App. at 444.) Plaintiffs request ed an opportunity to “submit that original, that docum ent to forensic analysis,” ( id . at 453), which the judge denied because he found “that there is not hing about that note that raises even a suspicion,” ( id . at 455). As the judge pointed out, “[ A]ll that exists, contrary to that finding [of authenticity], is some potential speculation th at some forensic person somewhere might find something ab out that note that . . . coul d lead a reasonable jury to conclude that there is a que stion with regard to the originality of the note.” ( Id. at 468.) The judge then held that permitting Defend ants to supplement th e record on summary judgment was not “unduly prejudicial” to Plaintiffs and granted the motion to supplement. ( Id. at 443.) Next, the judge turned to the pending mo tions for summary judgment, which he granted after whittling down the complaint claim-by-claim. Th e judge dismissed first, to no objection, Plaintiffs’ claims against the pu blic trustee. Ditto the claim to void the- 4 - Rule 120 order sale. He granted Ditech’s summary-judgment motion after Plaintiffs had conceded that “[t]here is no direct claim against [Ditech 

### ] .” ( Id. at 452.) The judge then
denied Plaintiffs’ claim that neither bank held a valid lie n against the property because (1) “[Bank of America] never asserted a lien” ( id. at 461) and (2) Bank of New York Mellon was “in possession of the original note,” ( id. at 468). Finally, the FDCPA claims were dismissed because, the district court held , the two banks were “not a debt collector within the meaning of the Fair Debt Collecti on Practices Act” as th ey had “obtained the loan prior to its default.” ( Id. at 466). Plaintiffs timely appealed. “We review de novo a district court’s gr ant of summary judgment and must view the factual record and make reasonable infere nces therefrom in the light most favorable to the party opposing summary judgment.” Bird v. W. Valley City , 832 F.3d 1188, 1199 (10th Cir. 2016) (internal quot ation marks omitted). “We will uphold the district court’s grant of summary judgment only if there is no genuine dispute as to any material fact and the movant is entitled to judgm ent as a matter of law.” Id . (internal quotation marks omitted). “[I]f the nonmovant bears the burde n of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmova nt cannot identify specific facts that would create a genuine issue.” Patel v. Hall , 849 F.3d 970, 978 (10th Cir. 2017). “Importantly, in opposing a motion fo r summary judgment, the non-moving party cannot rest on ignorance of facts, on speculation, or on suspicion.” Bird , 832 F.3d at 1199 (internal quotation marks omitted).- 5 - We review a district court’s evidentiary rulings for abuse of discretion at the summary judgment stage, Jones v. Barnhart , 349 F.3d 1260, 1270 (10th Cir. 2003), which means that we “will not re verse if the district court’s ruling falls within the bounds of permissible choice in the circumstances and is not arbitrary, capricious or whimsical,” United States v. Willis , 826 F.3d 1265, 1270 (10th Cir. 20 16) (internal quotation marks omitted). At this point, it might be mo re helpful to list what was not appealed than what was. Plaintiffs do not appeal the dismissal of their claims against the public trustee or dismissal of their claim to void the Rule 120 order sale. Plaintiffs do not argue that the district court erred in granting summary judgm ent in favor of Ditech or on their FDCPA claims, at least in their Opening Brief, and “t he omission of an issue in an opening brief generally forfeits appellate consideration of that issue,” Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007); see also Reedy v. Werholtz , 660 F.3d 1270, 1274 (10th Cir. 2011) (“The general rule in this circuit is th at a party waives issues and arguments raised for the first time in a reply brief.” (bracket s omitted)). That leaves one legal issue: whether Bank of New York Mellon holds a valid lien against the property, i.e., whether the bank holds the promissory note. In moving for summary judgment, Defendants put forward evidence tending to show that Bank of New York Mellon was the holder of the promissory note. First, Bank of America’s corporate representative testif ied that Bank of America had possession of the promissory note as custodian for Bank of New York Mellon wh ile it serviced the loan. Second, Bank of America testified that it transferred th e promissory note to Ditech- 6 - when loan servicing transferred. Third, counsel for Ditech produced the original promissory note in open court and attested , under oath, that Ditech held the note on behalf of Bank of Ne w York Mellon. In response to Defendants ’ motions for summary judgme nt, Plaintiffs failed to establish a genuine dispute as to whether Ba nk of New York Mellon was the holder of the note. Plaintiffs maintain that they “proffered evidence to pr ove . . . that neither [Bank of
New York Mellon 

### ] nor [Bank of America] are holders of the Note[] in the only way possible—a demand to produce the original Note and a failure on the part of the Defendants or their agents to do so.” (Appe llants’ Opening Br. at 15.) Plaintiffs are referring to discovery request number 1, whic h requested that Defendants “Produce the original Promissory Note si gned by [Plaintiffs].” (Appellant s’ App.at 294 (emphasis in original).) Ditech responded by stating the pr omissory note was in possession of Bank of New York Mellon and had “been requested for your review and will be made available for inspection at the offices of [Ditech’s counse l] at a mutually agreeable date and time if it is received.” ( Id .) Ditech’s counsel then produced the original when it was received some months later. Plaintiffs argue that the proffered or iginal was inadmissible because it was untimely and not properly authenticated. But Plai ntiffs have not demons trated the district court abused its discretion by considering the note. See Jones , 349 F.3d at 1270; see also Turner v. Reynolds Ford, Inc. , 145 F.3d 1346 (table), 1998 WL 234540, at *7 (10th Cir. 1998) (unpublished) (“Whether to allow a party to supplement a summary judgment response is ordinarily subject to the trial court’s discretion.” ). At the hearing, the judge- 7 - examined the note and found it authentic. What’s more, Federa l Rule of Evidence 902(9) provides for the self-authentication of “[c]om mercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.” This covers promissory notes and the signatures on such notes. See 31 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedur e § 7143 (1st ed.). At the hearing, Plaintiffs could only specu late that the proffered original was not, in fact, the original. Plaintiffs’ counsel ad mitted that, “looking in th at note,” he could not “come to any conclusion” other than the judge’s, i.e., that “this appears to be the original note and deed of trust.” (Appellant’s App. at 452–53.) The judge, in his discretion, denied Plaintiffs’ request to conduct a fo rensic analysis of the promissory note, explaining: “[Plaintiffs] signed th is or didn’t sign this. They know what they signed. . . . I have so found that it is the original note. I find that there is nothing about that note that raises even a suspicion . . . . I understa nd counsel’s position, but it is simply chasing speculation.” ( Id. at 453, 455.) With the admission of the original promi ssory note, Plaintiffs’ only evidence that Bank of New York Mellon is not the holder of the note is Ditech’s tardiness in producing the document during discovery. This is not enough to defeat Defendants’ summaryjudgment motions. As we have held, “in opposing a motion for summary judgment, the non-moving party cannot rest on ignorance of facts, on speculation, or on suspicion.” Bird , 832 F.3d at 1199 (internal quotation mark s omitted). Speculation and suspicion are all Plaintiffs have.- 8 - Accordingly, we AFFIRM

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Entered for the Court
Monroe G. McKay Circuit Judge