                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            OCT 28 2019
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                              FOR THE NINTH CIRCUIT


THE BANK OF NEW YORK MELLON,                       No.   18-35950
FKA The Bank of New York, as Trustee
for the benefit of the certificate holders of      D.C. No. 2:18-cv-00764-TSZ
the CWABS, Inc., asset-backed
certificates, Series 2007-SD1,
                                                   MEMORANDUM*
              Plaintiff-Appellant,

 v.

KAREN D. SMITH, an individual; DOES
1-50, All other persons, parties or
occupants unknown claiming any legal or
equitable right, title, estate, lien or interest
in the real property described in the
complaint herein, inclusive,

              Defendants-Appellees.


                     Appeal from the United States District Court
                       for the Western District of Washington
                      Thomas S. Zilly, District Judge, Presiding

                             Submitted October 24, 2019**
                                 Seattle, Washington

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: CLIFTON and IKUTA, Circuit Judges, and RAKOFF,*** District Judge.



      The Bank of New York Mellon (BONY) appeals from an order dismissing

its foreclosure action with prejudice. We have jurisdiction under 28 U.S.C. § 1291.

      The district court did not err in concluding that the statute of limitations ran

before BONY filed its action. We reject BONY’s argument that it was entitled to

additional tolling of 120 days (30 days after service of notices of default for the

four non-judicial foreclosure proceedings) because BONY did not raise this

argument below, and it is contrary to the tolling calculations BONY provided to

the district court. We therefore decline to address the issue on appeal. Bolker v.

Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985).1 On appeal, BONY does not

“specifically and distinctly” challenge the district court’s holding that tolling

ceased on the dates fixed for each trustee’s sale, so any argument to the contrary is

waived. United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).

      ***
            The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
      1
         Even if we reached this issue, the record shows that BONY served only
two notices of default, one of which did not toll the relevant statute of limitations
because it was served before the relevant statute of limitations began to run, and
was used to notice a trustee’s sale that was neither held nor continued. And even if
we gave BONY credit for additional tolling based on the other notice of default,
the statute of limitations would have run.
                                           2
AFFIRMED.




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