Russell v. Financial Capital Equities ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 12, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
ALLEN RUSSELL, and family
members and a class of similarly
situated, minority status individuals,
who have been wronged by the
defendants’ enforcement of illegal, No. 04-1220
deceptive and unconscinable (sic) (D.C. No. 03-MK-1568)
lending contracts (involving the (D. Colo.)
practice of criminal usury),
Plaintiff,
and
JAMES BAILEY,
Plaintiff-Appellant,
v.
FINANCIAL CAPITAL EQUITIES,
and liable officers, owners and
employees thereof, including Jack
Silver and Thomas M. Lutes; AAA
FINANCIAL SERVICES; LEONARD
SMITH; JIMMY EWINGS;
FINANCIAL CAPITAL
COMPANIES; FINANCIAL
CAPITAL MORTGAGE, INC.; JACK
SILVER; THOMAS M. LUTES,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, PORFILIO, and BALDOCK, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This is a pro se appeal from a district court order that dismissed appellant
James Bailey’s claims for lack of standing. We have jurisdiction under 28 U.S.C.
§ 1291 and conclude that the district court did not err.
B ACKGROUND
In April 2002, Allen Russell borrowed $353,500 from appellee Financial
Capital Equities, Inc. (FCE) to remodel and refurbish his 7,000 square foot
building comprising retail space, studio apartments, and a loft. Russell secured
the loan with a deed of trust on the real property and executed an affidavit stating
that the loan was for commercial purposes. In May 2003, Russell borrowed
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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$460,000 from appellee Financial Capital Mortgage, Inc. (FCM) to pay off the
first loan, which had fallen into default. This loan was also secured by the real
property and accompanied by Russell’s affidavit stating that the loan was for
remodeling and refurbishing the property for commercial purposes. Russell
defaulted and FCM initiated foreclosure proceedings.
In August 2003, Russell filed a pro se complaint against FCE, FCM, and
the other appellees, alleging violations of the Federal Truth in Lending Act
(TLA), 15 U.S.C. §§ 1601-1667f, the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692-1692o, the Equal Credit Opportunity Act, 15 U.S.C.
§§ 1691-1691f, the Civil Rights Act of 1866, 42 U.S.C. § 1981, and various state
and common laws. Russell purported to represent himself, unidentified family
members, and a class of “additional ‘[c]onsumer(s).’” Compl. at 2 (Doc. #1).
The district court directed Russell to get an attorney for the putative class
members, to identify the family members, and to have the family members sign
the pleadings and represent their own interests. In February 2004, Russell filed a
pro se amendment to the complaint, identifying his cousin, appellant James
Bailey, as “a business partner . . . [having] an inherent and instilled interest in the
property at issue.” Amend. to Compl. at 2 (Doc. #43).
On May 20, 2004, the district court dismissed whatever claims involved
Mr. Bailey, reasoning sua sponte that he lacked standing:
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Because the Plaintiffs’ claims in this case entail allegedly unlawful
conduct relating to the loans made by the FC Defendants, only
borrowers or guarantors on those loans have suffered any injury. All
of the loan documents attached to the Complaint . . . bear only the
signature of Plaintiff Allen Russell . . . . There is no indication in
any pleading or filing that any other Plaintiff is a borrower or
guarantor on the loans. Although . . . James Bailey claim[s] in the
Amended Complaint to have an unspecified “interest in the property”
securing the loan, [James Bailey does not] . . . claim[ ] to be a party
to the loan transactions that underlie the claims. Accordingly, only
Plaintiff Allen Russell . . . has sustained any alleged injury by virtue
of the allegedly unlawful loans, and the claims of all other individual
Plaintiffs are dismissed for lack of standing.
Order Granting, in Part, Motions to Dismiss at 8-9 (footnote omitted) (Doc. #63). 1
Mr. Bailey appeals, seeking leave to proceed in forma pauperis.
D ISCUSSION
Article III, § 2 of the United States Constitution restricts federal courts to
deciding “Cases” and “Controversies,” thereby imposing what has become known
as the “irreducible constitutional minimum of standing,” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Article III standing has the following
elements: (1) “the invasion of a legally protected interest that is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) “a
1
The district court also dismissed Russell’s federal claims, except for the
TLA claim, which was referred to an evidentiary hearing to determine whether the
loans were commercial. After considering evidence on the issue, the district court
found the loans to have been for commercial purposes and dismissed the TLA
claim. The court then declined to retain supplemental jurisdiction over the
remaining non-federal claims. Those rulings are not before this court.
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causal relationship between the injury and the challenged conduct”; and (3) “a
likelihood that the injury will be redressed by a favorable decision.” Board of
County Comm’rs v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002) (quotation
marks omitted). If any one element of the standing equation is missing, there is
no case or controversy over which the district court can exercise subject matter
jurisdiction. See Lujan, 504 U.S. at 561 (stating that “each element [of standing]
must be supported in the same way as any other matter on which the plaintiff
bears the burden of proof”). “[A] court must raise the standing issue sua sponte,
if necessary, in order to determine if it has jurisdiction.” United States v.
Colorado Supreme Court, 87 F.3d 1161, 1166 (10th Cir. 1996).
We employ a de novo standard of review for questions of standing. San
Juan County v. United States, 420 F.3d 1197, 1203 (10th Cir. 2005).
Mr. Bailey argues that he had standing because he sought declaratory relief
as Russell’s “business partner . . . with an ownership interest in the property.”
Aplt.’s Opening Br. at 5. But a demand for declaratory relief does not by itself
confer standing. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667,
671-72 (1950); United Food & Commercial Workers Union v. Albertson’s,
207 F.3d 1193, 1197 (10th Cir. 2000). Mr. Bailey must still present an “actual
controversy,” 28 U.S.C. § 2201(a) (Declaratory Judgment Act), in furtherance of
Article III. See Altvater v. Freeman, 319 U.S. 359, 363 (1943) (“The
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requirements of case or controversy are of course no less strict under the
Declaratory Judgment Act, than in case of other suits.”) (internal citation
omitted); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40 (1937) (stating
that the Declaratory Judgment Act “manifestly has regard to [Article III] and is
operative only in respect to controversies which are such in the constitutional
sense”); see also Calderon v. Ashmus, 523 U.S. 740, 745-47 (1998) (observing the
potential for declaratory relief actions to fall outside Article III’s limits).
The complaint here identifies a case or controversy only as to whether the
loans appellees made to Russell violated federal law. Nothing about Mr. Bailey’s
“interest in the property” reveals a concrete and particularized interest in
Russell’s acquisition of debt. Indeed, Mr. Bailey appears to have acquired his
interest after the loans were issued. Consequently, he lacked standing to sue the
appellees.
Mr. Bailey also argues that the district court’s dismissal violated due
process because he was prevented from obtaining a declaratory judgment. It is
axiomatic, however, that a person has no due process right to a judgment when he
lacks standing to sue. See generally Federal Lands Legal Consortium v. United
States, 195 F.3d 1190, 1195 (10th Cir. 1999) (observing that a Fifth Amendment
due process claim requires the deprivation of a protected interest without the
proper level of process).
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Because Mr. Bailey has not presented a reasoned, nonfrivolous argument on
appeal, we DENY his motion for in forma pauperis status and we DISMISS this
appeal. See 28 U.S.C. § 1915(e)(2)(B)(i). Mr. Bailey’s motion for
reconsideration of our June 3, 2004 order denying a stay is DENIED. Appellees’
motions to dismiss are DENIED.
Entered for the Court
John C. Porfilio
Circuit Judge
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