Kesler v. Countrywide Home Loans et al
Filing
140
ORDER Overruling Objection, Adopting Report and Recommendation, and Closing Case: Kesler's Objection 135 is OVERRULED, and Defendants' Motion to Dismiss 122 is GRANTED. The action is dismissed with prejudice as to all Defendants. The Clerk of Court is directed to close the case. Signed by Judge Robert J. Shelby on 3/26/21. (dla)
Case 2:18-cv-00469-RJS Document 140 Filed 03/26/21 PageID.998 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ORDER OVERRULING OBJECTION,
ADOPTING REPORT AND
RECOMMENDATION,
AND CLOSING CASE
ALICIA KESLER,
Plaintiff,
v.
COUNTRYWIDE HOME LOANS, et al.,
Defendants.
Case No. 2:18-cv-00469-RJS-DAO
Chief Judge Robert J. Shelby
Magistrate Judge Daphne A. Oberg
This case arises out of the 2017 foreclosure and sale of pro se Plaintiff Alicia Kesler’s
home. This case was referred to Magistrate Judge Daphne A. Oberg pursuant to 28 U.S.C.
§ 636(b)(1)(B). 1 On January 20, 2021, Judge Oberg entered a Report and Recommendation
recommending the undersigned dismiss with prejudice Kessler’s Second Amended Complaint. 2
Kesler timely filed an Objection to the Report. 3 For the reasons explained below, the court
OVERRULES Kesler’s Objection, adopts Judge Oberg’s Report in full, and dismisses the
Second Amended Complaint with prejudice.
BACKGROUND
On June 12, 2018, Magistrate Judge Evelyn Furse granted Kesler’s Motion for Leave to
Proceed in forma pauperis. 4 The same day, Kesler filed her initial Complaint against Defendants
1
Dkt. 119.
2
Dkt. 133.
3
Dkt. 134 (Plaintiff’s Objection).
Dkt. 2 (Order on Application to Proceed Without Payment of Fees). Although the Motion for Leave to Proceed in
forma pauperis was assigned to Magistrate Judge Furse, this case was later referred to Magistrate Judge Brooke C.
Wells. Dkt. 6. On July 20, 2020, this case was referred to Magistrate Judge Oberg. Dkt. 119.
4
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Argent Mortgage, Angela Atena, Backman Stewart Title, Charles Brown & Associates,
Countrywide Home Loans, Etitle Insurance, Fidelity National Title, First American Title, First
Franklin Financial, J. Scott Lundberg, Lundberg & Associates, MTGLO Investors, Kevin Moran,
New Penn Financial, Gary Ott, Greg Ott, PNC Financial Services Group, RM Lifestyles, Marissa
Ramsey, Scott Lundberg Associates, Select Portfolio Servicing, Shellpoint, The Trustee
Company, Stephanie Wessel. 5 Kesler also filed a Motion for Service of Process pursuant to 28
U.S.C. § 1915(d). 6 On July 20, 2018 Kesler filed her First Amended Complaint. 7
On August 27, 2018, then-Magistrate Judge Brooke C. Wells denied the Motion for
Service of Process because Kesler did not list the names and addresses of the Defendants to be
served. 8 On March 20, 2019, the court issued an Order to Show Cause directing Kesler to
establish why her Amended Complaint should not be dismissed for failure to effect service on
the Defendants. 9 Kesler did not respond to the Order to Show Cause, and on March 28, 2019,
the court dismissed her Amended Complaint without prejudice. 10 Kesler appealed the dismissal
to the Tenth Circuit Court of Appeals. 11 On January 3, 2020, the Tenth Circuit dismissed the
appeal for lack of jurisdiction because the dismissal was not a final order. 12
5
Dkt. 3 (Original Complaint).
6
Dkt. 5 (Motion for Service of Process).
7
Dkt. 16 (First Amended Complaint).
8
Dkt. 50 (Order denying Plaintiff’s Motion for Service of Process).
9
Dkt. 95 (Order to Show Cause).
10
Dkt. 97 (Order Dismissing Amended Complaint).
11
Dkt. 105 (Notice of Appeal).
12
Dkt. 112 (Order Dismissing Appeal).
2
Case 2:18-cv-00469-RJS Document 140 Filed 03/26/21 PageID.1000 Page 3 of 10
On July 13, 2020, Kesler filed her Second Amended Complaint (SAC), now the operative
Complaint. 13 In her SAC Kesler seeks recovery of one billion dollars for trespass, trespass on
the case, and replevin for the 2017 foreclosure and sale of Kesler’s home in Utah. 14
On July 31, 2020, the court issued an Order notifying Kesler it would review the SAC
under 28 U.S.C. § 1915(e) because Kesler is proceeding in forma pauperis. 15 On August 3,
2020, Defendants MTGLO Investors, New Penn Financial, Shellpoint, and Stephanie Wessel
(collectively, Shellpoint Defendants) moved to dismiss the SAC under Federal Rule of Civil
Procedure 12(b)(6). 16 Shellpoint Defendants argue Kesler’s SAC does not make any specific
allegations about them nor does it “explain how they injured her.” 17
After reviewing the parties’ briefing on the Motion to Dismiss and evaluating the SAC
under 28 U.S.C. § 1915(e)(2)(B), Judge Oberg issued a Report and Recommendation
recommending the dismissal of Kesler’s SAC with prejudice. 18 Specifically, Judge Oberg
concluded: (1) the SAC fails to state a claim against the Shellpoint Defendants because none of
the factual allegations mention MTGLO Investors, New Penn Financial, Shellpoint, or Stephanie
Wessel; 19 and (2) the SAC should be dismissed after review under 28 U.S.C. § 1915(e)(2)(B)
because it fails to state a plausible claim for relief, does not comply with the pleading
13
Dkt. 117 (Second Amended Complaint).
Dkt. 117. About a week after filing the SAC, Kesler filed what she captioned an “Amended Motion” (dkt. 120) to
“follow up” on the SAC to “reflect [she] has narrowed the Wrongdoers down” in the case to the following: New
Penn Financial LLC dba Shellpoint Mortgage Servicing, Shellpoint LLC, MTGLQ, Stephanie Wessel, Scott
Lundberg, Scott Lundberg E-Title Insurance, Select Portfolio Servicing, Inc., Greg Ott, and Ron Myers aka RM
Lifestyles. Kesler sought no specific relief in this filing, and the court has treated it as a Notice. Dkt. 139 (Docket
Text Order).
14
15
Dkt. 121 (Order Modifying Prior Order).
16
Dkt. 122 (Motion to Dismiss).
17
Id. at 2.
18
Dkt. 133.
19
Id. at 7.
3
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requirements of Rule 8, and “many of her allegations are frivolous.” 20 Judge Oberg recommends
dismissal with prejudice because “Kesler has already amended her complaint twice in this
action” and “it would be futile to give her further opportunities for amendment.” 21
On February 2, 2021, Kesler timely filed an Objection to the Report. 22 The Objection
largely takes issue with specific statements from the Report and Recommendation’s background
and legal standard sections. 23 Kesler argues certain events in the background section have
“deprived [] Kesler of the benefits of Trial by Jury,” 24 subjected her to slavery “violating ‘Article
XIII,’” 25 and “obstructed the Administration of Justice.” 26 Kesler further asserts the legal
standard section subjects her “to a constitution foreign to our [C]onstitution” and deprives Kesler
“of the benefits of Trial by Jury.” 27 Kesler also argues throughout her Objection that she has
adequately stated a claim. 28
Legal Standard
Under Rule 72(b)(3), when a party objects to a magistrate judge’s recommended
resolution of a dispositive motion, “[t]he district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” 29 To qualify as a proper
20
Id. at 9.
21
Dkt. 133 at 9.
22
Dkt. 134.
23
See Dkt. 134 ¶¶ 3–11.
24
Id. ¶ 5.
25
Id. ¶ 6.
26
Id. ¶ 7.
27
Id. ¶¶ 9.
28
Id. ¶¶ 1, 2, 11.
Fed. R. Civ. P. 72(b)(3); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“De novo review is
statutorily and constitutionally required when written objections to a magistrate's report are timely filed with the
district court.”) (citations omitted).
29
4
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objection triggering de novo review, the objection must be both timely and specific. 30 Indeed,
“only an objection that is sufficiently specific to focus the district court’s attention on the factual
and legal issues that are truly in dispute will advance the policies behind the Magistrate’s
Act[.]” 31 Thus, de novo review is not required where a party’s objections to a magistrate judge’s
disposition are either indecipherable or overly general. 32 Concerning unobjected to portions of a
report and recommendation, the Supreme Court has suggested no further review by the district
court is required, but neither is it precluded. 33 This court reviews unobjected-to portions of a
report and recommendation for clear error. 34
Kesler is a pro se litigant. Pro se litigants are held to less stringent standards than parties
formally represented by lawyers, 35 and their filings are “to be liberally construed.” 36 A litigant’s
pro se status, however, “does not excuse the obligation . . . to comply with the fundamental
United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[W]e hold that a party’s
objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an
issue for de novo review by the district court or for appellate review.”).
30
31
Id.
See id. (“Just as a complaint stating only ‘I complain’ states no claim, an objection stating only ‘I object’
preserves no issue for review.”) (citation omitted); see also Moore v. Astrue, 491 F. App’x 921, 922 (10th Cir. 2012)
(upholding district court’s clear error review of magistrate judge’s report and recommendation because Plaintiffs
objected only “generally to every finding” in the report).
32
33
See Thomas v. Arn, 474 U.S. 140, 149 (1985) (“The [Federal Magistrate’s Act] does not on its face require any
review at all, by either the district court or the court of appeals, of any issue that is not the subject of an objection.”);
id. at 154 (noting that “it is the district court, not the court of appeals, that must exercise supervision over the
magistrate,” so that “while the statute does not require the judge to review an issue de novo if no objections are filed,
it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or
any other standard”).
See, e.g., Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection
is made [to a magistrate judge’s report and recommendation], the district court judge reviews those unobjected
portions for clear error.”) (citations omitted); see also Fed. R. Civ. P. 72(b) advisory committee’s note to1983
amendment (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.”) (citing Campbell v. U.S. Dist. Court for N. Dist. Of Cal.,
501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879).
34
35
See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
36
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted) (internal quotation marks omitted).
5
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requirements of the Federal Rules of Civil . . . Procedure.” 37 Further, it is not “the proper
function of the district court to assume the role of advocate for the pro se litigant.” 38
ANALYSIS
In her Objection, Kesler argues the Report and Recommendation’s conclusion “is in fact
not evident, either to the record or evidence in record and is contradicted by the wrongdoer’s
own testimony.” 39 Kesler also insists she has “[s]tated in her [c]laim in depth and as described in
every filing, alleging the Wrongdoers as bad actors in the illegal foreclosure and fraudulently
taking of her home depriving [] Kesler life, [l]iberty and property.” 40 The court understands
Kesler to object to the part of the Report recommending her SAC be dismissed for failure to state
a claim after review under 28 U.S.C. § 1915(e)(2)(B).
The court reviews the Report and Recommendation in two steps. First, the court will
review de novo the conclusion that Kesler’s SAC fails to state a claim after review under 28
U.S.C. § 1915(e)(2)(B). The court then reviews the remainder for clear error, as none of
Kesler’s other arguments can be liberally construed as objecting to any other portion of the
Report and Recommendation. 41
37
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).
38
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
39
Dkt. 134 ¶¶ 2, 11.
40
Dkt. 134 ¶ 1.
41
Even liberally construing Kessler’s Objection, the court cannot understand Kesler to object to the Report and
Recommendation’s conclusion regarding the SAC’s failure to state a claim against the Shellpoint Defendants. The
only specific mention of the Shellpoint Defendants in Kesler’s Objection is: “[t]here was a question by attorney
Alan Hurst as to Stephanie Wessell’s actions in this lawsuit.” Dkt. 134 ¶ 8. This sentence is followed by a list of
unexplained title research and data. Dkt. 134 ¶ 8. None of the title research or data is included in the SAC and is
supplied without any explanation how it relates to the Report and Recommendation. Dkt. 134 ¶ 8. Kesler also
quotes several statements from Judge Oberg’s statement of the Background of this case and the legal standard for
review under 28 U.S.C.A. § 1915 and Federal Rule of Procedure 12(b)(6). Because these objections have no
bearing on the disposition of this case, the court does not separately address those objections here.
6
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I.
28 U.S.C. § 1915 Review
When the court authorizes a litigant to proceed in forma pauperis under 28 U.S.C. §1915,
the court is required to dismiss actions that are frivolous or fail to state a claim upon which relief
may be granted. 42 “Dismissal of a pro se complaint for failure to state a claim is proper only
where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be
futile to give him an opportunity to amend.” 43 To determine whether a dismissal is proper the
court “must accept the allegations of the complaint as true and construe those allegations, and
any reasonable inferences that might be drawn from them, in the light most favorable to the
plaintiff.” 44 However, the court will not accept as true “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” 45 “To state a claim, a complaint
must ‘make clear exactly who is alleged to have done what to whom.’” 46
To determine whether the SAC has stated a claim under § 1915(e)(2)(B), courts use the
same standard employed “for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for
failure to state a claim.” 47 Under this standard, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” 48 A claim is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” 49 “Though a
42
See 28 U.S.C. § 1915(e)(2)(B).
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (quoting Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir.
2001)).
43
44
Id. at 1217 (quoting Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002)).
45
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Stone v. Albert, 338 F. App’x 757, (10th Cir. 2009) (unpublished) (emphasis in original) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)).
46
47
Kay, 500 F.3d at 1217 (citation omitted).
48
Iqbal, 556 U.S. at 678 (citation omitted).
49
Id.
7
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complaint need not provide detailed factual allegations, it must give just enough factual detail to
provide fair notice of what the . . . claim is and the grounds upon which it rests.” 50
Kesler has failed to state a claim under § 1915(e)(2)(B). 51 In the SAC, Kesler alleges she
took out a mortgage on her property and refinanced that mortgage three times from 2002–2004. 52
Kesler alleges she was trying to refinance again in 2017 when she was notified “there was no
remedy for the foreclosure” of her property and “her property was going to sell Monday
September 25, 2017.” 53 Kesler then alleges her property was sold after the stay was lifted in her
Chapter 13 bankruptcy proceedings. 54 Kesler also attached an exhibit to the SAC entitled “Paris’
Outsource Paralegal Services, Inc.’s Amended Limited Forensic Analysis of Chain of Title
Report.” 55 The report purports to identify various “questionable documents” and recommends
“further investigation” of potential issues concerning the title to Ms. Kesler’s foreclosed
property. 56
Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (internal quotation marks omitted).
50
The SAC lacks a specific jurisdictional allegation, as required by Fed.R.Civ.P. (8)(a)(1). But while the facts
alleged in the SAC expressly demonstrate a lack of diversity jurisdiction (see dkt. 117 ¶ 14), Kesler appears to
invoke federal question jurisdiction, citing the Constitution of the United States as the basis for her claims. See Dkt.
117 at 1, ¶ 14. Kesler cites the Constitution and the Bill of Rights as the “law of the case” in her SAC, Kesler
alleges the sale of her property was “contrary to the constitution.” Dkt. 117 ¶ 14. Kesler also alleges the sale of her
property “[v]iolates the 7th amendment to the Constitution of the United States by way of the sales denying the
People’s right in any controversy that exceeds 20$ to the benefits of a Trial by Jury, and violating ex parte and ex
post facto, so the appropriation is void from the beginning.” Dkt. 117 ¶ 14. Liberally construing Kesler’s SAC, this
is sufficient to satisfy the requirement of Fed.R.Civ.P. (8)(a)(1), and the court’s own obligation to find a basis for
federal question subject matter jurisdiction where diversity is plainly absent. See Hildebrand v. Honeywell, Inc., 622
F.2d 179, 181 (5th Cir. 1980) (citing Schlesinger v. Councilman, 420 U.S. 738, 745 n.9 (1975)) (noting “it is well
settled that where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction
if the facts alleged in the complaint satisfy the jurisdictional requirements of the statute”).
51
52
Dkt. 117 ¶¶ 4–8.
53
Dkt. 117 ¶¶ 12–14.
54
Dkt. 117 ¶ 14.
55
See Dkt. 117-1 (Chain of Title Report).
56
Dkt. 117-1 at ECF 4.
8
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Kesler purports to bring three causes of action with the SAC: “trespass,” “trespass on the
case,” and “replevin.” 57 Kesler does not explain how the allegations in her SAC relate to these
claims. Throughout the SAC, Kesler makes conclusory statements that the events were
“contrary to the [C]onstitution.” 58 The SAC also describes as the “law of the case” the Magna
Carta, the Declaration of Independence, the United States Constitution, and the Bill of Rights.59
Taking all Kesler’s factual allegations as true, as the court must, the SAC cannot prevail
on the facts as alleged. The SAC contains no factual allegations connecting facts related to the
foreclosure of her home to any action by Defendants or how those actions violated the
Constitution. At bottom, the SAC does not plausibly state a legal claim for relief under the
Constitution. Without these allegations, Kesler’s SAC has failed to state a claim under §
1915(e)(2)(B).
II.
The Remainder of the Report and Recommendation
Having reviewed the remainder of the Report and Recommendation, the court finds no
clear error in any of Judge Oberg’s conclusions. Accordingly, the court adopts the Report and
Recommendation in its entirety.
57
Dkt. 117 ¶ 1.
58
Dkt. 117 ¶ 14.
59
Dkt. 117 ¶ at 2.
9
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CONCLUSION
For the reasons stated above, Kesler’s Objection 60 is OVERRULED, and Defendants’
Motion to Dismiss 61 is GRANTED. The action is dismissed with prejudice as to all Defendants.
The Clerk of Court is directed to close the case.
SO ORDERED this 26th day of March 2021.
BY THE COURT:
________________________________________
ROBERT J. SHELBY
United States Chief District Judge
60
Dkt. 135.
61
Dkt. 122.
10
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