from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-01734-RBJ)
L. Hill of Riggs, Abney, Neal, Turpen, Orbison & Lewis,
Denver, Colorado, for Plaintiff - Appellant.
Jessica E. Yates of Snell & Wilmer, L.L.P., Denver,
Colorado, for Defendants - Appellees Wells Fargo, Wells Fargo
Bank, Wells Fargo & Co., Wells Fargo Bank, N.A., Wells
Fargo Home Mortgage.
R. Shilliday of McCarthy & Holthus, L.L.P., Centennial,
Colorado, for Defendants -Appellees McCarthy & Holthus,
MORITZ, KELLY, and MURPHY, Circuit Judges.
Plaintiff-Appellant Dennis Obduskey appeals from the district
court's order granting Defendants-Appellees Wells Fargo
and McCarthy and Holthus, LLP's motions to dismiss
numerous claims, including whether either party was liable as
a "debt collector" under the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692-1692p.
Obduskey v. Fargo, No. 15-CV-01734-RBJ, 2016 WL
4091174 (D. Colo. July 19, 2016). Having jurisdiction under
28 U.S.C. § 1291, we affirm.
2007, Mr. Obduskey obtained a $329, 940 loan from Magnus
Financial Corporation to buy a home. The loan was secured by
his property and was serviced by Wells Fargo. Aplee. Supp.
App. 107. Mr. Obduskey eventually defaulted on the loan in
2009. Id. at 109. Several foreclosure proceedings
were initiated over the following six years, none of which
were completed. Mr. Obduskey's loan remains in default.
2014, Wells Fargo hired McCarthy and Holthus, LLP (McCarthy),
a law firm, to pursue a non-judicial foreclosure on Mr.
Obduskey's home. McCarthy initially sent Mr. Obduskey an
undated letter stating that McCarthy "MAY BE CONSIDERED
A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT."
Id. at 127. The letter explained that McCarthy was
"instructed to commence foreclosure against" Mr.
Obduskey's home. Id. It referenced the amount
owed and noted the current creditor as Wells Fargo.
Id. Mr. Obduskey apparently responded to the letter
disputing the debt, id. at 124; however, instead of
replying to his letter, McCarthy initiated a foreclosure
action in May of 2015. Mr. Obduskey then filed this action
claiming (1) a violation of the Fair Debt Collection
Practices Act; (2) a violation of the Colorado Consumer
Protection Act; (3) defamation; (4) extreme and outrageous
conduct - emotional distress; and (5) commencement of an
unlawful collections action. Aplee. Supp. App. at 21-27.
Fargo and McCarthy filed motions to dismiss, which the
district court granted on all claims. Obduskey, 2016
WL 4091174, at *8. Regarding the FDCPA claim, the district
court held that Wells Fargo was not liable because it began
servicing the loan prior to default. Id. at *3. It
also held that McCarthy was not a "debt collector"
because "foreclosure proceedings are not a collection of
a debt, " but it noted that "not all courts have
agreed" on whether foreclosure proceedings are covered
under the FDCPA. Id. To settle this confusion, we
asked both parties to provide supplemental briefing on the
issue. We now hold that the FDCPA does not apply to
non-judicial foreclosure proceedings in Colorado.
review the grant of a motion to dismiss de novo. Khalik
v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.
2012). We begin with the FDCPA claim against Wells Fargo and
Fair Debt Collection Practices Act
Fair Debt Collection Practices Act was enacted, in part, to
"eliminate abusive debt collection practices by debt
collectors." 15 U.S.C. § 1692(e) (2012). It
prohibits "abusive, deceptive, and unfair debt
collection practices, " such as late-night phone calls
or falsely representing to a consumer the amount of debt
owed. Id. §§ 1692(a), 1692c, 1692e. To
prevail under the FDCPA, a plaintiff must prove that the
defendant is a "debt collector" who is trying to
collect a "debt" from the plaintiff in violation of
some provision of the FDCPA. A "debt collector" is
defined as "any person . . . who regularly collects or
attempts to collect, directly or indirectly, debts owed or