IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 2012-cv-01246PLAINTIFF,
VERA MAE RIVERS
vs.
DEFENDANTS:
U.S. BANK, N.A., AS TRUSTEE FOR THE HOLDERS
OF THE MERRILL LYNCH/ FIRST FRANKLIN
MORTGAGE LOAN TRUST, MORTGAGE LOAN
ASSET-BACKED CERTIFICATES, SERIES 2006 FF1;
SELECT PORTFOLIO SERVICING INC;
BANK OF AMERICA N.A. And JOHN DOES 1-10
_____________________________/
PLAINTIFFS OBJECTION TO UNITED STATES MAGISTATES REPORT AND
RECOMMENDATION THAT DEFENDANTS MOTION TO DISMISS BE GRANTED
COMES NOW Plaintiff, Vera Mae Rivers, and objects to the United States Magistrates
Recommendation that Defendants Motion to Dismiss be granted and in support thereof states as follows:

INTRODUCTION
1. On September 3rd, 2014, Plaintiff filed her complaint for Quiet Title.
2. On September 12, 2014, Defendants filed a Motion to Dismiss Plaintiffs complaint.
3. On the 28th day of October, 2014, United States Magistrate Michael Fox filed his Report and
Recommendation.
4. Plaintiff respectfully objects to the Magistrate Judges recommendation that Plaintiffs case
be dismissed because it involves ongoing proceedings in state court concerning matters that
involve important state interests.

5. Plaintiff states that the state court determinations are currently on appeal. The only matter
pending is a county court action for unlawful detainer which under Rule 42 Plaintiff has
requested be removed from county court and joined with her Quiet Title complaint.
6. The unlawful detainer forum is inadequate to protect Plaintiffs rights since it could not
determine Title to property. In the U.S. Supreme Court Cone Mem. Hosp. v. Mercury
Constr. Corp., 460 U.S. 1 (1983) the court held:
[F]inally, an important reason against allowing a stay is the probable inadequacy of the state
suit to protect respondent's rights, since it is doubtful that respondent could obtain from the
state court an order compelling petitioner to arbitrate. Pp. 460 U. S. 26-27.
7. In this case, an important reason is to allow consolidation under Rule 42 where there are
common question of law and fact determinative of the issue of possession.
8. As there are no issues pending in State court, a determination in this court with regard to the
title to Plaintiffs property is appropriate. The same issue will not be litigated or piecemeal
litigated. In the matter before this court Plaintiff is seeking to determine which party has
right, title and interest in the property.
9.

A trial in this court will protect Plaintiffs Constitutional right to due process which was
denied in the state court despite evidence of forgery and counterfeiting which was never
adjudicated in any court.

10. Plaintiff argues that the Court erred in applying the Colorado River abstention doctrine.
The Colorado River abstention doctrine allows Federal Courts to refuse to abstain in cases
involving exceptional circumstances and the U.S. Supreme Court reinforced this in
Sprint Communications, Inc. v. Jacobs, #12-815 (January 4th, 2013) in a strongly worded
decision, reined in the Younger Abstention. The Supreme Court explained that federal
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courts have a virtually unflagging obligation to hear cases within their jurisdiction. The
unanimous ruling emphasizes that abstention pursuant to Younger v. Harris is not
appropriate merely because a state court is considering a case involving the same subject
matter. In this instance there is no ongoing state court considering a Quiet Title Action and
a Forcible Entry and Detainer action is an inadequate forum to decide a Quiet Title Action
since title issues are beyond the jurisdiction of the County court.
11. Furthermore, in considering Sprints argument, the Supreme Court emphasized that federal
courts may abstain from hearing a matter in only three categories of cases. Abstention is
appropriate in cases involving state criminal proceedings, civil enforcement proceedings,
and civil proceedings involving certain orders that are uniquely in furtherance of the state
courts ability to perform their judicial functions.
The Supreme Court concluded that none of the exceptions applied to Sprints case. The
Supreme Court stated that the proceedings were not criminal and did not impact the ability
of the Iowa state courts ability to perform its functions. Thus, the lower courts erred in
applying Younger to this matter.
12. In this instance, the United States Magistrate Judge in his recommendation states that this
court recently addressed the Colorado River Doctrine in a factually similar case, citing
MacIntyre v. JP Morgan Chase Bank, 12-cv-2586-WJM-MEH. However, this case is
distinguishable, and not situated on the same circumstances or even similar circumstances,
because the State Court did not adjudicate Plaintiffs arguments and because there is no
current state court that can adjudicate the Quiet Title Action.

13. In MacIntyre, this court concluded that, [T]he key question for the purposes of
determining the stage of litigation is whether a ruling has been issued on the merits, not
whether the parties have filed briefs arguing merits issues. See Crown Point I, LLC v.
Intermountain Rural Elec.Assn, 319 F.3d 1211, 1215 (10th Cir. 2003) (citing Doran, 422
U.S. at 929).
14. This court then concluded that, due to the early stage of the instant case, the Foreclosure
Proceeding is ongoing for the purposes of Younger.
15. The state judicial foreclosure (13cv825) was dismissed for lack of subject-matter
jurisdiction to determine the merits of the case, concluding as did this court in 12cv02716
that Ms. Joan Riverss failure to list her causes of action in the bankruptcy divested her as
the Real Party in Interest for the purpose of seeking damages.
16. In the state case 13cv825 in the Order of Dismissal of Plaintiffs counter-claims dated
January 14th, 2014(Exhibit 1, p.7) Judge Pratt said:
The Court directs the parties to, and adopts the reasoning on this subject set forth in
the October 3, 2013 Order of the United States District Court of Colorado wherein
the Court held with regard to the monetary damages being sought here,
In sum, because Joan Riverss claims for monetary damages were not disclosed
during her bankruptcy proceeding, those claims are property of the bankruptcy estate.
Therefore, the bankruptcy trustee is the real party in interest with respect to those
claims, and Plaintiff lacks standing to bring them.
Accordingly, Defendants' Motions are granted to the extent they seek dismissal of
Plaintiff's claims for damages and Plaintiff lacks standing to bring them
The United States District Court correctly found that it did not have subject matter
jurisdiction over the monetary claims because the claims, if they existed, did not
belong to a party who was before the Court. The same applies to the Court.
Thus, until the party which owns the right to any such monetary claims is before
either the United States District Court, or this Court, neither has jurisdiction to
resolve with regard to such claims.
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17. In the state case there is an appeal to the Colorado Appellate Court.(14COA464) which, as

an appellate court, is not a trial court with jurisdiction to determine a Quiet Title Action.
18. Therefore, the only court left standing in the only adequate forum to determine the Quiet

Title Action is this court in diversity. Civil Action No. 2014-cv-02453-WJM-MEH

19. In this courts Order of Dismissal in case # 12cv02716 dated October 2nd, 2013, ECF 200
pgs 6, 7) this court said:
Plaintiffs Amended Complaint requests damages, injunctive relief, and fees and
costs. (ECF No. 45 at 18.) The Motions filed by the Castle Defendants and U.S. Bank
both contend that Plaintiff has no standing to request monetary damages because,
after Plaintiffs bankruptcy, she is no longer the real party in interest with respect to
her damage claims, which are instead owned by the bankruptcy trustee. (ECF No.
51 at 4; ECF No. 69 at 6-10.)
20. In magistrates Foxs Report and Recommendation in case # 12cv02716, ECF 35, at pgs 16
and 17, magistrate Fox said:
However, because requests for injunctive relief typically add nothing of value to a
bankruptcy estate, a plaintiff ordinarily will remain the real party in interest with
respect to claims for injunctive relief. See Barger; 348 F.3d at 1297; see also Burnes
v. Pemco Aeroplex, Inc., 291F.3d 1282, 1289 (11th Cir. 2002) ([t]he trustee and
creditors are interested [only] in the debtors property that can add anything of value
to the estate.).
21. In this quiet title action, plaintiff is not asking for monetary damages which would be
considered property of the bankruptcy estate, and therefore Ms. Joan Rivers again has
standing as the Real Party in Interest. (See p. 5, 15 of plaintiffs Verified Quiet Title
Complaint)
22. In TERRY A. STOUT vs GYRODATA, INC., a Texas corporation, Defendant - Appellee.
No. 13-1393 (D.C. No. 1:12-CV-00972-RM-KMT) (D. Colo.) p. 3 ([T]he task of a federal

court sitting in diversity is not to reach our own judgment regarding the substance of the
common law, but simply to ascertain and apply the state law.
23. Colorado provides a unique exception to the Younger and Colorado River Abstention in
this case. Town of Minturn, Colo. v. Sensible Housing Co., Inc. 2012 CO 23(April 9,
2012) at pgs 10 and 11 said:
C. The Priority Rule
18 Courts, in general, have the power to stay proceedings before them. Landis v. N. Amer.
Co., 299 U.S. 248, 254-55 (1936). The power to stay proceedings is incidental to the power
inherent in every court to control the disposition of causes on its docket with economy of
time and effort for itself, for counsel, and for litigants. Id.; see generally In re Application
for Water Rights of U.S., 101 P.3d 1072 (Colo. 2004) (holding that the water court acted
within its discretion in granting a stay of proceedings until the resolution of related federal
litigation, due to considerations of comity as well as the relief available to the parties).
19 Where two courts may exercise jurisdiction over the same parties and subject matter, we
have stated that the first action filed has priority of jurisdiction, and that the second action
must be stayed until the first is finally determined (priority rule). Wiltgen v. Berg, 164
Colo. 139, 145-46, 435 P.2d 378, 381 (1967); Martin v. Dist. Court, 150 Colo. at 579, 375
P.2d at 106. The purpose of the priority rule is to promote judicial efficiency and avoid
unnecessary duplication and multiplicity of suits. Pub. Serv. Co. of Colo. v. Miller, 135
Colo. 575, 577, 313 P.2d 998, 999 (1957). Other considerations that may serve the trial
court in the exercise of its discretion in granting or denying a stay include expense and
convenience, availability of witnesses, the stage to which proceedings in the first action
have already progressed, and the possibility of prejudice resulting from the stay. Nationwide
Mut. Ins. Co. v. Mayer, 833 P.2d 60, 62 (Colo. App. 1992); see also Universal Gypsum of
Ga., Inc. v. Am. Cyanamid Co., 390 F. Supp. 824, 827 (S.D.N.Y. 1975).[B, U]
24. In HAAK MOTORS LLC, et a vs Robert L. Arangio, Sr the court said:
Abstention doctrines constitute extraordinary and narrow exceptions to a federal
courts duty to exercise the jurisdiction conferred on it. Martin v. Stewart, 499 F.3d
360, 363 (4th Cir. 2007) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728
(1996)) (internal quotation marks omitted). Abstention is not a license for free-form ad
hoc judicial balancing of the totality of state and federal interests in a case. Id. at 364.
Rather, the Courts must consider whether a specific abstention doctrine applies. Id. This
case does not involve the proceedings or orders of a Maryland administrative agency.
The Plaintiffs allege common law tort and contract claims that will require the
application of well-settled law.
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The Plaintiffs also contend that this case is parallel to the case filed in Queen Annes
County and involves the same parties and issues. Colorado River abstention is only
appropriate when a federal case duplicates contemporaneous state proceedings.
Barker 297 F.3d at 340. (emphasis added). When the Defendants removed to this Court,
the state proceeding ended;
25. The federal Quiet Title action (14CV02453) is not duplicating the Forcible Entry and
Detainer action (14C47200), and therefore not a contemporaneous state subject to the
application of the Colorado River Abstention. Vulcan Chemical Technologies
Incorporated v. J Barker 297 F.3d at 340.
26. Plaintiffs claim before this Court is not an identical issue already litigated in the earlier case
and it was not fully litigated at that time. The issues of fraud, forgery, conspiracy and
counterfeiting, were not litigated or adjudicated in the State Court.
27. Plaintiff argues that in assessing the applicability of the Younger Abstention Doctrine in a
particular case, Younger implied that a federal court may act to enjoin a state court
proceeding when certain extraordinary circumstances exist that involve traditional
considerations of equity jurisprudence. Although these exceptions are implicit in Younger,
many scholars argue that these exceptions are virtually nonexistent in their application.
These three principal exceptions include bad faith and harassment, patently unconstitutional
statutes, and the lack of an adequate state forum.
28. In Plaintiffs Verified Quiet Title Complaint, Plaintiff detailed the bad faith on the part of
Judge Pratt in s 28, 36, 56, and 57.
29. Plaintiff has met the obligation of extraordinary circumstances and lack of an adequate state
forum as required in Colorado River Doctrine and Younger Abstention Doctrine which
trumps the Courts requirement to abstain.
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30. In plaintiffs complaint,

31. In Chapman v. Deutsche Bank Nat. Trust Co. No. 10-15215. 651 F.3d 1039 (2011), the
federal District Court properly concluded that the Quiet Title Action satisfied the diversity
jurisdiction requirements of 28 U.S.C. 1332(a)(1), and the removal requirements of 28
U.S.C. 1441(a) and 1446(a)-(b). The court held that,
[I]t was undisputed that the parties are of diverse citizenship, and, contrary to the
Chapmans' contention during oral argument, the District Court properly held that this
action satisfies the $75,000 amount-in-controversy requirement. "`In actions seeking
declaratory or injunctive relief, it is well established that the amount in controversy is
measured by the value of the object of the litigation.'", 840 (9th Cir.2002) (per curiam)
(quoting, 347, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Here, the object in litigation is the
Property, which was assessed at a value of more than $200,000, and therefore satisfies
the amount-in-controversy requirement. , 1076 (9th Cir.1973) (treating entire value of
real property as amount in controversy in action to enjoin foreclosure sale); 93 F. 1, 4
(9th Cir.1899) ("In a suit to quiet title, or to remove a cloud there from, it is not the value
of the defendant's claim which is the amount in controversy, but it is the whole of the real
estate to which the claim extends.").
Faced with a similar pairing of cases one action involving a dispute over possession
of a property (as with the Unlawful Detainer Action), and a separate action involving a
dispute over ownership of that property (as with the Quiet Title Action) a number of
circuit courts (including our own) have invoked the prior exclusive jurisdiction doctrine
to dismiss, remand, or enjoin the second-filed action. , 729 (5th Cir.1959) (holding that
state unlawful detainer action should be enjoined during pendency of prior-filed federal
action for declaratory relief regarding ownership of lease interest); 235 F. 69, 73 (9th
Cir.1916) (holding that federal action regarding possession of property should be stayed
pending prior-filed state action regarding ownership); 166 F. 706, 711-12 (Fuller, Circuit
Justice, 4th Cir.1909) (holding that federal quiet title action must be dismissed because
prior-filed ejectment action was pending in state court); 24 F. 69, 70-71 (Miller, Circuit
Justice, C.C.D. Kan. 1885) (same).
32. In Commerces complaint, Exhibit A, Sheriffs Certificate of Purchase reveals that
Commerce as Trustee for the Trust purchased the property for $710,250.56 cents. (See
Exhibit 2, Commerces Verified Unlawful Detainer Compl. Exhibit A) And the Order of
Summary Judgment state that the note was $190, 146.55, thus satisfying the jurisdictional
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amount for diversity. (See Exhibit 2, Commerces Unlawful Detainer Compl. with exhibit
A, p.5)
33. Plaintiff seeks a declaration that she has the only declarable interest in the subject property
commonly known as 1499 South Jasper St., Aurora Colorado 80017. The party or parties
claiming an interest have done so by fraudulent means to strip plaintiff of her home and
equity with a sham assignment, a forged promissory note, a forged deed of trust, and a
fraudulent Cure Statement.
34. The Defendants lacked the legally required documentation to conduct a judicial foreclosure
action but were allowed to proceed, despite this fact, which resulted in a direct violation of
Plaintiffs right to due process. The state court stripped Plaintiff of her right to an adequate
state forum and right to due process. It is apparent that the state court provides an
inadequate forum.
35. This action for Quiet Title is brought on the constitutional authority in cases of original
diversity jurisdiction and is not barred by the Younger Abstention, or the Colorado River
Abstention. The State case (13cv825) was dismissed for lack of subject-matter jurisdiction
in causes of action for damages, leaving Plaintiff free to seek the original jurisdiction of the
federal court in diversity, seeking no damages in the Quiet Title Action. Thus, it is not a
collateral attack, and neither the Younger Abstention, nor the Colorado River Abstention
is applicable there being no active state cases other than an inadequate unlawful detainer
action which cannot include a Quiet Title Action.
36. In this case there is complete diversity.

37. Plaintiff further argues that the Quiet Title Action is governed by Colorado Law ([T]he
task of a federal court sitting in diversity is not to reach our own judgment regarding the .,
but simply to ascertain and apply the state law. TERRY A. STOUT v.GYRODATA, INC.,
D.C. No. 1:12-CV-00972-KMT, D. Colo.)
38. This court in the May 6th, 2013 hearing in 12-cv-02716 p.42, lns 13-16 said:
However, if your clients are not the actual holders in due course of the note and
deed of trust, then she's the victim, because she loses her property to folks who
can't prove 1they actually own the deed of trust or promissory note.[B, U]
Commerce as Trust of the Trust will not be able to show that they are holders in
due course.
39. In Deutsche Bank Trust Company Americas vs Samora 2013 COA 81(Colorado, 2013),
Deutsche Bank sought to quiet title under C.R.C.P. 105 in which default judgment was
entered, which Samora appealed and a division of the appellate court reversed. The Court in
Samora said:
24 In order to defeat Saxon Mortgages motion to dismiss, Samora must show that
her factual allegations, as a matter of law, support a claim for relief. Bly, 241 P.3d at
533.
47 Because the warranty deed is not void, in order for Samora to defeat Deutsche
Banks claim to quiet title in the Trust, she must show that Deutsche Bank as trustee is
not advancing a claim by the Trust as a holder in due course of the Note and Deed of
Trust.3
[H]older in due course means the holder of an instrument if:
(1) The instrument when issued or negotiated to the holder does not bear such apparent
evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call
into question its authenticity; and
(2) The holder took the instrument (i) for value,
(ii) in good faith, (iii) without notice that the instrument is overdue or has been
dishonored or that there is an uncured default with respect to payment of another
10

instrument issued as part of the same series, (iv) without notice that the instrument
contains an unauthorized signature or has been altered, (v) without notice that any claim
to the instrument described in section 4-3-306, and
(vi) without notice that any party has a defense
or claim in recoupment described in section 4-3-305(a).
3 Here, the trustee is acting for the Trust and advancing a claim on behalf of the Trust.
Accordingly, the Trust must satisfy holder in due course status. The parties stipulated
that the Trust took the Note and Deed of Trust without actual knowledge of any
wrongdoing or fraud. The record indicates that the Trust gave value for the Note and
Deed of Trust.
40. At best, Commerce as Trustee of the above Trust could only show that it is a holder of the
note-- providing that the note is not a counterfeit.
41. Following the logic of Samora, if Deutsche Bank and the Trust could not prevail in a Quiet
Title Action because neither was a holder in due course then it follows that they would not
be able to foreclose on Samora, nor would they be able to evict.
42. Neither Commerce nor the Trust could ever claim that they were holders in due course
because neither paid value for the property.
30. Commerce will not be able to claim that they are holders in due course.
31. This court said in the May 6th 2013 hearing (12cv02716) ECF 117, RT p 41, lns 13-16)
However, if your clients [COMMERCE and the TRUST]are not the actual holders in
due course of the note and deed of trust, then she's the 1 victim, because she loses her
property to folks who can't prove 1they actually own the deed of trust or promissory
note.[B, U]
32. Ms. Joan Rivers is the victim, and she asking this court for the opportunity to prove it, and is
not asking for damages in this quiet title action.
33. In Commerces response to Plaintiffs motion for clarification of the removal notice,
Attorney Sean Hanlon characterizes Plaintiff Joan Rivers as a vexatious litigant. Plaintiff
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Joan Rivers is merely defending her rights. In the same response attorney Hanlon argues
that Ms Joan Rivers is a citizen of Colorado and the Unlawful Detainer action is in Colorado
and therefore she is precluded from removing the case to federal court. Defendants can
remove an action under Diversity jurisdiction. Commerce is a citizen of Minneapolis.
Plaintiff Joan Rivers is a citizen of Colorado where the value of the property is in excess of
$75,000 dollars.
CONSOLIDATION UNDER RULE 42 IS PROPER
AND PROVIDES JUDICIAL ECONOMY
34. A District court has supplemental jurisdiction over all claims that form part of the same
case or controversy as the claim over which the court has original jurisdiction. 28 U.S.C.
1367(a). The Supreme Court has provided further guidance, holding that a federal court has
jurisdiction over an entire action, including state-law claims, whenever the federal-law
claims and state-law claims in the case derive from a common nucleus of operative facts
and are such that would ordinarily be expected to try them all in one judicial proceeding.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349 (1988)
Cohill Principles: Economy, Convenience, Fairness, and Comity
Consideration of the principles of economy, convenience, fairness, and comity further
supports the Courts decision to retain jurisdiction over the entire action. The factors of
economy and convenience weigh heavily in favor of exercising supplemental jurisdiction
over the entire action. If the Court chose to remand Plaintiffs state-law claims, it would
splinter the litigation into two separate forums. Requiring the parties to manage two
different lawsuits in two different forums would force both sides to expend significantly
more time, money, and effort than by having the parties litigate the entire action before
this Court. Thus, exercising supplemental jurisdiction over all of Plaintiffs state-law
claims would be significantly more economical and convenient for both parties.
Likewise, the principles of fairness and comity favor the exercise of supplemental
jurisdiction. Plaintiff asserted, inadvertently or not, a federal claim against Defendant
and, as a result, Defendant had the statutory right to remove the case to federal court. It
would be unfair for the Court to subvert Defendants statutory right by forcing it to fight
12

two separate legal battles in two different forums without a compelling justification.
While Plaintiff would prefer to argue his case in state court, the holding is nonetheless
fair to him as well because he will still have the opportunity to fully and fairly argue his
case, albeit in a federal forum.
35. WHEREFORE Plaintiff requests that the Recommendations of the Magistrate Judge be
denied in its entirety.
Respectfully submitted this _____ day of November, 2014

____________________
VERA MAE JOAN RIVERS

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