UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

VIVIAN L. RADER; 

STEVEN R. RADER, 

 Plaintiffs - Appellants, 

v. 

CITIBANK, N.A., as Successor Trustee to 

U.S. Bank National Association as 

Successor to Wachovia Bank National 

Association as Trustee for the 

Certificateholder of Mastr Alternative Loan 

Trust 2004-1 Mortgage Pass through 

Certificates Series 2004-1; MORTGAGE 

REGISTRATION SYSTEMS, INC.; UBS 

WARBURG REAL ESTATE 

SECURITIES, INC.; OCWEN LOAN 

SERVICING LLC, and Does 1-10, 

 Defendants - Appellees. 

No. 14-1472 

(D.C. No. 1:14-CV-00784-CMA-BNB) 

(D. Colo.) 

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ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. 

_________________________________ 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

October 13, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Vivian L. Rader and Steven R. Rader (Raders) appeal from the district court’s 

judgment dismissing their claims against the defendants with prejudice. In their 

amended complaint (the Complaint) the Raders sought declaratory and injunctive 

relief to prevent the defendants from foreclosing on a mortgage securing Mr. Rader’s 

promissory note, and a decree quieting title and extinguishing all the defendants’ 

claims to the mortgaged property. The district court considered the exhibits offered 

by the defendants in support of their motion to dismiss. It then determined that 

Citibank was the possessor and holder of the promissory note, which had been 

endorsed in blank, and that (contrary to the Raders’ primary argument) it was legally 

irrelevant how it became the holder. Hence, Citibank had standing to enforce the 

note and pursue foreclosure proceedings. The court concluded that the Raders’ 

claims failed as a matter of law and that it would be futile to grant them leave to 

amend the Complaint. We affirm. 

 The Raders’ challenges to the district court’s reasoning are unpersuasive. 

They complain that the district court should not have considered the defendants’ 

exhibits on a motion to dismiss, and that consideration of the exhibits converted the 

proceeding to one for summary judgment without adequate notice to them. But the 

district court explained why the documents could be considered under our precedent 

in Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). And it observed that the 

Raders did not dispute the authenticity of the exhibits submitted by the defendants, 

but only disagreed about the legal conclusions that could be drawn from them. 

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In their opening brief on appeal, the Raders present no analysis concerning 

why Gee does not apply except to note that this court in Gee rejected the use of some 

of the documents in that case, on which the district court had “improperly relied . . . 

to refute [the plaintiff’s] factual assertions and effectively convert the motion to one 

for summary judgment without notice.” Id. at 1187. Here, however, although the 

Raders claim that the district court used the documents submitted by the defendants 

to make determinations on disputed material issues of fact, they point to no such 

factual findings in their brief.1

 Indeed, the brief accurately describes the true dispute 

when it states that “[the Raders] disagreed about the legal conclusions that could be 

drawn from the documents submitted by Appellees.” Aplt. Opening Br. at 21 

(emphasis added). 

 The Raders also complain that the district court entirely failed to address two 

of their arguments. First, they argued that in the chain of title for their promissory 

note was a trust that could not accept a transfer of the note if the loan was in default 

or in danger of going into default, or if the transfer was after the closing date 

 

1

 The closest they come is their reference to the sentence in the district court’s 

opinion referring to the state court’s approval of the substitution of Citibank for U.S. 

Bank as the party seeking foreclosure. But this terse reference to that sentence does 

not preserve a legal issue, see Bronson v. Swensen, 500 F.3d 1099, 1104-05 (10th 

Cir. 2007) (“[W]e routinely have declined to consider arguments that are . . . 

inadequately presented . . . in an appellant’s opening brief. . . . . [C]ursory 

statements, without supporting analysis and case law, fail to constitute the kind of 

briefing that is necessary.”), and the point is legally irrelevant because under 

Colorado law it does not matter who Citibank’s predecessors were or how Citibank 

became the holder. 

 

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specified in the trust. But they did not plead any facts showing when, if ever, any of 

these conditions existed; and, as previously noted, Citibank can foreclose without 

showing how it became the holder of the note. Second, they argue that the note may 

have been paid down or even paid off. But, again, they pleaded no facts showing that 

any such payment was ever made. 

Finally, although they assert that the Complaint states a valid claim for relief, 

the Raders argue that we should reverse and remand so they can seek leave to file an 

amended version of the Complaint. Their conclusory request for leave to amend does 

not entitle the Raders to amend their complaint or to avoid the dismissal with 

prejudice. Cf. In re Gold Resource Corp. Securities Litigation, 776 F.3d 1103, 

1118-19 (10th Cir. 2015) (“The district court did not abuse its discretion in 

dismissing the complaint with prejudice where plaintiff’s memorandum contained 

only one sentence at the very end of his brief alternatively requesting leave to amend 

in the event the district court should decide to dismiss his complaint.”). 

CONCLUSION 

 The judgment of the district court is affirmed. 

Entered for the Court 

Harris L Hartz 

Circuit Judge 

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