December 17, 2017

Archives for August 31, 2016

Colorado Court of Appeals: Holder of Evidence of Debt May Initiate Foreclosure with Copy of Evidence of Debt

The Colorado Court of Appeals issued its opinion in Edwards v. Bank of America, N.A. on Thursday, August 25, 2016.

Mortgage—Foreclosure—Standing—Summary Judgment—Affidavit.

Plaintiff obtained a loan to finance the purchase of property. When she defaulted on the loan, defendant sold the house through foreclosure. During the foreclosure proceedings, plaintiff filed a complaint alleging that defendant lacked standing to file a C.R.C.P. 120 motion and to commence foreclosure proceedings. The district court granted defendant’s summary judgment motion and subsequently denied plaintiff’s motion to reconsider the judgment.

On appeal, plaintiff contended that the district court erred in granting defendant’s summary judgment motion. 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. Here, defendant produced sufficient evidence to establish that it was entitled to foreclose and that plaintiff failed to demonstrate there was a genuine issue of material fact as to defendant’s standing to foreclose. Accordingly, the district court did not err in granting defendant’s motion for summary judgment.

Plaintiff also contended that the district court erred in denying her motion to reconsider summary judgment because the court prematurely granted summary judgment without giving her sufficient opportunity to conduct discovery. 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. Plaintiff did not submit a C.R.C.P. 56(f) affidavit. Accordingly, the district court properly denied plaintiff’s motion to reconsider summary judgment.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: License Suspension Arbitrary and Capricious Due to Lack of Standards

The Colorado Court of Appeals issued its opinion in Farmer v. Colorado Parks & Wildlife Commission on Thursday, August 25, 2016.

Big Game Hunter—Suspension of Wildlife License—Colorado Parks and Wildlife Commission—Agency Standards—Arbitrary and Capricious.

Farmer is a big game hunter and guide. After allowing his Colorado outfitter’s license to lapse, Farmer was charged with six counts of illegal sale of big game wildlife for outfitting mountain lion hunts without the proper license. Farmer pleaded guilty to one count. Pursuant to CRS § 33-6-113(2)(a), his guilty plea triggered an administrative hearing by the Colorado Parks and Wildlife Commission (Commission) to determine whether to suspend Farmer’s wildlife license privileges. After a hearing, Farmer’s hunting license was suspended for 20 years. Farmer initiated this action for review of the Commission’s decision, and the district court affirmed.

On appeal, Farmer contended that he was deprived of due process because neither CRS §§ 33-6-106 and -113 nor any applicable regulations contain sufficient standards to constrain the Commission’s discretion in determining the length of his suspension. CRS § 33-6-113(2)(a) merely provides that, upon conviction for the illegal sale of big game, the Commission may suspend “any or all wildlife license privileges of the person for a minimum of one year to life.” Because neither the statute nor any applicable regulations provide sufficient standards to guide the Commission’s suspension decision, its action in suspending Farmer’s license was arbitrary and capricious.

The district court’s order was reversed and Farmer’s suspension was vacated. Because remanding to the hearing officer would not provide Farmer a complete remedy for the arbitrary and capricious suspension of his license under defective procedures, the Court of Appeals declined to remand for a new hearing.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/30/2016

On Tuesday, August 30, 2016, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions.

Chavez-Torres v. City of Greeley

In re Rindlesbach: Rindlesbach v. Jones

United States v. Akers

Gonzales v. State of Colorado

Hill v. Fort Leavenworth Disciplinary Barracks

Lewis v. Mercy Health

Harper v. Guthrie

Walker v. Allbaugh

United States v. Walton

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.