Ulm v. Bank of Am., N.A.

• Decision Date: 22 February 2019
• Docket Number: Civil Action No. 18-cv-01654-PAB-KLM
• Parties: ARCHIE ULM, and LETICIA ULM, Plaintiffs, v. BANK OF AMERICA, N.A., and REAL TIME RESOLUTIONS, INC., Defendants.
• Court: U.S. District Court — District of Colorado

ARCHIE ULM, and LETICIA ULM, Plaintiffs, v. BANK OF AMERICA, N.A.,and REAL TIME RESOLUTIONS, INC., Defendants.

Civil Action No. 18-cv-01654-PAB-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 22, 2019

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendant Bank of America, N.A.'s ("BOA") Motion to Dismiss Complaint Pursuant to Rule 12(b)(6) and Incorporated Memorandum of Law [#15]¹ (the "Motion"). Plaintiffs, who proceed as pro se litigants,² filed a Response [#18] in opposition to the Motion and Defendant BOA filed a Reply [#19]. Plaintiffs then filed a surreply entitled "Plaintiff[s'] Response to Defendant Bank ofAmerica's [L]atest Motion for Dismissal" [#28] (the "Surreply").³ The Motion has been referred to the undersigned for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1(c)(3). See [#27]. The Court has reviewed the Motion, Response, Reply, Surreply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#15] be GRANTED.

I. Background

Plaintiffs initiated this action against Defendants BOA and Real Time Resolutions, Inc. ("RTR")⁴ on June 29, 2018. See Compl. [#1]. Generally, Plaintiffs' claims concern a mortgage held by BOA on Plaintiffs' home located in Larimer County, Colorado. See id. ¶¶ 1, 5, 26. As explained below, Plaintiffs purport to assert a fraud claim and claims pursuant to the Colorado Fair Debt Collection Practices Act (the "Colorado FDCPA") and the Colorado Consumer Credit Code (the "Colorado CCC") against BOA in relation to BOA's alleged refusal to grant Plaintiffs' request for a loan modification. See id. ¶¶ 10, 11-17, 25, 26.

As the Court noted in the Recommendation regarding RTR's Motion to Dismiss [#8], it is difficult to comprehend from the Complaint what specific allegations and claims Plaintiffs are attempting to assert against each Defendant. See Rec. [#32] at 2; seegenerally Compl. [#1]. Plaintiffs refer to "Fraud," "Unfair Business Practices," and "Violations of the Colorado Fair Debt Collection Act" in the caption heading of their Complaint. [#1] at 1. In one section, titled "Statute of Limitations," Plaintiffs appear to argue that the statute of limitations on an action concerning a promissory note commences when the acceleration clause of the note is invoked. Id. ¶ 6. In the next sentence, Plaintiffs allege that "RTR, presumably retained by BOA, initiated the acceleration clause in April of 2015." Id. However, no additional facts are provided in the Complaint regarding this allegation to suggest that it is the basis of a separate claim against BOA. In the penultimate section of the Complaint, titled "Additional Factors," Plaintiffs allege that they contacted Defendants BOA and RTR in September of 2017 to inform them of an error in the legal description of their property but that Plaintiffs "were snubbed by BOA and RTR who both replied, 'We don't care!'" Id. ¶¶ 23-24. This allegation appears to be nothing more than a general grievance as Plaintiffs do not identify any law that was allegedly violated or any way in which Plaintiffs were damaged by this event.

Although not entirely clear, Plaintiffs appear to assert a fraud claim against BOA in the section titled "General Factual Allegations." See id. ¶¶ 7-10. There, Plaintiffs make vague statements regarding BOA's participation in the Troubled Asset Relief Program and a "Service Participation Agreement with the Federal Government" which, according to Plaintiffs, "requir[ed] [BOA] to use reasonable efforts to [ ] effectuate any modification of a mortgage loan under the Program." Id. ¶¶ 7-8 (internal quotation marks omitted). Plaintiffs then outline certain requirements a homeowner must satisfy to qualify for this "Program." Id. ¶ 9. Plaintiffs then cite an unrelated case, "Torres v. Bank of America (Case 8:17-cv-01534-RAL-TBM)," in which, according to Plaintiffs, "BOA was found guilty of [ ]'trying to prevent as many homeowners as possible from obtaining permanent loan modifications while leading the public and the government to believe that it was making efforts to comply.'"⁵ Id. ¶ 10. To conclude this section, Plaintiffs state: "BOA employed a scheme to falsely advise borrowers they had to be in default on their mortgage [ ] in order to qualify for a modification. We are victims of BOA's fraud." Id.

Plaintiffs more clearly state two additional claims against BOA in the section titled "Factual Allegations/Violations of the Colorado Fair Debt Collections Act - BOA." Id. ¶¶ 11-17. In that section, Plaintiffs purport to assert claims against BOA pursuant to the Colorado FDCPA. Id. However, Plaintiffs cite two provisions found in the Colorado CCC. Id. ¶¶ 11, 13-16.

The first claim refers to "CFDCPA: 5-3.1-122" but quotes C.R.S. § 5-3.1-121 which is found in the Colorado CCC: "No person shall engage in unfair or deceptive acts, practices or advertising in connection with a deferred deposit loan." Id. ¶ 11; see C.R.S. § 5-3.1-121. Pursuant to this claim, Plaintiffs allege the following:

Allegation: In January of 2012, we (Plaintiffs) contacted BOA via telephone numerous times requesting a loan modification on the 2nd lien it holds on our home. We explained our hardship involving loss of employment and income, and that we met the requirements for a HAMP modification. At the completion of several phone conversations with BOA representatives, we were told that BOA would not consider us for a loan modification unless we were at least three months delinquent with our payments. BOA failed to respond to our subsequent inquires via telephone.

Compl. [#1] ¶ 12. Plaintiffs' second claim refers to "CFDCPA: 5-3.5-103(b)," but quotes the following language from C.R.S. § 5-3.5-103(b) in the Colorado CCC:

(b)(I) A lender may not make a covered loan to a consumer based on the consumer's collateral without regard to the consumer's repayment ability, including the consumer's current and expected income, current obligations, and employment.

(b)(II) There is a presumption that a creditor has violated this paragraph (b) if the creditor engages in a pattern or practice of making loans subject to CFR 226.32 without verifying and documenting consumers' repayment abilities.

(g) No recommending default. No lender shall recommend or encourage [default] on an existing loan or other debt prior to [and] in connection with the [closing or] planned closing of a covered loan that refinances all or any portion of such existing loan or debt.

Id. ¶¶ 14-16 (internal quotation marks omitted); see C.R.S. § 5-3.5-103. Pursuant to this claim, Plaintiffs allege the following:

Allegation: On numerous occasions in September of 2009, BOA had mailed us blank checks with accompanying letters stating that we could withdraw up to $150,000; we were never asked to provide verification of income, creditor reports, or monthly obligations. The epitome of [ ] dangling a juicy bone in front of a hungry dog.

Id. ¶ 17 (internal quotation marks omitted). In seeking relief from BOA, Plaintiffs request that the Court order BOA "to pay Plaintiffs $186,134.81 (amount RTR demands for [second] lien) for six years of duress, uncertainty, and punitive damages for its habitual disregard for our seeking a loan modification -- and its disregard for the Colorado Fair Debt Collection Act." Id. ¶ 25. Plaintiffs appear to further request that the Court order Larimer County and the Mortgage Electronic Registration System to delete BOA's second lien on Plaintiffs' home and property. Id. Plaintiffs conclude the Complaint by stating:

BOA and RTR have demonstrated that holding our home as security for the second lien is meaningless to them. Moreover BOA, being in the business of providing home loans, has repeatedly ignored our requests for a modified payment plan -- instead allegedly retaining RTR to repeatedly get us to forward money, regardless of specificity, verification or consistency.

Id. ¶ 26.

On August 22, 2018, BOA filed the instant Motion [#15] pursuant to Fed. R. Civ. P. 12(b)(6). In the Motion, BOA argues that "Plaintiffs' Complaint lacks the required specificity to state any claim as against [BOA] [and that] [t]he claims are wholly conclusory and unsupported by factual allegations." [#15] at 1. For the reasons set for below, BOA seeks to dismiss each claim asserted against it with prejudice. Id. at 7.

II. Standard of Review

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ. P. 12(b)(6) (stating that a complaint may be dismissed for "failure to state a claim upon which relief can be granted"). "The [C]ourt's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff[s'] complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). To withstand a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain enough allegations of fact to state a claim for relief that is plausible on its face." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) ("The complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support the plaintiff[s'] allegations." (quoting Twombly, 550 U.S. at 570)).

"A claim has facial plausibility when the plaintiff[s] plead[ ] factual content that allowsthe [C]ourt to draw the reasonable inference that the defendant is...