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Allbrandt v. Bank of America, N.A.

United States District Court, D. Colorado

March 12, 2015

BANK OF AMERICA, N.A., Defendant.



This matter is before the Court on Defendant Bank of America's Motion to Dismiss Pursuant to Fed.R.Civ.P. 9(b) & (g) and Fed.R.Civ.P. 12(b)(6) (Doc. # 17), filed on August 27, 2014. For the reasons discussed below, Defendant's motion is granted.



Plaintiffs Kristiane K. Allbrandt and Shawn W. Allbrandt formerly owned and resided in a home in Pierce, Colorado. Plaintiffs purchased their home in September of 1999 and refinanced with Hometown Mortgage in 2003. Sometime thereafter, the loan servicing was transferred to Countrywide, and then to Defendant. (Doc. # 16 at 1-2.)

In January 2010, Plaintiffs filed Chapter 7 Bankruptcy. Between that time and December 2012, they continued to make mortgage payments for their home, but Defendant failed to credit the payments. In February 2010, Defendant offered to "fix" the mortgage by doing a loan modification. Defendant told Plaintiffs that it would accept payments only after the modification process was completed. Between February 2010 and April 2013, Plaintiffs completed seven home loan modification applications. From February 2010 to September 2013, there were more than 200 telephone calls, many of which were recorded by Ms. Allbrandt, in which Defendant misrepresented that it was processing the loan documents. Defendant would also misrepresent that the application was incomplete or that it had misplaced or lost information. During this time, Defendant also misled Plaintiffs about the status of the foreclosure of their home by saying that the home was not in foreclosure while moving ahead with the foreclosure. ( Id. at 2-3.)

Plaintiffs allege that they contacted the Office of the CEO and President, which Defendant "holds out" to customers as a way to reach persons with actual power to clear up problems, including loan modification issues. However, the Office of the CEO and President "does not exist." Instead, Defendant hires outside contractors to hold themselves out as the Office of the CEO and President and few, if any, of these offices have any actual contact with Defendant's CEO and President. ( Id. at 3-4.)

Following the foreclosure sale of Plaintiffs' home on June 5, 2013, Ms. Allbrandt recorded various phone calls with Defendant's employees in which they misinformed her about the status of the foreclosure and Plaintiffs' requested loan modification. Ms. Allbrandt also attempted to contact the Office of the CEO and President to resolve problems related to the foreclosure and loan modification. ( Id. at 4-8.)

In addition to allegations related to the foreclosure of their home, Plaintiffs allege facts from a separate lawsuit in the United States District of Massachusetts, in which former employees aver that Defendant "employed a common strategy of delaying [loan modification] applications" and told customers documents had not been received, when, in fact, they had. ( Id. at 9.) One employee averred that Defendant encouraged its employees to maximize fees by "fostering and extending delay of the [loan modification] process by any means they could-this included lying to customers." (Doc. # 16 at 10.) Another employee stated that, based on her observations, Defendant "was 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 with [the Department of Treasury's Making Home Affordable Modification Program ("HAMP")]. ( Id. at 11.)

On August 13, 2014, Plaintiffs filed an Amended Complaint, alleging Defendant (1) engaged in fraudulent misrepresentation; (2) violated the Colorado Consumer Protection Act ("CCPA"); (3) violated the Real Estate Settlement and Procedures Act ("RESPA");[2] and (4) violated the Equal Credit Opportunity Act ("ECOA"). (Doc. # 16 at 14-17.) Defendant moves to dismiss all claims. (Doc. # 17.)


Defendant brings the instant motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The purpose of such a motion is to "test the sufficiency of the allegations within the four corners of the complaint." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The "question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law." Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009). A complaint will survive a Rule 12(b)(6) motion only if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted).

In reviewing a Rule 12(b)(6) motion, a court must accept all the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff. Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Nevertheless, a complaint does not "suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). The court's function "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." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

When claims sound in fraud, Fed.R.Civ.P. 9(b) further requires that Plaintiffs "state with particularity the circumstances constituting fraud...." The Tenth Circuit has interpreted Rule 9(b) as requiring plaintiffs to "set forth the time, place, and contents of the false representation, the identity of the party making the false statements and the consequences thereof." Tal v. Hogan, 453 F.3d 1244, 1263 (10th Cir. 2006). However, the Federal Rules of Civil Procedure

do not require a factual basis for every allegation. Nor must every allegation, taken in isolation, contain all the necessary information. Rather, to avoid dismissal under Rules 9(b) and 8(a), plaintiffs need only show ...

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