Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Silva v. U.S. Bank, National Assoc.

United States District Court, D. Colorado

February 14, 2018

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.


          Kristen L. Mix, United States Magistrate Judge

         This matter is before the Court on the following motions: (1) Defendant Christine Duffy's Motion to Dismiss the Second Amended Complaint [#57][1] (“Duffy's Motion”), (2) Defendant Robert J. Hopp's Motion to Dismiss the Second Amended Complaint Pursuant to Fed. R. 12(b)(1) and Fed. R. 12(b)(6) [#59] (“Hopp's Motion”), (3) Defendants Judge Paul King, Judge David J. Stevens, Judge Richard B. Caschette, and the 18th Judicial District Court of Colorado Arapahoe County's Motion to Dismiss [#61] (the “Judicial Defendants' Motion”), (4) Defendants U.S. Bank and MERS' Motion to Dismiss Second Amended Complaint [#62] (“US Bank and MERS' Motion”), and (5) Defendant Lawrence E. Castle's Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [#80] (“Castle's Motion”). Plaintiff filed Responses [#65, #66, #75, #84] to Defendants U.S. Bank and MERS, Duffy, the Judicial Defendants, and Castle's Motions, respectively.[2] Defendant U.S. Bank and MERS, Duffy, the Judicial Defendants, and Castle filed Replies [#77, #76, #79, #88, respectively]. No Response or Reply was filed with respect to Hopp's Motion [#59].

         Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c)(3), the Motions have been referred to the undersigned for recommendation. See [#58, #60, #63, #64, #81]. Having reviewed all motions and related briefing, the entire case file, the relevant law, and being sufficiently advised in the premises, the Court respectfully RECOMMENDS that all Defendants' Motions [#57, #59, #61, #62, #80] be GRANTED.

         I. Background

         Plaintiff challenges the foreclosure of her residential property (the “Property”). Plaintiff previously filed a lawsuit in this Court (13-cv-02289-MSK-CBS), in which a settlement agreement was reached between Plaintiff and Ocwen Loan Servicing. Plaintiff later disputed the settlement agreement and the case was ultimately administratively closed on September 15, 2014, in order for the parties to discuss alternative resolutions to the litigation. See Order [#101]. To date, the 2013 matter has not been reopened.

         Plaintiff, who is proceeding pro se, [3] filed a Complaint [#1] initiating the present lawsuit on June 23, 2017. Plaintiff filed a series of motions for injunctive relief seeking to enjoin the state court from proceeding with a Forcible Entry and Detainer proceeding. The Court recommended denying the earlier motions due to procedural deficiencies, and most recently recommended denying Plaintiff's request for injunctive relief because the Court found that Plaintiff had failed to show a likelihood of success on the merits. See Recommendation [#56]. The District Judge adopted the Recommendation. Order [#67]. Meanwhile, Plaintiff successfully amended her pleadings, the operative pleading now being the Second Amended Complaint [#47].

         Plaintiff raises eight enumerated claims for relief in the Second Amended Complaint [#47]: (1) due process and equal protection violations of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, (2) conspiracy pursuant to § 1983, (3) fraud by misrepresentation and non-disclosure, (4) unjust enrichment, (5) a request for injunctive relief pursuant to Ex Parte Young, and (6) misfeasance in public office.[4] Second Am. Compl. [#47] at 1-2. Plaintiff alleges that § 38-38-101 of the Colorado Revised Statutes as amended by HB-1387, which provide the basis for Colorado's foreclosure procedures under Rule 120, violate the Fourteenth Amendment. Plaintiff brings these claims against the following Defendants: (1) the assignee and assignor of the deed of trust on her residence (Defendants U.S. Bank and MERS), (2) three State Court District Judges who presided over her state court proceedings (Defendant Judges Caschette, Stevens, and King) and the District where the proceedings took place (Defendant 18th Judicial District), (3) a Public Trustee (Defendant Duffy), and (4) two private attorneys (Defendants Castle and Hopp).[5]

         As relief, Plaintiff seeks an order voiding the foreclosure and setting aside any foreclosure sale, a declaration that the amendments to Colorado's foreclosure statute are unconstitutional, a declaration that Rule 120 is procedurally defective, $1, 000, 000 in damages each from Defendants Castle and Hopp, and other related relief. See Second Am. Compl. [#47] at 39-41.

         On October 20, 2017, Defendants U.S. Bank and MERS filed a Suggestion of Bankruptcy, and Notice of Relief from Stay [#83] stating that Plaintiff has filed for Chapter 7 Bankruptcy protection (No. 17-17973-EEB), but that the United States Bankruptcy Court for the District of Colorado granted a relief from stay “to proceed with litigation pending” in the present matter. See [#83].

         II. Legal Standards

         A. Federal Rule of Civil Procedure 12(b)(1)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction, ” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.

         B. Federal Rule of Civil Procedure 12(b)(6)

         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 Atlantic Co. 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).

         III. Analysis

         A. Claims against Defendant Hopp

         As an initial matter, Defendant Hopp advises the Court that he filed for Chapter 7 bankruptcy protection on June 25, 2013 (No. 13-20838-SBB). His case was discharged on February 10, 2014, and then closed on March 19, 2014. A permanent injunction and stay was issued under 11 U.S.C. § 727. Defendant asserts that all claims against him should be dismissed because the allegations against Defendant Hopp occurred prior to June 25, 2013, and Plaintiff did not file an adversary action in Defendant Hopp's bankruptcy case. See Second Am. Compl. [#47] at 4 (alleging that Defendant Hopp was referred to the Public Trustee Association to streamline the foreclosure process between 2002-2006). It should be noted that Defendant Hopp does not cite to any legal authority in support of his position.

         A Chapter 7 bankruptcy discharges the debtor from debts arising before the date of discharge. 11 U.S.C. § 727. “Debt” means “liability on a claim, ” and “claim” means the “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(12), (5). However, debt may only be discharged with respect to creditors who received actual, timely notice of the bankruptcy proceedings. 11 U.S.C. § 523(a)(3); see also In re Green, 876 F.2d 854, 856 (10th Cir. 1989); Reliable Elec. Co. v. Olson Constr. Co., 726 F.2d 620, 622 (10th Cir. 1984) (due process requires adequate notice to a creditor before its rights can be adversely affected). Here, Defendant Hopp has not indicated whether Plaintiff received actual, timely notice of the Chapter 7 proceedings. See 11 U.S.C. § 523(a)(3). Accordingly, the Court considers Plaintiff's claims against him in section D.3.b. below.

         B. Prior Settlement Agreement with Defendant U.S. Bank

         Defendant U.S. Bank argues that Plaintiff is barred from bringing all stated claims against it due to the Settlement Agreement that was executed at the end of her 2013 case. US Bank and MERS' Motion [#62] at 9-10. The Settlement Agreement, which Plaintiff attached to her First Amended Complaint [#16], [6] provides:

Borrowers [Plaintiff] . . . hereby unconditionally, irrevocably, forever and fully releases, acquits, and forever discharges U.S. Bank . . . [and] Ocwen . . . of and from any and all claims, demands, actions, causes of action, suits, liens, debts, obligations, promises, agreements, costs, damages, liabilities, and judgments of any kind . . . whether known or unknown . . . which were or could have been raised in, arise out of, relate to, or in any way, directly or indirectly, involve the [2013] Action, the Property, the Note, the Deed of Trust, or the Loan . . . .

Settlement Agreement [#16] at 85-92.

         Colorado law holds that a court may “summarily enforce a settlement agreement if it is undisputed that a settlement exists.”[7] DiFrancesco v. Particle Interconnect Corp., 39 P.3d 1243, 1247 (Colo.App. 2001) (citing Goltl v. Cummings, 380 P.2d 556 (Colo. 1963)). However, here Plaintiff alleges that Defendant U.S. Bank did not negotiate in good faith, and asserts that U.S. Bank failed to comply with its obligation to modify the loan so that Plaintiff could remain on the Property. Second Amended Complaint [#47] at 7. Giving Plaintiff's allegations the broad deference afforded to pro se litigants' filings, Plaintiff sufficiently alleges a material breach of contract that may have released her from waiving the right to assert these claims. See Carfield & Sons, Inc. v. Cowling, 616 P.2d 1008, 1010 (Colo.App. 1980) (stating that major breaches may terminate the non-breaching party's obligations under the contract).[8] Accordingly, the Court considers the claims asserted against Defendant U.S. Bank below.

         C. Claims Against State Court Judicial District and Individual Judges

         Plaintiff alleges that Defendant Caschette, a State Court District Judge, “denied plaintiff due process in a procedurally defective Rule 120 [proceeding].” See Second Am. Compl. [#47] ¶¶ 98-101, 108-113. The allegations underlying this statement appear to be that Defendant Judge Caschette denied Plaintiff's motion to vacate the Rule 120 complaint and entered an Order of Sale without a hearing. Id. Defendants Stevens and King are the State Court District Judges who presided over the Forcible Entry and Detainer proceeding, which Plaintiff asserts violates the Fourteenth Amendment because the proceeding reinforced the unlawful Rule 120 proceeding. Id. ¶¶ 103, 177. Plaintiff's claims are brought against the three judges in their individual capacities only.

         Pursuant to the Eleventh Amendment, the Court lacks subject matter jurisdiction to adjudicate an action brought by a citizen of a state against the state itself, its agencies, or its officials in their official capacities. See Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir.1995). “It is well established that absent an unmistakable waiver by the state of its Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by Congress, the amendment provides absolute immunity from suit in federal courts for states and their agencies.” Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994), overruled on other grounds by Ellis v. University of Kansas Med. Ctr., 163 F.3d 1186 (10th Cir. 1998). Here, Plaintiff concedes that Defendant 18th Judicial District is an arm of the state. Second Am. Compl. [#47] at 37. Indeed, judicial districts are considered state courts under Article VI of the Colorado Constitution, which also provides the jurisdictional limitations, parameters for the creation of judicial districts, term limits for district judges, and other such rules. See Judicial Defendants' Motion [#61] at 5. Additionally, at least one other case in this District has held that judicial districts are entitled to Eleventh Amendment immunity. See Fey v. Washington, No. 16-CV-03103-WJM-MEH, 2017 WL 1344451, at *5 (D. Colo. Apr. 12, 2017). Thus, the Court finds that Defendant 18th Judicial District is an arm of the state for immunity purposes.

         Contrary to Plaintiff's arguments in the Response [#75], the State of Colorado has not waived its Eleventh Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988), and congressional enactment of § 1983 did not abrogate Eleventh Amendment immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979). The Eleventh Amendment applies to all suits against the state and its agencies, regardless of the relief sought. See Higganbotham v. Okla. Transp. Comm'n, 328 F.3d 638, 644 (10th Cir. 2003). Therefore, the Court respectfully recommends that the claims against Defendant 18th Judicial District be dismissed without prejudice for lack of subject matter jurisdiction on the basis of Eleventh Amendment immunity. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“[W]here the district court dismisses an action for lack of jurisdiction, . . . the dismissal must be without prejudice.” (citations omitted)).

         Next, the Court turns to the claims against the individual judicial defendants. “[A]bsolute immunity is necessary so that judges can perform their functions without harassment or intimidation.” Van Sickle v. Holloway, 791 F.2d 1431, 1435 (10th Cir. 1986). A judge will lose judicial immunity only for (1) “nonjudicial actions, i.e., actions not taken in the judge's judicial capacity” or (2) judicial actions “taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991). “[T]he factors determining whether an act by a judge is a ‘judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978).

         Here, Plaintiff has challenged the propriety of the individual judges' (Caschette, King, and Stevens) actions in connection with the Rule 120 and eviction proceedings over which they presided. Second Am. Compl. [#47] at 5, 37. These actions are indisputably judicial in nature. See Brackhahn v. Eder, No. 13-cv-00141-CMA-KMT, 2013 WL 2394980, at *5 (D. Colo. May 31, 2013) (allegations arising out of a judge's official duties in handling a foreclosure action and authorizing a sale constitute judicial acts normally performed by a judge). Plaintiff's remaining arguments that judicial immunity does not extend to state court district judges and that Rule 120 proceedings are non-judicial are plainly incorrect. See Response [#75] at 13-14. Additionally, “the doctrine of judicial immunity now extends to suits against judges where a plaintiff seeks not only monetary relief, but injunctive relief as well[, ]” except where “a declaratory decree was violated or declaratory relief was unavailable.” Lawrence v. Kuenhold, 271 F. App'x 763, 766 n.6 (10th Cir. 2008); Brackhahn, 2013 WL 2394980, at *4. Plaintiff does not allege, nor does it otherwise appear, that a declaratory decree was violated or that declaratory relief was unavailable to Plaintiff. Therefore, the Court respectfully recommends that the individual-capacity claims against Defendant Judges Caschette, King, and Stevens be dismissed with prejudice on the basis of judicial immunity. See Flanders v. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.