                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         August 14, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
ALBERT FOWLER; ANDREA
FOWLER,

      Plaintiffs - Appellants,
                                                           No. 16-1346
v.                                               (D.C. No. 1:15-CV-01797-MJW)
                                                            (D. Colo.)
BANK OF AMERICA, CORPORATION;
BANK OF AMERICA, N.A.; BAC HOME
LOANS SERVICING, LP, f/k/a
Countrywide Home Loans Inc.,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MORITZ, KELLY, and MURPHY, Circuit Judges.
                  _________________________________

      Plaintiffs Albert and Andrea Fowler sued Bank of America and its affiliates

(collectively, Bank of America)1 for violating the Real Estate Settlement Procedures

Act (RESPA) of 1974, 12 U.S.C. §§ 2601–2617, as well as various Colorado state

laws. In support, the Fowlers alleged that Bank of America failed to adequately


      *
         This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         The Fowlers named Bank of America, Corporation; Bank of America, N.A.;
and BAC Home Loans Servicing, LP as defendants. Bank of America, N.A. is a
wholly owned subsidiary of Bank of America Corporation. BAC Home Loans
Servicing, LP has merged into Bank of America, N.A. and ceased independent
corporate existence.
respond to hundreds of letters the Fowlers sent Bank of America regarding their

home loan. The district court dismissed the Fowlers’ complaint for failure to state a

claim and denied their motion to amend. See Fed. R. Civ. P. 12(b)(6). We affirm.

                                      Background

       We derive the following facts from the Fowlers’ complaint and view those

facts in the light most favorable to them. See Smith v. United States, 561 F.3d 1090,

1098 (10th Cir. 2009) (“[F]or purposes of resolving a Rule 12(b)(6) motion, we

accept as true all well-pleaded factual allegations in a complaint and view these

allegations in the light most favorable to the plaintiff.”).

       Bank of America owned and serviced a mortgage on the Fowlers’ home. The

Fowlers’ loan fell into delinquency from 2009 to 2014, which subjected their home to

foreclosure. In 2012, the Fowlers began sending a series of letters about their loan to

Bank of America and continued sending these letters until July 2015, the month

before they filed their complaint. In total, the Fowlers allege they sent at least 867

letters to Bank of America at various addresses.

       The Fowlers filed this action in the district court on August 20, 2015—a little

more than one month after they sent the last of their letters. They alleged that RESPA

and its Colorado analog, Colo. Rev. Stat. Ann. § 38-40-103(2), required Bank of

America to substantively and timely respond to each of their letters. And although the

Fowlers concede that Bank of America sent many response letters, they nevertheless

contend that, with one exception, those responses either weren’t sufficiently

substantive or weren’t sent within RESPA’s prescribed timeframe. The Fowlers also

                                             2
alleged that these 866 nonresponses, late responses, and inadequate responses

(1) were an unfair trade practice prohibited by the Colorado Consumer Protection Act

(CCPA), Colo. Rev. Stat. Ann. §§ 6-1-101–115, and (2) amounted to intentional

infliction of emotional distress.2 Bank of America moved to dismiss and the Fowlers

moved for leave to amend their complaint. The district court—via a magistrate judge

presiding by consent—granted Bank of America’s motion and denied the Fowlers’

motion as futile. The Fowlers appeal.

                                        Analysis

      The Fowlers argue that the district court erred in dismissing their complaint

because it states a claim under four separate legal theories. We analyze their

arguments de novo, looking only to the face of the complaint and the documents

incorporated therein by reference. See TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d

1175, 1180 (10th Cir. 2007).

I.    Real Estate Settlement Procedures Act

      The Fowlers’ primary claim is that Bank of America violated RESPA by

failing to properly respond to their letters. But, as elaborated below, the Fowlers

don’t point to any specific, actionable RESPA violation. Instead, they broadly allege

that Bank of America had a duty to respond to each of their letters, that Bank of

America failed to timely and substantively do so, and that each nonresponse caused


      2
        The Fowlers also brought claims under the Truth in Lending Act (TILA) of
1968, 15 U.S.C. §§ 1601–1667f, and for common-law fraud and promissory estoppel.
The district court dismissed these claims as well, and the Fowlers concede that they
don’t challenge this aspect of the district court’s ruling on appeal.
                                           3
them harm. We conclude that such general allegations are insufficient to state a

RESPA claim.

      RESPA provides a mechanism for borrowers to seek information from and

protest errors to their mortgage servicers. Specifically, RESPA requires servicers to

respond to a borrower’s qualified written request (QWR). A QWR is a “written

correspondence” from the borrower to the servicer that (1) identifies the borrower

and the borrower’s account; and (2) either (a) asserts an error in the borrower’s

account or (b) requests information related to the servicing of the borrower’s account.

12 U.S.C. § 2605(e)(1).3 Once a servicer receives a QWR, it must “provide a written

response acknowledging receipt of the correspondence within 5 [business] days.”

§ 2605(e)(1)(A). Then, within 30 business days, the servicer must (1) correct the

asserted error; (2) explain why it believes the account isn’t in error; (3) provide the

requested information; or (4) explain why the requested information is unavailable.

§ 2605(e)(2).4




      3
         RESPA’s implementing regulations distinguish between these two types of
QWRs as “[n]otice[s] of errors” (NOE) and “[r]equests for information” (RFI). 12
C.F.R. §§ 1024.35(a), 1024.36. The Fowlers lament that the district court considered
their QWRs “but failed to discuss or even mention” their NOEs or RFIs. Aplt. Br. 24.
But because NOEs and RFIs are both types of QWRs, we see no harm with referring
to them all as QWR’s. We, like the district court, take this approach.
       4
         On January 10, 2014—while the relevant events were ongoing—the period of
time in which a servicer must respond to a QWR changed from 20 days for an
acknowledgment and 60 days for a substantive response to the current requirement of
5 days for an acknowledgement and 30 days for a substantive response. See Berneike
v. CitiMortgage, Inc., 708 F.3d 1141, 1145 n.3 (10th Cir. 2013). Here, the Fowlers
allege violations under both the old and new rule.
                                            4
      But a servicer’s statutory duty to respond to a borrower’s communication

doesn’t “arise with respect to all inquiries or complaints from borrowers to

servicers.” Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 666 (9th Cir. 2012).

Rather, a letter isn’t a QWR—and thus doesn’t trigger the servicer’s duty to

respond—unless it “relat[es] to servicing,” which RESPA defines as “receiving any

scheduled periodic payments from a borrower pursuant to the terms of any loan,

including amounts for escrow accounts . . . , and making the payments of principal

and interest and such other payments.”5 Id. (omission in original) (quoting

§ 2605(i)(3)). Further, RESPA’s implementing regulations allow servicers to

designate an address to which all QWRs must be sent before they will trigger the

servicer’s duties under RESPA. 12 C.F.R. § 1024.36(b); see also Berneike, 708 F.3d

at 1149 (holding that servicers have no duty to respond to QWRs not sent to

designated address). And the regulations also excuse a servicer from its duty to

respond to a QWR if the servicer determines the QWR makes a request that is

duplicative or overbroad. § 1024.36(f)(1). But in such a case, the “servicer shall


      5
        Bank of America argues that none of the letters the Fowlers sent while their
loan was in default are related to servicing because, by definition, Bank of America
was not servicing the Fowlers’ loan at that time. Essentially, the argument goes, Bank
of America can’t be receiving payments the Fowlers aren’t making.

       We haven’t addressed this question. Nor, to our knowledge, has any other
circuit court. And lower courts are split on its answer. Compare Pike v. Bank of Am.,
N.A., No 14-2529, 2015 WL 3824390, at *5 (N.D. Ohio June 19, 2015), with Fluegge
v. Nationstar Mortg., LLC, No. 12-15500, 2013 WL 5435320, at *3 (E.D. Mich. Sept.
27, 2013). Because we ultimately conclude that the Fowlers fail to state a RESPA
claim, we will assume, without deciding, that the letters the Fowlers sent while in
default could be related to servicing.
                                           5
notify the borrower of its determination in writing not later than five [business] days

. . . after making such determination.” § 1024.36(f)(2).

      Moreover, not all RESPA violations are actionable. RESPA creates a private

cause of action only for borrowers who can show actual damages from a servicer’s

noncompliance. See § 2605(f)(1)(A). But borrowers may recover statutory damages

of up to $2,000 per violation if they can show the violation was part of a “pattern or

practice of noncompliance” with RESPA’s requirements. § 2605(f)(1)(B). We have

thus held that “to survive a Rule 12(b)(6) motion to dismiss a claim under § 2605(e)

of RESPA, plaintiffs must plead actual damages stemming from the failure to

respond to requests or a pattern or practice of misconduct.” Toone v. Wells Fargo

Bank, N.A., 716 F.3d 516, 523 (10th Cir. 2013); see also Renfroe v. Nationstar

Mortg. LLC, 822 F.3d 1241, 1246 (11th Cir. 2016) (explaining “there must be a

‘causal link’ between the alleged [RESPA] violation and the damages” (quoting

Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001))); cf. Hintz v.

JPMorgan Chase Bank, N.A., 686 F.3d 505, 511 (8th Cir. 2012) (holding that

conclusory allegation that RESPA violations caused plaintiffs over $50,000 in

damages failed to state a claim). And importantly, borrowers must plead damages for

“each such failure” to respond. § 2605(f).

      Here, Bank of America argues the Fowlers’ RESPA claim fails for a number of

reasons, including (1) the Fowlers’ failure to send many of the letters to Bank of

America’s designated addresses; (2) the Fowlers’ failure to assert an error or ask a

question related to servicing in many of their letters; (3) the fact that the Fowlers sent

                                             6
many of the letters while in default; (4) the fact that Bank of America actually

responded to many of the Fowlers’ letters, and (5) the Fowlers’ failure to “link [Bank

of America]’s alleged failure to respond to any given mailing to any alleged

damages.” Aplee. Br. 24. We agree with the last of these arguments and therefore

don’t address the remainder. Specifically, we conclude that although the Fowlers

broadly allege that Bank of America’s failure to respond to their letters harmed them

in a myriad of ways, they don’t allege a sufficient causal connection between any

single violation and any specific, recoverable damages. Nor do their conclusory

allegations of a pattern or practice of violations entitle them to pursue statutory

damages.

      A.     Actual Damages

      The Fowlers plead three general categories of actual damages. First, they

allege that Bank of America’s RESPA violations subjected them to inaccurate credit

reporting. But the Fowlers make no effort to connect the alleged RESPA violations

with any inaccuracies in their credit reports; they merely allege that the inaccurate

credit reporting is “causally and proximately linked” to Bank of America’s alleged

violations. Supp. App. vol. 1, 10. This is the sort of conclusory allegation we need

not accept as true. See Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th

Cir. 2011). Without giving us a basis “to draw the reasonable inference that [Bank of

America] is liable for” their inaccurate credit reporting, the Fowlers cannot state a

claim for damages. Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,

1235 (10th Cir. 2013).

                                            7
      Next, the Fowlers allege that they incurred actual damages by expending court

costs and attorney’s fees in bringing this lawsuit. But as the Fifth Circuit explained in

an unpublished opinion, litigation expenses and attorney’s fees can’t be actual

damages because RESPA separately allows successful plaintiffs to recover such “fees

and expenses in addition to actual damages.” Whittier v. Ocwen Loan Servicing,

L.L.C., 594 F. App’x 833, 837 (5th Cir. 2014) (unpublished) (citing § 2605(f)); see

also § 2605(f)(3) (creating liability, “[i]n addition to” actual and statutory damages,

for “the costs of the action, together with any attorney[’]s fees incurred in connection

with such action”). We find this reasoning persuasive and adopt it here. If attorney’s

fees and litigation expenses were recoverable as actual damages, then § 2605(f)(3)

would be superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a

cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to

be so construed that, if it can be prevented, no clause, sentence, or word shall be

superfluous, void, or insignificant.’” (quoting Duncan v. Walker, 533 U.S. 167, 174

(2001))). Thus, the attorney’s fees and court costs the Fowlers incurred in this action

can’t support their claim of actual damages.

      Finally, the Fowlers assert that the costs they incurred in sending their

QWRs—including the cost of postage and other materials—constituted actual

damages.6 But as the Eleventh Circuit explained in an unpublished opinion, the cost


      6
        For example, without distinguishing between which costs they incurred
sending which letters, the Fowlers allege that they incurred $11,479.52 in printing
expenses, $18,978.14 in “filing, scanning, [and] PDF conversion,” and $230,894.72
in “professional administrative time.” Supp. App. vol. 1, 10.
                                            8
of sending a QWR can’t be causally linked to the servicer’s failure to adequately

reply to that QWR. See Baez v. Specialized Loan Servicing, 709 F. App’x 979, 983

(11th Cir. 2017) (unpublished) (“[T]he cost of sending an initial request for

information is not a cost to the borrower ‘as a result of the failure’ to comply with a

RESPA obligation.” (quoting § 2605(f)(1)(A))). We find this reasoning persuasive as

well and also adopt it here. The logic is simple: a RESPA plaintiff incurs the cost of

preparing and sending the QWR regardless of whether the servicer adequately

replies, so the violation doesn’t cause the plaintiff to incur these costs. See id. (“The

servicer may adequately respond to the request, or it may not, but the postage cost to

the borrower is the same in both instances.”). Thus, that the Fowlers allege they

incurred costs while sending their letters doesn’t get them past Bank of America’s

motion to dismiss.

      On the other hand, if Bank of America’s nonresponse or inadequate response

prompted the Fowlers to resend a QWR, then the costs of preparing the subsequent

QWR are indeed traceable to the violation. But the Fowlers don’t adequately allege

this was the case regarding any of their letters. True, they broadly allege that they

resent various letters because Bank of America failed to properly respond. But they

fail to identify any particular letter that (1) actually meets the requirements of a QWR

and (2) was necessary for them to resend because Bank of America’s inadequate

response left them without the information they sought.

      This failure to specify dooms the Fowlers’ RESPA claim. The Fowlers broadly

implore us to reverse the district court’s decision because, they say, some of the 867

                                            9
letters they sent to Bank of America met all the requirements necessary to state a

RESPA claim. But they concede that many—if not most—of their letters don’t meet

these requirements. It’s thus crucial that the Fowlers point us toward the specific

letter or letters that meet all the requirements of a QWR. And to show that Bank of

America’s failure to substantively or timely respond caused them to incur actual

damages, they must show that they resent those specific letters.

       But the Fowlers provide no such guidance. Indeed, in contravention of our

appellate rules,7 they fail to include in their appendix on appeal a single letter that

they sent Bank of America. Instead, their appendix primarily consists of various

tables summarizing the letters. One such table directs us to where a “[s]ample” of the

letters can be found on the district court docket. Another summarizes the content of

various letters that they sent. Yet another table includes a “[p]artial [a]ccounting” of

responses Bank of America sent to the Fowlers. App. 43. But this table again merely

makes reference to where the letters can be found in the district court docket.

       These tables do little to help us evaluate the Fowlers’ arguments without

further context including (1) whether these letters were duplicates or triplicates (as

the Fowlers concede many were); (2) whether Bank of America replied to any of

these letters (timely or otherwise); and (3) the date and content of those replies—all


       7
        See Fed. R. App. P. 30(a)(1) (requiring appellants to file appendix containing
“relevant portions of the pleadings . . . and . . . other parts of the record to which the
parties wish to direct the court’s attention”); Fed. R. App. P. 28(a)(8)(A) (requiring
appellants’ briefs to include “citations to the . . . parts of the record on which the
appellant relies”); 10th Cir. R. 30.1(B)(1) (requiring appellants to “file an appendix
sufficient for considering and deciding the issues on appeal”).
                                            10
information necessary to properly assess whether the Fowlers can collect damages for

resending these letters. The Fowlers’ general citations to their summary tables simply

do not put us on notice of the record support for their arguments.8

      And even if we were willing to overlook the Fowlers’ failure to include the

letters in their appendix and search through the district-court record ourselves, we

would nevertheless be unwilling to take on the task of comparing the letters to the

various summary tables in an attempt to painstakingly piece together this 867-piece

jigsaw puzzle. Not only would this be a dubious use of judicial resources, but it

would carry us well beyond our obligation as the arbiters of this dispute. See 10th

Cir. R. 30.1(B)(3) (“The court need not remedy any failure of counsel to provide an

adequate appendix.”); Milligan-Hitt v. Bd. of Trs. of Sheridan Cty. Sch. Dist. No. 2,

523 F.3d 1219, 1231 (10th Cir. 2008) (“If the appendix and its supplements are not

sufficient to decide an issue, we have no obligation to go further and examine

documents that should have been included, and we regularly refuse to hear claims

predicated on record evidence not in the appendix.”); cf. United States v. Dunkel, 927




      8
         To be clear, we don’t mean to suggest that RESPA plaintiffs must provide
record support to survive a motion to dismiss. The Fowlers alternatively could have
specified in their complaint (1) which letters Bank of America had a duty to respond
to; (2) the exact manner in which Bank of America’s response (or lack thereof) to
those specific letters breached that duty; and (3) how those specific breaches harmed
them. But to the extent that the Fowlers seek to rely on their exhibits to make up for
the lack of specificity in their complaint, they fail in this endeavor.
                                          11
F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in

briefs.”).9

       In short, the Fowlers must allege damages for “each . . . violation” to state a

RESPA claim. But they only allege damages generally without showing a causal

connection between any specific violation and any specific damages. Thus, they fail

to state a plausible claim predicated on actual damages. Cf. Hanson v. Bank of Am.,

935 F. Supp. 2d 1128, 1144, 1146 (D. Colo. 2013) (considering RESPA claim in

which plaintiff specifically pleaded damages caused by each alleged violation).10


       9
         The Fowlers’ deficiencies on appeal appear to be consistent with deficiencies
in their filings below. The complaint itself failed to identify any specific letters that
support their claims. Rather, the complaint broadly alleged that Bank of America
failed to respond to all but one of the 867 letters they sent. Yet they then conceded
that Bank of America had no duty to respond to many of those letters. And instead of
directing the district court to the specific letters that actually supported their claims,
the Fowlers included all 867 letters as exhibits with the apparent expectation that the
district court would sort through them in search of viable claims. It declined to do so.
       10
         Moreover, we can’t readily discern on our own whether any of the Fowlers’
letters meet the other elements of a RESPA violation. On the face of their complaint,
the Fowlers only make the conclusory allegation that “each [letter] included a
statement of the reasons for belief of the [Fowlers], to the extent applicable, to
identify an error; request information related to the servicing of the loan, or; ask a
question related to the servicing of the loan.” Supp. App. vol. 1, 7. This “formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).

        And even if we were to mine through the actual letters, it’s abundantly clear
that at least some of them don’t meet the requirements for QWRs. For example, Bank
of America directs us to a series of letters from Albert Fowler that ask, “[W]hy, when
I specifically address correspondence regarding my loan to [Bank of America CEO]
Brian T. Moynihan, [does] it never reach[] him for his review?” E.g., Supp. App. vol.
1, 43. Such unconventional requests aren’t reasonably related to servicing and Bank
of America had no duty to respond to them. See Medrano, 704 F.3d at 666. Further,
the Fowlers concede that Bank of America had no duty to respond to many of their
                                           12
      B.     Statutory Damages

      The Fowlers’ complaint also alleges that they are entitled to statutory damages

because Bank of America’s inadequate responses to their QWRs are part of “a pattern

or practice of noncompliance” with RESPA. § 2605(f)(1)(B). Initially, we note that

it’s unclear whether a RESPA plaintiff who hasn’t sufficiently alleged actual

damages can state a RESPA claim based on statutory damages alone. Section

2605(f)(1)(B) authorizes “additional” statutory damages when a RESPA violation is

part of a pattern or practice. As the Eleventh Circuit noted, “the use of ‘additional’

seems to indicate that a plaintiff cannot recover pattern-or-practice damages in the

absence of actual damages.” Renfroe, 822 F.3d at 1247 n.4 (quoting § 2605(f)(1)(B)).

In Toone, we appeared to assume that a RESPA plaintiff could rely solely on

statutory damages, but we didn’t actually resolve this issue because we held the

plaintiff hadn’t sufficiently pleaded statutory damages. See 716 F.3d at 523.

      We need not resolve this question here either. As in Toone, the Fowlers’

conclusory allegations “merely assert[] that a pattern or practice can be inferred from

the failure to respond to their requests.” Id. In that case, we concluded that “this

inference [wasn’t] plausible because of the conclusory nature of the allegations of the

complaint and the failure to allege any violations with respect to other borrowers.”



other letters because the Fowlers sent them to the wrong address. Thus, even
assuming the Fowlers could show damages, it’s not clear on the record before us that
any specific letter both (1) actually relates to servicing and (2) was sent to a
designated address.

                                           13
Id. The Fowlers’ complaint is indistinguishable in this regard from the complaint in

Toone. See id. Thus, the Fowlers also fail to state a claim for statutory damages.

      Because the Fowlers have not adequately pleaded actual or statutory damages,

they fail to state a RESPA claim, and the district court properly dismissed those

claims. See id. (dismissing RESPA claim that didn’t adequately plead actual or

statutory damages).

II.   Colo. Rev. Stat. Ann. § 38-40-103(2)

      The Fowlers next claim that Bank of America’s inadequate responses to their

letters violated RESPA’s Colorado counterpart. See Colo. Rev. Stat. Ann. § 38-40-

103(2). These statutes aren’t identical. But like RESPA, its Colorado counterpart

premises private causes of action on actual damages. See Colo. Rev. Stat. Ann. § 38-

40-104(1). And although Colorado’s statutory scheme doesn’t require a showing of a

pattern or practice of violations for statutory damages, it does explicitly tether

statutory damages to a showing of actual damages. See id. (“If the court finds that

actual damages have occurred, the court shall award to the debtor or borrower, in

addition to actual damages, the amount of one thousand dollars . . . .”). The Fowlers

therefore fail to state a § 38-40-103(2) claim for the same reason they fail to state a

RESPA claim: they don’t adequately allege any causal connection between Bank of

America’s asserted violations and their actual damages. And without plausibly

alleging they are entitled to actual damages, they can’t state a claim for statutory

damages either. Accordingly, the district court didn’t err in dismissing the Fowler’s

§ 38-40-103(2) claim.

                                           14
III. Colorado Consumer Protection Act

       The Fowlers next allege that Bank of America’s nonresponses or inadequate

responses violated the CCPA. To plead a private cause of action under the CCPA, a

plaintiff must plead, inter alia, that he or she “suffered injury in fact to a legally

protected interest[] and . . . that the challenged practice caused the plaintiff’s injury.”

Rhino Linings USA, Inc. v. Rocky Mtn. Rhino Lining, Inc., 62 P.3d 142, 146–47

(Colo. 2003).

       The Fowlers base their CCPA claim on the same alleged conduct that gave rise

to their RESPA and § 38-40-103(2) claims.11 It therefore suffers the same flaw: the

Fowlers don’t plausibly allege a connection between “the challenged practice [and

their] injury.” Id. at 147. The Fowlers thus fail to state a CCPA claim.

IV.    Intentional Infliction of Emotional Distress

       The Fowlers lastly claim that Bank of America committed common-law

intentional infliction of emotional distress (IIED) by not adequately responding to

their letters. A defendant is liable for IIED under Colorado law if the defendant “by

extreme and outrageous conduct intentionally or recklessly causes severe emotional

distress to another.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999)

(quoting Rugg v. McCarty, 476 P.2d 753, 756 (1970)). Colorado courts will only find


       11
         The Fowlers’ complaint also alleges that Bank of America’s TILA and
common-law fraud violations served as predicate violations for their CCPA
complaint. But, as explained in note 2, supra, the Fowlers waived their underlying
TILA and common-law fraud claims on appeal. They similarly haven’t argued on
appeal that these violations predicate their CCPA claim, so any such argument is
likewise waived.
                                            15
a defendant’s conduct extreme and outrageous if “the case is one in which the

recitation of the facts to an average member of the community would arouse his

resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Rugg, 476 P.2d

at 756 (quoting Restatement (Second) of Torts § 46 cmt. d. (Am. Law Inst. 1965)).

The Colorado Supreme Court has been clear that this is a “high standard.” Coors

Brewing Co., 978 P.2d at 665.

      The conduct the Fowlers allege here fails to meet this high bar. Indeed, in the

mortgage context, Colorado courts have found that far more egregious conduct falls

short of IIED’s high standard. See, e.g., Hewitt v. Pitkin Cty. Bank and Trust Co., 931

P.2d 456, 459 (Colo. Ct. App. 1995) (affirming dismissal of IIED claim where on

two separate occasions defendant promised not to foreclose on plaintiff’s mortgage

but then reneged and foreclosed the very next day). Therefore, the Fowlers have

failed to state a plausible IIED claim.12

      Having concluded that the Fowlers’ complaint fails to state a claim for relief

under RESPA, § 38-40-103(2), the CCPA, or IIED, we affirm the district court’s

order dismissing their complaint.

V.    Motion to Amend

      All that remains is the district court’s order denying the Fowlers leave to

amend. We review district court orders denying leave to amend for abuse of

discretion. Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010). But when the

      12
         The district court didn’t reach the merits of the Fowlers’ IIED claim because
it determined Colorado’s credit-agreement statute of frauds precluded it. Because we
conclude the Fowlers’ IIED claim fails on the merits, we don’t address this issue.
                                            16
district court denies a motion to amend solely because the proposed amendments

wouldn’t remedy the complaint’s legal defect, we review the district court’s

underlying legal conclusions de novo. See id.

        The district court determined that the Fowlers’ proposed amendment would be

futile. The Fowlers argue on appeal that the district court should have granted their

motion to amend because their proposed amendments “included clarification of fact,

additional exhibits related to [their] emotional distress claim and a new claim for

exemplary damages derivative of [Bank of America’s] violations of RESPA and

[§ 38-40-103(2)].” Aplt. Br. 37.

        But the Fowlers don’t include their motion to amend or their proposed

amended complaint in the appendix on appeal. We therefore don’t have sufficient

material to address the Fowlers’ arguments. See 10th Cir. R. 30.1(B)(1) (“Unless pro

se, the appellant must electronically file an appendix sufficient for considering and

deciding the issues on appeal.”); 10th Cir. R. 30.1(B)(3) (“The court need not remedy

any failure of counsel to provide an adequate appendix.”); Milligan-Hitt, 523 F.3d at

1231.

        Affirmed.




                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge


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