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Edwards v. Bank of America, N.A.

Court of Appeals of Colorado, First Division

August 25, 2016

Charolyn KH Edwards, Plaintiff-Appellant,
v.
Bank of America, N.A., Defendant-Appellee.

         El Paso County District Court No. 12CV10 Honorable G. David Miller, Judge

          Charolyn KH Edwards, Pro Se

          Akerman LLP, Justin D. Balser, Ashley E. Calhoun, Denver, Colorado, for Defendant-Appellee

          OPINION

          STERNBERG [*] JUDGE

         ¶ 1 In this action involving a disputed real estate foreclosure, plaintiff, Charolyn KH Edwards, appeals the district court's summary judgment entered in favor of defendant, Bank of America, N.A. We affirm.

         I. Background

         ¶ 2 In 2005, plaintiff obtained a loan from Irwin Mortgage Corporation (Irwin) to finance the purchase of property in Colorado. The loan was evidenced by a note and repayment was secured by a deed of trust. Both documents were executed by plaintiff, and the deed of trust was duly recorded. Under the deed of trust, Mortgage Electronic Registration System, Inc. (MERS) was named the beneficiary and nominee for Irwin.

         ¶ 3 Plaintiff subsequently defaulted on the loan. Defendant, as the holder of the evidence of the debt, commenced foreclosure by executing a notice of election and demand for sale (the notice). Defendant filed the notice with the El Paso County Trustee, who duly recorded it on August 5, 2011.

         ¶ 4 On September 9, 2011, MERS executed an assignment documenting the transfer of the note and deed of trust to defendant. The assignment was recorded on September 12, 2011.

         ¶ 5 On September 14, 2011, defendant filed a C.R.C.P. 120 motion for order authorizing sale in the El Paso County District Court. The court granted the motion and authorized the sale. The property was sold on February 15, 2012.

         ¶ 6 On January 10, 2012, plaintiff filed a complaint alleging that defendant lacked standing to file a motion under C.R.C.P. 120 and to commence foreclosure proceedings. Defendant moved to dismiss under C.R.C.P. 12(b)(5), asserting that plaintiff failed to state a claim on which relief could be granted. Defendant attached no supporting documentation to its motion. The district court dismissed the case under C.R.C.P. 12(b)(5) and sua sponte granted summary judgment for defendant under C.R.C.P. 56.

         ¶ 7 Plaintiff appealed and a division of this court reversed. See Edwards v. Bank of Am., N.A., (Colo.App. No. 12CA1055, Aug. 29, 2013) (not published pursuant to C.A.R. 35(f)). The division concluded that when viewed in the light most favorable to the plaintiff, the complaint asserted that defendant was not the holder of the evidence of the debt and was not entitled to foreclose. The division also concluded that the district court erred in granting summary judgment because the supplemental record provided by defendant on appeal was not before the district court when it dismissed the case under C.R.C.P. 56.

         ¶ 8 After remand, defendant moved for summary judgment under C.R.C.P. 56, attaching the documents included in the supplemental record. The district court granted the motion, finding that the documents were self-authenticating and could be judicially noticed, that there was no genuine issue of material fact, and that defendant had standing to foreclose because the documents demonstrated that defendant was the holder of the debt at the time of foreclosure.

         ¶ 9 Subsequently, plaintiff filed a motion to reconsider summary judgment. Plaintiff argued that the district court's grant of summary judgment was premature because plaintiff was not given sufficient ...


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