Dlin v. GMAC Mortgage, LLC

Filing 57

ORDER AFFIRMED AND ADOPTED 55 Report and Recommendations of Magistrate Judge Boland; Granting 46 Defendant's Motion for Summary Judgment; This case is dismissed without prejudice, by Judge R. Brooke Jackson on 4/30/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson
Civil Action No. 10-cv-1200-RBJ-BNB

KENNETH DLIN,
Plaintiff,
v.
GMAC MORTGAGE, LLC,
Defendant.

ORDER
This matter is before the Court on defendant GMAC Mortgage, LLC (“GMAC”)’s
Motion for Summary Judgment [#46]. On January 11, 2012, Magistrate Judge Boland issued a
Report and Recommendation, recommending that the motion be granted [#55]. On January 24,
2012 Mr. Dlin, proceeding pro se, filed a timely objection to the Magistrate Judge’s
recommendation [#56].
Facts
This case arises out of the now all-too-common event of a home foreclosure. The
property at issue is located at 3431 Welch Avenue in Kittredge, Colorado 80457. The history of
the ownership of the property is as follows: Kenneth Dlin and Susan Dlin executed a quitclaim
deed on June 25, 2003 vesting title to the real property in Kenneth Dlin. [#46-1]. Mr. Dlin
signed an Adjustable Rate Note (“Note”) on February 28, 2004, promising to pay the lender,
GreenPoint Mortgage Funding, Inc., $633,000. [#46-2]. The Note was secured by a Deed of
Trust, which was recorded in Jefferson County on March 1, 2004 at Reception No. F1973637.
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[#46-3]. The Note and Deed of Trust were amended and supplemented by an Adjustable Rate
Loan Modification that Mr. Dlin entered into with GMAC on April 1, 2009. [#46-4].
The loan modification apparently did not enable Mr. Dlin to maintain his monthly
payments. On January 13, 2010 GMAC filed a Notice of Election and Demand for Sale with the
Jefferson County Public Trustee to institute a foreclosure action. [#46-5]. On March 26, 2010,
GMAC filed a “Verified Motion for Order Authorizing Sale Pursuant to Rule 120” in the District
Court for Jefferson County in Case No. 2010CV1486. [46-6]. Mr. Dlin filed a Response and
Objection to GMAC’s motion arguing that (1) GMAC was not the Holder in Due Course of his
Note and Deed of Trust; (2) Mr. Dlin was notified that GMAC was the Holder in accordance
with the Real Estate Settlement Procedures Act (RESPA); (3) GMAC violated the Truth in
Lending Act (TILA); and (4) GMAC violated the Colorado Consumer Credit Code. [#46-7].
Mr. Dlin amended his response on May 24, 2010 to argue that because the Mortgage Electronic
Registration System (“MERS”) was designated as the nominee pursuant to the Deed of Trust, the
Deed and Note became separated and both instruments are now nullities. [46-8].
On the same day that Mr. Dlin filed his amended response in the District Court for
Jefferson County, he also filed his complaint in this Court [1]. Mr. Dlin asserts nearly identical
arguments in his Complaint here as he did in his amended response in state court. See Id. A
hearing was conducted in the Jefferson County District Court on April 15, 2010, and on May 27,
2010 the state court granted an Order Authorizing Sale, finding that Mr. Dlin was in default.
[#46-11]. The foreclosure sale was held on July 28, 2010, and GMAC purchased the property at
the sale with a bid of $477.000. [#46-13]. GMAC filed a Return of Sale with the state court
[#46-14] on August 19, 2010, and the Order Approving Sale was issued on August 23, 2010

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[#46-15]. The Jefferson County Public Trustee issued a Confirmation Deed on August 27, 2010
that identified GMAC as the current owner of the property. [#46-16].
Standard
Recommendation of the Magistrate Judge
Following the issuance of a magistrate judge’s recommendation on a dispositive matter
the district court judge 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). The district judge is permitted to
“accept, reject, or modify the recommended disposition; receive further instruction; or return the
matter to the magistrate with instructions.” Id. To be proper, an objection must be both timely
and specific. U.S. v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). An
objection is timely if it is filed within fourteen days of the issuance of the Magistrate’s
recommendation. Fed. R. Civ. P. 72(b)(2). To preserve an issue for de novo review, the
objection must be specific enough to “focus the district court’s attention on the factual and legal
issues that are truly in dispute.” One Parcel, 73 F.3d at 1060. The Federal Magistrates Act does
not “require any review at all, by either the district court or the court of appeals, of any issue that
is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).
Pro Se Plaintiff
When a case involves a pro se party the court will “review his pleadings and other papers
liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v.
U.S. Government, 472 F.3d 1242, 1243 (10th Cir. 2007). However, “it is not the proper function
of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). A broad reading of a pro se plaintiff’s pleadings “does not
relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim

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could be based…conclusory allegations without supporting factual averments are insufficient to
state a claim on which relief can be based.” Id. Pro se parties must “follow the same rules of
procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)
(citing Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
Motion for Summary Judgment
The Court may grant summary judgment if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party has the burden to show that there is an absence of evidence to support the
nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving
party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A
fact is material “if under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The Court will examine the factual record and make reasonable inferences therefrom in the light
most favorable to the party opposing summary judgment. Concrete Works of Colorado, Inc. v.
City and County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).
Conclusions
Although Mr. Dlin’s complaint is titled “Plaintiffs Complaint for Fraudulent Foreclosure
and Slander of Title,” [#1] Mr. Dlin only makes allegations that relate to his claim for fraudulent
foreclosure and does not address the claim for slander of title. Id. Mr. Dlin argues that GMAC
does not properly own the original note and lacks proper standing to foreclose on his property.

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Id. at ¶8-10, 15. Mr. Dlin requests that the Court dismiss the state court action and “award
damages as the Court so deems.” Id. at 6.
As discussed above, Mr. Dlin is involved in another action in state court involving the
foreclosure on his property and his objection thereto. GMAC argues that the Rooker-Feldman
doctrine applies in this case and operates as a subject-matter jurisdictional bar. Arising out of
two Supreme Court case, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and D.C. Court of
Appeals v. Feldman, 460 U.S. 462 (1983), the Rooker-Feldman doctrine prevents federal district
courts from hearing appeals from a state court’s final judgment. A party who loses in state court
is “barred from seeking what in substance would be appellate review of the state judgment in a
United States district court.” Guttman v. Khalsa, 401 F.3d 1170, 1173 (10th Cir. 2005) (internal
citations omitted). Rooker-Feldman also “forbids a district court from entertaining claims
‘inextricably intertwined with a state court judgment.” Id. This doctrine, however, only applies
when a suit is filed in federal court after state proceedings are final. Id. at 1032.
On the record before the Court it is unclear whether or not state proceedings are
completed and final. As Judge Krieger wrote in Beeler Properties, LLC v. Lower Enterprises,
“given the nature of the Colorado foreclosure process, it is difficult to determine when the rights
of the parties are completely determined. It could be at the time of the sale, expiration of the
redemption periods, upon issuance of an order confirming the sale, or upon issuance of a
Trustee’s Deed.” 2007 WL 1346591, *3 (D. Colo. May 7, 2007). Here, Mr. Dlin filed this case
on May 24, 2010, but the foreclosure sale of his property was not held until July 28, 2010.
Therefore, at the time the complaint was filed the state foreclosure process, by most any
measure, was not yet complete. Thus, the Rooker-Feldman doctrine does not apply to this case.

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However, GMAC also argues that if Rooker-Feldman does not apply, the Court should
abstain under the Younger abstention doctrine. See Younger v. Harris, 401 U.S. 37 (1971). The
Younger abstention doctrine requires that federal courts not “interfere with proceedings by
granting equitable relief – such as injunctions of state proceedings…when a state forum provides
an adequate venue for relief. The Younger abstention is non-discretionary; the district court
must abstain once conditions are met, absent extraordinary circumstance.” Weitzel v. Division of
Occupational & Prof. Licensing, 240 F.3d 871, 875 (10th Cir. 2001) (internal citations omitted).
The conditions that must be met for Younger abstention to apply are when “(1) there is an
ongoing state, criminal, civil, or administrative proceeding, (2) the state court provides an
adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings
involve important state interests, matters which traditionally look to state law for their resolution
or implicate separately articulated state policies.” Amanatullah v. State Bd. Of Medical
Examiners, 187 F.3d 1160, 1163 (10th Cir. 1999).
Looking to the Amanatullah elements, it is clear the Younger abstention doctrine applies
here. There is, by Mr. Dlin’s own admission, an ongoing state court civil proceeding. There is
no evidence, and Mr. Dlin has made no argument in his objection, that the state court is not an
adequate forum to hear his claims. Finally, this Court agrees with Magistrate Judge Boland and
the court in Beeler that “actions that challenge the Rule 120 order and process are proceedings
involving important state interests concerning title to real property located and determined by
operation of state law.” Beeler, 2007 WL 1346591 at *1.
This Court agrees with the conclusions reached by Magistrate Judge Boland. Therefore,
this Court must abstain and may not interfere with the ongoing state court proceeding. Mr. Dlin
cannot seek to set aside the foreclosure in this Court.

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Order
Accordingly, the Recommendation of Magistrate Judge Boland [#55] is AFFIRMED and
ADOPTED. Defendant’s Motion for Summary Judgment [#46] is GRANTED. This case is
dismissed without prejudice.
DATED this 30th day of April, 2012.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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