Plemons et al v. HSBC Bank USA, National Association et al

Filing 51

ORDER AFFIRMED AND ADOPTED 46 Report and Recommendations of United States Magistrate Judge Boyd N. Boland; granting 23 Defendant Jefferson County Public Trustee Margaret T. Chapmans Motion to Dismiss, Defendant Chapman is DISMISSED from this action; denying 26 Plaintiffs Emergency Motion for Immediate Emergency Stay and Restraining Order by Judge Christine M. Arguello on 7/21/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-00038-CMA-BNB
CLIFTON E. PLEMONS, and
ALIECE PLEMONS,
Plaintiffs,
v.
HSBC BANK USA, NATIONAL ASSOCIATION, a foreign business corporation,
PEOPLE’S CHOICE HOME LOAN, INC., a Wyoming corporation,
OCWEN LOAN SERVICE, LLC, a foreign LLC,
TITLE COMPANY OF DENVER,
a/k/a Title Partners of Colorado, a Colorado corporation,
RICHARD G. GEBHARDT, Public Trustee for Boulder County, and
MARGARET T. CHAPMAN, Public Trustee for Jefferson County,
Defendants.

ORDER AFFIRMING AND ADOPTING JUNE 23, 2011 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendant Jefferson County Public Trustee
Margaret T. Chapman’s Motion to Dismiss (Doc. # 23) and pro se Plaintiffs Clifton E.
Plemons and Aliece Plemons’s Emergency Motion for Immediate Emergency Stay and
Restraining Order (“Motion for Stay and Restraining Order”) (Doc. # 26). The Motion
to Dismiss was referred to United States Magistrate Judge Boyd N. Boland for a
Recommendation by Order of Reference dated February 28, 2011. (Doc. # 24.)
The Motion for Stay and Restraining Order was referred to Magistrate Judge Boland

on March 2, 2011. (Doc. # 30.) On June 23, 2011, Magistrate Judge Boland issued a
Recommendation that the Motion to Dismiss be granted and the Motion for Stay and
Restraining Order be denied. (Doc. # 46 at 1, 7, and 13.) The Recommendation is
incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(b), Fed. R. Civ. P. 72(b).
I. STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine
de novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). An objection is properly made if it is both timely
and specific. United States v. One Parcel of Real Property Known As 2121 East 30th
Street, 73 F.3d 1057, 1059 (10th Cir.1996). According to the Federal Rules of Civil
Procedure, an objection is timely if made within 14 days after the Magistrate Judge
issues his recommendation. An objection is sufficiently specific if it “enables the district
judge to focus attention on those issues–factual and legal–that are at the heart of the
parties’ dispute.” See id. (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). Where no
party files proper objections to a recommendation, the Court may review the
recommendation for clear error. See Fed.R.Civ.P. 72, Advisory Committee Notes (1983
Addition) (citation omitted); see also Summers v. State of Utah, 927 F.2d 1165, 1167
(10th Cir. 1991) (when there are no objections to a magistrate's recommendation, the
court applies whatever standard of review that it deems appropriate).

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In the instant case, Plaintiffs timely filed their Objections to the Magistrate
Judge’s Recommendation (Doc. # 48) on July 7, 2011. Additionally, on July 19, 2011,
Defendant Jefferson County Public Trustee Margaret T. Chapman timely responded to
Plaintiffs’ Objections. (Doc. # 50.) Accordingly, the Court has performed a de novo
review.
II. DEFENDANT CHAPMAN’S MOTION TO DISMISS (DOC. # 23)
In the Amended Complaint, Plaintiffs assert two claims of relief against
Defendant Chapman, as Jefferson County Public Trustee. First, in their second claim of
relief, Plaintiffs allege that Defendant Chapman, along with the other Defendants,
violated the provisions of the Fair Debt Collections Act (“FDCPA”), 15 U.S.C. § 1692,
et seq., and the Real Estate Settlement Procedures Act (“RESPA”) by “attempt[ing]
to collect a debt and foreclose upon the Plaintiff’s Subject Property based upon a
fraudulent transaction and therefore an invalid debt.” (Doc. # 9, ¶ 48.)1 Next, in their
third claim of relief, Plaintiffs ask the Court to set aside the Trustee’s sale of their
property on grounds that other Defendants, namely HSBC, People’s Choice, OCWEN,
and HomeQ, “never had the legal authority to foreclose because the instrument (Deed
of Trust) which permitted foreclosure is void as it was improper[.]” (Id., ¶ 52.) Plaintiffs
further allege that Defendant Chapman “allowed the fraudulent foreclosure and sale
to proceed and have acquiesced in the fraud perpetrated upon Plaintiffs,” despite her

1

All page number citations refer to the numbering used by the Court’s CM/ECF
docketing system and not to the documents’ original numbering.

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purported receipt of information that “the documents used to initiate and prosecute the
foreclosure and sale were forged.” (Id., ¶ 55.) Consequently, Plaintiffs assert that, by
allowing the foreclosure and sale to proceed, Chapman breached her “duty to ensure
honest and legal foreclosures.” (Id.)
Defendant Chapman asserts that dismissal of Plaintiffs’ third claim of relief
against her is warranted on the following grounds: (1) Plaintiffs’ claim is barred by the
Rooker-Feldman doctrine and/or Younger abstention; and (2) Plaintiffs have a case
pending before the Boulder County District Court in which they lodge substantially
similar allegations against Chapman, in her capacity as the Jefferson County Public
Trustee. Defendant Chapman did not address Plaintiff’s second claim of relief for
violations of the FDCPA and RESPA, which claim did not specifically identify her by
name, but referred to her collectively with the “other Defendants.”
Once Defendant Chapman’s Motion was fully briefed by both sides and ripe for
ruling, the Magistrate Judge issued his Recommendation on June 23, 2011. (Doc.
# 46.) With respect to Plaintiff’s second claim for FDCPA and RESPA violations, the
Magistrate Judge recommended dismissal of: (1) the FDCPA claim because it only
applies to debt collectors, which does not include public trustees such as Chapman; and
(2) the RESPA claim because of Plaintiffs’ failure to allege any facts concerning the
provision of “information on the nature and costs of the [real estate] settlement process”
or the imposition of “unnecessarily high settlement charges[.]” (Id. at 7). With respect to
Plaintiffs’ third claim for a court-ordered set-aside of the trustee’s sale, the Magistrate

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Judge recommended dismissal pursuant to the Rooker-Feldman doctrine, if the
underlying foreclosure proceedings are concluded and a final decision has been issued,
or under the Younger abstention doctrine, if the underlying foreclosure proceedings are
ongoing. (Id. at 10, 12).
In objection to the recommended dismissal of Claim Three against Defendant
Chapman, Plaintiffs assert that this claim is not barred by either the Rooker-Feldman
doctrine or Younger abstention doctrine because the allegations concern Chapman’s
“pre-foreclosure action” conduct. (Doc. # 48 at 1.) Specifically, Plaintiffs assert that the
“state court judgment against [them] was a natural result of the prior acquiescence and
approval of Defendant Chapman of the actions of the other Defendants,” and, “[w]ere it
not for her approval and acceptance” of such actions, “the state court decision would
have never been issued.” (Id. at 1-2.) In sum, Plaintiffs assert that “[t]he state court
decision is a secondary, natural result of Chapman’s behavior.” (Id. at 2) (emphasis
omitted). Plaintiffs did not object to the recommended dismissal of Claim Two to the
extent it asserts allegations against Defendant Chapman.
In response to Plaintiffs’ Objections, Defendant Chapman restates the arguments
presented in her Motion to Dismiss. (Doc. # 50.)
Having reviewed the Amended Complaint, the parties’ briefs, the Recommendation, Plaintiffs’ Objections, and Defendant Chapman’s Response, the Court finds that
the Magistrate Judge’s analysis is thorough and his conclusions are correct and
dismissal without prejudice of Plaintiffs’ Claim Three for the set-aside of the trustee’s

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sale is warranted. As the Court has noted on several other occasions, federal district
courts are precluded from conducting appellate type review of state court judgments,
including those that authorize and confirm the sale of property. See Doc. # 8 at 4; see
also Snider v. B.A.C. Home Loans Servicing, LP, No. 11-cv-00224, 2011 WL 805792, at
*2 (D. Colo. Feb. 28, 2011) (unpublished). Further, to the extent that Plaintiffs allege
that the foreclosure proceedings were rife with fraud, the more appropriate remedy is to
pursue an independent action in state court. Doc. # 8 at 5; Snider, 2011 WL 805792,
at *3. Additionally, as both the Magistrate Judge and Defendant Chapman duly noted,
the Younger abstention doctrine bars this Court’s exercise of jurisdiction over Claim
Three, in light of similar allegations in a presently pending action in Boulder County
District Court, and which concerns Plaintiffs’ purported property rights.
With respect to Plaintiffs’ Claim Two, although Plaintiffs have not asserted any
objections to this portion of the Magistrate Judge’s recommendation, the Court has
reviewed the Magistrate Judge’s recommended dismissal for clear error; finding none,
the Court concurs that dismissal without prejudice of Plaintiffs’ Claim Two is warranted
to the extent that it contains any allegations against Defendant Chapman.

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III. PLAINTIFFS’ MOTION FOR STAY AND RESTRAINING ORDER (DOC. # 26)
In their Motion for Stay and Restraining Order, which was filed on March 1, 2011,
and is Plaintiffs’ third such emergency motion,2 Plaintiffs ask the Court to enjoin
immediately eviction proceedings until such time that the Court has determined the
merits of the instant action. (Doc. # 26 at 1) (emphasis omitted). Plaintiffs further state
that they “were not given an adequate opportunity to be heard in state district court and
thus their Constitutional rights have been violated.” (Id. at 2.)
Magistrate Judge Boland recommends denial of the Motion for Stay and
Restraining Order, in light of the Court’s previous denial of Plaintiff’s prior emergency
motion, which denial was premised on the Rooker-Feldman doctrine. (Recommendation, Doc. # 46 at 13; Court’s previous denial, Doc. # 8 at 4-5.) Plaintiffs did not assert
any objections to the recommended denial of this Motion. Based on the foregoing,
the Court concurs that denial of the instant Motion for Stay and Restraining Order is
warranted.
IV. CONCLUSION
Accordingly, IT IS ORDERED THAT:
(1)

The June 23, 2011 Recommendation of United States Magistrate Judge
Boyd N. Boland (Doc. # 46) is AFFIRMED and ADOPTED;

2

Plaintiffs’ first and second emergency motions were filed on January 13, 2011 (Doc.
#3), and January 28, 2011 (Doc. #7). The Court denied both motions on February 1, 2011
(Doc. #8).

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(2)

Defendant Jefferson County Public Trustee Margaret T. Chapman’s
Motion to Dismiss (Doc. # 23) is GRANTED;

(3)

Plaintiffs’ second claim of relief for purported violations of the Fair Debt
Collection Practices Act and the Real Estate Settlement Procedures Act
and Plaintiffs’ third claim of relief for a set aside of the trustee’s sale are
dismissed without prejudice to the extent they are asserted against
Defendant Chapman;

(4)

Defendant Chapman is DISMISSED from this action and the caption on all
subsequent filings shall reflect the removal of Margaret T. Chapman as a
Defendant in this case; and

(5)

Plaintiffs’ Emergency Motion for Immediate Emergency Stay and
Restraining Order (Doc. # 26) is DENIED.

DATED: July

22 , 2011
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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