Viegas et al v. U.S. Bank Trust National Association

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-02754-PAB-STV
KERI L. VIEGAS, and
JAMES VIEGAS,
Plaintiffs,
v.
U.S. BANK TRUST NATIONAL ASSOCIATION, as Owner Trustee for VRMTG Asset
Trust, and
HALLIDAY, WATKINS & MANN, P.C.
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Defendant Halliday, Watkins & Mann, P.C.’s
Motion to Dismiss (the “HWM Motion”) [#11] and Defendant U.S. Bank’s Motion to
Dismiss Plaintiffs’ Complaint/Claims and Trial by Jury Demand (the “U.S. Bank Motion”)
[#18] (collectively, the “Motions”). The Motions have been referred to this Court. 	[##12,
19] 	This Court has carefully considered the Motions and related briefing, the case file,
and the applicable case law, and has determined that oral argument would not materially
assist in the disposition of the Motions. For the following reasons, the Court respectfully
RECOMMENDS that the Motions be GRANTED to the extent that they seek dismissal of
Plaintiffs’ federal claims and that the Court DECLINE SUPPLEMENTAL JURISDICTION
over Plaintiffs’ state law claims.
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I. 	BACKGROUND1
Plaintiffs executed promissory notes in 2004 though it is unclear to whom such
notes were provided.2 	[#1 at ¶ 8] 	On February 1, 2023, Plaintiff James Viegas, as “a
living, breathing, man of flesh and blood with a body, soul and spirt,” executed an Affidavit
of Revocation of Recission and Signatures which “revoke[d], cancel[led], and [made] void
from the beginning” Mr. Viegas’s signature on any instrument which could be construed
to give any agency or department of any government any authority over Mr. Viegas (“Mr.
Viegas’s Revocation”). 	[Id. at 16-18] 	That same day, Plaintiff Keri Viegas, as “a living,
breathing, woman of flesh and blood with a body, soul and spirit” executed a similar
Affidavit 	of 	Revocation 	and 	Recission 	of 	Signatures 	(“Ms. 	Viegas’s 	Revocation”)
(collectively, along with Mr. Viegas’s Revocation, the “Revocations”). [Id. at 19-21] The
Revocations were provided to the Summit County Public Trustee. [Id. at ¶ 9]
“Around February 15, 2024, a fraudulent Assignment recorded by Defendant U.S.
Bank purports to transfer only an alleged Deed of Trust. It is not accompanied by transfer
or delivery of the Note and did not have consent of the Plaintiffs.” [Id. at ¶ 9] “Plaintiffs
never entered into any lawful contract with Defendants and never consented to any
assignment, securitization, or transfer of their property or notes to Defendants.” [Id. at ¶
1 The facts are drawn from the allegations in Plaintiffs’ Complaint [#1], which must be
taken as true when considering a motion to dismiss. Wilson v. Montano, 715 F.3d 847,
850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
2 The Complaint is very difficult to follow. 	The Complaint references various lenders
including Optimum First Inc., United Wholesale Mortgage, and Freddie Mac. 	[#1 at ¶¶
14-16] There is also a reference to an incomplete endorsement, purportedly as a result
of a prior transfer of the note(s). [Id. at ¶ 14] But the Complaint does not provide a cogent
history of the note(s).
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10] 	Nonetheless, 	Defendants initiated a 	nonjudicial foreclosure against 	Plaintiffs,
misrepresenting that they were Plaintiffs’ creditors. [Id. at ¶ 11]
Plaintiffs initiated this action on September 3, 2025. [#1] The operative Complaint
initially appears to bring twelve claims for relief: (1) Violation of the Colorado Constitution,
Article II, § 3 (Inalienable Rights) and Article II, § 7 (Security of Persons and Property);
(2) Unlawful Seizure under the Fourth Amendment; (3) Violation of Plaintiffs’ Due Process
Rights under the Fourteenth Amendment; (4) Fraud; (5) Breach of Fiduciary Duty; (6)
Trafficking in Persons in Violation of the Thirteenth Amendment, Fourteenth Amendment,
and 18 U.S.C. §§ 1590-1595; (7) Unlawful Peonage in Violation of the Thirteenth
Amendment; (8) “Joint Resolution 192 (Discharge of Obligations at Par)”; (9) “Obligations
of the United States (12 U.S.C. § 411)”; (10) “Fraudulent Conversion through CRIS
(Discovery & Restitution)”; (11) “Violation of Public Law 89-485 (12 U.S.C. § 1829b)”; and
(12) “Violation of Freddie Mac Legal Framework for Foreclosure Attorneys (1998 & 2013
LFRA).” 	[Id. at 6-10] In their response to the U.S. Bank Motion, however, Plaintiffs
clarified that Claims Eight through Eleven are not stand-alone claims but, rather, provide
context supporting the Plaintiffs’ “fraud, concealment, and unjust-enrichment theories.”3
[#20 at 11] 	The Court will therefore consider these “claims” as providing support for
Plaintiffs’ fraud claim, as opposed to stand alone claims.
On September 26, 2025, Defendant Halliday, Watkins & Mann, P.C. (“HWM”) filed
the HWM Motion. 	[#11] 	Plaintiffs have responded [#17] and HWM did not file a reply.
3 Notably, while the concealment claim may be considered part of Plaintiffs’ fraud claim,
Plaintiffs have not brought an unjust enrichment claim. [#1]
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On October 15, 2025, Defendant U.S. Bank filed the U.S. Bank Motion. [#18] Plaintiffs
have responded [#20] and U.S. Bank replied [#21].
II. 	STANDARD OF REVIEW
A. 	Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” In deciding a motion under
Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and
view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court
is to “determine whether the complaint sufficiently alleges facts supporting all the
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elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
B. 	Pro Se Litigants
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3. 	The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008). 	Moreover, pro se parties must “follow the same rules of
procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. 	ANALYSIS
The Complaint, as clarified by Plaintiffs’ response, brings eight claims for relief.
[#1 at 6-10] As best this Court can discern, the Complaint alleges five federal claims: (1)
Unlawful Seizure under the Fourth Amendment (Claim Two); (2) Violation of Plaintiffs’
Due Process Rights under the Fourteenth Amendment (Claim Three); (3) Trafficking in
Persons in Violation of the Thirteenth Amendment, Fourteenth Amendment, and 18
U.S.C. §§ 1590-1595 (Claim Six); (4) Unlawful Peonage in Violation of the Thirteenth
Amendment (Claim Seven); and (5) “Violation of Freddie Mac Legal Framework for
Foreclosure Attorneys (1998 & 2013 LFRA)” (Claim Twelve). 	[Id.] 	The Complaint 	also
alleges three state law claims: (1) Violation of the Colorado Constitution, Article II, § 3
(Inalienable Rights) and Article II, § 7 (Security of Persons and Property) (Claim One); (2)
Fraud (Claim Four); and (3) Breach of Fiduciary Duty (Claim Five). 	[Id.] 	Defendants’
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Motions seek to dismiss all claims. 	[##11, 18] 	The Court begins with Plaintiffs’ federal
claims then turns to Plaintiffs’ state claims.
A. 	Claims Two and Three
Plaintiffs’ Second Claim alleges that Defendants unlawfully seized Plaintiffs’
property in violation of the Fourth Amendment. 	[#1 at 7] 	Plaintiffs’ Third Claim alleges
that Defendants violated Plaintiffs’ Fourteenth Amendment due process rights. [Id.] Both
are presumably brought pursuant to 42 U.S.C. § 1983. [Id.]
“Under Section 1983, liability attaches only to conduct occurring ‘under color of
law.’ Thus, under the state action doctrine, a proper defendant in a [Section] 1983 action
is one who represents the state in some capacity.” Schwab v. Kansas Dep’t of Child. &
Fams., 851 F. App’x 110, 117 (10th Cir. 2021) (quotations omitted). Here, the Complaint
alleges that U.S. Bank “is a national banking association purporting to act as trustee and
unlawful creditor” and HWM “is a law firm acting as a debt collector.” [#1 at ¶¶ 5-6] Thus,
neither are state actors. For these private entities to be considered to have operated as
state actors, the conduct at issue must be “fairly attributable to the state.” 	Lugar v.
Edmonson Oil Co., 457 U.S. 922, 937 (1982). In order for conduct to be fairly attributable
to the state:
First, the deprivation must be caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by the State
or by a person for whom the state is responsible. Second, the private party
must have acted together with or . . . obtained significant aid from state
officials or engaged in conduct otherwise attributable to the State.
Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (quotations omitted). 	Generally,
private parties are not state actors, as “private conduct that is not fairly attributable to the
State is simply not actionable under [Section] 1983, however discriminatory or wrongful
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the conduct is.” 	Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir. 1995) (internal citations
and quotations omitted). 	Nonetheless, “[w]here a private party conspires with state
officials to deprive others of constitutional rights . . . the private party is acting under color
of state law.” McDonald v. Citibank N.A., No. 21-cv-00427-PAB-NRN, 2021 WL 5736437,
at *7 (D. Colo. Dec. 2, 2021) (citing Tower v. Glover, 467 U.S. 914, 920 (1984); Dennis v.
Sparks, 449 U.S. 24, 27–28 (1980)).
Plaintiffs maintain that they have plausibly alleged state action because “the Public
Trustee’s statutory acts are indispensable to the sale” and thus Defendants and the Public
Trustee are “joint participant[s] in a state-sanctioned deprivation.” [#20 at 7] But a private
defendant’s “use of state process . . . is not enough for the conduct to be attributable to
the state.” Silva v. U.S. Bank, Nat’l Ass’n, 817 F. App’x 545, 550 (10th Cir. 2020) (citing
Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000) (“A private individual does not engage
in state action simply by availing herself of a state procedure.”)). And the only state action
Plaintiffs have alleged is Defendants’ use of the state foreclosure process. Thus, because
Plaintiffs have not plausibly alleged state action, their Second and Third Claims fail.
Accordingly, 	the 	Court 	respectfully 	RECOMMENDS 	that 	the 	Motions 	be
GRANTED to the extent they seek to dismiss Plaintiffs’ Second and Third Claims and that
these claims be DISMISSED WITH PREJUDICE. 	“Though the Court would ordinarily
recommend the dismissal of . . . these claims without prejudice,[4] Plaintiffs have caused
4 See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the
plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is
obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile
to give him an opportunity to amend” (quotation omitted)); Reynoldson v. Shillinger, 907
F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when
plaintiff has made allegations “which, upon further investigation and development, could
raise substantial issues”).
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Defendants and the court significant time and resources on what appear to be entirely
meritless claims.” Viegas v. Kane, No. 23-cv-03291-PAB-MDB (D. Colo. 2023) (“Viegas
I”),5 ECF No. 38 at 16 n.6 (citing Avery v. Wade, No. 22-4093, 2022 WL 17544077, at *2
(10th Cir. Dec. 9, 2022) (finding that the district court “didn't abuse its discretion in
dismissing [the plaintiff’s] claims with prejudice” because he raised “indisputably meritless
legal theor[ies].” (quoting Northington v. Jackson, 973 F.2d 1518, 1520 (10th Cir. 1992))).
B. 	Claims Six and Seven
Plaintiffs’ Sixth Claim alleges unlawful trafficking in persons in violation of the
Thirteenth Amendment, Fourteenth Amendment, and 18 U.S.C. §§ 1590-1595. [#1 at 7]
Plaintiffs’ 	Seventh 	Claim 	alleges 	unlawful 	peonage 	in 	violation 	of 	the 	Thirteenth
Amendment. 	[#1 at 8] 	Plaintiffs’ assertion that Defendants’ actions—related to a
purportedly unlawful foreclosure of Plaintiffs’ property—constitute unlawful peonage or
trafficking in persons is frivolous.
18 U.S.C. §§ 1590-1592 prohibit such actions as obtaining involuntary or forced
labor, sex trafficking of children, and destroying immigration documents in violation of
Chapter 77’s prohibition on peonage, slavery and trafficking in persons. 18 U.S.C. § 1593
provides for mandatory restitution for any violation of Chapter 77 and 18 U.S.C. § 1593A
provides for fines to be levied against anybody who benefitted from a Chapter 77 violation.
18 U.S.C. § 1594 provides criminal penalties for Chapter 77 violations and 18 U.S.C. §
1595 provides civil remedies to victims of a Chapter 77 violation.
5 Plaintiffs’ expansive history of litigation involving vehicle repossessions and mortgage
foreclosures is set forth in other opinions of the Court. See Viegas v. Rojas, No. 24-cv-
03174-PAB-STV, 2025 WL 1560782, at *8 n.2 (D. Colo. June 3, 2025).
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Plaintiffs have not alleged that Defendants forced Plaintiffs into involuntary labor
or slavery in violation of any provision of Chapter 77 or the Thirteenth Amendment.
Instead, they appear to argue that because Plaintiffs needed to work to avoid foreclosure,
Defendants subjected Plaintiffs to “ongoing economic servitude.” [#20 at 12-13] Though
Plaintiffs acknowledge the “theory’s novelty” [id. at 13], the Court agrees with U.S. Bank
that the theory “is absurd on its face” [#18 at 7]. 	Accordingly, because Plaintiffs’ Sixth
and Seventh Claims are patently frivolous, the Court respectfully RECOMMENDS that
the Motions be GRANTED to the extent they seeks to dismiss Plaintiffs’ Sixth and Seventh
Claims and that those claims be DISMISSED WITH PREJUDICE.
C. 	Claim Twelve
Plaintiff’s Twelfth Claim alleges “Violation of Freddie Mac Legal Framework for
Foreclosure Attorneys (1998 & 2013 LFRA).” 	[#1 at 9-10] 	It is unclear exactly what
Plaintiffs assert with this claim, or whether it is a purported violation of federal law or state
law. 	As best the Court can tell, this appears to allege that Defendant HWM violated
Freddie Mac’s foreclosure guidelines. 	See Freddie Mac’s Seller/Service Guide, Topic
9301: Foreclosure, available at https://guide.freddiemac.com/app/servicing/chapter/9301
(last accessed February 6, 2026). But Plaintiffs fail to identify a private right of action that
would arise from such a violation, let alone a federal cause of action. 	And Plaintiffs’
responses do not even address this claim, let alone provide the Court any guidance as to
the basis for this claim. [##17, 20] Thus, to the extent Claim Twelve attempts to assert
a federal cause of action, the Court respectfully RECOMMENDS that the Motions be
GRANTED to the extent they seeks to dismiss Plaintiffs’ Twelfth Claim and that Claim
Twelve be DISMISSED WITH PREJUDICE. See Supra Section III.A.
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D. 	State Law Claims
Plaintiffs also asserts three state law claims: (1) Violation of the Colorado
Constitution, Article II, § 3 (Inalienable Rights) and Article II, § 7 (Security of Persons and
Property) (Claim One); (2) Fraud (Claim Four); and (3) Breach of Fiduciary Duty (Claim
Five).6 	[#1 at 6-9] 	28 U.S.C. § 1367(c)(3) expressly authorizes the Court to decline to
exercise supplemental jurisdiction over these claims. “Whether to exercise supplemental
jurisdiction [when all federal claims have been dismissed] lies within the discretion of the
court” and “[n]otions of comity and federalism demand that a state court try its own
lawsuits, absent compelling reasons to the contrary.” Sauer v. McGraw-Hill Cos., No. 99
N 1898, 2001 WL 1250099, at *18 (D. Colo. June 12, 2001) (quotations omitted). 	As a
result, a district court will generally decline the exercise of supplemental jurisdiction when
all federal claims have been eliminated prior to trial. See id.; see also Aery v. Bd. of Cnty.
Comm’rs of Tulsa Cnty., 696 F. App’ x 360, 361 (10th Cir. 2017) (“When all federal claims
have been dismissed, the court may, and usually should, decline to exercise jurisdiction
over any remaining state claims.” 	(quotation omitted)). 	Here, given that Plaintiffs have
failed to plausibly allege any federal claim, the Court respectfully RECOMMENDS that
supplemental jurisdiction over Plaintiffs’ state claims be DECLINED.
IV. 	CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant
Halliday, Watkins & Mann, P.C.’s Motion to Dismiss [#11] and Defendant U.S. Bank’s
6 Once again, it is unclear whether Plaintiffs’ Twelfth Claim is a federal or state claim. The
Court has placed it into the federal claim category because Freddie Mac is a government-
sponsored enterprise. To the extent Claim Twelve purports to assert a state claim, then
the Court would recommend declining supplemental jurisdiction for the reasons outlined
in this Section.
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Motion to Dismiss Plaintiffs’ Complaint/Claims and Trial by Jury Demand [#18] be
GRANTED to the extent that they seek dismissal of Plaintiffs’ federal claims and that the
Court DECLINE SUPPLEMENTAL JURISDICTION over Plaintiffs’ state law claims.7
DATED: February 6, 2026 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
7 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection for
de 	novo 	review. 	“[A] 	party’s 	objections 	to 	the 	magistrate 	judge’s 	report 	and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” 	United States v. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). 	Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
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