Deutsche Bank Trust Co. Americas v. Samora
2013 Colo. App. LEXIS 781
Colo. Ct. App.2013Background
- Samora purchased real property at 4555 W. 38rd Avenue, Denver, in 1997, financing with a note and deed of trust.
- Foreclosure proceedings were started in 2003 after Samora fell behind on payments; it is disputed whether she knew of the action.
- In Oct. 2003–Oct. 2004, Samora pursued refinancings; a series of transfers and misrepresentations culminated in a warranty deed transferring title to Medina/Gonzales and later to Wasia.
- Wasia obtained a $172,000 Saxon Mortgage loan secured by a deed of trust; Wasia’s loan was funded partly to retire Samora’s existing loan.
- In 2005–2006, the fraud scheme unravelled; Samora learned of indictments against Medina, Gonzales, Wasia, and Libby; deeds were quitclaimed back to Samora, but Deutsche Bank filed foreclosure in 2006 and sought to quiet title; a prior Division reversed Deutsche Bank I, leading to this action.
- The trial court held Deutsche Bank was a holder in due course and awarded it foreclosure relief; Samora sought cross-claims against Saxon Mortgage which the trial court dismissed as time-barred; on appeal, the court affirmed, with remand on attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| accrual of cross-claims against Saxon Mortgage | Samora asserts claims accrued in 2006 with foreclosure | Saxon Mortgage argues accrual occurred December 2005 | Accrual in December 2005; claims untimely under 2-year statute |
| equitable tolling applicability | Equitable tolling should apply due to extraordinary circumstances | No extraordinary circumstances; timely filing required | Equitable tolling does not apply |
| relation back/mistaken identity | Cross-claims relate back to 2008 answer; still time-barred | Relation back does not revive time-barred claims | Relation back does not save untimely cross-claims under §18-80-102(1)(a) |
| Fraud in the factum standard for title transfer | Trial court used objective standard; subjective standard should apply | Objective standard appropriate for excusable ignorance | Subjective standard governs fraud in the factum; deed voidable, not void; no reversible error on this point |
Key Cases Cited
- Doyle v. Linn, 37 Colo.App. 214, 547 P.2d 257 (Colo.App.1975) (statute of limitations accrual matters; damage must occur for action to accrue)
- Bly v. Story, 241 P.3d 529 (Colo.2010) (de novo review for failure to state a claim; standard of review)
- Murry v. GuideOne Specialty Mut. Ins. Co., 194 P.3d 489 (Colo.App.2008) (accrual uses facts known, not legal theory; reasonable diligence standard)
- Vitols v. Citizens Banking Co., 10 F.3d 1227 (6th Cir.1993) (close-connectedness doctrine; assignee's status may be defeated by close relationship)
- Gross v. Appelgren, 171 Colo. 7, 467 P.2d 794 (Colo.1970) (close-connectedness doctrine; defenses against payee can affect assignee)