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

                             FOR THE TENTH CIRCUIT                          April 3, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 ERIC M. MUATHE,

       Plaintiff - Appellant,

 v.                                                         No. 19-3055
                                                 (D.C. No. 2:18-CV-02064-CM-TJJ)
 WELLS FARGO BANK, NA; MATT R.                                (D. Kan.)
 HUBBARD; JEHAN K. MOORE;
 MICHAEL L. ABRAMS; LATHROP
 GAGE, LLP,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

      Eric Muathe brought this action claiming the defendants violated the Real

Estate Settlement Procedures Act (RESPA) and the Fair Debt Collection Practices

Act (FDCPA) in connection with his application for a loan modification. The district

court dismissed his amended complaint for failure to state a claim. He appeals pro se

from the dismissal. We affirm.


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                             BACKGROUND

Muathe relies on the district court’s factual summary, which reads as follows:

       Plaintiff is a defendant in a pending foreclosure action in the District
Court of Crawford County, Kansas. On August 11, 2014, Wilmington
Trust, N.A., as the current holder of plaintiff’s mortgage, filed the Petition
for Foreclosure of Mortgage. The petition alleges plaintiff failed to pay
amounts due.
       On July 11, 2016, plaintiff filed a Second Amended Answer and
Counterclaim in the foreclosure action. Attorneys from defendant Lathrop
Gage, LLP entered their appearance in the foreclosure action on behalf of
Wilmington Trust. Defendants Jehan K. Moore and Michael L. Abrams,
partners at Lathrop Gage, currently represent Wilmington Trust in the
foreclosure action against plaintiff. Defendant Matt R. Hubbard was
formerly a partner with Lathrop Gage and formerly represented Wilmington
Trust in the foreclosure action.
        In exhibits attached to plaintiff’s amended complaint, it appears that
around October 2016, plaintiff began communicating with defendant
Hubbard regarding settlement options in the foreclosure action. After
Hubbard confirmed that Wilmington Trust authorized him to communicate
with plaintiff regarding settlement offers, plaintiff sent Hubbard a
settlement offer, and Hubbard agreed to confer with his client. In March
2017, Hubbard informed plaintiff that Wilmington Trust declined his offer
of settlement. Litigation continued in the foreclosure action throughout
2017.
        In September 2017, defendant Moore emailed plaintiff to inform him
that she was taking over the matter from Hubbard. She forwarded two
letters from defendant Wells Fargo regarding plaintiff’s request for
mortgage assistance and requested plaintiff send any documentation and
correspondence regarding the case to her attention. Wells Fargo is the loan
servicer for plaintiff’s mortgage. As the loan servicer, Wells Fargo
performs services in connection with the mortgage loan on behalf of the
owner of plaintiff’s loan, including collecting loan payments, processing
applications for loan modification, and commencing and managing
foreclosure proceedings. Between September and December 2017, plaintiff
and Moore communicated about documentation needed for plaintiff’s
requested loan modification. On December 19, 2017, Moore emailed
plaintiff with the outstanding documentation needed for his request for
mortgage assistance. She informed plaintiff that if the documents were not
received by December 26, 2017, his request could not be completed.

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       Plaintiff responded to Moore’s email and inquired as to who was requesting
       the information. Plaintiff expressed his concerns that the requests were not
       coming directly from Wells Fargo, the loan servicer, and “objected” to
       Moore’s involvement as a “conduit for communications with the servicer.”
       Moore responded that Wells Fargo was requesting the information, and that
       as Wells Fargo’s attorney, she was acting on behalf of them to collect the
       documentation. Moore followed up with plaintiff on January 3, 2018
       regarding the outstanding documentation, and on January 20, 2018, a Home
       Preservation Specialist with Wells Fargo sent plaintiff a letter informing
       him that they were unable to offer any mortgage assistance options because
       of the incomplete application.
               After filing unsuccessful complaints with the Consumer Financial
       Protection Bureau and the Kansas Office of the Disciplinary Administrator,
       plaintiff filed this pro se action on February 9, 2018 alleging misconduct in
       connection with his application for a loan modification.
R. at 284-86 (brackets, citation, and some internal quotation marks omitted).

                                       ANALYSIS

       We review de novo the district court’s dismissal under Fed. R. Civ. P. 12(b)(6)

for failure to state a claim. Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 520

(10th Cir. 2013). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim for relief that is plausible

on its face.” Id. (internal quotation marks omitted). “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 521 (internal

quotation marks omitted). Because Muathe proceeds pro se, we liberally construe his

complaint and other filings, but we will not act as his advocate. See James v. Wadas,

724 F.3d 1312, 1315 (10th Cir. 2013).




                                                 3
      I. Matters Outside the Pleadings

      The defendants attached documents outside the pleadings to their motion to

dismiss. In his opposition to the motion, Muathe argued the court was required either

to ignore those documents or to treat the motion as one for summary judgment under

Fed. R. Civ. P. 56 and to give him a “reasonable opportunity to present all material

made pertinent to [the] motion by Rule 56.” R. at 253 (citing Fed. R. Civ. P. 12(d)).

When the district court dismissed his complaint, it expressly declined to consider the

attached documents:

      [I]n his response to the motion to dismiss, plaintiff objected to the inclusion
      of various documents defendants attached to their motion. The court did
      not consider these documents when reaching its decision, but would
      mention that ordinarily a court may take judicial notice of its own files and
      records, proceedings in other courts, and facts which are a matter of public
      record.
R. at 293 (emphasis added).

      On appeal Muathe simply reiterates word-for-word the argument he made to

the district court concerning this issue before it ruled on the motion to dismiss.

Compare Aplt. Opening Br. at 2-3, with R. at 253-54. He does not acknowledge or

refute the district court’s statement that it did not consider the documents in reaching

its decision. He has therefore waived any argument on this point. See Reedy v.

Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (if the appellant’s opening brief does

not challenge the district court’s reasoning on a point, we need not address the

argument).




                                                4
      II. Reasonable Time to Complete Application

       “A loss mitigation application is . . . a request by a borrower for any of a

number of alternatives to foreclosure, known as loss mitigation options, including,

among others, modification of the mortgage.” Lage v. Ocwen Loan Servicing LLC,

839 F.3d 1003, 1006 (11th Cir. 2016) (per curiam). The loan servicer’s review of

such applications, including incomplete applications, is governed by the RESPA

Mortgage Servicing Rules in Regulation X. See 12 C.F.R. § 1024.41 (2017).

Muathe argues that the defendants violated RESPA by failing to provide him with a

reasonable amount of time to complete his loss mitigation application and by failing

to provide him with a final response deadline date for the documentation.

      Under the loss mitigation procedures, if the application is incomplete, the

servicer must notify the borrower concerning the additional documents required and

the date for submitting them. Id. § 1024.41(b)(2)(i)(B). This date must be

“reasonable.” Id. § 1024.41(b)(2)(ii). The Consumer Financial Protection Bureau’s

(CFPB) Official Staff Commentary on Regulation X (Commentary) concerning

§ 1024.41(b)(2)(ii) notes that “[t]hirty days is generally reasonable.” 12 CFR 1024,

suppl. I, § 41(b)(2)(ii) (Apr. 19, 2018), cmt. 1.1 In addition, the Commentary



      1
         Muathe also cites comment 2, which requires that the deadline be no later
than certain milestones. These milestones shorten the available deadline for
submitting documents to complete an application. Some of them are tied to the date
of a foreclosure sale, and Muathe points out that the sale has been stayed in his case.
But comment 2 is based on “the earliest of” the milestone dates, one of which is not
directly related to a foreclosure sale date: a date 120 days after the borrower’s
delinquency. Id. Muathe fails to show that comment 2 supports his RESPA claim.
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provides that a reasonable date “must never be less than seven days from the date on

which the servicer provides the written notice.” Id. cmt. 3.

      We agree with the district court that Wells Fargo provided Muathe with a

reasonable amount of time to complete his application and did not deny his

application without providing him with a final submission deadline. Given the

considerable previous delays in receiving the documentation to support Muathe’s

application, the initial seven-day deadline was reasonable, particularly given that

when Muathe failed to meet that deadline, Wells Fargo gave him additional time and

he still failed to comply. Moreover, Wells Fargo did not affirmatively deny the

application, but “simply informed [him] it could not offer him any mortgage

assistance options because he had not submitted all the required documentation.”

R. at 290. Accordingly, the district court properly dismissed this RESPA claim.

      Muathe also argued in district court that the defendants should have offered

him a loss mitigation option based on his incomplete application. To the extent he

renews this argument on appeal, we agree with the district court that under the

regulations a servicer has discretion to evaluate an incomplete application but is not

required to do so. See 12 C.F.R. § 1024.41(c)(2)(ii). Muathe fails to show that

Wells Fargo’s failure to exercise its discretion in his favor gave rise to a cause of

action under RESPA.

      III. Timely Loss Mitigation/Continuity of Contact

      Muathe next claims he was “repeatedly denied immediate loss mitigation

options when [he] requested them through Defendant Hubbard” and was “denied

                                               6
direct access to Wells Fargo,” the servicer of his loan. Aplt. Opening Br. at 5.

Similarly, he asserts that Wells Fargo failed to assign him personnel that could

provide “[c]ontinuity of contact,” including assistance with available loss mitigation

options. Id. (internal quotation marks omitted). To the extent these claims rely on

the servicing obligations described in 12 C.F.R. § 1024.40, Muathe fails to challenge

the district court’s conclusion that there is no private cause of action to enforce

§ 1024.40. See, e.g., Schmidt v. PennyMac Loan Servs., LLC, 106 F. Supp. 3d 859,

862, 867-71 (E.D. Mich. 2015) (adopting magistrate judge’s report and

recommendation that analyzed legislative and regulatory history and concluded

§ 1024.40 does not create a private cause of action). Nor does Muathe explain how

12 C.F.R. § 1024.38, which concerns mortgage servicing requirements, creates such a

private right of action.

       Muathe further complains that although he requested a loss mitigation package

from Hubbard as far back as October 17, 2016, see R. at 143, his requests went

unanswered until nearly a year later, when defendant Moore began working with him

to pursue loan modification. He contends that this delay violated Wells Fargo’s

obligations to provide him with timely assistance with loan modification. But as the

documents attached to Muathe’s amended complaint reveal, his correspondence with

Hubbard concerned the possibility of settling the foreclosure action, not a loss

mitigation package. And, although Muathe said in his communications regarding

settlement that he was “willing to consider a reworked loan agreement,” id. at 150

(internal quotation marks omitted), there is no indication he requested a loss

                                               7
mitigation package from or attempted to submit a loss mitigation application through

Hubbard, see id. at 127, 129-30, 147-52; see also Commentary, 12 CFR 1024, suppl.

I, § 41(b)(1), cmt. 3 (providing examples of inquiries that are not applications for

loss mitigation).2 Under these circumstances, Muathe has failed to plead facts that

plausibly show the defendants violated RESPA through their alleged failure to assist

him in pursuing loan modification during settlement negotiations through Hubbard.

      IV. Alleged Factual Errors

      Finally, Muathe mentions several alleged factual and legal errors in the district

court’s decision. See Aplt. Opening Br. at 6-7. For each alleged error he supplies a

single sentence stating that the district court erred. He then provides the page and

paragraph numbers of the challenged ruling. These contentions, to the extent

intended as freestanding arguments, are insufficiently developed for appellate

consideration, and we therefore decline to address them. See Bronson v. Swensen,

500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider




      2
         The thread on Muathe’s March 3, 2017 email to Hubbard regarding
settlement referred to his previous alleged request for “direct access to someone on
[Wells Fargo’s] end who would discuss settlement/loss mitigation options” and noted
that unspecified “[f]ederal laws[] and regulations[] require[] [sic] you and [Wells
Fargo] to act differently, and promptly.” R. at 150. But there is no indication in the
portions of the record Muathe cites that his prior discussions with Hubbard had
involved “loss mitigation options” as opposed to settlement. Hubbard responded that
he had communicated Muathe’s offer of settlement to Wells Fargo and that the bank
had declined the offer and was moving forward with the foreclosure case. Taken in
context, Muathe’s equivocal statements to Hubbard cannot be considered an
application for loss mitigation under RESPA.
                                               8
arguments that are not raised, or are inadequately presented, in an appellant’s

opening brief.”).

                                   CONCLUSION

      We affirm the district court’s dismissal. Muathe’s application to proceed in

forma pauperis is granted.


                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




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