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PATRICK v. BANK OF NEW YORK MELLON, 11-cv-01304-REB-MJW. (2012)

Court: District Court, D. Colorado Number: infdco20120321886 Visitors: 3
Filed: Mar. 20, 2012
Latest Update: Mar. 20, 2012
Summary: ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ROBERT E. BLACKBURN, Judge. This matter is before me on the following: (1) the Motion To Dismiss Plaintiff's Complaint [#29] 1 filed August 2, 2011; (2) Defendant the Bank of New York Mellon's Motion To Dismiss Plaintiffs' Complaint and Jury Demand Pursuant to FED. R. CIV. P. 12(b)(6) [#43] filed September 15, 2011; (3) Defendant Jim D. Ventrello's Motion To Dismiss Pursuant to FED. R. CIV. P. 12(b)(1) [#52] filed October 1
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ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT E. BLACKBURN, Judge.

This matter is before me on the following: (1) the Motion To Dismiss Plaintiff's Complaint [#29]1 filed August 2, 2011; (2) Defendant the Bank of New York Mellon's Motion To Dismiss Plaintiffs' Complaint and Jury Demand Pursuant to FED. R. CIV. P. 12(b)(6) [#43] filed September 15, 2011; (3) Defendant Jim D. Ventrello's Motion To Dismiss Pursuant to FED. R. CIV. P. 12(b)(1) [#52] filed October 11, 2011; and (4) the Recommendation on (1) Motion To Dismiss Plaintiff's [sic] Complaint (Docket No. 29) Filed by Defendant Law Office of Michael P. Medved, P.C., (2) Defendant the Bank of New York Mellon's Motion To Dismiss Plaintiffs' Complaint and Jury Demand Pursuant To FED. R. CIV. P. 12(b)(6) (Docket No. 43), and (3) Defendant Jim D. Ventrello's Motion To Dismiss Pursuant to FED. R. CIV. P. 12(b)(1) (Docket No. 52 [#98] filed March 1, 2012. The plaintiffs filed objections [#99] to the recommendation. Applying the provisions of FED. R. CIV. P. 12(d), the magistrate judge converted the three motions to dismiss to motions for summary judgment. I overrule the plaintiffs' objections, grant the motions to dismiss, treating them as motions for summary judgment, and dismiss this case.

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed. I have considered carefully the recommendation, objections, and applicable caselaw.

Because plaintiffs are proceeding pro se, I have construed their pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). However, I have not acted as an advocate for the plaintiffs.

The recommendation is detailed and well-reasoned. Contrastingly, the plaintiffs' objections are without merit.

The plaintiffs' complaint concerns foreclosure proceedings undertaken by the defendants against real estate owned by the plaintiffs. The plaintiffs allege claims of fraudulent misrepresentation, violation of the Fair Debt Collection Practices Act, civil conspiracy, and violation of the automatic stay of the United States Bankruptcy Code.

For the reasons detailed in the recommendation of the magistrate judge, the defendants' motions to dismiss were properly converted to motions for summary judgment. As detailed by the magistrate judge, each of the defendants is entitled to summary judgment on each of the claims asserted against them. Granting the motions to dismiss as motions for summary judgment resolves all claims against all defendants in this case.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation on (1) Motion To Dismiss Plaintiff's [sic] Complaint (Docket No. 29) Filed by Defendant Law Office of Michael P. Medved, P.C., (2) Defendant the Bank of New York Mellon's Motion To Dismiss Plaintiffs' Complaint and Jury Demand Pursuant To FED. R. CIV. P. 12(b)(6) (Docket No. 43), and (3) Defendant Jim D. Ventrello's Motion To Dismiss Pursuant to FED. R. CIV. P. 12(b)(1) (Docket No. 52 [#98] filed March 1, 2012, is APPROVED and ADOPTED as an order of this court;

2. That the objections stated in Plaintiff's Objection To Magistrate Watanabe's Recommendation as to Motions To Dismiss Filed by All Defendants [#99] filed March 13, 2012, are OVERRULED;

3. That the Motion To Dismiss Plaintiff's Complaint [#29] filed August 2, 2011, converted to a motion for summary judgment under FED. R. CIV. P. 12(d), is GRANTED;

4. That Defendant the Bank of New York Mellon's Motion To Dismiss Plaintiffs' Complaint and Jury Demand Pursuant to FED. R. CIV. P. 12(b)(6) [#43] filed September 15, 2011, converted to a motion for summary judgment under FED. R. CIV. P. 12(d), is GRANTED;

5. That Defendant Jim D. Ventrello's Motion To Dismiss Pursuant to FED. R. CIV. P. 12(b)(1) [#52] filed October 11, 2011, converted to a motion for summary judgment under FED. R. CIV. P. 12(d), is GRANTED;

6. That all other pending motions, including those docketed as [#77 & #79], are DENIED as moot;

7. That JUDGMENT SHALL ENTER in favor of the defendants, Bank of New York Mellon, Law Office of Michael P. Medved, P.C., and Jim D. Ventrello, in his personal and official capacity, against the plaintiffs, Jimmie H. Patrick and Barbara L. Patrick, jointly and severally;

8. That the defendants are AWARDED their costs, to be taxed by the Clerk of the Court pursuant to FED. R. CIV. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and 9. That this case is CLOSED.

FootNotes


1. "[#29]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
Source:  Leagle

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