Davis v. Deutsche Bank National Trust Company et al

Filing 77

ORDER. ORDERED that the portion of Plaintiff's Forthwith Motion in re ex Parte Young Motion for Temporary Restraining Order and Preliminary Injunction 61 which seeks a preliminary injunction is DENIED. ORDERED that the hearing on Plaintiff's Forthwith Motion in re ex Parte Young Motion for Temporary Restraining Order and Preliminary Injunction 61 set for 1:30 p.m. on January 5, 2017 is vacated. Signed by Judge Philip A. Brimmer on 12/30/16. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-02245-PAB-KLM
JOHN DAVIS, pro se,
Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for GSAA Home Equity
Trust 2007-5, Asset-Back Certificates, Series 2007-5,
CYNTHIA D. MARES, Arapahoe County Public Trustee (Nominal Defendant),
JUDGE ELIZABETH WEISHAUPL (Nominal Defendant),
LAWRENCE E. CASTLE, in his corporate capacity,
LAWRENCE E. CASTLE, in his individual capacity,
ROBERT J. HOPP, in his corporate capacity,
ROBERT J. HOPP, in his individual capacity,
CHRISTINA WHITMER, Public Trustee of Grand County (Nominal Defendant), and
DOES 1-10,
Defendants.

ORDER

This matter is before the Court on Plaintiff’s Forthwith Motion in re ex Parte
Young Motion for Temporary Restraining Order and Preliminary Injunction [Docket No.
61]. In light of plaintiff’s pro se status, the Court will construe plaintiff’s motion liberally,
but will not advocate for him. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
The Court has already denied that portion of plaintiff’s motion seeking a
temporary restraining order. See Docket No. 64. That order recites the nature of
plaintiff’s preliminary injunction motion and the relevant procedural history of this case,
which will not be repeated here.

To succeed on a motion for a preliminary injunction, the moving party must show
(1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips
in the movant’s favor; and (4) that the injunction is in the public interest. RoDa Drilling
Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 20 (2008)); see Little v. Jones, 607 F.3d 1245, 1251
(10th Cir. 2010)). “[B]ecause a preliminary injunction is an extraordinary remedy, the
right to relief must be clear and unequivocal.” Beltronics USA, Inc. v. Midwest Inventory
Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) (quoting Greater Yellowstone
Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal quotation marks
omitted). Granting such “drastic relief,” United States ex rel. Citizen Band Potawatomi
Indian Tribe of Oklahoma v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th
Cir. 1989), is “the exception rather than the rule.” GTE Corp. v. Williams, 731 F.2d 676,
678 (10th Cir. 1984). Under the modified test for a preliminary injunction, a plaintiff can
satisfy the likelihood of success on the merits prong by showing that there are
“questions going to the merits so serious, substantial, difficult and doubtful, as to make
the issues ripe for litigation and deserving of more deliberate investigation.” RoDa
Drilling Co., 552 F.3d at 1208 n.3 (quoting Walmer v. United States Dep’t of Defense,
52 F.3d 851, 854 (10th Cir. 1995)).
Plaintiff asks the Court to enjoin Judge Elizabeth Weishaupl from presiding over
the eviction proceedings against him after she presided over the Colorado Rule of Civil
Procedure 120 (“Rule 120") hearing that allowed defendant Deutsche Bank National
Trust Company (“Deutsche Bank”) to foreclose on the property at issue. See Deutsche
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Bank National Trust Company v. Briggs, No. 2016CV000336 (Colo. Dist. Ct., Arapahoe
Cty.); Docket No. 61 at 2-3. Plaintiff argues that the Rule 120 proceedings were
unconstitutional because Deutsche Bank was not required to prove that it was a holder
in due course and because the fact of Judge Weishaupl presiding over the subsequent
eviction proceedings violates his due process rights. Docket No. 61 at 3.
On December 16, 2016, the Court denied that portion of plaintiff’s motion that
sought a temporary restraining order. Docket No. 64. The Court found that plaintiff
could not satisfy the likelihood of success on the merits prong. Id. at 3.
Defendants Judge Weishaupl [Docket No. 65 (filed Dec. 20, 2016)], Deutsche
Bank [Docket No. 68 (filed Dec. 21, 2016)], Cynthia D. Mares [Docket No. 69 (filed Dec.
22, 2016)], and Christina Whitmer [Docket No. 70 (filed Dec. 22, 2016)] filed responses
to plaintiff’s preliminary injunction motion. On December 27, 2016, plaintiff filed his
reply. Docket No. 72.
Judge Weishaupl argues that § 309(c) of the Federal Courts Improvement Act of
1996 (“FCIA”) bars injunctive relief against her for claims under 42 U.S.C. § 1983
concerning acts performed in her judicial capacity. Docket No. 65 at 5 (citations
omitted). As the Tenth Circuit has recognized, “judicial immunity now extends to suits
against judges where a plaintiff seeks not only monetary relief, but injunctive relief as
well.” Lawrence v. Kuenhold, 271 F. App’x 763, 766 n.6 (10th Cir. 2008) (unpublished)
(suit against a judge for the District Court of Alamosa County, Colorado).1

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Other circuits have also recognized the same principle and that the bar extends beyond
federal judicial officers. See, e.g., Roth v. King, 449 F.3d 1272, 1286 (D.C. Cir. 2006).
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As modified by FCIA, § 1983 provides in relevant part that, “in any action brought
against a judicial officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.” Plaintiff does not claim that a declaratory decree
was violated, but it is unclear that declaratory relief is available in this action because
the Court must abstain from entering such relief under Younger v. Harris, 401 U.S. 37
(1971), due to the ongoing eviction proceedings. Docket No. 64 at 5-6.
Judge Weishaupl next argues that she is entitled to qualified immunity because
“Plaintiff’s allegations do not show a constitutional violation and also fail to establish that
ruling against a litigant in a civil proceeding violates clearly established law.” Docket
No. 65 at 7. The Court turns, therefore, to whether plaintiff has established that he is
likely to succeed on the merits of his constitutional claim.
Plaintiff’s reply does not respond to the Court’s grounds for denying a temporary
restraining order or to defendants’ arguments. Docket No. 72. Instead, he analogizes
this case to Brumfiel v. U.S. Bank, No. 12-cv-02716-WJM, 2013 WL 1874186 (D. Colo.
May 6, 2013). Docket No. 72 at 2. However, the situation in Brumfiel differs from the
situation here with regard to the evidence used to show the right to foreclose. The trust
in Brumfiel “relied upon a statement by its attorney that the Trust was the holder of the
Property in suit in lieu of the original evidence of debt.” Brumfiel, 2013 WL 1874186 at
*1 (internal quotation marks omitted). In this case, Deutsche Bank produced the duly endorsed original note at the Rule 120 hearing. In re Deutsche Bank National Trust
Company, No. 2016CV31190, slip op. at 5 (Colo. Dist. Ct., Arapahoe Cty . Aug. 18,
2016). Plaintiff argues that the Rule 120 proceedings and related statutory
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modifications deprived him of due process, but he fails to explain how he was injured
given that Deutsche Bank presented the original note, rather than relying on an
attorney’s certification. As the Court previously found, Plaintiff’s challenge to the Rule
120 proceedings fails because the order that issued after the Rule 120 proceedings
found that Deutsche Bank satisfied the burden present even before the statutory
changes and introduction of Rule 120 by producing the duly-endorsed original note.
Docket No. 64 at 4. “Plaintiff's conclusory assertion that [the presentation of the dulyendorsed original note] did not occur is not enough to overcome the findings in the Rule
120 order.” Id. at 4.
Likewise, Plaintiff’s allegations that his due process rights are violated because
Judge Weishaupl presides over the eviction proceedings after she presided over the
Rule 120 proceedings are legally insufficient. Docket No. 64 at 3-4 (citing Fed. Trade
Comm’n v. Cement Inst., 333 U.S. 683, 702-03 (1948)).
Plaintiff fails to satisfy even the modified test for success on the merits by
showing that the merits of his claims are “doubtful . . . and deserving of more deliberate
investigation.” RoDa Drilling Co., 552 F.3d at 1208 n.3 (internal quotation marks
omitted). Therefore, plaintiff’s request for a preliminary injunction will be denied. See
Fasi v. HSBC Bank USA, N.A., No. 12-cv-03290-PAB-MJW, 2013 WL 50434 at *3 (D.
Colo. Jan. 3, 2013) (where a party fails to satisfy one of the factors necessary to award
injunctive relief, “[t]he Court need not reach the other f actors of the inquiry.”).
Accordingly, it is

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ORDERED that the portion of Plaintiff’s Forthwith Motion in re ex Parte Young
Motion for Temporary Restraining Order and Preliminary Injunction [Docket No. 61]
which seeks a preliminary injunction is DENIED. It is further
ORDERED that the hearing on Plaintiff’s Forthwith Motion in re ex Parte Young
Motion for Temporary Restraining Order and Preliminary Injunction [Docket No. 61] set
for 1:30 p.m. on January 5, 2017 is vacated.

DATED December 30, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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