                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 17 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KEVIN E. GILMORE,                               No. 15-17395

                Plaintiff-Appellant,            D.C. No. 4:14-cv-02389-CW

 v.
                                                MEMORANDUM*
WELLS FARGO BANK, NA; NDEX
WEST, LLC,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                    Claudia Wilken, District Judge, Presiding

                             Submitted July 11, 2017**

Before:      CANBY, KOZINSKI, and HAWKINS, Circuit Judges.

      Kevin E. Gilmore appeals pro se from the district court’s summary judgment

and dismissal order in his diversity action arising from foreclosure proceedings.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Living




      *
             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).
Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 360 (9th Cir. 2005).

We affirm.

      The district court properly granted summary judgment on Gilmore’s claim

under the California Homeowner’s Bill of Rights statute because Gilmore failed to

raise a genuine dispute of material fact as to whether his property was “owner-

occupied” and his loan modification application was complete. See Cal. Civ. Code

§ 2923.6(c) (a mortgage servicer may not record a notice of default or notice of

sale while a complete first lien loan modification application is pending); id.

§ 2924.15 (limiting application of section 2923.6 to residential property that is

“owner-occupied”); see also Valbuena v. Ocwen Loan Servicing, LLC, 237 188

Cal. Rptr. 3d 668, 671 (Ct. App. 2015) (discussing elements of a statutory violation

of the California Homeowner’s Bill of Rights).

      The district court properly dismissed as time-barred Gilmore’s fraud claim

relating to insurance premiums because Gilmore filed this action after the

applicable statute of limitations had run. See Cal. Civ. Proc. Code § 338(d) (fraud

claims subject to three-year statute of limitations).

      We reject as without merit Gilmore’s contention that the district court

violated his First Amendment rights by resolving Wells Fargo’s motions on the

briefs. See Fed. R. Civ. P. 78(b) (“By rule or order, the court may provide for

submitting and determining motions on briefs, without oral hearings.”).


                                           2                                      15-17395
      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      We do not consider documents not filed with the district court. See United

States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

      Gilmore’s request for a refund of his payment of insurance premiums, set

forth in his opening brief, is denied.

      AFFIRMED.




                                           3                                      15-17395
