Tatten v. Bank of America Corporation et al

Filing 35

ORDER denying without prejudice 34 Plaintiff's Motion for Leave to File Amended Pleading. On or before 1/17/2013, Plaintiff may file a renewed motion to amend his complaint in accordance with this court's Order of December 17, 2012. The court will withhold entering final judgment at this time. By Magistrate Judge Kathleen M. Tafoya on 1/7/13.(mnfsl, )

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
Defendants.

ORDER

This matter is before the court on Plaintiff’s “Motion for Leave to File Amended
Pleading” (Doc. No. 34, filed January 6, 2013).
On December 17, 2012, this Court entered its Order granting Defendants’ Renewed
Motion to Dismiss. (Doc. No. 32.) This court, however, allowed Plaintiff to file, within twenty
days of the 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. (Id. at 18.)
Contrary to this court’s Order, Plaintiff has filed his motion to amend his complaint, but
continues to assert claims against Defendant Moynihan, as well as new claims for “Covenant of
Good Faith and Fair Dealing” (Doc. No. 34-1 at 40–43) and “Fraud or Mistake” (id. At 43–44).

Therefore, Plaintiff’s “Motion for Leave to File Amended Pleading” (Doc. No. 34) is DENIED
without prejudice.
On or before January 17, 2013, Plaintiff may file a renewed motion to amend his
complaint in accordance with this court’s Order of December 17, 2012. The court will withhold
entering final judgment at this time. If Plaintiff files, on or before January 17, 2013, a renewed
motion to amend his complaint to cure the deficiencies and to assert only the fraudulent
misrepresentation and breach of contract claims against the Bank of America Defendants, the
court will then enter final judgment only if it denies the motion. If Plaintiff files a renewed
motion to amend his complaint that does not comply with this court’s Order of December 17,
2012, the motion to amend will be denied and final judgment will enter.
Dated this 7th day of January, 2013.

2