Scribe Objection to the Report and Reccommendation (Autosaved)

8/10/2019 Scribe Objection to the Report and Reccommendation (Autosaved)

1/13

1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 2012-cv-01246-

PLAINTIFF,

VERA MAE RIVERS

vs.

DEFENDANTS:

U.S. BANK, N.A., AS TRUSTEE FOR THE HOLDERS

OF THE MERRILL LYNCH/ FIRST FRANKLIN

MORTGAGE LOAN TRUST, MORTGAGE LOAN

ASSET-BACKED CERTIFICATES, SERIES 2006 FF1;

SELECT PORTFOLIO SERVICING INC;

BANK OF AMERICA N.A. And JOHN DOES 1-10

_____________________________/

PLAINTIFFS OBJECTION TO UNITED STATES MAGISTATES REPORTAND

RECOMMENDATION THAT DEFENDANTS MOTION TO DISMISS BE GRANTED

COMES NOWPlaintiff, Vera Mae Rivers, and objects to the United States Magistrates

Recommendation that Defendants Motion to Dismiss be granted and in support thereof states as follows:

INTRODUCTION

1. On September 3rd

, 2014, Plaintiff filed her complaint for Quiet Title.

2. On September 12, 2014, Defendants filed a Motion to Dismiss Plaintiffs complaint.

3. On the 28thday of October, 2014, United States Magistrate Michael Fox filed his Report and

Recommendation.

4.

Plaintiff respectfully objects to the Magistrate Judges recommendation that Plaintiffs case

be dismissed because it involves ongoing proceedings in state court concerning matters that

involve important state interests.


2/13

2

5. Plaintiff states that the state court determinations are currently on appeal. The only matter

pending is a county court action for unlawful detainer which under Rule 42 Plaintiff has

requested be removed from county court and joined with her Quiet Title complaint.

6.

The unlawful detainer forum is inadequate to protect Plaintiffs rights since it could not

determine Title to property. In the U.S. Supreme Court Cone Mem. Hosp. v. Mercury

Constr. Corp., 460 U.S. 1 (1983) the court held:

[F]inally, an important reason against allowing a stay is the probable inadequacy of the statesuit to protect respondent's rights, since it is doubtful that respondent could obtain from thestate court an order compelling petitioner to arbitrate. Pp.460 U. S. 26-27.

7.

In this case, an important reason is to allow consolidation under Rule 42 where there are

common question of law and fact determinative of the issue of possession.

8. As there are no issues pending in State court, a determination in this court with regard to the

title to Plaintiffs property is appropriate. The same issue will not be litigated or piecemeal

litigated. In the matter before this court Plaintiff is seeking to determine which party has

right, title and interest in the property.

9. A trial in this court will protect Plaintiffs Constitutional right to due process which was

denied in the state court despite evidence of forgery and counterfeiting which was never

adjudicated in any court.

10. Plaintiff argues that the Court erred in applying the Colorado River abstention doctrine.

The Colorado River abstention doctrine allows Federal Courts to refuse to abstain in cases

involving exceptional circumstances and the U.S. Supreme Court reinforced this in

Sprint Communications, Inc. v. Jacobs,#12-815 (January 4th, 2013) in a strongly worded

decision, reined in the Younger Abstention. The Supreme Court explained that federal
https://supreme.justia.com/cases/federal/us/460/1/case.html#26http://www.supremecourt.gov/opinions/13pdf/12-815_qol1.pdfhttp://www.supremecourt.gov/opinions/13pdf/12-815_qol1.pdfhttp://www.supremecourt.gov/opinions/13pdf/12-815_qol1.pdfhttps://supreme.justia.com/cases/federal/us/460/1/case.html#26


3/13

3

courts have a virtually unflagging obligation to hear cases within their jurisdiction. The

unanimous ruling emphasizes that abstention pursuant to Younger v. Harrisis not

appropriate merely because a state court is considering a case involving the same subject

matter. In this instance there is no ongoing state court considering a Quiet Title Action and

a Forcible Entry and Detainer action is an inadequate forum to decide a Quiet Title Action

since title issues are beyond the jurisdiction of the County court.

11. Furthermore, in consideringSprintsargument, the Supreme Court emphasized that federal

courts may abstain from hearing a matter in only three categories of cases. Abstention is

appropriate in cases involving state criminal proceedings, civil enforcement proceedings,

and civil proceedings involving certain orders that are uniquely in furtherance of the state

courts ability to perform their judicial functions.

The Supreme Court concluded that none of the exceptions applied toSprintscase. The

Supreme Court stated that the proceedings were not criminal and did not impact the ability

of the Iowa state courts ability to perform its functions. Thus, the lower courts erred in

applying Youngerto this matter.

12. In this instance, the United States Magistrate Judge in his recommendation states that this

court recently addressed the Colorado River Doctrine in a factually similar case, citing

MacIntyre v. JP Morgan Chase Bank, 12-cv-2586-WJM-MEH.However, this case is

distinguishable, and not situated on the same circumstances or even similar circumstances,

because the State Court did not adjudicate Plaintiffsarguments and because there is no

current state court that can adjudicate the Quiet Title Action.


4/13

4

13. InMacIntyre, this court concluded that, [T]he key question for the purposes of

determining the stage of litigation is whether a ruling has been issued on the merits, not

whether the parties have filed briefs arguing merits issues. See Crown Point I, LLC v.

Intermountain Rural Elec.Assn, 319 F.3d 1211, 1215 (10th Cir. 2003) (citingDoran,422

U.S. at 929).

14. This court then concluded that, due to the early stage of the instant case, the Foreclosure

Proceeding is ongoing for the purposes of Younger.

15. The state judicial foreclosure (13cv825) was dismissed for lack of subject-matter

jurisdiction to determine the merits of the case, concluding as did this court in 12cv02716

that Ms. Joan Riverss failure to list her causes of action in the bankruptcy divested her as

the Real Party in Interest for the purpose of seeking damages.

16. In the state case 13cv825in the Order of Dismissal of Plaintiffs counter-claims dated

January 14th

, 2014(Exhibit 1, p.7) Judge Pratt said:

The Court directs the parties to, and adopts the reasoning on this subject set forth inthe October 3, 2013 Order of the United States District Court of Colorado whereinthe Court held with regard to the monetary damages being sought here,

In sum, because Joan Riverss claims for monetary damages were not disclosedduring her bankruptcy proceeding, those claims are property of the bankruptcy estate.Therefore, the bankruptcy trustee is the real party in interest with respect to thoseclaims, and Plaintiff lacks standing to bring them.

Accordingly, Defendants' Motions are granted to the extent they seek dismissal ofPlaintiff's claims for damages and Plaintiff lacks standing to bring them

The United States District Court correctly found that it did not have subject matterjurisdiction over the monetary claims because the claims, if they existed, did notbelong to a party who was before the Court. The same applies to the Court.Thus, until the party which owns the right to any such monetary claims is beforeeither the United States District Court, or this Court, neither has jurisdiction toresolve with regard to such claims.


5/13

5

17. In the state case there is an appeal to the Colorado Appellate Court.(14COA464) which, as

an appellate court, is not a trial court with jurisdiction to determine a Quiet Title Action.

18. Therefore, the only court left standing in the only adequate forum to determine the Quiet

Title Action is this court in diversity.Civil Action No. 2014-cv-02453-WJM-MEH

19. In this courts Order of Dismissal in case # 12cv02716dated October 2nd

, 2013, ECF 200

pgs 6, 7) this court said:

Plaintiffs Amended Complaint requests damages, injunctive relief, and fees and

costs. (ECF No. 45 at 18.) The Motions filed by the Castle Defendants and U.S. Bankboth contend that Plaintiff has no standing to request monetary damages because,

after Plaintiffs bankruptcy, she is no longer the real party in interest with respect toher damage claims, which are instead owned by the bankruptcy trustee. (ECF No.

51 at 4; ECF No. 69 at 6-10.)

20. In magistrates Foxs Report and Recommendation in case # 12cv02716, ECF 35, at pgs 16

and 17, magistrate Fox said:

However, because requests for injunctive relief typically add nothing of value to abankruptcy estate, a plaintiff ordinarily will remain the real party in interest with

respect to claims for injunctive relief. See Barger; 348 F.3d at 1297; see also Burnesv. Pemco Aeroplex, Inc., 291F.3d 1282, 1289 (11th Cir. 2002) ([t]he trustee andcreditors are interested [only] in the debtors property that can add anything of value

to the estate.).

21.In this quiet title action, plaintiff is not asking for monetary damages which would be

considered property of the bankruptcy estate, and therefore Ms. Joan Rivers again has

standing as the Real Party in Interest. (See p. 5, 15 of plaintiffs Verified Quiet Title

Complaint)

22.InTERRY A. STOUT vs GYRODATA, INC., a Texas corporation, Defendant - Appellee.

No. 13-1393 (D.C. No. 1:12-CV-00972-RM-KMT) (D. Colo.) p. 3 ([T]he task of a federal


6/13

6

court sitting in diversity is not to reach our own judgment regarding the substance of the

common law, but simply to ascertain and apply the state law.

23. Colorado provides a unique exception to the Youngerand Colorado River Abstentionin

this case. Town of Minturn, Colo. v. Sensible Housing Co., Inc.2012 CO 23(April 9,

2012) at pgs 10 and 11 said:

C. The Priority Rule

18 Courts, in general, have the power to stay proceedings before them. Landis v. N. Amer.Co., 299 U.S. 248, 254-55 (1936). The power to stay proceedings is incidental to the powerinherent in every court to control the disposition of causes on its docket with economy oftime and effort for itself, for counsel, and for litigants. Id.; see generally In re Application

for Water Rights of U.S., 101 P.3d 1072 (Colo. 2004) (holding that the water court actedwithin its discretion in granting a stay of proceedings until the resolution of related federallitigation, due to considerations of comity as well as the relief available to the parties).

19 Where two courts may exercise jurisdiction over the same parties and subject matter, wehave stated that the first action filed has priority of jurisdiction, and that the second actionmust be stayeduntil the first is finally determined (priority rule). Wiltgen v. Berg, 164Colo. 139, 145-46, 435 P.2d 378, 381 (1967); Martin v. Dist. Court, 150 Colo. at 579, 375P.2d at 106. The purpose of the priority rule is to promote judicial efficiency and avoid

unnecessary duplication and multiplicity of suits. Pub. Serv. Co. of Colo. v. Miller, 135

Colo. 575, 577, 313 P.2d 998, 999 (1957). Other considerations that may serve the trial

court in the exercise of its discretion in granting or denying a stay include expense andconvenience, availability of witnesses, the stage to which proceedings in the first actionhave already progressed, and the possibility of prejudice resulting from the stay. NationwideMut. Ins. Co. v. Mayer, 833 P.2d 60, 62 (Colo. App. 1992); see also Universal Gypsum ofGa., Inc. v. Am. Cyanamid Co., 390 F. Supp. 824, 827 (S.D.N.Y. 1975).[B, U]

24. InHAAK MOTORS LLC, et a vs Robert L. Arangio, Sr the court said:

Abstention doctrines constitute extraordinary and narrow exceptions to a federal

courts duty to exercise the jurisdiction conferred on it.Martin v. Stewart, 499 F.3d360, 363 (4th Cir. 2007) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728(1996)) (internal quotation marks omitted). Abstention is not a license for free-form adhocjudicial balancing of the totality of state and federal interests in a case.Id. at 364.Rather, the Courts must consider whether a specific abstention doctrine applies.Id. Thiscase does not involve the proceedings or orders of a Maryland administrative agency.The Plaintiffs allege common law tort and contract claims that will require theapplication of well-settled law.


7/13

7

The Plaintiffs also contend that this case is parallel to the case filed in Queen Annes

County and involves the same parties and issues. Colorado River abstention is onlyappropriate when a federal case duplicates contemporaneous state proceedings.

Barker297 F.3d at 340. (emphasis added). When the Defendants removed to this Court,the state proceeding ended;

25.

The federal Quiet Title action (14CV02453) is not duplicating the Forcible Entry and

Detainer action (14C47200), and therefore not a contemporaneousstate subject to the

application of the Colorado River Abstention. Vulcan Chemical Technologies

Incorporated v. J Barker297 F.3d at 340.

26. Plaintiffs claim before this Court is not an identical issue already litigated in the earlier case

and it was not fully litigated at that time. The issues offraud, forgery, conspiracy and

counterfeiting, were not litigated or adjudicated in the State Court.

27. Plaintiff argues that in assessing the applicability of the Younger Abstention Doctrinein a

particular case, Younger implied that a federal court may act to enjoin a state court

proceeding when certain extraordinary circumstancesexist that involve traditional

considerations of equity jurisprudence. Although these exceptions are implicit in Younger,

many scholars argue that these exceptions are virtually nonexistent in their application.

These three principal exceptions include bad faith and harassment, patently unconstitutional

statutes, and the lack of an adequate state forum.

28.

In Plaintiffs Verified Quiet Title Complaint, Plaintiff detailed the bad faith on the part of

Judge Pratt in s 28, 36, 56, and 57.

29. Plaintiff has met the obligation of extraordinary circumstances and lack of an adequate state

forum as required in Colorado River Doctrineand Younger Abstention Doctrine which

trumps the Courts requirement to abstain.


8/13

8

30. In plaintiffs complaint,

31. In Chapman v. Deutsche Bank Nat. Trust Co.No. 10-15215. 651 F.3d 1039 (2011), the

federal District Court properly concluded that the Quiet Title Action satisfied the diversity

jurisdiction requirements of 28 U.S.C. 1332(a)(1), and the removal requirements of 28

U.S.C. 1441(a) and 1446(a)-(b). The court held that,

[I]t was undisputed that the parties are of diverse citizenship, and, contrary to theChapmans'contention during oral argument, the District Court properly held that thisaction satisfies the $75,000 amount-in-controversy requirement. "`In actions seekingdeclaratory or injunctive relief, it is well established that the amount in controversy ismeasured by the value of the object of the litigation.'", 840 (9th Cir.2002) (per curiam)(quoting, 347, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Here, the object in litigation is the

Property, which was assessed at a value of more than $200,000, and therefore satisfiesthe amount-in-controversy requirement. , 1076 (9th Cir.1973) (treating entire value ofreal property as amount in controversy in action to enjoin foreclosure sale); 93 F. 1, 4(9th Cir.1899) ("In a suit to quiet title, or to remove a cloud there from, it is not the valueof the defendant's claim which is the amount in controversy, but it is the whole of the realestate to which the claim extends.").

Faced with a similar pairing of casesone action involving a dispute over possessionof a property (as with the Unlawful Detainer Action), and a separate action involving adispute over ownership of that property (as with the Quiet Title Action)a number of

circuit courts (including our own) have invoked the prior exclusive jurisdiction doctrineto dismiss, remand, or enjoin the second-filed action. , 729 (5th Cir.1959) (holding thatstate unlawful detainer action should be enjoined during pendency of prior-filed federalaction for declaratory relief regarding ownership of lease interest); 235 F. 69, 73 (9thCir.1916) (holding that federal action regarding possession of property should be stayedpending prior-filed state action regarding ownership); 166 F. 706, 711-12 (Fuller, CircuitJustice, 4th Cir.1909) (holding that federal quiet title action must be dismissed becauseprior-filed ejectment action was pending in state court); 24 F. 69, 70-71 (Miller, CircuitJustice, C.C.D. Kan. 1885) (same).

32. In Commerces complaint, Exhibit A, Sheriffs Certificate of Purchase reveals that

Commerce as Trustee for the Trust purchased the property for $710,250.56 cents. (See

Exhibit 2, Commerces Verified Unlawful Detainer Compl. Exhibit A) And the Order of

Summary Judgment state that the note was $190, 146.55, thus satisfying the jurisdictional


9/13

9

amount for diversity. (See Exhibit 2, Commerces Unlawful Detainer Compl. with exhibit

A, p.5)

33. Plaintiff seeks a declaration that she has the only declarable interest in the subject property

commonly known as 1499 South Jasper St., Aurora Colorado 80017. The party or parties

claiming an interest have done so by fraudulent means to strip plaintiff of her home and

equity with a sham assignment, a forged promissory note, a forged deed of trust, and a

fraudulent Cure Statement.

34. The Defendants lacked the legally required documentation to conduct a judicial foreclosure

action but were allowed to proceed, despite this fact, which resulted in a direct violation of

Plaintiffs right to due process. The state court stripped Plaintiff of her right to an adequate

state forum and right to due process. It is apparent that the state court provides an

inadequate forum.

35. This action for Quiet Title is brought on the constitutional authority in cases of original

diversity jurisdiction and is not barred by the Younger Abstention, or the Colorado River

Abstention. The State case (13cv825) was dismissed for lack of subject-matter jurisdiction

in causes of action for damages, leaving Plaintiff free to seek the original jurisdiction of the

federal court in diversity, seeking no damages in the Quiet Title Action. Thus, it is not a

collateral attack, and neither the Younger Abstention, nor the Colorado River Abstention

is applicable there being no active state cases other than an inadequate unlawful detainer

action which cannot include a Quiet Title Action.

36. In this case there is complete diversity.


10/13

10

37. Plaintiff further argues that the Quiet Title Action is governed by Colorado Law ([T]he

task of a federal court sitting in diversity is not to reach our own judgment regarding the .,

but simply to ascertain and apply the state law. TERRY A. STOUT v.GYRODATA, INC.,

D.C. No. 1:12-CV-00972-KMT,D. Colo.)

38. This court in the May 6th, 2013 hearing in 12-cv-02716 p.42, lns 13-16 said:

However, if your clients are not the actual holders in due courseof the note anddeed of trust, then she's the victim, because she loses her property to folks whocan't prove 1they actually own the deed of trust or promissory note.[B, U]

Commerce as Trust of the Trust will not be able to show that they are holders indue course.

39. InDeutsche Bank Trust Company Americas vs Samora2013 COA 81(Colorado, 2013),

Deutsche Bank sought to quiet title under C.R.C.P. 105 in which default judgment was

entered, which Samora appealed and a division of the appellate court reversed. The Court in

Samora said:

24 In order to defeat Saxon Mortgages motion to dismiss, Samora must show that

her factual allegations, as a matter of law, support a claim for relief. Bly, 241 P.3d at533.

47 Because the warranty deed is not void, in order for Samora to defeat Deutsche

Banks claim to quiet title in the Trust, she must show that Deutsche Bank as trustee is

not advancing a claim by the Trust as a holder in due course of the Note and Deed of

Trust.3

[H]older in due course means the holderof an instrument if:

(1) The instrument when issued or negotiated to the holder does not bear such apparent

evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call

into question its authenticity; and

(2) The holder took the instrument (i) for value,

(ii) in good faith, (iii) without notice that the instrument is overdue or has beendishonored or that there is an uncured default with respect to payment of another


11/13

11

instrument issued as part of the same series, (iv) without notice that the instrumentcontains an unauthorized signature or has been altered, (v) without notice that any claimto the instrument described in section 4-3-306, and(vi) without notice that any party has a defenseor claim in recoupment described in section 4-3-305(a).3 Here, the trustee is acting for the Trust and advancing a claim on behalf of the Trust.

Accordingly, the Trust must satisfy holder in due course status. The parties stipulated

that the Trust took the Note and Deed of Trust without actual knowledge of any

wrongdoing or fraud. The record indicates that the Trust gave value for the Note and

Deed of Trust.

40. At best, Commerce as Trustee of the above Trust could only show that it is a holder of the

note-- providing that the note is not a counterfeit.

41.

Following the logic ofSamora,if Deutsche Bank and the Trust could not prevail in a Quiet

Title Action because neither was a holder in due course then it follows that they would not

be able to foreclose on Samora, nor would they be able to evict.

42.Neither Commerce nor the Trust could ever claim that they were holders in due course

because neither paid value for the property.

30. Commerce will not be able to claim that they are holders in due course.

31. This court said in the May 6th2013 hearing (12cv02716) ECF 117, RT p 41, lns 13-16)

However, if your clients [COMMERCE and the TRUST]are not the actual holders in

due courseof the note and deed of trust, then she's the 1 victim, because she loses her

property to folks who can't prove 1they actually own the deed of trust or promissory

note.[B, U]

32. Ms. Joan Rivers is the victim, and she asking this court for the opportunity to prove it, and is

not asking for damages in this quiet title action.

33. In Commerces response to Plaintiffs motion for clarification of the removal notice,

Attorney Sean Hanlon characterizes Plaintiff Joan Rivers as a vexatious litigant. Plaintiff


12/13

12

Joan Rivers is merely defending her rights. In the same response attorney Hanlon argues

that Ms Joan Rivers is a citizen of Colorado and the Unlawful Detainer action is in Colorado

and therefore she is precluded from removing the case to federal court. Defendants can

remove an action under Diversity jurisdiction. Commerce is a citizen of Minneapolis.

Plaintiff Joan Rivers is a citizen of Colorado where the value of the property is in excess of

$75,000 dollars.

CONSOLIDATION UNDER RULE 42 IS PROPER

AND PROVIDES JUDICIAL ECONOMY

34. A District court has supplemental jurisdiction over all claims that form part of the same

case or controversy as the claim over which the court has original jurisdiction. 28 U.S.C.

1367(a). The Supreme Court has provided further guidance, holding that a federal court has

jurisdiction over an entire action, including state-law claims, whenever the federal-law

claims and state-law claims in the case derive from a common nucleus of operative facts

and are such that would ordinarily be expected to trythem all in one judicial proceeding.

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349 (1988)

Cohill Principles: Economy, Convenience, Fairness, and Comity

Consideration of the principles of economy, convenience, fairness, and comity furthersupports the Courts decision to retain jurisdiction over the entire action. The factors ofeconomy and convenience weigh heavily in favor of exercising supplemental jurisdictionover the entire action. If the Court chose to remand Plaintiffs state-law claims, it wouldsplinter the litigation into two separate forums. Requiring the parties to manage two

different lawsuits in two different forums would force both sides to expend significantlymore time, money, and effort than by having the parties litigate the entire action beforethis Court. Thus, exercising supplemental jurisdiction over all of Plaintiffs state-lawclaims would be significantly more economical and convenient for both parties.Likewise, the principles of fairness and comity favor the exercise of supplementaljurisdiction. Plaintiff asserted, inadvertently or not, a federal claim against Defendantand, as a result, Defendant had the statutory right to remove the case to federal court. Itwould be unfair for the Court to subvert Defendants statutory right by forcing it to fight


13/13

13

two separate legal battles in two different forums without a compelling justification.While Plaintiff would prefer to argue his case in state court, the holding is nonethelessfair to him as well because he will still have the opportunity to fully and fairly argue hiscase, albeit in a federal forum.

35. WHEREFOREPlaintiff requests that the Recommendations of the Magistrate Judge be

denied in its entirety.

Respectfully submitted this _____ day of November, 2014

____________________VERA MAE JOAN RIVERS

Scribe Objection to the Report and Reccommendation (Autosaved)

Documents

Transcript of Scribe Objection to the Report and Reccommendation (Autosaved)