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Warner v. Bank of America, N.A.

United States District Court, D. Colorado

October 25, 2011

RONALD M. WARNER, an individual; and BARBARA WARNER, an individual PLAINTIFFS.
v.
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

          Filed: December 15, 2011.

         COUNSEL:

          For Bank Defendants: Mark C. Willis and Kelly S. Kilgore.

          For Law Firm/Individual Defendants: Michael P. Medved and Heather L. Deere.

          JUDGES: Andrew R. Macdonald, District Court Judge.

          OPINION

          Andrew R. Macdonald, District Court Judge

         ORDER RE: DEFENDANTS' MOTIONS FOR MORE DEFINITIVE STATEMENT, DEFENDANTS' MOTIONS TO STRIKE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT, AND PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

         This 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.

         I. BACKGROUND

         This 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.

         II. STANDARD OF REVIEW

         A. Complaint

         C.R.C.P. 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 "[a]ll ...


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