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Brumfiel v. U.S. Bank

United States District Court, D. Colorado

September 5, 2014

U.S. BANK, LARRY CASTLE, in his individual and corporate capacities, CASTLE STAWIARSKI, LLC, ROBERT J. HOPP, in his individual and corporate capacities, CYNTHIA MARES, Public Trustee in her official capacity, MERS, a division of MERSCorp, and DOES 1-100, Defendants.


WILLIAM J. MARTÍNEZ, District Judge.

This matter is before the Court on pro se Plaintiff Lisa Kay Brumfiel's Motion for Relief from Judgment or Order and Request for Expedited Hearing ("Rule 60(b) Motion"). (ECF No. 225.) Plaintiff asks the Court for relief from the judgment pursuant to Federal Rule of Civil Procedure 60(b)(2) on the basis of newly discovered evidence. ( Id. ) For the following reasons, Plaintiff's Rule 60(b) Motion is denied.


On October 12, 2012, Plaintiff brought this action alleging procedural defects in the foreclosure process under Colorado Rule of Civil Procedure 120 and Colorado Revised Statute § 38-38-101, as well as common law tort claims and constitutional claims. (ECF No. 1.) Plaintiff amended her Complaint on March 22, 2013 to add new defendants. (ECF No. 45.) In April and May of 2013, the various Defendants filed four Motions to Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (ECF Nos. 51, 69, 90 & 91.) On October 2, 2013, the Court issued an Order granting the Motions to Dismiss pursuant to Rule 12(b)(1) ("Dismissal Order"), holding that Plaintiff lacked standing to assert her claims for monetary damages, and that Plaintiff's claims for injunctive relief were moot. (ECF No. 200.) A Final Judgment against Plaintiff was entered on October 4, 2013. (ECF No. 203.)

On October 7, 2013, Plaintiff a Motion to Alter and Amend the Judgment pursuant to Federal Rule of Civil Procedure 59(e). (ECF No. 205.) On October 16, 2013, Plaintiff filed an Emergency Motion for a Limited Evidentiary Hearing on the 12(b)(1) Jurisdictional Issue, in which she requested reconsideration of the Dismissal Order. (ECF No. 207). On October 17, 2013, the Court construed Plaintif f's Emergency Motion as a duplicate motion for Rule 59(e) relief, and thus denied the Emergency Motion. (ECF No. 208.) On August 14, 2014, the Court denied Plaintiff's Motion to Alter and Amend the Judgment. (ECF No. 224.)

On August 25, 2014, Plaintiff filed the instant Rule 60(b) Motion. (ECF No. 225.) The Court directed Defendants to file any responses on or before September 3, 2014, and ordered that no reply from Plaintiff would be accepted. (ECF No. 227.) Before Defendants' Responses were filed, Plaintiff filed an " Ex Parte Emergency Motion for Order to Extend or Renew Preliminary Injunction or In the Alternative Issue a New TRO" ("Emergency Motion") in which she seeks to enjoin the foreclosure sale of the property that is the subject of this action. (ECF No. 229.) Given the pending Rule 60(b) Motion, the Court ordered that it would not rule on the Emergency Motion until after Defendants' deadline to respond to the Rule 60(b) Motion had elapsed. (ECF No. 232). Defendants' Responses were timely filed on September 2 and 3, 2014.[1] (ECF Nos. 234, 235, 236, 238.) The Rule 60(b) Motion is now ripe for disposition.


Rule 60(b) permits a Court to grant relief from a final judgment or order for specified reasons, including "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b), " "fraud..., misrepresentation, or misconduct by an opposing party, " or "the judgment is void." Fed.R.Civ.P. 60(b)(2), (3), (4). "Rule 60(b) relief is extraordinary and may only be granted in exceptional circumstances.' Parties seeking relief under Rule 60(b) have a higher hurdle to overcome because such a motion is not a substitute for an appeal.'" Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (quoting Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Cummings v. Gen. Motors Corp., 365 F.3d 944, 955 (10th Cir. 2004)) (internal citations omitted). Such motions "are inappropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion." Servants of Paraclete, 204 F.3d at 1012. Thus, "[i]t is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing." Id. (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)). Whether to grant a Rule 60(b) motion rests within the trial court's discretion. See Beugler v. Burlington N. & Santa Fe Ry. Co., 490 F.3d 1224, 1229 (10th Cir. 2007).

Plaintiff's Rule 60(b) Motion raises three arguments that relief from judgment is warranted here: (1) Plaintiff has newly discovered evidence of forgery and fraud by Defendants; (2) Plaintiff has negotiated with the bankruptcy trustee and has obtained standing to bring the claims for monetary damages that are part of the bankruptcy estate; and (3) Defendants U.S. Bank, Castle Law Group, and their counsel have committed fraud on the court. (ECF No. 225 at 2-14.)

In her Motion, Plaintiff cites Rule 60(b)(2), which permits relief from a judgment based on newly discovered evidence. (ECF No. 225 at 1.) Where a party seeks a new trial based on newly discovered evidence, the moving party must show:

(1) the evidence was newly discovered since the trial; (2) the moving party was diligent in discovering the new evidence; (3) the newly discovered evidence could not be merely cumulative or impeaching; (4) the newly discovered evidence is material; and (5) that a new trial with the newly discovered evidence would probably produce a different result.

Zurich N. Am., 426 F.3d at 1290 (citing Graham v. Wyeth Lab., 906 F.2d 1399, 1416 (10th Cir. 1990)) (brackets omitted). While Plaintiff does not seek a new trial here, she does seek reconsideration of the Dismissal Order. Plaintiff contends that she has received a letter from a third party purporting to possess the original Promissory Note and Deed of Trust, and has obtained a report by an expert who has examined those purported originals in the possession of Defendants and has declared them to be forgeries. (ECF No. 225 at 2-3.) Plaintiff argues that this evidence proves her assertions in her Amended Complaint that Defendants lack the documentation required to foreclose. ( Id. at 3-14.) However, even assuming that these documents constitute evidence that was newly discovered, they do not alter the analysis in the Dismissal Order, because they do not show that Plaintiff has standing to bring her claims for damages that accrued prior to bankruptcy, nor do they alter the mootness analysis that applies to Plaintiff's injunctive claims. Thus, this newly discovered evidence does not provide reason to vacate the judgment under Rule 60(b)(2) because it is immaterial to the challenged Dismissal Order and would not produce a different result. See Zurich N. Am., 426 F.3d at 1290.

With respect to Plaintiff's assertion that she has reopened her bankruptcy case and regained ownership of her damages claims, such an alleged change in circumstances does not constitute "newly discovered evidence". See id. Furthermore, Plaintiff's assertion appears to be unfounded. She has filed a copy of an agreement between herself and the bankruptcy trustee that states that "[t]he Trustee shall file a notice of abandonment concerning any claim or standing he may have in the Debtor's State and Federal cases, thus allowing the Debtor to freely litigate her claims." (ECF No. 225-3 ¶ 1.) However, no proof of such abandonment has been filed; instead, Defendant U.S. Bank has filed a copy of a Motion to Approve Settlement Agreement that it filed jointly with the bankruptcy trustee, which states that U.S. Bank intervened when the trustee indicated an intention to abandon the claims, and has since agreed to settle those claims. (ECF No. 236-1.) Thus, Plaintiff has failed to present newly discovered evidence that would alter the standing analysis in the Dismissal Order, and this argument provides no reason to vacate the judgment.

Although Plaintiff does not cite Rules 60(b)(3) or (4), she makes arguments that could be construed as falling under those subsections.[2] Plaintiff contends that Defendants have committed "fraud on the Court", which could fall under Rule 60(b)(3). (ECF No. 225 at 5.) However, "[f]raud on the court... is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury.... It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function-thus where the impartial functions of the court have been directly corrupted." Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) ( en banc ). Plaintiff's allegation that Defendants "fil[ed] false documents to steal homes through a wrongful foreclosure process" (ECF No. 225 at 6) does not constitute a fraud on the Court, nor could any such fraud have resulted in the Dismissal Order or judgment in the ...

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