United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Kristen L. Mix United States Magistrate Judge.
This
matter is before the Court on Defendant Real Time
Resolutions, Inc.'s (“RTR”) Motion to
Dismiss Complaint Pursuant to Rule 12(b)(6) and Incorporated
Memorandum of Law [#8][1] (the “Motion”).
Plaintiffs, who proceed as pro se litigants, [2] filed a Response
[#14] in opposition to the Motion and Defendant RTR filed a
Reply [#17]. The Motion has been referred to the undersigned
for a recommendation pursuant to 28 U.S.C. §
636(b)(1)(A) and D.C.COLO.LCivR 72.1(c)(3). See
[#27]. The Court has reviewed the Motion, Response, Reply,
the entire case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons set
forth below, the Court respectfully
RECOMMENDS that the Motion [#8] be
GRANTED.
I.
Background
Plaintiffs
initiated this action against Defendants RTR and Bank of
America, N.A. (“BOA”)[3] on June 29, 2018. See
Compl. [#1]. Generally, Plaintiffs' claims concern a
mortgage held by BOA on Plaintiffs' home located in
Larimer County, Colorado. See Id. ¶¶ 1, 5,
26. Although the Complaint [#1] does not make this clear, it
appears that RTR acts as the loan servicer on behalf of BOA
for Plaintiffs' mortgage.[4] See Id. ¶¶ 6,
18; Response [#14] at 2.
At the
outset, the Court notes that it is difficult to comprehend
what specific allegations and claims Plaintiffs are
attempting to assert against each Defendant. See
generally Compl. [#1]. The Complaint consists of various
pieces of information which Plaintiffs appear to have cobbled
together from a variety of sources. See generally
id. Plaintiffs refer to “Fraud, ”
“Unfair Business Practices, ” and
“Violations of the Colorado Fair Debt Collection
Act” in the caption heading of their Complaint.
Id. at 1. In one section, titled “Statute of
Limitations, ” Plaintiffs appear to argue that the
statute of limitations on an action concerning a promissory
note commences when the acceleration clause of the note is
invoked. Id. ¶ 6. In the next sentence,
Plaintiffs allege that “RTR, presumably retained by
BOA, initiated the acceleration clause in April of
2015.” Id. However, no additional facts are
provided in the Complaint regarding this allegation to
suggest that it is the basis of a separate claim against RTR.
In the next section, titled “General Factual
Allegations, ” Plaintiffs make vague statements
regarding BOA's participation in the Troubled Asset
Relief Program between 2008 and 2009, and refer to an
unrelated case from 2017 involving BOA. See Id.
¶¶ 7-10. Neither appear to have any relevance to
the claims against Defendant RTR. In the penultimate section
of the Complaint, titled “Additional Factors, ”
Plaintiffs allege that they contacted Defendants BOA and RTR
in September of 2017 to inform them of an error in the legal
description of their property but that Plaintiffs “were
snubbed by BOA and RTR who both replied, ‘We don't
care!'” Id. ¶¶ 23-24. This
allegation appears to be nothing more than a general
grievance as Plaintiffs do not identify any law that was
allegedly violated or any way in which Plaintiffs were
damaged by this event.
Nevertheless,
the Complaint does include a section titled “Factual
Allegations/Violations of the Colorado Fair Debt Collection
Act - RTR, ” which the Court construes as containing
the only claims Plaintiffs bring against Defendant RTR.
See Id. ¶¶ 18-22. In that section,
Plaintiffs appear to assert one claim against RTR pursuant to
the Colorado Consumer Credit Code (the “Colorado
CCC”) and a second claim pursuant to the Colorado Fair
Debt Collection Practices Act (the “Colorado
FDCPA”). See Id. ¶¶ 18, 20.
The
first claim refers to the “CFDCA” but quotes the
following language from C.R.S. § 5-3-102 in the Colorado
CCC:
Notice of Assignment. If requested by the consumer, the
assignee must seasonably furnish reasonable proof that the
assignment has been made and unless the assignee does so, the
consumer may pay the creditor.
Id. ¶ 18 (quoting “CFDCA: 5-3-102");
see C.R.S. § 5-3-102. Pursuant to this claim,
Plaintiffs allege that they “have been badgered for
over four years heretofore by RTR, [and that] [their]
repeated requests for documentation substantiating that RTR
has been assigned by BOA [sic] have been ignored.”
Compl. [#1] ¶ 19.
Plaintiffs'
second claim refers to “12-14-109” but quotes the
following two sub-provisions from C.R.S. § 5-16-109 in
the Colorado FDCPA: “(1)(a) The Amount of the Debt;
(1)(b) The name of the creditor to whom the debt is
owed[.]” Id. ¶ 20; see C.R.S.
§ 5-16-109.[5] Pursuant to this claim, Plaintiffs allege
the following:
Allegation: RTR has sent us numerous letters over the course
of four years with inconsistent terminology attached to
differentiating dollar amounts due. Some of the terms include
‘total amount dues, past amount due, pay one lump sum,
amount to resolve the lien', rarely including the
standard term for a pay off, “principal balance.”
Moreover until recently (May of 2018) letters sent from RTR
did not include interest or current balance.
As RTR states that it records all phone conversations, it has
habitually twisted and changed statements I have made by
sending subsequent mailings stating I promised terms that I
did not.
Compl. [#1] ¶¶ 21, 22 (quotation marks
unmodified). In seeking redress from RTR, Plaintiffs request
that the Court order RTR “to pay Plaintiffs $25, 000
for four years of confusion, uncertainty, threats of
foreclosure, and duress -- and its lack of respect for
staying within the parameters of the CO Fair Debt Collection
Act.” Id. ¶ 25. Plaintiffs conclude the
Complaint by stating:
BOA and RTR have demonstrated that holding our home as
security for the second lien is meaningless to them. Moreover
BOA, being in the business of providing home loans, has
repeatedly ignored our requests for a modified payment plan
-- instead allegedly retaining RTR to repeatedly get us to
forward money, regardless of specificity, verification or
consistency.
Id. ¶ 26.
On
August 1, 2018, RTR filed the instant Motion [#8] pursuant to
Fed.R.Civ.P. 12(b)(6). In the Motion, RTR argues that
“[t]he Complaint is devoid of any specific factual
allegations that could allow RTR or this Court to determine
the factual basis for Plaintiffs' claim that RTR violated
the Colorado CCC or the Colorado FDCPA.” [#8] at 5. RTR
further argues that, “to the extent that any of [the
other sections in] the Complaint intend to assert a cause of
action against RTR, they fail to meet the pleading standards
of the Federal Rules of Civil Procedure.” I ...