Brainard v. Bac Home Loans Servicing, LP

Full title: DAVID M. BRAINARD, and CATHERINE A. BRAINARD, Plaintiffs, v. BAC HOME…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: Mar 29, 2012

Civil Action No. 11-cv-01140-PAB-BNB (D. Colo. Mar. 29, 2012)

Opinion

Civil Action No. 11-cv-01140-PAB-BNB

03-29-2012

DAVID M. BRAINARD, and CATHERINE A. BRAINARD, Plaintiffs, v. BAC HOME LOANS SERVICING, LP, Defendant.

PHILIP A. BRIMMER

Judge Philip A. Brimmer

ORDER OF DISMISSAL

This matter is before the Court on the motion to dismiss [Docket No. 11] filed by defendant BAC Home Loans Servicing, L.P. on October 24, 2011. Plaintiffs have filed no response to the motion to dismiss.

Plaintiffs allege that defendant is proceeding with a foreclosure on plaintiff's property without having sufficiently established a right to do so. Beyond this bare assertion, plaintiffs supply no supporting facts. See generally Docket No. 1. "Although the pleading standard of Fed. R. Civ. P. 8 does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)).¹ The Court will therefore grant defendant's motion to dismiss on that basis.

1 Furthermore, plaintiffs appear to be seeking only injunctive relief for an alleged violation of § 1692f of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Even assuming plaintiffs had pled facts supporting such a claim, injunctive relief is not an available remedy. See Weiss v. Regal Collections, 385 F.3d 337, 341 (3d Cir. 2004) ("The FDCPA contains no express provision for injunctive or declaratory relief in private actions. Most courts have found equitable relief unavailable under the statute, at least with respect to private actions.") (citation and footnote omitted); see also 15 U.S.C. § 1692k.

Plaintiffs filed a motion to amend [Docket No. 8] on September 28, 2011. Plaintiffs seek to supplement their requests for injunctive relief but include no additional facts. Therefore, the Court will deny the motion to amend.

For the foregoing reasons, it is

ORDERED that defendant's motion to dismiss [Docket No. 11] is GRANTED. It is further

ORDERED that plaintiffs' motion to amend [Docket No. 8] is DENIED. It is further

ORDERED that this case shall be closed in its entirety.

BY THE COURT:

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PHILIP A. BRIMMER

United States District Judge