2016 COA 121
Colo. Ct. App.2016Background
- In 2005 Edwards executed a promissory note secured by a deed of trust naming MERS as beneficiary/nominee for Irwin Mortgage; she later defaulted.
- Bank of America (BofA) recorded a notice of election and demand for sale in August 2011 and MERS assigned the note and deed of trust to BofA in September 2011.
- BofA filed a C.R.C.P. 120 motion and obtained authorization to sell; the property sold in February 2012.
- Edwards sued in January 2012 alleging BofA lacked standing to foreclose; the district court initially dismissed and sua sponte granted summary judgment for BofA, which an appellate division reversed and remanded.
- On remand BofA moved for summary judgment attaching the note, deed of trust, assignment, and attorney certification; the district court granted summary judgment and denied Edwards’ motion to reconsider for lack of a timely C.R.C.P. 56(f) affidavit.
- The appellate court affirmed, holding BofA produced sufficient evidence that it was a qualified holder entitled to foreclose and Edwards failed to show a genuine issue of material fact or timely request discovery under C.R.C.P. 56(f).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose | Edwards: BofA was not the holder of the evidence of debt and lacked standing | BofA: Attachments (copy of note, deed, assignment, attorney certification) show it was a qualified holder entitled to foreclose | Affirmed: Documents satisfied statutory requirements; BofA had standing |
| Use of copies instead of originals to foreclose | Edwards: Foreclosure required original instruments | BofA: Colorado law allows a holder to foreclose with copies plus attorney certification under § 38-38-101 | Affirmed: Statute permits foreclosure with copies and certification |
| Adequacy/self-authentication of evidentiary attachments on summary judgment | Edwards: Attachments insufficient to establish facts for summary judgment | BofA: Documents are self-authenticating/judicially noticeable and create no genuine issue | Affirmed: Court found documents sufficient and no material factual dispute |
| Denial of reconsideration for lack of discovery (C.R.C.P. 56(f)) | Edwards: Summary judgment premature; needed discovery | BofA: Edwards did not file a 56(f) affidavit before the ruling | Affirmed: Edwards failed to file timely 56(f) affidavit; denial not an abuse of discretion |
Key Cases Cited
- Bailey v. Lincoln Gen. Ins. Co., 255 P.3d 1039 (Colo. 2011) (summary judgment standard)
- Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987) (moving party’s burden on summary judgment)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (nonmovant must show more than metaphysical doubt)
- Brodeur v. Am. Home Assurance Co., 169 P.3d 139 (Colo. 2007) (benefit of favorable inferences to nonmoving party)
- Rocky Mountain Festivals, Inc. v. Parsons Corp., 242 P.3d 1067 (Colo. App. 2010) (de novo review of summary judgment)
- McDonald v. OneWest Bank, F.S.B., 680 F.3d 1264 (10th Cir. 2012) (person entitled to enforce may be a holder under Colorado law)
- Miller v. Deutsche Bank Nat’l Tr. Co. (In re Miller), 666 F.3d 1255 (10th Cir. 2012) (holder may foreclose under Colo. statute with copies)
- Sundheim v. Bd. of Cty. Comm’rs, 904 P.2d 1337 (Colo. App. 1995) (need for timely C.R.C.P. 56(f) affidavit), aff’d, 926 P.2d 545 (Colo. 1996)
- Foster v. Redd, 128 P.3d 316 (Colo. App. 2005) (failure to file 56(f) affidavit forecloses discovery-based challenge)
- Keybank, Nat’l Ass’n v. Mascarenas, 17 P.3d 209 (Colo. App. 2000) (abuse of discretion standard for discovery rulings)