Giesbrecht et al v. Wells Fargo Bank N.A. et al

Filing 6

ORDER. The 1 Complaint is stricken for failure to comply with Fed. R. Civ. P. 8; Fed. R. Civ. P. 9; D.C.COLO.LCivR 8.1A; and Fed. R. Civ. P. 11. On or before 1/28/2013, the plaintiffs shall submit an amended complaint that complies with Fed. R. Civ. P. 8; Fed. R. Civ. P. 9; D.C.COLO.LCivR 8.1A; Fed. R. Civ. P. 11; and this order. By Magistrate Judge Boyd N. Boland on 1/11/13. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00020-PAB-BNB
TYSON L. GIESBRECHT, and
TAMI J. GIESBRECHT,
Plaintiffs,
v.
WELLS FARGO BANK N.A., a national banking association, as alleged successor in interest to
Mortgage Solutions of Colorado, LLC, and
WELLS FARGO HOME MORGAGE,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on the plaintiffs’ Verified Complaint [Doc. #1, filed 1/4/2013]
(the “Complaint”). The Complaint is STRICKEN, and the plaintiffs are directed to submit an
amended complaint that complies with this order.
The Federal Rules of Civil Procedure require that a complaint contain “(1) a short and
plain statement of the grounds for the court's jurisdiction, . . . (2) a short and plain statement of
the claim showing that the pleader is entitled to relief; and (3) a demand for the relief
sought . . . .” Fed. R. Civ. P. 8(a). “[T]he only permissible pleading is a short and plain
statement of the claim showing that the pleader is entitled to relief on any legally sustainable
grounds.” Blazer v. Black, 196 F.2d 139, 144 (10th Cir. 1952). “[T]o state a claim in federal
court, a complaint must explain what each defendant did to him or her; when the defendant did
it; how the defendant’s action harmed him or her, and what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,

1163 (10th Cir. 2007). The requirements of Rule 8(a) guarantee “that defendants enjoy fair
notice of what the claims against them are and the grounds upon which they rest.” TV
Communications Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff'd,
964 F.2d 1022 (10th Cir. 1992). The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1),
which provides that “[e]ach allegation must be simple, concise, and direct.” Taken together,
Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal
pleading rules.
The plaintiffs are proceeding pro se. Although I must liberally construe the pleadings of
pro se plaintiffs, Haines v. Kerner, 104 U.S. 519, 520-21 (1972), I cannot act as their advocate,
and the plaintiffs must comply with the fundamental requirements of the Federal Rules of Civil
Procedure and the local rules of this court. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
The plaintiffs’ Complaint suffers from many deficiencies. The Complaint is not
submitted on the court’s standard complaint form. “A pro se party shall use the forms
established by this court to file an action.” D.C.COLO.LCivR 8.1A. In addition, although the
Complaint is brought by both plaintiffs, it is signed only by Tyson Giesbrecht. “Every pleading,
written motion, and other paper must be signed” by both plaintiffs. Fed.R.Civ.P. 11(a).1

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By presenting to the court a pleading, written motion, or other paper--whether by
signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that
to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances:
(1) it is not being presented for any improper
purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation;
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The Complaint is 56 pages long. The first 47 pages are essentially a diatribe against the
mortgage industry. There are no specific factual allegations regarding Wells Fargo Bank N.A. or
Wells Fargo Home Mortgage. There are only vague and conclusory allegations of wrongdoing
by “defendant.”2 Attached to the Complaint are 266 pages of exhibits, most of which are
articles, essays, and the like relating to the mortgage industry and its lending practices.
The Complaint asserts two claims, both brought under the federal Racketeer Influenced
and Corrupt Organizations Act (“RICO”). The claims do not contain any specific factual
allegations against Wells Fargo Bank N.A. or Wells Fargo Home Mortgage. For example, Claim
One states:
During the years 2001 through 2009, Defendant and non-party
malfeasants were a consortium of companies associated in fact for
the common purpose of carrying out the fraudulent schemes
described in this Complaint; namely, making enormous short-term
profits, gains, dividends, income, salaries, bonuses, commissions,
yield-spread premiums, and fees through brokering, originating,
bundling as securities, selling into the secondary market, servicing,

(2) the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing
existing law or for establishing new law;
(3) the factual contentions have evidentiary support
or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity
for further investigation or discovery; and
(4) the denials of factual contentions are warranted
on the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.
Fed.R.Civ.P. 11(b).
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The plaintiffs frequently refer to “defendant” without identifying which defendant.
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and foreclosing on “liars loans” made with no income verification,
no or little documentation, no underwriting, false and inflated
appraisals overstating the property value, and false and understated
loan-to-fair-market-value ratio.
Complaint, ¶ 124.
RICO allows private litigants to bring civil suits for treble damages for certain actions by
defendants that are criminal in nature, as defined by RICO. 18 U.S.C. § 1964(c). To state a
claim under RICO,
a plaintiff must allege that the defendant violated the substantive
RICO statute, 18 U.S.C. § 1962, by setting forth “four elements:
‘(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.’” Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S.
479, 4596, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)). A pattern of
racketeering activity must include commission of at least two
predicate acts. Resolution Trust Corp. v. Stone, 998 F.2d 1534,
1543 (10th Cir. 1993). Also, a plaintiff has standing to bring a
RICO claim only if he was injured in his business or property by
reason of the defendant’s violation of § 1962. Robbins, 300 F.3d
at 1210.
Deck v. Engineered Laminates, 349 F.3d 1253, 1257 (10th Cir. 2003).
RICO claims must be pled with factual specificity, not with conclusory allegations.
“[T]he complaint should inform each defendant of the specific fraudulent acts that constitute the
basis of the action against the particular defendant.” Vicom, Inc. v. Harbridge Merchant Servs.,
Inc., 20 F.3d 771, 778 (7th Cir. 1994) (citation omitted). In addition, a RICO complaint must set
forth the time, place, and content of the alleged mail and wire communication perpetrating the
fraud. Tal v. Hogan, 453 F.3d 1244, 1263 (10th Cir. 2006); Fed.R.Civ.P. 9.
The plaintiffs do not allege any specific facts regarding the actions or inactions of each
defendant and how those actions or inactions violate the law. The Complaint fails to provide

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notice of the plaintiffs’ causes of action as required by the Federal Rules of Civil Procedure.
Accordingly, the Complaint is stricken, and the plaintiffs shall submit an amended complaint
which complies with the Federal Rules of Civil Procedure, the local rules of this court, and this
order.
The amended complaint must be submitted on the court’s form and shall be titled
“Amended Complaint.” The background statement shall briefly summarize the plaintiff’s case
and shall not exceed one double-spaced typewritten page. Each claim shall be numbered and
shall be stated separately. Each claim shall state the legal basis for the claim; identify which
defendant(s) the claim is brought against; and allege facts sufficient to state a claim for relief as
to each of those defendants. Each claim shall not exceed two typewritten pages, double-spaced,
as to each defendant against whom the claim is brought. The Complaint shall not contain
conclusory allegations or argument. The plaintiffs may attach to the Complaint only those
exhibits that pertain directly to their claims.
IT IS ORDERED:
1. The Complaint [Doc. # 1] is STRICKEN for failure to comply with Fed. R. Civ. P. 8;
Fed. R. Civ. P. 9; D.C.COLO.LCivR 8.1A; and Fed. R. Civ. P. 11;
2. On or before January 28, 2013, the plaintiffs shall submit an amended complaint that
complies with Fed. R. Civ. P. 8; Fed. R. Civ. P. 9; D.C.COLO.LCivR 8.1A; Fed. R. Civ. P. 11;
and this order;
3. The plaintiffs’ failure to comply with this order may result in a recommendation that
the case be dismissed; and

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4. The Clerk of the Court shall enclose with this order a copy of the court’s complaint
form.

Dated January 11, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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