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Bank of Colorado v. Wibaux 1, LLC

United States District Court, D. Colorado

June 4, 2018

BANK OF COLORADO, a Colorado corporation, Plaintiff,
v.
WIBAUX 1, LLC, a Montana limited liability company, JEFFREY W. BERGER, a/k/a Jeff Berger, TAMI M. BERGER a/k/a Tami Berger, PRO-FRAC HEATING & TRUCKING, LLC, a North Dakota limited liability company, and UNITED STATES OF AMERICA, acting through the Internal Revenue Service, Defendants.

          ORDER DENYING IN PART AND GRANTING IN PART CERTAIN DEFENDANTS' MOTION TO STAY BRIEFING AND DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants Wibaux 1, LLC's and Pro-Frac Heating and Trucking, LLC's Motion to Stay Briefing and Decision on Plaintiff's Motion for Summary Judge Pending Resolution of Outstanding Motions Or, in the Alternative, to Extend Defendants' Response Deadline (“Motion to Stay”). (Doc. # 78.) The Court denies in part and grants in part Defendants Wibaux 1, LLC's and Pro-Frac Heating and Trucking, LLC's (together, the “LLC Defendants”) request.

         I. PROCEDURAL HISTORY

         This case has a convoluted procedural history. The Court therefore recounts only the facts necessary to address the instant Motion to Stay.

         This action concerns personal and real property located across seven counties in three states, Montana, North Dakota, and South Dakota, owned by all Defendants. (Doc. # 26.) The LLC Defendants are entities wholly owned by Jeffrey and Tam Berger (“the Bergers”). Between 2013 and 2015, Plaintiff Bank of Colorado (alternatively, “the Bank”) financed Defendants' acquisition of this property in three multi-million dollar loans. (Id.) These loans have been in default for more than one year. In this action, filed November 30, 2017, the Bank ultimately seeks foreclosure on the collateral. (Id.)

         The case is complicated by a prior-filed, related case pending in the United States District Court for the District of Montana (the “Montana Court”), captioned Berger, et al., versus Bank of Colorado, case number CV 17-104-BLG-SPW-TJC (the “Montana Case”), in which Defendants asserted claims against the Bank for negligent misrepresentation, breach of fiduciary duty, fraud and undue influence, breach of the duty of good faith and fair dealing, contractive adhesion, and punitive damages.

         Defendants filed with the Montana Court a Motion to Enjoin Piecemeal Colorado Litigation (i.e., the instant litigation) (the “Montana Motion to Enjoin”) on December 26, 2018, roughly one month after this action was initiated. (Doc. # 28 at 10; Doc. # 28-3.)

         In light of motions pending before this Court, the Montana Court held on January 16, 2018:

Under considerations of comity, the [Montana] Court will defer to the District of Colorado [this Court] to exercise its discretion whether to transfer, stay, or dismiss the Colorado Action before addressing [the Borrowing Defendants'] Motion to Enjoin Piecemeal Colorado Litigation. The Court will address the motion in due course, if necessary, following the District of Colorado's resolution of the motions now pending before it.

(Doc. # 78-1 at 3.)

         Defendants filed a similar Motion to Transfer or Stay Piecemeal Litigation (“Motion to Transfer”) in this Court on January 4, 2018. (Doc. # 28.)

         On January 9, 2018, on the basis of the Bank's Second Amended Complaint (id.) and Colorado Rule of Civil Procedure 104, this Court issued an Order to Show Cause and Preserve Personal Property to Defendants and set a show cause hearing for January 17, 2018. (Doc. # 30.) The Court informed the parties that they were to be prepared to address Defendants' Motion to Transfer at the hearing. (Id.) The Bank filed its Response to Defendants' Motion to Transfer on January 12, 2018. (Doc. # 41.)

         On January 11, 2018, Defendants filed a Motion to Dismiss Causes for Replevin, Receivership, and Foreclosure for Lack of Subject Matter Jurisdiction and to Dismiss Show Cause Hearing on the Replevin Action or, in the Alternative, to Stay That Hearing (the “Motion to Dismiss”). (Doc. # 40.) The following day, January 12, 2018, the Court denied in part the Motion to Dismiss to the extent that it sought to stay the show cause hearing. (Doc. # 43.) The Court informed the parties that they were to be prepared to also address Defendants' Motion to Dismiss at the hearing. (Id.) The Bank filed its Response to Defendants' Motion to Dismiss on January 16, 2018. (Doc. # 47.)

         Thus, Defendants' Motion to Transfer (Doc. # 28) and their Motion to Dismiss (Doc. # 40) were set to be argued before the Court on January 17, 2018, and the Bank ...


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