Pierce v. Green Tree Servicing LLC

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 21, 2016
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
BILLY PIERCE,
Plaintiff - Appellant,
v. No. 15-1473
(D.C. No. 1:15-CV-00913-RBJ)
GREEN TREE SERVICING LLC, D. Colo.
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, MURPHY, and PHILLIPS, 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 court
therefore orders the case submitted without oral argument.
In February 1999, Odetta Pierce, for herself and as guardian and
conservator of the Estate of Fred Pierce (“Borrowers”), executed a promissory
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
note (the “Note”) and deed of trust to obtain a residential mortgage loan (the
“Loan”) for real property located in Colorado. The rights originally granted to
First Colorado Mortgage Corporation under the Note were assigned to Defendant
Green Tree Servicing LLC (“Green Tree”) in 2013. Borrowers defaulted on the
Loan and Green Tree initiated foreclosure proceedings in 2014. The Elbert
County District Court authorized the sale of the property in 2015.
Appellant Billy Pierce and one of the Borrowers filed a complaint against
Defendant in Colorado state court. The action was removed to federal court by
Defendant on the basis of diversity jurisdiction. On June 26, 2015, Pierce filed
an amended complaint in which he was named the sole plaintiff. The amended
complaint sought “injunctive relief, damages, and other relief” from Green Tree
based on Pierce’s allegations that (1) Green Tree lacked authority to foreclose on
the Loan and (2) the Loan was discharged because Pierce tendered payment of the
outstanding balance.
The district court concluded Pierce lacked standing to bring his claims
against Green Tree because he was not a party to the Loan or the loan documents
and, thus, he could not show he suffered an “injury in fact.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547-48 (2016) (identifying “injury in fact” as one of
the three elements of standing that a plaintiff must establish by showing “he or
she suffered an invasion of a legally protected interest that is concrete and
particularized and actual and imminent, not conjectural or hypothetical”
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(quotation omitted)). Accordingly, Green Tree’s motion to dismiss the complaint
was granted by the district court.
In his complaint and again in his opening brief, Pierce concedes he was not
a party to the Loan. He also does not dispute the district court’s conclusion that
the two causes of action asserted in his complaint “are predicated on Green
Tree’s alleged misconduct regarding the Loan.” In this appeal, Pierce raises the
same arguments previously addressed and rejected by the district court. Upon
review of the appellate briefs filed in this matter and de novo review of the entire
record on appeal, this court agrees with the district court’s conclusion that Pierce
lacks standing.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the
dismissal of Pierce’s amended complaint for substantially the reasons stated by
the district court in its order dated November 3, 2015.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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