* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 22 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JEANE MARIE WELCH,

Plaintiff-Appellant,

v. CREDIT ADJUSTMENT COMPANY INC., an Oklahoma Corporation; LISA GIFFORD; MORGAN & ASSOCIATES, P.C.,

Defendants-Appellees. No. 97-6322 (D.C. No. 96-CV-1509) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA and McKAY , Circuit Judges, and BROWN , ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals the district court’s grant of summary judgment in favor of defendants on her several claims of violation of th e Fair Debt Collection Practices Act (FDCPA) and related state law claims. We revie w the district court’s grant of summary judgment de novo, see Kaul v. Stephen , 83 F.3d 1208, 1212 (10th Cir. 1996), and we affirm. Plaintiff raised numerous issues in her complaint b efore the district court, all of which the district court properly disposed. On appeal to this court, plaintiff argues only two issues and abandons all the others brought before the district court. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (holding issue not raised in opening brief onappeal is waived). First, plaintiff argues that defendants violated th e FDCPA because the Oklahoma state court default judgment in the collec tion action against her was void. Citing Okla. Stat. tit. 12, § 139 (Supp. 199 8), plaintiff maintains that venue was improper because Oklahoma law requires that the action involving an assigned claim be brought in the county of plaintif f’s residence. We will not address this argument on appeal because plaintiff d id not first present it to the district court. See Walker v. Mathers (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).-3-

Plaintiff did present a venue argument to the distr ict court, but her venue argument on appeal presents an entirely different l egal theory. In her complaint and in her summary judgment pleadings before the di strict court, plaintiff argued that defendants were in violation of 15 U.S.C. § 16 92i. That section of the FDCPA requires debt collectors to bring legal actio ns on a debt in the judicial district where the contract at issue was signed or where the defendant resides. Defendants brought the action in Oklahoma County, the location of the hospital at which plaintiff received the services that were the subject of the debt. In response to defendants’ motion for summary judgmenton this point, plaintiff argued that, because there was no signed contract, the proper venue under § 1692i was her county of residence. Although this claim was based on venue, it is not the same argument she presents on appeal regarding venue, which is based on Oklahoma law and has nothing to do with wh ether or where a contract was signed. As a result, the district court did no t address the specific argument plaintiff presents in this appeal. “[T]o preserve the integrity of the appellate structure, we should not be considered ‘a second-sh ot’ forum . . . where secondary, back-up theories may be mounted for the first time.” Tele-Communications, Inc. v. Commissioner , 104 F.3d 1229, 1233 (10th Cir. 1997). Thus, we do not consider this argument.-4-

Second, plaintiff argues that defendants’ attempt t o pursue collection of the debt through the courts was an abuse of process bec ause the state court judgment was void. To the extent that plaintiff ties her ab use of process claim to her new theory of a void state court judgment based on impr oper venue, this argument was presented for the first time on appeal and we d o not consider the argument. See In re Walker , 959 F.2d at 896. To the extent she appeals the d istrict court’s grant of summary judgment on the abuse of process c laim she argued before the district court, we affirm. Plaintiff has made no s howing that defendants’ use of the court process was improper and was for an improper or ulterior purpose. See Greenberg v. Wolfberg , 890 P.2d 895, 905 (Okla. 1994) (listing elements of abuse of process claim). The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED. The motion for fees and c osts is DENIED.

Entered for the Court

Wesley E. Brown Senior District Judge