Tatten v. Bank of America Corporation et al

Filing 32

ORDER by Magistrate Judge Kathleen M. Tafoya on 12/17/12 GRANTING 27 Defendant's Motion to Dismiss Complaint. ORDERED that Plaintiff may file, within twenty days of this Order, a motion to amend the complaint, along with a proposed Amended Complaint asserting only the fraudulent misrepresentation claim and the breach of contract claim related to the loan modification agreement. The court will withhold entering final judgment at this time.(nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–00459–KMT

JAMES P. TATTEN, individually,
Plaintiff,
v.
BANK OF AMERICA CORPORATION,
BANK OF AMERICA, N.A.,
BAC HOME LOANS SERVICING, LP, and
BRIAN T. MOYNIHAN, in his capacity as President and Chief Executive Officer,
Defendants.

ORDER

This matter is before the court on “Defendants’ Renewed Motion to Dismiss Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6)” (Doc. No. 27 [Mot.], filed June 20, 2012). Plaintiff did not
file a response to the motion. This matter is ripe for ruling.
I. FACTUAL BACKGROUND
In his Complaint, Plaintiff states in November 2008, he suffered a head injury and was
hospitalized for intensive inpatient rehabilitation. (Doc. No. 3, ¶¶ 2–5.) Plaintiff states in
January 2009, he notified Defendant Bank of America (“BOA”) that he was being treated for
traumatic brain injury and that he would need assistance of his family in “identifying and
handling his financial matters, including his accounts with Bank of America.” (Id., ¶ 6.)

Plaintiff alleges after January 2009, Defendant BOA “engaged in wrongful and unlawful conduct
directed at Plaintiff Tatten’s and his account(s), loan modification(s) and real property . . . .”
(Id., ¶ 7.) Plaintiff alleges Defendant BOA made “statements to mislead, misrepresent and
deceive the terms, conditions, costs and effect of loan modification” and coerced Plaintiff into
signing a mortgage loan modification. (Id., ¶ 9.)
At some point, Plaintiff stopped making his monthly loan payments (id., ¶ 36), and on
June 15, 2009, he received a letter from BOA’s counsel advising foreclosure proceedings had
begun. (Id., ¶ 37.) Plaintiff alleges on July 15, 2009, he received assurances from BOA that his
account was “on hold” and his home was not in foreclosure. (Id., ¶ 38.) On August 29, 2009,
Plaintiff received another loan modification agreement from BOA, which Plaintiff was instructed
to review, sign, and deliver to BOA on or before September 28, 2009. (Id., ¶ 42.) Plaintiff
alleges on September 17, 2009, he received a “wrongful and incorrect notice of cancelation
[sic]” from BOA, and on September 22, 2009, BOA’s counsel wrote to Plaintiff to advise him
that BOA had instructed them to proceed with foreclosure. (Id., ¶¶ 43–44.)
Plaintiff states that he wrote letters to BOA’s counsel, and on September 28, 2009,
“under duress, amended, signed, notarized and delivered” the loan modification to BOA. (Id., ¶¶
45–47.) On October 8, 2009, the Public Trustee for Denver County set the auction of Plaintiff’s
property for October 15, 2009. (Id., ¶ 48.)
Plaintiff alleges on October 27, he received another letter from BOA “contain[ing]
statements of material facts that are misleading, false and fraudulent.” (Id., ¶ 50.) On October
28, 2011, Plaintiff filed Consumer Complaint with the United States Department of Treasury,
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Comptroller of the Currency, Administrator of National Banks. (Id., ¶ 51.) On January 18,
2012, Plaintiff received notice from the Office of the Comptroller of the Currency that his
request for review of BOA’s foreclosure action was received. (Id., ¶ 52.) Plaintiff states a Rule
120 foreclosure hearing was held on January 20, 2012, BOA’s attorney “made statements to the
Court that mislead and misrepresented documents, terms, conditions and business decisions
material to the case . . . thereby convincing the Court to authorize [BOA] to proceed with a
wrongful and unlawful foreclosure.” (Id., ¶ 53.)
Plaintiff asserts four claims for relief against all defendants, including a claim for
fraudulent misrepresentation, intentional infliction of emotional distress, breach of contract,
breach of fiduciary duty, and violation of the Real Estate Settlement Procedures Act (“RESPA”).
(See id. at 14–22.)
Defendants move to dismiss Plaintiff’s claims under Fed. R. Civ. P. 12(b)(6) on the bases
that (1) Plaintiff has failed to plead his fraud claim with specificity; (2) Plaintiff has not alleged
any outrageous conduct; (3) Plaintiff has failed to plead any of the elements of breach of
contract; (4) Plaintiff cannot establish the existence of a fiduciary duty owed by the defendants;
and (5) Plaintiff’s RESPA claim is barred by the statute of limitations. (See Mot.)
II. LEGAL STANDARDS
A.

Pro Se Plaintiff

Plaintiff is proceeding pro se. The court, therefore, “review[s] his 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); see also
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Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding allegations of a pro se complaint “to less
stringent standards than formal pleadings drafted by lawyers”). 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)
(citations omitted). 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) (a court may not “supply
additional factual allegations to round out a plaintiff’s 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”).
B.

Failure to State a Claim Upon Which Relief Can Be Granted

Fed. R. Civ. P. 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) (2007).
“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 v.
Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “To survive a motion to dismiss, a complaint
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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, 129 S. Ct. 1937, 1949 (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 pled 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 conclusion, bare
assertions, or merely conclusory. Id. at 1949–51. Second, the Court considers the factual
allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the
allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at
1950.
Notwithstanding, the court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.
1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1940.
Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. at 1949 (citation omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of

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the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal,129 S. Ct. at 1949
(citation omitted).
III. ANALYSIS
A.

Personal Participation of Defendant Moynihan
Defendants argue that the tort claims against Defendant Moynihan fail because Plaintiff

has failed to allege personal participation by Defendant Moynihan. As a general rule, a
corporate officer or shareholder, by virtue of that status alone is not liable for the acts or debts of
the corporation. Newport Steel Corp. v. Thompson, 757 F. Supp. 1152, 1156 (D. Colo. 1990)
(“A corporation is a separate entity distinct from the individuals comprising it. Personal liability
cannot be imposed on an officer of a corporation merely because that individual is serving in
such a capacity.”) (citing United States v. Van Diviner, 822 F.2d 960, 963 (10th Cir. 1987)).
Corporate agents are liable for torts of the corporation if they approved of, sanctioned, directed,
actively participated in, or cooperated in such conduct. Hoang v. Arbess, 80 P.3d 863, 868
(Colo. App. 2003).
Here, Plaintiff states that Defendant Moynihan “is being sued in his official capacity as
the Chief Executive Officer of Bank of America Corporation and employed by Bank of America
Corporation with responsibility for the acts, conduct and business practices of Bank of America
Corporation.” (Doc. No. 3 at 6, ¶ 20.) Plaintiff alleges only that Defendant Moynihan
committed the alleged acts “by and through the employees, representatives and agents of the
Office of the Chief Executive Office and President.” (Id. at 13, ¶ 54.) However, Plaintiff fails to
allege that Defendant Moynihan “approved of, sanctioned, directed, actively participated in, or
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cooperated in” any of the alleged wrongdoing. Hoang, 80 P.3d at 868. Rather, Plaintiff alleges
only that he had communication with the “Office of the Chief Executive Officer.” (See Doc. No.
3, ¶¶ 35, 38, 39, 50, 54, 64–65, 73, 85, 91–94.) Plaintiff’s allegations against Defendant
Moynihan are insufficient to show his personal participation in the alleged torts, and the tort
claims against Defendant Moynihan are dismissed.
B.

Defendant Moynihan’s Liability for Contract Claims
Defendants also argue that Defendant Moynihan cannot be held liable for the contracts of

the corporation. Two important principles of law insulate corporate officers from individual
liability when they are acting on behalf of the corporate entity.
First, a corporation is always a separate entity distinct from its officers, directors, or
investors. Newport Steel Corp. v. Thompson, 757 F. Supp. 1152, 1156 (D. Colo. 1990). A court
generally will not allow the corporate veil to be pierced except in certain factual circumstances.
The court considers a variety of factors to determine whether the corporate form should be
disregarded including:
(1) whether the corporation is operated as a separate entity, (2) commingling of
funds and other assets, (3) failure to maintain adequate corporate records, (4) the
nature of the corporation's ownership and control, (5) absence of corporate assets
and undercapitalization, (6) use of the corporation as a mere shell, (7) disregard of
legal formalities, and (8) diversion of the corporation's funds or assets to
noncorporate uses.
Newport Steel, 757 F. Supp. at 1157. Here, however, Plaintiff did not plead or ask for relief
under this theory, nor has he made any allegations that support such a claim.

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Second, “[g]enerally, a corporate officer acting in his or her representative capacity and
within his or her actual authority is not personally liable for such representative acts unless
acting on behalf of an undisclosed principal.” Kunz v. Cycles West, Inc., 969 P.2d 781, 784
(Colo. App.1998). Furthermore, “unless otherwise agreed, a person making or purporting to
make a contract with another as agent for a disclosed principal does not become a party to the
contract.” Restatement (Second) of Agency § 320 (1958). In this case, it is clear from the
Complaint that Plaintiff knew he was dealing with a BOA, a corporation, and not an officer on
behalf of an undisclosed principal. Thus, Defendant Moynihan cannot be held personally liable
for the contracts between Plaintiff and BOA, and the contract claims against Defendant
Moynihan are dismissed.
C.

Fraudulent Misrepresentation Claim
Defendants argue that Plaintiff’s fraudulent misrepresentation claim fails for lack of

specificity and also because Plaintiff has failed to establish that BOA made any
misrepresentation with respect to his loan or to allege any damages.
A plaintiff must plead “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Fraud claims, however, must meet more stringent
standards. See Fed. R. Civ. P. 9(b). “In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “The
requirements of Rule 9(b) must be read in conjunction with the principles of Rule 8, which calls
for pleadings to be ‘simple, concise, and direct, . . . and to be construed as to do substantial
justice.’ ” Schwartz v. Celestial Seasonings, Inc., 124 F.3d at 1252.
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The requirement of pleading with particularity protects defendants’ reputations from the
harm attendant to accusations of fraud or dishonest conduct. See United States ex rel. Harrison
v. Westinghouse Savannah River Co., 352 F.3d 908, 921 (4th Cir. 2003) (“Rule 9(b) protects
defendants from harm to their goodwill and reputation.” (internal quotation marks omitted));
Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th Cir. 1992) (“[The particularity requirement]
stems from the obvious concerns that general, unsubstantiated charges of fraud can do damage to
defendant's reputation.”). The requirement to plead with particularity also puts defendants on
notice of the allegedly fraudulent conduct so that they can formulate a defense. See
Westinghouse, 352 F.3d at 921. A related goal of Rule 9(b) is to prevent plaintiffs from tagging
on specious fraud claims to their pleadings in an attempt “to induce advantageous settlements or
for other ulterior purposes.” Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 683 (7th
Cir. 1992).
The Tenth Circuit has fleshed out the components necessary for a successful Rule 9(b)
pleading. In Sheldon v. Vermonty, 246 F.3d 682, 2000 WL 1774038 (10th Cir. 2000)
(unpublished table decision), the Tenth Circuit held that the plaintiff had alleged with specific
particularity a violation of the Securities Exchange Act of 1934. See 246 F.3d 682, 2000 WL
1774038, at *4. The Tenth Circuit concluded that the complaint adequately met Rule 9(b)
requirements because, first, it alleged misrepresentations with background information as to date,
speaker, and the medium of communication. Id. at 5. Second, certain alleged misrepresentations
involved “patently false statements of present fact.” Id. Third, the allegations of scienter were
sufficient. Id.
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“At a minimum, Rule 9(b) requires that a plaintiff set forth the who, what, when, where
and how of the alleged fraud.” United States ex rel. Schwartz v. Coastal Healthcare Grp., Inc.,
232 F.3d 902, 2000 WL 1595976, at *3 (10th Cir.2000) (unpublished table decision). “To
survive a motion to dismiss, an allegation of fraud must ‘set forth the time, place, and contents of
the false representation, the identity of the party making the false statements and the
consequences thereof.’ ” Midgley v. Rayrock Mines, Inc., 374 F. Supp.2d 1039, 1047 (D.N.M.
2005) (quoting Schwartz v. Celestial Seasonings, Inc., 124 F.3d at 1252).
Plaintiff alleges Defendant BOA “defrauded” him “for the purpose of obtaining money;
causing economic loss, causing non-economic loss; and terminating the Plaintiff[’s] rights and
interest in the unique, real property . . . .” (Doc. No. 3 at 4, ¶ 10; see generally id., ¶¶ 28, 36,
50–51, 62, 73, 74, 93.) These statements are merely conclusory, not factual. Plaintiff has failed
to identify which statements contained in which documents or made by which persons were
fraudulent and the reasons for those beliefs. Moreover, Plaintiff does not identify who made
those statements, when they were made, or under what circumstances. Because Plaintiff’s
fraudulent misrepresentation claim has failed to “set forth the who, what, when, where and how
of the alleged fraud,” Coastal Healthcare, 232 F.3d at *3, and the mandate of Rule 9(b), it is
dismissed.
D.

Breach of Contract Claim
Defendants argue Plaintiff has failed to plead the elements necessary for a breach of

contract claim. To state a claim for breach of contract under Colorado law, a plaintiff must
sufficiently plead the following elements: (1) the existence of a contract; (2) performance by the
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plaintiff or some justification for nonperformance; (3) failure to perform the contract by the
defendant; and (4) resulting damages to the plaintiff. W. Distrib. Co. v. Diodosio, 841 P.2d
1053, 1058 (Colo. 1992).
Plaintiff alleges that the defendants breached three different contracts. First, Plaintiff
alleges the defendants breached the “InterestOnly” Adjustable Rate Note, which was the original
note and deed of trust associated with the purchase of his property. (Doc. No. 3 at 17, ¶¶ 72–78.)
However, Plaintiff concedes that contract was “entered into on March 03, 2004 by Plaintiff and
American Mortgage Network, Inc.” (Id., ¶ 73.) Plaintiff also seems to dispute that Defendant
BOA has any interest in the original note. (Id., ¶ 78.) Therefore, because Plaintiff has failed to
allege that the defendants were contracting parties to the original note and deed of trust, he has
failed to state a claim for breach of that contract.
Moreover, Plaintiff has failed to provide any factual allegations to support any one of the
four elements necessary to state a breach of contract claim as to the original note. The only
allegations stated are conclusory in nature. (See id., ¶¶ 72–78.) Plaintiff merely alleges that the
defendants “engaged in conduct” regarding the terms and conditions of the note, primarily
including misleading and misrepresenting material facts. (See id.) Such allegations qualify only
as bare assertions and are not sufficient to state a claim. See Iqbal, 129 S. Ct. at 1949.
Plaintiff next alleges that the defendants breached the loan modification agreement, again
by misleading and misrepresenting material facts about the terms and conditions of the
agreement. (See Doc. No. 3, ¶¶ 79–83.) Plaintiff also alleges the defendants breached the loan
modification by “demanding different terms, different payments in excess of the amount agreed
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to and by foreclosing on [Plaintiff’s] home.” (Id., ¶ 83.) Once again, these vague and
conclusory allegations are insufficient to state a claim for breach of contract. See Iqbal, 129 S.
Ct. at 1949.
Finally, Plaintiff alleges that the defendants breached a “forebearance agreement.” (See
Doc. No. 3, ¶¶ 84–89.) However, Plaintiff alleges only that he was “assured” by the defendants
that they had “granted him a ‘Special Forebearance.’ ” (Id., ¶ 85.) Plaintiff seems unsure
whether any forebearance agreement existed, stating, “[BOA] breached the terms, conditions and
effect of a special forebearance by continuing its efforts to move his home towards foreclosure
during the period of the forebearance agreement, if any.” (Id., ¶ 86.) Thus, the court finds
Plaintiff has failed to allege that there was a contract.
Based on the foregoing, Plaintiff’s breach of contract claims are dismissed.
E.

Claim for Breach of Fiduciary Duty
Defendants argue Plaintiff’s breach of fiduciary claim fails because the defendants owed

Plaintiff no duty.
To recover for a breach of fiduciary duty, Plaintiff, inter alia, must establish that the
defendants and the plaintiff were in a fiduciary relationship and that the defendants owed the
plaintiff a duty. F.D.I.C. v. First Interstate Bank of Denver, N.A., 937 F. Supp. 1461, 1476 (D.
Colo. 1996.) In the absence of special circumstances, the relationship between a lending
institution and its customer is merely one of creditor and debtor. Premier Farm Credit, PCA v.
W–Cattle, LLC, 155 P.3d 504, 523 (Colo. App. 2007).

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While there is no per se fiduciary relationship between a borrower and lender, a
fiduciary duty may arise from a business or confidential relationship which impels
or induces one party “to relax the care and vigilance it would and should have
ordinarily exercised in dealing with a stranger.” “A confidential relationship
arises when one party has justifiably reposed confidence in another.” . . . [A]
fiduciary relationship between a borrower and lender has been found to exist
where there is a repose of trust by the customer along with an acceptance or
invitation of such trust on the part of the lending institution.
Dolton v. Capitol Federal Savings & Loan Association, 642 P.2d 21, 23–24 (Colo. App. 1981)
(citations omitted); see also Rubenstein v. South Denver Nat’l Bank, 762 P.2d 755, 756 (Colo.
App. 1988). A confidential relationship may arise under circumstances in which a person
occupies a superior position over another with the opportunity to use that superiority to his
advantage over the other. United Fire & Casualty Co. v. Nissan Motor Corp., 164 Colo. 42, 433
P.2d 769 (1967).
Here, Plaintiff apparently believes the defendants owed him a duty because “they knew
[he] was suffering from traumatic brain injuries.” (Doc. No. 3, ¶ 91.) Plaintiff also alleges that
Defendant BOA “was in a superior and/or inherently unequal informational, financial,
negotiating and/or bargaining position.” (Id., ¶ 92.) However, the fact that Plaintiff had a brain
injury does not place a higher duty upon the defendants to safeguard the plaintiff’s interests. In
order to be liable the superior party must assume a duty to act in the dependent party’s best
interest. See Hill v. Bache Halsey Stuart Shields Inc., 790 F.2d 817 (10th Cir. 1986)
(recognizing that fiduciary liability requires not only a repose of trust, but an assumption of a
duty and breach of that duty); First Nat’l Bank of Meeker v. Theos, 794 P.2d 1055 (Colo. App.
1990) (same). Here, Plaintiff does not allege facts showing a voluntary assumption of such duty

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by defendants. Moreover, Plaintiff has not alleged that there was any acceptance or invitation of
a repose of trust. Dolton, 642 P.2d at 24.
Because Plaintiff has not come forward with facts that would establish a cause of action
for breach of fiduciary duty against the defendants, the claim fails and is dismissed.
F.

Claim for Violation of RESPA
Defendants argue that Plaintiff’s RESPA claim is insufficiently pleaded. In his

Complaint, Plaintiff contends that the defendants violated RESPA by failing to respond to his
“qualified written request” for an “investigation of misrepresentations made by [Defendant
BOA] with respect to his mortgage account and foreclosure . . . .” (Doc. No. 3, ¶ 100.)
The purpose of RESPA is to make sure that consumers receive information regarding the
nature, settlement costs, and servicing of home loans. 12 U.S.C. § 2601(a). If a loan servicer
receives a qualified written request (“QWR”) from the borrower seeking information relating to
the servicing of a loan, the servicer must provide a written response acknowledging the
correspondence within 20 days. 12 U.S.C. § 2605(e)(1)(A). A QWR must “include[ ], or
otherwise enable[ ] the servicer to identify, the name and account of the borrower” and
“include[ ] a statement of the reasons for the belief of the borrower, to the extent applicable, that
the account is in error or provides sufficient detail to the servicer regarding other information
sought by the borrower.” § 2605(e)(1)(B). Furthermore, “a letter cannot be ‘qualified’ under the
statute if it does not relate to the servicing of the account.” Harris v. American General Finance,
Inc., No. Civ. A. 02-1395-MLB, 2005 WL 1593673, at*3 (D. Kan. July 6, 2005). The statute
defines “servicing” as “receiving any scheduled periodic payments from a borrower pursuant to
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the terms of any loan . . . and making the payments of principal and interest and such other
payments with respect to the amounts received from the borrower as may be required pursuant to
the terms of the loan.” § 2605(i)(3).
Plaintiff’s RESPA claim fails because his letter requesting an investigation of
misrepresentations allegedly made by Defendant BOA does not qualify as a QWR under
RESPA. Accordingly, Plaintiff’s RESPA claim is dismissed.
G.

Claim for Intentional Infliction of Emotional Distress
Defendants argue Plaintiff’s claim for intentional infliction of emotional distress must fail

because Plaintiff alleges no outrageous conduct on the part of the defendants.
Colorado law recognizes a cause of action for outrageous conduct (sometimes called
“intentional infliction of emotional distress”). Under Colorado law, the elements of the tort of
outrageous conduct are: (1) the defendant engaged in extreme and outrageous conduct; (2)
recklessly or with the intent of causing the plaintiff severe emotional distress; and (3) causing the
plaintiff severe emotional distress. Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 882 (Colo.
1994). “[T]he level of outrageousness required [to create liability for this tort] is extremely high:
. . . the conduct [must be] so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999). “Although
the question of whether conduct is outrageous is generally one of fact to be determined by a jury,
it is first the responsibility of a court to determine whether reasonable persons could differ on the
question.” Culpepper, 877 P.2d at 883. As for the intent element of the tort,
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A person acts with intent to cause severe emotional distress when he engages in
conduct with the purpose of causing severe emotional distress to another person,
or he knows that his conduct is certain or substantially certain to have that result.
A person acts recklessly in causing severe emotional distress in another if, at the
time of the conduct, he knew or reasonably should have known that there was a
substantial probability that his conduct would cause severe emotional distress to
the other person.
Culpepper, 877 P.2d at 882–83.
Plaintiff alleges that Defendants’ “misrepresentations” and its “statements, conduct and
practices” caused him emotional harm. (Doc. No. 3, ¶¶ 62, 68–69.) However, the “conduct”
generally described in the Complaint does not plausibly rise to the level of “extreme or
outrageous” conduct actionable under the tort. Moreover, Plaintiff does not assert that
Defendants acted either intentionally or recklessly.
Thus, Plaintiffs have failed to plausibly plead a claim for intentional infliction of
emotional distress, and the claim is dismissed.
H.

Leave to Amend
Dismissal of a case under Fed. R. Civ. P. 12(b)(6) is a harsh remedy to be used cautiously

so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman
Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir. 1989). As such, in
this jurisdiction, the court typically does not dismiss a claim under Rule 12(b)(6) until the
plaintiff has been provided notice and an opportunity to amend the complaint to cure the
defective allegations. See Bellmon, 935 F.2d at 1109–10.
Plaintiff is proceeding pro se and has not been previously granted leave to amend. In
determining whether additional leave to amend would cure the deficiencies of Plaintiff’s claims,
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the court looks at each category of claims in turn. As to the tort claims against Defendant
Moynihan, the court finds amending the complaint would be futile because Plaintiff seeks to
hold Defendant Moynihan liable only because of his position as Chief Executive Officer of Bank
of America Corporation. There is absolutely no factual support for the proposition that
Defendant Moynihan “approved of, sanctioned, directed, actively participated in, or cooperated
in” any of the alleged wrongdoing. Hoang, 80 P.3d at 868. Similarly, as to the contract claims
against Defendant Moynihan, the court finds amending the complaint would be futile because
Defendant Moynihan cannot be held liable for the contracts of the corporation, nor can he be
personally liable for breach of contract to which neither BOA nor Moynihan were parties.
Finally, the court finds amending the complaint to reassert the breach of fiduciary duty claim
would be futile, as the there was no fiduciary relationship between Plaintiff and the defendants,
and amendment to the RESPA claim would be futile because it is clear that Plaintiff’s letter to
the defendants did not relate to the servicing of his account, and thus it was not legally a QWR.
Plaintiff’s emotional distress claim is similarly deficient, as Plaintiff failed to describe any
circumstances that were plausibly “extreme or outrageous.” Although it is always theoretically
possible that more information could be found in the course of discovery, the applicable pleading
standard “does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” See Iqbal, 129 S. Ct. at 1949.
However, as to the fraudulent misrepresentation claim, the court finds that Plaintiff
should be allowed to move to amend his complaint. However, to the extent Plaintiff wishes to
amend and reassert a properly pleaded fraudulent misrepresentation claim, he must follow the
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mandates of Rules 8 and 9 as explained supra. As to the breach of contract claims, the court also
finds Plaintiff should be allowed to move to amend, but only to the extent he wishes to reassert
the claim related to the alleged breach of the loan modification agreement. To allow
amendments of the breach of contract claims related to the original note and the forebearance
agreement would be futile.
WHEREFORE, it is
ORDERED that “Defendants’ Renewed Motion to Dismiss Complaint Pursuant to Fed.
R. Civ. P. 12(b)(6)” (Doc. No. 27) is GRANTED. It is further
ORDERED that Plaintiff may file, within twenty days of this Order, a motion to amend
the complaint, along with a proposed Amended Complaint asserting only the fraudulent
misrepresentation claim and the breach of contract claim related to the loan modification
agreement. The court will withhold entering final judgment at this time. If Plaintiff timely files
a motion to amend his complaint to cure the deficiencies and to assert the fraudulent
misrepresentation and breach of contract claims, the court will then enter final judgment only if
it denies the motion.
Dated this 17th day of December, 2012.

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