Schonebaum v. Shellpoint Mortg. Servicing, Mortg. Elec. Registration Sys., Inc., Civil Action No. 14-cv-03093-REB-KLM

CourtU.S. District Court — District of Colorado
Writing for the CourtENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
PartiesMERLE H. SCHONEBAUM, and DENISE M. SCHONEBAUM, Plaintiffs, v. SHELLPOINT MORTGAGE SERVICING, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and BANK OF NEW YORK MELLON as Trustee for Countrywide ALT 2005-42CB Trust, Defendants.
Docket NumberCivil Action No. 14-cv-03093-REB-KLM
Decision Date29 February 2016

MERLE H. SCHONEBAUM, and DENISE M. SCHONEBAUM, Plaintiffs,
v.
SHELLPOINT MORTGAGE SERVICING, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
and BANK OF NEW YORK MELLON as Trustee for Countrywide ALT 2005-42CB Trust, Defendants.

Civil Action No. 14-cv-03093-REB-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 29, 2016


RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) [#18]1 (the "Motion"). Plaintiff, who is proceeding pro se,2 filed a Response [#20] in opposition to the Motion, and Defendants filed a Reply [#22]. The Motion is thus ripe for review. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c)(3), the Motion is referred to the undersigned for recommendation

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[#25]. Having reviewed the entire case file and being sufficiently advised, the Court RECOMMENDS that the Motion [#18] be GRANTED.

I. Summary of the Case

On July 8, 2005, Plaintiffs signed and executed a Promissory Note in the amount of $218,400 and a Deed of Trust securing the Promissory Note with property located at 16368 East Phillips Lane, Englewood, Colorado, 80112. Compl. [#1] ¶ 10; id. [#1-2] at 38, 41-43. The Deed of Trust was then recorded in Arapahoe County on July 25, 2005. Id. [#1-2] at 2. The Deed of Trust named America's Wholesale Lender as the "Lender" and Defendant Mortgage Electronic Registration Systems, Inc. ("Defendant MERS") as the "nominee for Lender and Lender's successors and assigns"3 as well as the beneficiary. Id. Plaintiffs were listed as the "Borrower." Id. The Promissory Note was endorsed in blank.4 Id. [#1-2] at 43. Under the terms of the Deed of Trust, Defendant MERS, as the nominee, was given explicit authority to act on behalf of America's Wholesale Lender, which included the right to sell the Promissory Note and the Deed of Trust. Id. [#1-2] at 3, 10.

In March of 2012, Defendant MERS, acting as the nominee, assigned the Deed of Trust pursuant to an Assignment of Deed of Trust to Defendant Bank of New York Mellon as Trustee for Countrywide ALT 2005-42CB Trust ("Defendant BNYM"). Compl. [#1] ¶ 11; id. [#1-2] at 20. The Assignment of Deed of Trust was then recorded in Arapahoe County on March 22, 2012. Compl. [#1] ¶ 11.

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On May 7, 2012, Plaintiffs filed a joint petition for Chapter 7 bankruptcy with the United States Bankruptcy Court in the District of Colorado. See Motion [#18] at 3; id. [# 18-1].5 Plaintiffs received a Chapter 7 discharge on August, 17, 2012. Id. [#18-3].

In early February of 2014, Plaintiffs received a letter from Defendant Shellpoint Mortgage Servicing ("Defendant Shellpoint"), dated February 14, 2014, stating that Resurgent Mortgage Servicing would become part of Defendant Shellpoint and that the servicing of Plaintiffs' loan would be transferred to Defendant Shellpoint beginning on March 1, 2014. Compl. [#1-2] at 57. On or about March 30, 2014, Plaintiffs received a letter, dated March 26, 2014, from Defendant Shellpoint stating that, on behalf of Defendant BNYM, Defendant Shellpoint was providing notice that Plaintiffs' loan was in default for failure to pay. Compl. [#1] ¶ 12; id. [#1-2] at 30.

In June of 2014, Plaintiffs received a "Securitization Analysis & County Records Report" ("Audit Report") from Holmes & Galt, LLC, which Plaintiffs allege put them on notice of alleged wrongdoings by all Defendants concerning Plaintiffs' loan. Id. [#1-1]; id. [#1-2] at 22-28; Response [#20] at 4. Plaintiffs claim that in response to the Audit Report and the notice of default letter dated March 26, 2014, Plaintiffs sent a Qualified Written Request ("QWR") to Defendant Shellpoint on August 1, 2014, asking for information

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regarding Plaintiffs' account. Compl. [#1] ¶ 13; id. [#1-2] at 32-34; Response [#20] at 4. On August 18, 2014, Plaintiffs received confirmation of receipt of the QWR from Defendant Shellpoint. Compl. [#1] ¶ 14; id. [#1-2] at 36. Subsequently, on September 15, 2014, Plaintiffs received Defendant Shellpoint's response to Plaintiffs' QWR, which included copies of the Assignment of the Deed of Trust, the Promissory Note, the Deed of Trust, Good Faith Estimate, Loan Application, Settlement Statement, Notice of Servicing Transfer, Acquisition Letter, and a loan transaction history dating back to the origination of the loan. Id. [#1-2] at 38-65.

Plaintiffs allege that the payment history provided by Defendant Shellpoint is a false "off-balance sheet." Id. [#1] ¶ 15. Plaintiffs further allege that the chain of title regarding the Promissory Note and Deed of Trust was broken because Defendant MERS had no legal authority to transfer any interest in the loan to Defendant BNYM. Id. ¶¶ 23, 35, 50. Plaintiffs contend that because Defendant MERS had no authority to transfer, none of the Defendants have legal ownership of the loan. Id. ¶ 41. Plaintiffs assert that the "entire enforcement and foreclosure" of the loan by Defendants was "improper, wrongful, illegal and/or fraudulent." Id. ¶ 45.

Thus, Plaintiffs assert several statutory and tort claims pursuant to federal and Colorado law based on their allegations that Defendants engaged in a fraudulent mortgage loan scheme. Id. at 3. Specifically, Plaintiffs bring the following claims for relief: (1) violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601, et seq., against Defendant Shellpoint; (2) violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq., against Defendant Shellpoint; (3) violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, against Defendant Shellpoint; and, against all

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Defendants, (4) intentional misrepresentation; (5) unjust enrichment; (6) civil conspiracy; and (7) wrongful foreclosure. Compl. [#1] at 12-18. Plaintiffs seek "cancellation of instruments," an order quieting title to the property, and money damages. Id. at 12-21.

In response, Defendants filed the instant Motion [#18] requesting that the Court dismiss Plaintiffs' complaint. In the Motion, Defendants argue that Plaintiffs lack standing to bring these claims. Defendants assert that these causes of action all accrued prior to Plaintiffs' filing for Chapter 7 bankruptcy and that Plaintiffs did not disclose these causes of actions in their petition for bankruptcy. Motion [#18] at 2-4, 6-7. Defendants contend that, by failing to disclose causes of action that accrued prior to the filing for bankruptcy, Plaintiffs' unlisted claims became property of the bankruptcy estate, and hence only the trustee of the bankruptcy estate has standing to bring these claims. In the alternative, Defendants argue that all of Plaintiffs' claims fail to state a claim upon which relief can be granted. Id. at 7-16.

II. Standard of Review

A. Federal Rule of Civil Procedure 12(b)(1)

The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because "federal courts are courts of limited jurisdiction," the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed. R. Civ. P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

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A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court "may not presume the truthfulness of the complaint's factual allegations." Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing." Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on "evidence outside the pleadings" to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.

B. Federal Rule of Civil Procedure 12(b)(6)

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ. P. 12(b)(6) (stating that a complaint may be dismissed for "failure to state a claim upon which relief can be granted"). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), "a

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complaint must contain enough allegations of fact 'to state a claim to relief that is plausible on its face.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) ("The complaint must plead sufficient facts, taken as true, to provide 'plausible...

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