Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—10th Cir.: Consumers unintentionally waived appeal against Bank of America, (Jul 28, 2014)

By Greg Hammond, J.D.

Two pro se homeowners unintentionally waived their right to appeal claims that Bank of America violated the Colorado Consumer Protection Act (CCPA) and the FTC Act by misleading them into believing it was reviewing their mortgage for modification, when it actually was selling the home in foreclosure. In affirming the lower court’s order of dismissal, the U.S. Court of Appeals in Denver found that (1) the homeowners were clearly informed of the time limit to object to the magistrate judge’s recommendation to dismiss, and (2) they failed to raise any interest-of-justice argument with the district court (Olds v. Bank of America, N.A., July 25, 2014, Hartz, H.).

Background. Robert and Bonnie Olds filed suit against Bank of America, N.A., alleging that the bank led them to believe that their mortgage was being reviewed for modification, when it simultaneously sold the home in foreclosure. The Olds brought claims—in part—under section 5 of the FTC Act, as well as under the CCPA. However, the magistrate judge recommended dismissal, after concluding that there is no private right of action under the FTC Act and that the CCPA claim was unintelligible. Because the homeowners failed to object to the magistrate judge’s recommendation within 14 days of service, the district court adopted the recommendation, and the case was dismissed. The homeowners appealed the dismissal.

Waiver of appeal. According to the court, a party “waives appellate review of both factual and legal questions” when the “party fails to object to the findings and recommendations of the magistrate [judge].” However, waiver is excused if (1) a pro se party is not informed of the time period for objecting and the consequences of failing to object, and (2) the interests of justice require appellate review.

In support of their appeal, the homeowners argued that (1) they did not know that objecting was their last chance to appeal, and (2) health conditions prevented them from responding to the magistrate judge’s recommendations. The court disagreed with their arguments, finding that the magistrate judge’s recommendation “clearly informed” them that they had 14 days to object and that failure to object would result in appellate waiver. Because the pair of homeowners failed to raise their poor health argument before the circuit court, the appellate court could not grant relief pursuant to the interests-of-justice exception.

The case number is 13-1395.

Attorneys: Robert and Bonnie Olds, pro se. Justin D. Balser (Akerman LLP) for Bank of America, NA.

Companies: Bank of America, NA

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