United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on McCarthy & Holthus's
Motion to Dismiss Plaintiffs' Claims Pursuant to Federal
Rule of Civil Procedure 12(b)(6) and the Applicable Statutes
of Limitation [Doc. 7], Wells Fargo Bank, N.A.'s Motion
to Dismiss [Doc. 8], and Motion to Strike Plaintiffs'
Notice of Supplemental Authorities [Doc. 25]. The Court,
having considered the motions, briefs, and relevant law, and
being otherwise fully informed, finds that the motions are
not well-taken and will be denied.
about May 30, 2007, Plaintiff Cruz Baylon signed a promissory
note (the “Note”) with a principal amount of
$132, 300, due to Accredited Home Lenders, Inc., for a home
located at 202 Yucca Drive NW, Albuquerque, New Mexico.
See Baylon v. Wells Fargo Bank, N.A., et al.,
U.S.D.C., No. 12-cv-52 (KG/KK) (“2012 Action”),
Doc. 120, Ex. A. On the same day, Cruz and Maria Carmen
Baylon secured the Note by executing a mortgage encumbering
the home. Id., Doc. 120, Ex. B. The Note and
mortgage were later assigned to Wells Fargo on September 10,
2007. Id., Doc. 120, Ex. G. Beginning in May 2009,
Plaintiffs stopped making payments on their mortgage.
Id., Doc. 120, Ex. C. On January 25, 2010,
Plaintiffs received a Chapter 7 bankruptcy discharge.
Id., Doc. 120, Ex. D.
August 24, 2011, Wells Fargo, through its foreclosure counsel
McCarthy & Holthus, LLP (“McCarthy”), filed a
foreclosure complaint against Plaintiffs in New Mexico state
court. Id., Doc. 120, Ex. E. On March 22, 2012,
Plaintiffs and Wells Fargo agreed to a stipulated judgment as
to the foreclosure complaint, which was entered on April 3,
2012. Id., Doc. 120, Ex. C.
January 18, 2012, Plaintiffs commenced an action against
Wells Fargo and McCarthy in this Court (“2012
Action”), alleging violations of the Federal Debt
Collection Practices Act (“FDCPA”) and the New
Mexico Unfair Practices Act (“UPA”), and claims
for tortious debt collection. Id., Doc. 1. On
October 30, 2015, the Court entered a Memorandum Opinion and
Order and a Final Judgment. Id., Docs. 259, 260. The
Court dismissed with prejudice Plaintiffs' FDCPA claim
and, declining to exercise supplemental jurisdiction,
dismissed Plaintiffs' state law claims without prejudice.
November 8, 2016, Plaintiffs commenced the instant action
against Wells Fargo and McCarthy in the Second Judicial
District Court of New Mexico, County of Bernalillo. Doc. 1-1.
On December 19, 2016, Wells Fargo removed the action to this
Court on the basis of diversity jurisdiction. Doc. 1. In the
Complaint, Plaintiffs allege, as they did in the 2012 Action,
that Wells Fargo and McCarthy violated the UPA and engaged in
tortious debt collection. Doc. 1-1. Plaintiffs'
allegations that Defendants attempted to collect on their
debt, despite the fact that Plaintiffs' debt was
previously discharged in bankruptcy, form the basis of their
claims for relief. Id. Specifically, Plaintiffs
allege that Wells Fargo placed illegal collection calls to
them between September 2010 and May 2011, and engaged in
other illegal collection activity through August 2011,
culminating in the commencement of the foreclosure action on
August 24, 2011. Id. Plaintiffs further allege that
McCarthy misrepresented the character of Plaintiffs'
mortgage debt in a reinstatement letter sent on May 14, 2011,
and in the foreclosure complaint filed on August 24, 2011.
Fargo and McCarthy each filed a motion to dismiss this action
for failure to state a claim upon which relief can be
granted, similarly arguing that the applicable statutes of
limitations bar Plaintiffs' suit. Plaintiff filed a
response in opposition to each motion. Thereafter, Plaintiff
filed a Notice of Supplemental Authorities, which McCarthy
has moved to strike.
Rule 12(b)(6), a Court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “Although the
statute of limitations is an affirmative defense, it may be
resolved on a Rule 12(b)(6) motion to dismiss when the dates
given in the complaint make clear that the right sued upon
has been extinguished.” Cosgrove v. Kan. Dep't
of Soc. & Rehab. Servs., 332 F. App'x 463 (10th
Cir. 2009) (citation omitted).
nature of a Rule 12(b)(6) motion tests the sufficiency of the
allegations within the four corners of the complaint.”
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.
1994). When considering a Rule 12(b)(6) motion, the Court
must accept as true all well-pleaded factual allegations in
the complaint, view those allegations in the light most
favorable to the non-moving party, and draw all reasonable
inferences in the plaintiff's favor. Smith v. United
States, 561 F.3d 1090, 1097 (10th Cir. 2009), cert.
denied, 130 S.Ct. 1142 (2010).
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 (2009) (citations omitted).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
Court in Iqbal identified “two working
principles” in the context of a motion to dismiss.
Id. First, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Accordingly,
Rule 8 “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”
Id. at 678-79. “Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Id. at 679; see Twombly,
550 U.S. at 570 (holding that a plaintiff must
“nudge” her claims “across the line from
conceivable to plausible”). Accordingly, “where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not shown - that the pleader is entitled
to relief.” Id. (citation omitted).
In keeping with these two principles, the Court explained, a
court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
When there are well-pleaded factual allegations, a court
should assume their veracity and ...