United States District Court, D. Colorado
T. BABCOCK, JUDGE
case revolves around the impact of a letter Defendant Ditech
Financial, LLC (Ditech) sent to Plaintiff Mickey Froid. The
letter wrongly told Mr. Froid that the statute of limitations
on a debt he owed had expired. Based on that letter, Mr.
Froid wants this Court to enter declaratory judgment in his
favor. Ditech asks this Court to dismiss the case, arguing
that because the statute of limitations has not expired, the
complaint does not state a claim for relief. I agree with
Ditech that the complaint does not state a claim for relief.
I accordingly GRANT Ditech's motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 9.)
is a mortgage servicing company that services the loan Mr.
Froid has on real property located at 5800 Tower Road #404 in
Denver, Colorado. Under the terms of the loan, Mr. Froid must
repay the note in monthly installments, with the final
payment of any unpaid principal and interest due on the
note's maturity date of October 25, 2030. (Note, ECF No.
January 8, 2016, Ditech mailed a form letter to Mr. Froid,
explaining various debt collection laws. (Jan. 8, 2016
letter, ECF No. 10-1.) In postscript at the bottom of the
letter, it reads, “[p]lease be advised that we cannot
bring a legal action to collect this debt or threaten to do
so because the statute of limitations has expired.”
(Id.) After he received the letter, Mr. Froid filed
suit in this Court, seeking a “[d]eclaratory judgment
that the lien held by Ditech on Plaintiff's property has
been extinguished, ” because “once the statute of
limitations to enforce a note has expired, the corresponding
lien is extinguished.” (Compl. ¶¶ 6, 8(a).)
filed a motion to dismiss the case under Rule 12(b)(6),
arguing that despite what the letter says, the statute of
limitations on the note has not expired and its lien is
RULE 12(b)(6) STANDARD
Rule 12(b)(6), “[d]ismissal is appropriate only if the
complaint, viewed in the light most favorable to plaintiff,
lacks enough facts to state a claim to relief that is
plausible on its face.” United States ex rel.
Conner v. Salina Regional Health Center, 543 F.3d 1211,
1217 (10th Cir. 2008) (quotation omitted). A claim is
plausible on its face “when the plaintiff pleads
factual content that enables the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (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.” Id.
plaintiffs need not provide “detailed factual
allegations” to survive a motion to dismiss, they must
provide more than “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555; see
also Ashcroft, 556 U.S. at 678 (explaining that a
complaint will not suffice if it offers “naked
assertions devoid of further factual enhancement”
(quotations and alterations omitted)). Furthermore,
conclusory allegations are “not entitled to be assumed
true.” Ashcroft, 556 U.S. at 679.
may not dismiss a complaint merely because it appears
unlikely or improbable that a plaintiff can prove the facts
alleged or ultimately prevail on the merits.
Twombly, 550 U.S. at 556. Instead, a court must ask
whether the facts alleged raise a reasonable expectation that
discovery will reveal evidence of the necessary elements.
Id. If, in view of the facts alleged, it can be
reasonably conceived that the plaintiff could establish a
case that would entitle him to relief, the motion to dismiss
should not be granted. Id. at 563 n.8.
a motion to dismiss is a “harsh remedy” that
should be “cautiously studied” to
“effectuate the liberal rules of pleading” and
“protect the interests of justice.” Dias v.
City & Cty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (quotations omitted).
B. Documents Outside the Pleadings
motion to dismiss stage, courts generally cannot consider
evidence outside of the pleadings. See, e.g., Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)
(“Generally, the sufficiency of a complaint must rest
on its contents alone.”). However, a court may properly
consider additional documents in a Rule 12(b)(6) motion if
they are (1) “mentioned in the complaint, ” (2)
“central to [the] claims, ” and (3) not
challenged as inauthentic. Toone v. Wells Fargo Bank,
N.A., 716 F.3d 516, 521 (10th Cir. 2013). I accordingly
consider the note Mr. Froid signed ...