Day v. Freedom Mortgage Corporation et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:25-cv-01557-PAB-SBP
THOMAS J. DAY,
Plaintiff,
v.
FREEDOM MORTGAGE CORPORATION,
AMANDA FERGUSON,
HEATHER DEERE, ALPINE MORTGAGE,
TRENT T. LAURIDSON, and
JASON S. BUCKLEY,
Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge.
This civil action is before the court on the Motions to Dismiss (ECF Nos. 13 and 15) (the
“Motions” or “Motions to Dismiss”)1 filed by Defendants Amanda Ferguson and Heather Deere
(collectively, the “Attorney Defendants”). The Motions seek dismissal with prejudice of all
claims asserted against the Attorney Defendants in Plaintiff Thomas J. Day’s Amended
Complaint (ECF No. 4) pursuant to Federal Rule of Civil Procedure 12(b)(6). The undersigned
considers this matter pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated June 18,
1 The Motions are identical. For convenience, the court will refer in this recommendation to the
motion and accompanying attachments filed by Defendant Ferguson and docketed at ECF Nos.
13 to 13-3. The court’s analysis applies equally to the motion docketed at ECF No. 15, filed by
Defendant Deere.
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2025 (ECF No. 7), and the memoranda referring the Motions (ECF Nos. 14, 16).
The court has carefully reviewed the Amended Complaint, the briefing on the Motions,
including Plaintiff’s various oppositions and responses (ECF Nos. 21, 22, 23, 29, 30, 38, 39),2
court records subject to judicial notice, and the applicable law. The court concludes that oral
argument would not materially assist in the disposition of the Motions. For the reasons set forth
below, the court respectfully RECOMMENDS that the Motions to Dismiss be GRANTED and
that all claims against the Attorney Defendants be dismissed with prejudice.
BACKGROUND
I. 	Procedural History
Plaintiff, proceeding pro se, initiated this action on May 16, 2025. ECF No. 1. He filed
the operative Amended Complaint on June 6, 2025. ECF No. 4. The Amended Complaint names
as defendants Freedom Mortgage Corporation and its counsel, Ferguson and Deere, as well as
Alpine Mortgage and its counsel, Trent T. Lauridson and Jason S. Buckley. Separate motions to
dismiss have been filed by Freedom Mortgage Corporation (ECF No. 20) and Alpine, Lauridson,
and Buckley (ECF No. 11). The court addresses those motions in separate recommendations.
This case is related to two state-court foreclosure proceedings involving the same real
property located at 106 Rachel Lane, Breckenridge, Colorado 80424 (the “Property”). First,
Alpine Bank (named in this action as “Alpine Mortgage”) filed a nonjudicial foreclosure action
in Summit County District Court, Case No. 2025CV30090, based on Plaintiff’s default under a
2 In preparing this recommendation on the Motion to Dismiss, the court has reviewed and
considered all of these papers. The court finds that the contents of those papers does not alter the
analysis here.
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2019 home-equity line of credit also secured by the Property. See ECF No. 4 at 3–4; ECF No. 11,
Exs. F–I. Second, and as particularly relevant here, Freedom initiated a nonjudicial foreclosure in
Summit County District Court, Case No. 2025CV30103, based on its deed of trust encumbering
the Property. See ECF No. 4 at 3–9; ECF No. 20 at 2. For ease of reference, the court will refer
to the case initiated by Freedom in Summit County District Court as the “Freedom Foreclosure
Action.”3
II. 	Facts
The Amended Complaint is lengthy and includes a mixture of factual allegations, legal
conclusions, citations to inapplicable authority, and non-justiciable rhetoric (including references
to Plaintiff as “a living man presenting myself pro se/sui juris”). demands for proof of
“consideration,” assertions of “God-given rights,” and challenges to the validity of the
underlying loan based on the creation of money through credit rather than legal tender. See, e.g.,
generally ECF No. 4; see also ECF No. 21, ECF No. 22-1, ECF No. 23, ECF No. 30, ECF No.
31 (consistent phrasing across Plaintiff’s filings). Courts within the Tenth Circuit have
3 In evaluating the Motion to Dismiss, the court may consider documents incorporated by
reference in Plaintiff’s pleading, as well as other filings in the Freedom Foreclosure Action,
which are subject to judicial notice. See, e.g., Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.
2010) (on a motion to dismiss, the court may consider documents the complaint incorporates by
reference; “documents referred to in the complaint if the documents are central to the plaintiff’s
claim” and there is no dispute concerning their authenticity; and matters subject to judicial
notice) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)); see also
St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (a
court may take judicial notice of filings in related cases, “both within and without the federal
judicial system, if those proceedings have a direct relation to matters at issue”). Here, the
Freedom Foreclosure Action is expressly referenced in the Amended Complaint and forms part
of the factual backdrop for Plaintiff’s claims against the Attorney Defendants, which arise from
the same loan default and related enforcement proceedings.
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recognized that similar rhetoric and theories—often associated with the so-called “sovereign
citizen” movement—do not supply a cognizable legal basis for relief and may be disregarded
when evaluating the sufficiency of a complaint. See Sipple v. Zevita, No. 5:23-cv-4038-HLT,
2023 WL 4706621, at *3-4 (D. Kan. July 24, 2023); id. at *3 (“Courts show no hesitation in
rejecting as frivolous arguments based on the theory of sovereign citizenship.”); see also, e.g.,
United States v. Sellors, 572 F. App’x 628, 632 (10th Cir. 2014) (finding arguments associated
with the “sovereign citizen” movement “patently frivolous”); United States v. Palmer, 699 F.
App’x 836, 838 (10th Cir. 2017) (“As for Palmer’s sovereign state citizen argument, reasonable
jurists could also not disagree that the claim is plainly frivolous.”). To the extent such allegations
constitute legal conclusions or rely on legally-unsupported theories, the court does not credit
them for purposes of evaluating the Motions. Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (“We will disregard conclusory statements and look only to whether the
remaining[ ] factual allegations plausibly suggest the defendant is liable.”).
Stripped of these extraneous contentions, the Amended Complaint alleges that on
September 28, 2018, Plaintiff executed a promissory note and deed of trust (Loan No.
0058913856) in the original principal amount of $636,446.00 with CMG Mortgage, Inc., d/b/a
CMG Financial, secured by the Property. ECF No. 4 at 5); ECF No. 20 at 2. The deed of trust
named Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for the lender and
was recorded on October 2, 2018, at Reception No. 974858 in the Summit County real property
records. See ECF No. 13-1 (authenticated copy of Deed of Trust).4 Freedom later became the
4 In fact, the deed of trust to which Plaintiff refers was actually dated February 26, 2015. See
ECF No. 13-1 at 7.
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servicer and holder of the note through a corporate assignment of the deed of trust from MERS,
recorded on October 31, 2022, at Reception No. 1123670. ECF No. 4 at 5; ECF No. 13-2
(authenticated copy of Assignment).
Plaintiff contends that the origination documents failed to disclose the precise “funding
mechanism” of the loan, and that this omission rendered the loan invalid or unenforceable. ECF
No. 4 at 4. He further alleges that Freedom, through its counsel Ferguson and Deere, concealed
the true funding source and refused to provide documentation he demanded—specifically, wire
transfer records, accounting ledgers, and the original “wet-ink” promissory note—after he sent
self-styled “Affidavits of Truth” to Freedom on March 12 and April 22, 2025. Id. at 4-5.
Freedom responded on April 29, 2025, providing a payment history and certain loan documents,
but declined to provide the requested origination/funding details. Id. at 5.
On April 16, 2025, Freedom, through the Attorney Defendants, recorded a Notice of
Election and Demand for Sale (“NED”), thus commencing the Freedom Foreclosure Action,
based on Plaintiff’s default under the 2018 loan, claiming a balance due of $506,076.75. ECF
No. 4 at 4, 7; ECF No. 13-3 (authenticated copy of recorded NED). Plaintiff alleges the
foreclosure process was defective because the notices purportedly omitted information required
by Colorado law and were made without providing “pre-NED notices, Combined Notices,
[Colorado] Rule [of Civil Procedure] 120 hearing notices, or cure statements.” ECF No. 4 at 4. In
later filings, Plaintiff states that he has since entered into a new thirty-year loan agreement with
Freedom (which he describes as having been signed under duress) and that the Freedom
Foreclosure Action has been placed in abeyance, but he maintains that Freedom still has not
provided the funding-related documentation he seeks. ECF No. 30 at 1–2; ECF No. 38 at 1–2.
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Plaintiff raises five claims against Ferguson and Deere: violation of the Truth in Lending
Act, 15 U.S.C. § 1601 et. seq. (“TILA”) (Claim One); violation of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (Claim Two); deprivation of due process
under the Fifth and Fourteenth Amendments, actionable via 42 U.S.C. § 1983 (Claim Four);
violation of the Colorado Consumer Protection Act (“CCPA”), Colo. Rev. Stat. § 6-1-101 et seq.
(Claim Five); and fraud, “supported by consideration under Colorado common law” and the
Uniform Commercial Code (“U.C.C.”) § 3-501(b)(2) (Claim Six). ECF No. 4 at 3-6. As relief for
each claim, Plaintiff requests damages and declaratory and injunctive relief. Id. at 8-9.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 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). In deciding a
motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations
. . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter
(taken as true) to suggest’ that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
A plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Rather, “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); see also Robbins, 519 F.3d at 1247
(explaining that plausibility refers “to the scope of the allegations in a complaint,” and that the
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allegations must be sufficient to nudge a plaintiff’s claims “across the line from conceivable to
plausible”). The ultimate duty of the court is to “determine whether the complaint sufficiently
alleges facts supporting all the elements necessary to establish an entitlement to relief under the
legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
In applying these principles, the court is mindful that Plaintiff proceeds pro se and thus
affords his papers and filings a liberal construction. Smith v. Allbaugh, 921 F.3d 1261, 1268 (10th
Cir. 2019). But the court cannot and does not act as his advocate, United States v. Griffith, 928
F.3d 855, 864 n.1 (10th Cir. 2019), and applies the same procedural rules and substantive law to
Plaintiff as to a represented party. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018);
see also Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012) (“Pro se
status does not relieve Plaintiff of the duty to comply with various rules and procedures
governing litigants and counsel, or the requirements of the substantive law and, in these regards,
the Court will treat Plaintiff according to the same standard as counsel licensed to practice law
before the bar of this Court.”).
ANALYSIS
For the reasons that follow, the court finds that Plaintiff has stated no legally cognizable
claim for relief.
I. 	Plaintiff’s claims rest on legally unsupported theories concerning loan consideration
and debt extinguishment.
The core contention underlying all of Plaintiff’s claims is that he cannot be made to pay
back the loan, which is unenforceable, because Freedom allegedly provided no lawful
consideration. ECF No. 4 at 3-8. Specifically, he alleges that the loan was not funded through the
advancement of the lender’s own money or lawful tender, but instead was created through credit,
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bookkeeping entries, or undisclosed funding mechanisms, rendering the indebtedness void for
lack of consideration. He further alleges that because Freedom and its attorneys have not
produced the original promissory note or otherwise demonstrated the source of loan funding, the
note, deed of trust, and subsequent foreclosure efforts are void. See id..
Although Plaintiff does not explicitly describe his theory using any particular label, the
substance of his allegations closely mirrors what courts commonly refer to as the
“redemptionist”5 or “vapor money” theory. Under that theory, 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:
The genesis of the vapor money theory is that the decision by the United States in
1933 to discard the gold standard resulted in the federal government’s bankruptcy,
after which lenders have been creating unenforceable debts because they are
lending credit rather than legal tender. Accordingly, under the vapor money theory,
a loan imposes no repayment obligation if the indebtedness was funded with credit
as opposed to hard currency.
Mercado v. Transp. Funding, LLC, No. 2:23-CV-02052-HLT, 2025 WL 388661, at *3 (D. Kan.
Feb. 4, 2025) (quoting Thomas v. All In Credit Union, No. 23-00215-TFM-B, 2023 WL
9197752, at *8 (S.D. Ala. Dec. 19, 2023), report and recommendation adopted, 2024 WL
5 The “redemptionist” theory “propounds that a person has a split personality: a real person and a
fictional person called the ‘strawman. The ‘strawman’ purportedly came into being when the
United States went off the gold standard in 1993, and, instead, pledged the strawman of its
citizens as collateral for the country’s national debt. Redemptionists claim that government has
power only over the strawman and not over the live person, who remains free. Individuals can
free themselves by filing UCC financing statements, thereby acquiring an interest in their
strawman.” Monroe v. Beard, 536 F.3d 198, 203 n.4 (3d Cir. 2008). Notably, Plaintiff here labels
himself “a living man presenting Sui Juris.” See ECF No. 1 at 1.
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312682 (S.D. Ala. Jan. 25, 2024)). In essence, proponents of the theory believe that borrowers
may “essentially convert a payment demand into legal tender and magically extinguish [their]
debts” through unilateral action. Thomas, 2023 WL 9197752, at *8.
Courts within the Tenth Circuit and elsewhere have consistently rejected such arguments
as legally baseless. Mercado, 2025 WL 388661, at *3 (describing the theory as one that has been
“summarily, universally, and rightly rejected”) (collecting cases); Baldwin v. Glob. Lending
Servs., LLC, No. CIV-25-121-D, 2025 WL 1426564, at *2-3 (W.D. Okla. May 16, 2025); Sipple,
2023 WL 4706621, at *1, *3–4.6 As one court has aptly described the essence of the matter,
redemptionist arguments are “frivolous legal arguments made in an attempt to avoid paying for
the car,” Podgorny v. Ally Fin., No. CV-21-00288-PHX-DJH, 2022 WL 672676, at *2 (D. Ariz.
2022)—or, as is the case here, to avoid paying hundreds of thousands of dollars owed to a lender.
This court likewise rejects this wholly discredited theory that finds no support in the law.
Here, Plaintiff contends that Freedom and the Attorney Defendants were obligated to
demonstrate that lawful money was advanced at the origination of the loan (that is, that the
lender placed its own funds at risk), to verify the source of loan funds upon demand, and to
produce original loan instruments and internal funding records as prerequisites to enforcing the
6 Accord, e.g., Adams v. Partners, No. 24-CV-943-PP, 2025 WL 101615, at *3 (E.D. Wis. Jan.
15, 2025); Farina v. Navy Fed. Credit Union, No. 3:24-cv-287-TKW-HTC, 2024 WL 3333270,
at *2 (N.D. Fla. June 28, 2024), report and recommendation adopted, 2024 WL 3330586 (N.D.
Fla. July 8, 2024); Marshall v. Mechanics Bank Auto Fin., No. 2:22-CV-06973-MCS-KS, 2023
WL 2628674 (C.D. Cal. Feb. 15, 2023); Price v. Lakeview Loan Servicing, LLC, No. 2:19-cv-
655-FtM-29MRM, 2021 WL 1610097, at *2-3 (M.D. Fla. Apr. 26, 2021), aff’d, No. 21-11806,
2022 WL 896816 (11th Cir. Mar. 28, 2022); Swain v. Dir. of Corr., No. 19-CV-03882-EMC,
2019 WL 7020322, at *2 (N.D. Cal. Dec. 20, 2019); McLaughlin v. CitiMortgage, Inc., 726 F.
Supp. 2d 201, 213-14 (D. Conn. 2010).
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debt. See ECF No. 4 at 3-9. No such obligations exist under federal law, Colorado law, or the
Uniform Commercial Code, and as discussed above, courts have uniformly rejected the theory
that loans funded through credit, accounting entries, or similar banking mechanisms lack
consideration or are unenforceable. See, e.g., Mercado, 2025 WL 388661, at *3. It is beyond
cavil that loans funded through bank credit are a routine and lawful feature of modern banking
and create valid, enforceable repayment obligations—which Plaintiff here obviously seeks to
avoid.
Nor does a borrower’s unilateral demand for proof of consideration, verification of
funding sources, or production of original documents operate to discharge a debt or nullify a
security interest. Courts confronting materially identical arguments have rejected them as a
matter of law. See Brown v. Selene Fin. LP, No. 1:22-CV-04690-LMM, 2023 WL 4996552
(N.D. Ga. June 1, 2023), report and recommendation adopted, 2023 WL 3335060 (N.D. Ga.
May 9, 2023) (rejecting borrower’s contention that mortgage debt was unenforceable because it
was allegedly not funded with “actual money,” and characterizing the argument as a variant of
the discredited “vapor money” theory).
Because each of Plaintiff’s claims brought in this lawsuit (couched in whatever legal garb)
rests on the premise that the loan was void or unenforceable due to the alleged absence of lawful
consideration or failure of proof of consideration—that is, the “vapor money” or similarly
unsupported theory—that alone is “sufficient to grant [the] Motion to Dismiss, as . . . these
theories have been universally and emphatically rejected by numerous federal courts for at least
the last 25 years.” See Baldwin, 2025 WL 1426564, at *3 n.4 (citing McLaughlin, 726 F. Supp.
2d at 214). Accordingly, dismissal with prejudice of all claims against the Attorney Defendants
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is warranted on this basis alone. See, e.g., Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219
(10th Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint fails to state a
claim under Rule 12(b)(6) and granting leave to amend would be futile.”); Viegas v. Kane, No.
23-cv-03291-PAB-MDB (D. Colo. 2023) (ECF No. 38 at 16 n.6 ), report and recommendation
adopted, ECF No. 42 (dismissing with prejudice a due process claim alleging that a foreclosure
action was premised on “unjust cause” and that the defendants colluded in effectuating the
foreclosure “with a fraudulent security instrument,” and observing that “Plaintiffs have caused
Defendants and the court [to expend] significant time and resources on what appear to be entirely
meritless claims about a foreclosure action that has long been resolved in state court”) (citing
Avery v. Wade, No. 22-4093, 2022 WL 17544077, at *2 (10th Cir. Dec. 9, 2022) (finding that the
district court “didn’t abuse its discretion in dismissing [the plaintiff’s] claims with prejudice”
because he raised “indisputably meritless legal theories”) (cleaned up)).
II. 	Plaintiff otherwise fails to state a plausible claim for relief.
Even if the vapor money theory were viable (which it decidedly is not), the Amended
Complaint fails to allege sufficient factual matter to state a plausible claim for relief on any of
the five claims brought against the Attorney Defendants. In the interest of providing a complete
recommendation for review by Chief Judge Brimmer, the court addresses the additional pleading
defects compelling dismissal of each claim.
A. 	Truth in Lending Act (Claim One)
In Claim One, Plaintiff alleges that the Attorney Defendants, as counsel for Freedom,
violated the Truth in Lending Act by concealing the funding mechanism of the loan and failing
to provide the documentation he demanded in his March and April 2025 “Affidavits of Truth.”
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Specifically, Plaintiff contends that the origination documents omitted details regarding the
loan’s funding source and that the Attorney Defendants, by pursuing foreclosure, perpetuated
this alleged concealment. ECF No. 4 at 3–4.
TILA imposes civil liability on “any creditor who fails to comply with any requirement
imposed under this part, including any requirement under section 1635, subsection (f) or (g) of
section 1641 of this title, or part D or E of this subchapter.” 15 U.S.C. § 1640(a). A creditor is
required to disclose the total amount financed by the agreement, the finance charge, the annual
percentage rate, and the schedule of payments in the credit agreement. Id. § 1638. A TILA claim
must be brought “within one year from the date of the occurrence of the violation.” Id. § 1640(e).
The statute of limitations begins to run “when credit is extended through the consummation of
the transaction between the creditor and its customer without the required disclosures being
made.” Betancourt v. Countrywide Home Loans, Inc., 344 F. Supp .2d 1253, 1258 (D. Colo.
2004).
The Attorney Defendants argue that the TILA claim is time-barred. See ECF No. 13 at 4-
5. An analysis of the well-pleaded facts compels the court to agree.
Based on Plaintiff’s allegations, the loan transaction was consummated on September 28,
2018. ECF No. 4 at 3. Consequently, treating this allegation as true,7 the statute of limitations
began to run on that date and expired one year later: on September 28, 2019. This lawsuit, of
course, was not filed until years after that—on May 16, 2025. Plaintiff makes no rejoinder to the
argument that the TILA claim is time-barred, see generally ECF No. 30, and this court can
7 As previously noted, the public record establishes that the Deed of Trust was in fact executed
on February 26, 2015. See ECF No. 13-1 at 7.
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conceive of no legal justification, under the circumstances presented here, for extending the
statute of limitations some six years past its expiration. See Heil v. Wells Fargo Bank, N.A., 298
F. App’x 703, 706 (10th Cir. 2008) (recognizing that a TILA claim is subject to equitable tolling
which allows plaintiffs to “sue after the statutory period has expired if they have been prevented
from doing so due to inequitable circumstances”).
Plaintiff does not argue that the statute of limitations should be equitably tolled, and even
if he had, there is nothing in the record plausibly suggesting that he could meet his burden to
prove that tolling should be employed here. See id. at 707 (a plaintiff bears “the burden of
proving that the limitations period should be equitably tolled”). The instant record gives no
indication that Plaintiff lacked awareness of all the facts on which his TILA claim is based by
September 28, 2019, when he knew the details he claims to be of significant importance now
were not contained in the loan origination documents. See, e.g., Centennial Bankshares, Inc. v.
Utah through Utah Dep’t of Fin. Institutions, 834 F. App’x 448, 452 (10th Cir. 2020)
(“[E]quitable tolling is not available for those who could have known of the relevant information
but inexcusably and unreasonably slept on their rights.”).
Neither are there any well-pleaded facts indicating that the Attorney Defendants were
somehow responsible for creating “inequitable circumstances” that prevented Plaintiff from
filing suit within the limitations period. See Heil, 298 F. App’x at 706 (“‘Equitable tolling’ is the
doctrine under which plaintiffs may sue after the statutory time period has expired if they have
been prevented from doing so due to inequitable circumstances.”); see also Dalton v.
Countrywide Home Loans, Inc., 828 F. Supp. 2d 1242, 1249 (D. Colo. 2011) (rejecting an
equitable tolling argument where “Plaintiff has not alleged that Defendants prevented her from
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determining that there were inadequacies in their disclosures under TILA. To the contrary, the
facts plausibly show that it is Plaintiff, if anyone, who has generated the “inequitable
circumstances” in the relationship between the litigants here by pursuing claims based on legally
baseless theories plainly designed to absolve him from the obligation to pay back his loan.
Plaintiff’s TILA claim is time-barred and, because that defect cannot be rectified, should be
dismissed with prejudice. See, e.g., Gee, 627 F.3d at 1181 (affirming dismissal with prejudice
where claims were barred by statute of limitations); McGowan v. Wal-Mart Stores, 757 F. App’x
786, 788 n.3 (10th Cir. 2019) (explaining that dismissals based on untimeliness are ordinarily
with prejudice).
Even if the claim were not time-barred, it cannot proceed against the Attorney
Defendants, as private counsel retained to handle the foreclosure years after origination, have no
liability for alleged origination-period disclosure violations. TILA imposes disclosure obligations
on creditors and, in limited circumstances, assignees—not on attorneys later engaged to enforce
a security interest through foreclosure. See 15 U.S.C. § 1641(a) (“[A]ny civil action for a
violation of this subchapter . . . which may be brought against a creditor may be maintained
against any assignee of such creditor only if the violation for which such action or proceeding is
brought is apparent on the face of the disclosure statement[.]”). In this case, Plaintiff fails to
allege facts plausibly showing that the Attorney Defendants had any involvement in the
origination or funding of Plaintiff’s loan or that there is any reasonable basis for construing them
as “assignees” under the statute.
Accordingly, Claim One fails as a matter of law and should be dismissed with prejudice.
See Brereton, 434 F.3d at 1219.
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B. 	Fair Debt Collection Practices Act (Claim Two)
In Claim Two, Plaintiff alleges that Ferguson and Deere, as counsel for Freedom,
violated the FDCPA by issuing an allegedly defective NED on April 16, 2025, by
misrepresenting the validity of the debt, and by failing to provide “pre-NED notices, Combined
Notices, [Colorado] Rule [of Civil Procedure] 120 hearing notices, or cure statements.” ECF No.
4 at 4. Plaintiff cites 15 U.S.C. §§ 1692e and 1692g(b) and contends that these actions
constituted false or misleading debt collection practices and a failure to validate the debt. This
claim does not survive scrutiny under Rule 12(b)(6).
To state a claim under the FDCPA, a plaintiff must allege facts plausibly demonstrating
that (1) he is a “consumer,” under § 1692a(3); (2) the obligation at issue is a “debt” arising from
a transaction primarily for personal, family, or household purposes; (3) the defendant is a “debt
collector” as defined in 15 U.S.C. § 1692a(6); and (4) the defendant violated a specific provision
of the FDCPA. Tavernaro v. Pioneer Credit Recovery, Inc., 43 F.4th 1062, 1067 (10th Cir.
2022). Here, Plaintiff has not alleged that Ferguson and Deere are debt collectors under the
statute. Rather, his allegations against the Attorney Defendants arise from their role as counsel to
Ferguson, the servicer of the loan, and Ferguson’s and Deere’s efforts to enforce that security
interest after Plaintiff’s default, including by causing the NED to be recorded and by pursuing
nonjudicial foreclosure. See ECF No. 4 at 4.
As a matter of law, a law firm and attorneys engaged in nonjudicial foreclosure
proceedings are not debt collectors under the FDCPA. Obduskey v. McCarthy & Holthus LLP,
586 U.S. 466, 477 (2019) (counsel “who engage in only nonjudicial foreclosure proceedings are
not debt collectors within the meaning of the [FDCPA],” except for the limited purpose of 15
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U.S.C. § 1692f(6), which is not applicable here.8 Plaintiff’s allegations placed Ferguson and
Deere squarely within the category of “counsel who engage in only nonjudicial proceedings,” id.,
and who are thus exempt from the definition of “debt collector.” He asserts only that they are
attorneys with Halliday, Watkins & Mann, P.C., a firm retained by Freedom to enforce its deed
of trust after Plaintiff’s default, and that Ferguson signed the NED initiating the Colorado
nonjudicial foreclosure process. Put simply, the well-pleaded facts permit no inference that the
Attorney Defendants are “debt collectors” within the meaning of the FDCPA.
Plaintiff’s FDCPA claim against the Attorney Defendants should be dismissed with
prejudice.
C. 	Section 1983 Due Process Claim (Claim Four)
In Claim Four, Plaintiff alleges that Freedom, acting through Ferguson and Deere,
initiated foreclosure “without providing pre-NED notices, Combined Notices, Rule 120 hearing
notices, or cure statements,” and violated his due process rights and caused damages—including,
specifically, the obligation to pay the amounts he borrowed to finance his purchase of the
Property. See ECF No. 4 at 4. “To state a claim under § 1983, a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.” West v. Atkins,
487 U.S. 42, 48 (1988). Claim Four fails at the threshold because Plaintiff has not plausibly
8 Section 1692f(6) defines conduct violating the FDCPA to include: “Taking or threatening to
take any nonjudicial action to effect dispossession or disablement of property if—(A) there is no
present right to possession of the property claimed as collateral through an enforceable security
interest; (B) there is no present intention to take possession of the property; or (C) the property is
exempt by law from such dispossession or disablement.”
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alleged that the Attorney Defendants acted under color of state law.
“Section 1983 was enacted ‘to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to victims if such
deterrence fails.’” Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1156 (10th Cir. 2016)
(quoting Haines v. Fisher, 82 F.3d 1503, 1508 (10th Cir. 1996) (quoting Wyatt v. Cole, 504 U.S.
158, 161 (1992)). “The traditional definition of acting under color of state law requires that the
defendant in a § 1983 action exercised power possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.” Id. (quoting Haines, 82
F.3d at 1508) (emphasis added); see also, e.g., Silva v. US Bank, Nat’l Assoc., 294 F. Supp. 3d
1117, 1130 (D. Colo. 2018), report and recommendation adopted sub nom. Silva v. US Bank,
Nat’l Assoc. as Tr. under Pooling & Serv. Agreement dated as of Feb. 1, 2007, No. 17-cv-01529-
WJM-KLM, 2018 WL 10561514 (D. Colo. Mar. 19, 2018) (“Section 1983 establishes liability
based on the actions of the government and its agents.”) (citing Gallagher v. Neil Young
Freedom Concert, 49 F.3d 1442, 1446-47 (10th Cir. 1995)).
Put another way, when a § 1983 claim is “based on the conduct of a private individual,
that conduct constitutes state action if it is fairly attributable to the state.” Scott v. Hern, 216 F.3d
897, 906 (10th Cir. 2000) (cleaned up). And the conduct of a private actor is “fairly attributable
to the state” only if two conditions are met:
First, the deprivation must be caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the State or by a person for
whom the state is responsible. Second, the private party must have acted together
with or . . . obtained significant aid from state officials or engaged in conduct
otherwise chargeable to the State.
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Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (quoting Wyatt, 504 U.S. at 162). It is
impossible to reasonably infer the existence of either condition from Plaintiff’s pleading.
It has long been established that financial institutions and their legal counsel engaged in
foreclosure proceedings do not operate under color of state law pursuant to § 1983. See, e.g.,
Elliott v. May, 122 F. App’x 944, 946 (10th Cir. 2004) (upholding dismissal of a § 1983 claim
brought against private mortgage lenders who failed to refinance the plaintiff’s home loan
because the “private entities” were not “acting under ‘color of state law’” in making that
refinancing decision); Ramsey v. Citibank, N.A., No. 10-cv-02653-WYD-CBS, 2011 WL
4485922, at *10 (D. Colo. July 28, 2011), report and recommendation adopted, 2011 WL
4485918 (D. Colo. Sept. 28, 2011), aff’d, 475 F. App’x 711 (10th Cir. 2012) (holding that a
plaintiff’s challenge to a bank’s utilization of eviction and foreclosure proceedings under
Colorado law did not “transform Citibank N.A. or CitiMortgage, Inc. into agents of the state”).
And private actors “do not engage in state action simply by availing [themselves] of a state
procedure,” Scott, 216 F.3d at 906, including by “instituting a routine civil suit”—which is
insufficient to “transform a litigant’s actions into those taken under color of state law.” Hirsch v.
Copenhaver, 839 F. Supp. 1524, 1531 (D. Wyo. 1993) (quotation omitted). “Similarly, relief
under § 1983 cannot be premised solely on an argument that a private actor misused available
state procedures, particularly in the absence of overt and significant assistance from state
officials.” Ramsey, 2011 WL 4485922, at *10 (citing Cobb v. Saturn Land Company, Inc., 966
F.2d 1334, 1336-37 (10th Cir. 1992)).
Plaintiff fails to offer any supporting allegations or details tending to suggest that “state
officials and [Ferguson and Deere] have acted in concert in effecting a particular deprivation of
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constitutional rights.” Wittner v. Banner Health, 720 F.3d 770, 777 (10th Cir. 2013) (quoting
Gallagher, 49 F.3d at 1453); see also Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005)
(“[W]hen a plaintiff attempts to assert the state action required for a § 1983 claim against private
actors based on a conspiracy with government actors, mere conclusory allegations with no
supporting factual averments are insufficient. Rather, the plaintiff must specifically plead facts
tending to show agreement and concerted action.”) (internal citations and quotations omitted)).
Stated otherwise, Plaintiff’s allegations permit no inference that any state official had any
involvement whatsoever in this matter. The well-pleaded facts—construed in the light most
favorable to Plaintiff—merely allege that the Attorney Defendants utilized the available legal
processes when Plaintiff defaulted on the loan.
For these reasons, Claim Four fails as a matter of law and should be dismissed with
prejudice. See, e.g., Brereton, 434 F.3d at 1219.
D. 	Colorado Consumer Protection Act (Claim Five)
In Claim Five, Plaintiff alleges that Ferguson and Deere violated the CCPA by executing
the NED and otherwise prosecuting the nonjudicial foreclosure while allegedly concealing the
loan’s “funding mechanism” and the validity of the debt. See ECF No. 4 at 6.
Under the CCPA, “[a] person engages in a deceptive trade practice when, in the course of
the person’s business, the person knowingly or recklessly makes a false representation as to the
characteristics, ingredients, uses, [or] benefits of goods[.]” Colo. Rev. Stat. § 6-1-105(1)(e) (in
relevant part, cleaned up). To successfully press a private cause of action under this statute, a
plaintiff must show:
(1) 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
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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 the injury in fact to a legally protected interest; and (5) that the challenged
practice caused the plaintiff’s injury.
HealthONE of Denver, Inc. v. UnitedHealth Grp. Inc., 805 F. Supp. 2d 1115, 1120 (D. Colo.
2011) (quoting Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146-
47 (Colo. 2003)); see also Hall v. Walter, 969 P.2d 224, 235 (Colo. 1998) (same). “All elements
of a CCPA claim must be met; otherwise, the claim fails as a matter of law.” HealthONE, 805 F.
Supp. 2d at 1120. In addition, because Plaintiff’s CCPA theory sounds in fraud and deception, he
must meet the heightened pleading requirements set forth in Federal Rule of Civil Procedure
9(b). Id. at 1120-21 (citations omitted).
Plaintiff’s pleading fails to allege any of the elements of a CCPA claim. To begin with,
his factual allegations center on a single, private dispute over the terms, validity, and
enforcement of a home‑equity loan and the resulting foreclosure on his property at 106 Rachel
Lane in Breckenridge, Colorado. Colorado courts routinely hold that essentially private disputes
of this sort—even where one party is a business—do not “significantly impact the public” as
actual or potential consumers, and thus fall outside the CCPA’s reach. See Hall, 969 P.2d at 235;
Rhino Linings, 62 P.3d at 149-50. The facts alleged here permit of no reasonable inference that
Ferguson and Deere engaged in a broader pattern of similar conduct toward other borrowers, that
the challenged practices were part of a systematic scheme, or that any member of the public
beyond Plaintiff himself was affected. Plaintiff’s conclusory assertion that “other Colorado
homeowners” were impacted, ECF No. 4 at 6, is wholly lacking in supporting factual averments.
On the face of the Amended Complaint, then, Claim Five concerns only a one‑off dispute
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between a borrower and the servicer of his loan and thus fails the public‑impact element as a
matter of law.
Neither does the Amended Complaint plausibly allege that Ferguson and Deere engaged
in any deceptive trade practice at all, let alone one pled with the particularity that Rule 9(b)
requires. Plaintiff’s allegations—that the Attorney Defendants “conceal[ed]” funding for the loan
and pursued “defective foreclosure and lawsuit processes,” ECF No. 4 at 6, serve to emphasize
that the claim rests on the discredited vapor money theory, which, as previously discussed, courts
have uniformly rejected as legally frivolous. Plaintiff identifies no specific false statement, of
any kind, attributable to Ferguson or Deere; no misleading advertising or consumer‑facing
representation made by them; and no omission of information that Colorado law required them to
have disclosed in the circumstances alleged. Instead, he proclaims the debt lacks “validity”
because the Attorney Defendants’ actions fail to conform with his views as an adherent of the
vapor money theory. His conclusory assertions that they engaged in “concealment” concerning
the loan, or that there was some overarching unidentified defect in the legal process, lack the
concrete factual support required to plausibly establish any actionable misrepresentation on their
part and are insufficient to satisfy his pleading burden. See Iqbal, 556 U.S. at 678.
In sum, Plaintiff has not plausibly alleged that the Attorney Defendants engaged in
conduct that violated the Colorado Consumer Protection Act, and Claim Five should be
dismissed with prejudice.
E. 	Common-Law Fraud/U.C.C. Violation (Claim Six)
In Claim Six, Plaintiff alleges “Fraud and Lack of Consideration” under Colorado
common law and the Uniform Commercial Code, asserting that all Defendants, including the
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Attorney Defendants, “concealed the funding mechanisms” of both mortgages (including
“potential Federal Reserve involvement or note monetization”) and “failed to present the original
promissory notes” despite his demands, purportedly in violation of U.C.C. § 3-501(b)(2). ECF
No. 4 at 6. As previously noted, the court has determined that Claim Six, like all of Plaintiff’s
claims, must be dismissed because it is grounded on an entirely discredited and frivolous legal
theory. However, even if this defect could be overlooked—and it cannot—the claim should not
proceed because Plaintiff’s allegations fail to state a plausible claim for relief.
Under Colorado law, a plaintiff must plead fraud with particularity, setting forth well-
pleaded facts plausibly demonstrating the following elements: “(1) that the defendant made a
false representation of a material fact; (2) that the one making the representation knew it was
false; (3) that the person to whom the representation was made was ignorant of the falsity;
(4) that the representation was made with the intention that it be acted upon; and (5) that the
reliance resulted in damage to the plaintiff.” Bristol Bay Prods., LLC v. Lampack, 312 P.3d 1155,
1160 (Colo. 2013). Federal Rule of Civil Procedure 9(b) further requires that, “[i]n alleging fraud
or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”
Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir. 1997) (quoting Lawrence
Nat’l Bank v. Edmonds (In re Edmonds ), 924 F.2d 176, 180 (10th Cir. 1991)). Measured against
these standards, Plaintiff’s allegations state no plausible claim for relief.
First, Claim Six rests on the same fallacious vapor money premise that underlies
Plaintiff’s other claims: that the loan was “fraudulent” or “unsupported by consideration”
because it was allegedly funded with “credit” instead of “lawful money,” and because the
Attorney Defendants did not produce internal wire records, balance‑sheet entries, or Federal
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Reserve documentation. See generally ECF No. 4 (including allegations demanding “proof of
consideration” and asserting loan invalidity for lack of lawful funding); see also ECF Nos. 21,
23, 31 (repeated demands across Plaintiff’s opposition papers for proof of “lawful consideration”
and identification of the funding source). But the Amended Complaint does not identify any
specific false representation by the Attorney Defendants about a material fact, including about
the amount, terms, or legal status of the loan, nor does it articulate any specific omission of a fact
the Attorney Defendants were legally required to disclose. Instead, Plaintiff simply dubs the loan
invalid and fraudulent, and asserts that the communications about it are premised on concealment
and misrepresentation, see ECF No. 4 at 6, because the Attorney Defendants have not endorsed
his sovereign‑citizen views on consideration and negotiable instruments. Such naked legal
conclusions, unmoored from well‑pleaded facts, do not satisfy Rule 9(b). See Tal v. Hogan, 453
F.3d 1244, 1263 (10th Cir. 2006) (finding that “[f]ailure to adequately allege any one of the nine
elements [of a claim under the Racketeer Influenced and Corrupt Organizations Act] is fatal to
the fraud claim,” and affirming the trial court’s dismissal of that claim under Rule 12(b)(6)).
Second, Plaintiff’s reliance on U.C.C. § 3‑501(b)(2) (as adopted in Colo. Rev. Stat.
§ 4‑3-501(b)(2)) is misplaced. That section addresses presentment and notice of dishonor in the
context of negotiable instruments; it governs what must be done when a person “entitled to
enforce” an instrument demands payment and the obligor questions the presentment, and it sets
forth certain rights to inspect the instrument and to receive notice upon dishonor. It does not: (a)
create a freestanding cause of action for borrowers against lenders; (b) require a lender, or its
attorney, on pain of fraud liability, to produce original promissory notes, wire confirmations,
internal ledgers, or “proof of consideration” whenever a borrower demands them; or (c) allow a
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debtor to discharge a mortgage loan by sending pseudo‑legal documents and declaring the
instrument “dishonored.” ECF No. 11, Ex. D (Plaintiff’s self-styled “Affidavit of Truth/Proof of
Claim” attempting to invoke U.C.C.-style dishonor to discharge the debt).
Courts confronting similar attempts to weaponize U.C.C. provisions to advance vapor
money or “bill of exchange” schemes have uniformly rejected them as patently meritless. See,
e.g., McGee v. Nissan Motor Acceptance Corp., 619 F. App’x 555, 556 (7th Cir. 2015)
(dismissing as frivolous the claim that a lender’s refusal to accept the borrower’s “bill of
exchange” canceled the underlying debt under the U.C.C.); Zickafoose v. Upstart Network, Inc,
No. 8:25-CV-1280-AAS, 2025 WL 2879548, at *5 (M.D. Fla. Oct. 9, 2025) (“Mr. Zickafoose’s
claims are an iteration of the vapor money theory. In attempting to discharge liability through
various UCC provisions, Mr. Zickafoose’s argument is the functional equivalent of attempting to
create money by signing ‘W/O Recourse’ to pay off the loan. Thus, Mr. Zickafoose’s breach of
contract claim lacks legal merit because it is an iteration of the rejected vapor money theory.”)
(internal citations omitted); Aalaam v. Equifax Info. Servs., LLC, No. 5:24-CV-00209-KDB-
DCK, 2025 WL 492010, at *1 (W.D.N.C. Feb. 13, 2025) (observing, in granting defendants’
motion to dismiss, that the plaintiff “erroneously believes that he does not have to pay valid
mortgage and other debts based on the widely discredited ‘vapor money” theory and/or his
contention that Article 3 of the UCC permits him to simply declare his debts discharged based on
his ‘tender’ of so-called ‘negotiable instruments,’” and stating that “[t]his case is the third
installment in his trilogy of wasteful litigation”). Claim Six merely re‑labels this same
discredited theory as “fraud” and “U.C.C. 3‑501.”
Third, to the extent Claim Six purportedly hinges on “lack of consideration,” see ECF No.
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4 at 6, that is yet another restatement of the vapor money theory. He does not allege that he failed
to receive the loan proceeds, that he did not use the funds to purchase or refinance the Property,
or that Freedom did not service an actual debt; rather, he contends that because the underlying
funding may have involved “bookkeeping entries” or secondary-market transactions, and
because Freedom and its attorneys have not shared those internal records with him, the loan is
void for lack of “lawful money.” See generally id. These allegations do not plausibly plead “the
who, what, when, where and how of the alleged fraud,” as is required under Rule 9(b). See
Tatten v. Bank of America Corp., 912 F. Supp. 2d 1032, 1040 (D. Colo. 2012). They are instead
conclusory proclamations concerning Plaintiff’s subjective beliefs by which he would extricate
himself from the obligation to repay his debt.
Because Plaintiff has failed to allege any statements contained in specific documents
made by particular persons—including the Attorney Defendants—that are purportedly
fraudulent, and why, Claim Six fails to state a legally cognizable claim and should be dismissed
with prejudice.
* 	* 	*
In summary, all of Plaintiff’s claims must be dismissed because they rest on patently
frivolous legal theories that have been universally and emphatically rejected by federal courts for
decades. That alone warrants dismissal, with prejudice, of all claims against the Attorney
Defendants. But even if that fundamental defect is overlooked, and the substance of the
allegations examined, Plaintiff has failed to state any plausible claim for relief under the
operative legal standards. Dismissal with prejudice of the claims against the Attorney Defendants
is justified for this additional reason.
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CONCLUSION
Consistent with the foregoing, the undersigned respectfully RECOMMENDS9 that the
Attorney Defendants’ Motions to Dismiss Plaintiff’s Amended Complaint Pursuant to Fed. R.
Civ. P. 12(b)(6) (ECF Nos. 13, 15) be GRANTED, and that all claims asserted against them be
dismissed with prejudice.
DATED: February 23, 2026 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
9 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection
will result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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