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Archie Ulm v. Bank of America, N.A.

United States District Court, D. Colorado

February 14, 2019

ARCHIE ULM, and LETICIA ULM, Plaintiffs,


          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 ...

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