No Actual Receipt Required Under Wyo. Stat. § 34-4-103(a)(iv), and Appellate Silence Waives Objections to Alternative Grounds: Garrett v. Wells Fargo Bank (10th Cir. 2025)

Introduction

Garrett v. Wells Fargo Bank N.A., No. 24-8013 (10th Cir. Mar. 25, 2025), is a Tenth Circuit order and judgment that, while nonprecedential, carries notable persuasive weight on two fronts:

• Substantive Wyoming foreclosure law: The court affirms that Wyoming’s foreclosure notice statute, Wyo. Stat. § 34-4-103(a)(iv), does not require actual receipt by the “person in possession” of the property; timely certified mailing to the last known address suffices.
• Appellate practice: The court applies its waiver doctrine to uphold dismissal on an alternative ground advanced by the appellee when the appellants declined to file a reply brief, thereby waiving any non-obvious response to that ground.

The case arose after Wells Fargo foreclosed upon the Garretts’ Wyoming property. The Garretts—Florida residents—had leased the home to a tenant, Michael Melf. Wells Fargo mailed notice of intent to foreclose by certified mail to both the Garretts and Melf, but the notice addressed to the Cache Creek residence was returned undelivered because the USPS did not deliver to that location. After the sheriff’s sale and the lapse of the three-month statutory redemption period, the Garretts sued, claiming (among other theories) that the foreclosure was defective because the tenant did not receive notice as required by § 34-4-103(a)(iv).

The district court dismissed for lack of prudential (third-party) standing. On appeal, Wells Fargo defended that ruling and also pressed an alternative basis for affirmance: even assuming standing, the complaint failed to state a claim because § 34-4-103(a)(iv) requires mailing, not actual receipt. The Garretts chose not to file a reply brief. The Tenth Circuit affirmed, invoking waiver to adopt the alternative ground and concluding that the Wyoming statute requires certified mailing to the last known address, not proof of actual receipt.

Summary of the Opinion

The Tenth Circuit affirmed the dismissal of the Garretts’ complaint, but not on the district court’s prudential-standing rationale. Instead, the panel relied on Wells Fargo’s alternative ground for affirmance: the complaint failed to plausibly allege a violation of Wyo. Stat. § 34-4-103(a)(iv) because that statute does not require that the person in possession actually receive the certified mailing. The court:

• Invoked its waiver doctrine to treat as waived any non-obvious response to the appellee’s alternative ground, where the appellants chose not to file a reply brief.
• Cited Wyoming authority, particularly Walker v. McAnnany, 802 P.2d 876, 879–80 (Wyo. 1990), for the proposition that actual receipt is not an element of the notice statute.
• Affirmed without reaching the merits of the district court’s prudential standing ruling.

Because the only defect alleged with respect to the tenant was non-receipt, and because non-receipt is immaterial under the statute, the complaint did not state a claim—even if the Garretts could otherwise press the tenant’s notice-based rights.

Analysis

Precedents Cited and Their Influence

• Walker v. McAnnany, 802 P.2d 876 (Wyo. 1990): The Wyoming Supreme Court held that the foreclosure-by-advertisement scheme requires strict compliance with statutory procedures, but the content of that compliance focuses on the method and timing of notice (e.g., certified mailing to the last known address at least ten days before publication), not on actual receipt by the addressee. The Tenth Circuit relied on Walker to underscore that “receipt of the certified mailing is not an element” of § 34-4-103(a)(iv). This Wyoming authority squarely foreclosed the Garretts’ theory that actual notice to the tenant was required as a matter of state law.
• Hasan v. AIG Property Casualty Co., 935 F.3d 1092 (10th Cir. 2019), quoting Hardy v. City Optical Inc., 39 F.3d 765 (7th Cir. 1994): These cases articulate the Tenth Circuit’s waiver doctrine. When an appellee advances an alternative ground for affirmance and the appellant does not respond, the appellant waives any non-obvious objections to that ground. The panel invoked this principle to accept Wells Fargo’s unrefuted alternative ground that § 34-4-103(a)(iv) was satisfied by mailing, regardless of receipt.
• Eaton v. Pacheco, 931 F.3d 1009 (10th Cir. 2019): Reaffirms the Tenth Circuit’s practice of deeming waived any non-obvious responses to an appellee’s alternative theories that go unanswered.
• In re Syngenta AG MIR 162 Corn Litigation, 111 F.4th 1095, 1110 n.15 (10th Cir. 2024): A recent restatement of the waiver principle in the context of alternative arguments for affirmance.
• Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007): Establishes that arguments not raised or inadequately presented in the opening brief will not be considered. The Garretts’ opening brief only alluded to, but did not substantively develop, a statutory notice theory; combined with the absence of a reply brief, that omission supported the court’s waiver analysis.
• United States v. A.S., 939 F.3d 1063 (10th Cir. 2019): Another anchor for treating unaddressed arguments as waived, especially when an appellant remains silent in the face of an appellee’s clearly articulated alternative basis for affirmance.
• Albers v. Board of County Commissioners, 771 F.3d 697 (10th Cir. 2014): Cited for the de novo standard of review applicable to Rule 12(b)(6) dismissals.

Legal Reasoning

The panel’s reasoning proceeds in two coordinated steps: a procedural gatekeeping move (waiver) that sets the stage for adopting a merits-based alternative ground for affirmance.

1) Appellate waiver controls the path of decision.

The appellee (Wells Fargo) clearly flagged an alternative ground: even assuming the Garretts could assert their tenant’s notice rights, the complaint did not plausibly allege a statutory violation because the statute requires mailing—not actual receipt. The Garretts did not file a reply brief. Under Tenth Circuit law, when an appellant does not respond to an appellee’s alternative basis for affirmance, the court may deem waived any non-obvious counterarguments to that basis. This doctrine efficiently channels appellate review by avoiding issues that the appellant elects not to meet.

2) The alternative ground is meritorious under Wyoming law.

Turning to the substance, Wyo. Stat. § 34-4-103(a)(iv) requires that notice of intent to foreclose be served “by certified mail with return receipt, mailed to the last known address of the record owner and the person in possession at least ten (10) days before commencement of publication of notice of sale.” The complaint’s theory of defect was built on non-receipt by the tenant. But Wyoming law, as articulated in Walker v. McAnnany, does not demand actual receipt; it demands proper mailing to the “last known address” by the specified method and within the specified timeframe. Consequently, an allegation of non-receipt, standing alone, does not state a claim for failure to comply with § 34-4-103(a)(iv).

Applied here, even accepting as true that the USPS did not deliver to the property and the tenant never received the letter, the bank’s alleged conduct—mailing via certified mail with return receipt requested to the last known address—satisfied the statute. Because the Garretts’ complaint did not allege that Wells Fargo failed to mail by certified mail, failed to use the last known address, or failed to mail within the statutory timeframe, their notice-based claim could not proceed.

3) Prudential standing left unresolved.

The district court had dismissed for lack of prudential (third-party) standing, finding the Garretts had not shown a basis to assert a cause of action belonging to their tenant. The Tenth Circuit affirmed on the alternative statutory ground and expressly declined to reach prudential standing. This is a conventional approach: appellate courts may affirm on any ground supported by the record, and resolving the case on a clear statutory point avoided a potentially more complex standing inquiry.

Impact

A. Wyoming foreclosure practice: strict compliance means method and timing, not actual receipt.

• Garrett reinforces the Wyoming Supreme Court’s instruction in Walker: “strict compliance” with § 34-4-103(a)(iv) relates to sending notice by certified mail to the last known addresses at least 10 days before publication. It does not include a requirement that the addressee actually receive, accept, or sign for the mail.
• Lenders should still take care to identify the “last known address” of both the record owner and the person in possession. Where a lender knows or reasonably should know that a particular address is undeliverable, the “last known” qualifier could, in other cases, raise factual questions. Garrett does not resolve those nuances; it holds only that non-receipt does not by itself establish a statutory violation.
• Affidavits of compliance remain a best practice (and in some settings, a statutory or customary component) to demonstrate the mailing steps taken, though Garrett does not decide any affidavit-specific requirement.

B. Appellate practice: reply briefs matter.

• Garrett is a cautionary precedent for appellants. When an appellee offers an alternative ground for affirmance, silence in reply can be outcome-determinative. The Tenth Circuit will deem waived any non-obvious responses not furnished by the appellant, and may affirm on that unrefuted basis.
• Litigants should explicitly and substantively engage with all alternative arguments raised in the appellee’s brief—especially where those arguments rest on controlling or persuasive state-law authority.

C. Nonprecedential but persuasive.

• This Order and Judgment is nonbinding except under law-of-the-case, res judicata, and collateral estoppel. Nonetheless, it can be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
• Given its reliance on Walker, which is binding Wyoming law, the panel’s statutory reading will likely carry substantial persuasive weight in federal and state courts addressing similar Wyoming foreclosure-notice disputes.

D. Unresolved and practical considerations.

• Third-party standing: The panel left open whether a mortgagor can contest a foreclosure based solely on a failure to notify the tenant. District courts may continue to grapple with whether an owner can assert an occupant’s distinct statutory interests.
• Due process overlay: Garrett applies the Wyoming statute; it does not address constitutional due process questions. Existing due process doctrine generally requires notice that is reasonably calculated to apprise interested parties, not actual notice, which is consistent with the statutory framework. But case-specific facts (e.g., a lender’s knowledge of an undeliverable address) could invite due process arguments in other contexts.

Complex Concepts Simplified

• Prudential (third-party) standing vs. Article III standing: Article III standing is constitutional—injury-in-fact, causation, and redressability. Prudential or “third-party” standing is a judge-made limitation on who can assert someone else’s rights. Garrett’s district court ruling turned on prudential standing; the Tenth Circuit did not need to reach it because it affirmed on a statutory ground.
• Alternative ground for affirmance: An appellee may defend a favorable judgment on any ground supported by the record, even one rejected or not reached below. If the appellant does not rebut that alternative ground, the appellate court may adopt it to affirm without deciding other issues.
• Waiver vs. forfeiture on appeal: “Waiver” often denotes the intentional relinquishment of a known right; “forfeiture” refers to the failure to timely assert a right. The Tenth Circuit uses “waiver” here in a functional sense: by not replying to the appellee’s alternative ground, the appellants waived any non-obvious response to it.
• Strict compliance in nonjudicial foreclosure: In Wyoming, foreclosure by advertisement is a creature of statute. “Strict compliance” means the lender must follow the statute’s prescribed procedures (method, timing, recipients) meticulously. But unless the statute specifies “actual receipt,” strict compliance does not transform mailing requirements into delivery guarantees.
• “Certified mail with return receipt, mailed to the last known address”: This phrase describes the required method and destination for the notice. “Return receipt” refers to the USPS green card or electronic equivalent that evidences the mailing. The statute does not require that the recipient actually sign or that the sender obtain proof of delivery; it requires that the sender utilize certified mail and address it to the last known address.

Conclusion

Garrett v. Wells Fargo reinforces a clear statutory principle under Wyoming law: for foreclosure-by-advertisement, the lender’s obligation is to mail notice by certified mail to the last known addresses of both the record owner and the person in possession at least ten days before publication; actual receipt is not required. Equally significant is the procedural lesson: appellants who do not engage an appellee’s alternative ground for affirmance—particularly in a reply brief—risk waiver and summary affirmance.

For lenders and trustees conducting Wyoming foreclosures, Garrett underscores the need to document meticulous compliance with the notice statute’s method and timing, while clarifying that undelivered certified mail to a proper “last known address” does not, by itself, invalidate the process. For borrowers and occupants, the decision highlights the importance of keeping mailing addresses current and promptly raising any statutory or constitutional notice defects grounded in the manner of mailing, the timing, or the identification of the proper “last known address,” rather than relying solely on non-receipt.

Although nonprecedential, this order’s synthesis of Wyoming’s notice statute with the Tenth Circuit’s appellate waiver doctrine offers a roadmap for both foreclosure practitioners and appellate litigators: comply rigorously with statutory mailing requirements, and answer every viable ground for affirmance—or risk losing without the court ever reaching your lead issue.