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Burns v. Mac

United States District Court, D. Colorado

March 26, 2014

SUSAN BURNS, Plaintiff,
FREDDIE MAC, BANK OF AMERICA and, DOES 1 through 30, Defendants.


WILLIAM J. MARTÍNEZ, District Judge.

Pro se plaintiff Susan Burns ("Plaintiff") brings this case against Defendants Freddie Mac, Bank of America, and Does 1 through 30 (collectively "Defendants"), for injunctive relief and damages related to a mortgage on Plaintiff's residence. (ECF No. 5.) This matter is before the Court on the January 23, 2014 Recommendation of United States Magistrate Judge Kristen L. Mix ("Recommendation") (ECF No. 17) that Defendants' Motion to Dismiss Plaintiff's Complaint ("Motion") (ECF No. 10) be granted in part and denied in part. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). For the reasons set forth below, the Recommendation is adopted in full.


When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." Fed.R.Civ.P. 72(b)(3). In the absence of a timely and specific objection, "the district court may review a magistrate... [judge's] report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record."). In conducting its review, "[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

In addition, Plaintiff is proceeding pro se; thus, the Court must liberally construe her pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).


Neither party objects to the recitation of facts set forth by the Magistrate Judge in the Recommendation. (ECF No. 41 at 2-6.) Accordingly, the Court adopts and incorporates the factual background detailed in that Recommendation as if set forth herein. Briefly, this matter arises out a Deed of Trust and a Promissory Note held variously by Defendants Freddie Mac and Defendant Bank of America. (Compl. (ECF No. 5) p. 4.) Plaintiff contends that after she failed to make two payments on the mortgage in 2005, Defendant Bank of America initiated a foreclosure proceeding and refused to accept the late payments. ( Id. ) After this initial encounter, Plaintiff alleges that Defendants variously offered her loan modifications but refused to provide correct documentation of them or adhere to the agreed upon terms, obstructed her attempts to enroll in federal loan modification programs, and initiated foreclosures in retaliation or as an inducement to obtain additional payments from her. ( Id. at 7.) Plaintiff also alleges that Defendant Bank of America made false and slanderous statements by reporting false or misleading information on her credit reports. ( Id. at 7-8.)

Plaintiff filed this action in the Superior Court for the State of Colorado, City and County of Denver, on July 9, 2013, alleging claims for breach of contract (Claim 1), usury (Claim 2), fraud and deceit (Claim 3), intentional misrepresentation (Claim 4), and slander (Claim 5).[1] (ECF No. 5.) Defendants removed the case to this Court on August 7, 2013 based on diversity of the parties. (ECF No. 1.) On August 14, 2013, Defendants filed a Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 10.) Plaintiff filed a Response (ECF No. 14) and Defendants a Reply (ECF No. 15).

On January 23, 2014, Magistrate Judge Mix entered a Recommendation to deny the Motion with respect to Plaintiff's Claim 5 for slander, and to grant the Motion in all other respects. (Rec. (ECF No. 17).) On February 7, 2014, Plaintiff filed an objection to the Recommendation (ECF No. 19), to which Defendants filed a response (ECF No. 23). Defendants filed no objection to the Recommendation.


The Magistrate Judge's Recommendation contains the following findings and conclusions: (1) to the extent that Plaintiff's Claim 1, breach of contract, is premised on Defendants' telephone agreements to modify the loan, it is barred by the Colorado Credit Agreement Statute of Frauds ("CCASF"); (2) Plaintiff's Claims 3 and 4, fraud and deceit and intentional misrepresentation, are also barred by the CCASF; (3) to the extent that Plaintiff's Claim 1 is premised on an alleged breach of the Deed of Trust, it is an affirmative defense to an action by Defendants, and cannot be brought as an affirmative breach of contract claim; (4) Plaintiff's Claim 2, usury, fails as a matter of law because the interest rate at issue does not exceed 11.5%; and (5) Plaintiff's Claim 5, slander, should not be dismissed based on the statute of limitations because there is no indication in the documents before the Court on this Motion that Plaintiff's claim accrued more than one year before she filed this action. (Rec. at 12-21.) Of these findings and conclusions, Plaintiff objects only to the second, which recommends dismissal of Claims 3 and 4 as barred by the CCASF.[2] ( See ECF No. 19 at 1-3.)

The Recommendation also discusses the documents offered for the Court's consideration in the parties' briefing on the Motion, and concludes as follows: (1) the Deed of Trust, the Promissory Note, and the assignment from the original lender to Bank of America are all appropriate for consideration as public records referred to in the Complaint and central to Plaintiff's claims; (2) the e-mails between Plaintiff and Bank of America can be considered only to show that the correspondence took place; and (3) the letter from Plaintiff dated July 26, 2007 and the news article regarding a class action lawsuit will not be considered. (Rec. at 7-10.) Plaintiff does not object to any of these conclusions. (ECF No. 19.)

As to the first, third, fourth, and fifth findings in the Recommendation regarding Plaintiff's claims, and as to the Magistrate Judge's conclusions regarding the propriety of considering the attached documents, the Court has reviewed the record and agrees with the Magistrate Judge's analysis. Neither party objects to these findings and conclusions, and the Court finds no clear error. See Summers, 927 F.2d at 1167; Fed.R.Civ.P. 72 Advisory Committee's Note. Accordingly, the Court adopts the Recommendation that Defendants' Motion to Dismiss be granted with respect to Plaintiff's Claims 1 and 2, and dismisses these claims with prejudice, with the exception of Plaintiff's Claim 1 insofar as it alleges a breach of the Deed of Trust, which is dismissed without prejudice.

As to the second finding in the Recommendation, Plaintiff objects to the Magistrate Judge's conclusion that Claims 3 and 4 are barred by the CCASF. (ECF No. 19 at 1-3.) The CCASF bars any claim by a debtor against a creditor that relates to a credit agreement for a principal amount exceeding $25, 000, unless the credit agreement at issue is in writing and signed by the creditor. See Colo. Rev. Stat. § 38-10-124. Plaintiff admits that the CCASF "would eliminate fraud for agreements no[t] put into writing, " but argues that because the definition of fraud is broad, she can maintain a fraud claim based on "other areas of my dealings with Bank of America." (ECF No. 19 at 2.) Specifically, Plaintiff contends that her fraud claim is based on Defendant Bank of America's attempts to force her into a higher-priced loan modification than that available through federal programs, and its deliberate misrepresentations regarding the deadlines and ...

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