Riley v. JP Morgan Chase Bank N.A.
Filing
79
ORDER granting 48 Motion for Summary Judgment; affirming, adopting, and modifying the 63 Report and Recommendations as noted; overruling 77 Plaintiff's Objection; and dismissing all of Plaintiff's claims against Defendant Chase Bank, N.A. The Clerk of Court is directed to enter Judgment as set forth in the Order. Entered by Judge Raymond P. Moore on 8/3/2015. (cpear)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-00821-RM-BNB
Frances Frane
Plaintiff,
v.
JP Morgan Chase Bank N.A.,
Defendant.
ORDER
______________________________________________________________________________
I.
INTRODUCTION
This matter is before this court on United States Magistrate Judge Boyd N. Boland’s
Recommendation (Recommendation) (ECF No. 63) and defendant JP Morgan Chase’s (Chase)
Limited Objection to the Recommendation (Objection) (ECF No. 65). Additionally Frances
Frane (plaintiff), on November 13, 2014, filed a brief in support of Motion Pursuant to
Fed.R.Civ.P. 60(b) To Set Aside United States Magistrate Judge Boyd N. Boland’s Order (62)
Denying Motion For Withdrawal of Admissions (54) and To Set Aside (63) United States
Magistrate Judge Boyd N. Boland’s Recommendation To Grant Defendant Summary Judgment,
on the Basis of Newly Discovered Evidence (ECF No.72), which the court here construes as
plaintiff’s Objection to the Magistrate Judge’s Recommendation.
On March 4, 2014, Magistrate Judge Boland recommended that this court grant
defendants’ Motion for Summary Judgment (ECF No. 48) dismissing plaintiff’s Complaint
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(Complaint) (ECF No. 1) as to all claims except those pursuant to C.R.S. §§ 38-40-105; 12-61904.5 and 12-61-911. Defendant has timely filed a limited objection on March 18, 2014.
For the reasons stated below, the Court AFFIRMS, ADOPTS, and MODIFIES in part the
Recommendation, GRANTS defendants’ Motion for Summary Judgment, OVERRULES
plaintiff’s Objection and DISMISSES plaintiff’s claims.
II.
A.
LEGAL STANDARDS
Review of the Magistrate Judge’s Report and Recommendation:
The facts in this case are thoroughly set forth in the Magistrate Judge’s Recommendation
cited above and will not be repeated here.
When a magistrate judge issues a recommendation on a dispositive matter the federal
rules require 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). In conducting its
de novo review, “[t]he district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Id.
An objection to a recommendation is proper if it is timely filed and specific enough to
enable the “district judge to focus attention on those issues – factual and legal – that are at the
heart of the parties’ dispute.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir.
1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and
specific objection, “the district court may review a magistrate’s report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted);
see also Fed.R.Civ. P. 72, Advisory Committee's Note (“When no timely objection is filed, the
court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.”).
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B.
Standards for Motion for Summary Judgment:
Summary judgment is appropriate only if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569
(10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether
the evidence presents a sufficient disagreement to require submission to a jury or, conversely, is
so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby Inc., 477
U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000).
A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is
“genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable juror
could return a verdict for either party. Anderson, 477 U.S. at 248. The court must resolve any
factual ambiguities against the moving party, thus favoring the right to a trial. Quaker State
Mini-Lube, Inc. v. Fireman’s Fund Ins Co., 52 F.3d 1522, 1527 (10th Cir. 1995).
The moving party bears the initial burden of showing an absence of evidence to support
the nonmoving party's case. Celotex, 477 U.S. at 325. After the moving party has met its initial
burden, the burden shifts to the nonmoving party to put forth sufficient evidence for each
essential element of the claim such that a reasonable jury could find in its favor. Anderson, 477
U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d
1321, 1326 (10th Cir.1999).
The nonmoving party must go beyond the allegations and denials of his pleadings and
provide admissible evidence, which the court will view in the light most favorable to the
nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills
Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.1995) (citing Celotex, 477 U.S. at 324). Conclusory
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statements based merely on conjecture, speculation, or subjective belief, are not competent
summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004).
Where the non-moving party bears the burden of proof at trial, s/he must point to specific
evidence establishing a genuine issue of material fact with regard to each challenged element.
Reed v. Bennett, 312 F.3d 1190, 194 (10th Cir. 2002). Thus, the mere metaphysical possibility
that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient;
the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood
of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original, internal citation and quotation omitted).
C.
Pro Se Status:
Plaintiff in this matter is proceeding pro se. The court, therefore, reviews her pleadings
and other papers liberally and holds them to a less stringent standard than those drafted by
attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). However, a pro se litigant's
conclusory allegations without supporting factual averments are insufficient to state a claim upon
which relief can be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
A court may not assume that a plaintiff can prove facts that have not been alleged or that
a defendant has violated laws in ways that a plaintiff has not alleged. Assoc’d Gen. Contractors
of Cal., Inc. v. Cal. St. Council of Carpenters, 459 U.S. 519, 526 (1983); Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not supply additional factual
allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff’s behalf)
(citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a court
may not construct arguments or theories for the plaintiff in the absence of any discussion of those
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issues) (citations omitted). Plaintiff's pro se status does not entitle her to application of different
rules of civil procedure. See Hall, 935 F.2d at 1110.
III BACKGROUND
A.
Procedural History:
Plaintiff’s Complaint alleges 17 separate claims for relief and a claim for unspecified
injunctive relief against Chase, Chase’s foreclosure counsel; a bankruptcy trustee; and Mortgage
Electronic Registration Systems, Inc. (“MERS”), for violations of the Fair Debt Collection
Practices Act; conspiracy; fraud; lack of standing; and violations of the Colorado Consumer
Practices Act. On October 25, 2012, the court dismissed plaintiff’s claims against the lender’s
foreclosure counsel and the bankruptcy trustee. (ECF No.22). On January 15, 2013, the court
dismissed plaintiff’s claims against MERS. (ECF NO.24). Finally, on March 4, 2014, the
Magistrate Judge recommended granting in part and denying in part, the remaining defendant’s
summary judgment motion. (ECF No.63).
Chase filed a timely limited objection to the Magistrate Judge’s recommendation on
March 18, 2014. (ECF No.65). On March 26, 2014, plaintiff responded to Chase’s Limited
Objection and almost eight months later, on November 13, 2014, filed what the court construes
as an untimely objection based on “new evidence.” (ECF Nos. 66, 72).
B.
Undisputed Material Facts:
The undisputed material facts as set forth in the Recommendation are hereby
incorporated. The court notes that based on the record before the court, the facts specifically
relating to the Motion for Summary Judgment and plaintiff’s recently disputed admissions
appear incontrovertible.
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IV
DISCUSSION
Defendant Chase filed a limited objection to the Recommendation to dismiss all
plaintiff’s claims except C.R.S. §§ 38-40-105; 12-61-904.5 and 12-61-911, which the Magistrate
Judge noted were not addressed by Chase’s Motion for Summary Judgment. (ECF Nos. 63 and
65). Chase admits that the identified statutes were not specifically listed in its Motion for
Summary Judgment. (ECF No.65, pp.2, 4 and 5). Chase contends that although the statutes are
omitted from the motion, they are expressly included in the statutes identified and thus should be
included in a general dismissal of plaintiff’s claims. See E.g., ECF No. 65, p.2, “C.R.S. §38-40405 . . . is expressly identified in C.R.S. §6-1-105(1)(uu)”. Upon examination of the referenced
statute, I agree.
Plaintiff’s objection reiterates her arguments regarding both the legitimacy of the
proffered loan documents (arguing without material support, that she does not admit to signing
them), and the validity of the imputed admissions which resulted from her failure to timely
answer Chase’s Request for Admissions despite several extensions of time. (ECF No.66).
Plaintiff’s argument regarding the Magistrate Judge’s denial of plaintiff’s request to withdraw
her admissions which the court had previously deemed admitted, will not be readdressed here
given that her argument has already been amply addressed in the Magistrate Judge’s three-page
order issued on March 4, 2014. (ECF No. 62; 63, p.3, n.2).
Upon my de novo review of the record in this matter, according the leniency required by
plaintiff’s pro se status, I am satisfied, that the Magistrate Judge appropriately relied upon either
undisputed facts or facts as to which plaintiff presented no contrary evidence to support her
claim that they were disputed and applied all other summary judgment standards to the record
before him. Plaintiff’s vague denials, conclusory allegations and failure to allege any specific
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facts to support her claims, do not provide sufficient foundation to enable her claims against
Chase to survive summary judgment.
I concur that, as detailed in the Recommendation: Chase is not a collection agency as
defined by the statute and therefore plaintiff’s Claim One and Two fail to state a claim under
either federal and state law; plaintiff’s Claims Three through Twelve fail to state with requisite
particularity, much less support with facts, any actions by Chase which might constitute fraud or
an unfair or deceptive trade practice1; plaintiff’s Claims Thirteen, Fourteen and Fifteen do not
contain sufficiently specific allegations to support a claim of deceptive trade practice or
conspiracy and are unsupported by the facts; Claim Sixteen fails because Chase clearly has
standing to pursue foreclosure on the property securing the defaulted Note and Deed of Trust;
and Claim Seventeen fails to enunciate specific facts to support plaintiff’s claim of fraud.
Finally, plaintiff’s claim for injunctive relief to allow her “to stay in her home,” is controverted
by the evidence that plaintiff admits that she defaulted on her loan which was secured by the
Deed of Trust encumbering the property.
Finally, I sustain Chase’s limited objections to the Magistrate Judge’s denial of summary
judgment on plaintiff’s claims pursuant to C.R.S. §§ 38-40-105; 12-61-904.5 and 12-61-911.
These portions of the statute2 are expressly included in Chase’s larger citation(s) and thus any
claims pursuant to sections C.R.S. §§ 38-40-105 (prohibited acts by participants in certain
mortgage loan transactions), 12-61-904.5 (originator’s relationship to borrowers) and 12-61-911
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Chase’s re-recording of the Deed of Trust did not harm plaintiff in any discernible way.
C.R.S. § 6-1-105 Deceptive Trade Practices:
(1) A person engages in a deceptive trade practice when, in the course of the person's business, vocation, or
occupation, the person:
...
(uu) Violates section 38-40-105, C.R.S;
...
(aaa) Violates any provision of section 12-61-904.5, C.R.S;.;
(bbb) Violates any provision of section 12-61-911, C.R.S.; . . . .
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(prohibited conduct by a mortgage originator) fail under the above referenced Magistrate Judge’s
analysis.
V.
CONCLUSION
For the reasons stated above I therefore AFFIRM, ADOPT and MODIFY the
Recommendation (ECF No.63) as noted above; GRANT defendant’s Motion for Summary
Judgment (ECF No.48), OVERRULE plaintiff’s Objection (ECF No. 77) and DISMISS all of
plaintiff’s claims against defendant Chase. The Clerk of the Court is directed to enter
JUDGMENT in this matter as follows:
(1) in favor of defendant JP Morgan Chase Bank, N.A., in accordance with this Order;
(2) in favor of Defendants Law Offices of Robert Hopp& Associates, LLC, Robert J.
Hopp and Sally Zeman in accordance with the “Order Adopting September 27, 2012,
Recommendation of Magistrate Judge and Dismissing Plaintiff’s Complaint Without Prejudice
as to Some Defendants (ECF No.22) dated October 22, 2012; and
(3) in favor of Defendant Mortgage Electronic Registration Systems, Inc., in accordance
with the “Order Adopting December 7, 2012, Recommendation of Magistrate Judge and
Granting Defendant Mortgage Electronic Registration Systems, Inc.’s Motion to Dismiss (ECF
No.24) dated January 15, 2013.
IT IS SO ORDERED
DATED this 3rd day of August, 2015.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
United States District Judge
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