Herbert v. Pena

1Lane v. Simon, 495 F.3d 1182, 1186 (10 th Cir. 2007)(citing Johnson v. Johnson, 466
F.3d 1213, 1214 (10 th Cir. 2006)).
1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: 	RUDY PENA, 	No. 7-08-10889 MA
Debtor.
_____________________________________________________________________________
HOWARD HERBERT,
Plaintiff,
v. 	Adversary No. 08-1077 M
RUDY PENA,
Defendant.
ORDER DENYING MOTION TO DISMISS ADVERSARY PROCEEDING
THIS MATTER is before the Court on the Motion to Dismiss Adversary Proceeding
(“Motion to Dismiss”) filed by the Defendant, Rudy Pena, by and through his attorneys of record
Bill Gordon and Associates (Steve Mazer). 	The Motion to Dismiss states that the Complaint
fails to state a claim upon which relief may be granted and requests the Court dismiss the
Complaint. 	The Motion to Dismiss makes no further argument and cites no authority in support
of Defendant’s contention that the Complaint fails to state a claim upon which relief can be
granted.
In reviewing a motion to dismiss under Rule 12(b)(6), made applicable to bankruptcy
proceedings by Rule 7012, Fed.R.Bankr.P., the Court must accept all well-pleaded facts as true
and construe them in the light most favorable to the non-moving party.1 Under the new standard
Case 08-01077-m Doc 7 Filed 10/09/08 Entered 10/09/08 15:56:56 Page 1 of 4

2Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1974 (stating that “we do not require
heightened fact pleading of specifics, but only enough facts to state a claim to relief that is
plausible on its face” requiring under this standard that plaintiffs “nudge[ ] their claims across
the line from conceivable to plausible[.]”).
3Lane v. Simon, 495 F.3d at 1186 (acknowledging that under Twombly, “the plaintiff
must provide ‘more than labels and conclusions, [or] a formulaic recitation of the elements of a
cause of action.’”)(quoting Twombly, 127 S.Ct. at 1965).
2
enunciated by the Supreme Court in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct.
1955, 1974, 167 L.Ed.2d 929 (2007), the plaintiff’s claim must be “plausible” on its face in order
to survive a motion to dismiss. 2 Under this standard, the Court must “‘determine whether the
complaint sufficiently alleges facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.’” Lane v. Simon, 495 F.3d at 1186 (quoting
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10 th Cir. 2007)).
Plaintiff filed a complaint objecting to the dischargeability of a particular debt on June
23, 2008, asserting that a default judgment Plaintiff obtained against Defendant in state court is
non-dischargeable as a debt arising from fraud, misrepresentation, or false pretenses under 11
U.S.C. § 523(a)(2)(A). 	The complaint does not set forth with particularity the actions
underlying the state court action; nor does the complaint contain even a formulaic recitation of
the required elements for non-dischargeability under 11 U.S.C. § 523(a)(2)(A).3 Instead, the
Plaintiff simply attached to the complaint a copy of the Complaint for Debt and Money Due,
Foreclosure of Chattel Mortgage, Fraud and Misrepresentation (“State Court Complaint”) filed
in the state court action. See Exhibit 1 attached to complaint.
The State Court Complaint contains sufficient allegations to put the Defendant on notice
of the actions upon which Plaintiff bases its claim of non-dischargeability, and, under the
Case 08-01077-m Doc 7 Filed 10/09/08 Entered 10/09/08 15:56:56 Page 2 of 4

4See State Court Complaint, Count III - Fraud and Misrepresentation, which contains the
following specific factual allegations describing the acts upon which Plaintiff bases his claim:
that defendant made certain representations of fact that were untrue concerning proceeds he was
authorized to assign; that the representations were made with the intent to deceive plaintiff and
to induce plaintiff to rely on such representation; that plaintiff relied on defendant’s
representations; and that plaintiff was damaged as a result. 	These allegations, if true, would
support a claim for non-dischargeability under 11 U.S.C. § 523(a)(2)(A), which requires a
showing of the following required elements: 	that a misrepresentation was made; that the
misrepresentation was made with intent to deceive; that the plaintiff relied on the
misrepresentation; and that the misrepresentation caused plaintiff to sustain a loss. Fowler Bros
v. Young (In re Young), 91 F.3d 1367, 1373 (10 th Cir. 1996).
See also, Lane v. Simon, 495 F.3d at 1186 (“‘[s]pecific facts are not necessary; the
statement need only give the defendant fair notice of that the . . . claim is and the grounds upon
which it rests.’”)(quoting Erickson v. Pardus, __ U.S. __, 127 S.Ct. 2197, 2200, 167 L.Ed.2d
1081 (2007)(per curiam)(quotations and citations omitted)).
5Rule 8(a)(2), Fed.R.Civ.P. requires “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Rule 8(a)(2), Fed.R.Civ.P. See also, Twombly, 127 S.Ct. at
1966 (stating that “[t]he need at the pleading stage for allegations plausibly suggesting . . . [the
elements necessary to the claim] reflects Rule 8(a)(2)’s threshold requirement that the ‘plain
statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’”)(quoting Rule
8(a)(2), Fed.R.Civ.P.).
3
standard of Twombly, the allegations in the State Court Complaint, if accepted as true, make
Plaintiff’s entitlement to relief plausible.4 Nevertheless, because the complaint filed in this
adversary proceeding wholly fails to recite any of the underlying actions upon which Plaintiff
bases its claim of non-dischargeability, it fails to satisfy the standards of notice pleading required
under Rule 8, Fed.R.Civ.P., made applicable to bankruptcy proceedings by Rule 7008,
Fed.R.Bankr.P. 5 The Court will, therefore, afford Plaintiff an opportunity to amend its
complaint to recite with greater particularity the underlying basis for its non-dischargeability
claim, and deny the Motion.
WHEREFORE, IT IS HEREBY ORDERED that the Motion to Dismiss is DENIED,
conditioned upon Plaintiff filing an amended complaint stating its claim for non-dischargeability
Case 08-01077-m Doc 7 Filed 10/09/08 Entered 10/09/08 15:56:56 Page 3 of 4

4
with greater particularity within ten days of the date of entry of this Order.
____________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
Date entered on docket: October 9, 2008
COPY TO:
Eric Loman
Attorney for Plaintiff
111 Lomas Blvd. NW, Suite 230
Albuquerque, NM 87102
Steve H. Mazer
Attorney for Defendant
2501 Yale Blvd. SE, Suite 204
Albuquerque, NM 87106
Case 08-01077-m Doc 7 Filed 10/09/08 Entered 10/09/08 15:56:56 Page 4 of 4