                                                                  FILED
                                                      United States Court of Appeals
                         UNITED STATES COURT OF APPEALS       Tenth Circuit

                                    TENTH CIRCUIT                           May 18, 2012
                           ___________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
CHARLES C. WALDO and ETHANNE
S. WALDO,

         Plaintiffs-Appellants,
v.                                                            No. 12-4017
OCWEN LOAN SERVICING, LLC,                           (D.C. No. 2:10-CV-00928-CW)
                                                               (D. Utah)
         Defendant-Appellee.
                    ____________________________________
                               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        This order and judgment is not binding precedent except under the doctrines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.
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




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