Edwards v. Bank of America, N.A.

COLORADO COURT OF APPEALS 2016COA121

Court of Appeals No. 14CA2337
El Paso County District Court No. 12CV10
Honorable G. David Miller, Judge

Charolyn KH Edwards,

Plaintiff-Appellant,

v.

Bank of America, N.A.,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE STERNBERG*
Taubman and Dailey, JJ., concur

Announced August 25, 2016

Charolyn KH Edwards, Pro Se

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

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24 51 1105, C.R.S. 2015.
¶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.

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¶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

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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 opportunity for discovery. The district court denied the

motion.

II. Summary Judgment Ruling

¶ 10 Plaintiff contends that the district court erred in granting

defendant’s summary judgment motion. We disagree.

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A. Summary Judgment Law and Standard of Review

¶ 11 Summary judgment may be granted if the pleadings and

supporting documentation demonstrate that there is no genuine

issue of material fact and that the moving party is entitled to

judgment as a matter of law. C.R.C.P. 56(c); Bailey v. Lincoln Gen.

Ins. Co., 255 P.3d 1039, 1051-52 (Colo. 2011).

¶ 12 The party moving for summary judgment has the initial

burden of showing that there is no genuine issue of material fact.

Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987). If

the moving party satisfies that burden, the nonmoving party must

then put forward evidence showing that a triable issue of fact exists.

Id. at 713; see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986) (stating that the nonmoving party “must do

more than simply show that there is some metaphysical doubt as to

the material facts”). The nonmoving party is entitled to the benefit

of all favorable inferences that reasonably may be drawn from the

evidence, and all doubts as to the existence of a genuine issue of

material fact must be resolved in that party’s favor. Brodeur v. Am.

Home Assurance Co., 169 P.3d 139, 146 (Colo. 2007).

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¶ 13 We review a district court’s decision granting summary

judgment de novo. Rocky Mountain Festivals, Inc. v. Parsons Corp.,

242 P.3d 1067, 1074 (Colo. 2010).

B. Substantive Law and Analysis

¶ 14 As she did in the district court, plaintiff contends on appeal

that defendant failed to properly present evidence that it had

standing to foreclose. We disagree, and conclude that defendant

produced sufficient evidence to establish that it was entitled to

foreclose, and that plaintiff failed to demonstrate that there was a

genuine issue of material fact as to defendant’s standing to

foreclose.

¶ 15 Colorado foreclosure law allows a holder of an evidence of debt

to foreclose upon breach of the terms of the deed of trust. See § 38-

38-101, C.R.S. 2015. A “holder of an evidence of debt” is defined as

“the person in actual possession of or person entitled to enforce an

evidence of debt.” § 38-38-100.3(10), C.R.S. 2015; see McDonald v.

OneWest Bank, F.S.B., 680 F.3d 1264, 1266 (10th Cir. 2012) (“[A]

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person entitled to enforce an instrument may be a holder, and need

not be an owner, of the instrument.” (applying Colorado law)).1

¶ 16 Under sections 38-38-101(1)(b)(II) and (1)(c)(I), the holder of an

evidence of debt may initiate foreclosure proceedings with a copy of

the evidence of debt and deed of trust, rather than the original

documents.

¶ 17 To foreclose in this manner, the holder of an evidence of debt

must file “a statement signed by the attorney for such holder, citing

the paragraph of section 38-38-100.3(20) under which the holder

claims to be a qualified holder and certifying or stating that the copy

of the evidence of debt is true and correct.” § 38-38-101(1)(b)(II)

(emphasis added).

¶ 18 Here, in accordance with sections 38-38-101(1)(b)(II) and

(1)(c)(I), defendant foreclosed with a copy of the note and the deed of

trust, along with a certification in which its attorney stated that it

was a qualified holder. These documents were sufficient to show

1 “Evidence of debt” is “a writing that evidences a promise to pay or
a right to the payment of a monetary obligation, such as a
promissory note, bond, negotiable instrument, a loan, credit, or
similar agreement, or a monetary judgment entered by a court of
competent jurisdiction.” § 38-38-100.3(8), C.R.S, 2015.

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that defendant was a qualified holder, and thus had standing to

foreclose. See Miller v. Deutsche Bank Nat’l Tr. Co. (In re Miller), 666

F.3d 1255, 1265 (10th Cir. 2012) (applying Colorado law and

recognizing the ability of a holder of evidence of debt to foreclose

under section 38-38-101(1)(b)).

¶ 19 Accordingly, the district court did not err in granting

defendant’s motion for summary judgment.

III. Motion to Reconsider Summary Judgment

¶ 20 Plaintiff also contends that the district court erred in denying

her motion to reconsider summary judgment because the court

prematurely granted summary judgment without giving plaintiff

sufficient opportunity to conduct discovery. We perceive no error.

¶ 21 A trial court’s discovery rulings will not be disturbed on

review, absent an abuse of discretion. A trial court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair. Keybank, Nat’l Ass’n v. Mascarenas, 17 P.3d 209, 215

(Colo. App. 2000).

¶ 22 C.R.C.P. 56(f) allows a party who cannot produce facts

essential to its opposition to a motion for summary judgment to

submit an affidavit explaining why it cannot do so. In this case,

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plaintiff did not submit a C.R.C.P. 56(f) affidavit. Plaintiff’s motion

to reconsider summary judgment cannot take the place of a

C.R.C.P. 56(f) affidavit, because the rule requires that the affidavit

be submitted prior to the court’s summary judgment ruling. See

Sundheim v. Bd. of Cty. Comm’rs, 904 P.2d 1337, 1352 (Colo. App.

1995) (“In order to avoid the precipitous and premature grant of

judgment against the opposing party, C.R.C.P. 56(f) affords an

extension of time to utilize discovery procedures to seek additional

evidence before the trial court rules on a motion for summary

judgment.”), aff’d, 926 P.2d 545 (Colo. 1996).

¶ 23 Plaintiff’s argument in her reconsideration motion that the

trial court erred in granting summary judgment without giving her

sufficient opportunity to conduct discovery is foreclosed because

plaintiff did not file a C.R.C.P. 56(f) affidavit. See Foster v. Redd,

128 P.3d316, 319 (Colo. App. 2005). Accordingly, the district court

properly denied plaintiff’s motion to reconsider summary judgment.

IV. Conclusion

¶ 24 We affirm the district court’s judgment.

JUDGE TAUBMAN and JUDGE DAILEY concur.

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