Viegas et al v. TH MSR Holdings LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-03666-PAB-STV
KERI L. VIEGAS, and
JAMES VIEGAS,
Plaintiffs,
v.
TH MSR HOLDINGS LLC,
BRIAN G. SAYER,
JAMIE G. SILER,
ROUNDPOINT MORTGAGE SERVICING LLC,
CHUCK BROERMAN,
EL PASO COUNTY, COLORADO,
KELLY J. MCPHERSON,
ZILLOW, INC., and
DOES 1-50
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on the Motion to Dismiss Pursuant to C.R.C.P.
12(b)(5) and 12(b)(6) filed by Defendant 	Brian Sayer (the “Sayer Motion”) [#26],
Defendant Zillow, Inc.’s Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) (the “Zillow
Motion”) [#34], Judge McPherson’s Motion to Dismiss (the “McPherson Motion”) [#36],
the Motion to Dismiss Complaint filed by Defendant Jamie G. Siler (the “Siler Motion”)
[#40], El Paso County and Trustee Broerman’s Motion to Dismiss Plaintiff’s Complaint
(the “El Paso County Motion”) [#58], and the Motion to Dismiss Complaint filed by
Defendants TH MSR Holdings LLC and RoundPoint Mortgage Servicing LLC (the “Lender
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Parties’ Motion”) [#60] (collectively, the “Motions”). The Motions have been referred to
this Court. 	[##30, 35, 37, 41, 59, 61] 	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.
I. 	BACKGROUND1
The instant case arises from a non-judicial foreclosure on Plaintiffs’ private
residence (the “Property”). 	[See generally #1] 	Though the Complaint is somewhat
difficult to follow, it appears that Defendants TH MSR Holdings LLC (“TH MSR”) and
RoundPoint Mortgage Servicing LLC (“RoundPoint”) (collectively, the “Lenders”) were the
parties servicing a promissory note (the “Note”) on the Property and who initiated the
foreclosure process. 	[Id. at ¶¶ 5, 8, 29, 44, 47, 56-57] 	Defendants Brian G. Sayer and
Jamie G. Siler are attorneys who acted as foreclosure counsel. 	[Id. at ¶¶ 6-7] 	The
foreclosure took place in Defendant El Paso County, Defendant Chuck Broerman is the
El Paso County Trustee, and Defendant Judge Kelly J. McPherson is the judge who
oversaw the foreclosure. 	[Id. at ¶¶ 9-11, 16, 23-26] 	Defendant Zillow, Inc. (“Zillow”)
“published false foreclosure information, falsely listed Plaintiffs’ property as ‘For Sale,’
generating public interest, trespass, and slander of title.” [Id. at ¶ 14] Defendant Does 1-
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)).
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50 “are individuals and entities whose identities are unknown who participated in the
wrongful acts.” [Id. at ¶ 15]
Plaintiffs’ Complaint challenges numerous aspects of the foreclosure process.
Plaintiffs claim that the Lenders were “not the holder in due course of any legitimate
promissory note.” 	[Id. at ¶ 44] 	Specifically, Plaintiffs allege that the Note, “if it ever
existed, was securitized, pooled, transferred multiple times, and destroyed . . . breaking
the unity of note and deed.” [Id.] Plaintiffs further allege that the assignment of the Note
to 	the 	Lenders 	was 	“facially 	defective” 	as 	it 	contained 	“robo-signed 	signatures,
mismatched fonts, unauthorized signatories, and clerical errors.” 	[Id. at ¶ 45] 	And,
according to Plaintiffs, the prior servicer of the Note was “in default under federal servicing
regulations” and thus any assignment of the Note to the Lenders was invalid. [Id. at ¶ 54-
58]
In addition to the validity of the Note itself, Plaintiffs also challenge several other
aspects of the foreclosure process. 	Plaintiffs claim that that the Public Trustee’s
Statement of Owners and Encumbrances initially omitted Plaintiff Keri Viegas and that
this defect could not be cured. 	[Id. at ¶¶ 17-19] 	Plaintiffs claim that they submitted
numerous affidavits documenting problems with the foreclosure and because Defendants
did not rebut these affidavits, the facts contained in the affidavits are deemed admitted.
[Id. at ¶¶ 32-33] 	Plaintiffs assert that the Colorado Secretary of State does not have a
record of a filed oath of office for Judge McPherson and thus all of Judge McPherson’s
actions are void. [Id. at ¶¶ 20-21] Plaintiffs allege that Judge McPherson’s initial Order
Authorizing Sale incorporated a proposed order from a case that had been previously
dismissed, and when Judge McPherson entered the corrected Order Authorizing Sale the
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foreclosure proceedings had already been closed (presumably as a result of the incorrect
initial Order Authorizing Sale), and thus the final Order Authorizing Sale “is void ab initio.”
[Id. at ¶¶ 22-27] Next, Plaintiffs allege that TH MSR uploaded exhibits to the foreclosure
proceeding after the case was closed and Plaintiffs were not given an opportunity to
respond. [Id. at ¶¶ 29-31] Finally, Plaintiffs assert that, because of Judge McPherson’s
“unlawful and void order,” Plaintiffs were forced to file an intent to cure under duress, and
the resulting forced payments constitute “involuntary servitude.” [Id. at ¶¶ 40-41, 48-53]
After Judge McPherson entered the Order Authorizing Sale, Zillow listed Plaintiffs’
home as being “For Sale.” [Id. at ¶ 34, 36] This resulted in 108 views of the Property and
strangers entering the Property believing that it was for sale. [Id. at ¶¶ 34, 38] Plaintiffs
informed Zillow that the Property was not for sale but Zillow “ignored the warning and
continued publishing false information.” [Id. at ¶¶ 36-37]
Plaintiffs initiated this action on November 14, 2025. 	[#1] 	The Complaint brings
seventeen claims for relief: (1) violation of Plaintiffs’ due process rights pursuant to 42
U.S.C. § 1983 against all Defendants except Zillow; (2) unconstitutional taking of property
pursuant to 42 U.S.C. § 1983 against all Defendants except Zillow, Sayer and Siler; (3)
civil rights conspiracy pursuant to 42 U.S.C. § 1985(3) against all Defendants; (4) failure
to prevent a civil rights conspiracy pursuant to 42 U.S.C. § 1986 against El Paso County;
(5) fraud and constructive fraud against the Lenders, Sayer and Siler; (6) abuse of
process apparently against all Defendants; (7) slander of title against Zillow and the
Lenders; (8) negligence and gross negligence against Zillow; (9) violation of the Fair Dept
Collection 	Practices 	Act 	(“FDCPA”) 	against 	the 	Lenders, 	Sayer, 	and 	Siler; 	(10)
declaratory judgment against all Defendants; (11) quiet title against all Defendants; (12)
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injunctive relief against Judge McPherson and Public Trustee Broerman; (13) wrongful
foreclosure against the Lenders, Sayer, Siler and Public Trustee Broerman; (14) violation
of the Anti-Peonage Act against all Defendants except Judge McPherson and El Paso
County; (15) unfair, deceptive, abusive acts or practices against the Lenders, Sayer, and
Siler, (16) fraudulent scheme to deprive property against the Lenders, Sayer, Siler, Zillow,
and Public Trustee Broerman; and (17) civil conspiracy against the Lenders, Sayer, Siler,
Public Trustee Broerman, and the Doe Defendants.
On December 9, 2025, Defendant Sayer filed the Sayer Motion [#26] and Plaintiffs
have responded [#43]. On December 10, 2025, Defendant Zillow filed the Zillow Motion.
[#34] 	Plaintiffs have responded to the Zillow Motion [#42] and Zillow has replied [#54].
Also on December 10, 2025, Judge McPherson filed the McPherson Motion. 	[#36]
Plaintiffs have responded to the McPherson Motion [#48] and Judge McPherson has
replied [#56]. 	On December 11, 2025, Defendant Siler filed the Siler Motion. 	[#40]
Plaintiffs have responded to the Siler Motion [#45] and Defendant Siler has replied [#55].
On February 3, 2025, Defendants Broerman and El Paso County filed the El Paso County
Motion [#58] and Plaintiffs have responded [#62]. Also on February 3, 2025, the Lenders
filed the Lender Parties’ Motion [#60] and Plaintiffs have responded [#63].
II. 	STANDARD OF REVIEW
A. 	Federal Rule of Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint
for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment
on the merits of a plaintiff’s case, but only a determination that the court lacks authority
to adjudicate the matter. 	See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)
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(recognizing federal courts are courts of limited jurisdiction and may only exercise
jurisdiction when specifically authorized to do so). 	A court lacking jurisdiction “must
dismiss the cause at any stage of the proceeding in which it becomes apparent that
jurisdiction is lacking.” 	Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974).
B. 	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
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is to “determine whether the complaint sufficiently alleges facts supporting all the
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).
C. 	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 Lender Parties’, McPherson and El Paso County Motions argue that the Court
lacks subject matter jurisdiction over Plaintiffs’ claims pursuant to the Rooker-Feldman
doctrine. 	[##36 at 5-6; 58 at 6; 60 at 14-15] 	The McPherson Motion argues that the
claims for injunctive and declaratory relief are moot and that Judge McPherson is immune
from suit pursuant to the Eleventh Amendment. 	[#36 at 6-9] 	Each Motion argues that
Plaintiffs fail to allege plausible claims. 	[See generally ##26, 34, 36, 40, 58, 60] 	The
Court addresses the various arguments in turn.
A. 	Rooker-Feldman
The Lender Parties’, McPherson and El Paso County Motions argue that the Court
lacks subject matter jurisdiction over Plaintiffs’ claims pursuant to the Rooker-Feldman
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doctrine. [##36 at 5-6; 58 at 6; 60 at 14-15] “The Rooker–Feldman doctrine establishes,
as a matter of subject-matter jurisdiction, that only the United States Supreme Court has
appellate authority to review a state-court decision.”2 Merrill Lynch Bus. Fin. Servs., Inc.
v. Nudell, 363 F.3d 1072, 1074–75 (10th Cir. 2004) (footnote omitted). 	“The Rooker–
Feldman doctrine precludes a losing party in state court who complains of injury caused
by the state-court judgment from bringing a case seeking review and rejection of that
judgment in federal court.” Miller v. Deutsche Bank Nat’l Trust Co. (In re Miller), 666 F.3d
1255, 1261 (10th Cir. 2012). 	The doctrine is “confined to cases of the kind from which
the doctrine acquired its name: 	cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” 	Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
The Tenth Circuit has “concluded that ‘the type of judicial action barred by Rooker–
Feldman consists of a review of the proceedings already conducted by the “lower” tribunal
to determine whether it reached its result in accordance with law.’” PJ ex rel. Jensen v.
Wagner (Jensen), 603 F.3d 1182, 1193 (10th Cir. 2010) (quoting Bolden v. City of
Topeka, 441 F.3d 1129, 1143 (10th Cir. 2006)). “Rooker–Feldman does not bar federal-
court claims that would be identical even had there been no state-court judgment; that is,
claims that do not rest on any allegation concerning the state-court proceedings or
2 “The Rooker–Feldman doctrine is derived from 28 U.S.C. § 1257(a), [which] provides
that only the Supreme Court has jurisdiction to hear appeals from final state court
judgments,” Suasnavas v. Stover, 196 F. App’x 647, 652 n.3 (10th Cir. 2006) (internal
quotation omitted), and gets its name from two Supreme Court decisions: 	Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983).
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judgment.” 	Id. (quoting Bolden, 441 F.3d at 1145). 	The Tenth Circuit has applied the
Rooker–Feldman doctrine where the relief sought required the federal court to review and
reject the state court judgment. 	See id. (citing Mann v. Boatright, 477 F.3d 1140, 1147
(10th Cir. 2007)). 	On the other hand, the court has refused to apply the doctrine when
the federal suit would not reverse or otherwise undo the state court judgment. 	See id.
(citing Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1238 (10th Cir. 2006)).
Because the Rooker–Feldman doctrine “implicates [the Court’s] subject matter
jurisdiction,” the Court addresses it “before turning to the merits of the case.” 	Jensen,
603 F.3d at 1193. “The Rooker-Feldman doctrine is properly applied on a claim-by-claim
basis, even though it is jurisdictional in nature.” Isaacs v. DBI-ASG Coinvestor Fund, III,
LLC (In re Isaacs), 895 F.3d 904, 912 (6th Cir. 2018); see also Flanders v. Lawrence (In
re Flanders), 657 F. App’x 808, 814 (10th Cir. 2016) (stating that the court “independently
consider[s] each claim against the backdrop of the Rooker–Feldman doctrine”).
Here, the Court concludes that Rooker-Feldman does not bar Plaintiffs’ claims.
The problem with Defendants’ Rooker-Feldman argument is that the order Plaintiffs
challenge—the Order Authorizing Sale—has since been vacated and the foreclosure
proceedings have been dismissed. [#36-2] And the Rooker-Feldman doctrine does not
apply to vacated judgments. 	Berene v. Nationstar 	Mortg. LLC, 686 F. App’x 714, 717
(11th Cir. 2017); Caldwell v. DeWoskin, 831 F.3d 1005, 1009 (8th Cir. 2016); New Y-
CAPP, Inc. v. Arch Cap. Funding, LLC, 1:18-CV-03223 (ALC), 2020 WL 5549315, at *4
(S.D.N.Y. Sept. 16, 2020). Thus, Rooker-Feldman does not bar Plaintiffs’ action.
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B. 	Mootness
The McPherson Motion argues that the claims for injunctive and declaratory relief
are moot. 	[#36 at 3-5] 	Specifically, Judge McPherson argues that “[t]he ‘foreclosure
activity’ that [Plaintiffs] sought to enjoin has concluded, and the order the [Plaintiffs] seek
to have ‘declared void’ has been vacated.” 	[Id. at 4] 	Thus, according to Judge
McPherson, this Court cannot provide the injunctive or declaratory relief sought by
Plaintiffs and Plaintiffs’ claims for injunctive and declaratory relief are moot. [Id.]
“Article III of the Constitution confines the judicial power of federal courts to
deciding actual ‘Cases’ or ‘Controversies.’” 	Hollingsworth v. Perry, 570 U.S. 693, 704
(2013). “Two related doctrines, standing and mootness, keep federal courts within their
constitutional bounds.” 	Brown v. Buhman, 822 F.3d 1151, 1163 (10th Cir. 2016).
“Standing concerns whether a plaintiff’s action qualifies as a case or controversy when it
is filed; mootness ensures it remains one at the time a court renders its decision.” 	Id.
“The Supreme Court has described mootness ‘as the doctrine of standing set in a time
frame: The requisite personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence (mootness).’” Id. at 1163-64
(quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)).
“A ‘suit becomes moot when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.’” Id. at 1165 (quoting Chafin v. Chafin,
568 U.S. 165, 172 (2013)). “[T]he case is moot if the dispute is no longer embedded in
any actual controversy about the plaintiffs’ particular legal rights.” 	Id. (quoting Already,
LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). 	“The crucial question is whether granting a
present determination of the issues offered will have some effect in the real world.” Id. at
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1165-66 (quoting Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005)).
“Put another way, a case becomes moot when a plaintiff no longer suffers actual injury
that can be redressed by a favorable judicial decision.” Id. at 1166 (quoting Ind v. Colo.
Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015)).
“When prospective equitable relief is requested, the requesting party must show
an ongoing, personal stake in the outcome of the controversy, a likelihood of substantial
and immediate irreparable injury, and the inadequacy of remedies at law.” 	Rezaq v.
Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012). “Past exposure to illegal conduct does not
in itself show a present case or controversy regarding injunctive relief.” 	Id. (quoting
O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). In a declaratory relief action, “a plaintiff
must be seeking more than a retrospective opinion that he was wrongly harmed by the
defendant.” Id. (quoting Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011)).
Here, Plaintiffs seek a declaration that the Order Authorizing Sale is void and an
injunction halting all foreclosure activity. 	[#1 at 20] 	But as discussed earlier, the Order
Authorizing Sale has since been vacated and the foreclosure proceedings have been
dismissed. [#36-2] And given this fact, Plaintiffs have failed to show an ongoing, personal
stake in their claims for injunctive and declaratory relief. 	Indeed, Plaintiffs do not even
address the mootness argument in their response to the McPherson Motion. [#48] And
while Plaintiffs address mootness in their response to the El Paso County Motion, they
focus primarily on damages suffered, which is not at issue in the claims for injunctive
relief. [#63 at 4-5] And though Plaintiffs briefly mention “a risk of repetition” [id. at 4], they
fail to raise a likelihood beyond speculation that a future foreclosure will occur, let alone
that it will occur with the same alleged errors that occurred previously—i.e., the failure to
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include Ms. Viegas’ name on the initial Statement of Owners and Encumbrances or Judge
McPherson’s inclusion of the wrong case number on the initial Order Authorizing Sale.
Thus, the Court concludes that Plaintiffs’ claims for declaratory and injunctive relief are
moot and the Court lacks jurisdiction over such claims. And because Plaintiffs seek only
declaratory and injunctive relief against Defendant McPherson [#1 at ¶ 12], the Court
respectfully RECOMMENDS that the McPherson Motion be GRANTED and that all claims
against Defendant McPherson be DISMISSED WITHOUT PREJUDICE.3 Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line of cases
from this circuit holds that where the district court dismisses an action for lack of
jurisdiction, as it did here, the dismissal must be without prejudice.”).
C. 	Failure to State a Claim
The remaining Defendants each argue that Plaintiffs fail to allege plausible claims.
[See generally ##26, 34, 40, 58, 60] 	Plaintiffs’ Complaint alleges seven federal law
causes of action: (1) violation of Plaintiffs’ due process rights pursuant to 42 U.S.C. §
1983 against all Defendants except Zillow; (2) unconstitutional taking of property pursuant
to 42 U.S.C. § 1983 against all Defendants except Zillow, Sayer and Siler; (3) civil rights
conspiracy pursuant to 42 U.S.C. § 1985(3) against all Defendants; (4) failure to prevent
a civil rights conspiracy pursuant to 42 U.S.C. § 1986 against El Paso County; (5) violation
of the FDCPA against the Lenders, Sayer, and Siler; (6) violation of the Anti-Peonage Act
against all Defendants except Judge McPherson and El Paso County; and (7) unfair,
deceptive, abusive acts or practices in violation of 12 U.S.C. § 5536 against the Lenders,
3 Thus, the Court need not reach Judge McPherson’s alternative argument that the suit
against her is barred by Eleventh Amendment immunity.
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Sayer, and Siler.4 [#1 at 12-17] 	The Complaint also alleges seven state law causes of
action: (1) fraud and constructive fraud against the Lenders, Sayer and Siler; (2) abuse
of process apparently against all Defendants; (3) slander of title against Zillow and the
Lenders; (4) negligence and gross negligence against Zillow; (5) quiet title against all
Defendants; (6) wrongful foreclosure against the Lenders, Sayer, Siler and Public Trustee
Broerman; and (7) civil conspiracy against the Lenders, Sayer, Siler, Public Trustee
Broerman, and the Doe Defendants.5 	[Id. at 14-19] 	The Court begins with the federal
claims and then turns to the state claims.
1. 	Plaintiffs’ Due Process and Unconstitutional Takings Claims
Plaintiffs’ first two claims allege: (1) violation of Plaintiffs’ due process rights
pursuant 	to 	42 	U.S.C. 	§ 	1983 	against 	all 	Defendants 	except 	Zillow; 	and 	(2)
unconstitutional taking of property pursuant to 42 U.S.C. § 1983 against all Defendants
except Zillow, Sayer and Siler. [#1 at 12-13] The Court first addresses this claim against
4 Plaintiffs also have a claim entitled: Fraudulent Scheme to Deprive Property (18 U.S.C.
§§ 1341, 1343—incorporated civilly) against the Lenders, Sayer, Siler, Zillow, and Public
Trustee Broerman. 	[#1 at 18] 	Plaintiffs do not appear to be bringing this claim
independently, but instead assert it because it “demonstrates a pattern of fraudulent
conduct relevant to punitive damages, civil conspiracy, and the underlying § 1983 and
fraud claims.” [Id.] To the extent Plaintiffs do intend do bring a separate civil claim under
the federal wire or mail fraud statutes, this claim fails as neither Section 1341 nor Section
1343 create a private right of action. Brooks v. Bank of New York Mellon Tr. Co., No. 24-
2188-KHV, 2024 WL 3826614, at *5 (D. Kan. Aug. 14, 2024); Saul v. U.S. Bank Nat’l
Ass’n, No. CIV 24-0442 JB/SCY, 2024 WL 2804055, at *9 (D.N.M. May 31, 2024).
5 The Complaint also brings a declaratory judgment claim against all Defendants seeking
to declare “all orders void ab initio” and a claim for injunctive relief against Judge
McPherson and Public Trustee Broerman to enjoin them from executing the foreclosure.
[#1 at 16] 	The only orders specifically referenced in the Complaint are the two Orders
Authorizing Sale and, as explained above, any challenges to those orders are now moot.
Similarly, because the foreclosure has been dismissed, any claim for injunctive relief
seeking to enjoin that foreclosure is moot.
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the private Defendants—Defendants Sayer, Siler, TH MSR, and RoundPoint.6 The Court
then turns to these claims as asserted against the remaining state Defendants—Public
Trustee Broerman and El Paso County.7
a. 	Private Actors
“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 Defendants Sayer, Siler, TH MSR and RoundPoint are all private actors. [#1
at ¶¶ 5-8] 	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
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
6 These claims were not asserted against private party Zillow. [#1 at 12-13]
7 The Court has already recommended dismissal of the claims against Judge McPherson
as those claims are moot. See supra Section III.B.
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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)).
Here, Plaintiffs seem to allege state action because the private Defendants
“willfully particpat[ed] in and direct[ed] the use of state foreclosure machinery.” [#1 at 4]
But the fact that the private Defendants utilized the state foreclosure process does not
convert their actions into conduct attributable to the state. 	This is because a private
defendant’s “use of state processes . . . 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 against the private actors is their use of the state foreclosure
process. Thus, because Plaintiffs have not plausibly alleged state action, their First and
Second 	Claims 	fail 	as 	asserted 	against 	Defendants 	Sayer, 	Siler, 	TH 	MSR, 	and
RoundPoint.
b. 	State Actors
Plaintiffs have also failed to plausibly plead Section 1983 claims against the two
remaining state actors, Defendant Broerman and El Paso County. 	To the extent
Defendant Broerman is sued in his individual capacity, Plaintiffs have failed to allege that
Defendant Broerman violated Defendants’ due process rights or engaged in an unlawful
taking of Defendants’ property. 	“A procedural due process claim consists of two
elements: (i) deprivation by state action of a protected interest in life, liberty, or property,
and (ii) inadequate state process.” Reed v. Goertz, 598 U.S. 230, 236 (2023). For a Fifth
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Amendment Takings Clause claim, the government must have both taken property and
denied just compensation. Horne v. Dep’t of Agric., 569 U.S. 513, 525-26 (2013). Here,
the only allegation against Defendant Broerman is that he omitted Ms. Viegas’s name
from the initial Statement of Owners and Encumbrances. [#1 at ¶ 17] But Plaintiffs have
not plausibly alleged that this action deprived Plaintiffs of any life, liberty or property, a
fatal defect to both Plaintiffs’ procedural due process and unlawful takings claims. Indeed,
to the extent Ms. Viegas’s name was omitted from the initial Statement of Owners and
Encumbrances, it is clear from the Complaint that she had notice of the foreclosure before
the Order Authorizing Sale was ever entered. 	[#1 at ¶ 20 (showing that both Plaintiffs
made CORA requests about Judge McPhereson months before the Order Authorizing
Sale was entered)] Thus, any omission did not prejudice her ability to defend against the
foreclosure.
To the extent Defendant Broerman is sued in his official capacity, this is the
equivalent of bringing a claim against El Paso County. 	“Suing individual defendants in
their official capacities under § 1983 . . . is essentially another way of pleading an action
against the county or municipality they represent,” and thus courts apply the same
standards of liability to municipalities as to official capacity claims against municipal
officials. 	Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010). 	Thus, to analyze
Plaintiffs’ claims against Defendant Broerman in his official capacity and their claims
against El Paso County, the Court must determine whether Plaintiffs have plausibly
alleged a municipal liability claim.
“[M]unicipalities and municipal entities . . . are not liable under 42 U.S.C. § 1983
solely because their employees inflict injury on a plaintiff.” Fofana v. Jefferson Cty.
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Sheriff's, No. 11-cv-00132-BNB, 2011 WL 780965, at *2 (D. Colo. Feb. 28, 2011) (citing
Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City
of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). To establish a municipality's liability, the
plaintiff must demonstrate that a municipal policy or custom directly caused his injury. Id.
“A challenged practice may be deemed an official policy or custom for § 1983 municipal-
liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a
final 	decision 	by 	a 	municipal 	policymaker, 	or 	deliberately 	indifferent 	training 	or
supervision.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th
Cir. 2013). 	After identifying an official policy or custom, the plaintiff must demonstrate
causation by showing that the policy or custom “is the moving force behind the injury
alleged.” 	Cacioppo v. Town of Vail, 528 F. App'x 929, 931 (10th Cir. 2013) (quoting
Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)); see also Kentucky v. Graham,
473 U.S. 159, 166 (1985) (same). Finally, the plaintiff must demonstrate “that the policy
was 	enacted 	or 	maintained 	with 	deliberate 	indifference 	to 	an 	almost 	inevitable
constitutional injury.” 	Cacioppo, 528 F. App'x at 931 (quoting Schneider, 717 F.3d at
769).
Here, Plaintiffs have simply alleged conclusory statements that their injuries
resulted from “El Paso County’s policies, customs, and failures to train and supervise the
Public Trustee’s Office in complying with mandatory foreclosure statutes and due process
of law requirements.” 	[#1 at 12] 	The Complaint fails to identify a specific deficiency in
training or supervision, let alone how that deficiency led to Plaintiffs’ alleged injuries. The
conclusory nature of the allegations, coupled with Plaintiffs’ failure to identify an official
policy or custom that was the moving force behind Plaintiffs’ alleged injuries, renders
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Plaintiffs’ Monell claim against El Paso County deficient. 	See Dalcour v. City of
Lakewood, 492 F. App'x 924, 930 (10th Cir. 2012) (“Plaintiffs do not identify which specific
policies or customs may have motivated [the police officers’] actions. Without more, this
is exactly the formulaic recitation of the elements of a cause of action [that] will not do.”
(internal quotation omitted)); Granato v. City and Cty. of Denver, No. 11-cv-00304-MSK-
BNB, 2011 WL 3820730, at *8 (D. Colo. Aug. 30, 2011) (dismissing the plaintiff's Section
1983 	claim 	against 	a 	municipal 	hospital 	because 	the 	allegations 	were 	“entirely
conclusory” and offered only the “formulaic recitation” of a Monell claim).
c. 	Conclusion
Thus, 	Plaintiffs 	have 	failed 	to 	plausibly 	allege 	either 	Section 	1983 	claim.
Accordingly, the Court respectfully RECOMMENDS that the Motions be GRANTED to the
extent 	they 	seek 	to 	dismiss 	Plaintiffs’ 	First 	and 	Second 	claims 	asserted 	against
Defendants Sayer, Siler, TH MSR, RoundPoint, Broerman, and El Paso County and that
these claims be DISMISSED WITH PREJUDICE. 	“Though the Court would ordinarily
recommend the dismissal of . . . these claims without prejudice,[8] Plaintiffs have caused
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
8 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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I”),9 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))).
2. 	Civil Rights Conspiracy Claims
Plaintiffs’ Third and Fourth claims assert: (1) civil rights conspiracy pursuant to 42
U.S.C. § 1985(3) against all Defendants; and (2) failure to prevent a civil rights conspiracy
pursuant to 42 U.S.C. § 1986 against El Paso County. 	[#1 at 13-14] 	Section 1985
provides:
If two or more persons . . . conspire or go in disguise on the highway or on
the premises of another, for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws
. . . the party so injured or deprived may have an action for the recovery of
damages.
42 U.S.C. § 1985(3). The essential elements of a Section 1985(3) claim are thus: “(1) a
conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities;
(3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting
therefrom.” 	Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (citing Griffin v.
Breckenridge, 	403 	U.S. 	88, 	102-03 	(1971)). 	Section 	1985(3) 	applies 	“only 	[for]
conspiracies motivated by ‘some racial, or perhaps otherwise class-based, invidiously
discriminatory animus.’” Id. (quoting Griffin, 403 U.S. at 101-02).
Section 1986 provides:
Every person who, having knowledge that any of the wrongs conspired to
be done, and mentioned in section 1985 of this title, are about to be
9 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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committed, 	and 	having 	power 	to 	prevent 	or 	aid 	in 	preventing 	the
commission of the same, neglects or refuses so to do, if such wrongful act
be committed, shall be liable to the party injured.
42 U.S.C. § 1986. 	“[T]here can be no valid claim under § 1986 of neglect to prevent a
known conspiracy in the absence of a conspiracy under § 1985.” 	Santistevan v.
Loveridge, 732 F.2d 116, 118 (10th Cir. 1984). 	“Along with establishing a § 1985
conspiracy, a plaintiff asserting a § 1986 claim must show (1) the defendant had
knowledge of the conspiracy, (2) the defendant had the power to prevent or aid in
preventing the commission of a violation of § 1985, (3) the defendant neglected or refused
to prevent the violation, and (4) a violation of § 1985 occurred.” Ganzy on behalf of J.G.
v. Douglas Cnty. Sch. Dist. RE-1, 744 F. Supp. 3d 1187, 1192-93 (D. Colo. 2024) (citing
42 U.S.C. § 1986).
Plaintiffs have not plausibly alleged a claim against any Defendant under either
Section 1985 or Section 1986. 	Plaintiffs never identify their race or membership within
any protected class in the Complaint. 	Nor do Plaintiffs allege that any Defendant was
motivated by Plaintiffs’ race or other protected characteristic to enter a conspiracy.
Accordingly, Plaintiffs have not plausibly alleged a claim under either Section 1985 or
Section 1986 and the Court respectfully RECOMMENDS that Claims Three and Four be
DISMISSED WITH PREJUDICE. See supra Section III.C.1.c.
3. 	FDCPA Claim
Plaintiffs’ Ninth Claim alleges FDCPA violations against Defendants Sayer, Siler,
TH MSR and RoundPoint. [#1 at 15] The purpose of the FDCPA is “to eliminate abusive
debt collection practices by debt collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not competitively disadvantaged, and to
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promote consistent State action to protect consumers against debt collection abuses.” 15
U.S.C. § 1692(e). 	“To state a claim for relief under the FDCPA, [a plaintiff] must prove
four essential elements: (1) that she is a ‘consumer,’ 15 U.S.C. § 1692a(3); (2) that the
debt in question arises out of a transaction entered primarily for personal, family, or
household purposes, 15 U.S.C. § 1692a(5); (3) that [the defendant] is a “debt collector,”
15 U.S.C. § 1692a(6); and (4) that [the defendant] violated, by act or omission, a provision
of the FDCPA.” 	Lupia v. Medicredit, Inc., 445 F. Supp. 3d 1271, 1280 (D. Colo. 2020);
see also Goodman v. Asset Acceptance LLC, 428 F. Supp. 3d 526, 529-30 (D. Colo.
2019).
Here, Plaintiffs allege that Defendants violated 15 U.S.C. §§ 1692e(2)(A) and
1692e(5). 	Section 	1692e(2)(A) 	prohibits 	a 	debt 	collector 	from 	making 	a 	false
representation about the character, amount, or legal status of any debt. Section 1692e(5)
prohibits a debt collector from threatening to take any action that cannot legally be taken
or that is not intended to be taken. 	In this case, the alleged threat appears to be the
institution of the non-judicial foreclosure process and all alleged misrepresentations
appear to have been made in the non-judicial foreclosure.
Considering the fact that each of the alleged FDCPA violations appear to have
been taken in the course of the non-judicial foreclosure, Plaintiffs have failed to state an
FDCPA claim. 	Once again, to plausibly allege an FDCPA claim, Plaintiffs must allege
that Defendants are debt collectors within the meaning of the FDCPA. 	Lupia, 445 F.
Supp. 3d at 1280. And the Supreme Court has held that “those who engage in only
nonjudicial foreclosure proceedings are not debt collectors within the meaning of the
[FDCPA].” 	Obduskey v. McCarthy & Holthus LLP, 586 U.S. 466, 477 (2019). 	Thus,
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Defendants’ actions taken solely within the non-judicial foreclosure process do not render
them debt collectors. 	And Plaintiffs’ only other allegations supporting the debt collector
element 	is 	the 	conclusory 	statement, 	parroting 	the 	statute 	itself, 	that 	Defendants
“regularly collected or attempted to collect debts owed or alleged to be owed to another
and thus were ‘debt collectors’ within the meaning of 15 U.S.C. § 1692a(6).” 	[#1 at 15]
But such “a formulaic recitation of the elements of a cause of action will not do” to state a
claim. 	Twombly, 550 U.S. at 555. 	Accordingly, the Court respectfully RECOMMENDS
that the Motions be GRANTED to the extent they seek dismissal of Claim Nine and that
Claim Nine be DISMISSED WITH PREJUDICE. See supra Section III.C.1.c.
4. 	Anti-Peonage Act Claim
Plaintiffs’ Fourteenth Claim alleges violation of the Anti-Peonage Act, 42 U.S.C. §
1994. 	[#1 at 17] 	This claim fails for several reasons. 	First, the Complaint in no way
alleges that Defendants held Plaintiffs in a state of peonage. [See generally #1] Plaintiffs
fail to make any factual allegations that Defendants subjected Plaintiffs to legal or physical
coercion to work or that Defendants held Plaintiffs against their will to satisfy a debt. [Id.]
Second, even if Plaintiffs had made factual allegations of peonage, dismissal would still
be warranted because the Anti-Peonage Act “requires state action.” 	Lutman v. Conley,
No. 1:24-cv-02914-SDG-LTW, 2025 WL 1071687, at *4 (N.D. Ga. Jan. 21, 2025), report
and recommendation adopted, 2025 WL 831156 (N.D. Ga. Mar. 17, 2025). “No decision
has ever upheld a private right of action under the Anti-Peonage Act absent state action.
. . . 	The only appellate authority on the issue states that the Anti-Peonage Act renders
invalid only the acts, laws, resolutions, orders, regulations, or usages of the states of the
United States.” 	Id. (quoting Jane Doe I v. Reddy, No. C 02-05570 WHA, 2003 WL
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23893010 at *11 (N.D. Cal. Aug. 4, 2003) (in turn quoting Craine v. Alexander, 756 F.2d
1070, 1074 (5th Cir. 1985))). 	Here, Plaintiffs have not alleged that any “peonage” was
the result of acts, laws, resolutions, orders, regulations, or usages of any State. 	Thus,
Plaintiffs have not plausibly alleged a claim under the Anti-Peonage Act. Accordingly, the
Court respectfully RECOMMENDS that the Motions be GRANTED to the extent they seek
dismissal of Claim Fourteen and that Claim Fourteen be DISMISSED WITH PREJUDICE.
See supra Section III.C.1.c.
5. 	Unfair, Deceptive, Abusive Acts or Practices Claim
Plaintiffs’ Fifteenth Claim alleges unfair, deceptive, abusive acts or practices in
violation of 12 U.S.C. § 5536. That Section provides: “It shall be unlawful for any covered
person or service provider . . . to engage in any unfair, deceptive, or abusive act or
practice.” 	“If any person violates a Federal consumer financial law, the [Bureau of
Consumer Financial Protection] may . . . commence a civil action against such person to
impose a civil penalty or to seek al appropriate legal and equitable relief.” 	12 U.S.C. §
5564(a). But Plaintiffs are not the Bureau of Consumer Financial Protection and Plaintiffs
cannot maintain a claim under Section 5536 “because no private right of action exists.”
Michaels v. Flagstar Bank, F.S.B., No. 18-CV-076-SWS, 2018 WL 11536385, at *3 (D.
Wyo. July 11, 2018); see also Twardy v. Ocwen Fin. Corp., No. 24-1200 (SLS), 2025 WL
858145 (D.D.C. Mar. 19, 2025) (same); Hillman v. Flagstar Bank, FSB, No. 8:20-cv-
02486-PX, 2021 WL 3681155, at *5 n.4 (D. Md. Aug. 19, 2021) (same); Diaz v. Argon
Agency Inc., CIV. No. 15-00451 JMS-BMK, 2015 WL 7737317, at 3 (D. Haw. Nov. 30,
2015) (same) (collecting cases). Accordingly, the Court respectfully RECOMMENDS that
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the Motions be GRANTED to the extent they seek dismissal of Claim Fifteen and that
Claim Fifteen be DISMISSED WITH PREJUDICE. See supra Section III.C.1.c.
6. 	State Law Claims
Plaintiffs also assert seven state law causes of action: (1) fraud and constructive
fraud against the Lenders, Sayer and Siler; (2) abuse of process apparently against all
Defendants; (3) slander of title against Zillow and the Lenders; (4) negligence and gross
negligence against Zillow; (5) quiet title against all Defendants; (6) wrongful foreclosure
against the Lenders, Sayer, Siler and Public Trustee Broerman; and (7) civil conspiracy
against the Lenders, Sayer, Siler, Public Trustee Broerman, and the Doe Defendants.
[#1 at 14-19] 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 law claims be DECLINED.
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IV. 	CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that the Motion
to Dismiss Pursuant to C.R.C.P. 12(b)(5) and 12(b)(6) filed by Defendant Brian Sayer
[#26], Defendant Zillow, Inc.’s Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) [#34],
Judge McPherson’s Motion to Dismiss [#36], the Motion to Dismiss Complaint filed by
Defendant Jamie G. Siler [#40], El Paso County and Trustee Broerman’s Motion to
Dismiss Plaintiff’s Complaint [#58], and the Motion to Dismiss Complaint filed by
Defendants TH MSR Holdings LLC and RoundPoint Mortgage Servicing LLC [#60] 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.10
10 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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DATED: February 16, 2026 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
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