Virostek et al v. IndyMac Mortgage Services et al

Filing 49

Notice of Conversion to Summary Judgment. ORDERED that any additional briefing by either party must be submitted on or before April 20, 2012 by Magistrate Judge Michael E. Hegarty on 04/04/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00030-WYD-MEH
JOHN B. VIROSTEK, and
ROBIN WOOD-VIROSTEK,
Plaintiffs,
v.
INDYMAC MORTGAGE SERVICES,
ONE WEST BANK,
DEUTSCHE BANK NATIONAL TRUST, and
MORTGAGE ELECTRONIC REGISTRATION SYSTEM (MERS),
Defendants.

NOTICE OF CONVERSION TO SUMMARY JUDGMENT
______________________________________________________________________________
Before the Court is the Defendants IndyMac Mortgage Services, OneWest Bank, FSB,
Deutsche Bank National Trust and Mortgage Electronic Registration Systems’ Motion to Dismiss
Plaintiffs’ Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) [docket #41], alleging
that Plaintiffs fail to state a claim upon which relief may be granted in part because Plaintiffs agreed
to release claims in exchange for a money payment. Plaintiffs timely filed a response to the motion
and Defendants a reply brief in support of the motion. With the motion, the Defendants attached
several documents in support of their position, including a copy of the settlement release.
Because the Defendants wish to support their Motion to Dismiss with evidence (documents)
outside of the pleadings, it is proper to inform the parties that the Court will convert the Motion to
Dismiss into a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56. See David v. City &
County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996). Consequently, either party may submit
any additional briefing on the motion (particularly with respect to the alleged settlement), and in

such additional briefing, the parties may respond to the materials already submitted by the
Defendants with any “material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).
Therefore, it is ORDERED that any additional briefing by either party must be submitted on
or before April 20, 2012.
Dated at Denver, Colorado, this 4th day of April, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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