Cary et al v. US Bank NA, et al

Filing 8

ORDER denying 2 Emergency Motion for Temporary Restraining Order and Preliminary Injunctive Relief. By Judge Robert E. Blackburn on 1/21/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 15-cv-00102-REB-CBS
ROBERT CARY, LINDA CARY,
Plaintiffs,
v.
US. BANK, N.A., as TRUSTEE, on BEHALF OF THE HOLDERS OF THE CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. HOME EQUITY PASS
THROUGH CERTIFICATES, SERIES 2007-1;
BARRETT, FRAPPIER & WEISSERMAN LLP,
PUBLIC TRUSTEE OF CUSTER COUNTY, COLORADO, in her official capacity,
Defendants.

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
Blackburn, J.
This matter is before me on the Emergency Motion for Temporary Restraining
Order and Preliminary Injunctive Relief [#2]1 filed January 15, 2015. The plaintiffs
seek an order restraining a public trustee sale scheduled to occur January 21, 2015.
On review of the complaint [#1], the exhibits attached to the complaint, the motion [#2]
for temporary restraining order and preliminary injunction, and the applicable law, I deny
the motion of the plaintiffs.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
28 U.S.C. § 1367 (supplemental).

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“[#2]” 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.

II. FACTUAL ALLEGATIONS
On December 30, 2014, a state court granted to defendant U.S. Bank an order
authorizing a public trustee sale under Rule 120 of the Colorado Rules of Civil
Procedure. In essence, the public trustee sale is a substantial step in the effort of U.S.
Bank to foreclose on the home owned by the plaintiffs. The plaintiffs contend the Rule
120 order was sought and granted improperly because U.S. Bank and its attorneys did
not provide credible evidence to show U.S. Bank had standing to seek relief under Rule
120. The plaintiffs contend U.S. Bank does not have the authority to initiate foreclosure
proceedings against the property of the plaintiffs because the Promissory Note, Deed of
Trust, and Assignment on which U.S. Bank relied in the Rule 120 proceeding are
fraudulent and spurious. Motion [#2], pp. 1 - 2.
Attached to the complaint [#1] are multiple copies of these documents. The
plaintiffs provide what they say are certified copies of the documents provided by their
title company. Complaint, pp. 24 - 27. The plaintiffs provide also copies of the
documents provided to them in a 2013 foreclosure action, with two debt collection
letters, and in a different civil action which is not detailed in the complaint. Some of the
document packets contain a document captioned “Corporate Assignment of Deed of
Trust,” which indicates that the relevant deed of trust was assigned to U.S. Bank
National Association. See, e.g., CM/ECF p. 32. The plaintiffs allege that there are
differences between the certified copies provided by their title company and the copies
relied on by U.S. Bank. These differences, the plaintiffs contend, establish a prima facie
case of fraud, create due process concerns, and raise serious constitutional questions.
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Complaint [#1], p. 16.
The plaintiffs do not cite, either in their complaint [#1] or their motion [#2], any
specific relevant differences in the various sets of documents. Rather, they rely on their
conclusory assertion that there are relevant differences. The court has reviewed the
sets of documents attached to the complaint [#1] and does not find any readily apparent
differences which tend to show that U.S. Bank relied on invalid documents, or valid
documents which do not show that U.S. Bank has standing in the Rule 120 proceeding.
There are some readily apparent differences between and among the sets of
documents provided by the plaintiffs. Those readily apparent differences, however,
appear to arise from processing and transfer of the rights reflected in the original
documents.
III. STANDARD OF REVIEW
Because the plaintiffs are proceeding pro se, I have construed their motion and
the related filings 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 (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 (1972)).
A temporary restraining order or preliminary injunction is extraordinary relief. A
party seeking such relief must show: (1) a substantial likelihood that the movant will
prevail eventually on the merits; (2) that the movant will suffer imminent and irreparable
injury unless the injunction issues; (3) that the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause the opposing party; (4)

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that the injunction, if issued, would not be adverse to the public interest. Lundgrin v.
Claytor, 619 F.2d 61, 63 (10th Cir. 1980); Heideman v. S. Salt Lake City, 348 F.3d
1182, 1189 (10th Cir. 2003) (irreparable injury must be imminent). In addition to the
foregoing factors, a party seeking a temporary restraining order also must demonstrate
clearly, with specific factual allegations, that immediate and irreparable injury will result
absent a temporary restraining order. FED. R. CIV. P. 65(b).
IV. ANALYSIS
I find and conclude that the plaintiffs have not demonstrated a substantial
likelihood that they eventually will prevail on the merits of one or more of their claims.
This is true because, even when construed liberally, the complaint [#1] and the motion
[#2] do not allege specific facts which make it plausible that the plaintiffs can prove that
U.S. Bank does not have standing to pursue relief under Rule 120 against the plaintiffs.
Fed. R. Civ. P. 8 and 12, as construed by the courts, provide the basic
standards for pleading a claim. A complaint must, at minimum, “‘contain[ ] enough facts
to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009).
“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." Id. (emphases in original).2 “All well-pleaded facts, as

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Twombly rejected and supplanted the “no set of facts” language of Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Tenth Circuit clarified the meaning of the “plausibility”
standard:

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distinguished from conclusory allegations, must be taken as true.” Ruiz v. McDonnell,
299 F.3d 1173, 1181 (10th Cir. 2002), cert. denied, 538 U.S. 999 (2003).
Of course, no motion to dismiss has been filed in this case. Still, I must consider
the allegations of the plaintiffs by the standards cited above to determine if they have
demonstrated a substantial likelihood that they eventually will prevail on the merits of
one or more of their claims. In this case, as the first step in demonstrating a substantial
likelihood of success, the plaintiffs must point to one or more specific aspects of the
relevant documents to show that U.S. Bank does not have proper standing in the Rule
120 proceeding. The plaintiffs cite no such specific facts. Rather, without reliance on
specific facts, the plaintiffs claim in a conclusory fashion that the documents are
fraudulent and U.S. Bank did not have standing in the Rule 120 proceeding. Such
vague generalities do not demonstrate a substantial likelihood of success on the merits.
Rather, they show only a claim readily subject to a motion to dismiss. This is not to say
that the plaintiffs cannot allege and circumstantiate such specific facts. Possibly, they
can do so. At this point, however, the plaintiffs have provided only insufficient vague

“plausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs “have not nudged their
claims across the line from conceivable to plausible.” The allegations
must be enough that, if assumed to be true, the plaintiff plausibly (not just
speculatively) has a claim for relief.
This requirement of plausibility serves not only to weed out claims that do
not (in the absence of additional allegations) have a reasonable prospect
of success, but also to inform the defendants of the actual grounds of the
claim against them. “Without some factual allegation in the complaint, it
is hard to see how a claimant could satisfy the requirement of providing
not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which
the claim rests.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974;
internal citations and footnote omitted).

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generalities.
When the moving party has established that the three harm factors tip decidedly
in favor of the movant, the probability of success requirement is somewhat relaxed, and
the movant need only show questions going to the merits so serious, substantial,
difficult, and doubtful as to make them a fair ground for litigation. Nova Health Systems
v. Edmondson, 460 F.3d 1295, 1298 n. 6 (10th Cir. 2006). Given the allegations and
evidence currently in the record, the harm factors generally weigh in favor of the
defendants. The plaintiffs have not cited specific facts which show that the public
trustee sale is improper. If the sale is proper, as it appears to be on the current record,
then an injunction stopping the sale would cause significant harm to the defendants and
would provide the plaintiffs with an apparent windfall. Even if the harm factors weighed
in favor of the plaintiffs, their conclusory and non-specific factual allegations do not
show questions going to the merits so serious, substantial, difficult, and doubtful as to
make those questions a fair ground for litigation.
I note also that the plaintiffs appear to seek an ex parte temporary restraining
order. There is no indication that the defendants have been served with a summons
and complaint. Additionally, the plaintiffs filed this case and their motion just a few days
before the scheduled public trustee sale. This timing would make it essentially
impossible for the defendants to be served with time to file a response in advance of the
sale.
The plaintiffs have failed to comply with D.C.COLO.LCivR 65.1. For ex parte
applications, Local Rule 65.1(a) provides that a motion shall be accompanied by a
certificate of counsel or a pro se party attesting that (1) actual notice of the time of filing
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the motion, and copies of all pleadings and papers filed in the action to date or to be
presented to the court at the hearing, have been furnished to the adverse party; or (2)
the moving party has made efforts to give such notice and furnish such copies. “Except
as provided by Fed. R. Civ. P. 65(b)(1), the court will not consider an ex parte motion for
temporary restraining order.” D.C.COLO. LCivR 65.1(a)(2). Although the court must
liberally construe pro se filings, pro se status does not excuse the obligation of any
litigant to comply with the same rules of procedure that govern other litigants. See
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994). Importantly, the court should not be the pro se litigant’s
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Again in a conclusory fashion, and citing Fed. R. Civ. P. 65(a) and D.C.COLO.
LCivR 7.1(a), the plaintiffs claim they gave notice to the adverse parties through a law
firm. Motion [#2], p. 2. However, they do not specify that they gave the opposing
parties actual notice of the time of filing the motion and copies of all pleadings and
papers filed in the action to date. Further, there is no indication that the law firm cited
represents the Public Trustee of Custer County, Colorado, a defendant named in the
complaint [#1]. Should the plaintiffs file a subsequent motion for ex parte injunctive
relief, they must comply with these requirements.
V. CONCLUSION & ORDER
The plaintiffs have not shown a substantial likelihood that they eventually will
prevail on the merits of any one or more of their claims. Absent such a showing,
consideration of the other factors relevant to a motion for temporary restraining order
and preliminary injunction is obviated. Further, the plaintiffs have not complied with the
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important procedural requirements of D.C.COLO.LCivR 65.1. On both substantive and
procedural grounds, their motion for injunctive relief must be denied.
THEREFORE, IT IS ORDERED that the Emergency Motion for Temporary
Restraining Order and Preliminary Injunctive Relief [#2] filed January 15, 2015, is
DENIED.
Dated January 21, 2015, at Denver, Colorado.
BY THE COURT:

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