                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 9, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT


    KRISTEN JENSEN;
    RICHARD M. JENSEN,

              Plaintiffs-Appellants,

    v.                                                 No. 10-4147
                                               (D.C. No. 1:09-CV-00169-TS)
    AMERICA’S WHOLESALE                                  (D. Utah)
    LENDER; COUNTRYWIDE HOME
    LOANS, INC.; BAC HOME LOANS
    SERVICING, L.P.; BANK OF
    AMERICA, N.A.; SCOTT
    LUNDBERG; MORTGAGE
    ELECTRONIC REGISTRATION
    SYSTEM, INC.; RECON TRUST
    COMPANY, N.A.; WENDY
    MCKNIGHT; JOHN AND JANE
    DOES 1-100; TRUSTEES 1-100,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before MATHESON, McKAY, and EBEL, Circuit Judges.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Richard and Kristen Jensen, proceeding pro se, brought this action, alleging

that defendants conspired to foreclose on their home. 1 In their amended pro se

complaint, the Jensens claimed (1) extortion; (2) fraud; (3) violations of the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962; (4) civil

conspiracy; (5) violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681,

et seq.; (6) breach of the implied covenant of good faith and fair dealing; and

(7) unjust enrichment. They sought money damages, as well as declaratory and

injunctive relief, and eventually moved to amend their complaint a second time.

The district court denied leave to amend on grounds of futility and dismissed the

action with prejudice for failure to state a claim, see Fed. R. Civ. P. 12(b)(6).

The Jensens now appeal, arguing that they could establish their fraud claim if

allowed to engage in discovery. 2

      “We review de novo a district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(6).” Leverington v. City of Colo. Springs, ___ F.3d ___, 2011

WL 1678070, at *2 (10th Cir. May 5, 2011). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, ‘to state a

1
      We afford the Jensens’ pro se pleadings and materials a liberal
construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
2
       The Jensens’ failure to advance any argument to support their other claims
forfeits appellate review of those claims. See United States v. Yelloweagle,
___ F.3d ___, 2011 WL 1632095, *at 5 (10th Cir. May 2, 2011); see also Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“This
court has repeatedly insisted that pro se parties follow the same rules of procedure
that govern other litigants.” (brackets and quotation omitted)).

                                         -2-
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 1949. Although the complaint need not recite

“detailed factual allegations, . . . the factual allegations must be enough to raise a

right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley

Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009) (quotation omitted).

      The district court determined that the Jensens’ fraud claim was implausible

and failed to satisfy the heightened pleading standard of Federal Rule of Civil

Procedure 9(b). See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party

must state with particularity the circumstances constituting fraud or mistake.”);

see also United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah,

472 F.3d 702, 726–27 (10th Cir. 2006) (stating that Rule 9(b) requires a plaintiff

to “set forth the time, place, and contents of the false representation, the identity

of the party making the false statements and the consequences thereof” (internal

quotation marks omitted)). The court reasoned that the Jensens offered only

“labels and conclusions . . . devoid of factual enhancement,” and “broad, vague,

and conclusory allegations [that failed to] meet the stricter requirements of Rule

9(b).” R., Vol. 1 at 273. We agree with this assessment.




                                          -3-
      The amended complaint generally alleged that “Defendants established a

pattern and practice of harming [the Jensens].” Id. at 44. Among other things,

the Jensens accused defendants of failing to properly credit their mortgage

payments or correctly calculate their interest charges. They also charged

defendants with manipulating their payment history to simulate a default and

denying them an adjustment on their interest rate. Once the Jensens were in

default, the amended complaint says defendants refused to stop foreclosure

proceedings, even after the Jensens paid the amount due. To support their fraud

claim, the Jensens averred that “Defendants individually and/or through [their]

authorized agents” made “false and misleading” statements “prior to and after the

Notice of Default and Election to Sell.” Id. at 48. The alleged misrepresentations

pertained to the extent of the Jensens’ delinquency, their likelihood of completing

a loan modification process, and the time it would take to complete that process.

      As the district court correctly observed, these are “the type of ‘unadorned,

the-defendant-unlawfully-harmed-me accusation[s]’ . . . rejected by the Supreme

Court.” Id. at 272 (quoting Iqbal, 129 S. Ct. at 1949). There are no allegations

identifying the culpable defendants or their incriminating misconduct; nor are

there any facts setting forth “the who, what, when, where and how of the alleged

fraud,” Sikkenga, 472 F.3d at 727. Rather, the Jensens simply speculate that

defendants and/or their agents collectively engaged in various instances of

wrongdoing that eventually culminated in the foreclosure of their home. While

                                        -4-
this might suggest “that some plaintiff could prove some set of facts in support of

the pleaded claims, . . . the complaint must give the court reason to believe that

this plaintiff has a reasonable likelihood of mustering factual support for these

claims.” Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008) (quotation

omitted). As pleaded, the amended complaint “has alleged—but it has not

shown—that the [Jensens are] entitled to relief.” Iqbal, 129 S. Ct. at 1950

(quotations omitted). It follows, then, that the Jensens fail to meet the heightened

pleading standard of Rule 9(b).

      The Jensens do not attempt to bolster the sufficiency of their complaint on

appeal. They refer to no facts to substantiate their allegations of harm and cite no

specifics underlying their claim of fraud. Instead, they maintain their broad

accusations against defendants collectively, and summarily conclude that the

district court erred because it misunderstood the foreclosure process. Though

they insist they could establish their fraud claim with discovery, our pleading

standard “does not unlock the doors of discovery for a plaintiff armed with

nothing more than conclusions.” Iqbal, 129 S. Ct. at 1949. And while we do not

doubt the veracity of the Jensens’ allegations, the broad and conclusory nature of

those allegations preclude us from evaluating the merit of their claim. Simply

put, the Jensens failed to plead their fraud claim with the particularity required to

satisfy our pleading standard, and their appellate brief does not address that

deficiency. Accordingly, having reviewed the record, the parties’ appellate

                                          -5-
materials, and the district court’s well-reasoned order, we AFFIRM the district

court for substantially the same reasons articulated in the court’s order dated

July 8, 2010. 3

                                                    Entered for the Court


                                                    David M. Ebel
                                                    Circuit Judge




3
        To the extent the Jensens appeal the denial of their request to amend on
futility grounds, we perceive no abuse of discretion. See United States ex rel.
Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009).

                                         -6-
