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McCoy v. Deutsche Bank National Trust Co.

United States District Court, D. Colorado

February 23, 2016

VALENCIA McCOY, and SEAN MCCOY, Plaintiffs,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee of the registered holders of GSAMP Trust 2004-AR2 Mortgage Pass-Through Certificates Series 2004-AR2; COUNTY OF ARAPAHOE, also known as Arapahoe County, DAVID C. WALCHER, individually and in his capacity as Sheriff of Arapahoe County, BARRETT, FRAPPIER & WEISERMAN, LLP, and LAUREN TEW, ESQ., Defendants.

          ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX, Magistrate Judge.

         This matter is before the Court on Defendants Arapahoe County and Sheriff David C. Walcher's (together, "County Defendants") Motion to Dismiss Plaintiff's Complaint [#5][1] ("Motion") and Defendants Deutsche Bank National Trust Company ("Deutsche"), Barrett Frappier & Weisserman, LLP, and Lauren Tew, Esq.'s (together, "BFW Defendants") Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [#8] ("Motion"). Plaintiffs, who proceed pro se, [2] did not initially file a response to Defendants' motions, and on May 22, 2015, the Court sua sponte extended the deadline for the filing of a Response and ordered that Plaintiffs respond no later than June 12, 2015. Minute Order [#17]. Plaintiffs did not respond until July 6, 2015, see Response [#18], and Defendants subsequently filed Motions to Strike [##23, 25].

         Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), these four pending Motions have been referred to the undersigned. See Orders Referring Motions [##6, 9, 24, 26]. The Court has reviewed the Motions [##5, 8, 23, 25], the Response [#18], relevant law, and the entire case file, and is advised in the premises. For the reasons stated below, the Court RECOMMENDS that Defendants' Motions to Dismiss [##5, 8] be GRANTED. Further, given the Court's recommendation, the Court DENIES the Motions to Strike [##23, 25] as moot.

         I. Background

         This action arises out of the foreclosure on and subsequent sale of property located at 5836 South Genoa Court, Aurora, Colorado (the "Property"). Compl. [#1] at ¶ 1. Plaintiffs Valencia McCoy and Sean McCoy allege that they were tenants of the Property and had been residing there since June 17, 2014. Id. at ¶ 2. Plaintiffs claim that they were gone from the Property from October 7 to October 21, 2014, and that, upon their return, they discovered that the locks had been changed and that all of their belongings had been removed from the Property. Id. at ¶¶ 4-5. Plaintiffs claim that they were not served in a state foreclosure case involving the Property, not served with a Writ of Restitution, and that a Writ of Restitution was never signed by the Court Clerk or Judge in the County Court in Arapahoe County. Id. at ¶¶ 7-9.

         Thus, on March 25, 2015, Plaintiffs filed a complaint against Defendants alleging the following causes of action: (1) violation of the Fourteenth Amendment; (2) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692f, against Defendant Deutsche and the BFW Defendants only; (3) replevin of personal property against Defendant Deutsche and the BFW Defendants only; (4) injunctive relief; and (5) violation of the Protecting Tenants at Foreclosure Act ("PTFA"), 12 U.S.C. § 5220 note, against Defendant Deutsche and the BFW Defendants only. Compl. [#1] ¶¶ 10-39.

         As relief, Plaintiffs request injunctive relief to "remain living on the property in their home for the remainder of the lease" as well as permanent injunctions against "any further enforcement of the challenged law" and, finally, "compensatory relief based upon the Defendants[] removal and confiscation of all of the Plaintiffs' personal property[.]" Id. at 14. Plaintiffs clarify that they "are not seeking damages from the Arapahoe County Sheriff David C. Walcher or the COUNTY OF ARAPAHOE AKA ARAPAHOE COUNTY, but we are only seeking injunctive relief from these County Defendants." Id. (emphasis in original). It appears that shortly after Plaintiffs filed the Complaint, Plaintiffs were evicted from the Property. See Motion [#8] at 6.

         Defendants responded to Plaintiffs' Complaint by filing the present motions to dismiss. Motions [##5, 8]. The County Defendants argue that the Court should dismiss Plaintiffs' claims because the Court lacks personal jurisdiction over Arapahoe County, Plaintiffs' claims are barred by absolute and sovereign immunity, and because Plaintiffs fail to state claims upon which relief can be granted. Motion [#5] at 3-9. Similarly, the BFW Defendants and Defendant Deutsche contend that Plaintiffs have failed to allege any valid causes of action under federal or state law. Motion [#8] at 9.

         Plaintiffs subsequently filed an untimely Response [#18] on July 6, 2015, and, in addition, an affidavit in support of their Response [#19] on July 7, 2015, and Defendants subsequently filed motions to strike these submissions. Motions to Strike [##23, 25]. Plaintiffs, in their Response, [3] argue that Defendants have violated 42 U.S.C. § 1983, the Fourth Amendment, and the Fourteenth Amendment by seizing their property "without any of the prior judicial notices that are required under Colorado law[.]" Response [#18] at ¶ 13. Plaintiffs also argue that Defendant Deutsche and the BFW Defendants "effected a seizure of the Plaintiffs[] home and personal property... in violation of the Warrant Clause of the Fourth Amendment" and accuse Defendants of the "theft of the Plaintiff[s'] personal property[.]" Id. at ¶ 20. Plaintiffs then state that, after their property was allegedly taken by Defendants Deutsche and the BFW Defendants, in November 2014 these same Defendants "recruit[ed]... the Courts and the Sheriff in the eviction process in violation of the Fourth Amendment, FDCPA, and the PTFA." Id. at ¶ 21.

         II. Legal Standard

         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 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 Atl. Corp. 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 brackets added; citation and internal quotation marks omitted).[4]

         III. Analysis

         A. Defendants Arapahoe County and Sheriff David C. Walcher

         Numerous bases warrant dismissal of the claims against the County Defendants. As a threshold matter, because Plaintiffs appear to only seek injunctive relief against the County Defendants to prevent them from interfering with Plaintiffs' alleged "right to remain living on the property, " Compl. [#1] at 14, the claims alleged against the County Defendants have been mooted by the eviction of Plaintiffs from the Property. See Response [#18] at ¶ 1; Motion [#8] at 6. Thus, because the Court cannot grant the requested relief, there is no case in controversy between Plaintiffs and the County Defendants. See Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S.Ct. 1523, 1528 (2013) ("If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot.") (internal quotation omitted). Nonetheless, because the Complaint is not clear, the Court also addresses Plaintiffs' other claims should the Plaintiffs have intended the Complaint to request monetary damages against the County Defendants.

         1. Personal Jurisdiction

         The County Defendants argue that the Court lacks personal jurisdiction over the County of Arapahoe. Motion [#5] at 3. The Court agrees. Colorado law provides that "the name in which the county shall sue or be sued shall be, The board of county commissioners of the county of ____'" Colo. Rev. Stat. § 30-11-105. "This statutory provision provides the exclusive method by which jurisdiction over a county can be obtained. An action attempted to be brought under any other designation is a nullity, and no valid judgment can enter in such a case." Gonzales v. Martinez,403 F.3d 1179, 1187 n.7 ...


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