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McNees v. Ocwen Loan Servicing, LLC

United States District Court, D. Colorado

January 31, 2018

JOHN L. MCNEES, Plaintiff,
OCWEN LOAN SERVICING, LLC, a Delaware limited liability corporation, and DOES 1 through 100, inclusive, Defendants.



         This matter is before the Court on Plaintiff's Motion to Amend [#35][1] (the “Motion”). Defendant Ocwen Loan Servicing, LLC (“Defendant”) filed a Response [#40] in opposition to the Motion on December 8, 2017, and Plaintiff, who proceeds as a pro se litigant, filed a Reply [#41] on December 22, 2017. The Court has reviewed the Motion, Response, Reply, the case file, and the applicable law, and is fully advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#35] be GRANTED in part and DENIED in part.

         I. Background

         Plaintiff initiated this action by filing the Complaint [#1] on May 9, 2016. His claims pertain to a foreclosure of a mortgage loan secured by Plaintiff's property at 12510 Newton Street, Broomfield, Colorado 80020. Compl. [#1] ¶ 3. Defendant filed a Motion to Dismiss [#15] on June 15, 2016. On March 15, 2017, the District Judge entered an Order [#29] granting Defendant's Motion to Dismiss [#15], yet also granted Plaintiff leave to amend his complaint. Order [#29] at 2. Plaintiff's First Amended Complaint [#28] was accepted for filing on the same date. Order [#30]. Then, Defendant filed another Motion to Dismiss [#31], which remains pending. Plaintiff filed the present Motion [#35] on November 8, 2017. Plaintiff represents that he filed this Motion because he recently became aware of new claims against Defendant. Motion [#35] at 2. Defendant, however, argues that Plaintiff's proposed Second Amended Complaint [#35] should not be accepted for filing because: (1) Plaintiff acted with undue delay by waiting almost seven months before filing his Motion while offering no explanation why the delay is warranted; (2) Plaintiff failed to confer with the undersigned defense counsel and failed to attach a properly formatted amended pleading, making his Motion procedurally defective pursuant to D.C.COLO.LCivR 7.1(a) and D.C.COLO.LCivR 15.1(b); and (3) Plaintiff's added claims are subject to dismissal and therefore futile. Response [#40] at 3-10.

         II. Analysis

         The Court has discretion to grant a party leave to amend its pleadings. See Foman v. Davis, 371 U.S. 178, 182 (1962). Specifically, the Court should grant leave to amend “freely . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2). Generally, leave should be permitted unless the moving party unduly delayed or failed to cure, the opposing party would be unduly prejudiced, or the proposed amendment would be futile. Foman, 371 U.S. at 182.

         The Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 594, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his or her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir.1994).

         A. Undue Delay and Procedural Deficiencies

         First, the Court considers whether Plaintiff acted with undue delay. “In determining whether a motion to amend is unduly delayed, the Court generally looks to the Scheduling Order.” Penterra Energy Partners, LLC v. McMahon Energy Partners, LP, No. 13-cv-00261-WYD-MEH, 2013 WL 3242834, at *1 (D. Colo. June 25, 2013). Here, no Scheduling Order is in place, so a deadline to amend pleadings is not currently set. Therefore, although several months have passed since Plaintiff's First Amended Complaint [#28] was filed, the Court finds that the Motion [#35] is timely and that Plaintiff has not acted with undue delay.

         Next, the Court addresses Defendant's argument that the Court should deny the Motion [#35] for procedural deficiencies pursuant to D.C.COLO.LCivR 7.1(a) and D.C.COLO.LCivR 15.1(b). Response [#40] at 5. Specifically, Defendant argues that in the absence of a redlined amended complaint it “has been forced to expend additional resources to respond to the Motion.” Response [#40] at 4. Taking into consideration Plaintiff's pro se status, the duration of this matter, and the interest of efficiency, the Court concludes that Defendant's argument is unpersuasive. See Hall, 935 F.2d at 1110. In particular, although Plaintiff may not have conferred with Defendant about his request to file an amended complaint, Defendant has had an opportunity to respond. Additionally, the Court recognizes that Defendant may have expended additional resources in the absence of a redline version, but requiring Plaintiff to re-file a new motion to amend the pleadings with attachments now would necessitate that more resources be expended in order for the parties to re-brief the issues. Thus, the Court is not inclined to require a redline version of Plaintiff's proposed Second Amended Complaint at this point, as doing so would be inefficient and cause further delay.

         B. Futility

         Next, the Court addresses Defendant's futility argument. Defendant argues that Plaintiff's new and existing claims are futile because they would not survive dismissal. Response [#40] at 4-7. An amendment is futile if it would not survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Innovatier, Inc. v. CardXX, Inc., No. 08-cv-00273-PAB-KLM, 2010 WL 148285, at *2 (D. Colo. Jan. 8, 2010) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). “In ascertaining whether plaintiff's proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to plaintiff, and the allegations in the complaint must be accepted as true.” Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994). Moreover, “[a]ny ambiguities must be resolved in favor of plaintiff, giving him the benefit of every reasonable inference drawn from the well-pleaded facts and allegations in his complaint.” Id. (quotations omitted).

         1. Colorado Consumer Protection Act Claim

         Plaintiff, in his proposed Second Amended Complaint [#35], adds a new claim alleging that Defendant made misrepresentations and deceptive omissions, which violate the Colorado Consumer Protection Act (“CCPA”). Motion [#35] at 9-12. There are five elements a plaintiff must show to prove a viable cause of action under the CCPA: “(1) that the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the course of defendant's business, vocation, or occupation; (3) that it significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property; (4) that the plaintiff suffered injury in fact to a legally protected interest; and (5) that the challenged practice caused the plaintiff's injury.” Rhino ...

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