United States District Court, D. Utah
PAULA A. MITCHELL, Plaintiff,
THE BANK OF NEW YORK MELLON; a New York Chartered Bank; BRAD DeHAAN; an individual; HILLARY McCORMACK, an individual; BRIGHAM LUNDBERG, an individual; LUNDBERG & ASSOCS, PC; a Utah Professional Corporation; NuVENTURE GROUP, LLC, a Utah Limited Liability Company; STATUTORY BENEFICIARY DOES, 1-1000; REPURCHASING DOE; and DOES 1001-2000 Defendants.
MEMORANDUM DECISION AND ORDER GRANTING MOTIONS TO
Waddoups United States District Court Judge.
before the court are four Motions: (1) the Lundberg
Defendants' Motion to Dismiss, (ECF No. 10); (2) the Bank
of New York Mellon's (the Bank) Motion to Dismiss (ECF
No. 27); (3) Paula Mitchell's (Ms. Mitchell) Motion to
Dismiss the Bank's Counterclaims, (ECF No. 29); and (4)
NuVenture Group LLC's Motion for Certification, (ECF No.
41). As explained below, the court GRANTS both
Defendants' Motions to Dismiss (ECF Nos. 10 & 27).
The court dismisses NuVenture's Crossclaim for failing to
adequately plead diversity jurisdiction. This MOOTS
Nuventure's Motion, (ECF No. 41). The court dismisses the
Bank's Counterclaim under the Colorado River
doctrine. This MOOTS Ms. Mitchell's Motion to Dismiss,
(ECF No. 29).
Mitchell is the current occupant of real property located at
3 Mistywood Lane, Sandy, Salt Lake County, Utah.
(See Compl. ¶ 1, ECF No. 2 at 1.) Ms. Mitchell
“acquired an ownership interest in the Property by a
Special Warranty Deed executed on May 23, 2006, and recorded
on May 24, 2006, in the Salt Lake County Recorder's
Office . . . .” (ECF No. 10-1 at 3.) “On May 23,
2006, ” Ms. Mitchell “as trustor, executed and
delivered a certain trust deed . . . to Stewart T. Matheson,
as trustee, for the benefit of Mortgage Electronic
Registration Systems, Inc., as nominee for America's
Wholesale Lender, its successors, and assigns, to secure
obligations under a certain promissory note executed in
conjunction therewith.” (ECF No. 10-1 at 3.)
“[T]he Mitchell Trust Deed was recorded in the Salt
Lake County Recorder's Office . . . .” (ECF No.
10-1 at 3.) “On May 23, 2006, in conjunction with the
execution of the Mitchell Trust Deed, ” Ms. Mitchell
“executed a promissory note . . . with a mortgage rider
. . . in the amount of $1, 000, 000.00.” (ECF No. 10-1
Note obligated” Ms. Mitchell “to make monthly
principal and interest payments . . . beginning July 1,
2006.” (ECF No. 27-15 at 5.) Ms. Mitchell's
“obligations under the Note, Rider, and Mitchell Trust
Deed were secured by the Property.” (ECF No. 27-15 at
5.) Ms. Mitchell “breached the terms and conditions of
the Note, Rider, and Mitchell Trust Deed by failing to make
the required monthly payments when due.” (ECF No. 27-15
at 5.) “Based upon” Ms. Mitchell's
“failure to pay the monthly payments under the terms of
the Note, Rider, and Mitchell Trust Deed, ” Ms.
Mitchell was in default. (ECF No. 27-15 at 5.)
Notice of Default was entered “on or about August 17,
2010.” (ECF No. 27-1 at 7.) On January 18, 2011, Ms.
Mitchell filed a Complaint in the Third Judicial District
Court, County of Salt Lake, State of Utah, seeking, among
other things, for the state court to declare that the Bank of
New York Mellon “lack[s] any interest in the subject
property which might permit them to foreclose, or attempt to
foreclose the property through non-judicial means, and that
their activities are void ab initio . . . .”
(ECF No. 27-1 at 28.) On March 13, 2012, the state court
dismissed nine of Ms. Mitchell's eleven causes of action.
(ECF No. 27-2 at 8.) On September 19, 2013 the state court
dismissed Ms. Mitchell's remaining causes of action. (ECF
No. 27-3 at 14.)
Mitchell later filed a Motion, “requesting that the
[state] Court correct its misstatements to the effect that
all of the claims have been resolved so as to avoid any
confusion as to whether there is a final judgment, and any
possible confusion over questions of appeal.” (ECF No.
27-5 at 8.) On February 28, 2014 the state court denied Ms.
Mitchell's Motion, providing, in relevant part:
Even if the Court were to consider Plaintiffs' argument,
the Court would not be persuaded to reconsider its earlier
rulings. The Court's three prior rulings, taken together,
dismissed all claims against all defendants. Plaintiffs have
failed to identify a single claim that was not disposed of by
the earlier rulings. Rather, Plaintiffs have merely
repackaged arguments that have already been considered and
rejected by the Court. The Court sees no reason to reconsider
its earlier rulings or to correct any “misstatements as
to the status of the case.”
(ECF No. 27-6 at 4.)
Mitchell then filed an appeal but later filed a Motion to
Dismiss that Appeal for Lack of Jurisdiction. (See
ECF No. 27-7 at 3 (“Mitchells have been placed in the
unfortunate dilemma of being forced to seek an appeal only to
argue that the appeal is premature and must be dismissed
because the trial court has not entered a final
judgment.”).) On January 14, 2015, the Utah Court of
Appeals entered an Order denying Ms. Mitchell's
“motion to dismiss [her] own appeal, ” finding
that the “district court has resolved all causes of
action raised in the litigation.” (ECF No. 27-8 at 2.)
April 18, 2016, the Utah Court of Appeals issued an opinion
affirming the district court's judgment. Mitchell v.
ReconTrust Co. NA, 373 P.3d 189, 206 (Utah Ct. App.
2016) (“The Mitchells have not demonstrated that the
district court erred in dismissing several of their causes of
action upon Bank Defendants' motion to dismiss. The
Mitchells have also failed to show that the district court
erred in its evidentiary rulings or in granting summary
judgment to the defendants on their remaining claims.
Accordingly, we affirm.”).
10, 2016, Ms. Mitchell filed a Petition for Rehearing. (ECF
No. 27-9.) This Petition was denied. On July 29, 2016, Ms.
Mitchell filed a Petition for Writ of Certiorari with the
Utah Supreme Court. (ECF No. 27-10.) This Petition was denied
on December 2, 2016. Mitchell v. ReconTrust Co, 387
P.3d 508 (Utah 2016).
April 15, 2016, the Bank of New York Mellon, through the
Lundberg Defendants, brought a foreclosure suit against Ms.
Mitchell in the Third Judicial District Court, Salt Lake
Department, Salt Like County, State of Utah. (ECF No. 27-11
at 10.) The Bank of New York Mellon sought “a judgment
and order that the Mitchell Trust Deed is a good and
sufficient lien upon the Property” and sought an order
“that the Property be foreclosed . . . .” (ECF
No. 27-11 at 8.) On March 3, 2017, Ms. Mitchell filed an
Answer and First Amended Counterclaim. (See ECF No.
27-12 at 76.) In her counterclaim, Ms. Mitchell raised
arguments regarding the “finality of Mitchell
I.” (See ECF No. 27-12 at 29.)
March 30, 2017, Judge Shaughnessy entered an order dismissing
Ms. Mitchell's First Amended Counterclaim, holding that
almost “[a]ll of the issues and claims set forth in the
First Amended Counterclaim were, or could have been asserted
in the Mitchell I case . . . .” (See ECF No.
27-14 at 2.) Regarding those claims wherein she sought
“to collaterally attack the decisions of the Utah Court
of Appeals and Utah Supreme Court, ” Judge Shaughnessy
found “no legal, factual, or logical support for
[those] claims and decline[d] to entertain them . . .
.” (ECF No. 27-14 at 2.)
November 27, 2017, Judge Shaughnessy entered an Order
Granting Summary Judgment for the Bank of New York Mellon.
(ECF No. 27-15 at 2.) In this Order, Judge Shaughnessy held
that the Bank of New York Mellon was “entitled to
judicially foreclose the Mitchell Trust Deed and sell the
Property to recover any unpaid obligations owed . . .
.” (ECF No. 27-15 at 7.) On that same day, Judge
Shaughnessy entered a Final Judgment in favor of the Bank of
Mellon “for the amount of $1, 343, 034.81 plus
additional interest, costs, taxes, and other fees owing to
Plaintiff and incurred after May 31, 2018.” (ECF No.
27-16 at 4.) The Final Judgment also provided that the Bank
was “entitled to judicially foreclose the Mitchell
Trust Deed and sell the Property . . . .” (ECF No.
27-16 at 4.)
November 27, 2017, Ms. Mitchell filed an “Objection to
[Judge Shaughnessy's] Sua Sponte Entry of ‘Final
Judgment.'” (ECF No. 27-17.) On December 22, 2017,
Ms. Mitchell filed a “Combined Rule 59 and Rule 52
Motions to Alter or Amend ‘Final Judgment' and
Request for Hearing” with the state court. (ECF No.
27-18.) On January 18, 2018, Judge Shaughnessy entered an
Order denying Ms. Mitchell's Combined Rule 59 and 52
Motions. (ECF No. 27-20.) In this order, Judge Shaughnessy
wrote, in part:
The majority of Mitchell's Motion to Alter or Amend
consists of re-arguing issues that have already been
presented to and ruled on by the court, including on motions
other than the summary judgment motion that fully resolved
the issues in the case. To the extent Mitchell disagrees with
the court's rulings, her remedy is to file an appeal not
to serially re-argue those issues with this court.
(ECF No. 27-20 at 2.) Both Ms. Mitchell and the Bank of New
York Mellon acknowledge that Ms. Mitchell appealed Judge
Shaughnessy's ruling. (See ECF NO. 27 at 4
(“The [Rule 59 and Rule 52] motions were denied . . .
and Ms. Mitchell appealed.”); see
also ECF No. 33 at 15 (“The reality is that
Mitchell is not attempting to ‘modify or set aside'
the ‘Final Judgment' because she has her
active appeal to do that.”) (bold added).) Ms.
Mitchell filed a Notice of Appeal on February 16, 2018,
“to the Utah Supreme Court of the sua sponte
‘Final Judgment entered by Judge Shaughnessy . . . on
November 27, 2017” wherein she appealed, among other
things, Judge Shaughnessy's “Order Granting Summary
Judgment in Plaintiff's favor” “and the trial
court's premature authorization of a foreclosure sale by
the Salt Lake County Sheriff . . . .”
February 13, 2018, the Property was sold at a sheriff's
sale. (See ECF No. 27-22 at 2 (“On the
13th of February 2018, at 12 o'clock noon of
said day at the County Courthouse, Salt Lake City, Salt Lake
County, State of Utah and after due legal notice I caused to
be sold at public auction . . . the real property of the Bank
of New York Mellon . . . .”).) A sheriff's deed was
executed on August 16, 2018, the by Salt Lake County Sheriff
conveying to the Bank of New York Mellon “as Trustee
for the Certificate Holders of the CWMBS Inc, CHL Mortgage
pass Through Trust 2006-HYB5, Mortgage Pass Through
Certificates, Series 2006-HYB5 party of the second
part.” (ECF No. 27-23 at 2.)
August 14, 2018, Plaintiff filed, in this court, her
Complaint against the Bank of New York Mellon, Brad DeHaan,
Hillary McCormack, Brigham Lundberg, Lundberg and Associates,
(the Lundberg Defendants) NuVenture Group, LLC, Statutory
Beneficiary Does, 1-1000; Repurchasing Doe, and Does
1001-2000. (ECF No. 2.) In her Complaint, Ms. Mitchell
brought thirteen causes of action:
1. “Quiet Tittle Action to Determine Current Owner of
Property and the Validity of Any Other Claimed Interest
Against the Property” (ECF No. 2 at 11.)
2. “Wrongful Foreclosure” (ECF No. 2 at 14.)
3. “Breach of Contract” (ECF No. 2 at 18.)
4. “Declaratory Judgment Invalidity of Note and Trust
Deed and Any Transfer of the Debt” (ECF No. 2 at 19.)
5. “Denial of Due Process: No. Final Judgment in
Mitchell I” (ECF No. 2 at 20.)
6. “Denial of Due Process Re: No. Res Judicata Effect
of Mitchell I” (ECF No. 2 at 26.)
7. “Declaratory Judgment Re: Ownership of the Debt,
Note and Trust Deed” (ECF No. 2 at 31.)
8. “Declaratory Judgment Re: Lack of Required Notice to
Cure.” (ECF No. 2 at 32.)
9. “Declaratory Judgment Re: Assignment by MERS
to” the Bank (ECF No. 2 at 34.)
10. “Severance of Security from Debt” (ECF No. 2
11. “Re: Possible Satisfaction or Reduction of
Debt” (ECF No. 2 at 38.)
12. “FDCPA Violations” (ECF No. 2 at 39.)
13. “Declaratory Judgment Re: Credit Bid” (ECF
No. 2 at 40.)
fifth, sixth, and twelfth claims are federal causes of