United States District Court, D. Colorado
CHARLES C. GRILLO, Plaintiff,
JPMORGAN CHASE & CO., Defendant.
R. BROOKE JACKSON, District Judge.
This is a case about a "mortgage" (a deed of trust), an alleged contract modifying the mortgage, foreclosure, and two bankruptcies. The case is before the Court on JPMorgan Chase & Co.'s motion to dismiss [ECF No. 11] and Magistrate Judge Mix's accompanying Report and Recommendation [ECF No. 18]. There is complete diversity between the parties, and the amount in controversy exceeds $75, 000. Therefore the Court has jurisdiction pursuant to 28 U.S.C. § 1332. The Court agrees with the defendant and Judge Mix that Mr. Grillo is not the real party in interest for his claims requesting monetary relief. Mr. Grillo's claims for injunctive relief, however, are more complicated, and the Court requests additional briefing on that topic before ruling on the motion to dismiss.
I. FACTUAL BACKGROUND.
The plaintiff, Charles C. Grillo, received a mortgage loan from JPMorgan Chase & Co. ("Chase") in 2007. Mr. Grillo alleges that as a prerequisite to obtaining financing, Chase required him to consolidate his personal credit card debt with the new mortgage resulting in an underwater loan. Mr. Grillo became unable to afford the payments on this new mortgage and defaulted in 2009. He alleges that Chase granted him a Trial Period Plan ("TPP") in May of 2009. This TPP would have provided permanent loan modification in exchange for Mr. Grillo's making three trial payments over the course of three months. Mr. Grillo allegedly made the three trial payments, but Chase never enrolled him in the modification. Instead, in March 2010, Chase allegedly refused to accept the payments and sought foreclosure of the encumbered property.
On March 17, 2010, Mr. Grillo filed for bankruptcy under Chapter 7. See Case No. 10-15686-SBB. Nowhere in the schedules of assets for this bankruptcy did Mr. Grillo disclose potential claims against Chase related to the loan modification. [ECF No. 11, Ex. 4.] The bankruptcy court granted an order of discharge on June 25, 2010. While the bankruptcy was still pending, Chase filed a foreclosure action in the Denver District Court on June 11, 2010. [ECF No. 11, Ex. 5.] The case was dismissed without prejudice in September 2010, but Chase refiled on January 1, 2012. [ECF No. 11, Ex. 6.] The court granted the Rule 120 motion in June 2012, authorizing sale of the foreclosed property. Id. Mr. Grillo claims that he and Chase then entered into yet another round of negotiations in an attempt to find a way to let him stay in the home. He further claims that Chase "kicked [him] out" of the modification plan in October 2012 without any explanation. On October 4, 2012, Mr. Grillo filed a second bankruptcy petition-this time under Chapter 13-in which he again did not disclose any potential claims against Chase. [ECF No. 11, Ex. 8; see Case No. 12-30610-SBB.] This second bankruptcy came to a close on March 22, 2013 when the bankruptcy court approved the Amended Chapter 13 Plan in which Mr. Grillo agreed to surrender the foreclosed property to Chase. [ECF No. 11, Ex. 10.]
II. PROCEDURAL BACKGROUND.
Mr. Grillo filed a complaint against Chase on November 26, 2013. [ECF No. 1.] He brings claims of breach of contract, promissory estoppel, and violations of the Colorado Consumer Protection Act ("CCPA"). Id. Chase moved to dismiss Mr. Grillo's complaint for lack of jurisdiction and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) and (6), and I referred the matter to Magistrate Judge Kristen L. Mix for a recommended disposition. Judge Mix recommended dismissal on the grounds that Mr. Grillo is not the real party in interest to bring claims seeking monetary relief, and that he is judicially estopped from bringing his remaining claims seeking injunctive relief. [ECF No. 18.] Mr. Grillo filed an objection to the recommendation on May 6, 2014. [ECF No. 21.] The motion and recommendation are now fully briefed and ripe for review by the Court.
A. Standard of Review.
Following the issuance of a magistrate judge's recommendation on a dispositive matter the district court judge must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). The district judge is permitted to "accept, reject, or modify the recommended disposition; receive further instruction; or return the matter to the magistrate with instructions." Id. However, a party's failure to object to a magistrate judge's recommendation on a dispositive motion does not "strip a district court of its power to revisit" the motion. Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006) (citations omitted). In such a situation, "the district court was required to defer to the magistrate judge's ruling unless it [was] clearly erroneous or contrary to law.'" Id. (quoting Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir.1997)). "Under the clearly erroneous standard, the reviewing court [must] affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988)).
Chase's motion to dismiss is grounded on purported lack of subject matter jurisdiction and failure to state a claim. A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) can take two forms: the motion can attack the face of the complaint, or it can attack the facts supporting jurisdiction. Where the motion attacks the facts underlying jurisdiction,
a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted).
In reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief may be granted, the Court must accept the well-pleaded allegations of the complaint as true and construe them in plaintiff's favor. However, the facts alleged must be enough to state a claim for relief that is plausible, not merely speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plausible claim is a claim 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, 129 S.Ct. 1937, 1949 (2009). Allegations that are purely conclusory need not be assumed to be true. Id. at 1951.
Finally, because Mr. Grillo represents himself pro se, the Court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient ...