Virostek et al v. IndyMac Mortgage Services et al

Filing 56

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge dated May 29, 2012, is AFFIRMED and ADOPTED 54 . ORDERED that Defendants Motion to Dismiss Plaintiffs ' Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) 41 , which was converted to a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56, is GRANTED, and this matter is DISMISSED WITH PREJUDICE by Chief Judge Wiley Y. Daniel on 08/08/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-00030-WYD-MEH
JOHN B. VIROSTEK and
ROBIN WOOD-VIROSTEK,
Plaintiffs,
v.
INDY-MAC MORTGAGE SERVICES;
ONE WEST BANK;
DEUTSCHE BANK NATIONAL TRUST; and
MORTGAGE ELECTRONIC REGISTRATION SYSTEM (MERS),
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on Defendants IndyMac Mortgage Services
(“Indymac”), One West Bank FSB (“One West”), Deutsche Bank National Trust
(“Deutsche Bank”) and Mortgage Electronic Registration Services (“MERS”) Motion to
Dismiss Plaintiffs’ Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) filed
February 15, 2012. This motion was converted to a motion for summary judgment by
Notice dated April 4, 2012. Defendants’ motion was referred to Magistrate Judge
Hegarty for a recommendation by Order of Reference of January 12, 2011, and
Memorandum of February 15, 2012. Magistrate Judge Hegarty held a hearing on the
motion on May 17, 2012.

On May 29, 2012, a Recommendation of United States Magistrate Judge was
issued, which is incorporated herein by reference. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). Magistrate Judge Hegarty recommends therein that Defendants’ motion
for summary judgment be granted and this case dismissed with prejudice.
Specifically, the Recommendation notes that Plaintiff’s Second Amended
Complaint was filed after the Court granted in part and denied in part Defendants’
Motion to Dismiss Plaintiffs’ First Amended Complaint Pursuant to Fed. R. Civ. P.
12(b)(6). (Recommendation at 3.) By Order of January 3, 2012, Plaintiffs were granted
leave to file a Second Amended Complaint as to certain claims. The Second Amended
Complaint purportedly alleges claims for fraud, deceptive advertising, conspiracy, unjust
enrichment and quiet title. (ECF No. 40.) After the Second Amended Complaint was
filed, Defendants filed the present motion to dismiss arguing not only that the Plaintiffs
failed to comply with the Court’s Order, but also that the claims fail to meet the
requirements of Rule 8 and Rule 9(b) and fail to allege facts specifically related to
Plaintiffs’ loan or property. (Recommendation at 3-4.) Magistrate Judge Hegarty also
noted Defendants’ assertion that the Second Amended Complaint “appears to be a cut
and paste of a complaint that has been widely rejected by federal courts.” (Id. at 4)
(quoting ECF No. 41 at 2.) Further, Defendants argued that Plaintiffs entered into a
settlement with them by which they released any and all claims concerning the subject
property. (Id.)
The Recommendation states that Plaintiffs’ “Response” to Defendants’ motion
did not respond to any of the arguments proffered by the Defendants. (Id.) Instead,
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Plaintiffs argued that Defendants committed fraud in the foreclosure of their property
because they lack standing, and asserted a violation of the Fair Debt Collections
Practices Act. (Id.)
As to the merits of Defendants’ motion, Magistrate Judge Hegarty recommends
that summary judgment be entered in favor of One West Bank and against Plaintiffs due
to the fact that Plaintiffs executed a “Release” of claims pertaining to the subject
property and received compensation of $7,700.00. (Recommendation at 10-11.)
Indeed, the Recommendation noted that Plaintiffs conceded this fact. (Id. at 11.)
However, Magistrate Judge Hegarty found that Defendants failed to meet their burden
of demonstrating that IndyMac, Deutsche Bank and MERS are included in the Release
of claims, and recommended that summary judgment be denied as to those Defendants
on that basis. (Id.)
Magistrate Judge Hegarty then analyzed Defendants’ argument that summary
judgment is proper because Plaintiffs’ Second Amended Complaint failed to comply with
the instructions set forth in the Court’s Order of January 3, 2012, and the
Recommendation of September 6, 2012. He found, after analyzing the appropriate
factors, that dismissal was appropriate on this basis as a sanction under Fed. R. Civ. P.
41(b). (Recommendation at 13-15.) In support of this recommendation, Magistrate
Judge Hegarty noted that, contrary to the Court’s January 2012 Order, the Second
Amended Complaint “alleges no facts supporting the stated claims, including no
mention of “the name of the person or entity which violated [the stated] right, exactly
what that individual did or failed to do, how the action or inaction of that person or entity
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is connected to the violation of the Plaintiffs’ rights, and what specific injury Plaintiffs
suffered because of the other person’s or entity’s conduct.” (Id. at 13.) The
Recommendation also noted other deficiencies with the Second Amended Complaint,
including the fact that Plaintiffs asserted claims other than those allowed by the January
2012 Order and the earlier Recommendation, including a claim for quiet title which is
the same or similar to the CCPA claim that I dismissed with prejudice in connection with
the First Amended Complaint. (Id.) The Recommendation noted that Plaintiffs provided
no justification for the failure to comply with the previous Recommendation and Order,
that their failure to comply with the Order caused Defendants prejudice, and that no
sanction less than dismissal would be appropriate. (Id. at 14-15.)
Finally, Magistrate Judge Hegarty found that even if Plaintiffs’ claims should not
be dismissed as a sanction for failure to comply with court orders, the claims should be
dismissed because Plaintiffs have demonstrated no genuine issues of material fact.
(Recommendation at 15.) He noted that “the Second Amended Complaint states only
bare allegations and legal conclusions, which raise no issues of material fact that would
justify proceeding to a jury.” (Id.) Magistrate Judge Hegarty also looked at the
argument and evidence presented by Plaintiffs, and found that “Plaintiffs’ pleading,
argument and evidence are insufficient to demonstrate a genuine issue of material fact
as to whether the Defendants are liable for any injuries suffered by the Plaintiffs.” (Id. at
16.)
The Recommendation advised the parties that specific written objections were
due within fourteen (14) days after service of the Recommendation. (Recommendation
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at 1-2, n. 1.) Despite this advisement, no objections were filed to the Recommendation.
No objections having been filed, I am vested with discretion to review the
Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that "[i]t does not appear that Congress intended to require district court review
of a magistrate's factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings"). Nonetheless, though not required to do
so, I review the Recommendation to "satisfy [my]self that there is no clear error on the
face of the record."1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes.
Having reviewed the Recommendation, I am satisfied that there is no clear error
on the face of the record. I agree with Magistrate Judge Hegarty’s thorough analysis
and find that the Recommendation should be affirmed and summary judgment granted
as to the Defendants for all the reasons stated in the Recommendation. Accordingly, it
is
ORDERED that the Recommendation of United States Magistrate Judge dated
May 29, 2012, is AFFIRMED and ADOPTED. In accordance therewith, it is
ORDERED that Defendants’ Motion to Dismiss Plaintiffs’ Second Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 41), which was converted to a
Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56, is GRANTED, and this
matter is DISMISSED WITH PREJUDICE.

1

Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard
of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).

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Dated: August 8, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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