Veres et al v. Wells Fargo Bank, N.A. et al

Filing 25

ORDER Overruling Objection to and Adopting 23 Recommendation of United States Magistrate Judge. Defendants' Motion To Dismiss and Supporting Memorandum Brief[# 21 ], filed May 24, 2013, is GRANTED. Defendants are AWARDED their costs. By Judge Robert E. Blackburn on 3/21/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-03119-REB-KLM
DAVID VERES, and
ROBIN VERES,
Plaintiffs,
v.
WELLS FARGO BANK, N.A.,
HSBC BANK USA NATIONAL ASSOCIATION, as trustee for Wells Fargo Asset
Securities Corporation, Mortgage Pass-Through Certificate Series 2006AR11,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, and
DOES 1-10, Inclusive,
Defendants.

ORDER OVERRULING OBJECTION TO AND ADOPTING
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#23],1 filed January 22, 2014; and (2) Defendants’ Partial
Objection to Magistrate Judge’s Recommendation [#24], filed February 5, 2014. I
overrule the objection, adopt the recommendation, and grant the apposite motions to
dismiss in the manner suggested by the magistrate judge.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed. I have considered carefully the

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“[#23]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filingsystem (CM/ECF). I use this
convention throughout this order.

recommendation, objections, and applicable caselaw. The recommendation is detailed
and well-reasoned. Defendants’ only objection goes to that portion of the magistrate
judge’s order that recommends the court decline to exercise supplemental jurisdiction
over plaintiffs’ state law claims. In this regard, defendants maintain that a dismissal
without prejudice of these claims would permit plaintiffs potentially to refile in state court,
where, based on diversity of citizenship, defendants could then remove the case to
federal district court and seek dismissal.
Although I appreciate the equities involved in defendants’ arguments, the fact
remains that jurisdiction in this matter was not pleaded on the basis of diversity of
citizenship, but rather under federal law. (See Verified Complaint ¶¶ 5 & 6 at 2
(describing action as a “core proceeding” and invoking federal bankruptcy jurisdiction.)
There are no allegations in the Verified Complaint from which defendants’ citizenship
can be determined, and defendants’ bare, unsubstantiated statements in their objection
are insufficient to permit the court to make conclusions on the matter. There is thus no
basis to depart from the general practice of declining to exercise supplemental
jurisdiction over pendant state claims when all federal claims have been dismissed prior
to trial. United States v. Botefuhr, 309 F.3d 1263, 1273 (10th Cir. 2002).2
I thus find and conclude that the arguments advanced, authorities cited, and
findings of fact, conclusions of law, and recommendation proposed by the magistrate
judge should be approved and adopted.

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Moreover, the court notes that plaintiffs appear to have ceased litigating this matter after
February 19, 2013, the date they filed for bankruptcy under Chapter 13. The likelihood of these claims
being resurrected in another proceeding therefore strikes the court as rather remote.

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THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#23], filed
January 22, 2014, is APPROVED AND ADOPTED as an order of this court;
2. That the objections stated in Defendants’ Partial Objection to Magistrate
Judge’s Recommendation [#24], filed February 5, 2014, are OVERRULED;
3. That Defendants’ Motion To Dismiss and Supporting Memorandum Brief
[#21], filed May 24, 2013, is GRANTED;
4. That plaintiffs’ claims alleging violations of the Real Estate Settlement
Procedures Act (“RESPA”), the Truth in Lending Act (“TILA”), the Home Ownership and
Equity Protection Act (“HOEPA”), and the Fair Credit Reporting Act (“FCRA”) as against
all defendants implicated therein are DISMISSED WITH PREJUDICE;
5. That plaintiffs’ claims under the Fair Debt Collection Practices Act (“FDCPA”)
are DISMISSED as follows:
a. That this claim against defendant HSBC Bank USA National
Association, as Trustee for Wells Fargo Asset Securities Corporation,
Mortgage Pass-Through Certificate Series 2066AR11, is DISMISSED
WITH PREJUDICE;
b. That this claim against defendant Mortgage Electronic Registration
Systems is DISMISSED WITHOUT PREJUDICE;
6. That plaintiffs’ claims against defendants Does 1-10, Inclusive, are
DISMISSED WITHOUT PREJUDICE;

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7. That the court DECLINES to exercise supplemental jurisdiction over plaintiffs’
pendant state law claims and thus these claims are DISMISSED WITHOUT
PREJUDICE;
8. That judgment with prejudice SHALL ENTER as follows:
a. On behalf of defendant Wells Fargo Bank, N.A., against plaintiffs,
David Veres and Robin Veres, as to plaintiffs’ claims alleging violations of
RESPA, TILA, HOEPA, and the FCRA;
b. On behalf of defendants, HSBC Bank USA National Association, as
Trustee for Wells Fargo Asset Securities Corporation, Mortgage PassThrough Certificate Series 2066AR11; and Mortgage Electronic
Registration Systems, against plaintiffs, David Veres and Robin Veres, as
to plaintiffs’ claims alleging violations of RESPA, TILA, and the FCRA;
c. On behalf of defendant, HSBC Bank USA National Association, as
Trustee for Wells Fargo Asset Securities Corporation, Mortgage PassThrough Certificate Series 2066AR11, against plaintiffs, David Veres and
Robin Veres, as to plaintiffs’ FDCPA claim;
9. That judgment without prejudice SHALL ENTER as follows:
a. On behalf of defendant, Mortgage Electronic Registration Systems,
against plaintiffs, David Veres and Robin Veres, as to plaintiffs’ FDCPA
claim;
b. On behalf of defendants, Does 1-10, Inclusive, against plaintiffs, David
and Robin Veres, as to all claims and causes of action asserted against

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these defendants;
c. On behalf of defendants, Wells Fargo Bank, N.A.; HSBC Bank USA
National Association, as Trustee for Wells Fargo Asset Securities
Corporation, Mortgage Pass-Through Certificate Series 2066AR11;
Mortgage Electronic Registration Systems; and Does 1-10, Inclusive,
against plaintiffs, David Veres and Robin Veres, as to all state law claims
and causes of action asserted herein; and
10. That defendants are AWARDED their costs, to be taxed by the clerk of the
court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated March 21, 2014, at Denver, Colorado.
BY THE COURT:

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