Schonebaum et al v. Shellpont Mortgage Servicing et al
ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: adopting Report and Recommendations re 28 Report and Recommendations; granting in part 18 Motion to Dismiss. By Judge Robert E. Blackburn on 3/21/16.(kfinn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-03093-REB-KLM
MERLE H. SCHONEBAUM, and
DENISE M. SCHONEBAUM,
SHELLPOINT MORTGAGE SERVICING,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and
BANK OF NEW YORK MELLON as Trustee for Countrywide ALT 2005-42CB Trust,
ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
The matter before me is the Recommendation of United States Magistrate
Judge [#28],1 filed February 29, 2016. No timely objection having been filed to the
recommendation, I review it for plain error only. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2
I perceive no error, much less plain error, in the magistrate judge’s
recommended disposition of defendants’ motion to dismiss. The recommendation is
“[#28]” 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 filing system (CM/ECF). I use this
convention throughout this order.
This standard pertains even though plaintiffs are proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122. In addition, because plaintiffs are proceeding pro se, I have construed their
pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
exceptionally detailed and cogently reasoned. So thoroughly has the magistrate judge
considered and analyzed the issues raised by and inherent to the motion that any
extended exegesis on my part would be little more than a festooned reiteration of her
excellent work. Suffice to say that I concur fully with her conclusions that (1) plaintiffs
lack standing to bring their claims against defendants Mortgage Electronic Registration
Systems, Inc., and Bank of New York Mellon, as those claims belong to the bankruptcy
estate; (2) plaintiffs’ federal RESPA and TILA claims against defendant Shellpoint
Mortgage Servicing (“Shellpoint”) are barred by limitations3; (3) plaintiffs have failed to
plead facts sufficient to state a plausible, viable FCRA claim against Shellpoint; and (4)
the court should decline to exercise supplemental jurisdiction as to plaintiffs’ remaining
state law claims against Shellpoint.
I therefore find and conclude that the magistrate judge’s recommendation should
be approved and adopted, and defendants’ corresponding motion to dismiss granted on
the bases set forth therein.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#28], filed
February 29, 2016, is approved and adopted as an order of this court;
2. That the corresponding Defendants’ Motion To Dismiss Pursuant to Fed.
R. Civ. P. 12(b)(1) and 12(b)(6) [#18], filed March 26, 2015, is granted in part as
The court very much appreciates the magistrate judge’s careful and thoughtful analysis of
alternative bases for dismissal of these claims in the event the court had not agreed with the
recommendation to dismiss on limitations grounds. Had it been necessary to consider these alternative
reasons for dismissal, I would have found them equally as persuasive.
a. That the motion is granted insofar as it seeks dismissal without
prejudice of all claims against defendants, Mortgage Electronic
Registration Systems, Inc., and Bank of New York Mellon;
b. That the motion is granted further to the extent it seeks dismissal with
prejudice of all claims under federal law against defendant, Shellpoint
Mortgage Servicing; and
c. That in all other respects, the motion is denied;
3. That all claims against defendants, Mortgage Electronic Registration Systems,
Inc., and Bank of New York Mellon, are dismissed without prejudice;
4. That plaintiff’s claims against defendant, Shellpoint Mortgage Servicing,
arising under (a) the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq.
(b) the Truth in Lending Act, 15 U.S.C. § 1601 et seq.; and (c) the Fair Credit Reporting
Act, 15 U.S.C. § 1681, are dismissed with prejudice;
5. That the court declines to exercise supplemental jurisdiction over plaintiff’s
state law claims against defendant, Shellpoint Mortgage Servicing, and those claims are
dismissed without prejudice;
6. That judgment shall enter on behalf of defendants, Shellpoint Mortgage
Servicing; Mortgage Electronic Registration Systems, Inc.; and Bank of New York
Mellon, and against plaintiffs, Merle H. Schonebaum and Denise M. Schonebaum, as
a. That judgment without prejudice shall enter as to all claims asserted
against defendants, Mortgage Electronic Registration Systems, Inc., and
Bank of New York Mellon;
b. That judgment with prejudice shall enter on plaintiffs’ claims against
defendant, Shellpoint Mortgage Servicing arising under (a) the Real Estate
Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (b) the Truth in
Lending Act, 15 U.S.C. § 1601 et seq.; and (c) the Fair Credit Reporting
Act, 15 U.S.C. § 1681; and
c. That judgment without prejudice shall enter as to plaintiffs’ state law
claims against defendant, Shellpoint Mortgage Servicing;
7. That defendants are awarded their costs, to be taxed by the clerk of the court
in the time and manner provided in Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1;
8. That this case is closed.
Dated March 21, 2016, at Denver, Colorado.
BY THE COURT:
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