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

                       FOR THE TENTH CIRCUIT                   August 12, 2019
                     _________________________________
                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
JERRY BRAKEBILL and
BARBARA MULLINS
BRAKEBILL;

       Plaintiffs-Appellants,

v.                                                  No. 19-7001
                                          (D.C. No. 6:18-CV-00104-RAW)
BANK OF AMERICA and                                 (E.D. Okla.)
CARRINGTON MORTGAGE
SERVICES;

       Defendants-Appellees.
                   _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before MATHESON, MCKAY, and BACHARACH, Circuit Judges.
               _________________________________

      Mr. and Mrs. Brakebill filed a pro se complaint alleging that Bank of

America, N.A. and Carrington Mortgage Services, L.L.C. violated Treasury

Department guidelines for the federal Home Affordable Modification

Program. Based on these allegations, the Brakebills moved for appointment

*
     Oral argument would not materially help us to decide this appeal, so
we have decided the appeal based on the appellate briefs and the record on
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
of counsel and asserted claims for breach of contract, breach of the implied

covenant of good faith and fair dealing, promissory estoppel, and unfair

and deceptive acts and practices.

      The district court denied the motion to appoint counsel, dismissed

the causes of action against Carrington for failure to state a valid claim,

and dismissed the causes of action against Bank of America for res

judicata, failure to state a valid claim, and failure to comply with Rule 8 of

the Federal Rules of Civil Procedure. The Brakebills appeal. 1

      In their opening appeal brief, the Brakebills make two arguments:

      1.    The Bank of America breached a contract that it had with the
            Brakebills.

      2.    The district court erred in refusing to appoint counsel.

1.   Carrington

      The district court dismissed the causes of action against Carrington

for failure to state a valid claim, reasoning that

      •     the Home Affordable Modification Program did not provide a
            right of action against Carrington and

      •     the Bank of America’s agreement with the Treasury Department
            regarding the Home Affordable Modification Program does not
            provide borrowers with legal rights. 2
1
     In their opening appeal brief, the Brakebills include a request for
reconsideration that references motions filed in another case. We lack
authority to act on this request.
2
     The district court also explained that Oklahoma law does not
recognize a loan servicer’s failure to comply with the Home Affordable
Modification Program as a defense to foreclosure.

                                       2
      In their appeal briefs, the Brakebills do not address the dismissal of

their claims against Carrington or the district court’s reasoning on these

claims. Though the Brakebills are pro se, we cannot craft arguments for

them. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We thus

affirm the dismissal of the causes of action against Carrington.

2.   Bank of America

     The district court dismissed the claims against Bank of America for

failure to state a valid claim, violation of Rule 8 of the Federal Rules of

Civil Procedure, and res judicata. In appealing the dismissal of the claims

against the Bank of America, the Brakebills argue that

      •     they had an enforceable contract to modif y their loan and

      •     the Bank of America breached this contract.

But the Brakebills do not address the district court’s reliance on either res

judicata or Rule 8 as independent grounds for dismissal. As we previously

explained, we cannot craft arguments for the Brakebills even though they

are acting pro se. See Part 1, above. In the absence of a challenge to the

district court’s reliance on res judicata or Rule 8, we must affirm the

dismissal of the claims against Bank of America.

3.   Appointment of Counsel

      The Brakebills also argue that the district court should have

appointed counsel. But the district court can’t appoint counsel in civil


                                      3
cases; the court can only request an attorney to take the case. Rachel v.

Troutt, 820 F.3d 390, 396 (10th Cir. 2016); see 28 U.S.C. § 1915(e)(1)

(“The court may request an attorney to represent any person unable to

afford counsel.”). In reviewing the district court’s decision whether to

make such a request, we apply the abuse-of-discretion standard. Rachel,

820 F.3d at 397. Given the limited supply of attorneys willing to accept

these requests, the district court must exercise discretion in deciding when

to seek representation for a pro se litigant. See id.

      In denying the motion to appoint counsel, the district court

considered the strength of the Brakebills’ claims, the nature of the factual

issues, and the ability of the Brakebills to investigate those issues. We

conclude that the district court did not abuse its discretion in denying the

motion on these grounds.

      Affirmed.

                                           Entered for the Court


                                           Robert E. Bacharach
                                           Circuit Judge




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