United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ United St1& District Judge
MATTER comes before the Court on Defendant's Motion to
Dismiss Plaintiff's Complaint [Doc. 8]. The Court, having
considered the motion, briefs, and relevant law, and being
otherwise fully informed, finds that the motion is well-taken
and will be granted.
Complaint, Plaintiff alleges that Defendant is the creditor
of a loan “associated with Plaintiff, and associated
with a mortgage dated November 18, 1996.” Doc. 1 at
¶ 5. Plaintiff further alleges that on December 4, 2015,
Defendant “received a notice of rescission made by
Plaintiff pursuant to [the Truth in Lending Act
(“TILA”), ] 15 U.S.C. § 1635 rescinding the
loan, ” but to date has not complied with its
obligations as a lender under the notice of rescission.
Id. at ¶¶ 6-7. Based on these allegations,
Plaintiff, appearing pro se, filed the instant
action seeking both a declaratory judgment (Count I) and
statutory relief (Count II). Specifically, Plaintiff alleges
that because Defendant failed to comply with the statutory
rescission requirements under § 1635, she is entitled
to: (1) a declaration that the subject loan, and her
obligations thereunder, are “terminated, released, void
and invalid;” and (2) twice the monetary value of the
note that she issued in connection with the loan.
Id. at ¶¶ 17, 23.
filed the instant motion to dismiss for failure to state a
claim upon which relief can be granted. Plaintiff opposes the
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 Fed.Appx. 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 then determine whether they
plausibly give rise to an entitlement to relief.”
Id. at 679.
moves to dismiss the instant action on various grounds.
Defendant first argues that Plaintiff's claims are barred
by res judicata, as she could have raised them in her
earlier, state court action against Defendant, in which she
raised other issues regarding the subject loan. Defendant
further argues that Plaintiff's claims are untimely under
the three-year limitation set forth in § 1635. Finally,
Defendant argues that Plaintiff's claims are improper
because her loan was a residential one and thus exempt from
the rescission provisions of § 1635, and because she has
failed to plead allegations that, if proven, would
demonstrate that she is willing and able to return the loan.
The Court agrees ...