Filed: Mar. 21, 2016
Latest Update: Mar. 21, 2016
Summary: ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ROBERT E. BLACKBURN , District Judge . The matter before me is the Recommendation of United States Magistrate Judge [#28], 1 filed February 29, 2016. No timely objection having been filed to the recommendation, I review it for plain error only. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116 , 1122 (10 th Cir. 2005). 2 I perceive no error, much less plain error, in the magistrate judg
Summary: ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ROBERT E. BLACKBURN , District Judge . The matter before me is the Recommendation of United States Magistrate Judge [#28], 1 filed February 29, 2016. No timely objection having been filed to the recommendation, I review it for plain error only. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116 , 1122 (10 th Cir. 2005). 2 I perceive no error, much less plain error, in the magistrate judge..
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ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
ROBERT E. BLACKBURN, District Judge.
The matter before me is the Recommendation of United States Magistrate Judge [#28],1 filed February 29, 2016. No timely objection having been filed to the recommendation, I review it for plain error only. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2
I perceive no error, much less plain error, in the magistrate judge's recommended disposition of defendants' motion to dismiss. The recommendation is exceptionally detailed and cogently reasoned. So thoroughly has the magistrate judge considered and analyzed the issues raised by and inherent to the motion that any extended exegesis on my part would be little more than a festooned reiteration of her excellent work. Suffice to say that I concur fully with her conclusions that (1) plaintiffs lack standing to bring their claims against defendants Mortgage Electronic Registration Systems, Inc., and Bank of New York Mellon, as those claims belong to the bankruptcy estate; (2) plaintiffs' federal RESPA and TILA claims against defendant Shellpoint Mortgage Servicing ("Shellpoint") are barred by limitations3; (3) plaintiffs have failed to plead facts sufficient to state a plausible, viable FCRA claim against Shellpoint; and (4) the court should decline to exercise supplemental jurisdiction as to plaintiffs' remaining state law claims against Shellpoint.
I therefore find and conclude that the magistrate judge's recommendation should be approved and adopted, and defendants' corresponding motion to dismiss granted on the bases set forth therein.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#28], filed February 29, 2016, is approved and adopted as an order of this court;
2. That the corresponding Defendants' Motion To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) [#18], filed March 26, 2015, is granted in part as follows:
a. That the motion is granted insofar as it seeks dismissal without prejudice of all claims against defendants, Mortgage Electronic Registration Systems, Inc., and Bank of New York Mellon;
b. That the motion is granted further to the extent it seeks dismissal with prejudice of all claims under federal law against defendant, Shellpoint Mortgage Servicing; and
c. That in all other respects, the motion is denied;
3. That all claims against defendants, Mortgage Electronic Registration Systems, Inc., and Bank of New York Mellon, are dismissed without prejudice;
4. That plaintiff's claims against defendant, Shellpoint Mortgage Servicing, arising under (a) the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (b) the Truth in Lending Act, 15 U.S.C. § 1601 et seq.; and (c) the Fair Credit Reporting Act, 15 U.S.C. § 1681, are dismissed with prejudice;
5. That the court declines to exercise supplemental jurisdiction over plaintiff's state law claims against defendant, Shellpoint Mortgage Servicing, and those claims are dismissed without prejudice;
6. That judgment shall enter on behalf of defendants, Shellpoint Mortgage Servicing; Mortgage Electronic Registration Systems, Inc.; and Bank of New York Mellon, and against plaintiffs, Merle H. Schonebaum and Denise M. Schonebaum, as follows:
a. That judgment without prejudice shall enter as to all claims asserted against defendants, Mortgage Electronic Registration Systems, Inc., and Bank of New York Mellon;
b. That judgment with prejudice shall enter on plaintiffs' claims against defendant, Shellpoint Mortgage Servicing arising under (a) the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (b) the Truth in Lending Act, 15 U.S.C. § 1601 et seq.; and (c) the Fair Credit Reporting Act, 15 U.S.C. § 1681; and
c. That judgment without prejudice shall enter as to plaintiffs' state law claims against defendant, Shellpoint Mortgage Servicing;
7. That defendants are awarded their costs, to be taxed by the clerk of the court in the time and manner provided in Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and
8. That this case is closed.
