Fick v. US Bank National Association et al

Filing 16

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge Mix 11 is AFFIRMED and ADOPTED. ORDERED that Plaintiff's Complaint for Emergency Temporary Restraining Order and Decla[ra]tory Relief and to Stay Foreclosure Sale 3 is DENIED by Chief Judge Wiley Y. Daniel on 01/04/12.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No.

11-cv-03184-WYD-KLM

LINDA SUE FICK,
Plaintiff,
v.
US BANK NATIONAL ASSOC.;
CITIGROUP MORTGAGE LOAN TRUST;
WELLS FARGO;
NEW CENTURY MORTGAGE;
AMERICA=S SERVICING COMPANY;
CITIGROUP MORTGAGE LOAN TRUSTS; and
CASTLE STAWIARSKI,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with Plaintiff’s Complaint for
Emergency Temporary Restraining Order and Decla[ra]tory Relief and to Stay
Foreclosure Sale [ECF No. 3] (“Motion for TRO”), filed December 7, 2011. Defendant’s
motion was referred to United States Magistrate Judge Kristen L. Mix for a
recommendation by Order of Reference dated December 9, 2011 [ECF No. 7] and the
Memorandum dated December 9, 2011 [ECF No. 8]. Magistrate Judge Mix issued a
Recommendation on December 15, 2011 [ECF No. 11]. The Recommendation is
incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b),
D.C.COLO.LR. 72.1.
Magistrate Judge Mix recommends therein that Plaintiff’s Motion for TRO be

denied. Specifically, Magistrate Judge Mix finds that Plaintiff has several procedural
defects in her request for a temporary restraining order. However, even absent these
defects, Plaintiff has failed to establish that there is a substantial likelihood that she will
prevail on the merits. Judge Mix notes that Plaintiff is “essentially asking the Court to
interfere with the state court proceedings that authorized the sale of her home.” See
Recommendation at 6 [ECF No. 11]. Under the Rooker-Feldman doctrine, a federal
court may not conduct the “appellate type of review of state court judgments” that Plaintiff
requests in her motion. Id. Accordingly, Plaintiff has not made the necessary showing
for a temporary restraining order.
Magistrate Judge Mix advised the parties that written objections were due within
fourteen (14) days after service of a copy of the Recommendation. Id. at 7. 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
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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the face of the record. I find that Magistrate Judge Mix’s Recommendation is thorough,
well-reasoned and sound. I agree with Magistrate Judge Mix that Plaintiff’s Complaint
for Emergency Temporary Restraining Order and Decla[ra]tory Relief and to Stay
Foreclosure Sale [ECF No. 3], filed December 7, 2011, should be denied for the reasons
stated in both the Recommendation and this Order. Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Mix [ECF
No. 11], filed December 15, 2011, is AFFIRMED and ADOPTED. In accordance
therewith, it is
FURTHER ORDERED that Plaintiff’s Complaint for Emergency Temporary
Restraining Order and Decla[ra]tory Relief and to Stay Foreclosure Sale [ECF No. 3], filed
December 7, 2011, is DENIED.
Dated: January 4, 2012
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE

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