United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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,
STANDARD OF REVIEW
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).
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.”Fed. R. Civ. P. 72(b), Advisory Committee
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).
assert three objections to the magistrate judge's
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.
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”). 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 ...