Lewis v. Ocwen Mortgage Servicing, Inc. et al

Filing 76

ORDER Granting Motions to Dismiss. Defendant's Motions to Dismiss (ECF No. 34 and ECF No. 48 ) are GRANTED; and Plaintiffs' negligence claims are DISMISSED WITH PREJUDICE. ORDERED by Judge William J. Martinez on 3/8/2018. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1104-WJM-KHR
Consolidated with:
Civil Action No. 17-cv-1105-WJM-KHR
Civil Action No. 17-cv-1106-WJM-KHR
LATICIA LEWIS, and
JENNIFER R. LOQUASTO,
Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC,
Defendant.

ORDER GRANTING MOTIONS TO DISMISS

Plaintiffs Laticia Lewis and Jennifer R. Loquasto (together, “Plaintiffs”) filed
materially identical actions, now consolidated under the above caption, alleging that
Defendant Ocwen Loan Servicing, LLC (“Defendant”), in its role as a debt collector,
“unconscionably and abusively” harassed them to collect a debt. (ECF No. 25 ¶ 4; ECF
No. 44 ¶ 4.) Lewis claims, for example, that she received nearly 1,700 calls in just over
four years, including approximately 90 calls within a particular 33-day period and
“dozens of calls after 9 pm.” (ECF No. 25 ¶¶ 17, 21–22, 27.) Loquasto similarly claims
she received “at least 1,032 calls” in about three-and-a-half years, including 100 calls in
a particular 40-day span, and that most of these calls came after she discharged the
relevant debt in bankruptcy. (ECF No. 44 ¶¶ 17, 21–27, 34.)
Plaintiffs contend that Defendant’s actions violated the Telephone Consumer

Protection Act, 47 U.S.C. § 227, and that Defendant committed the common-law tort of
negligence. (ECF Nos. 25, 44.) Before the Court are Defendant’s two materially
identical motions to dismiss the negligence causes of action (one motion directed at
Lewis’s complaint, the other directed at Loquasto’s complaint) under Federal Rule of
Civil Procedure 12(b)(6). (ECF Nos. 34, 48.)
The Rule 12(b)(6) standard requires the Court to “assume the truth of the
plaintiff’s well-pleaded factual allegations and view them in the light most favorable to
the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). Having assumed that truth, the dispositive inquiry then usually becomes
“whether the complaint contains ‘enough facts to state a claim to relief that is plausible
on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
analysis assumes that the plaintiff’s legal theory is recognized in law and that the only
salient question is whether the asserted facts state a claim under that theory. However,
some Rule 12(b)(6) motions raise the argument that “a legal theory [is] not cognizable
as a matter of law.” Golan v. Ashcroft, 310 F. Supp. 2d 1215, 1217 (D. Colo. 2004),
aff’d sub nom. Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007). That standard
applies here.
Defendant’s primary argument is that Plaintiffs cannot plead a negligence claim
because they cannot establish a duty of care to, as Plaintiffs phrase it, “act reasonably
when collecting an alleged debt . . . including the means and methods for contacting
[debtors].” (ECF No. 25 ¶ 46.) Defendant has cited cases from the Colorado Court of
Appeals, from this District, and from other jurisdictions. (ECF No. 34 at 4–7.) Plaintiffs
have cited supposedly contrary federal district court cases not from this District. (ECF
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No. 42 at 3–4.) In other words, no party has cited anything controlling. 1 Nor is any of
the cited authority particularly helpful, as it largely deals with situations distinct from
telephone harassment by debt collectors, or tort theories Plaintiffs have not pleaded
(such as invasion of privacy).
The question is what the Colorado Supreme Court would do if asked to decide
whether a party can pursue a negligence claim based on “a duty to act reasonably when
collecting an alleged debt . . . including the means and methods for contacting
[debtors].” (ECF No. 25 ¶ 46.) See, e.g., Vanover v. Cook, 260 F.3d 1182, 1186 (10th
Cir. 2001) (“In the absence of definitive direction from the highest court of the state . . .
we must predict the course that body would take if confronted with the issue.” (internal
quotation marks omitted)). The Colorado Supreme Court has explained negligence and
the duty of care as follows:
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. A negligence claim will fail if it is
predicated on circumstances for which the law imposes no
duty of care upon the defendant. . . . The initial question in
any negligence action, therefore, is whether the defendant
owed a legal duty to protect the plaintiff against injury. The
issue of legal duty is a question of law to be determined by
the court.
A duty of reasonable care arises when there is a foreseeable
risk of injury to others from a defendant’s failure to take
protective action to prevent the injury. While foreseeability is
1

Regarding Colorado law, this Court is bound only by holdings of the Colorado Supreme
Court. See Clark v. State Farm Mut. Auto. Ins. Co., 319 F.3d 1234, 1240–41 (10th Cir. 2003).
As for decisions from this District, “[a]lthough the judges of this District strive to respect each
other’s decisions, we do not bind each other.” Hernandez v. Ray Domenico Farms, Inc., 250 F.
Supp. 3d 789, 801 (D. Colo. 2017).

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a prime factor in the duty calculus, a court also must weigh
other factors, including the social utility of the defendant’s
conduct, the magnitude of the burden of guarding against
the harm caused to the plaintiff, the practical consequences
of placing such a burden on the defendant, and any
additional elements disclosed by the particular
circumstances of the case.
Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo. 1992) (citations
omitted).
Plaintiffs have not attempted to explain why they believe the Colorado Supreme
Court would apply this analysis and conclude that debt collectors have a duty of care,
enforceable through a negligence claim, encompassing the choice to engage in
numerous harassing phone calls. To be sure, there may be other tort theories that
encompass this alleged course of conduct, but Plaintiffs have given the Court no basis
to think that the Colorado Supreme Court would approve a negligence cause of action
based on Plaintiffs’ allegations. 2
Accordingly, for the reasons set forth above, the Court ORDERS as follows:
1.

Defendant’s Motions to Dismiss (ECF No. 34 & ECF No. 48) are GRANTED; and

2.

Plaintiffs’ negligence claims are DISMISSED WITH PREJUDICE.
Dated this 8th day of March, 2018.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

2

Given this disposition, the Court need not reach Defendant’s alternative argument
regarding the statute of limitations.

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