Silence as Waiver: Failure to File a Reply Brief Waives Non-Obvious Challenges to an Appellee’s Alternative Ground for Affirmance

Silence as Waiver: Failure to File a Reply Brief Waives Non-Obvious Challenges to an Appellee’s Alternative Ground for Affirmance

Case: Garrett v. Wells Fargo Bank, N.A., No. 24-8013 (10th Cir. Mar. 25, 2025)
Court: United States Court of Appeals for the Tenth Circuit
Panel: Holmes, C.J., Ebel & Bacharach, JJ.
Disposition: Affirmed.

Note: This is an unpublished “Order and Judgment.” It is not binding precedent except under law-of-the-case, res judicata, and collateral estoppel doctrines. It may be cited for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Introduction

This appeal arises from a challenge to a Wyoming nonjudicial foreclosure. Carol and Terry Lee Garrett alleged that Wells Fargo Bank, N.A., the mortgagee, failed to provide the statutorily required “notice of intent to foreclose” to the person in possession of the mortgaged premises (their tenant, Michael Melf), rendering the foreclosure defective under Wyoming law. The district court dismissed the complaint on prudential (third‑party) standing grounds, concluding the Garretts could not assert a notice violation belonging to their tenant. On appeal, Wells Fargo defended that ruling but also pressed an alternative ground for affirmance: even if plaintiffs could sue, their complaint fails on the merits because Wyoming’s statute requires mailing, not proof of actual receipt, and the Bank mailed the notice by certified mail to the last known address.

Crucially, the Garretts did not file a reply brief. Applying its well‑established waiver doctrine, the Tenth Circuit deemed forfeited any non‑obvious response to Wells Fargo’s alternative merits argument and affirmed on that unchallenged ground without reaching the district court’s prudential‑standing ruling.

The opinion thus reinforces a procedural rule with significant practical consequences for appellate litigants: when an appellee advances an alternative basis to uphold the judgment, an appellant’s failure to respond—particularly by forgoing a reply brief—can waive non‑obvious objections and lead to affirmance on that ground.

Summary of the Opinion

  • The Court affirmed the district court’s dismissal not on standing but on an alternative merits ground: the complaint did not plausibly allege a violation of Wyoming’s foreclosure notice statute, Wyo. Stat. § 34‑4‑103(a)(iv), because that statute requires sending notice by certified mail to the last known address; it does not require proof that the occupant actually received the notice.
  • The Court reached this outcome under its waiver doctrine. Because the appellee identified the alternative ground for affirmance and the appellants elected not to file a reply brief (and only alluded in passing to the merits theory in their opening brief), the appellants waived any non‑obvious responses to the alternative ground.
  • Given that waiver, and noting Wyoming authority indicating receipt is not an element of the statutory requirement, the Court affirmed without addressing whether the district court correctly ruled on prudential (third-party) standing.

Background

The Garretts obtained a mortgage on a home near Cache Creek in Jackson, Wyoming. Wells Fargo later acquired the loan. Living in Florida, the Garretts leased the Wyoming property to tenant Michael Melf. After the Garretts defaulted, Wells Fargo sent “notice of intent to foreclose” by certified mail, return receipt requested, to both the Garretts (in Florida) and the “person in possession” (Mr. Melf) at the Wyoming property. The Postal Service, however, does not deliver to that residence; the mailing to Mr. Melf was returned as undeliverable. No response ensued; the Bank foreclosed. The Teton County Sheriff sold the property at public auction, triggering Wyoming’s three-month redemption period (Wyo. Stat. § 1-18-102). The Garretts did not redeem, and a Sheriff’s deed issued to the purchasers.

In state court, the Garretts sought a declaratory judgment, rescission of the sale, and damages, alleging, among other things, that the foreclosure was defective because the tenant “did not receive” the statutory notice. Wells Fargo removed to federal court and moved to dismiss under Rule 12(b)(6), arguing: (1) plaintiffs lack prudential standing to assert a tenant‑focused notice defect; and (2) even if they could sue, Wyoming law requires only that notice be sent by certified mail to the last known address, not that it be received, so there is no plausible claim. The district court dismissed solely for lack of prudential standing. Plaintiffs appealed, focusing their briefing on standing and not squarely reasserting their “actual receipt” theory on appeal; they then chose not to file a reply brief.

Issues Presented

  • Whether the district court correctly dismissed for lack of prudential (third‑party) standing.
  • Whether, as an alternative ground for affirmance, the complaint fails to state a claim because Wyoming’s foreclosure notice statute requires mailing by certified mail to the last known address but does not require proof of actual receipt by the person in possession.
  • Whether appellants’ failure to file a reply brief waives any non‑obvious response to an appellee’s alternative ground for affirmance.

Analysis

1) Precedents and Authorities Cited

  • Hasan v. AIG Property Casualty Co., 935 F.3d 1092 (10th Cir. 2019): Establishes that when an appellee advances an alternative ground to uphold the judgment and the appellant does not respond, the appellant waives any non‑obvious objections to that ground. This is the central procedural lever the panel uses to affirm here.
  • Eaton v. Pacheco, 931 F.3d 1009 (10th Cir. 2019): Reaffirms the waiver principle applied when appellants fail to counter appellees’ alternative arguments for affirmance.
  • In re Syngenta AG MIR 162 Corn Litigation, 111 F.4th 1095, 1110 n.15 (10th Cir. 2024): Notes and endorses the same waiver concept in a recent decision, reinforcing the doctrine’s currency.
  • Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007): The Court routinely declines to consider arguments not raised or inadequately presented in an opening brief. This undergirds the Court’s refusal to excavate the merits theory from a passing allusion.
  • Walker v. McAnnany, 802 P.2d 876, 879–80 (Wyo. 1990): Wyoming Supreme Court authority indicating that “receipt of the certified mailing is not an element” of the applicable Wyoming notice requirement. The panel invokes Walker to show that the Bank’s alternative merits theory is supported by Wyoming law.
  • Wyo. Stat. § 34‑4‑103(a)(iv): Requires written 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.”
  • Wyo. Stat. § 1‑18‑102: Establishes a three‑month redemption period following the sheriff’s sale in Wyoming foreclosure by advertisement.
  • Fed. R. App. P. 32.1; 10th Cir. R. 32.1: Permit citation to unpublished decisions for their persuasive value.
  • Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G): Provide for submission on the briefs without oral argument, as occurred here.

2) The Court’s Legal Reasoning

a) Framing the route to affirmance via waiver. The Court begins by invoking its waiver doctrine: when an appellee offers an alternative ground to affirm, an appellant’s failure to address that ground—especially by declining to file a reply brief—permits the appellate court to deem waived any non‑obvious responses to that ground and affirm on that basis. The panel cites Hasan and Eaton for this principle and notes Bronson’s admonition that arguments must be properly developed in the opening brief to warrant consideration.

b) Identifying the unchallenged alternative ground. Wells Fargo’s merits theory is straightforward: Wyo. Stat. § 34‑4‑103(a)(iv) demands that notice be “sent” by certified mail to the last known address; it does not make “actual receipt” by the person in possession an element. Even if the tenant did not receive the certified mail because USPS does not deliver to the property, the statute’s mailing requirement was satisfied. The Bank also highlighted compliance by affidavit, a common mechanism in nonjudicial foreclosures to memorialize statutory steps.

c) Appellants’ omission. The Garretts’ opening brief trained its fire on the district court’s prudential‑standing rationale, only obliquely alluding to the “actual notice” theory without developing it. They then chose not to file a reply brief at all. Under the Tenth Circuit’s waiver doctrine, that silence forfeited any non‑obvious rebuttal to the Bank’s merits theory.

d) Minimal merits confirmation. Although waiver does the heavy lifting, the panel notes Wyoming authority—Walker v. McAnnany—which supports the premise that actual receipt is not required. That confirmation underscores that the alternative ground is not just unchallenged; it is also legally sound under state law.

e) Outcome. Because the alternative ground is supported and unopposed in the only way that would matter (a reply brief presenting a non‑obvious rejoinder), the Court affirms the dismissal on that merits ground and expressly declines to reach the district court’s prudential‑standing ruling.

3) Impact and Significance

Appellate practice—reply briefs matter. Although reply briefs are optional under the rules, this case vividly demonstrates their practical necessity when the appellee advances an alternative ground for affirmance. The Tenth Circuit will treat an appellant’s silence as a waiver of any non‑obvious objection to that alternative ground, enabling affirmance without reaching the appellant’s primary issue. Appellants should:

  • Squarely address each alternative ground in their opening brief if possible;
  • Use the reply brief to answer every alternative basis the appellee raises, particularly when those grounds require nuanced legal responses.

Pleading sufficiency in Wyoming foreclosure disputes. The decision carries persuasive weight for Wyoming foreclosure litigation: a plaintiff challenging nonjudicial foreclosure notice must do more than allege non‑receipt. To state a plausible claim under § 34‑4‑103(a)(iv), a complaint should allege facts showing the creditor failed to perform what the statute actually requires—mailing by certified mail with return receipt requested to the “last known address” of the record owner and the person in possession at least ten days before publication—not that the intended recipient failed to receive the letter.

Substantive Wyoming law—mailing vs. receipt. The panel did not create new Wyoming substantive law; it relied on Walker to conclude that receipt is not an element. Even so, this decision adds federal appellate reinforcement—albeit in a nonprecedential form—to that reading: strict compliance focuses on sending the notice properly, not ensuring actual delivery or acceptance.

Third‑party (prudential) standing—still a hurdle, but unaddressed. The district court dismissed for lack of prudential standing, reasoning the borrowers could not sue to vindicate the tenant’s notice rights. The Tenth Circuit affirmed without reaching that issue. Therefore, the case does not alter the contours of third‑party standing in the Tenth Circuit, but it signals that litigants should be prepared to tie alleged statutory defects directly to their own rights or point to statutory text providing a cause of action to them, rather than relying on injuries to others (like tenants).

Practical foreclosure compliance. For lenders and servicers, the decision underscores the importance of:

  • Mailing notice by certified mail with return receipt requested to the last known addresses of both the record owner and the person in possession;
  • Maintaining clear records and affidavits documenting mailing and timing;
  • Considering, as a matter of risk management (even if not legally required), supplemental outreach when a certified mailing is returned undelivered (for example, alternate mailing addresses, personal service, or email when authorized), especially where the occupant’s address is known to be undeliverable by USPS.

Complex Concepts Simplified

  • Alternative ground for affirmance: An appellee can defend a favorable judgment on any basis supported by the record—even one the district court did not rely on. If the appellant does not rebut that alternative basis, the appellate court may affirm on it.
  • Waiver by silence on appeal: Appellate courts often require parties to address arguments raised against them. When an appellant fails to respond to an appellee’s alternative ground, the court treats non‑obvious responses as waived. Here, the choice not to file a reply brief triggered that waiver.
  • Prudential (third‑party) standing: Separate from constitutional standing, prudential standing limits who may assert another’s rights. In many contexts, a litigant may not sue to enforce a third party’s rights unless specific exceptions apply. The district court dismissed on this ground, but the Tenth Circuit did not reach it.
  • “Certified mail with return receipt” vs. actual receipt: This statutory phrasing requires that the sender use certified mail and request a return receipt. It does not guarantee that the recipient will accept or physically receive the mail. Under Wyoming authority, actual receipt is not a legal element for foreclosure notice under § 34‑4‑103(a)(iv).
  • Strict compliance in nonjudicial foreclosure: Many states require lenders to strictly comply with statutory steps in nonjudicial foreclosure. In Wyoming, strict compliance under § 34‑4‑103(a)(iv) concerns proper mailing to the last known address in the manner and timing the statute prescribes—not proof that the addressee actually received the notice.
  • Redemption period: After a sheriff’s sale in Wyoming, the borrower has three months to redeem the property by paying the required amounts. If redemption does not occur, the purchaser receives the Sheriff’s deed, finalizing the transfer.

Key Takeaways

  • Procedural holding: In the Tenth Circuit, an appellant who does not respond to an appellee’s alternative ground for affirmance—particularly by skipping a reply brief—waives any non‑obvious response. The court may then affirm on that ground without reaching the appellant’s primary issues.
  • Substantive backdrop: For Wyoming nonjudicial foreclosure notice, § 34‑4‑103(a)(iv) requires certified mailing to the last known address of the record owner and person in possession; proof of actual receipt is not an element, per Walker v. McAnnany. Allegations of non‑receipt, standing alone, are insufficient to state a violation.
  • Appellate practice pointer: Treat reply briefs as essential when the appellee offers any alternative basis to affirm. Leaving such arguments unanswered can be outcome‑determinative.
  • Pleading pointer: To challenge foreclosure notice in Wyoming, plead facts showing failure to mail as the statute requires (e.g., wrong address, not the “last known address,” insufficient timing), not merely that the addressee did not receive the letter.
  • Standing caution: Even if the merits are sound, plaintiffs should ensure they have standing to assert the particular statutory right at issue; third‑party rights generally cannot be asserted absent a recognized exception.

Conclusion

Garrett v. Wells Fargo is less about mortgage law than about appellate process. The Tenth Circuit affirmed dismissal by invoking its waiver doctrine: when an appellee offers a plausible alternative ground for affirmance and the appellant declines to reply, the court will deem non‑obvious rebuttals waived and may affirm on that basis. Substantively, the Court relied on Wyoming authority indicating that § 34‑4‑103(a)(iv) focuses on the act of mailing, not proof of actual receipt, thus rendering the complaint implausible as pleaded. For future litigants, the message is clear: in the Tenth Circuit, silence—particularly in the reply brief—can be fatal, and in Wyoming foreclosure disputes, non‑receipt alone does not make out a statutory notice violation.

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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