UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

GENE A. SPREITZER, Plaintiff - Appellant,

v. DEUTSCHE BANK NATIONAL 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. No. 14-8023 (D.C. No. 1:12-CV-00206-ABJ) (D. Wyo.)

ORDER AND JUDGMENT *

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 21, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - Before MORITZ , PORFILIO , and BALDOCK , Circuit Judges.
Gene Spreitzer appeals from the distri ct court’s order di smissing his amended complaint with prejudice and denying his motion for leave to further amend his complaint. Exercising ju risdiction 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, Amerique st 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 se nding Spreitzer foreclosure noti ces, initially through attorney James H. Woodall and later th rough Homeward Residential, Inc. (Homeward), which acted as servicer of the loan for Deutsche Bank. Spreitzer responded by fili ng the action underlying this appeal. After several defendants moved to dismiss his initial pr o se complaint, he filed an amended complaint (Amended Complaint), also pro se. In the Ame nded Complaint, he alleged Ameriquest’s indorsement of the Note “without recour se” was an acknowledgement that it had received full payment on the loan, extinguish ed his obligation under the Note, and required Ameriquest to release the Mortgage . He also alleged the- 3 - assignment to Deutsche Bank was a sham. He asserted claims under the Fair Debt Collection Practices Act (FDCPA) and th e Racketeer Influenced and Corrupt Organizations Act (RICO), and he sought to quiet title to the property subject to the mortgage. Defendants filed mo tions to dismiss the Amende d Complaint, and briefing on those motions was complete d by January 2013. In May 2013, an attorney entered an appearance on Spreitzer’s behalf. In mid-December 2013, the district cour t granted the motion to dismiss the initial complaint filed by Campbell County Abstract Company and its president, Barbara S. Redder (Campbell de fendants), and denied as m oot four other motions to dismiss the initial complaint. In late January 2014, Spreitzer’s counsel filed a “Motion for Leave to File Second Amende d Complaint” (motion to amend) and attached a proposed Second Amended Co mplaint. 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 Complain t with prejudice, and denied the motion to amend. This counseled appeal followed. DISCUSSION Because Spreitzer proceeds on appeal only against De utsche Bank and Homeward (together, the Bank Defendants), w ho jointly moved to dismiss, our focus is on the district court’s resolution of the claims against th em. We review a Rule 12(b)(6) dismissal de novo. Colo. Envtl. Coal. v. Wenker , 353 F.3d 1221, 1227- 4 - (10th Cir. 2004). We construe Spreitzer’s pr o se filings in the di strict 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 l eave to amend. The court reasoned that counsel had de layed too long (nearly nine months) after entering his appearance, that his need to review prior filings was insu fficient justification for the delay, and that although Spreitzer’s counsel suggested “special counsel” prepared the Second Amended Complaint, no othe r 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 conc luded that granting the motion to amend would substantially prejudice the Bank Defenda nts, would prejudice resolution of the case, and would be c ontrary to justice. Because the district court did not de ny 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 th e 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).- 5 - 1012 (10th Cir. 2014). Rule 15(a)(2) of th e 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 Ci r. 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 di smiss the Amended Comp laint. He claims his counsel waited to seek l eave to file the second amende d complaint until after the district court ruled on the pe nding motions to dismiss “s o that the proposed Second Amended Complaint,” which was the first pleading file d 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 l eave 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 serv ed to exacerbate Spre itzer’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 drafte d the proposed Second Ame nded Complaint, Doc. 136- 6 - at 1, Spreitzer stated in a supportive reply that “the initial wo rk by special counsel involved months of factual a nd legal research,” Aplt. App. at 244. Yet during all those “months” Spreitzer’s c ounsel of record took no ac tion in the district court despite being on notice that the court coul d rule on the motions to dismiss at any time. Second, in the district court, Spreitzer did not argue strategi c reasons justified his delay, and he has not argued plain error here. T hus, he has forfeited our consideration of that argument. See Richison v. Ernest Group, Inc. , 634 F.3d 1123, 1127-31 (10th Cir. 2011) (declin ing 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 genera lly do not consider new theories on appeal—even those that fall under the sa me 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 dismis s. 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 dismissa l of the claims against the Campbell Defendants provide Spreitzer an y guidance. The court dismissed the claims against those defenda nts (a title company and one of its employees) because Spreitzer failed to allege a ny facts showing their involve ment with the foreclosure efforts or any alleged extortion or mail fra ud. 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.- 7 - 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 abus e its discretion in denying the motion to amend, Spreitzer’s pro se Amended Comp laint remains the controlling pleading. Therefore, we base the followi ng review of the district cour t’s denial of his motion to dismiss on the facts alleged in that plea ding, disregarding those portions of the factual statement and argument in Spreit zer’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 fa iled because the Bank Defendants are not “debt collectors” w ithin the meaning of the FDCPA. In relevant part, the term “d ebt collector” excludes “any pe rson collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . (iii) concer ns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C. § 169 2a(6)(F). Applying that provision, the district court determined that, under Wyomi ng law, the application of which no party challenges, Ameriquest’s indorsement of the Note “without recourse” did not mean- 8 - that the note was paid off or that Spreitz er no longer was obligated under it, as he argued. Instead, such an indorsement di sclaims the indorser’s liability, and if the instrument is dishonored, th e indorser is not obligated to pay the amount due on it.
See Wyo. Stat. Ann. § 34.1-3-415( a), (b). Based on this an alysis, the district court concluded Spreitzer failed to advance plausible allegations that he was not obligated under the Note when it was assi gned 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). Bu t 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 200 3) of the securitized trus t into which the Note and Mortgage were placed (and of which Deut sche Bank was the trustee), and therefore was in violation of a rela ted pooling and service agreem ent (PSA). Applying the Iqbal 3 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 c ourt therefore concluded, as have other courts to consider the issue, that Sp reitzer 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 ot her courts have reached a di fferent conclusion. But we

3 Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009).- 9 - need not resolve this issue because we can affirm on anot her 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 Ba nk Defendants argue, as they did below, that a valid assignment was not necessary for them to ha ve obtained the Note at a time when it was not in default. 4 We agree. When a negotiable in strument is indorsed in blank, it is “payable to bearer.” W yo. 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 holde r 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 assignm ent thereof unless it is agreed otherwise.” Bradburn v. Wyo. Tr ust Co. of Casper , 63 P.2d 792, 79 7 (Wyo. 1936). Spreitzer admitted in hi s Amended Complaint that Ameriquest indorsed the Note “in blank without recourse . . . by th e 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 th e relevant point in time for the inquiry, not, as Spreitzer suggests , the time when foreclosur e proceedings commence, see Reply at 6. Accordingly, the Amended Co mplaint contains no plausible allegations

4 Because the Bank Defendants raised this ground in the district court and again on appeal, Spreitzer has had an ade quate opportunity to address it. See Bixler , 596 F.3d at 760.- 10 - that the Bank Defendants obtained the Note while it was in defau lt – 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 cl aims, one for extortion and one for mail fraud. In his extortion claim, he allege d 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 en forceable security interest granting Defendants any present ri ght 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 fo rce, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). The dist rict court dismissed

5 Spreitzer also argues that, because onl y a motion to dismiss was at issue, the district court erred in disc ussing the facts he was require d to “prove” and in relying on a case decided at summary judgment. But contrary to Spreitzer’s suggestion, the district court did not con duct improper fact-finding at the Rule 12(b)(6) stage or wrongfully construe inferen ces against him. Instead, the court si mply reviewed the facts Spreitzer would be required to prove in order to prevail on his FDCPA claim in determining whether he allege d facts giving rise to a pl ausible claim for relief under Iqbal , then determined the facts he alleged we re legally insufficient. We also reject Spreitzer’s assertion that th e district court converted th e motion to dismiss into one for summary judgment without providing hi m notice and an oppo rtunity 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.- 11 - the extortion claim because the Bank Defendants were priv ate 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 allegi ng the Bank Defendants were threatening to seize his home, he adequately (if inartfully) pl ed the alternative “wrongful use of actual or threatened force” iteration of exto rtion under § 1951(b)(2). But even if we accept his claim that his pleading adequate ly alerted the district court to an alternative basis for his argument, his claim fails be cause, as explained in our analysis of his FDCPA claims, the Bank De fendants’ foreclosur e efforts were not “wrongful.” A predicate RICO mail-fraud claim under 18 U.S.C. § 1341 involves “use of the United States mails” to ex ecute a scheme “to defraud or obtain money or property by false pretenses, represen tations or promises.” Tal v. Hogan , 453 F.3d 1244, 1263 (10th Cir. 2006). A plaintif f 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 sp ecify the allegedly false repr esentation sent by mail but the court assumed it was the representation that the Note, Mortgage, and assignment were valid and gave the Ba nk Defendants the right to fo reclose. Based on that assumption, the district c ourt concluded that Spreitzer’s allegation that the Bank Defendants made a “false” re presentation failed becaus e it was premised on his- 12 - “misguided belief that [indorse ment] ‘without recourse’ re presents a satisfaction of the debt.” Aplt. App. at 279. The court also held Spreitz er failed to plead fraud with the particularity re quired by Rule 9(b). On appeal, Spreitzer argues the district court erred in assuming that the Bank Defendants’ allegedly false representation concerned thei r 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 Defenda nts’ title rather than the strength of his own. See Kirby Royalties, In c. v. Texaco, Inc. , 458 P.2d 101, 106 (Wyo. 1969) (explaining the “plaintiff in a quiet title action[] has th e burden of proof and must stand on the strength of its own title and not th e 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 la w, the district court held that “[i]t is [Spreitzer’s ] default that clouds his t itle.” Aplt. App. at 280. Spreitzer argues he sufficiently pled a cause of action to quiet title under Wyoming law, that the district court’s refe rence to his burden of proof shows that the- 13 - 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 proper ly considered Spreitzer’s burden of proof in determini ng whether his allegations set forth a plausible claim for relief, and in doing the court so did not convert the moti on to dismiss into one for summary judgment. The district court re lied on a case applying Utah law only for a general legal principle and th at case was not, in any event, dispositive of Spreitzer’s quite-title claim. Instead, Spreitzer predicated th at claim wholly on his legally incorrect allegation that Ameriquest’s “wit hout recourse” indorsement of the Note “render[ed the] ‘Mortgage’ a nullity” a nd 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 dist rict court is affirmed.

Entered for the Court
Nancy L. Moritz Circuit Judge