Viegas et al v. LoanDepot Inc. et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-02822-PAB-STV
KERI L. VIEGAS and
JAMES VIEGAS,
Plaintiffs,
v.
LOANDEPOT INC.,
THE SAYER LAW GROUP, P.C., and
ROUNDPOINT MORTGAGE SERVICING, LLC,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Defendant Roundpoint Mortgage Servicing,
LLC’s Motion to Dismiss Complaint [#8], Defendant loanDepot Inc.’s Motion to Dismiss
Pursuant to C.R.C.P.12(b)(5) and (12)(b)(6) [#18], and Defendant The Sayer Law Group,
P.C.’s Motion to Dismiss Pursuant to C.R.C.P.12(b)(5) and (12)(b)(6) [#29] (collectively,
the “Motions”). The Motions have been referred to this Court. [## 9, 20, 31] 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
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 1 of 14

2
disposition 	of 	the 	Motions. 	For 	the 	following 	reasons, 	the 	Court 	respectfully
RECOMMENDS that the Motions be GRANTED.1
I. 	BACKGROUND2
For clarity and context, the Court begins with a discussion of Plaintiffs’ previously
filed civil case and then turns to the instant action.
1 Plaintiffs have filed a notice of appeal [#34] from Chief Judge Brimmer’s Order [#26]
denying Plaintiff’s Request for Emergency Injunction to Halt Nonjudicial Foreclosure by
Affidavit of Truth and Fact [#10] which Chief Judge Brimmer construed as a motion for
preliminary injunction [#26 at 1 n.1]. As the Tenth Circuit has explained:
Although the filing of a notice of appeal ordinarily divests the district court
of jurisdiction, in an appeal from an order granting or denying a preliminary
injunction, a district court may nevertheless proceed to determine the action
on the merits. . . . 	Although a court of appeals may determine whether a
claim has been stated as part of the interlocutory appeal, a district court
nonetheless retains jurisdiction to dismiss for failure to state a claim pending
appeal. 	This 	power 	is 	desirable 	both 	in 	the 	interest 	of 	expeditious
disposition and in the face of uncertainty as to the extent to which the court
of appeals will exercise its power.
Free Speech v. Fed. Election Comm'n, 720 F.3d 788, 791 (10th Cir. 2013) (internal
citations and quotations omitted); see also Pueblo of Pojoaque v. New Mexico, 214 F.
Supp. 3d 1028, 1095 (D.N.M. 2016) (finding the district court retained jurisdiction to
resolve motions to dismiss while an interlocutory appeal order granting the plaintiffs a
preliminary injunction was pending at the Tenth Circuit), aff'd, 863 F.3d 1226 (10th Cir.
2017). 	Thus, the Court issues this Recommendation notwithstanding the notice of
appeal.
2 The facts are largely 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)). The Court also finds it appropriate to take judicial notice of docket materials and
facts from the record of Plaintiffs’ earlier-filed civil case, as they bear directly upon the
disposition of the case at hand. Brickert v. Deutsche Bank Nat’l Tr. Co., 380 F. Supp. 3d
1127, 1133 n.1 (D. Colo. 2019) (“[A] court can take judicial notice of ‘documents and
docket materials filed in other courts.’”) (quoting Stan Lee Media, Inc. v. Walt Disney Co.,
774 F.3d 1292, 1298 n.2 (10th Cir. 2014)); Hodgson v. Farmington City, 675 F. App’x
838, 841 (10th Cir. 2017) (finding the court may take judicial notice of another court’s
publicly filed records concerning “matters that bear directly upon the disposition of the
case at hand” (quotation omitted)). 	Moreover, the Complaint references the earlier civil
case. [#1 at 5]; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 2 of 14

3
A. 	The December 14, 2023 Civil Case
On December 14, 2023, Plaintiffs Keri and James Viegas filed a case against
seven 	defendants, 	including 	Roundpoint 	Mortgage 	Servicing, 	LLC, 	arising 	out 	of
foreclosure proceedings in El Paso County, Colorado (the “Foreclosure Action”), initiated
by Plaintiffs’ mortgage lender. Viegas v. Kane, No. 23-cv-03291-PAB-MDB (D. Colo.
2023) (“Viegas I”), ECF No. 1. Plaintiffs alleged that the Foreclosure Action was premised
on “unjust cause” and that the defendants colluded in effectuating the foreclosure “with a
fraudulent security instrument” thereby depriving Plaintiffs of their due process rights. Id.
at 4-5. Plaintiffs contended that the defendants violated the Fourth and Fifth Amendments
pursuant to 42 U.S.C. § 1983; 18 U.S.C. §§ 241, 242, 474, 1021, 1341; and 15 U.S.C. §
1641(g). Id.
On August 23, 2024, Magistrate Judge Maritza Dominguez Braswell issued a
recommendation to grant the defendants’ several motions to dismiss. Viegas I, ECF No.
38. 	Plaintiffs filed a timely objection on August 30, 2024. 	Viegas I, ECF No. 41. 	On
September 10, 2024, Chief Judge Philip A. Brimmer adopted the recommendation and
overruled Plaintiffs’ objections. Viegas I, ECF No. 42.
B. 	The October 11, 2024 Civil Case (the “Instant Action”)
Plaintiffs, proceeding pro se, initiated the Instant Action on October 11, 2024
against three Defendants: loanDepot Inc. (“loanDepot”), The Sayer Law Group, P.C.
(2007) (holding a court “must consider the complaint in its entirety . . . [and] documents
incorporated into the complaint by reference”). 	The Court, however, does not consider
any additional factual allegations raised by Plaintiffs in briefing. 	See In re Qwest
Commc’ns Int’l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004) (disregarding additional
factual claims asserted in briefing on a motion to dismiss, explaining that “plaintiffs may
not effectively amend their Complaint by alleging new facts in their response to a motion
to dismiss”).
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 3 of 14

4
(“Sayer Law”) and Roundpoint Mortgage Servicing, LLC (“Roundpoint”). [#1] It appears
Plaintiffs’ allegations relate to the Foreclosure Action at issue in Viegas I, although the
allegations are sparse. [See Id. at 5 (citing Viegas I)] 	Plaintiffs generally allege that:
Defendant loanDepot “created a Note without proper disclosure and did not properly
record the Note”; Defendant Sayer Law “violates Constitutional rights by threats to extort
funds 	and 	seize 	private 	land 	patented 	property 	without 	due 	process”; 	Defendant
Roundpoint “violates 4th , 5th , 7th Amendments by threats to extort funds and seize private
land patented property without due process”; and Defendant Roundpoint “continues
harassing 	Plaintiffs 	every 	month 	since 	Cease-and-Desist 	order 	was 	received 	and
answered by . . . Attorneys in [Viegas I].” 	[#1 at 4-5] 	Plaintiffs also allege that all
Defendants 	contributed 	to 	“extortion 	payments, 	fees 	applied 	to 	unenforceable
documents, and negative credit reporting.” 	[Id. at 4] 	Finally, Plaintiffs allege injuries of
“reputational harm, negative credit reporting and mental anguish . . . 	due to threats of
seizing private land.” [Id.] Plaintiffs assert several causes of action, including violations
of 18 U.S.C. § 242; 42 U.S.C. § 1988; and the Fourth, Fifth and Seventh Amendments to
the United States Constitution pursuant to 42 U.S.C. § 1983. [##1 at 3; 1-1]
On November 8, 2024, Defendant Roundpoint filed its Motion to Dismiss. [#8] On
November 27, 2024, Defendant loanDepot filed its Motion to Dismiss. [#18] 	On
December 20, 2024, Defendant Sayer Law filed its Motion to Dismiss. [#29] Through the
Motions, Defendants seek dismissal of all of Plaintiffs’ claims with prejudice. 	[See
generally ##8, 18, 29] 	Plaintiffs have responded to the Motions. [##15, 25, 36]
Defendants Roundpoint and loanDepot have replied. 	[##21, 32] 	Defendant Sayer Law
did not file a reply.
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 4 of 14

5
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
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).
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 5 of 14

6
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
In construing the Complaint liberally, it appears Plaintiffs allege that Defendants
violated: 18 U.S.C. § 242; 42 U.S.C. § 1988; and the Fourth, Fifth and Seventh
Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983 (“Section
1983”).3 [## 1 at 3; 1-1] Defendants argue that: (1) Plaintiffs’ claims against Defendants
Roundpoint and Sayer Law are barred by res judicata [##8 at 10-13; 29 at 2], (2) Plaintiffs
have otherwise failed to state a claim [##8 at 6-10; 18 at 5-8; 29 at 3-6], and (3) Plaintiffs
failed to properly serve loanDepot [#18 at 4-5]. First, the Court will address Defendants’
3 The Complaint appears to allege a separate cause of action for violations of Section
1983. [#1 at 3] But, “Section 1983 is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver,
510 U.S. 266, 271 (1994) (quotation omitted). Therefore, the Court construes Plaintiffs’
claims for violation of rights under the Constitution as civil rights claims brought under
Section 1983.
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 6 of 14

7
claim preclusion argument, second it will address the merits of each claim,4 and finally
the Court will address Defendants’ request for attorneys’ fees and costs.
A. 	Res Judicata
Res judicata or claim preclusion “prevent[s] a party from litigating a legal claim that
was or could have been the subject of a previously issued final judgment.” 	Lenox
MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017)
(quotation omitted). 	Claim preclusion bars later litigation if: (1) a final judgment was
entered on the merits in the earlier action; (2) the parties in both suits are the same; and
(3) the causes of action in both suits are identical. See, e.g., id. “In addition, even if these
three elements are satisfied, there is an exception to the application of claim preclusion
where the party resisting it did not have a full and fair opportunity to litigate the claim in
the prior action.” Id. (quotation omitted).
Based on the scant allegations in the Complaint, the Court cannot conclude that
the causes of action in Viegas I and the Instant Action are identical. As discussed in more
detail below, in Section III.D, it is entirely unclear what transpired between the parties in
this case and whether Plaintiffs could have raised these claims in Viegas I. 	Indeed,
Plaintiffs argue the Instant Action relates to events which occurred in 2024 [#15 at 2] and,
if so, the claims could not have been raised in the 2023 civil case. Accordingly, the Court
respectfully RECOMMENDS that the Motions be DENIED to the extent that they rely upon
claim preclusion.
4 Because the Court concludes that Plaintiffs have failed to plausibly state any causes of
action, the Court does not address loanDepot’s alternative service argument.
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 7 of 14

8
B. 	18 U.S.C. § 242
Plaintiffs plead a cause of action under 18 U.S.C. § 242. [#1-1] But 18 U.S.C. §
242 is a criminal statute and cannot be enforced in a private civil action. Houck v. Gurich,
515 F. App'x 724, 724 (10th Cir. 2013). “Additionally, 42 U.S.C. § 1983 impliedly
forecloses civil relief pursuant to [18 U.S.C.] § 242 by providing a private right of action
for similar misconduct.” 	Zamarron v. Madrid, Civ. No. 21-919 RB/GJF, 2024 WL
4389770, at *3 (D.N.M. Oct. 3, 2024), report and recommendation adopted, 2024 WL
4635226 	(D.N.M. 	Oct. 	31, 	2024). 	For 	these 	reasons, 	the 	Court 	respectfully
RECOMMENDS that Plaintiffs’ claim against Defendants for violations of 18 U.S.C. § 242
be DISMISSED WITH PREJUDICE.5
C. 	42 U.S.C. § 1988
Plaintiffs argue Defendants violated 42 U.S.C. § 1988. 	[#1-1] 	Section 1988,
however, does not create an independent cause of action, as 42 U.S.C. § 1988 “simply
‘defines procedures under which remedies may be sought in civil rights actions.’”
Schroder v. Volcker, 864 F.2d 97, 99 (10th Cir. 1988) (finding the district court properly
dismissed the plaintiffs’ 42 U.S.C. § 1988 claim) (quoting Brown v. Reardon, 770 F.2d
896, 907 (10th Cir. 1985)). Accordingly, the Court respectfully RECOMMENDS that
5 Dismissal with prejudice is proper under these circumstances, as further amendment to
the Complaint would be futile. 	See Zamarron, 2024 WL 4389770, at *3 (dismissing 18
U.S.C. § 242 claim with prejudice).
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 8 of 14

9
Plaintiffs’ claim against Defendants for violations of 42 U.S.C. § 1988 be DISMISSED
WITH PREJUDICE.6
D. 	Fourth, Fifth, and Seventh Amendments
Plaintiffs 	allege 	that 	Defendants 	violated: 	the 	Fourth, 	Fifth, 	and 	Seventh
Amendments pursuant to Section 1983. [#1 at 4] To allege a claim against an individual
under Section 1983, a plaintiff must allege “that [the] person has deprived him of a
federally protected right and [ ] the person who has deprived him of that right acted under
the color of state law.” 	Houston v. Reich, 932 F.2d 883, 890 (10th Cir. 1991). 	When
suing an individual under Section 1983 in their individual or personal capacity, “the
complaint [must] make clear exactly who is alleged to have done what to whom . . . as
distinguished from collective allegations.” Brown v. Montoya, 662 F.3d 1152, 1165 (10th
Cir. 2011) (quoting Kansas Penn Gaming, L.L.C. v. Collins, 656 F.3d 1210, 1215 (10th
Cir. 2011)).
Upon review of the Complaint, the Court finds there are no facts supportive of a
constitutional violation by Defendants. Plaintiff merely alleges: Defendant loanDepot
“created a Note without proper disclosure and did not properly record the Note”;
Defendant Sayer Law “violates Constitutional rights by threats to extort funds and seize
private land patented property without due process”; and Defendant Roundpoint “violates
4th, 5th, 7th Amendments by threats to extort funds and seize private land patented
property without due process.” [#1 at 4-5] Plaintiffs do not allege any specific dates, nor
6 Dismissal with prejudice is proper, as further amendment to the Complaint would be
futile. See Desai v. Garfield Cnty. Gov't, No. 2:17-cv-00024-JNP-EJF, 2018 WL 1627205,
at *10 (D. Utah Feb. 16, 2018) (recommending dismissal of Section 1988 claim with
prejudice), report and recommendation adopted, 2018 WL 1626521 (D. Utah Mar. 30,
2018).
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 9 of 14

10
do they specify what actions each Defendant took, how they were involved in seizing the
private property, how they were denied due process, how they were involved in extortion
or why an improperly recorded Note is relevant to the constitutional claims. And the Court
is not required to accept conclusory, unsupported allegations. Twombly, 550 U.S. at 555;
[see also #1 at 4 (“Plaintiffs assert [various injuries] due to threats of seizing private land
patented property after cease and desist orders were sent on or about February 2024
and 	ongoing 	current 	Federal 	Lawsuit 	thus 	violating 	4th , 	5th , 	and 	7th 	Amendment
Constitutional rights.”)] 	Furthermore, while courts construe pro se pleadings liberally,
courts “will not supply additional factual allegations to round out a plaintiff's complaint.”
Whitney v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997); see also Truby v.
Denham, No. 1:16-cv-02764-CMA-CBS, 2017 WL 8942573, at *2 (D. Colo. Oct. 16, 2017)
(“A plaintiff may not defeat a motion to dismiss by alluding to facts that have not been
alleged, 	or 	by 	suggesting 	violations 	that 	have 	not 	been 	plead,”), 	report 	and
recommendation adopted, 2017 WL 5898598 (D. Colo. Nov. 30, 2017). 	Plaintiffs’
conclusory allegations that their constitutional rights were violated are insufficient to
establish a plausible claim that Defendants are liable under Section 1983.
Not only does the Complaint not allege how Defendants violated Plaintiffs’
constitutional rights, it also does not allege how Defendants’ actions could be attributable
to the state. 	[See #8 at 9-10 (arguing Plaintiffs fail to plead the state action required for
a Section 1983 claim)] 	“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.
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 10 of 14

11
Kansas Dep’t of Child. & Fams., 851 F. App’x 110, 117 (10th Cir. 2021) (quotations
omitted).
To support the assertion that private entities operate 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
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 fail to offer any supporting allegations or details tending to suggest “state
officials and [Defendants] have acted in concert in effecting a particular deprivation of
constitutional rights.” Wittner v. Banner Health, 720 F.3d 770, 777 (10th Cir. 2013)
(quoting Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir. 1995));
see also Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (“[W]hen a plaintiff
attempts to assert the state action required for a [Section] 1983 claim against private
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 11 of 14

12
actors based on a conspiracy with government actors, mere conclusory allegations with
no supporting factual averments are insufficient. Rather, the plaintiff must specifically
plead facts tending to show agreement and concerted action.” (internal citations and
quotations omitted)). Accordingly, even construed in the light most favorable to Plaintiffs,
the Complaint fails to plausibly allege Defendants were acting under the color of state
law.
Accordingly, the Court respectfully RECOMMENDS that Plaintiffs’ claim against
Defendants for violations of their Fourth, Fifth, and Seventh Amendment rights, pursuant
to Section 1983, be DISMISSED WITH PREJUDICE. “Though the Court would ordinarily
recommend the dismissal of certain of these claims without prejudice,[7] Plaintiffs have
caused Defendants and the court significant time and resources on what appear to be
entirely meritless claims.” Viegas I, 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))).
E. 	Attorneys’ Fees and Costs
Defendants Roundpoint and Sayer Law argue that they are entitled to recover their
reasonable attorneys’ fees and costs, as the Complaint “lacks substantial justification and
7 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”).
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 12 of 14

13
is frivolous and groundless.” [##8 at 13; 29 at 6] In support of its argument, Defendants
point to the fee-shifting provisions in the Deed of Trust and Colorado law. [Id.]
D.C.COLO.LCivR 54.3 requires a party seeking attorneys’ fees to file “a motion for
attorney fees” that is “supported by affidavit.” 	Moreover, the motion should include “a
summary of relevant qualifications and experience” and “a detailed description of the
services rendered, the amount of time spent, the hourly rate charged, and the total
amount claimed.” 	D.C.COLO.LCivR 54.3. 	Defendants’ request fails to satisfy the
requirements of the local rule. 	As Judge Dominguez Braswell previously explained to
Defendant Roundpoint:
First, the fee request was not filed as a separate motion, but as a section
within the [ ] Defendants’ Motion[s] to Dismiss. Second, and assuming the
[ ] Defendants’ request can be construed as a motion, it fails to provide the
requisite ‘summary of relevant qualifications and experience’ and ‘a detailed
description of the services rendered, the amount of time spent, the hourly
rate charged, and the total amount claimed.’ Third, the [ ] Defendants have
not filed an affidavit supporting the request.
Viegas I, ECF No. 38 at 15-16. 	Accordingly, the Court RECOMMENDS denying the
request for attorneys’ fees by Defendants Roundpoint and Sayer Law WITHOUT
PREJUDICE.
IV. 	CONCLUSION
For 	the 	foregoing 	reasons, 	this 	Court 	respectfully 	RECOMMENDS 	that
Defendants’ Motions [## 8, 18, 29] be GRANTED and that the claims be DISMISSED
WITH PREJUDICE. 	The Court further RECOMMENDS that the request for attorneys’
fees by Defendants Roundpoint and Sayer Law’s be denied WITHOUT PREJUDICE.8
8 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
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 13 of 14

14
DATED: April 11, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
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).
Case No. 1:24-cv-02822-PAB-STV Document 41 filed 04/11/25 USDC Colorado
pg 14 of 14