Cole v. Chase Home Finance LLC et al

Filing 41

ORDER. The Motion to Amend 29 is GRANTED. The Court accepts Plaintiff's First Amended Complaint [29-1] for filing as of the date of this Order. Defendant shall file an answer or other responsive pleading to the First Amended Complaint on or before March 4, 2013. Motion to Dismiss 18 is DENIED as moot. By Magistrate Judge Kristen L. Mix on 2/15/2013. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01452-REB-KLM
ANDREW COLE,
Plaintiff,
v.
CHASE HOME FINANCE LLC, and
JPMORGAN CHASE BANK, N.A.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant JPMorgan Chase Bank, N.A.’s
(“Defendant”) Motion to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P.
12(b)(6) [Docket No. 18; Filed November 9, 2012] (the “Motion to Dismiss”) and on
Plaintiff’s Opposed Motion of Plaintiff for Leave to File First Amended Complaint
[Docket No. 29; Filed December 27, 2012] (the “Motion to Amend”). On January 24, 2013,
Defendant filed a Response [#39] in opposition to the Motion to Amend. On February 7,
2013, Plaintiff filed a Reply [#40]. The Motion to Amend is thus fully briefed and ripe for
resolution. For the reasons set forth below, the Court GRANTS the Motion to Amend [#29]
and DENIES as moot the Motion to Dismiss [#18].
This matter pertains to a mortgage loan Plaintiff obtained from Defendant and
Defendant’s later commencement of non-judicial foreclosure proceedings against him. In
both the original Complaint and the proposed First Amended Complaint, Plaintiff asserts
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six claims: (1) violation of the Real Estate Settlement Procedures Act (“RESPA”); (2)
violation of C.R.S. §§ 38-40-103 and 38-40-104; (3) breach of contract; (4) wrongful
foreclosure; (5) intentional infliction of emotional distress (“IIED”); and (6) violation of the
Colorado Consumer Protection Act (“CCPA”). On November 9, 2012, Defendant filed the
Motion to Dismiss [#18], seeking dismissal of all of Plaintiff’s causes of action. On
December 27, 2012, Plaintiff filed a brief Response [#30] to the Motion to Dismiss,
informing the Court that he was electing to amend his Complaint to address some of the
deficiencies about which Defendant complained in the Motion to Dismiss. Plaintiff filed the
Motion to Amend [#29] the same day. In the Motion to Amend, Plaintiff stated, “While
Defendant’s motion raises several hotly contested questions of law, the motion also makes
numerous specificity claims under Twombly that can be avoided by amendment.” [#29] at
1. Plaintiff further stated that, “Plaintiff has redrafted the complaint and is herewith moving
to file a First Amended Complaint to avoid the legitimate Twombly issues.” Id. Defendant
responded by stating that Plaintiff’s proposed amendments are futile and therefore the
Motion to Amend should be denied. Response [#39] at 4.
As a preliminary matter, a Scheduling Conference has not yet been held in this
matter, and thus Plaintiff’s request to amend the Complaint is timely. The Court therefore
considers any arguments raised by the parties related to whether justice would be served
by amendment. Specifically, the Court should grant leave to amend “freely . . . when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave should generally be permitted unless
the moving party unduly delayed or failed to cure, the opposing party would be unduly
prejudiced, or the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178,
182 (1962).
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Here, Defendant argues that Plaintiff’s amendments are futile. Response [#39] at
4. An amendment is futile if it would not survive a motion to dismiss. Innovatier, Inc. v.
CardXX, Inc., No. 08-cv-00273-PAB-KLM, 2010 WL 148285, at *2 (D. Colo. Jan. 8, 2010)
(citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). However, the Court
notes that this case is still in its earliest stages. Plaintiff has neither filed an amended
complaint as a matter of course nor previously sought leave to amend his Complaint. No
ruling has issued on any dispositive motion. A Scheduling Conference has not yet been
held and discovery has not commenced. At this stage of the proceedings, the Tenth Circuit
has expressed that, “[T]he preferred practice is to accord a [party] notice and an
opportunity to amend his [pleading] before acting upon a motion to dismiss for failure to
state a claim[.]”

McKinney v. Okla., 925 F.2d 363, 365 (10th Cir. 1991).

In the

circumstances at hand, therefore, the Court will not deny leave to amend on the basis of
futility.

Thus, the Court permits Plaintiff leave to file a First Amended Complaint.

Accordingly,
IT IS HEREBY ORDERED that the Motion to Amend [#29] is GRANTED.
IT IS FURTHER ORDERED that the Court accepts Plaintiff’s First Amended
Complaint [#29-1] for filing as of the date of this Order.
IT IS FURTHER ORDERED that Defendant shall file an answer or other responsive
pleading to the First Amended Complaint on or before March 4, 2013.
IT IS FURTHER ORDERED that the Motion to Dismiss [#18] is DENIED as moot.
See, e.g., Strich v. United States, No. 09-cv-01913-REB-KLM, 2010 WL 14826, at *1 (D.
Colo. Jan. 11, 2010) (citations omitted) (“The filing of an amended complaint moots a

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motion to dismiss directed at the complaint that is supplanted and superseded.”);
Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006) (noting that
defendants’ motions to dismiss are “technically moot because they are directed at a
pleading that is no longer operative”).
Dated: February 15, 2013

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