United States District Court, D. Colorado
MARY M. MAYOTTE, an individual, Plaintiff,
US BANK NATIONAL ASSOCIATION, as Trustee for Structured Asset Investment Loan Trust Mortgage Pass-Through Certificates, Series 2006-4, WELLS FARGO BANK. N.A., AMERICA’S SERVICING COMPANY, and All Persons or Entities Claiming any Legal or Equitable Right, Title, Estate, Lien or Interest in the Property Described in this Complaint Adverse to Plaintiff’s Title, or any Cloud upon Plaintiff’s Title Thereto, and DEBRA JOHNSON, Public Trustee, Defendants.
R. Brooke Jackson United States District Judge
This matter is before the Court on defendants’ “Motion to Dismiss Second Amended Complaint” [ECF No. 37] and the recommendation of Magistrate Judge Craig B. Shaffer that the Court grant the defendants’ motion and dismiss the case [ECF No. 52]. The recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
The recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the recommendation. ECF No. 52 at 14-15. In response to plaintiff’s request, this Court extended the objections deadline to December 11, 2015. ECF No. 54. Plaintiff filed timely objections. ECF No. 55. Defendants filed a response to those objections on December 30, 2015. ECF No. 56. The Court has reviewed all of the relevant pleadings and Magistrate Judge Shaffer’s Recommendation. After its de novo review, the Court adopts the Recommendation.
Plaintiff Mary M. Mayotte brings this matter pro se to challenge the foreclosure of the property at 23 South Garfield Street, Denver, CO 80209 (“the Property”). ECF No. 31 at 8. She alleges a number of violations, including of the Real Estate Settlement Procedures Act; the Fair Debt Collection Practices Act; 42 U.S.C. § 1983; the Fifth and Fourteenth Amendments of the United States Constitution; and state tort law. ECF No. 31 at 2-4. Defendants are U.S. Bank National Association, as Trustee for Structured Asset Investment Loan Trust Mortgage Pass-Through Certificates, Series 2006-4 (“U.S. Bank”); Wells Fargo Bank, N.A., doing business as America’s Servicing Company (“Wells Fargo”); and Debra Johnson as Public Trustee of Denver County. ECF No. 31.
Mayotte purchased the Property in 1999. ECF No. 31 at 10. In February 2006 she acquired a $481, 650 loan from New Century Mortgage Corporation (“New Century”) to refinance the Property. ECF No. 31 at 10; 31-1. Mayotte agreed to an adjustable rate note for the amount of the loan, which was payable to New Century. ECF No. 31-1 at 4. The note stipulates that the lender can transfer the note. Id. Mayotte and New Century signed a deed of trust with Mayotte listed as the borrower and New Century listed as the lender. Id. at 8-21. Mayotte pledged the Property as collateral for the loan. Id. In December 2011 New Century assigned the deed of trust to U.S. Bank. Id. at 3. Wells Fargo services the loan for U.S. Bank. ECF No. 31 at 11.
The pleadings do not clearly identify the timeline of events, but it seems that beginning in July 2008, Mayotte missed three loan payments. Id. at 11. It appears that Mayotte unsuccessfully attempted to modify her loan. Id. at 14-16. Additionally, she alleges that three foreclosure proceedings were initiated before U.S. Bank commenced the foreclosure proceedings at issue in 2013. Id. Following a Rule 120 hearing, the Denver County District Court issued an order authorizing sale (OAS) of the Property on November 12, 2014. ECF Nos. 31 at 14; 10-1.Less than one week later, on November 17, 2014, Mayotte brought this suit against defendants.
ECF No. 1. The Public Trustee subsequently sold the Property on December 4, 2014. ECF No. 31 at 14.
On December 8, 2014 Mayotte amended her initial complaint. ECF No. 12. On two occasions defendants filed motions to dismiss in response to Mayotte’s initial complaint and the first amended complaint. ECF Nos. 9, 19. This Court found those motions to be moot in light of Mayotte’s amending her claims. ECF Nos. 20, 39. On February 27, 2015 Mayotte filed her second amended complaint. ECF No. 31. Mayotte’s second amended complaint governs here because “an amended complaint supersedes the original complaint and renders the original complaint of no legal effect.” Franklin v. Kan. Dept. of Corr., 160 F. App’x 730, 734 (10th Cir. 2005). Defendants filed the present motion to dismiss on March 30, 2015. ECF No. 37.
I.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). When a case involves a pro se party, courts will “review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. U.S. Government, 472 F.3d 1242, 1243 (10th Cir. 2007). However, “it is not the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A broad reading of a pro se plaintiff’s pleadings “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based . . . conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Id. Pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotations and citations omitted).
II. Defendants’ Motion to Dismiss.
Defendants argue that the Rooker-Feldman doctrine precludes the Court from exercising subject matter jurisdiction over all of Mayotte’s claims. ECF No. 37 at 16-17. Alternatively, even if the Court does have subject matter jurisdiction, defendants claim that Mayotte has failed to state a claim upon which relief could ...