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Ulm v. Bank of America, N.A.

United States District Court, D. Colorado

March 18, 2019

ARCHIE ULM and LETICIA ULM, Plaintiffs,
v.
BANK OF AMERICA, N.A., and REAL TIME RESOLUTIONS, INC., Defendants.

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Recommendations of the United States Magistrate Judge [Docket Nos. 32, 33] filed on February 14, 2019 and February 22, 2019. The magistrate judge recommends that the Court grant defendants' motions to dismiss plaintiffs' claims under the Colorado Fair Debt Collection Practices Act (“CFDCPA”) and the Colorado Consumer Credit Code (“CCC”). Docket Nos. 32, 33. Plaintiffs filed an objection to the recommendations on February 28, 2019. Docket No. 34.

         I. BACKGROUND

         This case relates to a mortgage held by defendant Bank of America, N.A. (“BOA”) on plaintiff's real property in Larimer County, Colorado. Docket No. 1 at 1-2, 4, ¶¶ 1, 5, 26. As summarized in the magistrate judge's recommendation, plaintiffs' complaint appears to assert three claims against BOA: (1) a claim for fraud, based on BOA's “scheme to falsely advise borrowers they had to be in default on their mortgage . . . in order to qualify for a modification, ” id. at 2, ¶ 10; (2) a claim for unfair or deceptive practices under Colo. Rev. Stat. § 5-3.1-121 based on BOA's representation that it would not “consider [plaintiffs'] for a loan modification unless [they] were at least three months delinquent with [their] payments, ” id., ¶ 12; and (3) a claim under Colo. Rev. Stat. § 5-3.5-103(b) for allegedly offering plaintiffs a loan on their real property without verifying their ability to pay. Id. at 2-3, ¶¶ 13-17; see also Docket No. 33 at 3-5 (summarizing plaintiffs' claims against BOA). With regard to defendant Real Time Resolutions, Inc. (“RTR”), plaintiffs appear to assert two claims for relief: (1) a claim under the CCC based on RTR's failure to “furnish reasonable proof” of assignment as required by Colo. Rev. Stat. § 5-3-102, Docket No. 1 at 3, ¶¶ 18-19; and (2) a claim under the CFDCPA based on RTR's failure to provide the disclosures required under Colo. Rev. Stat. § 5-16-109. Id. at 3, ¶¶ 20-21; see also Docket No. 32 at 3-4 (summarizing plaintiffs' claims against RTR). On August 1, 2018 and August 22, 2018, RTR and BOA filed separate motions to dismiss asserting that plaintiffs' allegations were either time-barred by the applicable statutes of limitation, Docket No. 15 at 3-4, or insufficient to state a claim for relief. Docket No. 8 at 6-11; Docket No. 15 at 5-8.

         On February 4, 2019, the magistrate judge recommended that the Court grant RTR's motion to dismiss. Docket No. 32 at 12. The magistrate judge determined that plaintiffs' allegations with respect to RTR's alleged failure to comply with Colo. Rev. Stat. § 5-3-102 did not state a claim upon which relief could be granted and recommended dismissal of that claim with prejudice. Docket No. 32 at 8. With respect to plaintiffs' second claim against RTR, the magistrate judge found that plaintiffs had not alleged any facts demonstrating that RTR had failed to make the required disclosures under Colo. Rev. Stat. § 5-16-109. Id. at 11. The magistrate judge recommended that the Court dismiss plaintiff's second claim against RTR without prejudice. Id.

         On February 22, 2019, the magistrate judge issued a separate recommendation that the Court grant BOA's motion to dismiss. Docket No. 33. The magistrate judge found plaintiffs' fraud claim insufficiently pled and the CFDCPA and CCC claims barred by the applicable statutes of limitation. Id. at 10-14. The magistrate judge recommended dismissal with prejudice as to all claims except the fraud claim to the extent it was based on conduct occurring within the limitations period. Id. at 16. Plaintiffs filed a timely objection to the magistrate judge's recommendations on February 28, 2019.[1]

         II. STANDARD OF REVIEW

         The Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).

         In the absence of a proper objection, the Court reviews the magistrate judge's recommendation to satisfy itself that there is “no clear error on the face of the record.”[2]Fed. R. Civ. P. 72(b), Advisory Committee Notes.

         Because plaintiffs are proceeding pro se, the Court construes their objection and pleadings liberally without serving as their advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         III. ANALYSIS

         Plaintiffs assert three objections to the magistrate judge's recommendations.[3]

         First, plaintiffs argue that the magistrate judge's characterization of the complaint as having been “cobbled together from various sources” gives “the impression of bias towards pro se plaintiffs.” Docket No. 34 at 1, ¶ 1. This argument is without merit. The magistrate judge's thorough consideration of plaintiffs' allegations belies any suggestion of bias.

         Plaintiffs also contend that they have provided the Court with letters sent to plaintiffs by RTR. See Docket No. 34 at 1, ¶¶ 1-2. However, plaintiffs' general statement that these letters constitute “evidence of Real Time Resolution's violations of the Colorado Fair Debt Collection Act” is not an objection to any portion of the magistrate judge's recommendations and will therefore be disregarded. See Fed. R. Civ. P. 72(b)(2) (permitting parties to file “specific written objections to the proposed findings and recommendations” within fourteen days (emphasis added)); United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996) (holding that “a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court”).[4] Plaintiffs make a more specific argument regarding “letter number 9 (nine) whereby RTR specifically threaten[ed] to seize [their] home via foreclosure, when it had/has neither the legal authority or authorization to do so.” Docket No. 34 at 1, ¶ 2. But this statement does not clearly relate to either of ...


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