United States District Court, D. Colorado
LISA NASSARDEEN-BUCKLEY, and ISHMAIL NASSARDEEN-BUCKLEY, Plaintiffs,
U.S. BANK, NATIONAL ASSOCIATION as Trustee for Truman 2016 SC6 Title Trust, RUSHMORE LOAN MANAGEMENT SERVICES, and JOHN DOES TRUSTS TBD, Defendants.
ORDER DENYING MOTION FOR PRELIMINARY
William J. Martinez United States District Judge
Lisa and Ishmail Nassardeen-Buckley filed this action to
prevent foreclosure on their home. The Defendants are the
alleged holder of the note, U.S. Bank National Association
(“U.S. Bank”), and the servicer, Rushmore Loan
Management Services (“Rushmore”) (together,
“Defendants”). Currently before the Court is
Plaintiffs' Emergency Request for Temporary Restraining
Order [“TRO”] and Preliminary Injunction or
Ex-Parte Temporary Restraining Order. (ECF No. 10.) The Court
previously denied the TRO portion of this motion. (ECF No.
26.) For the reasons explained below, the Court also denies
the remainder of the motion.
Court derives the following mostly from Plaintiffs'
complaint (ECF No. 1) and the affidavit attached to that
complaint (ECF No. 1-1). See also Fed. R. Civ. P.
10(c) (“A copy of a written instrument that is an
exhibit to a pleading is a part of the pleading for all
purchased a home in Castle Rock, Colorado, in 2001. (ECF No.
1-1 at 1.) In 2007, they refinanced their home to draw on its
equity. (Id. at 2.) This refinancing was through
Washington Mutual. (ECF No. 1 ¶ 13.) Plaintiffs'
monthly payment increased from $3, 500 to $7, 700, exclusive
of property taxes. (ECF No. 1-1 at 2.) But, they say,
“we were at an income level that this was not an issue
to meet this monthly mortgage payment and we did so
consistently [due to business profits] until 2016.”
(Id.) By that time, much of Plaintiffs' business
had dried up, and Plaintiffs and their family members faced
health challenges. (Id. at 2-4.) J.P. Morgan Chase
held the note then, as successor-in-interest to Washington
Mutual. (Id. at 3.)
Rushmore came into the picture “in early 2017, ”
apparently as a new servicer of the loan. (Id. at
4.) Rushmore at first would not work with Plaintiffs to
restructure, but after Plaintiffs filed bankruptcy in August
2017, Rushmore agreed to a plan through which Plaintiffs
would resume payments in October 2017. (Id. at 4-5.)
Plaintiffs characterize this plan as “a miss on the
part of [their] Bankruptcy attorney, ” because they
would not realize positive cash flow from new business
contracts until the second quarter of 2018. (Id. at
5.) Plaintiffs and Rushmore discussed further restructuring
in the summer of 2018, but Rushmore would not agree to
Plaintiffs' terms. (Id. at 6.)
filed their pro se complaint on August 31, 2018.
(ECF No. 1.) They allege eleven causes of action, which may
be summarized as follows:
Count 1. This is some sort of fraud claim that
Plaintiffs obviously copied from the Internet, as
demonstrated by its references to predatory lending by
Merrill Lynch (an entity not otherwise mentioned in the
complaint) and an ongoing foreclosure in Elbert County
(Castle Rock is in Douglas County). (Id.
Count 2. This is a “fraud in the
concealment” claim accusing Washington Mutual
(described as a “Defendant” in this action) of
predatory lending, i.e., of misleading Plaintiffs
into taking out too expensive a mortgage and/or failing to
verify their income. (Id. ¶¶ 33-39.) This
partially contradicts Plaintiffs' sworn statement that
the 2007 refinance was financially viable at the time and for
about nine years thereafter.
Count 3. This is a “fraud in the
inducement” claim based on some sort of intentional
misrepresentation that Defendants have an interest in the
property on which they may foreclose. (Id.
Count 4. This claim, dubbed “unconscionable
contract, ” again accuses Washington Mutual of
predatory lending. It also contains incomprehensible
allegations against Defendant U.S. Bank, such as a claim that
U.S. Bank “knew or should have known that through a
consciousness of innocence Plaintiff was at a special
disadvantage when attempting to grant an alternate means of
collection via the Security Instrument real property lien
Mortgage to U.S. Bank, N.A.” (Id. ¶¶
Count 5. This claim is for breach of contract
against Washington Mutual and J.P. Morgan Chase. It again
contains incomprehensible allegations against U.S. Bank, such
as allegations about U.S. Bank selling its interest to
Washington Mutual ...