Silva v. US Bank, National Assoc. et al
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 8/9/17 re 43 Amended Forthwith Motion for an Order to Show Cause Why a Motion for TRO/Preliminary Injunction Should Not Issue. The Court hereby respectfully RECOMMENDS that the Motion 43 be DENIED. (lgale, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01529-WJM-KLM
MARGARET A. SILVA,
US BANK, NATIONAL ASSOC., as Trustee under the Pooling and Service Agreement
dated as of February 1, 2007, GSAMP trust 2007-NCI,
MORTGAGE PASS-THROUGH CERTIFICATES, series 207, NCI,
PAUL KING, District Court Judge, in his individual capacity,
DAVID J. STEVENS, District Court Judge, in his individual capacity,
18TH JUDICIAL DISTRICT, Court of Colo. Arapahoe County,
RICHARD B. CASCHETTE, District Court Judge, in his individual capacity,
CHRISTINE DUFFY, Douglas County Public Trustee, in her individual capacity,
LAWRENCE E. CASTLE, in his corporate capacity,
ROBERT J. HOPP, in his individual and corporate capacity,
MERS INC., a division of MERSCORP INC., and
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Amended Forthwith Motion for an
Order to Show Cause Why a Motion for TRO/Preliminary Injunction Should Not Issue
[#43]1 (the “Motion”). In light of Plaintiff’s pro se status, the Court construes her filings
liberally, but must not act as her advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
“[#43]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Recommendation.
Plaintiff challenges the foreclosure of her residential property. See generally Motion
[#43]. The Motion [#43] seeks an order enjoining Defendant Judge Paul King (“Judge
King”) from proceeding with a Forcible Entry and Detainer proceeding, which was originally
scheduled for July 6, 2017 and now, according to the Motion, has been reset to August 11,
2017. See Motion [#43] at 1. Although Defendants have not yet filed a response, the Court
deems it appropriate to rule on the Motion at this time. See D.C.COLO.LCivR 7.1(d)
(“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it
Fed. R. Civ. P. 65(a) and (b) govern preliminary injunctions and temporary
restraining orders. “Where the opposing party has notice, the procedure and standards for
issuance of a temporary restraining order mirror those for a preliminary injunction.” Emmis
Commc’ns Corp. v. Media Strategies, Inc., No. 00-WY-2507CB, 2001 WL 111229, at *2 (D.
Colo. Jan. 23, 2001) (citing 11A Charles Alan Wright, et al., Federal Practice and
Procedure § 2951 (2d ed.1995)). It is unclear whether Plaintiff has complied with the notice
requirements of the Court’s applicable Local Rules. On August 7, 2017, Plaintiff filed a
notice stating that she sent an email message on July 30, 2017, to Allison Ailer, apparently
the attorney for Judge King and the 18th Judicial District. See [#55]. Plaintiff states that
she received an out-of-office message. Id. Plaintiff also submitted Civil Process Affidavits
signed by deputies of the Douglas County Sheriff’s Office, indicating that they served an
“Amended Forthwith Motion” and “Exhibit 1” on Defendants Judge King and 18th Judicial
District on July 19, 2017, and July 21, 2017, respectively. See [#45-1, #45]. However, it
is unclear which version of the “Amended Forthwith Motion” was served on these
Defendants. The Court also notes that neither of these Defendants have entered an
appearance. Nonetheless, considering Plaintiff’s pro se status, the Court applies the
standard for a preliminary injunction here. See Hall, 935 F.2d at 1110.
Injunctive relief is an extraordinary remedy which should only be granted when the
moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ.
of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). 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). In the Tenth Circuit, a party
requesting injunctive relief must clearly establish the following: (1) the party will suffer
irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever
damage the proposed injunction may cause the opposing party; (3) the injunction, if issued,
would not be adverse to the public interest; and (4) there is a substantial likelihood of
success on the merits. Id. “The purpose of a preliminary injunction is not to remedy past
harm but to protect plaintiffs from irreparable injury that will surely result without their
issuance.” Id. at 1267. Moreover,
[b]ecause the limited purpose of a preliminary injunction is merely to preserve
the relative positions of the parties until a trial on the merits can be held, we
have identified the following three types of specifically disfavored preliminary
injunctions . . . (1) preliminary injunctions that alter the status quo; (2)
mandatory preliminary injunctions; and (3) preliminary injunctions that afford
the movant all the relief that [he] could recover at the conclusion of a full trial
on the merits.
Id. at 1258-59 (citations omitted). These disfavored injunctions are “more closely
scrutinized to assure that the exigencies of the case support the granting of a remedy that
is extraordinary even in the normal course.” Id. at 1259.
As noted above, Plaintiff seeks an order enjoining Defendants Judge King and the
18th Judicial District from proceeding with a Forcible Entry and Detainer Proceeding. Thus,
the relief Plaintiff seeks would alter the status quo, as this would require that the Court
intervene in state court proceedings. Therefore, the injunctive relief sought by Plaintiff
“constitutes a specifically disfavored injunction” that “must be more closely scrutinized.”
See Schrier, 427 F.3d at 1261. Accordingly, the Motion [#43] must be denied unless
Plaintiff’s “right to relief [is] clear and unequivocal.” Id. at 1258.
Here, Plaintiff has failed to demonstrate that she is substantially likely to succeed
on the merits. See Schrier, 427 F.3d at 1258. Plaintiff challenges the constitutionality of
Colorado’s Rule 120 proceedings. See Motion [#43] at 2. Specifically, she states that Rule
120 proceedings are limited and do not allow homeowners to present all available
defenses, and that the burden of proof that now applies in Rule 120 proceedings following
amendments to Colorado’s foreclosure laws unfairly favors lenders.2 Id. at 3-4, 8-9.
However, “precedent makes clear that a judicial proceeding brought pursuant to Rule 120
which follows the dictates of that law does not violate an individual’s due process rights
under the Fifth and Fourteenth Amendments.” Lewis v. JP Morgan Chase Bank, National
Assoc., No. 13-cv-1375-PAB-KLM, 2014 WL 1217948, at *10 n.5 (D. Colo. Mar. 24, 2014)
(internal citations omitted).
Additionally, Plaintiff’s bare allegation that Judge Caschette did not require US Bank
to prove that it had standing to foreclose on the property is conclusory, and therefore does
not meet Plaintiff’s burden to demonstrate that her right to relief is “clear and unequivocal.”
Throughout the Motion [#43], Plaintiff cites to various cases issued prior to the
amendments to Colorado’s foreclosure laws. Those cases are not persuasive, as they do not
consider the law as it currently exists.
Motion [#43] at 10.3
Lastly, Plaintiff alleges that “Judge Caschette’s Order Authorizing Sale . . . and the
Release agreement was [sic] made on condition that US Bank modify the loan, which US
Bank failed to do and breached the agreement . . . .” Motion [#43] at 5-6. On the Court’s
examination of the Order Authorizing Sale attached to the Motion, the documents do not
contain any such agreement, nor is the Court certain of the relevancy of Plaintiff’s
argument. Id. at 20-21.
As a result of the foregoing, the Court concludes that Plaintiff has failed to show a
likelihood of success on the merits, and respectfully recommends that the Motion [#43] 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) (stating that where plaintiff fails to demonstrate one of the
factors considered on a motion for a TRO, “[t]he Court need not reach the other factors of
For the reasons stated above,
The Court hereby respectfully RECOMMENDS that the Motion [#43] be DENIED.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
Furthermore, the Court notes that the Order Authorizing Sale attached to the Motion states
that the state court, referencing the terms of the Note and Deed of Trust, found a reasonable
probability that the provisions of Rule 120 had been complied with. See Motion [#43] at 20-21.
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).
A party’s objections to this
Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).
Dated: August 9, 2017
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