Silva v. US Bank, National Assoc. et al

Filing 85

ORDER Adopting Recommendation of Magistrate Judge Denying Plaintiff's Motion for Temporary Restraining Order. Plaintiff's Objection to the Recommendation (ECF No. 15 ) is OVERRULED; The Recommendation (ECF Nos. 13 , 14 ) is ADOPTED in its entirety; Plaintiffs Motion seeking a temporary restraining order (ECF Nos. 3 , 11 ) is DENIED without prejudice. ORDERED by Judge William J. Martinez on 11/15/2017. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1529-WJM-KLM
MARGARET A. SILVA,
Plaintiff,
v.
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
Does 1-10,
Defendants.

ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE DENYING
PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

This matter is before the Court on United States Magistrate Judge Kristen L.
Mix’s Recommendation dated June 26, 2017 (“Recommendation”), which
recommended denying without prejudice Plaintiff’s motion seeking a temporary
restraining order against Judge David J. Stevens (“Motion”). (ECF Nos. 13, 14.)
Plaintiff Margaret A. Silva (“Plaintiff”) filed a timely Objection to the Recommendation
(“Objection”). (ECF No. 15.) For the reasons set forth below, Plaintiff’s Objection is
overruled and the Recommendation is adopted.

I. STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” In the absence of a timely and specific objection, “the district court may
review a magistrate . . . [judge’s] report under any standard it deems appropriate.”
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474
U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72 Advisory Committee’s Note (“When
no timely objection is filed, the court need only satisfy itself that there is no clear error
on the face of the record.”). An objection to a recommendation is properly made if it is
both timely and specific. United States v. One Parcel of Real Property Know n as 2121
East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is suf ficiently specific
if it “enables the district judge to focus attention on those issues—factual and
legal—that are at the heart of the parties’ dispute.” Id. (quoting Thomas, 474 U.S. at
47). In conducting its review, “[t]he district court judge may accept, reject, or modify the
recommendation; receive further evidence; or return the matter to the magistrate judge
with instructions.” Id.
Because Plaintiff is proceeding pro se, the Court must liberally construe his
pleadings. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). T he Court, however, cannot act as an
advocate for Plaintiff, who must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

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1991).
A preliminary injunction is an extraordinary remedy; accordingly, the right to relief
must be clear and unequivocal. See, e.g., Flood v. ClearOne Commc’ns, Inc., 618 F.3d
1110, 1117 (10th Cir. 2010). To meet this burden, a party seeking a preliminary
injunction must show: (1) a likelihood of success on the merits, (2) a threat of irreparable
harm, which (3) outweighs any harm to the non-moving party, and that (4) the injunction
would not adversely affect the public interest. See, e.g., Awad v. Ziriax, 670 F.3d 1111,
1125 (10th Cir. 2012).
II. BACKGROUND
Plaintiff filed her initial motion seeking a temporary restraining order against
Colorado District Court Judge David J. Stevens (“Judge Stevens”) in June 2017. (ECF
No. 3 at 1.) Judge Stevens is the presiding judge in Plaintiff’s Forcible Entry and
Detainer proceeding in state court, which arose pursuant to a Rule 120 foreclosure
proceeding. (Id.) Plaintiff’s underlying claim is that Colorado Rule of Civil Procedure
120(d) and the state foreclosure statute Colo. Rev. Stat. § 38-38-101 as amended by
HB06-1387 facially and procedurally violate the Fourteenth Amendment to the united
States Constitution. (Id. at 5.) Thus, Plaintiff argues, an eviction which follows these
proceedings is facially unconstitutional and a denial of due process. (Id.) Plaintiff would
like to enjoin the Forcible Entry and Detainer proceeding until her constitutional claims
can be adjudicated. (Id.)
Judge Mix recommended that Plaintiff’s Motion be denied without prejudice
because Plaintiff had not complied with the conferral and notice requirement of

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D.C.COLO.LCivR 7.1 and 65.1(a). (ECF No. 13 at 2.) Plaintiff then filed another motion
for preliminary injunction, which was essentially identical to the first motion and also did
not comply with the Local Rules. (ECF No. 11.) Judge Mix issued the same
Recommendation to the second Motion. (ECF No. 14.) Plaintif f then timely filed an
Objection to the Recommendation. (ECF No. 15.)
III. ANALYSIS
Judge Mix’s Recommendation denies both motions seeking a temporary
restraining order. (ECF Nos. 13, 14.) The Recommendation was based on the Plaintiff’s
failure to comply with the conferral and notice requirements of D.C.COLO.LCivR 7.1 and
65.1(a). (ECF No. 13 at 2; ECF No. 14 at 2.)
Local Rule 65.1(a) imposes notice and conferral requirements on parties seeking
a temporary restraining order. A motion for a temporary restraining order
shall be accompanied by a certificate of counsel or an
unrepresented party, stating:
(1) that actual notice of the time of filing the motion, and
copies of all pleadings and documents filed in the action to
date or to be presented to the court at the hearing , have
been provided to opposing counsel and any unrepresented
adverse party; or
(2) the efforts by the moving party to provide the required
notice and documents. Except as provided by Fed. R. Civ.
P. 65(b)(1), the court shall not consider an ex parte motion
for temporary restraining order.
D.C.COLO.LCivR 65.1(a).
Here, Plaintiff’s Motion contains a “Certificate of Service by Mail,” which indicates
that she mailed the Motion to Defendant US Bank and that she “served all defendants by
including a courtesy copy of the above motion in the summons and complaint.” (ECF
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No. 11 at 17.) However, as Judge Mix notes, Judge Stevens was not named as a
defendant in the complaint and Plaintiff has not attached to the Motion a certificate
demonstrating “the efforts made by the moving party to provide the required notice and
documents” to him. D.C.COLO.LCivR 65.1(a)(2).
Plaintiff filed a timely objection to the Recommendation. (ECF No. 15 at 1.)
Plaintiff points to a stamped copy of her Motion which shows Judge Stevens as a named
Defendant. (Id.) Plaintiff also claims that the Summons and Complaint was served on
Judge Stevens “without his name in the caption.” (Id.) Plaintiff accepts that the
complaint does not reflect Judge Stevens’ name, but claims that “he will be re[-]served
with the summons and complaint.” (Id.)
Upon examining these documents, the Court finds that Plaintiff has not provided
the required notice and documents to Judge Stevens pursuant to D.C.COLO.LCivR
65.1(a)(2). While the attachments that Plaintiff refers to do show that she contacted
counsel for Defendant US Bank, they do not show any attempt to serve or notify Judge
Stevens. (See ECF No. 15.)
Judge Mix also concluded that “on the facts she has presented to date, Plaintiff
has not clearly shown ‘that immediate and irreparable injury, loss, or damage will result
to the movant before the adverse party can be heard in opposition,’ or otherwise met the
standard of Fed. R. Civ. P. 65(b)(1) warranting consideration of an ex parte motion for
temporary restraining order.” (ECF No. 13 at 3.) In her Objection, Plaintiff argues that
she “will suffer a pre-deprivation if she is evicted.” (ECF No. 15 at 2.)
“To constitute irreparable harm, an injury must be certain, great, actual and not
theoretical. Irreparable harm is not harm that is merely serious or substantial.”
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Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003). Rathe r, the party
seeking relief must show “a clear and present need for equitable relief to prevent
irreparable harm.” Id. “It is also well settled that simple economic loss usually does not,
in and of itself, constitute irreparable harm; such losses are compensable by monetary
damages.” Id.
In her Motion, Plaintiff argues that if the Forcible Entry and Detainer proceeding is
not enjoined, she “would be dispossessed causing a pre-deprivation before obtaining a
full and fair hearing.” (ECF No. 11 at 12.) Plaintiff explains that once a public deed is
issued pursuant to the Forcible Entry and Detainer, “the loss of Plaintiff’s home becomes
essentially inevitable, which would cause irreparable harm.” (Id.) Plaintiff acknowledges
that she has a statutory right of redemption allowing her to repay the debt and reclaim
the property after the foreclosure sale, but argues that the eviction will cause her
additional fees, costs, additional rent, and translocation. (Id.)
While these effects are substantial, Plaintiff has failed to show that they are
certain to occur, and that there is a present need f or equitable relief. Thus, the Court
agrees with Judge Mix’s Recommendation that Plaintiff has not clearly shown that such
damage will occur before the adverse party can be heard in opposition. (ECF No. 13 at
3.)
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Objection to the Recommendation (ECF No. 15) is OVERRULED;

2.

The Recommendation (ECF Nos. 13, 14) is ADOPTED in its entirety;

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3.

Plaintiff’s Motion seeking a temporary restraining order (ECF Nos. 3, 11) is
DENIED without prejudice.
Dated this 15th day of November, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

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