Igou et al v. Bank of America, N.A. et al

Filing 33

ORDER. ORDERED that Bank of America, N.A., and BAC Home Loans Servicing, L.P.s Motion to Dismiss Plaintiffs' Complaint And Jury Demand Pursuant To Fed. R. Civ. P.12(b)(6) [ECF No. 16] is GRANTED, and Darrell and Connie Igou's claims are DISMISSED WITHOUT PREJUDICE. ORDERED that Bank of America, N.A., and BAC Home Loans Servicing, L.P.'s Motion For Summary Judgment [ECF No. 32] is DENIED AS MOOT by Judge Wiley Y. Daniel on 05/29/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-01314-WYD-KMT
DARRELL IGOU, and,
CONNIE IGOU,
Plaintiffs,
v.
BANK OF AMERICA, N.A., and,
BAC HOME LOANS SERVICING, L.P.,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
THIS MATTER is before the Court on Bank of America, N.A., and BAC Home
Loans Servicing, L.P.’s Motion to Dismiss Plaintiffs’ Complaint And Jury Demand
Pursuant To Fed. R. Civ. P. 12(b)(6) [ECF No. 16]. For the reasons stated below, the
motion is GRANTED and the plaintiffs’ claims are DISMISSED WITHOUT PREJUDICE.
BACKGROUND
On May 20, 2012, plaintiffs, Darrell and Connie Igou, filed this suit against
defendants, Bank of America, N.A. (“Bank of America”), and BAC Home Loans
Servicing, L.P. (“BAC”) requesting: (1) a declaratory judgment regarding their rights and
obligations pursuant to certain loan and mortgage documents; and, (2) this Court to
issue a preliminary and permanent injunction enjoining Bank of America and BAC from
taking further action to enforce or collect upon a defaulted loan executed by the Igous.

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In 2003, the Igous purchased a home in Littleton, Colorado. The Igous
mortgaged the property and refinanced their loan several times. On September 28,
2011, Bank of America was assigned a deed of trust to the Igous’s home. Bank of
America commenced foreclosure proceedings on the Igous’s home because the Igous’s
allegedly defaulted on their loan. On May 20, 2012, the Igous filed this suit to stop
foreclosure proceedings. In their complaint, the Igous: (1) allege that Bank of America,
BAC, and/or their predecessor(s) in interest failed to make disclosures required by the
Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq.; (2) request a declaratory
judgment, pursuant to 18 U.S.C. § 2201, regarding their rights and obligations under
certain loan and mortgage documents; and, (3) request that this Court enjoin Bank of
America and BAC from taking further action to collect on the alleged defaulted loan. On
September 11, 2012, Bank of America and BAC filed their Motion To Dismiss Plaintiffs’
Complaint And Jury Demand Pursuant To Fed. R. Civ. P. 12(b)(6), arguing that: (1)
Connie Igou lacks standing to bring any claims; (2) the plaintiffs’ TILA claim fails
because Bank of America and BAC made the required discloses under TILA, and the
TILA claim is insufficiently pled and time-barred; and, (3) the plaintiffs are barred from
bringing an action for equitable relief because they failed to tender.
ANALYSIS
A. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(6) of the
FEDERAL RULES of CIVIL PROCEDURE
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.” “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
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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). “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, 129 S.
Ct. 1937 (2007).
In ruling on a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), I “must
accept all the well-pleaded allegations of the complaint as true and construe them in the
light most favorable to the plaintiff.” David v. City and County of Denver, 101 F.3d 1344,
1352 (10th Cir. 1996), cert. denied, 522 S.Ct. 858 (1997)(citations omitted). The plaintiff
“must include enough facts to ‘nudge[] [his] claims across the line from conceivable to
plausible.’” Dennis v. Watco Cos., Inc., 631 F.3d 1303, 1305 (10th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Conclusory allegations are not
sufficient to survive a motion to dismiss. Gallagher v. Shelton, 587 F.3d 1063, 1068
(10th Cir. 2009); see also Twombly, 550 U.S. at 546 (2007) (The plaintiff’s burden
“requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do”). General allegations “encompass[ing] a wide swath of
conduct, much of it innocent” will fail to state a claim. Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008).
B. The Igous’s Complaint
1. Declaratory Judgment
The Igous request that I issue a declaratory judgment declaring their rights and
obligations pursuant to certain loan and mortgage documents. See ECF No. 1, p. 4, ¶
19 (emphasis added) (“Under these circumstances, the Court has authority to declare

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the rights, status, and legal relations of the parties under these written documents”).
However, the Igous do not present any written documents for me to analyze and
interpret. There are no attachments to the complaint [ECF No. 1] and the only exhibit
filed in support of the complaint is the civil cover sheet [ECF No. 2]. With no documents
to analyze and interpret, I have no basis to issue a declaration of rights.
2. TILA Claim and Injunction
The Igous’s basis for an injunction is unclear. What I glean from the complaint is
that: (1) the Igous received a loan to purchase their home in Littleton, CO, and secured
the loan with a mortgage on the property; and, (2) the Igous subsequently rescinded the
loan because First Integrity Title Agency (“First Integrity”) allegedly failed to make
disclosures required by TILA. Therefore, Bank of America and BAC have no right to
foreclose on the Igous’s home in Littleton, CO, because the Igous rescinded the loan.
First, the Igous fail to allege the connection between First Integrity, Bank of
America, and BAC. The Igous do not allege how Bank of America and BAC are liable
for First Integrity’s alleged failure to make TILA disclosures. The Igous merely state that
“[o]n information and belief, the loan was subsequently transferred to the Defendants.”
ECF No. 1, p. 3, ¶ 12. Such a statement does not allege a sufficient nexus between
First Integrity, Bank of America, and BAC. Second, the Igous do not allege what First
Integrity allegedly failed to disclose under TILA. Under Rule 8 of the FEDERAL RULES of
CIVIL PROCEDURE’s notice pleading standard, “[t]echnical fact pleading is not required,
but the complaint must still provide enough factual allegations for a court to infer
potential victory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). Here, the

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Igous allege no connection between First Integrity, Bank of America, and BAC, and do
not allege what First Integrity allegedly failed to disclose under TILA.
Plaintiffs must allege sufficient facts to “nudge[] their claim across the line from
conceivable to plausible.” Bell Atl. Corp., 550 U.S. at 570. The Igous fail to do so.
Because the Igous’s injunction request is based on an alleged TILA violation and such
alleged violation is insufficiently pled, the Igous fail to state a claim upon which relief can
be granted. See Sykes v. Mortg. Elec. Registration Sys., 2012 U.S. Dist. LEXIS 35335,
*17 (D. Idaho March 15, 2012) (dismissing TILA claim because “[p]laintiff fail[ed] to
allege how TILA was violated, and what documents or disclosures he was not provided,
and how he relied upon these alleged inadequate documents or disclosures”);
Tasaranta v. Homecomings Fin., 2009 U.S. Dist. LEXIS 87372, *7 (S.D. Cal. Sept. 21,
2009) (dismissing TILA claims because plaintiffs failed to allege which TILA provision
the defendants allegedly violated and because the plaintiffs made “conclusory
allegations” that the defendants “improperly retained funds” and failed to disclose “true
finance charges and fees”).
Because of the deficiencies stated above, the Igous’s claims are DISMISSED
WITHOUT PREJUDICE.
CONCLUSION
After careful consideration of the matters before this Court, it is
ORDERED that Bank of America, N.A., and BAC Home Loans Servicing, L.P.’s
Motion to Dismiss Plaintiffs’ Complaint And Jury Demand Pursuant To Fed. R. Civ. P.

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12(b)(6) [ECF No. 16] is GRANTED, and Darrell and Connie Igou’s claims are
DISMISSED WITHOUT PREJUDICE.1 In light of this ruling, it is
FURTHER ORDERED that Bank of America, N.A., and BAC Home Loans
Servicing, L.P.’s Motion For Summary Judgment [ECF No. 32] is DENIED AS MOOT.
Dated: May 29, 2013.
BY THE COURT:

/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

1

This ruling is limited in scope to the issues specifically addressed in this Order.

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