                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                 November 29, 2007
                              FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    RICHARD COOK; CARMEN L.
    COOK,

          Plaintiffs ! Appellants,                     No. 07-4089
    v.                                          (D.C. No. 2:05-CV-16-PGC)
                                                         (D. Utah)
    CHASE MANHATTAN MORTGAGE                       (509 F. Supp. 2d 986)
    CORPORATION, a New Jersey
    Corporation,

          Defendant ! Appellee.


                              ORDER AND JUDGMENT *


Before TACHA, Chief Judge, McCONNELL and GORSUCH, Circuit Judges.



         Richard Cook and Carmen Cook appeal from the district court’s entry of

summary judgment in favor of defendant Chase Manhattan Mortgage Corporation

(Chase) on claims relating to their mortgage loan and Chase’s foreclosure sale of

their former home. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm for



*
       After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
substantially the same reasons set forth in the district court’s order granting

Chase’s motion for summary judgment, Cook v. Chase Manhattan Mortgage

Corp., 509 F. Supp. 2d 986 (D. Utah 2007).

                                          I.

      We review the district court’s grant of summary judgment de novo, using

the same legal standard applicable in the district court. Baca v. Sklar, 398 F.3d

1210, 1216 (10th Cir. 2005). Summary judgment should be granted “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). Under this standard, we view the evidence, and draw

all reasonable inferences from it, in the light most favorable to the nonmoving

party. Baca, 398 F.3d at 1216.

                                          II.

      The district court discussed in detail the factual background of this suit,

none of which is legitimately in dispute.1 See Cook, 509 F. Supp. 2d at 988-92.

Thus, we set out only a summary of the relevant facts.

      The Cooks obtained a $46,000 mortgage loan from Chase’s predecessor in

interest in August 1999. The loan was memorialized in a “Note,” and the Note

1
      The Cooks contest the substance of Chase’s position that they did not pay
all amounts due under the documents governing their mortgage loan, but the
following factual chronology is beyond dispute.

                                          -2-
was secured by a “Deed of Trust” on the Cooks’ property and residence in Salt

Lake City, Utah. The Note required the Cooks to pay principal and interest

monthly in the fixed amount of $419.92. The Deed of Trust secured the

repayment of the debt evidenced by the Note as well as the Cooks’ payment of

other sums and performance of covenants outlined in the Deed of Trust. The

covenants included paying funds for taxes and insurance into an escrow account.

      Initially, the Cooks paid $500 each month, which exceeded their monthly

obligation for principal, interest, taxes, and insurance, as detailed in annual

escrow account disclosure statements Chase sent to the Cooks. Effective

December 1, 2001, however, the Cooks’ monthly payment obligation rose to

$565.39 due to changes in the amount required for the escrow account.

      In May 2002, Chase sent the Cooks a foreclosure notice and referred the

matter to its counsel, who extended a written offer to reinstate the Cooks’ loan if

they paid $3,098.76 to cover four monthly payments of $565.39 plus fees and

costs. In a separate letter Chase’s counsel informed the Cooks that all of their

payment checks had been applied to their account yet they were still behind on

their obligations because, in counsel’s opinion, they had continued to pay only

$500.00 per month when the actual amount due was $565.39. The Cooks paid the

reinstatement amount in July 2002 and thereafter began paying $565.39 per

month.



                                          -3-
      The Cooks’ monthly payment obligation changed to $513.91 effective

December 1, 2002. According to their own summary of their payment history,

the Cooks began paying $513.91 each month, starting in January 2003, but made

no monthly payments after April 4, 2003. Chase notified the Cooks by letters

dated April 25, 2003, that they were once again in default, this time in the

amount of $1015.04. Chase’s counsel sent the Cooks notice of their options to

pay the debt or obtain a reinstatement offer. The trustee recorded a Notice of

Default and Election to Sell on June 18, 2003, and sent it to the Cooks, informing

them that their unpaid principal balance was accelerated and that the trustee had

elected to sell the property described in the trust deed. Ms. Cook signed certified

mail return receipts for this notice on June 27 and admitted at her deposition that

she had received the notice.

      According to an Affidavit of Posting, a Notice of Trustee’s Sale was posted

on the Cooks’ residence on September 22, 2003, announcing that the property

would be sold at public auction on October 23, 2003. The Cooks maintain that

they never saw the posted notice because they were traveling for two weeks at the

end of September. Notice of the trustee’s sale also was published in a weekly

newspaper for three consecutive weeks. The property was sold on October 23,

but the Cooks remained in possession until November 11, 2003, when the sheriff

arrived to evict them. Ms. Cook showed the sheriff an unsigned letter,

purportedly from Chase and dated November 11, 2003, which stated that Chase

                                         -4-
had decided to credit the Cooks’ loan account in the amount of their July 2002

reinstatement payment, $3.098.76, to cover payments from July 2003 through

November 2003, and that their next payment was due December 1, 2003.

Apparently unpersuaded, the sheriff proceeded to evict the Cooks.

                                         III.

      On November 19, 2004, more than a year after their eviction, the Cooks

filed this action in the Third Judicial District Court of Salt Lake County, Utah.

The complaint is not a model of clarity. In essence, though, the Cooks alleged

that they always overpaid their mortgage by paying $500.00 per month and that

they never missed a payment. They further alleged that Chase had on a number

of occasions failed to record their payments properly and failed to correct its

records even after the Cooks sent proof that they had made the allegedly missing

payments.

      Seeking money damages, the Cooks asserted five claims: (1) Chase failed

to correct accounting errors in a timely manner in violation of the Real Estate

Settlement Procedures Act of 1974, 12 U.S.C. §§ 2601-2617 (RESPA); (2) Chase

made false, deceptive, and misleading representations in connection with

collecting a debt in violation of the Fair Debt Collection Practices Act, 15 U.S.C.

§§ 1692-1692p (FDCPA); (3) Chase made false, deceptive, and misleading

representations in connection with managing and servicing a homeowner’s

mortgage loan in violation of Utah’s Mortgage Lending and Servicing Act, Utah

                                         -5-
Code Ann. §§ 70D-1-1 to 70D-1-21 (MLSA); (4) Chase breached its contract

with the Cooks; and (5) Chase committed fraud or misrepresentation.

      Chase removed the case to federal court based on the federal claims and

eventually moved for summary judgment. In ruling on the motion, the court first

examined events up to and including the July 2002 reinstatement, applied Utah

law, and concluded that because the reinstatement payment was in accord and

satisfaction of the Cooks’ pre-July 2002 dispute with Chase, they were barred

from making claims of mismanagement prior to the reinstatement. See Cook,

509 F. Supp. 2d at 994-96 (applying Smith v. Grand Canyon Expeditions Co.,

84 P.3d 1154, 1158 (Utah 2003) (setting forth factors for accord and satisfaction),

Bennion v. LeGrand Johnson Constr. Co., 701 P.2d 1078, 1082 (Utah 1985)

(same), and Fowers v. Gurney, 448 P.2d 713, 714 (Utah 1968) (recognizing

mortgage reinstatement payment was an accord and satisfaction that satisfied a

deficiency judgment)). The court also ruled that Chase complied with its

obligations under the RESPA to (1) acknowledge receipt of the Cooks’ written

July 2002 inquiries within twenty days and (2) make appropriate corrections to

their account and provide a written explanation within sixty days of the inquiry.

See Cook, 509 F. Supp. 2d at 995-96 (applying 12 U.S.C. § 2605(e)). The district

court concluded in the alternative that the Cooks failed to present evidence of

mismanagement other than their own assertion that they made monthly payments

of $500.00. See Cook, 509 F. Supp. 2d at 996.

                                         -6-
      As to alleged wrongful acts between July 2002 and November 2003, the

court reasoned that although principles of waiver and estoppel might apply to the

Cooks’ failure to object to the foreclosure proceedings prior to the sale, there was

no need to resolve the issue because the Cooks failed to establish any genuine

issues of material fact. Id. Regarding the RESPA claim, the court concluded that

the Cooks did not make any qualifying written inquiries requiring a response

other than in July 2002. Id. at 997. The court also concluded that the Cooks

presented no evidence that Chase failed to credit their account properly, as

required by the UMSA. See id. (applying Utah Code Ann. § 70D-1-7(4)). In the

alternative, the court held that at least one of two UMSA exceptions applied to

Chase’s crediting obligation—(1) when a payment is insufficient to pay principal,

interest, late charges, and reserves then due, or (2) when the matter has been

referred to an attorney. See id. (applying § 70D-1-7(4)(a), (4)(b)).

      The court then addressed the Cooks’ FDCPA claim, determining that two

subsections of 15 U.S.C. § 1692e were at issue. First, the court ruled that Chase

did not violate § 1692e(4), which in relevant part prohibits a debt collector from

representing or implying that nonpayment of a debt will result in the sale of any

property “unless such action is lawful and the debt collector or creditor intends to

take such action.” See Cook, 509 F. Supp. 2d at 998. The court concluded that

the record showed Chase acted appropriately in sending the 2003 notice of

foreclosure, an action it intended to (and did) take. Rather, the court said, it was

                                          -7-
the Cooks’ own misunderstanding of their payment obligation that led them to

believe that the 2003 default and foreclosure were unlawful. Second, the court

stated that there was no evidence in the record that Chase violated § 1692e(7),

which prohibits “[t]he false representation or implication that the consumer

committed any crime or other conduct in order to disgrace the consumer.” See

Cook, 509 F. Supp. 2d at 998.

      Turning to the Cooks’ two remaining claims, breach of contract and fraud,

the district court observed that even if the Cooks received a phone call from

Chase in April 2003 informing them that their reinstatement payment would be

applied prospectively and that they did not need to make any payments until

December 2003, Chase later sent written notices of default and foreclosure that

the Cooks acknowledged receiving. Thus, the court concluded, no reasonable

juror could believe that the April phone call trumped the subsequent notices or

proved breach of contract, fraud, or any statutory violations. See id. at 999. Due

to typographical errors and formatting irregularities, the court had concerns about

the authenticity of the November 11 letter Ms. Cook had shown the sheriff at the

eviction, which Chase had denied sending and maintained was a forgery. But the

court concluded that even if authentic, that letter did not preclude summary

judgment on the Cooks’ contract claim because at the time it was executed, Chase

no longer had any contract with the Cooks. Id. Nor, the court concluded, did the

letter preclude summary judgment on the fraud or statutory claims. Because there

                                        -8-
was no relationship—contractual or otherwise—at the time the letter was written,

the court reasoned that at most, the letter could “be circumstantial evidence of

some earlier violation or fraud. But because Chase was entitled to collect all the

funds it obtained earlier from the Cooks, no such fraud existed, and no statutory

violation occurred.” Id. at 1000. The court granted Chase’s motion for summary

judgment on all claims. The Cooks appealed.

                                          IV.

      We have reviewed de novo the record, the parties’ briefs, and the

applicable law. The district court’s decision is thorough and well reasoned, and

none of the Cooks’ arguments persuades us that the district court erred in

granting summary judgment to Chase. Their contention that evidence of the April

2003 telephone call from Chase and the November 11 letter creates genuine issues

of material fact fails for the reasons given by the district court. 2 Their assertion

that they were never in default because their monthly principle-and-interest

obligation was fixed by the Note at $419.92 frivolously overlooks their additional

obligations, under the terms of the Deed of Trust, to pay taxes and insurance into

an escrow account. They have waived their argument that accord and satisfaction



2
       Because we affirm the district court’s ruling on this evidence, we need not
address Chase’s argument that statements the Cooks made in affidavits supporting
their opposition to Chase’s motion for summary judgment regarding the telephone
call rendered their affidavits a “sham” under Franks v. Nimmo, 796 F.2d 1230,
1237 (10th Cir. 1986).

                                           -9-
under Utah law requires the creation of a subsequent agreement because they did

not present that argument to the district court. See Bancamerica Commercial

Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 798-99 (10th Cir.) (explaining

that this court does not consider a new theory on appeal even if it “falls under the

same general category as an argument” presented to the district court), opinion

amended on other grounds, 103 F.3d 80 (10th Cir. 1996). In their opening brief,

the Cooks listed an issue regarding another mortgagor’s affidavit containing

allegations of similar mortgage-accounting problems with Chase, which they

presented to the district court in a motion to alter the judgment filed under Fed. R.

Civ. P. 59(e) and 60(b), but they have not provided any argument concerning the

district court’s denial of their motion. Therefore, they have waived this issue.

See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990). The

judgment of the district court is AFFIRMED for substantially the same reasons

stated in the district court’s order. See Cook, 509 F. Supp. 2d 986.


                                                     Entered for the Court



                                                     Michael W. McConnell
                                                     Circuit Judge




                                         -10-
