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Simmons v. Bellco Credit Union

United States District Court, D. Colorado

April 18, 2019

GARY SIMMONS, Plaintiff,


          Michael E. Hegarty, United States Magistrate Judge.

         Defendants Bellco Credit Union (“Bellco”) and Jonathan T. Downey (“Downey”) seek summary judgment arguing that the claim brought by Plaintiff Gary Simmons (“Simmons”) alleging that Downey was negligent in notarizing a purportedly forged document is barred by the applicable statute of limitations. In the alternative, Defendants contend Simmons has no evidence that Downey deviated from the standard of care required of Colorado notaries, and that any purportedly fraudulent conduct by Simmons' wife was an intervening cause relieving Defendants from liability. Simmons responded to the motion, then filed a motion to supplement his response with additional evidence. The Court concludes that Simmons demonstrates both good cause and excusable neglect to permit him to supplement his response, but Defendants fail to demonstrate a lack of disputed material facts or the existence of undisputed material facts on the present record and, thus, the Court grants Simmons' motion to supplement and denies Defendants' motion for summary judgment.


         The Court makes the following findings of fact viewed in the light most favorable to Simmons, who is the non-moving party in this matter.

         1. From at least 2008 onward, Simmons and his wife, Terry Simmons, held a joint checking and savings account with Bellco.[1]

         2. Simmons had an ATM card with Bellco and was a signatory to the joint checking account with Mrs. Simmons.

         3. Simmons had access to both the joint checking and savings accounts with Bellco, including account details, and was able to access the same via Bellco's online banking services.

         4. Mrs. Simmons was employed by Qwest Communications International, Inc. (“Qwest”) and its predecessor entities for over 40 years.

         5. Mrs. Simmons participated in a pension plan sponsored by Qwest (the “Plan”).

         6. Simmons has not been employed since 2008, and his only income since then has been social security, as well as two years of unemployment benefits.

         7. As of 2009, apart from social security benefits, Mrs. Simmons' pension benefits were the only anticipated source of retirement income for both Simmons and Mrs. Simmons.

         8. Given that Mrs. Simmons' pension would be his primary source of income, Simmons was concerned about his retirement future as early as 2009.

         9. In light of these concerns, Mrs. Simmons discussed the details of her Qwest pension with Simmons as early as 2009.

         10. Specifically, they discussed the amount of savings in the pension, and Mrs. Simmons showed Simmons printouts from Qwest's pension website where she could predict monthly payment amounts depending on when she retired.

         11. Simmons also was able to see the website itself and the information within it when Mrs. Simmons printed out pension-related information for him in 2009.

         12. Simmons was aware that Mrs. Simmons could potentially elect either a lump sum payment, a single life annuity option, or a joint and survivor annuity option. They discussed these options at that time and surmised that they would elect to receive a joint and survivor annuity after Mrs. Simmons retired.

         13. In April 2010, Mrs. Simmons learned that Qwest would be purchased by CenturyLink, Inc. within the following year. Accordingly, she accelerated her retirement in order to retire under the Qwest banner, preserve her existing benefits, and receive one year's severance pay.

         14. As part of her anticipated retirement, and in light of Qwest's transition to CenturyLink, Mrs. Simmons again discussed her pension options with Simmons in early 2011. Specifically, Mrs. Simmons stated that their options were either a lump sum payout, joint and survivor annuity payments, or a single life annuity option.

         15. In 2011, prior to retiring, Mrs. Simmons represented to Simmons that she would elect the joint and survivor annuity option for pension benefit payments.

         16. On March 22, 2011, Mrs. Simmons submitted her Qwest Pension Plan Benefit Option Election Form (the “Election Form”) to Qwest, and chose to receive the single life annuity option. This option provided for pre-tax payments of $5, 420.98 per month for Mrs. Simmons' lifetime, with no survivor benefits payable to Simmons after her death. Pretrial Order, 4.IV., ECF No. 37.

         17. The Election Form specifically provided that if Mrs. Simmons did not select a joint and survivor annuity option, then she would have to submit a completed and notarized Spousal Consent to Waive the Joint and Survivor Annuity section of the Election Form.

         18. Mrs. Simmons submitted a signed, notarized Spousal Consent to Waive the Joint and Survivor Annuity form (the “Spousal Consent Form”), dated March 22, 2011.

         19. The Spousal Consent Form contains specific waiver language in which the signer expressly waives joint and survivor annuity benefits that he or she would otherwise be entitled to by law.

         20. The Spousal Consent Form contains what purports to be Simmons' name, social security number, and signature.

         21. The Spousal Consent Form was notarized by Downey, an employee of Bellco.

         22. Defendants did not produce Downey's notary log in their Fed.R.Civ.P. 26(a)(1) disclosures.

         23. Simmons has no personal knowledge of Downey and is unaware of Downey's pattern and practice of notarizing forms while employed by Bellco.

         24. Simmons was and is aware of a notary's obligation to act honestly and to notarize a document only upon proof that the person signing the document is who that person represents himself to be but is unaware of the actual facts and circumstances behind Mrs. Simmons' submission of the Spousal Consent Form.

         25. Simmons took no steps in 2011 to view the actual pension documents Mrs. Simmons submitted at that time-either before or after Mrs. Simmons submitted the same to Qwest. Deposition of Gary W. Simmons, September 26, 2018 (“Simmons dep.”), 47: 8-15; see also Defs. Ex. L, ECF No. 33-2 (form referenced in Simmons' testimony that was signed and dated January 17, 2010).

         26. Despite knowing that Mrs. Simmons had online access to pension-related information, Simmons never asked Mrs. Simmons for access to online pension information or for any pension materials kept online by Qwest and/or CenturyLink at any time after 2009.

         27. Simmons trusted Mrs. Simmons when she told him that she had elected the joint and survivor annuity option. Simmons dep. 49: 9-15; 88: 23-25, 89: 1-5.

         28. Mrs. Simmons retired from Qwest on April 18, 2011.

         29. Mrs. Simmons' monthly pension payments were $4, 771.91 (after tax).

         30. From May 2011 to October 2016, Simmons was aware of and spent these funds (for his and his family's benefit), which were deposited into his joint checking account at Bellco by the CenturyLink Combined Qwest Pension Fund (the “Fund”)-the payor of Mrs. Simmons' pension retirement benefits during that time frame.

         31. Simmons was aware of the income that he and Mrs. Simmons would receive pursuant to her pension as he stated, “we planned on $50, 000 to $60, 000 annually from the Qwest pension.” He agreed that he had an obligation to be aware of the income he was receiving and how that money was being spent during the time he was married to Mrs. Simmons. Simmons dep. 89: 9-13.

         32. The net monthly payments deposited into the Simmons' checking account exceeded the gross monthly payments set forth under the 100% survivorship annuity benefit ...

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