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Brickert v. Deutsche Bank National Trust Co.

United States District Court, D. Colorado

May 9, 2019

DERRICK BRICKERT, Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, Defendant.

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant Deutsche Bank National Trust Company's Motion to Dismiss Second Amended Complaint (“SAC”). ECF No. 23. Defendant argues this Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine and Younger abstention doctrine. Defendant also argues that issue preclusion prevents Plaintiff from challenging the validity of the underlying foreclosure at issue in this case. Finally, Defendant argues that even if the Court were to reach the merits of Plaintiff's claims, each claim should be dismissed under Fed.R.Civ.P. 12(b)(6). For the reasons that follow, the Motion is granted in part and denied in part.

         BACKGROUND

         I. Statement of Facts

         The following factual allegations from Plaintiff's SAC are taken as true pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, the Court will consider documents outside the pleading when appropriate under Tenth Circuit precedent.[1]

         Plaintiff acquired the single-family residence on the real property commonly known as 3076 S. Holly Pl., Denver, CO 80222 (the “Property”) by grant deed in 2004. ECF No. 12 ¶ 7. On October 23, 2006, Plaintiff executed an adjustable rate note (the “Note”) in the amount of $286, 000.00 in favor of Fremont Investment & Loan (“Fremont”). ECF No. 23-1. The Note was secured by a deed of trust (the “Deed of Trust”) on the Property. ECF No. 23-2. Plaintiff claims that although Defendant “claims to be the [N]ote holder, ” ECF No. 12 ¶ 8, it is not the true holder or beneficiary of the instrument, id. ¶ 19. He further alleges Defendant “created a series of instruments to give the appearance that [Defendant] was in privity with Plaintiff's contract . . . .” Id. ¶ 2. Plaintiff also appears to allege that he made monthly payments to Defendant under the terms of the Note even though Defendant was not the beneficiary.[2] Id. ¶ 23.

         On April 13, 2018, Defendant filed a Verified Motion for Order Authorizing a Foreclosure Sale Under Colo. R. Civ. P. 120 (“Rule 120”) in the District Court, Arapahoe County, Colorado. ECF No. 23-4. On May 9, 2018, that court granted the motion. ECF No. 23-5. In doing so, the court held there was a “reasonable probability” that Plaintiff had defaulted, and Defendant was the real party in interest. See Rule 120(d)(1). On May 31, 2018, the Arapahoe County Public Trustee recorded a Confirmation Deed that granted ownership of the Property to DFW Group LLLP. ECF No. 23-8. The court then issued an Order Approving Sale on July 6, 2018. ECF No. 23-6.

         II. Procedural History

         Plaintiff initiated this action on December 22, 2017, ECF No. 1, and filed the operative SAC on May 11, 2018. ECF No. 12. Plaintiff asserts claims for: (1) “wrongful foreclosure”; (2) “restitution”; (3) “no contract”; (4) fraud and deceit; (5) quiet title; and (6) “declaratory and injunctive relief.” Id. ¶¶ 16-47. In response, Defendant filed the present Motion on October 5, 2018, ECF No. 23, which was fully briefed on December 13, 2018, ECF No. 50.

         LEGAL STANDARDS

         I. Fed.R.Civ.P. 12(b)(1)

         Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A Rule 12(b)(1) motion to dismiss must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). Accordingly, Plaintiff in this case bears the burden of establishing that the Court has jurisdiction to hear his claims.

         Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1002-03 (citations omitted). The present motion launches a factual attack on this Court's subject matter jurisdiction; therefore, the Court will consider documents provided by Defendant that are necessary for the Rule 12(b)(1) analysis. Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000).

         II. Fed.R.Civ.P. 12(b)(6)

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations that are legal conclusions, bare assertions, or merely conclusory. Id. at 679. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

         Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

         However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to ...


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