Niederquell v. Bank of America N.A.
696 F. App'x 321
| 10th Cir. | 2017Background
- Plaintiffs refinanced in 2005 with a deed of trust and a promissory note indorsed in blank; they defaulted in 2009.
- Bank of New York Mellon (BNYM) initiated foreclosure proceedings in 2011 and obtained a Colorado Rule 120 order authorizing sale; the sale did not occur and the order was later dismissed.
- Plaintiffs sued BNYM and Bank of America (loan servicer), later adding the county public trustee, a FDCPA claim against Bank of America, and Ditech (successor servicer) as defendants; defendants removed to federal court.
- Defendants moved for summary judgment and later supplemented the record with the originally executed promissory note, produced in court by Ditech’s counsel; the district judge inspected and found the note authentic, denying Plaintiffs’ request for forensic analysis.
- The district court granted summary judgment for defendants on remaining claims: dismissed claims against public trustee and to void the Rule 120 order (not appealed), granted Ditech’s motion, rejected Plaintiffs’ challenge to the banks’ lien because BNYM possessed the original note, and dismissed FDCPA claims.
- Plaintiffs appealed only the issue whether BNYM holds a valid lien (i.e., whether it holds the promissory note); the Tenth Circuit affirmed, concluding Plaintiffs offered only speculation and no admissible evidence to create a genuine dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BNYM holds the promissory note (and thus a valid lien) | Plaintiffs argued defendants failed to produce the original note in discovery and therefore cannot prove they hold the note | Defendants produced the original note in court and provided testimony that BNYM possessed the note; the note is self-authenticating under commercial paper rules | Affirmed: BNYM is holder of the note; Plaintiffs offered only speculation and no admissible evidence to create a genuine issue of fact |
| Admissibility of the late-produced original promissory note at summary judgment | Plaintiffs argued the original was untimely and unauthenticated | Defendants argued district court properly admitted the note after in-court inspection and under Federal Rule of Evidence principles for commercial paper | Affirmed: district court did not abuse discretion in admitting the note; inspection supported authenticity |
| Whether Plaintiffs were entitled to forensic examination of the note | Plaintiffs requested forensic testing to challenge authenticity | Defendants argued the note’s appearance and testimony did not raise reasonable suspicion warranting further testing | Affirmed: district court permissibly denied forensic testing as speculative |
| Whether defendants are "debt collectors" under the FDCPA | Plaintiffs alleged Bank of America/Ditech were debt collectors | Defendants argued they acquired/serviced the loan before default and thus are not debt collectors under FDCPA | Affirmed: FDCPA claims dismissed (not argued on appeal) |
Key Cases Cited
- Bird v. W. Valley City, 832 F.3d 1188 (10th Cir. 2016) (summary judgment standard and nonmovant cannot rest on speculation)
- Patel v. Hall, 849 F.3d 970 (10th Cir. 2017) (summary judgment when nonmovant bears persuasion and lacks evidence for essential element)
- Jones v. Barnhart, 349 F.3d 1260 (10th Cir. 2003) (abuse-of-discretion standard for evidentiary rulings at summary judgment)
- United States v. Willis, 826 F.3d 1265 (10th Cir. 2016) (definition of abuse of discretion review)
- Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) (issues omitted from opening brief generally forfeited on appeal)