United States District Court, D. Colorado
MARGARET A. SILVA, Plaintiff,
US BANK, NATIONAL ASSOC., as Trustee under the Pooling and Service Agreement dated as of February 1, 2007, GSAMP trust 2007-NCI, MORTGAGE PASS-THROUGH CERTIFICATES, series 207, NCI, PAUL KING, District Court Judge, in his individual capacity, DAVID J. STEVENS, District Court Judge, in his individual capacity, 18TH JUDICIAL DISTRICT, Court of Colo. Arapahoe County, RICHARD B. CASCHETTE, District Court Judge, in his individual capacity, CHRISTINE DUFFY, Douglas County Public Trustee, in her individual capacity, LAWRENCE E. CASTLE, in his corporate capacity, ROBERT J. HOPP, in his individual and corporate capacity, MERS INC., a division of MERSCORP INC., and Does 1-10, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on Plaintiff's Amended
Forthwith Motion for an Order to Show Cause Why a Motion for
TRO/Preliminary Injunction Should Not Issue
[#43] (the “Motion”). In light of
Plaintiff's pro se status, the Court construes her
filings liberally, but must not act as her advocate. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
challenges the foreclosure of her residential property.
See generally Motion [#43]. The Motion [#43] seeks
an order enjoining Defendant Judge Paul King (“Judge
King”) from proceeding with a Forcible Entry and
Detainer proceeding, which was originally scheduled for July
6, 2017 and now, according to the Motion, has been reset to
August 11, 2017. See Motion [#43] at 1. Although
Defendants have not yet filed a response, the Court deems it
appropriate to rule on the Motion at this time. See
D.C.COLO.LCivR 7.1(d) (“Nothing in this rule precludes
a judicial officer from ruling on a motion at any time after
it is filed.”).
Civ. P. 65(a) and (b) govern preliminary injunctions and
temporary restraining orders. “Where the opposing party
has notice, the procedure and standards for issuance of a
temporary restraining order mirror those for a preliminary
injunction.” Emmis Commc'ns Corp. v. Media
Strategies, Inc., No. 00-WY-2507CB, 2001 WL 111229, at
*2 (D. Colo. Jan. 23, 2001) (citing 11A Charles Alan Wright,
et al., Federal Practice and Procedure § 2951
(2d ed.1995)). It is unclear whether Plaintiff has complied
with the notice requirements of the Court's applicable
Local Rules. On August 7, 2017, Plaintiff filed a notice
stating that she sent an email message on July 30, 2017, to
Allison Ailer, apparently the attorney for Judge King and the
18th Judicial District. See [#55]. Plaintiff states
that she received an out-of-office message. Id.
Plaintiff also submitted Civil Process Affidavits signed by
deputies of the Douglas County Sheriff's Office,
indicating that they served an “Amended Forthwith
Motion” and “Exhibit 1” on Defendants Judge
King and 18th Judicial District on July 19, 2017, and July
21, 2017, respectively. See [#45-1, #45]. However,
it is unclear which version of the “Amended Forthwith
Motion” was served on these Defendants. The Court also
notes that neither of these Defendants have entered an
appearance. Nonetheless, considering Plaintiff's pro se
status, the Court applies the standard for a preliminary
injunction here. See Hall, 935 F.2d at 1110.
relief is an extraordinary remedy which should only be
granted when the moving party clearly and unequivocally
demonstrates its necessity. See Schrier v. Univ. of
Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). Granting
such “drastic relief, ” United States
ex rel. Citizen Band Potawatomi Indian Tribe of Oklahoma
v. Enter. Mgmt. Consultants, Inc., 883 F.2d
886, 888-89 (10th Cir.1989), “is the exception rather
than the rule.” GTE Corp. v.
Williams, 731 F.2d 676, 678 (10th Cir. 1984). In the
Tenth Circuit, a party requesting injunctive relief must
clearly establish the following: (1) the party will suffer
irreparable injury unless the injunction issues; (2) the
threatened injury outweighs whatever damage the proposed
injunction may cause the opposing party; (3) the injunction,
if issued, would not be adverse to the public interest; and
(4) there is a substantial likelihood of success on the
merits. Id. “The purpose of a preliminary
injunction is not to remedy past harm but to protect
plaintiffs from irreparable injury that will surely result
without their issuance.” Id. at 1267.
[b]ecause the limited purpose of a preliminary injunction is
merely to preserve the relative positions of the parties
until a trial on the merits can be held, we have identified
the following three types of specifically disfavored
preliminary injunctions . . . (1) preliminary injunctions
that alter the status quo; (2) mandatory preliminary
injunctions; and (3) preliminary injunctions that afford the
movant all the relief that [he] could recover at the
conclusion of a full trial on the merits.
Id. at 1258-59 (citations omitted). These disfavored
injunctions are “more closely scrutinized to assure
that the exigencies of the case support the granting of a
remedy that is extraordinary even in the normal
course.” Id. at 1259.
noted above, Plaintiff seeks an order enjoining Defendants
Judge King and the 18th Judicial District from proceeding
with a Forcible Entry and Detainer Proceeding. Thus, the
relief Plaintiff seeks would alter the status quo, as this
would require that the Court intervene in state court
proceedings. Therefore, the injunctive relief sought by
Plaintiff “constitutes a specifically disfavored
injunction” that “must be more closely
scrutinized.” See Schrier, 427 F.3d at 1261.
Accordingly, the Motion [#43] must be denied unless
Plaintiff's “right to relief [is] clear and
unequivocal.” Id. at 1258.
Plaintiff has failed to demonstrate that she is substantially
likely to succeed on the merits. See Schrier, 427
F.3d at 1258. Plaintiff challenges the constitutionality of
Colorado's Rule 120 proceedings. See Motion
[#43] at 2. Specifically, she states that Rule 120
proceedings are limited and do not allow homeowners to
present all available defenses, and that the burden of proof
that now applies in Rule 120 proceedings following amendments
to Colorado's foreclosure laws unfairly favors
lenders. Id. at 3-4, 8-9. However,
“precedent makes clear that a judicial proceeding
brought pursuant to Rule 120 which follows the dictates of
that law does not violate an individual's due process
rights under the Fifth and Fourteenth Amendments.”
Lewis v. JP Morgan Chase Bank, National Assoc., No.
13-cv-1375-PAB-KLM, 2014 WL 1217948, at *10 n.5 (D. Colo.
Mar. 24, 2014) (internal citations omitted).
Plaintiff's bare allegation that Judge Caschette did not
require U.S. Bank to prove that it had standing to foreclose
on the property is conclusory, and therefore does not meet
Plaintiff's burden to demonstrate that her right to
relief is “clear and unequivocal.”
Motion [#43] at 10.
Plaintiff alleges that “Judge Caschette's Order
Authorizing Sale . . . and the Release agreement was
[sic] made on condition that U.S. Bank modify the
loan, which U.S. Bank failed to do and breached the agreement
. . . .” Motion [#43] at 5-6. On the
Court's examination of the Order Authorizing Sale
attached to the Motion, the documents do not contain any such
agreement, nor is the Court certain of the relevancy of
Plaintiff's argument. Id. at 20-21.
result of the foregoing, the Court concludes that Plaintiff
has failed to show a likelihood of success on the merits, and
respectfully recommends that the Motion
[#43] be denied. See Fasi v. HSBC Bank
USA, N.A., No. 12-cv-03290-PAB-MJW, 2013 WL 50434 at *3
(D. Colo. Jan. 3, 2013) (stating that where plaintiff fails
to demonstrate one of the factors considered on a motion for
a TRO, “[t]he Court need not reach the other factors of
reasons stated above, The Court hereby respectfully
RECOMMENDS that ...