McMechan v. Deutsche Bank

24CA1384 McMechan v Deutsche Bank 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1384
Weld County District Court No. 23CV30874
Honorable Shannon D. Lyons, Judge

Tori McMechan,

Plaintiff-Appellant,

v.

Deutsche Bank National Trust Company as Trustee in Trust for Registered
Holders of Long Beach Mortgage Loan Trust 2006-6 Asset-Backed Certificates
Series 2006-6, its successors and assigns,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Gomez and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 24, 2025

Tori McMechan, Pro Se

Kutak Rock LLP, Jeremy D. Peck, Denver, Colorado, for Defendant-Appellee
¶1 Plaintiff, Tori McMechan,1 appeals the district court’s

judgment dismissing her complaint against defendant, Deutsche

Bank National Trust Company as Trustee in Trust for Registered

Holders of Long Beach Mortgage Loan Trust 2006-6 Asset-Backed

Certificates Series 2006-6 (Deutsche Bank), pursuant to

C.R.C.P. 12(b)(5), with prejudice. We affirm.

I. Background

¶2 In 2006, McMechan’s now-deceased husband, James

McMechan, obtained a mortgage loan concerning a property in

Nunn, Colorado. McMechan’s husband signed the note, and they

both signed the deed of trust. Over the course of many years, two

1 The record doesn’t indicate that “In Interest of James J.

McMechan, Deceased,” which is named as co-appellant with Tori
McMechan, refers to an estate with a personal representative.
Further, the opening brief indicates that “[a]ll property of James J.
McMechan devolved to his wife Tori McMechan[,] including all
interests of James McMechan in the residential real property the
subject of the underlying action.” We thus conclude that the
named interest is not a represented estate, see C.A.R. 5(c)(7), nor
could it show standing regarding the property at issue, see League
of Women Voters of Greeley, Weld Cnty., Inc. v. Bd. of Cnty.
Comm’rs, 2025 CO 8, ¶¶ 24-26. We therefore order the named
interest dismissed, as it is not a proper party to the appeal. The
caption page has been revised accordingly. Because no entities that
must be represented by counsel remain as an appellant, see C.A.R.
5(c)(7), a separate order granting appellant counsel’s motion to
withdraw has been issued.

1
things happened: (1) the note and deed of trust went through a

series of assignments, eventually landing in the hands of Deutsche

Bank; and (2) beginning around 2010, McMechan and her husband

failed to make monthly payments on the loan, and the loan went

into default.

¶3 In 2022, Deutsche Bank initiated a judicial foreclosure. On

September 19, 2023, the court overseeing that proceeding issued an

order authorizing the property’s sale, and the foreclosure sale was

scheduled for November 8, 2023.

¶4 On November 1, 2023, McMechan filed the complaint that is

the subject of this appeal. In her complaint, McMechan sought a

declaratory judgment against Deutsche Bank, the purported

current holder of the loan, seeking a determination that Deutsche

Bank doesn’t have, and never has had, any legal or equitable rights

in the note or deed of trust. In her complaint, McMechan asserted

that the assignment to Deutsche Bank was improper, and thus

Deutsche Bank couldn’t proceed with foreclosure of the property.

¶5 Along with her complaint, McMechan also filed a motion for a

temporary restraining order (TRO) to enjoin the then-scheduled

November 8, 2023, sale of the property. On November 2, 2023, the

2
district court granted that motion on an ex parte basis and issued a

TRO enjoining the foreclosure sale for fourteen days. As a result,

the November 8, 2023, sale was cancelled. By its terms, the TRO

expired after fourteen days.

¶6 On November 7, 2023, Deutsche Bank removed this case to

federal court. McMechan then filed a motion to remand the case

back to state court. Deutsche Bank filed a motion to dismiss the

complaint under Fed. R. Civ. P. 12(b)(6). McMechan responded,

and Deutsche Bank replied. On May 16, 2024, the federal court

granted McMechan’s motion to remand and sent the case back to

state court without ruling on Deutsche Bank’s motion to dismiss.

¶7 On June 27, 2024, Deutsche Bank filed a motion to dismiss

McMechan’s complaint under C.R.C.P. 12(b)(5). In it, Deutsche

Bank advanced three arguments for dismissal. First, Deutsche

Bank argued that to the extent that McMechan’s declaratory

judgment claim sought a declaration that any of the assignments

leading to its ownership of the loan and the deed of trust were

invalid, such a claim fails as a matter of law because “mortgage

loan borrowers lack standing to challenge the assignment of

promissory notes from one lender to another, and the assignment of

3
deeds of trust from one beneficiary to another, because the

borrowers are not parties to those transactions.” Second, to the

extent that McMechan alleged in her complaint that she had

entered into a verbal payment reinstatement plan with JPMorgan

Chase Bank in 2010 that modified the terms of the loan or deed of

trust, such a verbal agreement is void and unenforceable under the

statute of frauds for credit agreements (CASF), § 38-10-124, C.R.S.

2025. Third, to the extent that McMechan argued in her complaint

that Deutsche Bank is unable to foreclose on her property because

it didn’t produce the original, wet ink note, such an argument is

contrary to Colorado law, as an assignee isn’t required to produce

the original, wet ink note in order to foreclose on the property.

Deutsche Bank argued that based on these three legal infirmities in

McMechan’s complaint, the case must be dismissed with prejudice

for failure to state a claim.

¶8 McMechan didn’t file a response to Deutsche Bank’s motion to

dismiss. On July 22, 2024, the district court granted Deutsche

Bank’s motion “for the reasons and authorities set forth” in the

motion and dismissed the case “with prejudice.”

4
II. Issues on Appeal

¶9 McMechan advances two arguments on appeal. Specifically,

she contends that the district court erred by granting Deutsche

Bank’s motion to dismiss under C.R.C.P. 12(b)(5) because (1) the

district court ignored the proper standard for a motion to dismiss

and (2) Colorado law favors resolution of disputes on the merits.

We address and reject both of her arguments in turn below.2

2 Deutsche Bank argues that none of McMechan’s arguments are

preserved for appeal because McMechan didn’t present her
arguments to the district court in a response to Deutsche Bank’s
motion to dismiss. Where, as here, a court grants a motion to
dismiss on the merits, it isn’t clear to us that a failure to respond to
the motion in the district court precludes a party from advancing
otherwise unpreserved challenges on appeal. See In re Estate of
Ramstetter, 2016 COA 81, ¶ 71 n.7 (When “a trial court addresses
an argument, whether that argument was preserved is moot.”);
Hemmann Mgmt. Servs. v. Mediacell, Inc., 176 P.3d 856, 858 (Colo.
App. 2007) (“We conclude that, like motions for summary judgment,
motions to dismiss for failure to state a claim must be considered
on their merits and cannot be deemed confessed by a failure to
respond.”). In any event, because we reject McMechan’s arguments
advanced on appeal on their merit, we don’t need to reach or resolve
the issue of preservation. See In re Marriage of Mack, 2022 CO 17,
¶ 12 (“[B]ecause we conclude that Husband’s statutory argument is
unavailing, we need not decide whether he preserved the issue for
appeal.”); L & R Expl. Venture v. Grynberg, 271 P.3d 530, 536 (Colo.
App. 2011) (declining to resolve an issue where outcome wouldn’t
change).

5
A. C.R.C.P. 12(b)(5)

¶ 10 To survive a motion to dismiss for failure to state a claim, a

plaintiff must “state a claim [to] relief that is plausible on its face.”

Warne v. Hall, 2016 CO 50, ¶ 1 (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). In evaluating a motion to dismiss, a district court

must accept all well-pleaded factual allegations in the complaint as

true, viewing them in the light most favorable to the plaintiff.

Bewley v. Semler, 2018 CO 79, ¶ 14. Similarly, it must accept as

true factual allegations set forth in documents attached to or

referenced by the complaint. Prospect Dev. Co. v. Holland & Knight,

LLP, 2018 COA 107, ¶ 11. In turn, we review de novo a district

court’s ruling on a C.R.C.P. 12(b)(5) motion to dismiss for failure to

state a claim. Bewley, ¶ 14.

¶ 11 With these principles in mind, we turn to McMechan’s

arguments on appeal.

B. Analysis

1. Proper Legal Standard

¶ 12 First, McMechan argues that the district court ignored the

proper standard to evaluate a C.R.C.P. 12(b)(5) motion under

Colorado law. Specifically, McMechan argues that because the

6
district court’s order dismissed her complaint “for the reasons” in

Deutsche Bank’s motion, the district court thus “admits it[s ruling]

is grounded on [Deutsche Bank’s] arguments,” which are outside

the complaint and therefore couldn’t have been properly considered

without turning the motion into one for summary judgment. We

disagree that the district court applied the wrong standard.

¶ 13 Because the district court granted Deutsche Bank’s motion for

“the reasons and authorities set forth therein,” we look at the

motion to see whether it explained the correct standard, thus

meaning the district court applied the correct standard. In the

motion, Deutsche Bank set forth the proper standard of review for a

motion to dismiss under C.R.C.P. 12(b)(5) — namely, that to state a

claim for relief, a plaintiff must allege sufficient facts that, when

accepted as true and taken in the light most favorable to them,

state a plausible claim for relief. See Warne, ¶ 1. The motion also

correctly explained that, when evaluating a motion to dismiss under

C.R.C.P. 12(b)(5), a district court may refer to documents attached

to or referenced in the complaint without converting the motion to

one for summary judgment. See Yadon v. Lowry, 126 P.3d 332,

336 (Colo. App. 2005).

7
¶ 14 In sum, Deutsche Bank argued in its motion that, even taking

McMechan’s allegations in her complaint as true, she still failed to

state a claim for relief. This is the proper standard for evaluating a

motion to dismiss for failure to state a clam. See Bewley, ¶ 14.

And McMechan doesn’t direct us to anywhere in the motion where

Deutsche Bank improperly recited the law related to a

C.R.C.P. 12(b)(5) motion to dismiss. Nor does the record indicate

that the district court applied a different or improper standard.

Therefore, upon our review of the record, we aren’t persuaded that

the district court applied the wrong standard in granting Deutsche

Bank’s motion to dismiss.

¶ 15 As part of this argument, McMechan appears to contend that

it’s contradictory for the district court to have granted McMechan’s

ex parte motion for a TRO at the outset of the case and then later

granted Deutsche Bank’s motion to dismiss under C.R.C.P. 12(b)(5).

But McMechan conflates the standards for granting these two

different filings.

¶ 16 “The purpose of a [TRO] is to prevent ‘immediate and

irreparable harm’ to one of the parties in a lawsuit.” City of Golden

v. Simpson, 83 P.3d 87, 96 (Colo. 2004) (quoting Mile High Kennel

8
Club v. Colo. Greyhound Breeders Ass’n, 559 P.2d 1120, 1121 (Colo.

App. 1977)). Indeed, a TRO can be granted — as it was here —

“without notice to the party to be restrained.” Id. (citing

C.R.C.P. 65(b)). A court’s ruling on a TRO isn’t a decision on the

merits of a party’s claim. Instead, the purpose of a TRO is to

preserve the status quo and prevent irreparable harm “prior to a

decision on the merits of a case.” Anderson v. Applewood Water

Ass’n, 2016 COA 162, ¶ 15 (emphasis added). “A permanent

injunction, on the other hand, requires success on the merits of the

case.” Simpson, 83 P.3d at 96.

¶ 17 Simply put, nothing about the district court’s granting of the

TRO has any bearing on whether the district court properly

dismissed McMechan’s complaint for failure to state a claim. And

McMechan cites no authority in support of her contrary contention.

As such, we don’t see any inconsistency with the district court’s

granting McMechan’s TRO and then later granting Deutsche Bank’s

motion to dismiss under C.R.C.P. 12(b)(5).

2. Resolution on the Merits Argument

¶ 18 Second, citing Craig v. Rider, 651 P.2d 397 (Colo. 1982);

Group 1 Services, Ltd. v. Michilleti, 650 P.2d 1305 (Colo. App. 1982);

9
and Farber v. Green Shoe Mfg., Co., 596 P.2d 398 (Colo. App. 1979),

overruled by, Lake Meredith Reservoir Co. v. Amity Mut. Irrigation

Co., 698 P.2d 1340 (Colo. 1985), McMechan asserts that the district

court erred in granting the motion to dismiss because “Colorado law

favors resolution of disputes on the merits.” This general policy

doesn’t countermand the fact that, when a complaint fails to state a

claim for relief, a district court dismisses the case upon a properly

founded motion.

¶ 19 Further, the three cases McMechan cites to support this

argument are inapplicable. Although those cases express a

preference for resolution of disputes on their merits, the dismissals

in those cases were for procedural reasons, rather than dismissals

under C.R.C.P. 12(b)(5) for failure to state a claim. See Craig, 651

P.2d at 402-03 (explaining that “[r]esolution of disputes on their

merits is favored” in the context of setting aside default judgments);

Group 1 Servs., 650 P.2d at 1306 (reversing the district court’s

dismissal of a case when the plaintiff failed to comply with a local

rule on the contents of a filing); Farber, 596 P.2d at 399-400

(reversing a district court’s dismissal of a case based on a failure to

prosecute).

10
¶ 20 Simply put, although there may be a general presumption

favoring resolving cases on the merits, McMechan doesn’t explain

how this general presumption saves her complaint. To put a

sharper point on it, McMechan doesn’t explain how her complaint

plausibly states a claim for relief.3

3. Summary

¶ 21 Neither of the arguments McMechan advances on appeal

provide a basis for reversing the district court’s judgment

dismissing her complaint with prejudice. And on appeal McMechan

doesn’t argue — at least, not in any developed way — that the

district court shouldn’t have dismissed her complaint under

C.R.C.P. 12(b)(5) because it properly stated a claim for relief.

3 McMechan also cites Hudak v. Medical Lien Management, Inc.,

2013 COA 83, ¶ 9, and Nelson v. Blacker, 701 P.2d 135, 137 (Colo.
App. 1985), to challenge the district court’s dismissal of her case
with prejudice, rather than without prejudice. While these cases
explain that dismissal with prejudice is a drastic sanction to be
applied only in extreme situations, see Hudak, ¶ 9; Nelson, 701
P.2d at 137, both cases address dismissals for failure to prosecute
under C.R.C.P. 41(b), see Hudak, ¶ 6; Nelson, 701 P.2d at 137.
McMechan doesn’t explain how or why these cases are applicable to
a motion to dismiss under C.R.C.P. 12(b)(5), nor does she develop
any argument as to why dismissal with prejudice was inappropriate
here. So we decline to address this undeveloped argument further.
See Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo.
App. 2007) (declining to address “underdeveloped arguments”).

11
¶ 22 By granting Deutsche Bank’s motion, the district court agreed

with Deutsche Bank that (1) McMechan lacked standing to

challenge the loan assignments; (2) any alleged verbal loan

modification was contrary to the CASF; and (3) Deutsche Bank

didn’t need to produce the original, wet ink note to foreclose.

Deutsche Bank also cited legal support in its motion for each of

these arguments.

¶ 23 Nowhere in her opening brief does McMechan make, much

less develop, an argument that these legal conclusions are

erroneous. Because McMechan doesn’t challenge these legal

conclusions on appeal, we offer no opinion as to whether they were

correct. See Compos v. People, 2021 CO 19, ¶ 35 (noting that under

the party presentation principle, parties “are responsible for

advancing the facts and arguments entitling them to relief” (quoting

Greenlaw v. United States, 554 U.S. 237, 244 (2008))). Instead, we

assume without deciding that the legal conclusions were correct

because McMechan has offered us no argument to the contrary. Id.

¶ 24 In summary, based on the arguments McMechan advances in

her opening brief, we discern no basis for reversing the district

court’s grant of Deutsche Bank’s motion to dismiss because (1) the

12
record demonstrates that it applied the correct legal standard in

granting the motion and (2) a general principle that Colorado law

favors resolution on the merits doesn’t render granting the motion

erroneous.

III. Appellate Attorney Fees

¶ 25 Deutsche Bank requests an award of its attorney fees under

section 13-17-102, C.R.S. 2025. It argues that McMechan’s appeal

lacks substantial justification, was interposed for delay or

harassment, and has unnecessarily expanded the proceedings. See

Munoz v. Measner, 247 P.3d 1031, 1034 (Colo. 2011).

¶ 26 Even though we affirm the judgment, we conclude that

McMechan’s appeal isn’t frivolous; thus we decline Deutsche Bank’s

request for an award of attorney fees for defending this appeal. See

Padilla v. Ghuman, 183 P.3d 653, 665 (Colo. App. 2007); see also In

re Estate of Shimizu, 2016 COA 163, ¶ 34 (declining a request for

attorney fees on appeal under section 13-17-102 because, even

though the appellant didn’t prevail, her contentions weren’t

frivolous).

IV. Disposition

¶ 27 The judgment is affirmed.

13
JUDGE GOMEZ and JUDGE SULLIVAN concur.

14