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Brumfiel v. U.S. Bank, N.A.

United States District Court, D. Colorado

December 11, 2014

U.S. BANK, N.A. trustee, Merrill Lynch/First Franklin Mortgage Loan Trust trustee, Mortgage Loan Asset Backed Certificates, Series 2007 FF1, SELECTED PORTFOLIO SERVICING INC., BANK OF AMERICA N.A., and JOHN DOES 1-100, Defendants.


WILLIAM J. MARTÍNEZ, District Judge.

This matter is before the Court on the October 28, 2014 Recommendation of United States Magistrate Judge Michael E. Hegarty ("Recommendation") (ECF No. 39) that the Motion to Dismiss Complaint Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) ("Motion") (ECF No. 10), filed by Defendants U.S. Bank, N.A. and Selected Portfolio Servicing Inc., and joined by Defendant Bank of America N.A. (collectively "Defendants"), be granted. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff Lisa Kay Brumfiel ("Plaintiff") filed a timely Objection to the Recommendation (ECF No. 43), and Defendants filed a Response to the Objection (ECF No. 51). For the reasons set forth below, the Objection is sustained in part and overruled in part, the Recommendation is adopted in part and rejected in part, and the Motion is granted.


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."). An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it "enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute." Id. ( quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). 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.

Because Plaintiff is proceeding pro se, 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).

Defendant's Motion is brought pursuant to Rule 12(b)(1)[1], which empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing that federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so).

A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Id.


Neither party objects to the recitation of facts set forth by the Magistrate Judge in the Recommendation. Accordingly, the Court adopts and incorporates the factual background detailed in the Recommendation as if set forth herein.

Briefly, Plaintiff brings this action to quiet title and for slander of title in relation to Defendant U.S. Bank's attempt to foreclose on the property located at 1499 South Jasper Street, Aurora, Colorado 80017 (the "Property"). ( See Compl. (ECF No. 1).) Plaintiff states that she has owned the Property since November 14, 2006. ( Id. ¶ 2.) On October 12, 2012, Plaintiff filed an action in this Court (" Brumfiel I ") challenging the constitutionality of the non-judicial foreclosure process of Colorado Rule of Civil Procedure 120, under which U.S. Bank was then attempting to foreclose on the Property. ( Id. ¶¶ 2, 22.) U.S. Bank subsequently withdrew the non-judicial foreclosure, and on May 17, 2013, it filed a judicial foreclosure proceeding in state court regarding the Property (the "Foreclosure Proceeding"). ( Id. ¶ 26.) On October 2, 2013, the Court dismissed Brumfiel I for lack of jurisdiction, based principally on the fact that the non-judicial foreclosure had been withdrawn. Brumfiel v. U.S. Bank, N.A., 2013 WL 5495543, at *1 (D. Colo. Oct. 2, 2013). Plaintiff's motions for post-judgment relief were denied, and Plaintiff's appeal of Brumfiel I is currently pending.

Plaintiff filed the instant case on September 3, 2014. ( See Compl.) Defendants' Motion was filed on September 12, 2014. (ECF No. 10.) Defendant Bank of America joined the Motion on October 2, 2014. (ECF No. 17.) On the same day, Plaintiff filed a Response to the Motion (ECF No. 18), and Defendant subsequently filed a Reply (ECF No. 20). The Recommendation was issued on October 28, 2014. (ECF No. 39.)


The Magistrate Judge's Recommendation contains the following findings and conclusions: (1) the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), requires the Court to abstain from exercising jurisdiction over this action due to the ongoing Foreclosure Proceeding; and (2) even if Younger does not apply, the Court should decline to exercise jurisdiction pursuant to the doctrine set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). (ECF No. 39 at 5-11.) As a result, the Magistrate Judge recommends granting Defendant's Motion and dismissing this case for lack of jurisdiction. ( Id. at 11.)

In Plaintiff's Objection, she challenges the Magistrate Judge's findings that the Younger abstention doctrine and the Colorado River doctrine apply to this case.[2] (ECF No. ...

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