Day v. Freedom Mortgage Corporation et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 25-cv-01557-PAB-SBP
THOMAS J. DAY,
Plaintiff,
v.
FREEDOM MORTGAGE CORPORATION, et al.,
Defendants.
ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATIONS
This matter comes before the Court on the Reports and Recommendations of the
United States Magistrate Judge [Docket Nos. 68-71]. Plaintiff filed objections. Docket
No. 75. Defendants Alpine Mortgage, Trent T. Lauridson, and Jason S. Buckley
(collectively, the “Alpine Defendants”) filed a response. Docket No. 76. The Court has
jurisdiction pursuant to 28 U.S.C. §1331.
I. 	BACKGROUND
The facts are set forth in the magistrate judge’s recommendations, Docket No. 68
at 2-6; Docket No. 69 at 2-6; Docket No. 70 at 2-3, and the Court adopts them for
purposes of ruling on the objections. To the extent that plaintiff disputes how the
magistrate judge construed certain facts, the Court considers and resolves those
arguments below.
On June 6, 2025, plaintiff filed his amended complaint. Docket No. 4. The
complaint asserts claim for violation of the Truth in Lending Act (“TILA”) (Claim One);
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violation of the Fair Debt Collection Practices Act (“FDCPA”) (Claim Two); violation of
the Real Estate Settlement Procedures Act (“RESPA”) (Claim Three); violation of the
Fifth and Fourteenth Amendments of the United States Constitution pursuant to 42
U.S.C. § 1983 (Claim Four); violation of the Colorado Consumer Protection Act
(“CCPA”) (Claim Five); and for fraud pursuant to Colorado common law and the Uniform
Commercial Code (“U.C.C.”) (Claim Six). See id. at 3-6.
Claim One is asserted against defendants Amanda Ferguson, Heather Deere,
Freedom Mortgage Corporation (“Freedom”); Claim Two is asserted against the Alpine
Defendants, Ms. Ferguson, Ms. Deere, and Freedom; Claim Three is asserted against
Freedom; Claim Four is asserted against the Alpine Defendants, Ms. Ferguson, Ms.
Deere, and Freedom; Claim Five is asserted against the Alpine Defendants, Ms.
Ferguson, Ms. Deere, and Freedom; and Claim Six is asserted against the Alpine
Defendants, Ms. Ferguson, Ms. Deere, and Freedom. See id.
Plaintiff’s claims arise out of two foreclosure proceedings initiated by Freedom
and Alpine in state court on the property located at 106 Rachel Lane, Breckenridge,
Colorado: Freedom Mortg. Co. v. Day, Case No. 2025CV030103 (Summit Cnty. Dist.
Ct.), and Alpine Bank v. Day, Case No. 2025CV030090 (Summit Cnty. Dist. Ct.). 1 See
Docket No. 4 at 3-8. In the foreclosure proceedings, plaintiff asserted counterclaims
that mirrored several of the claims that he brings in this case. See Alpine Bank, Case
1 The Court takes judicial notice of the state court dockets in Case Nos.
2025CV030103 and Case No. 2025CV030090. See Tal v. Hogan, 453 F.3d 1244, 1264
n.24 (10th Cir. 2006) (holding that a court may take judicial notice of facts which are a
matter of public record when considering a motion to dismiss); Stan Lee Media, Inc. v.
Walt Disney Co., 774 F.3d 1292, 1298 n.2 (10th Cir. 2014) (noting that a court may
“take judicial notice of documents and docket materials filed in other courts”).
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No. 2025CV030090. On July 9, 2025, the state court dismissed all counterclaims with
prejudice. See id. On October 17, 2025, the state court entered partial summary
judgment in Alpine’s favor. See id. On November 18, 2025, the court certified that
ruling as final pursuant to Colorado Rule of Civil Procedure 54(b) and dismissed
Alpine’s remaining claims without prejudice. See id. Plaintiff appealed the state court’s
order and that appeal remains ongoing. See id.
The recommendation finds that plaintiff’s claims are subject to dismissal with
prejudice because they “rest on legally-unsupported theories concerning loan
consideration and debt extinguishment.” Docket No. 68 at 8; Docket No. 69 at 7;
Docket No. 70 at 7. Additionally, the recommendation finds that plaintiff’s claims are
subject to dismissal with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). See Docket No.
68 at 12; Docket No. 69 at 11; Docket No. 70 at 11.
II. 	LEGAL STANDARD
A. Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
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upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to
accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th
Cir. 1994) (“we are not bound by conclusory allegations, unwarranted inferences, or
legal conclusions”).
“[W]here 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 Iqbal, 556 U.S. at 679 (quotations and alterations
omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across
the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting
Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so general that they
encompass a wide swath of conduct, much of it innocent,” then plaintiff has not stated a
plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though
modern rules of pleading are somewhat forgiving, “a complaint still must contain either
direct or inferential allegations respecting all the material elements necessary to sustain
a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (alterations
omitted).
B. Objections to the Magistrate Judge Recommendations
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (“One Parcel”). A specific objection
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“enables the district judge to focus attention on those issues – factual and legal – that
are at the heart of the parties’ dispute.” Id.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither party
objects to those findings.”). The Court therefore reviews the non-objected to portions of
a recommendation to confirm there is “no clear error on the face of the record.” Fed. R.
Civ. P. 72(b), Advisory Committee Notes. This standard of review is something less
than a “clearly erroneous or is contrary to law” standard of review, Fed. R. Civ. P. 72(a),
which in turn is less than a de novo review. Fed. R. Civ. P. 72(b). Because plaintiff is
proceeding pro se, the Court will construe his objections and pleadings liberally without
serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III. 	ANALYSIS
Plaintiff raises five objections, which the Court addresses in turn.
A. Objection One
Plaintiff argues that the magistrate judge erroneously characterized his legal
theories as “frivolous” and being based on the “’vapor money’ theories.” See Docket
No. 75 at 2-3. Plaintiff contends that he brings “legitimate constitutional challenges”
because defendants “provided zero evidence of funding, original, wet-ink note, or valid
assignment.” See id. at 3. Plaintiff additionally argues that the recommendation failed
to afford his pleadings a “liberal construction” and “draw inferences in Plaintiff’s favor on
a 12(b)(6) motion.” See id.
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The recommendation finds that plaintiff’s claims are based on a “redemptionist”
or “vapor money” theory, pursuant to which borrowers “contend that debts arising from
loans funded through credit – rather than physical currency or specie – are
unenforceable, lack consideration, or may be discharged through unilateral demands for
proof of funding or presentment of negotiable instruments.” Docket No. 68 at 8-9;
Docket No. 69 at 8; Docket No. 70 at 8. The recommendation notes that “[c]ourts within
the Tenth Circuit and elsewhere have consistently rejected such arguments as legally
baseless.” Docket No. 68 at 9; Docket No. 69 at 9; Docket No. 70 at 9. Thus, the
recommendation finds that dismissal with prejudice of plaintiff’s claims is “warranted on
this basis alone.” Docket No. 68 at 11; Docket No. 69 at 10-11; Docket No. 70 at 10-11.
The Court agrees that plaintiff’s claims are premised on a baseless legal theory
and that dismissal with prejudice is appropriate. As the recommendation notes, and as
plaintiff reiterates in his objection, his claims rest on “the premise that the loan was void
or unenforceable due to the alleged absence of lawful consideration or failure of poof of
consideration.” Docket No. 70 at 10. “Courts have summarily, universally, and rightly
rejected this theory.” Mercado v. Transp. Funding, LLC, 2025 WL 388661, at *3 (D.
Kan. Feb. 4, 2025) (collecting cases). Even if plaintiff’s claims were based upon a
proper legal theory, the complaint fails to plausibly allege any claim as the Court
discusses below.
Furthermore, the Court finds that the recommendation afforded plaintiff’s
pleadings a liberal construction and accepted the well-pleaded allegations of the
complaint as true. See, e.g., Docket No. 68 at 6-7 (discussing the legal standard
applicable on a Rule 12(b)(6) motion to dismiss and to pro se litigants). Plaintiff does
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not explain how the magistrate judge failed to apply the appropriate legal standard.
Although plaintiff is entitled to a liberal construction of his pleadings, this does not mean
that the Court must accept claims that lack a legal basis. See Weeks v. Barkman, No.
20-cv-00544-PAB-NYW, 2021 WL 4555999, at *10 (D. Colo. Mar. 22, 2021), report and
recommendation adopted, 2021 WL 4146001 (D. Colo. Sept. 13, 2021) (“despite the
liberal construction this court affords Plaintiff's filings, this court cannot construct
arguments or advance alternative legal theories on his behalf”). Accordingly, the Court
will overrule plaintiff’s first objection.
B. Objection Two
Plaintiff objects to the recommendation that Claim Four be dismissed because
the complaint fails to plausibly allege that defendants operated under the color of state
law. See Docket No. 75 at 3. The recommendation finds that defendants, as private
actors, can only be held liable under § 1983 if defendants engaged in conduct that is
fairly attributable to the state. Docket No. 68 at 15-18; Docket No. 69 at 16-19; Docket
No. 70 at 23-26. The recommendation finds that the complaint lacks allegations
“tending to suggest that state officials and [defendants] have acted in concert in
effecting a particular deprivation of constitutional rights.” Docket No. 68 at 18; Docket
No. 69 at 18-19; Docket No. 70 at 25 (internal quotations, alterations, and citations
omitted).
“Under Section 1983, liability attaches only to conduct occurring ‘under color of
law.’ Thus, under the state action doctrine, a proper defendant in a § 1983 action is one
who represents the state in some capacity.” Schwab v. Kansas Dep’t of Child. & Fams.,
851 F. App’x 110, 117 (10th Cir. 2021) (unpublished) (citations omitted). In Johnson v.
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Rodrigues, 293 F.3d 1196, 1202-05 (10th Cir. 2002), the Tenth Circuit discussed four
tests used to determine whether private parties should be deemed state actors: (1) the
public function test; (2) the nexus test; (3) the symbiotic relationship test; and (4) the
joint action test.
“The public function test consists of determining whether the state has delegated
to a private party ‘a function traditionally exclusively reserved to the States.’” Id. at 1203
(quoting Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1456 (10th Cir.
1995)). “Under the nexus test, a plaintiff must demonstrate that there is a sufficiently
close nexus between the government and the challenged conduct such that the conduct
may be fairly treated as that of the State itself.” Id. (internal quotations and citation
omitted omitted). “Under the analysis referred to as the ‘symbiotic relationship test,’ the
state must have so far insinuated itself into a position of interdependence with a private
party that it must be recognized as a joint participant in the challenged activity.” Id. at
1204 (internal quotations and citation omitted). “Under the joint action test, state action
is also present if a private party is a willful participant in joint action with the State or its
agents.” Id. at 1205 (internal quotations and citation omitted).
The Court agrees with the magistrate judge that the complaint is devoid of
allegations that plausibly allege that defendants engaged in conduct that is fairly
attributable to the state under any of the Johnson tests. Plaintiff does not cite
allegations from the complaint that show state action, but rather argues that “Private
Defendants became state actors by invoking Colorado’s foreclosure statutes and state-
court processes.” See Docket No. 75 at 3. The mere fact that private parties use the
court system does not constitute joint action with the state. See Scott v. Hern, 216 F.3d
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897, 906 (10th Cir. 2000) (“A private individual does not engage in state action simply
by availing herself of a state procedure.”). Plaintiff argues that Scott is distinguishable
because there is “no due process tie there.” See Docket No. 75 at 3. To the extent that
plaintiff argues that his Fifth Amendment claim means that he need not show state
action, Johnson is clear that a plaintiff cannot bring a § 1983 claim against a private
party without allegations showing that the private party should be deemed a state actor.
See Johnson, 293 F.3d at 1202-05. Plaintiff also contends, without support, that
“[d]iscovery will prove nexus.” Docket No. 75 at 3. Plaintiff’s mere speculation that
discovery will show defendants engaged in conduct that is fairly attributable to the state
does not free plaintiff of his obligation to plausibly allege “sufficient factual matter,
accepted as true” that “state[s] a claim to relief that is plausible on its face.” See Iqbal,
556 U.S. at 678 (internal quotation and citation omitted); see also Farris v. Stepp, No.
20-cv-02346-DDD-NYW, 2021 WL 5200210, at *14 (D. Colo. Nov. 9, 2021) (“The
speculation that Plaintiff might uncover evidence during discovery which would bolster
his claims has no bearing on whether he has met the pleading standards required in
federal court.”).
Accordingly, the Court will overrule plaintiff’s second objection. 2
C. Objection Three
Plaintiff argues that the “Younger abstention [is] inapplicable” and that the “Anti-
Injunction Act (28 U.S.C. § 2283) has express exception for § 1983.” Docket No. 75 at
2 Plaintiff states, “Best defense: Amend/supplement under FRCP 15(a)(2) (‘freely
given’).’” Docket No. 75 at 3. To the extent that plaintiff is requesting leave to amend
his complaint, the Court will deny that request because plaintiff fails to comply with the
Local Rules of this District for filing an amended complaint. See D.C.COLO.LCivR 15.1;
D.C.COLO.LCivR 7.1(d) (“A motion shall be filed as a separate document.”).
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3. However, the magistrate judge did not recommend dismissal of any claims on the
basis of Younger abstention. See generally Docket Nos. 68-70. The recommendation
finds that “[b]ecause this case does not fall into a Sprint category, Younger does not
apply and accordingly poses no barrier to the adjudication of Claim Five.” Docket No.
68 at 23. The recommendation did not recommend the dismissal of any claims on the
basis of the Anti-Injunction Act. See generally Docket Nos. 68-70. Accordingly, the
Court will overrule plaintiff’s third objection.
D. Objection Four
Plaintiff objects to the magistrate judge’s recommendation that the Court dismiss
Claims Two and Five, which are his claims for violation of the FDCPA and CCPA,
respectively. Docket No. 75 at 4. Plaintiff argues that the “FDCPA applies” because
defendants are “’debt collectors’ misusing process.” Id. Plaintiff argues that the
defendants violated by the CCPA by “deceptive practices” and that “[f]raud [is] pled with
particularity.” Id.
To establish a violation of the FDCPA, a plaintiff must show that: (1) he is a
“consumer” under the FDCPA; (2) the debt in question arises out of a transaction
entered into primarily for personal, family, or household purposes; (3) that the defendant
is a “debt collector” under the FDCPA; and (4) that the defendant violated a provision of
the FDCPA. See Deporter v. Credit Bureau of Carbon Cnty., No. 14-cv-00882-KMT,
2015 WL 1932336, at *3 (D. Colo. Apr. 28, 2015). The recommendation finds that
plaintiff has not plausibly alleged that defendants are “debt collectors” that are subject to
the FDCPA. Docket No. 68 at 14; Docket No. 69 at 15-16; Docket No. 70 at 17-18.
The FDCPA excludes the following as a “debt collector”:
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any person collecting or attempting to collect any debt owed or due or asserted
to be owed or due another to the extent such activity (i) is incidental to a bona
fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt
which was originated by such person; (iii) concerns a debt which was not in
default at the time it was obtained by such person; or (iv) concerns a debt
obtained by such person as a secured party in a commercial credit transaction
involving the creditor.
15 U.S.C. § 1692a(6)(F). As the recommendation notes, “[i]n the foreclosure context,
the vast majority of courts, especially in this District, have found that foreclosure
activities are outside the scope of the FDCPA.” See Docket No. 68 at 13-14 (internal
quotation and citation omitted). Plaintiff does not contest that “Alpine is the original
creditor on the 2019 loan secured” by the property at issue and that Alpine’s counsel’s
alleged conduct is “squarely within the scope of the procedures established for
enforcing a security interest under Colorado law.” See Docket No. 68 at 14. Thus, the
Court agrees that the Alpine Defendants, which includes Alpine and its counsel, are not
debt collectors under the FDCPA because they were engaged in foreclosure activities
and are excluded as debt collectors under 15 U.S.C. § 1692a(6)(F) . See id. Similarly,
the Court agrees that Ms. Ferguson and Ms. Deere are not debt collectors because
plaintiff’s allegations against them “arise from their role as counsel to . . . the servicer of
the loan, and Ferguson’s and Deere’ efforts to enforce that security interest after
Plaintiff’s default.” See Docket No. 69 at 15. Regarding Claim Four as asserted against
Freedom, the Court agrees that Freedom is not a debt collector because the complaint
fails to allege that “Freedom’s ‘principal purpose’ is debt collection, that it ‘regularly
collects or attempts to collect’ debts owed to another, or that it acquired the loan only
after it was already in default.” See Docket No. 70 at 17 (citing Williams v.
Dovenmuehle Mortg., Inc., No. 24-cv-00447-CNS-NRN, 2024 WL 3340984, at *5 (D.
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Colo. May 23, 2024)). Furthermore, as is the case for the Alpine Defendants, Ms.
Ferguson, and Ms. Deere, Freedom is not a debt collector because it engaged only in
nonjudicial foreclosure proceedings. Plaintiff’s objection to the dismissal of his FDCPA
claim does not explain how defendants allegedly “misusing processes” renders
defendants debt collectors. Accordingly, the Court overrules plaintiff’s fourth objection
as it relates to the dismissal of his FDCPA claim.
To state a claim under the CCPA, a plaintiff must establish 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.
Two Moms & a Toy, LLC v. Int’l Playthings, LLC, 898 F. Supp. 2d 1213, 1219 (D. Colo.
2012)); see also Renfro v. Champion Petfoods USA, Inc., 25 F.4th 1293, 1301 (10th Cir.
2022). “Due to the CCPA’s underlying goal of protecting consumers and the public,
plaintiffs are prohibited from bringing purely private causes of action under the CCPA.”
Examination Bd. of Pro. Home Inspectors v. Int’l Ass’n of Certified Home Inspectors,
519 F. Supp. 3d 893, 919 (D. Colo. 2021) (citing Rhino Linings USA, Inc. v. Rocky
Mountain Rhino Lining, 62 P.3d 142, 149 (Colo. 2003)). To plausibly allege a CCPA
claim, “a plaintiff must meet the heightened pleading requirements pursuant to Rule 9(b)
to prove a deceptive or unfair trade practice.” See HealthONE of Denver, Inc. v.
UnitedHealth Grp. Inc., 805 F. Supp. 2d 1115, 1120-21 (D. Colo. 2011). The
recommendation finds that plaintiff fails to plausibly allege the elements of a CCPA
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claim and fails to comply with Rule 9(b). See Docket No. 68 at 26; Docket No. 69 at 20;
Docket No. 70 at 27.
The Court agrees that plaintiff fails to plausibly allege a CCPA claim. As the
recommendation notes, plaintiff’s CCPA claim fails to allege a significant public impact
and instead focuses on a “single, private dispute over the terms, validity, and
enforcement of a home-equity loan and the resulting foreclosure.” See Docket No. 68
at 26; Docket No. 69 at 20; Docket No. 70 at 27. “When a transaction is no more than a
private dispute, . . . it may be more difficult to show that the public has an interest in the
subject matter.” Rhino Linings USA, Inc., 62 P.3d at 150 (internal quotation and citation
omitted). Plaintiff merely alleges that “other Colorado homeowners” were impacted
without factual support. See Docket No. 4 at 6. The Court does not find well-pled
allegations in the complaint that demonstrate the public has an interest in this private
dispute and plaintiff does not cite any such allegations in his objection. Furthermore,
the complaint does not plead with the particularity required by Rule 9(b) that defendants
engaged in deceptive practices. Rather, the complaint contains conclusory statements
such as that defendants’ loans lacked consideration, that defendants fraudulently
concealed information regarding the loan, defendants pursued defective foreclosure and
lawsuit processes, and that the debts lacked validity. See id. at 7-8. While plaintiff
contends that “[f]raud [is] pled with particularity,” plaintiff fails to cite allegations in the
complaint that comply with Rule 9(b). See Docket No. 75 at 4. Accordingly, the Court
overrules plaintiff’s fourth objection as it relates to the dismissal of his CCPA claim. 3
3 Plaintiff argues that “[r]es judicata [is] inapplicable.” Docket No. 75 at 4.
However, the magistrate judge did not recommend the dismissal of any claims on the
basis of res judicata. See Docket No. 68 at 24-25; see generally Docket Nos. 69-70.
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E. Objection Five
Plaintiff objects to the denial of his motion, Docket No. 59, which is titled “Motion
to Supplement/Amend Complaint and for Preliminary Injunction with Request for
Expedited Consideration and Oral Argument/Hearing.” See Docket No. 75 at 4. In that
motion, plaintiff requested a “preliminary injunction stay state enforcement
(garnishment, foreclosure).” See Docket No. 59 at 4. The magistrate judge
recommends that plaintiff’s request for a preliminary injunction be denied as moot, given
that plaintiff has failed to plausibly allege a claim for relief. See Docket No. 71. Plaintiff
does not object to that recommendation. In his motion, plaintiff also asked for “leave to
supplement/amend complaint.” See Docket No. 59 at 4. The magistrate judge granted
that request in part, “to the extent [it] seek[s] to supplement the briefing on the Motions
to Dismiss.” Docket No. 73. The magistrate judge denied plaintiff’s request to the
extent that it “seek[s] any additional relief.” Id.
Plaintiff argues that his motion must be granted for “amendment for new facts
(retaliation, appeal, bond, no evidence).” Docket No. 74 at 4. In his motion, plaintiff
provides the “supplemental facts” that he seeks to add to his complaint. See Docket
No. 59 at 2-3. Plaintiff’s “supplemental facts” appear to allege that judgment was
entered against him in the state case, that he was subject to garnishment, that
defendants’ motions in the state case were granted while plaintiff’s motions were
denied, that plaintiff filed an appeal, and that plaintiff is being “financially exhaust[ed].”
See id. Not only did the magistrate judge consider these facts in her recommendation,
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the Court further finds that plaintiff’s motion – to the extent that it seeks to amend his
complaint – would be futile. A motion to amend may be denied for futility “if the
complaint, as amended, would be subject to dismissal.” Anderson v. Suiters, 499 F.3d
1228, 1238 (10th Cir. 2007). A district court is justified in denying a motion to amend as
futile only if the proposed amendment cannot withstand a motion to dismiss or
otherwise fails to state a claim. See Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir.
1992). Plaintiff’s supplemental facts do not address any of the deficiencies identified by
the magistrate judge in the recommendation. Accordingly, the Court will overrule
plaintiff’s fifth objection. 4
F. Non-Objected to Portions of the Recommendation
The Court has reviewed the rest of the recommendation to satisfy itself that there
are “no clear error[s] on the face of the record.” See Fed. R. Civ. P. 72(b), Advisory
Committee Notes. Based on this review, the Court has concluded that the
recommendation is a correct application of the facts and the law.
Plaintiff does not object to the magistrate judge’s recommendation that Claims
One, Three, and Six be dismissed. 5 The Court agrees with the recommendation’s
finding that plaintiff fails to plausibly allege a claim pursuant to Rule 12(b)(6) under
TILA, see Docket No. 69 at 11-15, Docket No. 70 at 11-16, under RESPA, see Docket
4 Plaintiff argues that the recommendations “hold to attorney standards” and
argues that pro se pleadings should be liberally construed. Docket No. 75 at 4. The
Court rejects this argument for the same reasons discussed regarding plaintiff’s first
objection.
5 To the extent that plaintiff’s objection stating that “[f]raud pled with particularity”
is directed at the dismissal of Claim Six, see Docket No. 75 at 4, the Court rejects
plaintiff’s argument that he has pled fraud in accordance with Fed. R. Civ. P. 9(b) for the
same reasons described regarding plaintiff’s fourth objection to the dismissal of his
CCPA claim.
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No. 70 at 19-23, or for common law fraud and violation of the U.C.C., see Docket No. 68
at 27-32, Docket No. 69 at 21-25; Docket No. 70 at 28-32. Plaintiff does not object to
the magistrate judge’s recommendation that his motions seeking to add a claim for
preliminary injunctive relief be denied given that he fails to state a claim for relief. See
Docket No. 71. Plaintiff also does not object to the recommendation that plaintiff’s
claims be dismissed with prejudice. Finding no clear error with the recommendations,
the Court will dismiss all of plaintiff’s claims with prejudice and deny his motions for a
preliminary injunction as moot.
IV. 	CONCLUSION
Therefore, it is
ORDERED that Plaintiff’s Combined Objections [Docket No. 75] are
OVERRULED. It is further
ORDERED that the Reports and Recommendations of the United States
Magistrate Judge [Docket Nos. 68, 69, 70, 71] are ACCEPTED. It is further
ORDERED that the Alpine Defendants’ Motion to Dismiss [Docket No. 11] is
GRANTED. It is further
ORDERED that Ms. Ferguson and Ms. Deere’s Motions to Dismiss [Docket Nos.
13, 15] are GRANTED. It is further
ORDERED that Freedom’s Motion to Dismiss [Docket No. 20] is GRANTED. It is
further
ORDERED that plaintiff’s claims are DISMISSED with prejudice. It is further
Case No. 1:25-cv-01557-PAB-SBP Document 77 filed 03/26/26 USDC Colorado
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17
ORDERED that this case is closed.
DATED March 26, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
United States District Judge
__________________________________
Case No. 1:25-cv-01557-PAB-SBP Document 77 filed 03/26/26 USDC Colorado
pg 17 of 17