Mountain States Adjustment, assignee of Bank of the West, Plaintiff-Appellee,
Jason Cooke, Defendant-Appellant.
and County of Denver District Court No. 14CV32774 Honorable
Michael J. Vallejos, Judge
Brammer Law Office, P.C., Jay M. Brammer, Ray Ann Brammer,
Sterling, Colorado, for Plaintiff-Appellee
& Associates, P.C., Aaron C. Acker, Denver, Colorado, for
1 In this debt collection action, defendant, Jason Cooke,
appeals from the summary judgment in favor of plaintiff,
Mountain States Adjustment (MSA), assignee of Bank of the
West. He also appeals from the court's denial of his
cross-motion for summary judgment. Because we conclude that
the district court erred by not applying the law of the state
chosen in the debt instrument, we reverse the judgment and
remand with directions for entry of judgment in favor of
Background and Procedural History
2 In August 2004, Cooke signed a note (the Note) with
Commercial Federal Bank (CFB) for a home equity loan. Cooke
resided in Colorado, and the home which was the collateral
for the Note (subject property) was in Colorado. CFB was
headquartered in Nebraska and the terms of repayment for the
Note state, "[t]his agreement is governed by federal
law, and to the extent applicable, the laws of
3 The record shows that CFB merged into Bank of the West, a
California bank, in December 2005. Cooke's repayment
terms under the Note did not change as a result of the merger
nor was Cooke asked to sign a new loan agreement naming Bank
of the West as the lender on the Note or successor in
interest to CFB.
4 In April 2009, the company holding the first mortgage on
the subject property commenced foreclosure proceedings. Bank
of the West did not participate in the foreclosure
proceedings, nor did it attempt to recover any funds from the
foreclosure. However, on June 19, 2009, Bank of the West sent
a "30 Day Notice of Demand and Intent to
Accelerate" letter to Cooke, stating that Cooke had
failed to make the March, April, and May 2009 payments on the
Note, and that it may accelerate the sums due under the Note
without further demand. The record does not reflect any
further communication between Bank of the West and Cooke.
5 On February 14, 2014, Bank of the West assigned Cooke's
Note to MSA. On July 15, 2014, MSA filed this collection
action against Cooke in Denver District Court seeking
recovery of amounts due under the Note. Cooke answered the
complaint and admitted that he signed the Note; as pertinent
here, he alleged as an affirmative defense that MSA's
claim was barred by the applicable statute of limitations.
6 In January 2015, MSA filed a motion for summary judgment,
arguing that Cooke admitted to being the signatory under the
Note and that the facts were undisputed that he was in
default and had not paid the amounts due and owing under the
Note. Cooke filed a cross-motion for summary judgment,
asserting that, as a matter of law, MSA's claim was
barred by the applicable statute of limitations.
7 As relevant here, in his cross-motion for summary judgment,
Cooke asserted that Nebraska law applied pursuant to the
Note's choice of law provision and that the Nebraska
limitations period to bring suit for an alleged breach of a
written contract is five years. Further, Cooke alleged Bank
of the West had knowledge of his default by April 1, 2009,
after he missed his March payment. Thus, he argued, Bank of
the West or its assignee should have filed for recovery of
the monies due under the Note by April 1, 2014, but failed to
8 Regarding the choice of law issue, MSA responded by arguing
that (1) the choice of law provision in the Note was
ambiguous; (2) Colorado law should apply because of the
significant relationship between Colorado and the Note; (3)
under the Restatement (Second) of Conflict of Laws section
187 (Am. Law Inst. 1971), the Note held no significant
relationship with the state of Nebraska and was not
enforceable; and (4) under the plain language of the choice
of law provision, federal law should first apply and that a
federal court sitting in diversity would apply the law of the
forum state in which it is sitting (here, Colorado).
9 In a written order, the district court agreed with MSA and
entered summary judgment in its favor for the amounts due and
owing under the Note; the court also denied Cooke's
cross-motion for summary judgment. As pertinent here, the
court concluded that Colorado law applied rather than
Nebraska law, and that, accordingly, MSA's claim was not
barred by Nebraska's statute of limitations. In making
its findings, the court emphasized and heavily relied on the
number of contacts and relationships MSA and Cooke have had
10 This appeal followed. The sole issue on appeal is whether the
district court erred by ruling that Colorado law applies
here, rather than Nebraska law as stated in the choice of law
provision in the Note. The parties appear to agree that
resolution of the choice of law issue is dispositive of this
case. Thus, if Colorado law applies, MSA's claim is not
barred by Colorado's six-year statute of limitations, and
summary judgment was properly entered in favor of MSA.
However, if Nebraska law applies, the facts in the record are
undisputed that MSA's claim would be barred by
Nebraska's five-year statute of limitations, and judgment
should be entered, as a matter of law, for Cooke. For the
reasons discussed below, we conclude that Nebraska law
applies. Accordingly, we reverse the judgment for MSA and
remand the case for entry of judgment in favor of Cooke.
Standard of Review
11 We review the grant of a summary judgment motion de novo.
W. Elk Ranch, L.L.C. v. United States, 65 P.3d 479,
481 (Colo. 2002).
12 Summary judgment is appropriate when the pleadings and
supporting documentation show that no genuine issue of
material fact exists, and that the moving party is entitled
to judgment as a matter of law. C.R.C.P. 56; McDonald v.
Zions First Nat'l Bank, N.A., 2015 COA 29, ¶
45. However, summary judgment is a drastic remedy and should
be granted only if it has been clearly established that the
moving party is entitled to a judgment as a matter of law.
McDonald, ¶ 45.
13 Enforceability of a choice of law provision and a
court's decision regarding choice of law are reviewed de
novo. Shoen v. Shoen, 2012 COA 207, ¶
11; see Riley v. Kingsley Underwriting Agencies,
Ltd., 969 F.2d 953, 956 (10th Cir. 1992); see also
Adams Reload Co., Inc. v. Int'l Profit Assocs.,
Inc., 143 P.3d 1056, 1058 (Colo.App. 2005) (issues
regarding forum selection clauses are subject to de novo
14 A court must interpret a contract in its entirety,
harmonizing and giving effect to all provisions so that none
will be rendered meaningless. Hoff v. Indus. Claim
Appeals Office, 2014 COA 137M, ¶ 37 (cert.
granted on other grounds Sept. 8, 2015). In the case of
any doubt with respect to a contract term, it should be
construed most strongly against the drafter. Valdez v.
Cantor, 994 P.2d 483, 486 (Colo.App. 1999).
15 Choice of law provisions are ordinarily given effect as
they are considered a clear manifestation of the parties'
intentions. Pirkey v. Hosp. Corp. of Am., 483
F.Supp. 770, 773 (D. Colo. 1980). The absence of words such
as "shall, " "exclusive, " or
"only" in such a contract provision does not
necessarily make it permissive. Vanderbeek v. Vernon
Corp., 25 P.3d 1242, 1247-48 (Colo.App. 2000)
(considering a forum selection provision). "No specific
language is required for a provision to be mandatory."