United States District Court, D. Colorado
JEREMIAH J. GISH and ANNE K. GISH, Plaintiffs,
REAL TIME RESOLUTIONS, INC., a Texas Corporation, and DOES 1 through 100, inclusive, Defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS COMPLAINT
PURSUANT TO RULE 12(B)(6) (DKT. #8)
Reid Neureiter United States Magistrate Judge
case is before the Court for all purposes pursuant to 28
U.S.C. § 636(c), upon the consent of the parties (Dkt.
#16) and the Order of Reference entered by Chief Judge Philip
A. Brimmer on April 12, 2019 (Dkt. #17). Now before the Court
is Defendant Real Time Resolutions, Inc.'s
(“RTR”) Motion to Dismiss Complaint Pursuant to
Rule 12(b)(6). Dkt. #8. Plaintiffs Jeremiah J. Gish and Anne
K. Gish (“Plaintiffs”) filed a response (Dkt.
#14), RTR filed a reply (Dkt. #19) and, upon order of the
Court (Dkt. #21), a supplement to that reply. Dkt. #23. The
Court has taken judicial notice of the Court's file and
considered the applicable Federal Rules of Civil Procedure
and case law. Now, being fully informed and for the reasons
discussed below, it is ORDERED that that the
subject motion (Dkt. #8) be GRANTED, and
that Plaintiffs' Complaint (Dkt. #1) be
otherwise noted, the following well-pled allegations are
taken from Plaintiffs' Complaint and are presumed to be
true for the purposes of the RTR's motion to dismiss.
are the owners of a parcel of real property located at 9570
W. Maplewood Pl., Littleton, CO 80123. Dkt. #1 at 2, ¶
3. On April 1, 2007, Plaintiffs, pursuant to a Note, borrowed
$49, 500.00 from Clarion Mortgage Capital, Inc.
(“CMC”) and, in turn, executed a Deed a Trust
granting CMC a security interest in the property.
Id., ¶ 5. The servicing rights to
Plaintiffs' loan was then transferred several times.
See Dkt. #1-1 at 32-34. Ultimately, on August 1,
2011, servicing rights were transferred to RTR. Id.
17, 2018, Mr. Gish sent two letters to RTR purporting to be
Qualified Written Requests (“QWR”) pursuant to
the Real Estate Settlement Procedures Act
(“RESPA”). See Id. at 7-21. The letters
request various documents regarding the loan, including loan
origination and transfer documentation and payment
history. RTR responded to the letters on August 1,
2018. See Id. at 31-39.
with RTR's response, Mr. Gish filed a complaint with the
Colorado Division of Banking. On October 18, RTR responded to
the complaint, stating that while RTR had provided Mr. Gish
with complete payment histories-including late fees and
accrued interest-from 2009 through the present, RTR did not
have access to the payment history from April 1, 2007 through
the end of 2008, despite having requested such information
from the prior servicer. Id. at 40-41. RTR informed
Mr. Gish that if it received that information, it would
immediately provide him a copy of it.
then filed suit. In their Complaint (Dkt. #1), they assert
four claims for relief: (1) that RTR violated RESPA by
failing to respond properly to Plaintiffs' QWR; (2) that
RTR violated the Fair Debt Collection Practices Act
(“FDCPA”) by failing to respond properly to their
QWR, by falsely representing the character, amount, or legal
status of any debt, by using a false representation or
deceptive means to collect a debt, and by using unfair and
deceptive means to collect a debt; (3) that RTR committed
fraud by presenting an allegedly forged agreement between
Aurora Loan Services, LLC and RTR and by failing to provide
Plaintiffs with a payment history covering the entire life of
the loan; and (4) that RTR made misrepresentations regarding
its authority to collect the loan, their ownership of the
loan, and the balance of the loan. RTR now moves to dismiss
all four claims under Rule 12(b)(6).
Pro Se Plaintiffs
are proceeding pro se. The Court, therefore, “review[s]
[their] pleadings and other papers liberally and hold[s] them
to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
However, a pro se litigant's “conclusory
allegations without supporting factual averments are
insufficient to state a claim upon which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). A court may not assume that a plaintiff can
prove facts that have not been alleged, or that a defendant
has violated laws in ways that a plaintiff has not alleged.
Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). See
also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (the court may not “supply additional
factual allegations to round out a plaintiffs
complaint”); Drake v. City of Fort Collins,
927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not
“construct arguments or theories for the plaintiff in
the absence of any discussion of those issues”). A
plaintiffs pro se status does not entitle him to an
application of different rules. See Montoya v. Chao,
296 F.3d 952, 957 (10th Cir. 2002).
Motion to Dismiss for Failure to State a Claim
12(b)(6) provides that a defendant may move to dismiss a
claim for “failure to state a claim upon which relief
can be granted.” Fed.R.Civ.P. 12(b)(6). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation
court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff.”
Hall, 935 F.2d at1198. “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plausibility, in the context of a motion to dismiss, means
that the plaintiff pleaded facts which allow “the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The
Iqbal evaluation requires two prongs of analysis.
First, the court identifies “the allegations in the
complaint that are not entitled to the assumption of truth,
” that is, those allegations which are legal
conclusions, bare assertions, or merely conclusory.