United States District Court, D. Colorado
L. CARMAN UNITED STATES MAGISTRATE JUDGE
an action for deficiency judgment. The case is before the
court on the referred motion (doc. 44) of Plaintiff Bank of
New York Mellon (the “Bank”) for summary judgment
against the pro se Defendants Richard Cuevas and
Alisha Cuevas. For the following reasons, pursuant to Federal
Rule of Civil Procedure 56(e), the court gives the Bank an
opportunity to supplement the record before the court makes
its recommendation on the motion.
court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A party asserting that a fact
cannot be or is genuinely disputed must support the assertion
by … citing to particular parts of materials in the
record … or showing that the materials cited do not
establish the … presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B).
Although both Defendants answered the complaint (in April
2017, as to Ms. Cuevas in Docs. 8 and 13, and June 2017 as to
Mr. Cuevas, Doc. 25), appeared in telephone conferences (see
minutes, docs. 54, 55 and 56), and participated in settlement
negotiations with the Bank after it filed its motion for
summary judgment, neither Defendant responded to the motion.
even in the absence of a response, the court must review
whether the movant has shown it is entitled to judgment as a
matter of law.
[A] party's failure to file a response to a summary
judgment motion is not, by itself, a sufficient basis on
which to enter judgment against the party. The district court
must make the additional determination that judgment for the
moving party is “appropriate” under Rule 56.
… The court should accept as true all material facts
asserted and properly supported in the summary judgment
motion. But only if those facts entitle the moving party to
judgment as a matter of law should the court grant summary
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.
2002). “By failing to file a response within the time
specified by the local rule, the nonmoving party waives the
right to respond or to controvert the facts asserted in the
summary judgment motion.” Id. Thus, both
Defendants waived “the right to respond or to
controvert the facts asserted” in the Bank's
motion, but if the Bank has not supported a material fact,
the court cannot grant summary judgment.
Bank seeks a deficiency judgment against Defendants jointly
and severally in the amount of $111, 985.72. The Bank
recognizes in its motion it “must establish the amount
of the debt, the sale price, that the sale price was applied
to the debt, and the resulting deficiency.”
Nat'l Canada Corp. v. Dikeou, 868 P.2d 1131,
1134 (Colo.App. 1993). See Doc. 44 motion at p. 4
(“lender must establish the total debt, sale price and
the deficiency after applying the sale proceeds”).
the first element - the amount of the debt - the Bank is
entitled to include in the debt at the time of the
foreclosure sale the outstanding principal, accrued interest,
and late charges. Doc. 44-2 (promissory note) at p. 3 ¶
6. The promissory note also provides:
If the Note Holder has required me to pay immediately in full
as described above, the Note Holder will have the right to be
paid back by me for all of its costs and expenses in
enforcing this Note to the extent not prohibited by
applicable law. Those expenses include, for example,
reasonable attorneys' fees.
Doc. 44-2, Promissory Note at p. 2 of 3, ¶ 6(E)
(emphasis added). The deed of trust provides:
If (a) Borrower fails to perform … then Lender may do
and pay for whatever is reasonable or appropriate to
protect Lender's interest in the Property and rights
under this Security Instrument …. Lender's
actions can include, but are not limited to: …
paying reasonable attorneys' fees to protect its
interest in the Property and/or rights under this Security
Instrument. * * * Any amounts disbursed by Lender under
this Section 9 shall become additional debt of Borrower
secured by this Security Instrument.
Doc. 44-2, Deed of Trust at p. 8 of 15, ¶ 9 (emphasis
law limits the lender's expenses - with some possible
exceptions regarding expenses in the foreclosure process
itself - to those which are reasonable or appropriate. C.R.S.
§ 38-38-107. The statute governing the Bank's bid
likewise restricts the lender's additional costs to
“estimated reasonable costs and expenses of
holding, marketing, and selling the property, net of income
received.” C.R.S. § 38-38-106(6) (emphasis added).
Cf., National Canada, 868 P.2d at 1139 (remanding
for determination of reasonableness of the attorney fees and
costs bank sought in deficiency action). See also San
Miguel Basin State Bank v. Oliver, 748 P.2d 1342,
1345-46 (Colo.App. 1987) (reversing and remanding deficiency
judgment in part because there was no evidence that the
attorney fees added to the debt in foreclosure were
reasonable); In re Lederman Enterps., Inc., 106 B.R.
674, 677-78 (Bankr. D. Colo. 1989) (“In general,
Colorado has recognized the right of lenders to have
reasonable costs and fees allowed in connection with
foreclosure actions, ” emphasis added).
to Mr. Cuevas, the Bank does not need evidence to
support the amount of the debt. Mr. Cuevas failed to answer
the Bank's requests for admission. The certificate of
service on the requests states the Bank served them to Mr.
Cuevas by U.S. mail at the mailing address he has given for
use in this case, and by email to his gmail account. Doc.
44-6 at p. 9. Counsel for the Bank advised Mr. Cuevas, by
mail and email, that it had not received answers to the
requests for admission within their due date and requested
answers by September 30, 2017. On September 29, 2017 Mr.
Cuevas emailed the Bank's counsel, stating he would send
responses in a few days. But the Bank never received them.
Doc. 44-5, Affidavit of Taylor T. Haywood ¶¶ 3-5.
He thus has admitted all facts which the Bank requested ...