Filed: Oct. 10, 2013
Latest Update: Feb. 13, 2020
Summary: v. No. 13-1154, (D.C. No. 1:12-CV-00344-REB-KLM), EMC MORTGAGE CORPORATION, a (D. Colorado), foreign corporation;S&O are barred not only by Adamss agreement but also by court order.Adams argues that the district court improperly denied his RESPA claim.
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 10, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
VASHONE L. ADAMS,
Plaintiff - Appellant,
v. No. 13-1154
(D.C. No. 1:12-CV-00344-REB-KLM)
EMC MORTGAGE CORPORATION, a (D. Colorado)
foreign corporation; CAROL YOUNG,
individually and as agent; JAMES DIMON,
individually and as agent; ACQURA LOAN
SERVICING, a foreign corporation; JP
MORGAN CHASE BANK, N.A.; WILLIAM
BERONG, individually and as agent,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before HARTZ, O’BRIEN and GORSUCH, Circuit Judges.
* After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
Vashone L. Adams brought the present suit against a number of parties
(Defendants) under various state and federal statutes and the common law for their role in
collecting his home-mortgage loan, foreclosing on the deed of trust securing the loan, and
evicting him from the home. He had waived almost all these claims, however, in a
Stipulation and Order (the S&O) in the Colorado state court that resolved the unlawful-
detention claim against him for not vacating the home after foreclosure. The S&O
included the following paragraph:
Defendant, Vashone Adams, hereby releases and forever waives any
claims, known or unknown, arising out of a) the Note and Deed of Trust
more fully described in the in the [sic] Order Authorizing Sale entered
August 15, 2011 by Judge Hannen of the Arapahoe County District Court,
b) the property known as 7594 S. Duquense Court, Aurora, CO 80016 (the
“Property”), c) any and all actions to enforce the Note, Deed of Trust, debt
collection or rights associated with the Property, including but not limited
to the foreclosure sale (Public Trustee’s Foreclosure Sale No. 1332-2011)
and the forcible Entry and Detainer action (case # 2011 C11392, and d) any
state or federal debt collection claims, including but not limited to the
FDCPA and the Colorado Fair Debt Collection Practices Act. Vashone
Adams releases and forever waives such claims against EMC Mortgage
LLC, EMC Mortgage Corporation, JP Morgan Chase Bank NA, Acqura, its
subsidiaries, affiliates, servicers, parent companies, agents, employees, and
attorneys, including but not limited to Aronowitz and Mecklenburg, LLP.
R. at 738–39.
To overcome this waiver, Adams’s federal-court complaint included claims
seeking to invalidate the S&O. On Defendants’ motion to dismiss, the magistrate judge
recommended dismissal of all claims. The district court approved the recommendation,
holding that (1) the Rooker-Feldman doctrine, see Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005); Campbell v. City of Spencer,
682 F.3d 1278,
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1281–84 (10th Cir. 2012), barred it from exercising jurisdiction over the claims
challenging the S&O, and (2) that the S&O precluded all but one of his other claims. It
held that his claim under the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C.
§§ 2601-2617, was not precluded because it arose after the entry of the S&O, but the
court dismissed it for failure to state a claim. Adams appeals. As in district court, Adams
does not challenge the preclusive effect of the S&O; he argues only that Rooker-Feldman
does not bar his challenge to the S&O itself, and he challenges the dismissal of his
RESPA claim. We have jurisdiction under § 1291 and affirm.
I. Rooker-Feldman
“Rooker-Feldman is a jurisdictional prohibition on lower federal courts exercising
appellate jurisdiction over state-court judgments.” Campbell, 682 F.3d at 1281. The
doctrine prevents “state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced” from having those
judgments reviewed by the lower federal courts. Exxon
Mobil, 544 U.S. at 284. But “a
federal-court claim is not barred by Rooker-Feldman as a complaint of injury caused by a
state-court judgment just because it seeks relief inconsistent with that judgment.”
Campbell, 682 F.3d at 1283 (brackets, citation, and internal quotation marks omitted).
Instead, “an element of the claim must be that the state court wrongfully entered its
judgment.”
Id.
The claims over which the district court found it did not have jurisdiction
requested that the district court determine that the state court wrongfully entered the
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S&O. For example, Claim Thirteen states, “Plaintiff is therefore entitled to a declaration
from the Court that the Defendants waiver and stipulation signed by the Plaintiff is void
and unenforceable.” R. at 490–91. Such claims come within the bar of Rooker-Feldman.
Adams contends that the S&O is merely a “settlement agreement,” not a state-
court judgment. Reply Br. at 5. The record shows otherwise. Each page of the S&O is
signed by the court under the words, “The foregoing stipulation is hereby approved and
made an Order of the Court.” R. at 738–39. By this language the claims described by the
S&O are barred not only by Adams’s agreement but also by court order. Although the
S&O may have been the result of a negotiated agreement between the parties rather than
judicial resolution of a dispute, it was clearly entered as an order by the state court. Any
objections to the order—whether related to the order’s contents or the procedure by
which the agreement was reached—must be raised in state court.
Adams also argues that the S&O “did not contain the requisite certification to be a
final judgment or to be dismissed with prejudice.” Aplt. Br. at 15. True, the S&O does
not state that it resolves all claims between the parties or that it is a final order. But a
judgment is generally final for the purposes of Rooker-Feldman if a “lower state court
issues a judgment and the losing party allows the time for appeal to expire.” Bear v.
Patton, 451 F.3d 639, 642 (10th Cir. 2006) (internal quotation marks omitted). The S&O
was entered on November 18, 2011. Under Colorado law, Adams had 21 days to appeal
the order. See Colo. R. Civ. P. 411(a). Therefore the order became “final” well before
the district-court action was filed on February 9, 2012.
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II. RESPA Claim
Adams argues that the district court improperly denied his RESPA claim. RESPA
requires a servicer of a mortgage loan to respond to a qualified written request (QWR)
within five days of receipt. See 12 U.S.C. § 2605(e). Adams’s claim is based on a letter
he sent to Defendant EMC Mortgage Corp. on January 17, 2012. He contends that he is
entitled to damages because Defendants either did not respond to the letter or replied after
the allotted time had expired.
We need not decide whether Adams’s allegations were sufficient to establish that
his letter was a QWR. Even if the letter was a QWR, his complaint alleged no actual
harm arising from the lack of response. “[T]o survive a Rule 12(b)(6) motion to dismiss
a claim under § 2605(e) of RESPA, plaintiffs must plead actual damages stemming from
the failure to respond to requests or a pattern or practice of misconduct.” Toone v. Wells
Fargo Bank, N.A., 716 F.3d 516, 523 (10th Cir. 2013) (citing Hintz v. JPMorgan Chase
Bank, N.A.,
686 F.3d 505, 510–11 (8th Cir. 2012)). Hintz held that a RESPA plaintiff
must show that “a failure to respond or give notice has caused [the plaintiff] actual
harm.” 686 F.3d at 511 (internal quotation marks omitted). By the time of the January
17 letter, the home had been foreclosed upon and Adams evicted. We fail to see how the
lack of a response could have harmed him. Regardless, he failed to allege any facts that
would suggest injury.
Adams argues that Defendants “untimely rais[ed] the [damages] argument.”
Reply Br. at 14. But “[w]e can affirm on any ground supported by the record, so long as
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the appellant has had a fair opportunity to address that ground.” Schanzenbach v. Town
of Opal, 706 F.3d 1269, 1272 (10th Cir. 2013) (internal quotation marks omitted).
Adams has had that opportunity. Several Defendants argued in their response to Adams’s
objection to the magistrate judge’s report and recommendation that Adams was “unable
to maintain his RESPA claim as a matter of law because he did not, and cannot, allege
any damages as a result of the alleged RESPA violations.” R. at 848. Adams submitted a
reply to the response but did not address the damages argument in this reply. And in this
court he has not suggested that he would be able to present any evidence of actual harm
from the alleged RESPA violation.
The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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