United States District Court, D. Colorado
JOHN M. MBAKU and LUVIBIDILA JOLIE LUMUENEMO, Plaintiffs,
CARRINGTON MORTGAGE SERVICES, LLC, Defendant.
T. BABCOCK, JUDGE
matter is before me on a Motion to Dismiss filed by
Defendant, Carrington Mortgage Services, LLC
(“Carrington”), seeking dismissal of the claims
filed against it by Plaintiffs, John M. Mbaku and Luvibidila
Jolie Lumuenemo, on the basis that they fail to state a claim
upon which relief can be granted pursuant to Fed.R.Civ.P.
12(b)(6). [Doc #5] Oral arguments would not materially assist
me in my determination. After consideration of the
parties' arguments, and for the reason stated, I GRANT
the motion and I DISMISS this case.
2008, Taylor, Bean & Whitaker Mortgage Corporation loaned
Plaintiffs $166, 885 to refinance their condominium located
in Denver, Colorado. The loan was evidenced by a promissory
note and secured by a deed of trust. The trustee was the
Arapahoe County public trustee. Plaintiffs defaulted on the
parties attempted to foreclose on Plaintiff's condominium
following their default. In October of 2011, Bank of America
was the assignee of the promissory note and deed of trust.
Bank of America attempted to foreclose on Plaintiff's
condominium at that time by seeking an order authorizing the
sale pursuant to Rule 120 of the Colorado Rules of Civil
Procedure, which allows an expedited procedure for a
non-judicial foreclosure sale by a public trustee.
See Colo. Rev. Stat. §38-38-101(1)(providing
that once a creditor defaults on a loan, the holder of the
promissory note may request that the public trustee sell the
property at a foreclosure sale if the deed of trust so
authorizes); Colo. R. Civ. P. 120 (in order to effectuate a
public trustee sale, the holder of the note must seek an
order from the state district court authorizing the sale).
The District Court of Arapahoe County held a hearing and
authorized the sale in February of 2012 (the “First
Rule 120 Order”). One week before the scheduled sale,
however, Plaintiffs sued Bank of America in the United States
District Court for the District of Colorado advancing
numerous federal and state claims including due process and
equal protection claims, as well as a claim for violations of
the Colorado FDCPA, Colo. Rev. Stat. §§ 12-14-101
to -137, et seq. The District Court ultimately
concluded that Plaintiffs failed to state a claim for relief,
and it dismissed the complaint in three separate orders.
Mbaku v. Bank of America, National Association, No.
12-CV-00190-PAB-KLM, 2014WL103806, 2014WL3906463,
2014WL4099313 (D. Colo. 2014). Plaintiffs appealed, and the
Tenth Circuit affirmed in Mbaku v. Bank of America, Nat.
Association, 628 F.App'x 968 (10th Cir.
America did not foreclose on Plaintiff's condominium on
the First Rule 120 Order following the Tenth Circuit ruling.
Instead, Defendant Carrington subsequently sought foreclosure
of the condominium, as the holder of an evidence of debt, in
February of 2016. On August 1, 2016, the District Court of
Arapahoe County issued a second order authorizing the public
trustee sale of Plaintiffs' condominium pursuant to Colo.
Rev. Stat §38-38-101(1) and Rule 120 of the Colorado
Rules of Civil Procedure (the Second Rule 120 Order). The
condominium was thereafter foreclosed upon and sold to a
then filed this lawsuit in the United States District Court
for the Central District of California (Southern District -
Santa Ana). [Doc #4] In their First Amended Complaint,
Plaintiffs allege that the condominium was improperly sold in
that Carrington “did not have the necessary documents
to prove that it was the proper company to pursue collection
of any kind against Plaintiffs” and “[u]pon
information and belief, [Carrington] utilized a forged
endorsement on a promissory note to seek collection against
Plaintiffs.” [Doc #4 ¶7, 9, & 11]
bring four claims against Carrington: 1) Violations of the
Federal Fair Debt Collection Practices Act, 15 U.S.C.
§1692, et seq.; 2) Violations of the California
Fair Debt Collection Practices Act, Cal. Civ. Code
§1788(2)(h); 3) “As Applied” Violation of
the Fourteenth Amendment Due Process Clause; and 4)
“Facial Challenge” Violation of the Fourteenth
Amendment Due Process Clause. Carrington responded by filing
this Motion to Dismiss with the District Court for the
Central District of California. [Doc #5] In addition,
Carrington filed a Motion to Transfer Case to this court. On
February 17, 2017, after both motions were fully briefed,
Judge David O. Carter granted the Motion to Transfer, and
deferred ruling on the Motion to Dismiss which is now at
issue here. [Doc #1]
DEFENDANT'S PENDING MOTION TO DISMISS
Motion to Dismiss Carrington contends that Plaintiffs'
claims against it should be dismissed for failure to state a
claim upon which relief can be granted pursuant to
Fed.R.Civ.P. 12(b)(6). A claim will survive dismissal under
Rule 12(b)(6) if it alleges a plausible claim for relief;
that is, the “factual allegations must be enough to
raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). The concept of
“plausibility” at the dismissal stage refers not
to whether the allegations are likely to be true; rather,
“[t]he 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)(citing Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008)).
when considering a Rule 12(b)(6) motion a court accepts as
true all well-pled factual allegations in a complaint and
view these allegations in the light most favorable to the
plaintiff, as the sufficiency of a complaint is a question of
law. Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009)(citing Moore v. Guthrie, 438 F.3d
1036, 1039 (10th Cir. 2006)). A complaint need not set forth
detailed factual allegations, yet a “pleading that
offers labels and conclusions or a formulaic recitation of
the elements of a cause of action” is insufficient.
Bell Atl. v. Twombly, supra, 550 U.S. at
555; see also Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(ruling that
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atl. v. Twombly, supra, 550 U.S.
at 555 (citation omitted). “[T]he mere metaphysical
possibility that some plaintiff could prove some set of facts
in support of the pleaded claims is insufficient; the
complainant must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual
support for these claims.” Ridge at Red Hawk, LLC
v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
FEDERAL & CALIFORNIA FDCPA CLAIMS
claim that Carrington violated provisions of both the Federal
and the California Fair Debt Collection Practices Act (the
“Federal FDCPA” and the“California
FDCPA”) by foreclosing on Plaintiffs' condominium
when it knew it lacked sufficient standing to pursue the
underlying debt. [See Doc #24] I conclude, however, that
Plaintiffs' FDCPA claims, even when the factual
allegations as alleged are viewed in their favor, are
insufficient to raise a plausible claim for relief.
First Claim for Relief in their First Amended Complaint (the
“Complaint”), Plaintiffs allege that Carrington
violated the Federal FDCPA by:
a. Falsely stating themselves as the legal owner/holder of
the debt which is a mischaracterization of the status of the
debt under 15 U.S.C. §1692e(2);
b. Failed to provide any agreement that authorizes any amount
of collection, under 15 U.S.C. §1692f(1);
c. Upon information and belief, have pursued collection of a
debt past the statute of limitations, which is a
misrepresentation of the legal status of the ...