Silva v. U.S. Bank, Civil Action No. 17-cv-01529-WJM-KLM

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
PartiesMARGARET A. SILVA, Plaintiff, v. US BANK, NATIONAL ASSOC., as Trustee under the Pooling and Service Agreement dated as of February 1, 2007, GSAMP trust 2007-NCI, MORTGAGE PASS-THROUGH CERTIFICATES, series 207, NCI, PAUL KING, District Court Judge, in his individual capacity, DAVID J. STEVENS, District Court Judge, in his individual capacity, 18TH JUDICIAL DISTRICT, Court of Colo. Arapahoe County, RICHARD B. CASCHETTE, District Court Judge, in his individual capacity, CHRISTINE DUFFY, Douglas County Public Trustee, in her individual capacity, LAWRENCE E. CASTLE, in his corporate capacity, ROBERT J. HOPP, in his individual and corporate capacity, MERS INC., a division of MERSCORP INC., and Does 1-10, Defendants.
Decision Date14 February 2018
Docket NumberCivil Action No. 17-cv-01529-WJM-KLM

MARGARET A. SILVA, Plaintiff,
v.
US BANK, NATIONAL ASSOC.,
as Trustee under the Pooling and Service Agreement dated as of February 1, 2007,
GSAMP trust 2007-NCI, MORTGAGE PASS-THROUGH CERTIFICATES, series 207, NCI,
PAUL KING, District Court Judge, in his individual capacity,
DAVID J. STEVENS, District Court Judge, in his individual capacity,
18TH JUDICIAL DISTRICT, Court of Colo.
Arapahoe County,
RICHARD B. CASCHETTE, District Court Judge, in his individual capacity,
CHRISTINE DUFFY, Douglas County Public Trustee, in her individual capacity,
LAWRENCE E. CASTLE, in his corporate capacity,
ROBERT J. HOPP, in his individual and corporate capacity,
MERS INC., a division of MERSCORP INC., and Does 1-10, Defendants.

Civil Action No. 17-cv-01529-WJM-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 14, 2018


RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on the following motions: (1) Defendant Christine Duffy's Motion to Dismiss the Second Amended Complaint [#57]1 ("Duffy's Motion"), (2) Defendant Robert J. Hopp's Motion to Dismiss the Second Amended Complaint Pursuant to Fed. R. 12(b)(1) and Fed. R. 12(b)(6) [#59] ("Hopp's Motion"), (3) Defendants Judge Paul King, Judge David J. Stevens, Judge Richard B. Caschette, and the 18th

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Judicial District Court of Colorado Arapahoe County's Motion to Dismiss [#61] (the "Judicial Defendants' Motion"), (4) Defendants US Bank and MERS' Motion to Dismiss Second Amended Complaint [#62] ("US Bank and MERS' Motion"), and (5) Defendant Lawrence E. Castle's Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) [#80] ("Castle's Motion"). Plaintiff filed Responses [#65, #66, #75, #84] to Defendants US Bank and MERS, Duffy, the Judicial Defendants, and Castle's Motions, respectively.2 Defendant US Bank and MERS, Duffy, the Judicial Defendants, and Castle filed Replies [#77, #76, #79, #88, respectively]. No Response or Reply was filed with respect to Hopp's Motion [#59].

Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c)(3), the Motions have been referred to the undersigned for recommendation. See [#58, #60, #63, #64, #81]. Having reviewed all motions and related briefing, the entire case file, the relevant law, and being sufficiently advised in the premises, the Court respectfully RECOMMENDS that all Defendants' Motions [#57, #59, #61, #62, #80] be GRANTED.

I. Background

Plaintiff challenges the foreclosure of her residential property (the "Property"). Plaintiff previously filed a lawsuit in this Court (13-cv-02289-MSK-CBS), in which a settlement agreement was reached between Plaintiff and Ocwen Loan Servicing. Plaintiff later disputed the settlement agreement and the case was ultimately administratively closed on September 15, 2014, in order for the parties to discuss alternative resolutions to the litigation. See Order [#101]. To date, the 2013 matter has not been reopened.

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Plaintiff, who is proceeding pro se,3 filed a Complaint [#1] initiating the present lawsuit on June 23, 2017. Plaintiff filed a series of motions for injunctive relief seeking to enjoin the state court from proceeding with a Forcible Entry and Detainer proceeding. The Court recommended denying the earlier motions due to procedural deficiencies, and most recently recommended denying Plaintiff's request for injunctive relief because the Court found that Plaintiff had failed to show a likelihood of success on the merits. See Recommendation [#56]. The District Judge adopted the Recommendation. Order [#67]. Meanwhile, Plaintiff successfully amended her pleadings, the operative pleading now being the Second Amended Complaint [#47].

Plaintiff raises eight enumerated claims for relief in the Second Amended Complaint [#47]: (1) due process and equal protection violations of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, (2) conspiracy pursuant to § 1983, (3) fraud by misrepresentation and non-disclosure, (4) unjust enrichment, (5) a request for injunctive relief pursuant to Ex Parte Young, and (6) misfeasance in public office.4 Second Am. Compl. [#47] at 1-2. Plaintiff alleges that § 38-38-101 of the Colorado Revised Statutes as amended by HB-1387, which provide the basis for Colorado's foreclosure procedures under Rule 120, violate the Fourteenth Amendment. Plaintiff brings these claims against

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the following Defendants: (1) the assignee and assignor of the deed of trust on her residence (Defendants US Bank and MERS), (2) three State Court District Judges who presided over her state court proceedings (Defendant Judges Caschette, Stevens, and King) and the District where the proceedings took place (Defendant 18th Judicial District), (3) a Public Trustee (Defendant Duffy), and (4) two private attorneys (Defendants Castle and Hopp).5

As relief, Plaintiff seeks an order voiding the foreclosure and setting aside any foreclosure sale, a declaration that the amendments to Colorado's foreclosure statute are unconstitutional, a declaration that Rule 120 is procedurally defective, $1,000,000 in damages each from Defendants Castle and Hopp, and other related relief. See Second Am. Compl. [#47] at 39-41.

On October 20, 2017, Defendants US Bank and MERS filed a Suggestion of Bankruptcy, and Notice of Relief from Stay [#83] stating that Plaintiff has filed for Chapter 7 Bankruptcy protection (Case No. 17-17973-EEB), but that the United States Bankruptcy Court for the District of Colorado granted a relief from stay "to proceed with litigation pending" in the present matter. See [#83].

II. Legal Standards

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

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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)).

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

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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 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 grounds' that discovery will reveal evidence to support the plaintiff's allegations." (quoting Twombly, 550 U.S. at 570)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Id. (brackets in original; internal quotation marks omitted).

To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a factual allegation has been stated, "but it has not show[n][ ]that the pleader is entitled to relief," as required by Fed. R. Civ. P. 8(a). Iqbal, 552 U.S. at 679 (second

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