Opinion
No. 2:00-CV-776 C
March 6, 2001
ORDER DENYING MOTIONS FOR CLASS CERTIFICATION; DENYING MOTION TO AMEND; AND DENYING REQUEST FOR ENTRY OF DEFAULT
The case was referred to the magistrate judge under 28 U.S.C. § 636 (b)(1)(B). The following non-dispositive motions, all filed by Plaintiff, are currently pending:
Two Motions for Class Certification;
Motion to File a Supplemental Complaint Against Bank United of Texas FSB and Lundberg Associates; and
Request for Entry of Default against Default to New Mortgage.
All of Plaintiffs motions are denied by this order.
Nature of this Case
Plaintiff Earl Pagel filed a narrative-style complaint on September 29, 2000, recounting a history of dealings with a mortgage holder (Bank United of Texas FSB, hereafter "BU"); BU's lawyer Lundberg and Associates ("Lundberg"); and an unrelated mortgage broker (Default-To-New Mortgage, Inc.) and mortgage holder (Newgate Mortgage, Inc.). Generally, the events occurred in the context of various bankruptcy proceedings, and revolve around disputes about payment and reinstatement of an obligation in favor of BU, while Lundberg, acted as BU's counsel, as well as negotiations for a subsequent mortgage with a broker (Default to New Mortgage, Inc.) and lender (Newgate Mortgage). The complaint's opening sentence and the cover sheet identify the cause of action as a 1983 Civil Rights Complaint, and the cover sheet references the RICO statute.
Dismissals
Motions to dismiss were filed by Defendants Lundberg and BU. Newgate Mortgage prayed for dismissal in its answer. A separate Report and Recommendation for dismissal of these parties is filed concurrently herewith.
Motion to Dismiss Lundberg and Associates with Prejudice or For Summary Judgment, filed November 10, 2000.
Defendant Bank United's Motion to Dismiss for Failure to State a Claim, filed December 6, 2000.
Class Certification
Plaintiff Pagel filed two Motions for Class Certification, though the complaint identifies him as the sole aggrieved party. The complaint suggests that "hundreds of elderly, naive, and poorly educated citizens have likely lost their homes to these Defendants' illegal dealings," but there are no allegations of class status in the complaint. The cover sheet prepared by Plaintiff refers to class action status of the case.
The same Motion for Class Certification and Memorandum was filed on two occasions, September 29, 2000, and October 18, 2000.
Complaint, page 14.
BU moved for and received an extension of time to answer the motion for class certification until its motion to dismiss is adjudicated, but its memorandum suggested several barriers to the claimed class action status for this case:
Plaintiff has failed to properly designate [the complaint] as [a class action] as required by local rule DUCiv R.23-1. In addition, Plaintiffs Complaint wholly fails to plead, let alone establish, the for [sic] prerequisites to a class action, as required under Federal Rule of Civil Procedure 23(a). See Fed.R.Civ.P. 23(a)(1) — (4). On its merits, a class comprised of citizens who are elderly, naive and poorly educated regarding legal issues is too vague, indefinite, and speculative to be identified. See, Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977). And, courts are reluctant to certify a class represented by a pro se litigant because a layperson ordinarily does not possess the legal training and expertise necessary to protect the interests of a proposed class. See 7A Charles E. Wright, et al., Federal Practice and Procedure § 1769.1 n. 12; see also, Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (pro se prisoners are not adequate representatives for a class); Sule v. B.H. Story, 82 F.3d 427, 1996 WL 170156, (10th Cir. 1996) (unpublished opinion). Although Plaintiff has the right to appear on his own behalf, he may not represent another in federal court. See 28 U.S.C. § 1654; see, e.g., United States v. Grismore, 546 F.2d 844 (10th Cir. 1976); Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982).
"In any case sought to be maintained as a class action, the complaint or other pleading asserting a class action must include within the caption the words, `Proposed Class Action.'" DUCivR 23-1.
Every objection BU makes to class certification is well founded. This case is not susceptible of class status on the state of the pleadings, and therefore the Motions for Class Certification are denied.
Default of Default to New Mortgage, Inc.
Plaintiff claims Default to New Mortgage, Inc., has been served and failed to answer and requests entry of its default. The plaintiff has attached a copy of a return of service, but no original return or summons has been filed. Therefore, the request for entry of default is denied. Rule 4(1) F.R.Civ.P.; D.U.Civ.R. 5-1(a)(1). If plaintiff files original proof of service, it may be that default and default judgment would be entered against Default to New Mortgage.
"At the time of filing, the clerk will require the original of . . . return of service."
Motion to File a Supplemental Complaint Against Bank United FSB and Lundberg
Plaintiff filed a Motion to File a Supplemental Complaint against Bank United FSB and Lundberg Associates. This Motion is treated as a Motion to Amend under F.R.Civ.P. 15. The Supplemental Complaint proposed by Plaintiff relates to payoff calculations under the BU lien. The document does not, other than general reference to Truth in Lending and Federal Deposit Corporation Regulations without any specific citation, have anything that would suggest federal jurisdiction. In light of the recommended dismissal of existing claims against these defendants, and the absence of allegations of federal jurisdiction in the Supplemental Complaint, the Motion to File a Supplemental Complaint against BU and Lundberg Associates is denied.
Conclusion
The Motion to File a Supplemental Complaint against BU and Lundberg Associates is denied.
The Request for Entry of Default of Default to New Mortgage, Inc. is denied.
The Motions for Class Certification are denied.
BY THE COURT.
REPORT AND RECOMMENDATION TO GRANT MOTIONS TO DISMISS AND DISMISS CLAIM AGAINST NEWGATE MORTGAGE
The case was referred to the magistrate judge under 28 U.S.C. § 636 (b)(1)(B). The following dispositive motions are currently pending:
The Referral Order also indicated the Magistrate Judge could, upon consent, dispose of the case. Plaintiff filed consent, but no other party has done so.
Motion to Dismiss filed by Lundberg and Associates; Motion to Dismiss filed by Bank United of Texas FSB.
This Report and Recommendation concludes that the Defendants' Motions to Dismiss should be granted. It also recommends claims against Newgate Mortgage be dismissed.
Nature of this Case
Plaintiff Earl Pagel filed a narrative-style complaint on September 29, 2000, recounting a history of dealings with a mortgage holder (Bank United of Texas FSB, hereafter "BU"); BU's lawyer Lundberg and Associates ("Lundberg"); and an unrelated mortgage broker (Default-To-New Mortgage, Inc.); and mortgage holder (Newgate Mortgage, Inc.). Generally, the events occurred in the context of various bankruptcy proceedings, and revolve around disputes about payment and reinstatement of an obligation in favor of BU, while Lundberg, acted as BU's counsel, as well as negotiations for a subsequent mortgage with a broker (Default to New Mortgage, Inc.) and lender (Newgate Mortgage). The complaint's opening sentence and the cover sheet identify the cause of action as a 1983 Civil Rights Complaint, and the cover sheet references the RICO statute.
Motions to Dismiss
Motions to dismiss were filed by Defendants Lundberg and BU. The motions challenge the complaint for its failure to state a civil rights claim, and the impropriety of this court adjudicating claims of allegations of non-compliance with bankruptcy court orders.
Motion to Dismiss Lundberg and Associates with Prejudice or For Summary Judgment, filed November 10, 2000.
Defendant Bank United's Motion to Dismiss for Failure to State a Claim, filed December 6, 2000.
Civil Rights Claim
The Plaintiff has apparently concluded that creditor violations of federal bankruptcy procedures and orders would constitute a violation of his civil rights.
The Defendants' [sic] exercised callous disregard to the Plaintiff and his Constitutional Right to enjoy Bankruptcy Protection . . .
Complaint, page 14.
However, none of the defendants' alleged actions fall under color of state law, or are "fairly attributable to the State." Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996), citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1983). Private use of statutory power of sale foreclosure procedures is not "state action." Schroder v. Volcker, 646 F. Supp. 132, 135 (D. Colo. 1986), aff'd 864 F.2d 97 (10th Cir. 1988). Further, this court would not be the proper forum for adjudication of non-compliance with the orders or processes of the Bankruptcy Court. 28 U.S.C. § 157 (providing that cases involving debtor-creditor or equity-security holder relationships are "core proceedings" which should be handled in the bankruptcy court) and D.U. Civ. R. 83-7.1. See, Guardian Mortgage Investors v. Unofficial Noteholders, 607 F.2d 1020, 1 Collier Bankr. Cas.2d 79 (2nd Cir. 1979).
Other Claims
The Court has examined the complaint to see if it might state other claims. The Plaintiffs styling of his complaint as a civil rights claim and his failure to state such a claim does not mean his complaint fails to create any claims.
The complaint does contain allegations against these Defendants which hint at breach of contract (collection of premiums for duplicate insurance, now refunded) and there are conclusory assertions of "fraudulent actions," "illegal actions," "rebellious and ungovernable discrimination," and a recitation that Defendants made efforts to avoid Plaintiffs efforts to bring them into "compliance." There are no factual statements that would show that such claims exist. Only the conclusory characterizations are present.
Complaint. page 14.
Id.
Examination of the complaint does not reveal a stated but unlabeled claim against BU or Lundberg.
Newgate Mortgage
While Newgate Mortgage is named in the complaint, the complaint clearly states "Plaintiff does not hold Defendant Newgate Mortgage liable . . ." Newgate Mortgage has filed an answer denying almost all the allegations of the complaint, alleging that it does not state a cause of action, and asking that the complaint be dismissed. On the Court's motion, the complaint against Newgate Mortgage should be dismissed.
Complaint, page 13.
Conclusion
The Motions to Dismiss of Lundberg Associates and BU should be granted, and the complaint against those Defendants should be dismissed.
Consistent with the prayer of Newgate Mortgage, Inc., the complaint against it should be dismissed as well.
Copies of this Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must, pursuant to Rule 72(b), F.R.Civ.P., file any objections to the Report and Recommendation within ten (10) days of being served with it.
BY THE COURT.