Driskell v. Thompson

• Decision Date: 10 September 2013
• Docket Number: Civil Action No. 12–cv–03107–REB–KLM.
• Citation: 971 F.Supp.2d 1050
• Parties: Robert J. DRISKELL, Plaintiff, v. Bruce R. THOMPSON, Chief Financial Officer (CFO), doing business as CFO Bruce R. Thompson Bank of America, N.A, and Bank of America N.A., et al, and John Doe 1–100, successor by merger BAC Home Loans Serving, LP, formerly known as Countrywide Home Loans, LP, Defendants.
• Court: U.S. District Court — District of Colorado

971 F.Supp.2d 1050

Robert J. DRISKELL, Plaintiff,

v.Bruce R. THOMPSON, Chief Financial Officer (CFO), doing business as CFO Bruce R. Thompson Bank of America, N.A, and Bank of America N.A., et al, and John Doe 1–100, successor by merger BAC Home Loans Serving, LP, formerly known as Countrywide Home Loans, LP, Defendants.

Civil Action No. 12–cv–03107–REB–KLM.

United States District Court, D. Colorado.

Sept. 10, 2013.

Robert J. Driskell, Colorado Springs, CO, pro se.

Melissa Louise Cizmorris, Victoria Elena Edwards, Akerman Senterfitt LLP Denver, CO., for Defendants.

ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

ROBERT E. BLACKBURN, District Judge.

The matter before me is the Recommendation of United States Magistrate Judge [# 44],¹ filed August 21, 2013. No objection having been filed to the recommendation, I review it for plain error only. See Morales–Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir.2005).² Finding no such error in the magistrate judge's recommended disposition, I find and conclude that the recommendation should be approved and adopted.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [# 44], filed August 21, 2013, is APPROVED AND ADOPTED as an order of this court;

2. That Defendant's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [# 21], filed January 3, 2013, is GRANTED; 3. That plaintiff's claims against defendant, Bank of America, N.A., alleging violations of the Fourth, Fifth, and Fourteenth Amendments, are DISMISSED WITHOUT PREJUDICE;

4. That plaintiff's claims against defendant, Bank of America, N.A., alleging fraud, violations of the Fair Debt Collection Practices Act, and violation of the Seventh Amendment, are DISMISSED WITH PREJUDICE;

5. That at the time judgment enters, judgment SHALL ENTER on behalf of defendant, Bank of America, N.A., against plaintiff, Robert J. Driskell; provided, that the judgment on plaintiff's claims arising under the Fourth, Fifth, and Fourteenth Amendments shall be without prejudice and that the judgment on plaintiff's claims alleging fraud, violation of the Fair Debt Collection Practices Act, and violation of the Seventh Amendment shall be with prejudice; and

6. That defendant, Bank of America, N.A., is DROPPED as a named party to this action, and the case caption AMENDED accordingly.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, United States Magistrate Judge.

This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [Docket No. 21; Filed January 3, 2013] (the “Motion”). The Motion is referred to this Court for recommendation [# 22]. Plaintiff has not filed a response to the Motion and his time to do so has elapsed. The Motion is ripe for review. The Court has reviewed the Motion, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [# 21] be GRANTED.

I. Statement of the Case

A. Procedural History

Plaintiff, who proceeds in this matter pro se, brings this action against a private bank which foreclosed on the mortgage on his home.¹ While the Complaint consists mainly of various pieces of information Plaintiff appears to have cobbled together from a variety of sources—the result being a Complaint that is very unclear about what specific claims Plaintiff is attempting to assert—liberally reading the Complaint, the Court interprets the Complaint as follows: Plaintiff's “First Claim for Relief” titled “Ultra Vires” appears to be a fraud claim, Plaintiff's “Second Claim for Relief” appears to consist of factual allegations and argument and is not actually a cause of action, and Plaintiff's “Third Claim for Relief” is brought pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and also mentions C.R.S. § 4–9–210.²See generally Compl. [# 1]. ³ In his “Request for Relief,” Plaintiff also seeks damages for “unlawful trespass.” Id. at 17. However, because Plaintiff does not otherwise allege facts in support of a trespass claim, the Court will not treat this request for damages as a separate claim. Similarly, as part of his “Request for Relief,” Plaintiff states that his Fourth, Fifth, Seventh, and Fourteenth Amendment rights were violated by Defendants.⁴ In sum, Plaintiff's Complaint challenges the foreclosure of the property located at 5347 Old Farm Circle East, Colorado Springs, Colorado (the “Property”). See Motion [# 21] at 2; see also Fixed/Adjustable Rate Note [# 1–1] at 12; Lis Pendens Notice of Pending Lawsuit [# 1–1] at 22; Trans. of Rule 120 Hearing [# 1–1] at 34–66.⁵ Plaintiff seeks monetary damages and injunctive relief in the form of a “release of the Title to [his] property.” Compl. [# 1] at 17.

On January 3, 2013, Defendant Bank of America, N.A. (“BANA”) ⁶ responded to Plaintiff's Complaint with the instant Motion [# 21]. In the Motion, Defendant BANA argues that the Court should abstain from hearing this case. Motion [# 21] at 4–6. Defendant BANA also argues that the Court should dismiss the case pursuant to the Rooker–Feldman doctrine because a ruling in this case would interfere with a state court proceeding. Id. at 6–8. Defendant BANA further argues that the Complaint should be dismissed for failure to comply with Fed. R. of Civ. P. 8 and 10 because “[t]he complaint is merely a screed against the bank, demonstrating plaintiff's anger and frustration, but not a legally cognizable cause of action” which does not “explain what BANA did wrong that would entitle [Plaintiff] to the relief [he] seek[s].” Id. at 8. In the alternative, Defendant BANA attacks Plaintiff's claims and seeks dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Id. at 9–15.

On January 23, 2013, Plaintiff filed a motion [# 24] seeking to extend his time to respond to the Motion and the next day filed an amended motion [# 27] seeking the same relief, in which he specified that he sought an extension to March 13, 2013. On March 18, 2013, both of Plaintiff's motions seeking to extend his deadline to respond to the Motion were denied as moot [# 31]. On April 18, 2013, the Court sua sponte extended Plaintiff's deadline to respond to the Motion to May 4, 2013. Minute Order [# 32] at 1. Despite the extension, Plaintiff did not file a response.

On July 1, 2013, the Court ordered the parties to file status reports “addressing the status of the State Court Action ⁷ on or before July 15, 2013 ... explain[ing] whether the status of the State Court Action moots or otherwise impacts the” Motion [# 21]. See Minute Order [# 39] at 1. The Status Reports [ 40, 41] are discussed in detail below.

B. Summary of the Facts

According to the Complaint and relevant documents, ⁸ on July 11, 2013, Plaintiff executed a promissory note (the “Fixed/Adjustable Rate Note”, or the “Note”) in the amount of $152,000.00, payable to America's Wholesale Lender (“AWL”), a company Plaintiff alleges is owned by Countrywide Financial Corporation. Compl. [# 1] at 2; Note [# 1–1] at 12. The Note is transferable, and is payable to “anyone who takes [the] Note by transfer and who is entitled to receive payments.” Note [# 1–1] at 12. On the same date, Plaintiff also executed a deed of trust whereby the Property was tendered as security for the repayment of the debt evidenced by the Note. Deed of Trust [# 1–1] at 1–11. The deed of trust was recorded in the real property records of El Paso County, Colorado, on July 18, 2003, at number 203164376 (the “Deed of Trust”). Id.

Plaintiff alleges that AWL securitized Plaintiff's loan after the transaction, and that the loan was included in a group of bonds which were sold to Fannie Mae. Compl. [# 1] at 2. Plaintiff contends that his loan was sold as a mortgage backed security without his knowledge or permission and that the sale to Fannie Mae was a “fraudulent conversion.” Id. Plaintiff complains that he “had to pay the liabilities created by their fraudulent conversion of the funds, in the form of payments and interest.” Id. at 3. Plaintiff claims that on or about July 2008 Bank of America Home Loans ⁹ “took over the servicing of the alleged loan.” Id. Plaintiff states that sometime thereafter, Defendant BANA initiated foreclosure proceedings against the Property. Id. He claims that “[b]efore the foreclosure process began, [he] ordered a payoff demand statement from [BANA] and tendered a payment in full with a negotiable debt discharge instrument which [BANA] received.” Id. Plaintiff takes the position that BANA “accept[ed] liability for the [discharge] instruments under the rules of acceptance and retention as prescribed by UCC Art. 3 and 4e” which Plaintiff claims means there is no existing debt owed on the Note. Id. Plaintiff further claims that “the bank was served several debt validation requests under the FDCPA ... [and C.R.S. § 4–9–102] which [BANA] failed to answer adequately or within the prescribed time frame.” Id. Plaintiff alleges that the Rule 120 proceeding violated the FDCPA which “requires all collection activity to cease until the debt is validated.” Id. Plaintiff claims that the Rule 120 proceeding was biased and that the “documents in question are filled with fraud.” Id. at 4. In support of his allegations, Plaintiff attaches to his Complaint a transcript of the June 26, 2012 Rule 120 proceeding brought in El Paso County District Court. See generally Rule 120 Trans. [# 1–1] at 34–66. As a result of the foreclosure hearing, the state court judge entered an Order Authorizing Sale on June 26, 2012. See generally Request for Judicial Notice, Ex. 1 [# 21–2]. In response, Plaintiff filed the State Court Action in El Paso County District Court against Defendant Thompson, Defendant BANA, and Mortgage Electronic Registration Systems, Inc. alleging fraud and breach of contract. See generally Request for...