Donna v. Countrywide Mortgage et al
MEMORANDUM OPINION AND ORDER by Magistrate Judge Craig B. Shaffer on 12/28/15 GRANTING 36 Motion to Dismiss; GRANTING 31 Motion to Dismiss for Failure to State a Claim. This civil action is dismissed for lack of subject matter jurisdiction over Plaintiffs Sixth Claim for Relief and for failure to state a claim to which relief can be granted.(nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03515-CBS
LINDA FAYE J. DONNA,
COUNTRYWIDE MORTGAGE a.k.a. BOFA,
BOFA, N.A., a Nationally Chartered Bank, and
NATIONSTAR MORTGAGE, a Nationally Servicing Company,
MEMORANDUM OPINION AND ORDER
Magistrate Judge Craig B. Shaffer
This civil action comes before the court on: (1) “Defendant Nationstar Mortgage LLC'S
Motion to Dismiss Plaintiff’s Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6),”
and (2) Defendant Bank of America, N.A.’s Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(1) and (b)(6). 1 The case was directly assigned to this Magistrate Judge pursuant to 28
U.S.C. § 636(c) and D.C. COLO. LCivR 72.2. (See Order of Reference upon Consent to
Jurisdiction of Magistrate Judge (Doc. # 51)). The court has reviewed the Motions, Ms. Donna’s
Responses (filed June 29, 2015 and July 9, 2015) (Docs. # 41, # 43), Defendants’ Replies (filed
July 16, 2015 and July 22, 2015) (Docs. # 45, # 46), the pleadings, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
Statement of the Case
Ms. Donna commenced this case in forma pauperis and in her pro se capacity on
December 31, 2014. (See Doc. # 1 (Complaint), Application to Proceed in District Court without
Nationstar Mortgage LLC is erroneously named as Nationstar Mortgage. To the extent that Ms. Donna
named “Countrywide Mortgage, a.k.a. BOFA” and “BOFA, N.A.,” Defendant Bank of America, N.A.
(“BANA”) has interpreted that it is the intended Defendant and Ms. Donna has not disagreed.
Paying Fees or Costs (Doc. # 3), “Order Granting Plaintiff Leave to Proceed Pursuant to 28
U.S.C. § 1915” (Doc. # 4)). At the court’s direction, Ms. Donna filed amended pleadings on
February 2, 2015 and April 30, 2015. (See Orders (Docs. # 5, # 8), amended pleadings (Docs.
# 6, # 14)). Counsel entered his appearance for Ms. Donna on March 30, 2015. (See Doc. #
11). With the court’s permission, Ms. Donna filed her Second Amended Complaint (“SAC”) on
April 30, 2015 and May 5, 2015. (See Docs. # 14, # 16). 2 Ms. Donna alleges nine claims for:
(1) “Breach of Contract Misapplication of Payments or Inaccurate Accounting” [sic] against both
Defendants; (2) “Failure of Lender [BANA] to Honor Modification of Previous Lender and
Servicer;” (3) Failure of Servicer Nationstar to Honor Modification of Previous Lender and
Servicer;” (4) “Violation of the Colorado Consumer Protection Act” (“CCPA”) against Defendant
Nationstar; (5) “Charging Unreasonable Fees” against Nationstar; (6) “Violation of the Fair
Credit Reporting Act” (“FCRA”) against both Defendants; (7) “Negligence” against Nationstar;
(8) “Colorado Elder Law Violation” against unspecified Defendants; and (9) “Wrongful
Foreclosure” against both Defendants. (See SAC (Doc. # 16)).
Standard of Review
Defendants move to dismiss the SAC pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of
jurisdiction over the subject matter.” Defendant BANA’s assertion that Ms. Donna lacks
standing to bring her claim under the FCRA constitutes a challenge to the allegations of subject
matter jurisdiction in the SAC. See Hill v. Vanderbilt Capital Advisors, LLC, 702 F.3d 1220,
1222 (10th Cir. 2012) (“standing can be colorably characterized as an issue of subject matter
jurisdiction”). As the party asserting jurisdiction, Ms. Donna bears the burden of establishing
The SAC was filed as both Doc. # 14 and Doc. # 16. Exhibits 1-8 to the SAC were filed with Doc. # 14
and Exhibit 9 to the SAC was filed with Doc. # 16. (See text entry on CM/ECF at Doc. # 16).
that this court has jurisdiction to hear her claims. See Celli v. Shoell, 40 F.3d 324, 327 (10th Cir.
1994) (“Mere conclusory allegations of jurisdiction are not enough; the party pleading jurisdiction
must allege in his pleading the facts essential to show jurisdiction.”) (internal quotation marks
and citations omitted).
Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon
which relief can be granted."
In reviewing a motion to dismiss, this court must look for plausibility in the
complaint. Under this standard, a complaint must include enough facts to state a
claim to relief that is plausible on its face. The allegations must be enough that, if
assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
Corder v. Lewis Palmer School Dist. No. 38, 566 F.3d 1219, 1223-24 (10th Cir. 2009) (internal
quotation marks and citations omitted). The burden is on the plaintiff to frame “a complaint with
enough factual matter (taken as true) to suggest” that she is entitled to relief. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556 (2007).
First, Second, and Third Claims for Relief
In her First Claim for Relief, Ms. Donna alleges that both Defendants “improperly applied
funds (in violation of the terms in the mortgage contract)," "failed to credit funds to the account,"
and refused payments "in violation of the terms of the mortgage contract." (See Doc. # 16 at 89 of 23). In her Second and Third Claims for Relief, she alleges that Defendants “refused to
honor” and “failed to acknowledge” a loan modification allegedly made by a previous lender.
(See id. at 10-11 of 23). Nationstar has interpreted Ms. Donna’s claims for failure to honor a
loan modification as breach of contract claims and Ms. Donna does not disagree. To prevail on
her claims for breach of contract against Defendants, Ms. Donna must allege facts that would
establish four elements: (i) the existence of a binding agreement; (ii) the plaintiff's performance
of its obligations (or some justification for its non-performance); (iii) the defendant's failure to
perform its obligations; and (iv) resulting damages. Xtreme Coil Drilling Corp. v. Encana Oil &
Gas (USA), Inc., 958 F. Supp. 2d 1238, 1243 (D. Colo. 2013) (citation omitted). See also
Greenway Nutrients, Inc. v. Blackburn, 33 F. Supp. 3d 1224, 1255 (D. Colo. 2014) (same).
The SAC does not specifically identify what "mortgage contract" or what specific terms
have been breached. Ms. Donna's conclusory allegations are insufficient to state a claim
plausible on its face as to Nationstar. See Twombley, 550 U.S. at 570 ("[C]onclusory allegations
without supporting factual averments are insufficient to state a claim on which relief can be
based."); Tatten v. Bank of America Corp., 912 F. Supp. 2d 1032, 1040 (D. Colo. 2012) (plaintiff
failed to provide factual allegations to support any one of the four elements necessary to state a
breach of contract claim). Nor does Ms. Donna allege the second element: that she has
performed her obligations or justification for her non-performance. She acknowledges that she
was thirty five days behind on her loan and that her payments were insufficient to bring the loan
current. (See Exhibit 3 to SAC (Doc. # 14-5 at 2 of 2)). 3 For these reasons, Ms. Donna’s
breach of contract claims are properly dismissed. See Knowles v. Bank of America, N.A., No.
12-cv-00621-RBJ, 2012 WL 5882570, at *3 (D. Colo. Nov. 21, 2012) (dismissing borrowers’
breach of contract claim for failure to allege they paid their principal and interest payments).
Ms. Donna’s claims based on a purported loan modification implicate Colorado's Credit
Agreement Statute of Frauds (“CCASF”), Colo. Rev. Stat. § 38–10–124. See Schoen v. Morris,
15 P.3d 1094, 1098, 1100 (Colo.2000) (holding that the credit agreement statute of frauds
In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the complaint itself, but
also attached exhibits and documents incorporated into the complaint by reference. Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted). “[T]he district court may consider
documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties
do not dispute the documents' authenticity.” Id. (internal quotation marks and citation omitted).
applies to promises between a lender and a third-party lender). The CCASF bars any claim by
a debtor against a creditor relating to a credit agreement for a principal amount exceeding
$25,000 unless the credit agreement at issue is in writing and signed by the creditor.
PayoutOne v. Coral Mortgage Bankers, 602 F. Supp. 2d 1219, 1225 (D. Colo. 2009) (citing
Colo. Rev. Stat. § 38-10-124(2)). The CCASF applies not only to an oral credit agreement, but
also to any claim relying on or relating to such an agreement. See Univex Int'l, Inc. v. Orix
Credit Alliance, Inc., 914 P.2d 1355, 1358 (Colo. 1996).
Ms. Donna alleges that Countrywide Home Loans sold her mortgage to First Franklin
Mortgage. (See Doc. # 16 at 4 of 23, ¶ 15). She alleges that First Franklin Mortgage “provided
a three to five year modification on Plaintiff’s loan at a rate of 3%.” (See id.). But see Exhibit 6
to SAC (Doc. # 14-8) (showing that the interest rate will remain fixed at 3% for only three years,
that after the three-year period the interest rate will revert back to the interest rate set forth in the
note, and not showing that the fixed rate period could be extended two additional years). The
basis for Ms. Donna’s claims is that “[i]n February, 2011, the 3% modification loan period was
extended verbally” by a telephone conversation “to the full five year period which was to end
July, 2013.” (See Doc. # 41 at 5 of 16). She alleges that the verbal modification altered the
express terms of the prior written loan modification agreement. The alleged oral modification
agreement constitutes a "credit agreement" under the CCASF. See Colo. Rev. Stat. § 38-10124(1). Ms. Donna’s claims indisputably relate to an alleged extension of the three-year fixed
rate that was not reduced to writing, not signed by Nationstar or its predecessors, and is
contrary to the express terms of the prior written loan modification agreement. The CCASF bars
her claims that the loan was verbally modified to extend the three-year fixed term.
Fourth and Eighth Claims for Relief
Ms. Donna alleges that Nationstar violated the CCPA, Colo. Rev. Stat. § 6-1-105(i),
(n),and (u). (See Doc. 3 16 at 12 of 23, ¶ 68). The CCPA “was enacted to regulate commercial
activities and practices which, because of their nature, may prove injurious, offensive, or
dangerous to the public.” Dalton v. Countrywide Home Loans, Inc., 828 F. Supp. 2d 1242, 1250
(Dec. 1, 2011) (internal quotation marks and citation omitted). The CCPA outlaws deceptive
trade practices in connection with the offering or sale of goods or services. Colo. Rev. Stat. §
6–1–105. A claim under the CCPA consists of the following elements: “(1) that the defendant
engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the
course of defendant's business, vocation, or occupation; (3) that it significantly impacts the
public as actual or potential consumers of the defendant's goods, services, or property; (4) that
the plaintiff suffered injury in fact to a legally protected interest; and (5) that the challenged
practice caused the plaintiff's injury.” Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining,
Inc., 62 P.3d 142, 146–47 (Colo. 2003). If all elements of a CCPA claim are not met, the claim
fails as a matter of law. Sierra v. Stonebridge Life Ins. Co., No. 10-cv-03123-PAB-KMT, 2013
WL 5323083, at * 5 (D. Colo. Sept. 23, 2013) (citation omitted). See also HealthONE of Denver,
Inc. v. UnitedHealth Group, Inc., 805 F. Supp. 2d 1115, 1120 (D. Colo. 2011) (All elements of a
CCPA claim must be met; otherwise the claim fails as a matter of law.”).
A deceptive trade practice requires a showing that the defendant knowingly made a
misrepresentation or a false representation that had the capacity to deceive and that either
“induce[d] a party to act, refrain from acting, or ha[d] the capacity or tendency to attract
consumers.” HealthONE, 805 F.Supp.2d at 1120. To state the element that Defendants
engaged in an unfair or deceptive trade practice, Ms. Donna must fulfill the heightened Rule 9(b)
pleading standard. Id. at 1120–21. See also Cavitat Medical Technologies, Inc. v. Aetna, Inc.,
Case No. 04-CV-01849-MSK-OES, 2006 WL 218018, at *3 (D. Colo. Jan. 27, 2006) (holding
that claims under § 6–1–105 of the CCPA must be pled with particularity pursuant to Fed. R.
Civ. P. 9(b)); Duran v. Clover Club Foods Co., 616 F. Supp. 790, 793 (D. Colo. 1985) (holding
that “Rule 9(b)'s requirement of particularity applies to a plaintiffs' allegations of deceptive trade
practices under the Colorado Consumer Protection Act.”). “Rule 9(b) requires a complaint to set
forth the time, place and contents of the false representation, the identity of the party making the
false statements and the consequences thereof.” HealthONE, 805 F. Supp. 2d at 1120–21
(internal quotation marks and citation omitted). “At a minimum, Rule 9(b) requires that a plaintiff
set forth the who, what, when, where and how of the alleged fraud.” Tatten, 912 F. Supp. 2d at
1040 (internal quotation marks and citation omitted).
Ms. Donna fails to meet the pleading standard for a deceptive trade practice. She
alleges “a longstanding history of litigation regarding the mistreatment of homeowners,” that she
“has been treated in a deplorable manner,” that “[t]he general public has been subjected to [a]
host of troubling behavior,” that she “experienced lost paperwork and the modification
applications [were] applied to the wrong property,” that “[t]he consumer should not be subjected
to such wasteful behavior,” that “[n]o person should have to pay for a service that fails to provide
what they advertise,” and that she “is appalled by the lack of knowledge of the employees and
process utilized to complete the modifications packet which i[s] often denied.” (See Doc. # 16 at
13 of 23). She fails to state any facts to indicate that a fraud was perpetrated. She fails to
allege what, if any, acts by the Defendants constituted a deceptive trade practice. The SAC
does not identify with particularity false statements, who made the false statements, or when the
statements were made.
Even if Ms. Donna had adequately alleged circumstances of fraud, she fails to sufficiently
plead the third element of a CCPA claim, Ms. Donna does not allege or argue that the alleged
deceptive trade practice had a significant public impact. See Brodeur v. American Home Assur.
Co., 169 P.3d 139, 155 (Colo. 2007) (“if a wrong is private in nature and does not affect the
public, a claim is not actionable under the CCPA.”); Cavitat, 2006 WL 218018, at *3 (“If alleged
deceptive trade practices occur only within the context of a private agreement and do not impact
the public, then the CCPA provides no remedy.”); Rhino Linings, 62 P.3d at 150 (CCPA is not
intended to provide additional remedies to claimants whose disputes have no public impact but
are, instead, purely private transactions). Considerations relevant to whether a challenged
practice significantly impacts the public include: “(1) the number of consumers directly affected
by the challenged practice, (2) the relative sophistication and bargaining power of the
consumers affected by the challenged practice, and (3) evidence that the challenged practice
has previously impacted other consumers or has the significant potential to do so in the future.”
Ivar v. Elk River Partners, LLC, 705 F. Supp. 2d 1220, 1241-42 (D. Colo. 2010) (internal
quotation marks and citations omitted). Ms. Donna makes no allegations regarding the number
of consumers affected by Defendants' alleged deceptive trade practices, the relative bargaining
power of these consumers, or how the challenged practice has the potential to impact a
significant number of customers in the future. Her CCPA claim involves only alleged
misconduct with regard to her private loan. She has not alleged or argued that misconduct with
respect to one borrower affected or had the potential to affect a significant number of consumers
to meet the significant public impact requirement. See Alpine Bank v. Hubbell, 555 F.3d 1097,
1113 (10th Cir. 2009) (affirming summary judgement on CCPA claim as “the record includes no
evidence that the challenged practice has previously impacted other consumers or has the
significant potential to do so in the future.”) (internal quotation marks and citation omitted). Ms.
Donna’s allegations of the “general public” and “numerous homeowners” are conclusory and
insufficient to support a CCPA claim. See, e.g., Johnstown Feed & Seed, Inc. v. Continental
Western Insurance Company, 641 F. Supp. 2d 1167, 1181 (D. Colo. 2009) (“the fact that a
workers' compensation insurer and an insured have a dispute over a claim does not necessarily
mean that other members of the public are or have been affected by the insurer's practices”)
(internal quotation marks and citation omitted).
Without identifying a specific Defendant, Ms. Donna also alleges a claim for “Colorado
Elder Law Violation” under § 6-1-112 of the CCPA. (See Doc. # 16 at 18 of 23). This claim fails
because the statute she relies on authorizes the attorney general and district attorneys to
secure civil penalties but does not provide a private cause of action. See Scott v. Annual Credit
Report Serv., No. CIV.A. 10-CV00614BNB, 2010 WL 2038568, at *2 (D. Colo. May 21, 2010)
(citing Colo. Rev. Stat. § 6–1–103 (“[t]he attorney general and the district attorneys of the
several judicial districts in this state are concurrently responsible for the enforcement of this
article.”)). This claim also fails to satisfy the pleading requirements for a CCPA claim, that is, a
deceptive trade practice or a significant public impact. As Ms. Donna fails to allege any facts to
support a deceptive trade practice or the significant public impact element of her CCPA claims
and lacks standing to assert a claim for civil penalties, her CCPA claims are properly dismissed
for failure to state a claim to which relief can be granted.
Sixth Claim for Relief
Ms. Donna alleges that both Defendants violated the FCRA, 15 U.S.C. § 1681s-
2(a)(1)(A), by furnishing allegedly incorrect information about her credit to unspecified credit
bureaus. (See Doc. # 16 at ¶¶ 90-100). The FCRA was enacted “to require that consumer
reporting agencies adopt reasonable procedures for meeting the needs of commerce for
consumer credit . . . in a manner which is fair and equitable to the consumer, with regard to the
confidentiality, accuracy, relevancy, and proper utilization of such information.” 15 U.S.C. §
1681(b). The FCRA “places distinct obligations on three types of entities: (1) consumer
reporting agencies; (2) users of consumer reports; and (3) furnishers of information to consumer
reporting agencies.” Aklagi v. Nationscredit Financial, 196 F. Supp. 1186, 1192 9D. Kan. 2002)
First, Ms. Donna’s claim fails as a matter of law because § 1681s-2(a) provides no
private cause of action. See 15 U.S.C. § 1681s-2(c); Sanders v. Mountain Am. Fed. Credit
Union, 689 F.3d 1138, 1147 (10th Cir. 2012) (“right of action is limited to claims against the
credit reporting agency; it does not extend to furnishers”); Chiang v. Verizon New England, Inc.,
595 F.3d 26, 35 (1st Cir. 2010) ("Congress expressly limited furnishers' liability under § 1681s2(a) by prohibiting private suits for violations of that portion of the statute."); Clark v. Green Tree
Servicing LLC, 69 F. Supp. 3d 1203, 1213 (D. Colo. 2014) (right of action under § 1681s–2(a) of
FCRA is limited to claims against the credit reporting agency; it does not extend to furnishers);
Jarrett v. Bank of Am., 421 F. Supp. 2d 1350, 1353 n. 2 (D. Kan. 2006) (“Furnishers are also
required to provide accurate information to credit reporting agencies, 15 U.S.C. § 1681s–2(a),
but Congress did not create a private right of action for violation of this provision.”) (citation
omitted). “Specifically, subsection (c) eliminates remedies to consumers for violations of
subsection (a), and subsection (d) provides that the duties imposed under subsection (a) can be
enforced only by government agencies and officials.” Aklagi, 196 F. Supp. at 1192. Therefore,
because of subsections (c) and (d), Ms. Donna has no private cause of action for Defendants’
alleged violations of subsection (a). Id. (citing Hasvold v. First USA Bank, 194 F.Supp.2d 1228,
1235 (D.Wyo. 2002) (citing case law to support the conclusion that there is no private right of
action for violations of subsection (a)).
Second, Title 15 U.S.C. § 1681s-2(b) generally pertains to the duties of furnishers of
information to conduct an investigation upon notice of a dispute from a credit reporting agency.
Subsection (b) of § 1681s–2 creates a private cause of action by a consumer against a furnisher
of credit information, but requires a furnisher of credit information to conduct an investigation
“[a]fter receiving notice pursuant to section 1681i(a)(2) of this title of a dispute” regarding the
accuracy of information provided to a consumer reporting agency.” Title 15 U.S.C. § 1681s–
2(b)(1). The duties listed in § 1681s-2(b) arise only after the furnisher receives notice of a
dispute from a credit reporting agency; notice of a dispute received directly from the consumer
does not trigger furnishers’ duties under subsection (b). See Aklagi, 196 F. Supp. at 1193
(“Therefore, under the plain language of the statute, the duty of a furnisher of credit information
to investigate a credit dispute is triggered only after the furnisher receives notice of the dispute
from a consumer reporting agency, not just the consumer”). “[C]ourts have uniformly reached
this conclusion.” Id. at 1193 (citing Hasvold, 194 F.Supp.2d at 1236 (reasoning that § 1681s–
2(b) provides a private cause of action only if the furnisher received notice from a consumer
reporting agency, as opposed to the plaintiff alone, that the credit information was disputed);
Scott v. Amex/Centurion S & T, Nos. 3:01–CV–1594–H et al., 2001 WL 1645362, at *4
(N.D.Tex. Dec. 18, 2001) (“The duties created by subsection (b) arise . . . only after the furnisher
receives notice from a consumer reporting agency that a consumer is disputing credit
information.”); Fino v. Key Bank, No. Civ. A. 00–375E, 2001 WL 849700, at *5 (W.D.Pa. July
27, 2001) (reasoning that § 1681s–2(b) provides a private cause of action only if the furnisher
received notice from a consumer reporting agency, as opposed to the plaintiff alone, that the
credit information was disputed); Jaramillo v. Experian Info. Solutions, Inc., 155 F.Supp.2d 356,
363 (E.D.Pa.2001) (“[T]o state a cause of action under 1681s–2(b) requires a pleading that a
consumer reporting agency notified a furnisher of a dispute. . . .”); Yelder v. Credit Bureau of
Montgomery, L.L.C., 131 F.Supp.2d 1275, 1289 (M.D.Ala.2001) (“[A] furnisher of information
has no duty under § 1681s–2(b) until a consumer reporting agency, and not a consumer,
provides notice to the furnisher of information of a dispute.”); Dornhecker v. Ameritech Corp.,
99 F.Supp.2d 918, 928–29 (N.D.Ill.2000) (“Section 1681s–2(b) triggers a furnisher's duty to
investigate allegedly erroneous information when that furnisher has received notice from a
consumer reporting agency that the credit information is disputed.”). The Tenth Circuit has
recognized liability for a furnisher of information under FCRA only where the furnisher first
receives notice of a dispute from a credit reporting agency, not directly from a customer. See
Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App’x 744, 750-51 (10th Cir. 2009) (upholding
dismissal of FCRA claim against furnisher of information on grounds that plaintiffs failed to
allege that credit reporting agency gave notice to furnisher that information reported on plaintiffs’
credit was in dispute) (citation and internal quotations omitted). Here, Ms. Donna fails to allege
that the Defendants ever received notice of a dispute from a credit reporting agency. She fails
to allege the critical link between the consumer reporting agencies and the Defendants. This
claim fails to state a claim to which relief can be granted against the Defendants.
Seventh Claim for Relief
In her Seventh Claim for Relief Ms. Donna alleges that Nationstar was negligent in
handling her purported loan modification. (See Doc. 3 16 at 16-17 of 23). "The elements of a
negligence claim consist of the existence of a legal duty by the defendant to the plaintiff, breach
of that duty by the defendant, injury to the plaintiff, and a sufficient causal relationship between
the defendant's breach and the plaintiff's injuries." Connes v. Molalla Transport System, Inc.,
831 P.2d 1316, 1320 (Colo. 1992) (citations omitted). See also Silva v. Wilcox, 223 P.3d 127,
135 (Colo. App. 2009) (“To establish a common law negligence claim, the plaintiff must show
that the defendant owed the plaintiff a legal duty to conform to a standard of care, the defendant
breached that duty, the plaintiff suffered injury, and there is a causal relationship between the
breach and the injury.”) (citation omitted).
In order for liability to attach on a theory of negligence, the parties must have a
relationship recognized by law as providing the foundation for a duty to prevent an injury. "The
initial question in any negligence action, therefore, is whether the defendant owed a legal duty to
protect the plaintiff against injury. Connes, 831 P.2d at 1320 (citations omitted). "A negligence
claim will fail if it is predicated on circumstances for which the law imposes no duty of care upon
the defendant." Id. The issue of legal duty is a question of law to be determined by the court."
Ms. Donna has not alleged any cognizable duty owed to her by Nationstar. “In the
absence of special circumstances” not present here, “the legal relationship between a lending
institution and its customer is that of debtor and creditor.” Wells Fargo Realty Advisors Funding,
Inc. v. Uioli, Inc., 872 P.2d 1359, 1365 (Colo. App. 1994). Ms. Donna alleges that Nationstar
was negligent in handling her purported loan modification. (See Doc. # 16 at 16-17 of 23). Her
allegations relate “only to activities taken in the course of a normal lender-borrower relationship”
and does not create a duty of care. Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504,
523 (Colo. App. 2006). As she has not alleged any legal duty owed to her by Nationstar, her
negligence claim must fail. See Ryder v. Mitchell, 54 P.3d 885, 889 (Colo. 2002) (citation
omitted) ("If a negligence action is based on facts that do not impose a duty of care upon a
defendant for a plaintiff's benefit, the claim will fail.").
Ms. Donna’s negligence claim is also barred by the economic loss rule. “The economic
loss rule serves to maintain a distinction between a tort obligation and a contract obligation.”
Knowles, 2012 WL 5882570, at *2 (internal quotation marks and citation omitted). See also
Engeman Enterprises, LLC v. Tolin Mechanical Systems Co., 320 P.3d 364,368 (Colo. App.
2013) (“The economic loss rule maintain[s] the boundary between contract law and tort law.”)
(internal quotation marks and citations omitted). “Under the economic loss rule, a party
suffering only economic loss from the breach of an express or implied contractual duty may not
assert a tort claim for such a breach absent an independent duty of care under tort law.”
Knowles, 2012 WL 5882570 at * 2 (internal quotation marks and citation omitted). See also
Jardel Enterprises, Inc. v. Triconsultants, Inc., 770 P.2d 1201, 1303 (Colo. App. 1988) (“no
cause of action lies in tort when purely economic damage is caused by negligent breach of a
contractual duty”). “The key to determining the availability of a contract or tort action lies in
determining the source of the duty that forms the basis of the action.” Knowles, 2012 WL
5882570 at * 2 (internal quotation marks and citation omitted). The wrongful actions that Ms.
Donna alleges, that Nationstar did not comply with the terms of a purported loan modification,
arise from their contractual relationship. The duties purportedly tortiously breached were
created by a contractual relationship and the facts supporting the tort claim are the same as
those supporting the contract claims. Ms. Donna does not allege an independent duty of care
imposed by tort law that Nationstar breached. For these reasons, the negligence claim is
properly dismissed for failure to state a claim to which relief can be granted.
Ninth Claim for Relief
Ms. Donna alleges “Wrongful Foreclosure” against both Defendants. (See Doc. # 16 at
18-19 of 23). First, her wrongful foreclosure claim fails because “Colorado does not recognize a
claim for damages based on wrongful foreclosure.” See Schwartz v. Bank of Am., N.A., No. 10CV-01225-WYD-MJW, 2011 WL 1135001, at *4 (D. Colo. Mar. 28, 2011) (noting that Colorado
does not recognize a claim for damages based on “wrongful foreclosure”); Commercial Equity
Corp. v. Majestic Sav. & Loan Ass’n, 620 P.2d 56, 58 (Colo. App. 1980) (court did not recognize
wrongful foreclosure as a viable claim). Second, the wrongful actions Ms. Donna alleges in this
claim -- application of an "outrageous interest rate" and "failure to recognize" the alleged
modification -- arise from the contract documents between her and Nationstar. She fails to
allege that Nationstar breached a separate duty imposed by tort law. Thus, even if “wrongful
foreclosure” were a cognizable claim, her claim is barred by the economic loss rule. See
Knowles v. Bank of America, 12-cv-00621-RBJ, 2012 WL 5882570, at *2 (D. Colo. Nov. 21,
2012) (holding plaintiff's "wrongful foreclosure" claim was barred by the economic loss rule
because the wrongful actions plaintiff alleged arose from the contract between the parties).
Third, the alleged "failure to recognize" a verbal loan modification of a written agreement is
barred by the CCASF, Colo. Rev. Stat. § 38–10–124. For these reasons, Ms. Donna’s claim for
wrongful foreclosure is properly dismissed for failure to state a claim to which relief can be
Fifth Claim for Relief
In her Fifth Claim for Relief, Ms. Donna alleges that Nationstar “has attempted to charge
unreasonable fees" that "unfairly increased the total balance" owed by the borrower. (See
Doc.# 16 at 14 of 23, ¶ 82). Ms. Donna acknowledges that “fees can be assessed for: late
payments, inspection fees, foreclosure costs, and other default-related fees.” (Id. at ¶ 81). She
acknowledges that her loan was in default and in foreclosure prior to her bankruptcy filing. (See
Doc.# 16 at ¶¶ 23-27). Ms. Donna does not specify what fees she challenges and "charging
unreasonable fees" is not a cognizable cause of action. To the extent her claim can be
interpreted as a breach of contract claim, it fails for the same reasons her breach of contract
claim fails. To the extent her claim can be interpreted as a tort claim, it is barred by the
economic loss rule. See Knowles, 2012 WL 5882570, at *2 (noting the economic loss rule bars
tort claims arising from a contract between the parties). Ms. Donna alleges no more than
Nationstar’s "attempt" to charge unreasonable fees and does not allege that she paid any of the
challenged fees. (See id. at ¶¶ 82, 84).
Accordingly, IT IS ORDERED that:
“Defendant Nationstar Mortgage LLC'S Motion to Dismiss Plaintiff’s Second
Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6)” (filed June 1, 2015) (Doc. # 31) and
Defendant Bank of America, N.A.’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and
(b)(6) (filed June 15, 2015) (Doc. # 36) are GRANTED and this civil action is dismissed for lack
of subject matter jurisdiction over Plaintiff’s Sixth Claim for Relief and for failure to state a claim
to which relief can be granted.
Without any objection by Plaintiff, the court GRANTS Defendant Nationstar’s
Request for Judicial Notice in Support of its Motion to Dismiss Plaintiff’s Second Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (filed on June 1, 2015) (Doc. # 32).
DATED at Denver, Colorado this 28th day of December, 2015.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?