United States District Court, D. Colorado
RONALD M. WARNER, an individual; and BARBARA WARNER, an individual PLAINTIFFS.
BANK OF AMERICA, N.A.; BANK OF AMERICA, N.A., as successor by merger to LaSalle Bank, N.A., as trustee for Washington Mutual Mortgage Pass-Through Certificates Series 2007-OA4-Trust; CHASE; J.P. MORGAN CHASE BANK, N.A.; J.P. MORGAN CHASE & CO.; WASHINGTON MUTUAL BANK F.K.A.; LAW OFFICE OF MICHAEL P. MEDVED, P.C.; MICHAEL P. MEDVED, an individual; and HEATHER L. DEERE, an individual DEFENDANTS
December 15, 2011.
Bank Defendants: Mark C. Willis and Kelly S. Kilgore.
Law Firm/Individual Defendants: Michael P. Medved and Heather
JUDGES: Andrew R. Macdonald, District Court Judge.
R. Macdonald, District Court Judge
RE: DEFENDANTS' MOTIONS FOR MORE DEFINITIVE STATEMENT,
DEFENDANTS' MOTIONS TO STRIKE PLAINTIFFS' MOTION FOR
PARTIAL SUMMARY JUDGMENT, AND PLAINTIFFS' MOTION FOR
PARTIAL SUMMARY JUDGMENT
Matter comes before the Court on Defendants' Motions for
More Definitive Statement, Defendants' Motions to Strike
Plaintiffs' Motion for Partial Summary Judgment, and
Plaintiffs' Motion for Partial Summary Judgment.
action arises out of a dispute related to the foreclosure of
the property known as 4227 N. 119th St., Lafayette, CO 80026
(the "Property"). The Warners (Plaintiffs)
previously lived on the Property and the Defendant Banks (at
different points in time) held a promissory note on the
Property. The first action involving these parties (09CV2336)
was filed on June 12, 2009. The Law Office of Michael P.
Medved represented the Bank Defendants in the 2009 action and
alleged that the Warners had defaulted on the promissory
note. In that action, the Court issued an Order Approving
Sale of the Property on September 22, 2010. The Warners then
filed this action (11CV342) as Plaintiffs on April 4, 2011.
The essence of the claims in this action appears to be that
the Banks committed fraud or some other wrongful conduct that
entitles the Warners to both damages and title to the
property. The Law Office of Michael P. Medved, Michael P.
Medved, and Heather L. Deere were named as defendants in
addition to the Banks ("Law Firm/Individual
Defendants"). The Bank Defendants filed this Motion for
More Definitive Statement on May 18, 2011. The Law
Firm/Individual Defendants moved to join the Motion on May
27, 2011 and the Court approved the joinder on July 7, 2011.
Plaintiffs also filed a Motion for Partial Summary Judgment
on May 25, 2011. Both groups of Defendants filed a Motion to
Strike Plaintiffs' Motion for Partial Summary Judgment.
STANDARD OF REVIEW
12(e) allows a party to "file a motion ... for a more
definite statement of any matter which is not averred with
sufficient definiteness or particularity to enable him
properly to prepare his responsive pleading." However,
Courts should not require expansion of the pleadings through
Rule 12(e) when discovery is the proper method for obtaining
information. Morgan v. Brinkhoff,145 Colo. 78, 358
P.2d 43, 44 (Colo. 1960). Some averments, including fraud,
must be "stated with particularity" pursuant to
C.R.C.P. 9(b). A Plaintiff should at least state the main
facts constituting the fraud. Fidelity Fin. Co. v.
Groff,124 Colo. 223, 235 P.2d 994, 996 (Colo. 1951);
State Farm Mut. Auto. Ins. Co. v. Parrish, 899 P.2d
285, 289 (Colo. App. 1994). C.R.C.P. 10(b) requires that