County District Court No. 12CV10 Honorable G. David Miller,
Charolyn KH Edwards, Pro Se
Akerman LLP, Justin D. Balser, Ashley E. Calhoun, Denver,
Colorado, for Defendant-Appellee
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.
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 ...