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Gish v. Real Time Resolutions, Inc.

United States District Court, D. Colorado

December 4, 2019

JEREMIAH J. GISH and ANNE K. GISH, Plaintiffs,
REAL TIME RESOLUTIONS, INC., a Texas Corporation, and DOES 1 through 100, inclusive, Defendant.


          N. Reid Neureiter United States Magistrate Judge

         This 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 DISMISSED.


         Unless 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.

         Plaintiffs 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.[1] Ultimately, on August 1, 2011, servicing rights were transferred to RTR. Id. at 35-38.

         On July 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.[2] RTR responded to the letters on August 1, 2018. See Id. at 31-39.

         Unsatisfied 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.

         Plaintiffs 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).


         I. Pro Se Plaintiffs

         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).

         II. Motion to Dismiss for Failure to State a Claim

         Rule 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 marks omitted).

         “A 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. I ...

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