United States District Court, D. Colorado
JOSEPH G. GRIGAT, and BRIGITTE A. GRIGAT, Plaintiffs,
MORTGAGE LENDERS NETWORK, USA, BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, and JP MORGAN CHASE BANK, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Bank of New York Mellon Trust Company (“BNY”),
seeks to dismiss Plaintiffs Joseph Grigat and Brigitte
Grigat's Complaint in its entirety. According to BNY,
this Court lacks jurisdiction pursuant to the
Rooker-Feldman doctrine. Because Plaintiffs seek to
completely undo their final state court foreclosure
proceeding, the Court agrees with BNY that
Rooker-Feldman bars this Court from granting the
relief Plaintiffs seek. Accordingly, the Court respectfully
recommends dismissing this case in its entirety.
following are factual allegations made by Plaintiffs in their
Complaint and submitted by BNY in support of its motion.
“Because [BNY's] Rooker-Feldman argument
presents a factual challenge to this [C]ourt's subject
matter jurisdiction, the [C]ourt . . . has wide discretion to
allow affidavits and other documents to resolve any
jurisdictional facts.” Garcia v. Aronowitz &
Macklenburg, LLP, No. 13-cv-00241-RBJ-MJW, 2013 WL
3895044, at *3 (D. Colo. July 26, 2013); Holt v. United
States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (stating
that when a defendant does not attack the complaint's
allegations as to subject matter jurisdiction, a court may
refer to evidence outside the pleadings).
April 26, 1999, Plaintiffs executed a promissory note for the
benefit of Defendant Mortgage Lenders Network USA, Inc.
(“Mortgage Lenders”). Compl. ¶ 24, ECF No.
1; ECF No. 1-1. The next day, Mortgage Lenders assigned the
deed of trust to Bank One National Association (“Bank
One”). ECF No. 20-3. In October 2008 Plaintiffs asked
their lender to identify the lawful owner of their mortgage
and whether they would receive clear and marketable title to
their home once they paid their loan in its entirety. Compl.
¶ 18. After receiving what they considered to be an
inadequate response, Plaintiffs withheld their mortgage
payments. Id. ¶¶ 19-20. On February 26,
2015, Bank One assigned the deed of trust to BNY, as
successor to JPMorgan Chase Bank. ECF No. 20-4.
Plaintiffs stopped paying their mortgage, BNY initiated
foreclosure proceedings on May 27, 2015. Compl. ¶ 20;
ECF No. 20-5 (notice of election and demand for sale by
public trustee). After Plaintiffs failed to respond to
BNY's motion for order authorizing sale, the court
permitted the sale to go forward pursuant to Colorado Rule of
Civil Procedure 120. ECF No. 20-10 (order authorizing sale).
BNY subsequently purchased the property at the foreclosure
sale, ECF No. 20-12, and the court issued an order approving
sale on August 15, 2016. ECF No. 20-14. On May 16, 2017, BNY
posted a demand for possession and notice to vacate. ECF No.
pro se, Plaintiffs initiated this case on May 30, 2017.
Compl., ECF No. 1. Plaintiffs contend the mortgage on their
property is unenforceable, because, among other reasons,
transferring the deed of trust caused a modification of the
mortgage without their consent. Compl. 25. Plaintiffs also
argue that BNY lacked standing to foreclose on the invalid
mortgage. Id. Accordingly, Plaintiffs assert claims
for “cancellation and expungement” of the
mortgage instrument and a declaration that the
“recordation of mortgage was voidable.”
Id. at 20-25.
responded to Plaintiffs' Complaint by filing the present
Motion to Dismiss. ECF No. 20. BNY contends the Court lacks
subject matter jurisdiction over Plaintiffs' claims
pursuant to the Rooker-Feldman doctrine.
Id. at 8. According to BNY, because Plaintiffs'
claims challenge the final foreclosure order in a Colorado
state court case, granting “the relief sought in
Plaintiffs' Complaint would turn this Court into a de
facto appellate court.” Id. at 10.
Additionally, BNY argues that even if this Court finds it has
subject matter jurisdiction, Plaintiffs fail to state a
claim. Id. at 11-30. Plaintiffs filed a response
brief on August 23, 2017. Resp. to Mot. to Dismiss, ECF No.
38. Regarding BNY's jurisdictional argument, Plaintiffs
argue Rule 120 proceedings do not result in final judgments
that “trigger application of the
Rooker-Feldman doctrine.” Id. at 12.
BNY filed its reply brief on September 6, 2017. ECF No. 44.
Dismissal under Fed.R.Civ.P. 12(b)(1)
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.”
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, but only a
determination that the court lacks authority to adjudicate
the matter. See Pueblo of Jemez v. United States,
790 F.3d 1143, 1151 (10th Cir. 2015) (recognizing federal
courts are courts of limited jurisdiction and may only
exercise jurisdiction when specifically authorized to do so).
A court lacking jurisdiction “must dismiss the cause at
any stage of the proceeding in which it becomes apparent that
jurisdiction is lacking.” Id. (citing Full
Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th
Cir. 2013)). 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.
Pueblo of Jemez, 790 F.3d at 1151. Accordingly,
Plaintiffs in this case bear the burden of establishing that
this Court has jurisdiction to hear their claims.
Dismissal of a Pro Se ...