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

                           FOR THE TENTH CIRCUIT                        April 21, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
GENE A. SPREITZER,

             Plaintiff - Appellant,

v.                                                        No. 14-8023
                                                 (D.C. No. 1:12-CV-00206-ABJ)
DEUTSCHE BANK NATIONAL                                     (D. Wyo.)
TRUST COMPANY, as trustee for
Ameriquest Mortgage Securities, Inc.;
HOMEWARD RESIDENTIAL, INC.,

             Defendants - Appellees,

and

JAMES H. WOODALL; HEATHER M.
MCGINLEY; JAMES H. WOODALL,
PLLC; DEFAULT RESOLUTION
NETWORK, LLC; AMERIQUEST
MORTGAGE COMPANY; DAVID
APPLEGATE,

             Defendants.


                            ORDER AND JUDGMENT*

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges.


      Gene Spreitzer appeals from the district court’s order dismissing his amended

complaint with prejudice and denying his motion for leave to further amend his

complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  BACKGROUND

      In 2003, Spreitzer obtained a home loan from Ameriquest Mortgage Company

(Ameriquest). The loan was evidenced by a note and secured by a mortgage (the

Note and Mortgage). In 2009, Ameriquest assigned the Note to Deutsche Bank

National Trust Company, as trustee for Ameriquest Mortgage Securities, Inc.,

Asset-backed Pass-through Certificates, 2003-11 (Deutsche Bank). In 2012,

Deutsche Bank began sending Spreitzer foreclosure notices, initially through attorney

James H. Woodall and later through Homeward Residential, Inc. (Homeward), which

acted as servicer of the loan for Deutsche Bank.

      Spreitzer responded by filing the action underlying this appeal. After several

defendants moved to dismiss his initial pro se complaint, he filed an amended

complaint (Amended Complaint), also pro se. In the Amended Complaint, he alleged

Ameriquest’s indorsement of the Note “without recourse” was an acknowledgement

that it had received full payment on the loan, extinguished his obligation under the

Note, and required Ameriquest to release the Mortgage. He also alleged the


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assignment to Deutsche Bank was a sham. He asserted claims under the Fair Debt

Collection Practices Act (FDCPA) and the Racketeer Influenced and Corrupt

Organizations Act (RICO), and he sought to quiet title to the property subject to the

mortgage. Defendants filed motions to dismiss the Amended Complaint, and briefing

on those motions was completed by January 2013. In May 2013, an attorney entered

an appearance on Spreitzer’s behalf.

      In mid-December 2013, the district court granted the motion to dismiss the

initial complaint filed by Campbell County Abstract Company and its president,

Barbara S. Redder (Campbell defendants), and denied as moot four other motions to

dismiss the initial complaint. In late January 2014, Spreitzer’s counsel filed a

“Motion for Leave to File Second Amended Complaint” (motion to amend) and

attached a proposed Second Amended Complaint. Several of the remaining

defendants opposed the motion. On March 3, 2014, the district court granted the

remaining motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, dismissed the Amended Complaint with prejudice, and denied the motion

to amend. This counseled appeal followed.

                                    DISCUSSION

      Because Spreitzer proceeds on appeal only against Deutsche Bank and

Homeward (together, the Bank Defendants), who jointly moved to dismiss, our focus

is on the district court’s resolution of the claims against them. We review a

Rule 12(b)(6) dismissal de novo. Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227


                                         -3-
(10th Cir. 2004). We construe Spreitzer’s pro se filings in the district court liberally

but we do not advocate for him. See Yang v. Archuleta, 525 F.3d 925, 927 n.1

(10th Cir. 2008).

      A.     Motion to Amend

      We first address the district court’s denial of Spreitzer’s motion to amend.1

The court noted that under Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th Cir.

1993), untimeliness alone is a sufficient basis to deny leave to amend. The court

reasoned that counsel had delayed too long (nearly nine months) after entering his

appearance, that his need to review prior filings was insufficient justification for the

delay, and that although Spreitzer’s counsel suggested “special counsel” prepared the

Second Amended Complaint, no other attorney had sought admission pro hac vice.

The court found Spreitzer’s actions dilatory for the independent reason that he filed

the motion to amend only after the court had dismissed the claims against the

Campbell Defendants. The court also concluded that granting the motion to amend

would substantially prejudice the Bank Defendants, would prejudice resolution of the

case, and would be contrary to justice.

      Because the district court did not deny leave to amend based on futility, our

review is only for abuse of discretion. See Fields v. City of Tulsa, 753 F.3d 1000,


1
       Because Spreitzer’s appeal involves the denial of the motion to amend, he had
an obligation to include the motion in the appendix. See 10th Cir. R. 10.3(D)(2),
30.1(B)(1). He did not do so, but we exercise our discretion to take judicial notice of
the motion. See Guttman v. Khalsa, 669 F.3d 1101, 1127 n.5 (10th Cir. 2012).


                                          -4-
1012 (10th Cir. 2014). Rule 15(a)(2) of the Federal Rules of Civil Procedure governs

amendments requiring leave of court and provides leave to amend should be freely

given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “[U]ndue delay,”

“dilatory motive,” and “undue prejudice to the opposing party” are among the

reasons a district court “may withhold leave to amend.” U.S. ex rel. Ritchie v.

Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009) (internal quotation

marks omitted).

      Spreitzer argues that any prejudice to the defendants resulted from the district

court’s delay in ruling on the motions to dismiss the Amended Complaint. He claims

his counsel waited to seek leave to file the second amended complaint until after the

district court ruled on the pending motions to dismiss “so that the proposed Second

Amended Complaint,” which was the first pleading filed by counsel, “could be

properly structured.” Opening Br. at 43. And he distinguishes Frank on the ground

that in Frank, unlike here, the court denied leave to amend after an amendment

deadline.

      We are not persuaded. First, the time that passed while motions to dismiss

were pending in the district court only served to exacerbate Spreitzer’s delay because

that time provided his counsel additional opportunity (again, nearly nine months) to

consider whether to seek leave to amend Spreitzer’s pro se Amended Complaint.

Although Spreitzer alleged in his motion to amend that he only “recently” retained

special counsel who drafted the proposed Second Amended Complaint, Doc. 136


                                         -5-
at 1, Spreitzer stated in a supportive reply that “the initial work by special counsel

involved months of factual and legal research,” Aplt. App. at 244. Yet during all

those “months” Spreitzer’s counsel of record took no action in the district court

despite being on notice that the court could rule on the motions to dismiss at any

time.

        Second, in the district court, Spreitzer did not argue strategic reasons justified

his delay, and he has not argued plain error here. Thus, he has forfeited our

consideration of that argument. See Richison v. Ernest Group, Inc., 634 F.3d 1123,

1127-31 (10th Cir. 2011) (declining to conduct plain-error review of theory presented

for first time on appeal when appellant did not “argue for plain error and its

application on appeal”); Utah Animal Rights Coal. v. Salt Lake Cnty., 566 F.3d 1236,

1244 (10th Cir. 2009) (stating “we generally do not consider new theories on

appeal—even those that fall under the same general category as one that was

presented in the district court”).2



2
       In any event, Spreitzer’s argument that his delay was strategic is unconvincing,
because he filed his motion to amend before the district court had ruled on the Bank
Defendants’ motion to dismiss. Therefore, the court’s ruling on that motion to
dismiss could not have informed counsel as to how to “properly structure” an
amended complaint. Nor did the district court’s dismissal of the claims against the
Campbell Defendants provide Spreitzer any guidance. The court dismissed the
claims against those defendants (a title company and one of its employees) because
Spreitzer failed to allege any facts showing their involvement with the foreclosure
efforts or any alleged extortion or mail fraud. That rationale has nothing to do with
the changes Spreitzer sought to make with the proposed Second Amended Complaint,
in which he did not even name the Campbell Defendants.


                                            -6-
       Finally, Frank may be factually distinguishable, but the district court relied on

Frank only for its general rule that undue delay is a sufficient reason to deny leave to

amend, then applied that rule to the facts here. And we see no abuse of discretion in

the court’s determination that the delay was undue or, as Frank also requires, without

“adequate explanation,” Frank, 3 F.3d at 1365-66.

       Because the district court did not abuse its discretion in denying the motion to

amend, Spreitzer’s pro se Amended Complaint remains the controlling pleading.

Therefore, we base the following review of the district court’s denial of his motion to

dismiss on the facts alleged in that pleading, disregarding those portions of the

factual statement and argument in Spreitzer’s opening brief based solely on the

proposed Second Amended Complaint.

B.     Motion to dismiss

       1.     FDCPA claims

       The district court concluded Spreitzer’s FDCPA claims failed because the

Bank Defendants are not “debt collectors” within the meaning of the FDCPA. In

relevant part, the term “debt collector” excludes “any person collecting or attempting

to collect any debt owed or due or asserted to be owed or due another to the extent

such activity . . . (iii) concerns a debt which was not in default at the time it was

obtained by such person.” 15 U.S.C. § 1692a(6)(F). Applying that provision, the

district court determined that, under Wyoming law, the application of which no party

challenges, Ameriquest’s indorsement of the Note “without recourse” did not mean


                                           -7-
that the note was paid off or that Spreitzer no longer was obligated under it, as he

argued. Instead, such an indorsement disclaims the indorser’s liability, and if the

instrument is dishonored, the indorser is not obligated to pay the amount due on it.

See Wyo. Stat. Ann. § 34.1-3-415(a), (b). Based on this analysis, the district court

concluded Spreitzer failed to advance plausible allegations that he was not obligated

under the Note when it was assigned to Deutsche Bank in 2009.

      Spreitzer has not challenged the district court’s analysis of this issue (other

than to rely on facts solely pled in his proposed Second Amended Complaint, which

we have determined is not controlling). But he takes issue with the court’s rejection

of his argument that the assignment itself was invalid because it occurred in 2009,

after the closing date (in 2003) of the securitized trust into which the Note and

Mortgage were placed (and of which Deutsche Bank was the trustee), and therefore

was in violation of a related pooling and service agreement (PSA). Applying the

Iqbal3 standard for determining the sufficiency of a complaint, the district court

concluded Spreitzer failed to allege any facts supporting a plausible claim that the

assignment was void. The court therefore concluded, as have other courts to

consider the issue, that Spreitzer lacked standing to challenge the assignment as

voidable based on non-compliance with the PSA.

      Spreitzer argues the cases relied upon by the district court are not binding and

the law is unsettled because other courts have reached a different conclusion. But we
3
      Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).


                                          -8-
need not resolve this issue because we can affirm on another ground supported by the

record but not relied upon by the district court. See Bixler v. Foster, 596 F.3d 751,

760 (10th Cir. 2010). The Bank Defendants argue, as they did below, that a valid

assignment was not necessary for them to have obtained the Note at a time when it

was not in default.4 We agree. When a negotiable instrument is indorsed in blank, it

is “payable to bearer.” Wyo. Stat. Ann. § 34.1-3-205(b). When an instrument is

“payable to bearer,” “the person in possession” of it is the “[h]older,” id.

§ 34.1-1-201(xx), and the holder of an instrument is a “[p]erson entitled to enforce

[it],” id. § 34.1-3-301. Further, “a transfer of [a note] will carry with it the mortgage

security and operate as an equitable assignment thereof unless it is agreed otherwise.”

Bradburn v. Wyo. Trust Co. of Casper, 63 P.2d 792, 797 (Wyo. 1936).

      Spreitzer admitted in his Amended Complaint that Ameriquest indorsed the

Note “in blank without recourse . . . by the hands of Kirk Langs, COB and CEO, and

John P. Grazer, E.VP and CFO.” Aplt. App. at 37. The document itself reveals as

much. See Aplee. Supp. App. at 4. He does not allege that Deutsche Bank was not in

possession of the Note (i.e., not a holder) or that he was in default when Deutsche

Bank came into possession of it, which is the relevant point in time for the inquiry,

not, as Spreitzer suggests, the time when foreclosure proceedings commence, see

Reply at 6. Accordingly, the Amended Complaint contains no plausible allegations
4
      Because the Bank Defendants raised this ground in the district court and again
on appeal, Spreitzer has had an adequate opportunity to address it. See Bixler,
596 F.3d at 760.


                                          -9-
that the Bank Defendants obtained the Note while it was in default – allegations that

would be necessary to skirt the relevant exclusion from the FDCPA’s definition of

“debt collector” in 15 U.S.C. § 1692a(6)(F).5

      2. RICO claims

      Spreitzer asserted two civil RICO claims, one for extortion and one for mail

fraud. In his extortion claim, he alleged the Bank Defendants “attempted to extort

roughly $150,000 from [him] by threatening to sell and seize [his] home under color

of official right by and through the use of a fabricated, phony, false, sham, fraud

on-its-face, alleged ‘Assignment of Mortgage,’ which had no enforceable security

interest granting Defendants any present right of possession.” Aplt. App. at 53

(emphases omitted).

      Extortion is defined as “the obtaining of property from another, with his

consent, induced by wrongful use of actual or threatened force, violence, or fear, or

under color of official right.” 18 U.S.C. § 1951(b)(2). The district court dismissed
5
       Spreitzer also argues that, because only a motion to dismiss was at issue, the
district court erred in discussing the facts he was required to “prove” and in relying
on a case decided at summary judgment. But contrary to Spreitzer’s suggestion, the
district court did not conduct improper fact-finding at the Rule 12(b)(6) stage or
wrongfully construe inferences against him. Instead, the court simply reviewed the
facts Spreitzer would be required to prove in order to prevail on his FDCPA claim in
determining whether he alleged facts giving rise to a plausible claim for relief under
Iqbal, then determined the facts he alleged were legally insufficient. We also reject
Spreitzer’s assertion that the district court converted the motion to dismiss into one
for summary judgment without providing him notice and an opportunity to present
any relevant evidence. We conclude the court appropriately confined itself to the
allegations of the Amended Complaint and the documents attached to it or referred to
in it.


                                         - 10 -
the extortion claim because the Bank Defendants were private entities, as Spreitzer

himself had alleged, not entities acting “under color of official right,” which requires

“a public official’s attempt to obtain money not due him or his office,” United States

v. Troutman, 814 F.2d 1428, 1456 (10th Cir. 1987). Spreitzer apparently concedes

that point, and now argues that by alleging the Bank Defendants were threatening to

seize his home, he adequately (if inartfully) pled the alternative “wrongful use of

actual or threatened force” iteration of extortion under § 1951(b)(2). But even if we

accept his claim that his pleading adequately alerted the district court to an

alternative basis for his argument, his claim fails because, as explained in our

analysis of his FDCPA claims, the Bank Defendants’ foreclosure efforts were not

“wrongful.”

      A predicate RICO mail-fraud claim under 18 U.S.C. § 1341 involves “use of

the United States mails” to execute a scheme “to defraud or obtain money or property

by false pretenses, representations or promises.” Tal v. Hogan, 453 F.3d 1244, 1263

(10th Cir. 2006). A plaintiff must plead mail fraud with the particularity required by

Rule 9(b) of the Federal Rules of Civil Procedure. Id. The district court observed

that Spreitzer failed to specify the allegedly false representation sent by mail but the

court assumed it was the representation that the Note, Mortgage, and assignment

were valid and gave the Bank Defendants the right to foreclose. Based on that

assumption, the district court concluded that Spreitzer’s allegation that the Bank

Defendants made a “false” representation failed because it was premised on his


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“misguided belief that [indorsement] ‘without recourse’ represents a satisfaction of

the debt.” Aplt. App. at 279. The court also held Spreitzer failed to plead fraud with

the particularity required by Rule 9(b).

       On appeal, Spreitzer argues the district court erred in assuming that the Bank

Defendants’ allegedly false representation concerned their right to foreclose. Yet

Spreitzer fails to identify any other false representation, and he ironically overlooks

the district court’s assumption in his favor. The court could simply have dismissed

the mail-fraud claim based on Spreitzer’s failure to identify any allegedly false

representation.

       3. Quiet-title claim

       The district court dismissed Spreitzer’s quiet-title claim concluding he based

that claim on the weakness of the Bank Defendants’ title rather than the strength of

his own. See Kirby Royalties, Inc. v. Texaco, Inc., 458 P.2d 101, 106 (Wyo. 1969)

(explaining the “plaintiff in a quiet title action[] has the burden of proof and must

stand on the strength of its own title and not the weakness of the title of defendants”).

The court observed that although Spreitzer attacked the Note, the Mortgage, and the

assignment, he never alleged he satisfied the Note or was not in default. Relying on

an unpublished federal district court case applying Utah law, the district court held

that “[i]t is [Spreitzer’s] default that clouds his title.” Aplt. App. at 280.

       Spreitzer argues he sufficiently pled a cause of action to quiet title under

Wyoming law, that the district court’s reference to his burden of proof shows that the


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court impermissibly converted the motion to dismiss into one for summary judgment,

and that the court’s reliance on Utah case law conflicts with Wyoming’s quiet-title

statute. We are unpersuaded. The district court properly considered Spreitzer’s

burden of proof in determining whether his allegations set forth a plausible claim for

relief, and in doing the court so did not convert the motion to dismiss into one for

summary judgment. The district court relied on a case applying Utah law only for a

general legal principle and that case was not, in any event, dispositive of Spreitzer’s

quite-title claim. Instead, Spreitzer predicated that claim wholly on his legally

incorrect allegation that Ameriquest’s “without recourse” indorsement of the Note

“render[ed the] ‘Mortgage’ a nullity” and that the Mortgage, along with the

assignment, “should be stricken from the chain of title.” Id. at 56. Thus, we affirm

the district court’s dismissal of Spreitzer’s quiet-title claim.

                                     CONCLUSION

       The judgment of the district court is affirmed.


                                                    Entered for the Court


                                                    Nancy L. Moritz
                                                    Circuit Judge




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