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Grillo v. JP Morgan Chase & Co.

United States District Court, D. Colorado

September 8, 2014

JP MORGAN CHASE & CO., Defendant.


R. BROOKE JACKSON, District Judge.

This case is before the Court on a motion to dismiss filed by defendant JPMorgan Chase & Co. ("Chase"). ECF No. 11. The Court adopted in part a recommendation by Magistrate Judge Mix, and in so doing referred the plaintiff's claims for monetary relief to the Chapter 13 bankruptcy trustee. ECF No. 23. That order and its summary of the facts underlying this case are incorporated by reference. The Court reserved ruling on plaintiff Charles C. Grillo's claims seeking injunctive relief, instead requesting supplemental briefing on several issues. The Court also attempted to obtain pro bono civil counsel for Mr. Grillo in light of the relative complexity of his case. While the Court was unable to obtain counsel for Mr. Grillo, further study and additional briefing by the parties have answered the Court's remaining questions.

I. The Foreclosure and Forfeiting of the Encumbered Property Embodied in the Confirmed Bankruptcy Plan Are Res Judicata.

On March 22, 2013, the Bankruptcy Court confirmed Mr. Grillo's Fourth Amended Bankruptcy Plan. In re Grillo, Case No. 12-30610 (Bankr. D. Colo.), Doc. #61. The now-confirmed plan notes that Mr. Grillo "surrenders the following property" and then lists the property at 1336 Madison Street in Denver, Colorado-the property at issue in the instant case. ECF No. 25, Ex. 1. As Chase notes, the Tenth Circuit treats confirmed bankruptcy plans as the functional equivalent of a final judgment. "Indeed, in the world of bankruptcy proceedings-a world where cases continue on in many ways for many years and lack the usual final judgment of a criminal or traditional civil matter-confirmation of an amended plan is as close to the final order as any bankruptcy judge enters.'" Woolsey v. Citibank, N.A. (In re Woolsey), 696 F.3d 1266, 1269 (10th Cir. 2012) (quoting Interwest Bus. Equip., Inc. v. U.S. Tr. (In re Interwest Bus. Equip., Inc.), 23 F.3d 311, 315 (10th Cir. 1994)).

Where a Chapter 13 bankruptcy plan has been confirmed by the bankruptcy court, principles of res judicata prevent a collateral attack on the judgment. See In re Talbot, 124 F.3d 1201, 1209 (10th Cir. 1997) ("Upon becoming final, the order confirming a chapter 13 plan represents a binding determination of the rights and liabilities of the parties as ordained by the plan. Absent timely appeal, the confirmed plan is res judicata and its terms are not subject to collateral attack.") (internal quotation marks omitted).[1] Other circuits have applied the same rule to similar facts. In Celli v. First National Bank (In re Layo), 460 F.3d 289 (2d Cir. 2006), the court rejected an attempt by a bankruptcy trustee to collaterally attack a mortgage lien that was included in the confirmed Chapter 13 bankruptcy plan. Like Mr. Grillo in the instant case, the debtor in Celli "included the lien in his own plan...." Id. at 295.

Therefore, the issues of Chase's foreclosure on the encumbered property and any specific performance relating to an alleged loan modification program are res judicata. This Court cannot allow a collateral attack on these issues after they were finally decided by the bankruptcy court.

II. Corrected Credit Reporting Is Not Available Under Mr. Grillo's State Law Claims.

The only remaining claim for which Mr. Grillo seeks injunctive relief is his claim related to purportedly erroneous reporting Chase made to the credit bureaus. But Mr. Grillo never pled a violation of the statute normally associated with this sort of injury, i.e., the Fair Credit Reporting Act ("FCRA"). Rather Mr. Grillo's requests for corrections to his credit report arise out of his state law claims for breach of contract, promissory estoppel, and violations of the CCPA. Such relief appears to be preempted by the FCRA. See Collins v. BAC Home Loans Servicing LP, 912 F.Supp.2d 997, 1016 (D. Colo. 2012).

With res judicata prohibiting this Court from reopening the foreclosure and Mr. Grillo's not pleading a violation of the FCRA, the Court's earlier the questions-whether the Rooker-Feldman doctrine applies, whether the case presents the requisite amount in controversy, whether specific performance of the purported modification is possible, and whether Colorado's three- or six-year statutes of limitations applies-are moot.[2]

III. Mr. Grillo's Arguments.

Mr. Grillo's supplemental briefing makes three arguments, none of which persuade me that Chase's motion to dismiss ought to be denied. I address them each in turn.

a. Mr. Grillo's Complaint Suggests No Post-Filing Causes of Action.

First, Mr. Grillo continues to argue that Chase engaged in activities after his bankruptcy filings that would give rise to independent claims that were never the property of the bankruptcy estate. ECF No. 26 at 1, 3.[3] Yet he fails to plead any claims other than those that he had knowledge of before his second filing, as I discussed in my previous order. ECF No. 23 at 6-8. Nor do the facts suggest the existence of any new, independent claims that arose after accrual. The fact that Chase's alleged wrongdoing continued after his claims accrued does not change the analysis. All of the claims contained in Mr. Grillo's complaint accrued-that is Mr. Grillo was sufficiently aware of their existence-at the ...

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