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Nassardeen-Buckley v. U.S. Bank, N.A.

United States District Court, D. Colorado

December 13, 2018



          William J. Martinez United States District Judge

         Plaintiffs 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.

         I. BACKGROUND

         A. Allegations

         The 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 purposes.”).

         Plaintiffs 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.)

         Defendant 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.)

         B. The Complaint

         Plaintiffs 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. ¶¶ 23-32.)
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. ¶¶ 40-47.)
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. ¶¶ 48-55.)
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 ...

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