Haney v. Federal National Mortgage Association, et al

MOTION to Dismiss for Failure to State a Claim

D. Colo.July 28, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-cv-01296-PAB-NYW NANCY HANEY, Plaintiff, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, BANK OF AMERICA, NA, THE CASTLE LAW GROUP, LLC, a Colorado limited liability company, MEDVED DALE DECKER & DEERE, LLC, a Colorado limited liability company, SETERUS, INC., WILMINGTON SAVINGS FUND SOCIETY, FSB, as Trustee for Carlsbad Funding Mortgage Trust, JANEWAY LAW FIRM, PC, a Colorado professional corporation, MORTGAGE ELECTRONIC REGISTRY SYSTEMS, INC., ROBERT FENSTEMAKER, an individual, JOHN W. HICKENLOOPER, Governor of the State of Colorado, DEE DEE COPPER, Chaffee County Public Trustee, DISTRICT COURT IN AND FOR THE ELEVENTH JUDICIAL DISTRICT, STATE OF COLORADO, and DOES 1 – 100, Defendants. DEFENDANT THE CASTLE LAW GROUP, LLC’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(1) and 12(b)(6) Defendant The Castle Law Group, LLC (“CLG”), through its attorneys Vaglica & Associates, LLC by Phillip A. Vaglica, submits its Motion to Dismiss Plaintiff’s Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) as set forth below. Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 1 of 25 2 I. INTRODUCTION Defendant CLG is a defunct Denver law firm which has been closed for approximately eighteen (18) months. The firm once specialized in representing national lenders in real estate, foreclosure, eviction and bankruptcy matters. As part of its practice, CLG previously represented Bank of America, N.A. (“BANA”) in foreclosure proceedings concerning real property formerly owned by the Plaintiff in Chaffee County, Colorado. That representation apparently formed the factual basis upon which the Plaintiff has based her action against CLG. In Welk et al. v. GMAC Mortgage, LLC, et al., 2012 U.S. Dist. LEXIS 43618 (D. Minn. 2012), one federal district court noted that the “…courts have been inundated with lawsuits brought by homeowners challenging the foreclosures of the mortgages on their homes [and]…quite a few are frivolous….” Id. at *2. In such a case, the court observed that the plaintiffs attack “…the legal system, the banking system, and other targets, *** typically a law firm that represented one of the lenders in foreclosure proceedings….” Id. at *4-5. An objective analysis of the instant claim against CLG reflects that targeting this former law firm without any articulable basis to do so is exactly what the Plaintiff has done. The Plaintiff has not pleaded, and cannot establish, any plausible claim against CLG no matter how hard she tries. The actions by CLG’s erstwhile attorneys were all taken pursuant to Colorado statutes governing foreclosures, and the Plaintiff received all the process to which she was entitled pursuant to those constitutional state statutory procedures. Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 2 of 25 3 The various Co-Defendants in this action have filed motions to dismiss the Plaintiff’s groundless claims. Instead of reciting the same prose as its Co-Defendants, CLG will simply join in and adopt those arguments (based upon the same authority) so as to spare the court the time required to read the same position for the fourth or fifth time in this case. If there is a necessity (e.g. since CLG was a private party/law firm as opposed to a lender, servicer, holder, assignee or government entity or official), that CLG supplement the argument/authority already pleaded in the Co-Defendants’ filings, CLG will present those on a claim-by-claim basis for ease of reference for the court. II. OPERATIVE FACTS A. Joinder CLG joins in and adopts the factual recitations made by the Co-Defendants which are already of record. B. Supplemental Facts The last act of any kind taken by CLG which related to CLG’s representation of BANA was the filing of foreclosure papers which occurred on May 2, 2014, when a former CLG attorney filed a Motion for Order Authorizing Sale. Exhibit A. CLG had no further involvement with the case after that date other than to transfer its file to Janeway Law Firm, P.C. That firm entered its appearance on behalf of BANA on May 28, 2014. Id. The Plaintiff was represented by counsel at all foreclosure proceedings from May 4, 2012,forward. Exhibit B. Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 3 of 25 4 III. ARGUMENT A. JOINDER CLG joins in and adopts the arguments recited by the Co-Defendants as the various basis for dismissal. B. SUPPLEMENTAL POSITIONS CLG supplements the various basis for dismissal recited by the Co-Defendants as follows: i. Rooker-Feldman The Rooker-Feldman doctrine "[i]s confined to cases…brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Ramsey v. Citibank, N.A., 2011 U.S. Dist. LEXIS 110963 (10th Cir. 2011). While somewhat unsettled (see Amerson v. Chase Home Finance, LLC, No. 11- cv-01041-WJM-MEH, 2012 WL 1686168 ( D.Colo. May 7, 2012)(citing In re Miller, 666 F.3d 1255 (10th Cir. 2012))), courts in this district have previously held that Rooker- Feldman is “applicable both to claims at issue in a state court order authorizing foreclosure sale and to claims that are ‘inextricably intertwined’ with such an order.” Moore v. One West/Indy Mac Bank, 2010 U.S. Dist. LEXIS 88674 at * 15 (D. Colo. 2010) (citing Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. at 286 n. 1 (2005)). To determine whether a party’s federal claims are inextricably intertwined with a state court judgment, and thus barred by the Rooker-Feldman doctrine, the court must Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 4 of 25 5 look to the relief sought, not the label affixed to the claims. See Kenmen Eng'g v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002) (overruled on other grounds). If granting that relief “would disrupt or undo” a state court judgment, the claims are inextricably intertwined with that judgment, and thus barred by the Rooker-Feldman doctrine. Jackson v. Jackson, 2006 WL 1409551 at * 5 (10th Cir. 2006). Reference to the relief, and not the claim itself, is appropriate because “a litigant may be able to make a federal claim appear unrelated to a state court judgment through artful pleading.” Crutchfield v. Countrywide Home Loans, 389 F.3d 1144, 1147 (10th Cir. 2004). The relief sought by the Plaintiff is inconsistent with the state foreclosure process. If it were found, e.g. that CLG’s conduct in the Plaintiff’s foreclosure was fraudulent or violative of the Plaintiff’s statutory or constitutional rights, any relief based upon that legal premise would tacitly hold that the foreclosure procedures were deficient, a result which would clearly be barred by Rooker-Feldman. See Bergman v. Lacouture, 218 Fed. Appx. 749, 751 (10th Cir. 2007). Consequently, the relief sought by the Plaintiff warrants the application of Rooker-Feldman. See Burlinson v. Wells Fargo Bank, N.A., et al., No. 1:08-cv-0174-REB-MEH, 2009 WL 646330 (D.Colo. Mar. 9, 2009). ii. 42 U.S.C. §§ 1983, 1985 and 1988 1983: In Ramsey v. Citibank, 2011 U.S. Dist. LEXIS 110957 (D. Colo. 2011), the court observed that "property" and "interests in property" are creatures of state law, and that "the propriety of determining whether a foreclosure [action] is appropriate is a matter of Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 5 of 25 6 state law, not federal law." Id. at *6. This Court recently conducted an exhaustive analysis of whether CLG, as a private law firm utilizing Colorado’s non-judicial foreclosure procedures, was a state actor acting under color of state law for purposes of resolving a claim brought against CLG under § 1983. In Lewis v. JP Morgan Chase Bank, N.A., et al., No. 13-cv-01385-PAB-KLM, 2014 WL 1217948 (D. Colo. Mar. 24, 2014), aff’d sub. nom. Lewis v. JP Morgan Chase Bank, No. 14-1140, 2015 WL 1320186 (10th Cir. Mar. 25, 2015)(unpublished), this Court reviewed all of the relevant authority cited by the co-defendants in their respective motions to dismiss in the instant case. The conclusion reached was that the plaintiff in the Lewis case could not “…sufficiently [allege] that defendants are state actors simply by alleging that the Colorado non-judicial foreclosure procedure is unconstitutional and that defendants used such a procedure to effect a constitutional deprivation.” Id. at *5. Relevant authority in this district and elsewhere supports the premise that the same conclusion should be reached in this case. See Beliz v. Loan Simple, No. 15-cv- 1284-CMA-CBS, 2016 WL 424807, at *8-9 (D. Colo. Jan. 14, 2016)(in an action against CLG and others, the court held that “a private party does not become a state actor simply by seeking relief through state judicial proceedings”) recommendation adopted 2016 WL 409408 (D. Colo. Feb. 3, 2016). In Ramsey, supra at 2011 U.S. Dist. LEXIS 110957, the court found that: a “…plaintiff does not satisfy the 'state actor' element of a § 1983 action by alleging the deprivation of property through unlawful or malicious conduct committed by a private actor" (Id. at *13); to the extent plaintiffs “contest the legal merits of defendants' eviction efforts, that challenge will not suffice to transform Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 6 of 25 7 [private parties] into agents of the state” (Id. at *14); and that "…relief under § 1983 cannot be premised solely on an argument that a private actor misused available state procedures ….” Id.; see also Scott v. Hern, 216 F.3d 897, 906-07 (10th Cir. 2000) (private individual does not engage in state action simply by availing itself of a state procedure); Hoai v. Vo, 935 F.2d 308, 313, 290 U.S. App. D.C. 142 (D.C. Cir. 1981)(“mere recourse to state or local court procedures does not by itself constitute ‘joint activity’ with the state sufficient to subject a private party to liability under § 1983.”) The Plaintiff may contend that CLG was a state actor acting under color of state law when it submitted foreclosure papers to the public trustee for Chaffee County or filed papers in state court. If so, then Gallagher v. "Neil Young Freedom Concert," 49 F.3d 1442 (10th Cir. 1995) addresses those allegations. In that case, the court held that the only proper defendants in a "constitutional tort" case were those persons who "represent [the state] in some capacity, whether they act in accordance with their authority or misuse it." Id. at 1447 (citations omitted). This mirrors the "state actor" component of Lugar v. Edmonson Oil Co., 457 U.S. 922, 929-934 (1982). The Gallagher decision identified four tests to determine the existence of state action: nexus, interdependence/symbiotic relationship, willful participant in joint activity with the state, and the exercise of powers traditionally exclusively reserved to the state. The court noted (citing, Lugar 457 U.S. at 937), that under each of these tests, the conduct allegedly causing the deprivation of the federal right must be "fairly attributable to the State." In a relatively recent decision, Wittner. v. Banner Health, 720 F.3d 770, 775 (10th Cir. 2013), the court engaged in an in-depth analysis of all of the Gallagher tests, Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 7 of 25 8 and the analysis in Wittner is substantively the same as utilized by this Court in its holding in Lewis, supra. There is no plausible claim in this case that CLG was either a state actor or whether it acted under color of state law for purposes of liability under a "constitutional tort" theory. CLG’s alleged actions were purely private actions which, even if the law firm acted with or through a public trustee or state court pursuant to statute, that did not create "...the concerted action that caused the deprivation of [the] constitutional rights alleged[.]" Anaya v. Crossroads Managed Care Sys., 195 F.3d 584, 596 (10th Cir. 1999). As such, the Plaintiff cannot plausibly allege that CLG is a state actor by alleging that the Colorado non-judicial foreclosure procedure is unconstitutional, and that CLG used such a procedure to effect a constitutional deprivation. 1985: Paragraphs 248-273 of the Plaintiff's complaint purport to state a claim for relief under 42 U.S.C. §1985(3). Sections 1985 (1) and (2) of Title 42 of the United States Code on their face have no applicability to this Plaintiff’s claim, and consequently, CLG guesses that Plaintiff’s § 1985 claim is brought pursuant to § 1985(3). If so, then that claim should be dismissed. Section 1985(3) creates a cause of action against a party conspiring to deprive any person of equal protection of the law or of the privilege and immunities of citizenship. In a key passage in Griffin v. Breckenridge, 403 U.S. 88 (1971), the United States Supreme Court noted that not "[a]ll tortious, conspiratorial interference of the rights of others" were actionable under § 1985(3). Although numerous cases have Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 8 of 25 9 examined the elements of a claim under § 1985(3), it is clear that there must be some class-based animus. See Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977). In Bisbee v. Bey, 39 F.3d 1096 (10th Cir. 1994), the Tenth Circuit held that absent allegations of class-based or invidiously discriminatory animus, a complaint fails to state a claim under 42 U.S.C. 1985(3). Within this context, Plaintiff's claim fails. See Schneider v. Cooper, et al., 2009 U.S.Dist. LEXIS 125017 (D.Colo. Dec. 16, 2009) (citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971))("...§ 1985(3) applies only to conspiracies motivated by 'some racial, or perhaps otherwise class-based invidiously discriminatory animus.'”). iii. Fraud (Fifth Claim for Relief)/Fraudulent Concealment (Sixth Claim for Relief) When CLG filed the foreclosure action, CLG was entitled to rely upon account transaction dates and information related to the basis for the foreclosure under the deed of trust and promissory note which it received from its client without having to conduct an independent investigation. See, e.g. Smith v. Transworld Systems, Inc., 953 F.2d 1025, 2032 (6th Cir. 1992); Jenkins v. Heintz, 124 F.3d 824, 834 (7th Cir. 1997) (attorneys are not required to investigate the basis for charges on accounts referred for collection by their client). The FDCPA, for example, does not require a law firm to investigate the facts related to a debt independently from the creditor’s statements. See, e.g. McCammon v. Bibler, Newman & Reynolds, P.A., 515 F.Supp.2d 1220, 1225-26 (D. Kan. 2007). As a basic premise with regard to any claim for any type of fraud or fraudulent misrepresentation, in order to state a plausible claim for damages, a plaintiff must Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 9 of 25 10 demonstrate that she relied to her detriment upon the false representation. See Williams v. Boyle, 72 P.3d 392, 399 (Colo.App. 2003). The instant Plaintiff cannot demonstrate any such reliance, and therefore this claim is not plausible. In Wessler v. Colonial National Mortgage, et al., Civil Action No. 11-cv-02683- RBJ-KMT (D. Colo. Aug. 21, 2012), a borrower sued CLG and others alleging that the promissory note which established her debt in a foreclosure was forged, and that the promissory note presented at the foreclosure proceeding was not the original note which she signed. Magistrate Judge Tafoya noted that the key to analyzing this fraud or fraudulent misrepresentation claim was to determine whether or not the fraud was alleged to be of a material fact. The court held that even if the lender “…lied when it stated” that it owned or possessed the note, “to the contrary, these facts are not material in determining the propriety of the foreclosure, the order authorizing the sale of the property and the sale of the property….[pursuant to state statutes]” Id. at p.30. iv. Colorado FDCPA (Seventh and Eighth Claims for Relief)/ Federal FDCPA (Ninth and Tenth Claims for Relief) Plaintiff’s claims under the Colorado FDCPA (“CFDCPA”) are barred by the applicable statute of limitations. Pursuant to C.R.S. § 12-14-113(4), any action brought to enforce a claim under the statute must be brought “… within one year from the date on which the [alleged] violation occurs.” From a review of the applicable state court docket, as well as from the facts asserted in the Complaint (Complaint ¶155), the last act committed by CLG which related to the foreclosure of the Plaintiff’s deed of trust occurred on May 2, 2014, when a former CLG attorney filed court papers. Exhibit A. CLG had no further involvement with the foreclosure of the deed of trust encumbering Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 10 of 25 11 the Plaintiff’s property after that date, and thus, Plaintiff’s CFDCPA claims are barred; her Complaint in this case was filed more than two years after that May 2, 2014 date. Similarly, pursuant to Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002) “[t]he statute of limitations for FDCPA claims is found in 15 USC § 1692k(d).” According to that section, any action to enforce a claim alleging a violation of the FDCPA must be brought within one year of the alleged violation. As reflected above, the last involvement that CLG could have had occurred with regard to the foreclosure of the deed of trust on Plaintiff’s property was May 2, 2014. Consequently, Plaintiff’s filing of the instant complaint on May 27, 2016, is a full two years past the expiration of the statute of limitations. There are no facts upon which the Plaintiff can rely to overcome the statute of limitations having run on her CFDCPA/FDCPA claims. She was personally aware of whatever actions she alleges were taken by CLG up through May 2, 2014 and did nothing to protect her rights to assert a claim under the FDCPA. In state court case No. 2012CV33, she was represented by an attorney as of May 4, 2012. Exhibit B. Consequently, the Plaintiff and her attorney had over two years from that date to analyze and act on any FDCPA/CFDCPA claim which the Plaintiff had against CLG up through May 2, 2014. She failed to take any action until over two years later and her CFDCPA/FDCPA claims are barred by the applicable statute of limitations. See Llewellyn v. Shearson Fin. Network, Inc., 622 F.Supp.2d 1062 (D.Colo. 2009). Finally, not all courts have agreed "on whether and when foreclosure activities are covered" by the FDCPA. Yokomizo v. Deutsche Bank Securities, Inc., No. 11-cv- Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 11 of 25 12 01630-CMA-KLM, 2011 WL 5024899, at *4 (D. Colo. Oct. 21, 2011), recommendation adopted, 2011 WL 5983575 (D. Colo. Nov. 30, 2011); see also Rousseau v. Bank of New York, No. 08-cv-00205-PAB-BNB, 2009 WL 3162153, at *7 (D. Colo. Sept. 29, 2009). "The basic dispute is whether mortgage foreclosures constitute mere enforcement of a security interest by the lender, in which case they would appear to fall outside the scope of the [FDCPA], or whether foreclosures are an attempt to collect the underlying monetary debt, in which case they would fall within the scope of the [FDCPA]." Rousseau, id. "The vast majority of courts to address the issue, however, have determined that non-judicial foreclosure proceedings fall outside the scope of the FDCPA." Yokomizo, supra at 2011 WL 5024899 at * 4 (citing Mayhew v. Cherry Creek Mortg. Co., Inc. , No. 09-cv-00219-PAB-CBS, 2010 WL 935674, at *12 (D. Colo. Mar. 10, 2010)); see also Patrick v. Bank of N.Y. Mellon, 2013 WL 607832 (D. Colo. Feb. 19, 2012) at *5-6 (“like the court in Rousseau, this court finds no extenuating circumstances to warrant deviation from the majority view on this issue in the absence of Tenth Circuit guidance to the contrary.”); Schwitzer v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 22094, 13-14 (D. Colo. 2013). v. Injunctive Relief (Eleventh Claim for Relief) This claim, however it is interpreted, makes no sense as alleged against CLG. CLG’s last act related to Plaintiff’s foreclosure was on May 2, 2014, and CLG ceased doing business as of December 31, 2014. CLG does not claim any interest in or title to the Plaintiff’s real property, and any injunctive relief imposed as against CLG would Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 12 of 25 13 have no bearing on any of the Plaintiff’s claims. Consequently, this claim should be dismissed. vi. Negligent/Intentional Infliction of Emotional Distress (Twelfth and Thirteenth Claims for Relief) Plaintiff’s tort claims are barred by the applicable statute of limitations. The statute for these claims under C.R.S. § 13-80-102(1)(a) is two (2) years after the cause of action accrues, e.g. from the date that a plaintiff became aware of the injury. The Plaintiff in the instant case was an active participant in the foreclosure actions brought by CLG and was represented by an attorney since May 4, 2012. Assuming the plaintiff and her attorney knew the alleged basis for her claims against CLG by the time CLG committed its last act on May 2, 2014, the date by which any action to enforce a claim for infliction of emotional distress would have had to be brought was May 2, 2016. The instant Complaint was filed after that date. In the event the Court is inclined to review the substance of these claims, the conclusion to be reached is that there are no plausible claims pleaded for negligent or intentional infliction of emotional distress. A claim for negligent infliction of emotional distress ("NIED"), requires an initial showing that "defendant's negligence created an unreasonable risk of physical harm and caused the plaintiff to be put in fear for his or her own safety….” Draper v. DeFrenchi-Gordineer, 282 P.3d 489, 496-97 (Colo. App. 2011); see also Amerson v. Chase Home Fin. LLC, No. 11-cv-1041-WJM-MEH, 2012 WL 1686168, at *15 (D. Colo. May 7, 2012)(in an action against CLG, and others, the recommendation was for dismissal of the plaintiff’s NIED claim because there was no allegation that CLG created a risk of physical harm to the plaintiff). The Complaint Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 13 of 25 14 contains no factual allegations suggesting that CLG created a risk of physical harm to the Plaintiff or that she was put in fear for her safety. Additionally, the Plaintiff does not plead – and cannot prove – a vital element in any alleged tort, e.g. that CLG owed a specific duty to her which it breached. It is axiomatic that a lawyer owes a duty to his or her client, not to the client’s adversary. See Allied Financial Services, Inc. v. Easley, 676 F.2d 422 (10th Cir. 1982); Rohda v. Franklin Life Insurance Co., 689 F. Supp. 1034 (D. Colo. 1988); Montano v. Land Title Guarantee Co., 778 P.2d 328 (Colo. App. 1989); see generally Annot., 61 A.L.R.4th 615 (1988). Therefore, the Plaintiff’s negligence cause of action must be dismissed. As for CLG having committed the tort of intentional infliction of emotional distress (“IIED”), it is neither extreme nor outrageous for an entity possessing and filing the requisite documents under Colorado law to institute foreclosure proceedings to protect its clients’ security interests. Mbaku v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 15073 (D. Colo. Feb. 1, 2013). It has been held that a defendant is “never liable . . . where he has done no more than insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.” Northern Natural Gas Company v. L.D. Drilling, 2010 WL 3892227, at *4 (D. Kan. 2010). Accordingly, any claim for IIED based upon the filing of a foreclosure action must be dismissed. Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 14 of 25 15 vii. Civil RICO (Fourteenth Claim for Relief) RICO STANDING: The Plaintiff lacks standing to assert damages under the state statutes upon which she bases her case. Standing under RICO involves three (3) elements: “[f]irst, the plaintiff must have suffered a concrete, actual ‘injury in fact.’; [s]econd, there must be a causal connection between the injury and the conduct at issue; [and] [t]hird, it must be likely that a favorable decision will redress the plaintiff’s injury.” Green v. Haskell County Bd. of Comm’rs, 568 F.3d 784, 793 (10th Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The plaintiff bears the burden of establishing standing, and each element of standing must be established with the degree of proof necessary to survive each successive stage of litigation. Rector v. City & County of Denver, 348 F.3d 935, 942-43 (10th Cir. 2003) (quoting Lujan, 504 U.S. at 561). The Supreme Court has held that standing considerations are “an indispensable part of the plaintiff’s case,” and that “each element [required for standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. The injury…cannot be abstract. Phelps v. Hamilton, 122 F.3d 1309, 1316 (10th Cir. 1997). It must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” and it must be fairly traceable “to the action of the defendant…” Rector, 348 F.3d at 942. The Plaintiff cannot meet the first or second requirements of standing since she has not suffered an actual “injury in fact” proximately caused by CLG. The sole factual Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 15 of 25 16 basis for her claims against CLG seem to be that CLG improperly commenced and prosecuted a foreclosure of the Plaintiff’s deed of trust on behalf of BANA and then withdrew from the case before the foreclosure was completed. As demonstrated, the foreclosure action was initiated by BANA, the “holder of the evidence of debt” in accordance with C.R.S. § 38-38-100.3 et. seq. and C.R.C.P. 120. Here, the Plaintiff cannot demonstrate that she has suffered an actual injury-in-fact caused by CLG, as CLG transferred its file to Janeway Law Firm on or about May 27, 2014, long before any actual injury to the Plaintiff. Since “RICO standing is a more rigorous matter than standing under Article III,” the Plaintiff has no standing to assert such a claim against CLG. See The American Medical Association, et al. v. United Healthcare Corporation, 588 F.Supp.2d 432, 440-441 (S.D.N.Y. 2008) (citations omitted). PATTERN: The initial aspect of a claim under RICO is proof of a “pattern of racketeering activity”, as defined by 18 U.S.C. § 1961(5). See generally, Torwest DBC Inc. v. Dick, 810 F.2d 925, 927-29 (10th Cir. 1987). The genesis of the pattern requirement is relatively simple and was first interpreted by the United States Supreme Court in Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). In that case, in “Footnote 14”, the Court stated that “…a pattern ‘requires at least two acts of racketeering activity,’ … not that it ‘means’ two such acts.” Id. at 493. Subsequently, in H. J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), the Supreme Court attempted to eliminate some of the confusion generated in the wake of Sedima, directly addressed the pattern requirement, and endorsed a “flexible” approach to the pattern issue. Id. at 238. Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 16 of 25 17 In the wake of the Supreme Court’s decisions in Sedima and H. J. Inc., most federal courts addressing the pattern requirement have focused more on whether the alleged racketeering conduct is sufficiently “continuous” than whether the acts are sufficiently “related.” A key contribution of the Supreme Court’s decision in H.J., Inc. was its recognition that continuity was “both a closed and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that, by its nature, projects into the future with a threat of repetition.” Id. at 241. In the instant case, this Plaintiff, in her allegations against CLG, alleges injuries arising out of a closed set of discrete predicate acts that do not bear the threat of future repetition. As such, her RICO claims allege closed-end continuity. Such a claim brought in the Tenth Circuit requires the plaintiff to plead/prove a series of predicate acts of sufficient duration, and then to meet the additional requirement of a multi-factor analysis such as the number and variety of predicate acts, the number of both participants and victims, and the presence of separate schemes. Those factors are relevant in determining whether closed-end continuity exists. See Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1543-44 (10th Cir. 1993).1 1 In Savastano v. Thompson Medical Company, 640 F. Supp. 1081 (S.D.N.Y. 1986) the court commented that “…courts [have] criticized the practice of 'car[ving] one criminal episode into multiple predicate act 'pieces' and alleg[ing] a 'pattern' within the meaning of the [RICO] statute. Id. at 1086 (citations omitted). That warning bears special consideration here, where there is one transaction, e.g. CLG’s representation of BANA in the foreclosure of the plaintiff’s property. To say that the Complaint pleads something other than the “formulaic recitation” of the federal racketeering statute devoid of, e.g. the facts to support predicate acts of mail/wire fraud is to create something where nothing plausible exists. See L-3 Communications Corp. v. Jaxon Engineering, et al., 2012 U.S. Dist. LEXIS 41443 (D. Colo., Mar. 27, 2012) (claims for mail and wire fraud brought in racketeering action found insufficient.). Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 17 of 25 18 In conducting such an analysis, federal courts tend to dismiss RICO claims that fail to allege more than one criminal episode or scheme. In a 2006 decision, the Sixth circuit affirmed the dismissal of a complaint alleging a civil RICO violation because “all of the predicate acts … were keyed to Defendants’ single objective of depriving [the plaintiff] of his benefits [and] no other schemes, purposes, or injuries [were] alleged.” See Moon v. Harrison Piping Supply, 465 F.3d 719 (6th Cir. 2006). Decisions from various circuits have reached the same conclusion. See, e.g., GE Investment Private Placement Partners II v. Parker, 247 F.3d 543, 549 (4th Cir. 2001)(“schemes involving fraud related to the sale of a single enterprise do not constitute or sufficiently threaten the ‘long-term criminal conduct’ that RICO was intended to address”); Al-Abood ex rel, Al-Abood v. Al-Shjmari, 217 F.3d 225, 238 (4th Cir. 2000)(no pattern where there was only a single victim, and the conduct did not amount to anything more than “customary fraud”); Edmonson & Gallagher v. Alban Towers Tenants Association, 48 F.3d 1260, 1265 (D.C. Cir. 1995)(it would be “virtually impossible for a plaintiff to sufficiently state a RICO claim where there was only a “single scheme, single injury, and few victims”); Western Assocs. Ltd. P’ship v. Market Square Assocs., 235 F.3d 629, 633-34 (D.C. Cir. 2001)(four separate predicate acts that affected only one plaintiff did not constitute a pattern of racketeering). In yet another post-H.J., Inc. decision, Then-Chief Justice Breyer of the First Circuit wrote that a “pattern of racketeering activity” could not ”encompass a single criminal event, a single criminal episode, a single crime (in the ordinary non-technical sense of the word)” even if “separate parts may themselves constitute separate criminal Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 18 of 25 19 acts.” See Apparel Art Intern., Inc. v. Jacobson, 967 F.2d 720, 722 (1st Cir. 1992). The facts alleged by the instant Plaintiff, in light of the above authority, demonstrate that she cannot prove the pattern element of her RICO claim. ENTERPRISE: It is axiomatic that in RICO-pleading, the “enterprise” cannot be the “pattern of racketeering activity”; it must be an entity separate and apart from the pattern of activity in which it engages, and the existence of an enterprise at all times remains a separate element which must be presented to satisfy a claim under RICO. United States v. Turkette, 452 U.S. 576, 583 (1981). The allegation in the Plaintiff’s Complaint that the “association-in-fact was and is an ‘enterprise’” (Complaint ¶¶ 380-381) is a descriptive/conclusory phrase instead of a factual allegation which reflects a properly pleaded enterprise. In Henson v. Bank of Am., 935 F.Supp.2d 1128, 1135 n.4 (D. Colo. 2013), the court dismissed a racketeering claim against CLG and others for failure of the plaintiff to properly prove both pattern and enterprise. In that decision, Judge Arguello cited Cambell v. Bank of New York Trust Co., N.A., No. 11Civ.1588, 2012 WL 2952852, at *12 (S.D.N.Y. May 8, 2012) (unpublished) which held “… that the plaintiffs’ conclusory allegations were insufficient to establish that the defendant ‘functioned as a unit’ or that the enterprise was separate and distinct from the fraudulent scheme in which the defendants allegedly engaged.” The same conclusion is evident from a review of the Plaintiff’s allegations. From a literal reading of the Complaint, it is evident that there is no pleaded distinction between whatever enterprise may be alleged and the individual RICO Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 19 of 25 20 persons. There are not even sufficient facts alleged to establish a plausible simple conspiracy among, for example, the several law firm defendants. If the Complaint purports to allege an association-in-fact enterprise among BANA, CLG and others, such an amorphous association does not constitute an association-in-fact enterprise. The alleged association—whatever it is supposed to be or to represent—has no “ascertainable structure which exists for the purpose of maintaining operations directed toward an economic goal that has an existence that can be defined apart from the commission of the predicate acts constituting the pattern of racketeering activity.” United States v. Anderson, 626 F.2d 1358, 1372 (8th Cir. 1980) (emphasis supplied). In this case, the Plaintiff has no ability to prove that the alleged acts were committed through an enterprise. As Judge Krieger observed in Kriston v. Peroulis, et al., 2010 U.S. Dist. LEXIS 30481 (D. Colo. Mar. 29, 2010), “[t]he existence of [even] an association-in-fact [enterprise] is proven by evidence of an ongoing organization, either formal or informal, under which the various associates function as a continuing unit.” Id. at 23, citing Boyle v. United States, 129 S.Ct. 2237, 2243 (2009); see also Smith and Reed, Civil RICO, ¶7.02 at 7-30.15 (2002) (“numerous cases hold that mere ‘conclusory’ enterprise allegations are insufficient”; and “[courts] are particularly skeptical of imprecise association-in-fact enterprise allegations”). Further, as most-recently established by Boyle, supra at 129 S. Ct. 2243, an association-in-fact enterprise must have a structure with three features: purpose, relationships among those associated with the enterprise, and longevity. This position was acknowledged in United States v. Hutchinson, 573 F.3d 1011, 1022 (10th Cir. Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 20 of 25 21 2009) as “govern[ing] disposition of … future RICO cases in our circuit.” In the instant case, CLG is alleged to have committed discrete acts (as the law firm representing BANA) of filing and prosecuting the foreclosure of the Plaintiff’s deed of trust. The Complaint’s conclusions that certain acts were committed through an enterprise merely identify acts which were allegedly committed by CLG, not an enterprise. See Myers v. Lee, 2010 WL 37745632 (E.D. Va. Sept. 21, 2010) (dismissing RICO claim where complaint failed to allege “a RICO enterprise that operates or functions in a way distinct from the defendants themselves”). Plaintiffs in a civil RICO case must plausibly allege the existence of an enterprise and must demonstrate more than a list of entities and activities strung together and labeled as an association-in-fact enterprise. See, e.g., Richmond v. Nationwde Cassel, L.P., 52 P.3d 640 (7th Cir. 1995). Conclusory or speculative allegations that an enterprise exists, standing alone, are insufficient to defeat a motion to dismiss. See, e.g., Ass’n of Cleveland Firefighters v. City of Cleveland, Ohio, 502 F.3d 545 (6th Cir. 2007). As Judge Babcock noted in FDIC v. First Interstate Bank of Denver, et al., 937 F. Supp. 1461, 1472 (D.Colo. 1996) “…liability depends on showing that the defendants conducted or participated in the conduct of the enterprise’s affairs not just their own affairs”; see also Ouwinga v. John Hancock Variable Life Inc., No. 1:09cv60, 2010 WL 4386931 (W.D. Mich. Oct. 29, 2010) (a RICO enterprise alleged as associated-in-fact must be pled as existing separately from the defendants’ activity; it may not merely consist of the named defendants). Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 21 of 25 22 In Reves v. Ernst & Young, 507 U.S. 170, 177 (1993), the Supreme Court concluded that liability under RICO required that the RICO person or defendant “participated in the operation of the enterprise itself.” Instructively, in order to explain this language in a racketeering case brought under the Colorado Organized Crime Control Act, Judge Kane concluded that, “…[f]raudulent conduct consisting of no more than rendering services to, promoting, perpetuating or concealing the existence of a RICO scheme does not suffice even if some level of decision-making is involved.” FDIC v. Refco Group, Ltd., 989 F. Supp. 1052 (D. Colo. 1997) (citing Reves, 507 U.S. at 178- 186). Practically, in FDIC, acts such as “making false representations regarding the size and performance of…account[s]…and signing and sending false audit confirmations….” seem factually similar to the general allegations in this case that CLG’s former attorneys wrongfully filed/recorded copies of copies of documents, and as BANA’s attorneys, made, inter alia, false representations regarding BANA’s interest in Plaintiff’s property. As such, the conclusion in FDIC v. Refco Group was that such acts “…do not rise to the level of operation or management of the enterprise.” FDIC, id.; see also Seidl v.Greentree Mortgage Co., 30 F. Supp. 2d 1292 (D. Colo.1998) (legal advice and representation is, by itself, insufficient to justify liability under an operation or management analysis); see also Sender v. Mann, 423 F. Supp. 2d 1155, 1177-1178 (D. Colo. 2006). Developing case precedent demonstrates that a RICO defendant must have exerted some degree of control over the management and decisions of the enterprise to Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 22 of 25 23 face potential liability. See, e.g., Conte v. Newday, 703 F.Supp. 2d 126 (E.D.N.Y. 2010). Simply having a business relationship with or performing valuable services for an enterprise, even with knowledge of the enterprise’s illicit nature, is not enough to subject an individual to RICO liability. See, e.g., In re: Mastercard Int’l. Inc., 132 F.Supp. 2d 468, 478 (E.D.La. 2004), aff’d, 313 F.3d 257 (5th Cir. 2002). Federal courts have long cautioned against casting an overly-broad net to turn every multi-party case into a racketeering enterprise. In this case, CLG sought to foreclose one deed of trust on behalf of one client. The Plaintiff attempts to divide up that one foreclosure into as many parts as possible, even going as far as identifying the individual CLG attorneys who worked on the foreclosure so as to bolster her racketeering claim. Objectively, this is not what RICO contemplated, and Plaintiff’s efforts should fail. Finally, the provisions of RICO conferring federal jurisdiction provide that the enterprise, not the predicate acts or pattern, must be engaged in or affect interstate or foreign commerce. United States v. Murphy, 768, F.2d 1518, 1531 (7th Cir. 1985); see also, Reynolds v. Condon, 908 F.Supp. 1494, 1508 n.6 (N.D. Iowa (1995) (the enterprise rather than the individual defendants must affect interstate commerce). While the provision has been liberally construed, if there is no nexus whatsoever with interstate commerce, there can be no RICO claim. See, e.g. Owl Construction Co. v. Ronald Adams Contractor, Inc., 642 F.Supp. 475, 478 (E.D. La. 1986) (rejecting plaintiff’s RICO claim for failure to produce any evidence showing an effect on interstate commerce). There is no interstate commerce nexus in this case; state law controls Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 23 of 25 24 matters related to foreclosures, and such real property matters are a quintessential example of intrastate matters. WHEREFORE, Defendant CLG requests that Plaintiff’s Complaint be dismissed with prejudice and that this Defendant be awarded its costs and attorney fees pursuant to 42 U.S.C. § 1988, 15 U.S.C. § 1692(k)(3) and C.R.S. § 13-17-102. RESPECTFULLY SUBMITTED this 28th day of July, 2016. VAGLICA & ASSOCIATES, LLC. /s/ Phillip A. Vaglica Phillip A. Vaglica 6782 S. Potomac St., #150 Centennial, CO 80112 Telephone: (720) 221-5894 vaglica@vaglica.com Attorney for The Castle Law Group, LLC Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 24 of 25 25 CERTIFICATE OF SERVICE I certify that on July___, 2016, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:  Alison Lee Berry alisonberry@janewaylaw.com,snowgeiger@janewaylaw.com  Jennifer Ann Davis jdavis@chaffeecounty.org,btidd@chaffeecounty.org  Heather Lea Deere heather@medvedlaw.com  Vanessa Angelica Devereaux vdevereaux@messner.com,vanessa.devereaux@colorado.edu,teckhardt@mess ner.com  Scott Leonard Evans sevans@messner.com,twelch@messner.com,kdonahue@messner.com,jmontoy a@messner.com  Gary D. Fielder criminaldefense@fielderlaw.net  Kelly Sue Kilgore kelly.kilgore@kutakrock.com,edna.slagle@kutakrock.com  Morton Adam Lewis adam.lewis@bryancave.com,clientserviceteam_den@bryancave.com,alicia.berry @bryancave.com  Elizabeth S. Marcus lizmarcus@janewaylaw.com,snowgeiger@janewaylaw.com  LeeAnn Morrill leeann.morrill@state.co.us,debbie.bendell@state.co.us  Charles E. Mortimer , Jr cmortimer@chaffeecounty.org,bsbiz@hotmail.com VAGLICA & ASSOCIATES, LLC s/ Colette Poeppel Colette Poeppel Case 1:16-cv-01296-PAB-NYW Document 89 Filed 07/28/16 USDC Colorado Page 25 of 25 Register of Actions Filed by Plaintiff/Petitioner Case Number: 2014CV030022 Division: 2 Filed by Defendant/Respondent Case Type: Rule 120 Deeds of Trust Public Trustee Judicial Officer: Charles M Barton Filed by Court Case Caption: Bank Of America Na v. Fenstemaker, Robert et al Court Location: Chaffee County Filing ID Date Filed Authorizer Organization Filing Party Document Document Title Document Security 3AB2D6BB93E15 08/25/2014 4:12 PM Gary D Fielder Law Office of Gary Fielder Nancy Haney Exhibit - Attach to Pleading/Doc Objection Exhibit - Attach to Pleading/Doc Respondent's Exhibit 2 - Order Granting Bank of America N.A.'s Motion for Dismissal Emergency Objection to Proposed Order Pursuant to C.R.C.P. 121,1-16 Respondent's Exhibit 1 - Withdrawal of Notice of Election and Demand for Sale Public Public Public N/A (Details) 08/18/2014 11:18 AM Charles M Barton Chaffee County N/A Order (Related Document) Order: Order Granting Bank of America, N.A.'s Motion for Dismissal Public N/A 08/18/2014 12:00 AM N/A N/A N/A Case Closed - Dismissed N/A AAF3529C26770 08/12/2014 9:39 AM Lynn Marie Janeway Janeway Law Firm PC Bank of America Na Proposed Order (Related Document) Motion to Dismiss Filing Other Order Granting Bank of America, N.A.'s Motion for Dismissal Bank of America, N.A.'s Motion for Dismissal Filing Other- Granted Order Authorizing Sale Public Public Public N/A (Details) 07/31/2014 10:57 AM Charles M Barton Chaffee County N/A Order (Related Document) Order: Proposed Order Re: Unopposed Motion to Continue Rule 120 Hearing Public DA319D8B4A9F6 07/30/2014 4:09 PM Gary D Fielder Law Office of Gary Fielder Nancy Haney Exhibits - Trial/Hearing Motion Respondent's Exhibit 1 - Cure Figures Unopposed Motion Public Public Page 1 of 3Register of Actions and Party Information 7/14/2016https://www.jbits.courts.state.co.us/icces/web/caseInformation/caseHistory.htm?cas... EXHIBIT A Case 1:16-cv-01296-PAB-NYW Document 89-1 Filed 07/28/16 USDC Colorado Page 1 of 3 Proposed Order (Related Document) Exhibits - Trial/Hearing Proposed Order Re: Unopposed Motion to Continue Rule 120 Hearing to Continue Rule 120 Hearing Respondent's Exhibit 2 - Denver Post Article Public Public F0485A09AB7CF 07/25/2014 10:28 AM Gary D Fielder Law Office of Gary Fielder Nancy Haney Return of Service Return of Service - Service of Subpoena Duces Tecum on Diana Wood, Chaffee Co. Public Trustee on 7/21/14 Public BD9823FDA9150 07/17/2014 2:47 PM Gary D Fielder Law Office of Gary Fielder Nancy Haney Subpoena Subpoena Duces Tecum Public N/A (Details) 07/15/2014 4:48 PM Charles M Barton Chaffee County N/A Order (Related Document) Order Unopposed Motion for Absentee Testimony Public 9739D3D047769 07/15/2014 8:50 AM Lynn Marie Janeway Janeway Law Firm PC Bank of America Na Exhibits - Trial/Hearing Motion Proposed Order (Related Document) Exhibits - Trial/Hearing Exhibits - Trial/Hearing Exhibit 3 - Payment History Unopposed Motion for Absentee Testimony Proposed Order Unopposed Motion for Absentee Testimony Exhibit 1 - Note Exhibit 2 - Deed of Trust Public Public Public Public Public N/A (Details) 06/23/2014 7:27 AM Charles M Barton Chaffee County N/A Order (Related Document) Order Granting Unopposed Motion to Vacate Hearing and Reset Public 727B76DE3180D 06/20/2014 10:46 AM Lynn Marie Janeway Janeway Law Firm PC Bank of America Na Proposed Order (Related Document) Motion Proposed Order Granting Unopposed Motion to Vacate Hearing and Reset Unopposed Motion to Vacate Hearing and Reset Public Public 8C43C0027303A 06/03/2014 3:46 PM Lynn Marie Janeway Janeway Law Firm PC Bank of America Na Notice of Hearing Notice of Contested C.R.C.P. 120 Hearing 6-23-14 at 1:15 p.m. Public 45F7BE441F1E1 05/30/2014 11:04 AM Lynn Marie Janeway Janeway Law Firm PC Bank of America Na Notice Notice to Set Public B8510F92B7471 05/28/2014 Lynn Marie Janeway Law Bank of Substitution of Substitution of Public Page 2 of 3Register of Actions and Party Information 7/14/2016https://www.jbits.courts.state.co.us/icces/web/caseInformation/caseHistory.htm?cas... Case 1:16-cv-01296-PAB-NYW Document 89-1 Filed 07/28/16 USDC Colorado Page 2 of 3 Party Information 2:03 PM Janeway Firm PC America Na Counsel Counsel C38EBD8BA60A6 05/27/2014 6:09 PM Gary D Fielder Law Office of Gary Fielder Nancy Haney Answer Respondent's Verified Answer to Motion for Order Authorizing Sale Public B9BC1C70304C4 05/02/2014 6:00 PM Cynthia Lowery- Graber The Castle Law Group LLC Bank of America Na Proposed Order Motion for Order Authorizing Sale Certificate Civil Case Cover Sheet Exhibit List Exhibit List Notice of Hearing ORDER AUTHORIZING SALE MOTION FOR ORDER AUTHORIZING SALE CERTIFICATE OF POSTING AND MAILING OF NOTICES CIVIL CASE COVER SHEET EXHIBIT NOTE AND DEED OF TRUST EXHIBIT 2 NOTICE OF HEARING 06-02- 14 Public Public Public Public Public Public Public Party Name Party Type Party Status Attorney Name Bank of America Na Plaintiff Active Lynn Marie Janeway (Janeway Law Firm PC) Nancy Haney Defendant Active Gary D Fielder (Law Office of Gary Fielder) Robert Fenstemaker Defendant Active N/A Page 3 of 3Register of Actions and Party Information 7/14/2016https://www.jbits.courts.state.co.us/icces/web/caseInformation/caseHistory.htm?cas... Case 1:16-cv-01296-PAB-NYW Document 89-1 Filed 07/28/16 USDC Colorado Page of 3 Register of Actions Filed by Plaintiff/Petitioner Case Number: 2012CV000033 Division: 2 Filed by Defendant/Respondent Case Type: Rule 120 Deeds of Trust Public Trustee Judicial Officer: Charles M Barton Filed by Court Case Caption: Bank Of America N A Successor By Merger v. Fenstemaker, Robert et al Court Location: Chaffee County Filing ID Date Filed Authorizer Organization Filing Party Document Document Title Document Security N/A (Details) 10/11/2012 2:42 PM N/A N/A Nancy Haney Filing Other Transcript Request Form Public N/A (Details) 08/09/2012 1:28 PM Charles M Barton Chaffee County N/A Order Grant (PROPOSED ORDER AUTHORIZING SALE) Public N/A (Details) 08/08/2012 12:00 AM N/A N/A N/A Accepted without Docketing PROPOSED ORDER AUTHORIZING SALE Public N/A (Details) 07/24/2012 1:33 PM N/A N/A Bank of America N A Successor By Merger Exhibit - Attach to Pleading/Doc Exhibits 1-3 admitted for Rule 120 hearing held on 7-24-12 Sealed N/A 07/24/2012 12:00 AM N/A N/A N/A Minute Order - Print N/A N/A 07/24/2012 12:00 AM N/A N/A N/A Case Closed N/A N/A (Details) 07/19/2012 2:10 PM N/A N/A Bank of America N A Successor By Merger Filing Other AMENDED EXHIBIT 3 - UPDATED PAYMENT HISTORY - RE: MOTION FOR ABSENTEE TESTIMONY Public N/A (Details) 07/19/2012 2:10 PM N/A N/A Bank of America N A Successor By Merger Certificate CERTIFICATE OF MAILING Public N/A (Details) 05/17/2012 5:09 PM N/A N/A Bank of America N A Successor By Merger Notice of Hearing PETITIONER'S NOTICE OF CONTESTED RULE 120 HEARING 07-24- 2012 Public N/A (Details) 05/15/2012 9:59 AM Charles M Barton Chaffee County N/A Order Grant (ORDER RE: PETITIONER'S MOTION FOR ABSENTEE Public Page 1 of 5Register of Actions and Party Information 7/14/2016https://www.jbits.courts.state.co.us/icces/web/caseInformation/caseHistory.htm?cas... EXHIBIT B Case 1:16-cv-01296-PAB-NYW Document 89-2 Filed 07/28/16 USDC Colorado Page 1 of 5 TESTIMONY) N/A (Details) 05/15/2012 9:58 AM Charles M Barton Chaffee County N/A Order Grant (ORDER RE: PETITIONER'S MOTION FOR ABSENTEE TESTIMONY) Public N/A (Details) 05/15/2012 9:56 AM Charles M Barton Chaffee County N/A Order Action Taken - See Order (Motion to vacate order and request of stay- injunction and for extension of time) Public N/A (Details) 05/15/2012 9:54 AM Charles M Barton Chaffee County N/A Order Grant (Order Re: Motion for Extension of Time to File Response to Verified Motion for Order Authorizing Sale Under Rule 120, C.R.C.P., and Motion to Continue for Contested Hearing) Public N/A (Details) 05/14/2012 1:12 PM N/A N/A Bank of America N A Successor By Merger Filing Other PETITIONER'S EXHIBIT 4 - MERGER DOCUMENTS - MOTION FOR ABSENTEE TESTIMONY Public N/A (Details) 05/14/2012 1:12 PM N/A N/A Bank of America N A Successor By Merger Certificate CERTIFICATE OF MAILING - PETITIONER'S EXHIBIT 4 - MERGER DOCUMENTS - MOTION FOR ABSENTEE TESTIMONY Public N/A (Details) 05/10/2012 10:01 AM N/A N/A Bank of America N A Successor By Merger Filing Other PETITIONER'S EXHIBIT 3 - PAYMENT HISTORY Restricted N/A (Details) 05/10/2012 10:01 AM N/A N/A Bank of America N A Successor By Merger Certificate CERTIFICATE OF MAILING - RE: PETITIONER'S EXHIBIT 3 - PAYMENT HISTORY Public N/A (Details) 05/09/2012 1:44 PM N/A N/A Nancy Haney Motion Motion for Extension of Time to File Response to Verified Motion for Order Authorizing Sale Under Rule 120, C.R.C.P., and Motion to Continue for Contested Hearing Public Page 2 of 5Register of Actions and Party Information 7/14/2016https://www.jbits.courts.state.co.us/icces/web/caseInformation/caseHistory.htm?cas... Case 1:16-cv-01296-PAB-NYW Document 89-2 Filed 07/28/16 USDC Colorado Page 2 of 5 N/A (Details) 05/09/2012 1:44 PM N/A N/A N/A Accepted without Docketing Order Re: Motion for Extension of Time to File Response to Verified Motion for Order Authorizing Sale Under Rule 120, C.R.C.P., and Motion to Continue for Contested Hearing Public N/A (Details) 05/04/2012 4:52 PM N/A N/A Bank of America N A Successor By Merger Filing Other EXHIBIT 1 - ORIGIANL NOTE - RE: PETITIONER'S MOTION FOR ABSENTEE TESTIMONY Public N/A (Details) 05/04/2012 4:52 PM N/A N/A Bank of America N A Successor By Merger Filing Other EXHIBIT 2 - DEED OF TRUST - RE: PETITIONER'S MOTION FOR ABSENTEE TESTIMONY Public N/A (Details) 05/04/2012 4:52 PM N/A N/A Bank of America N A Successor By Merger Motion PETITIONER'S MOTION FOR ABSENTEE TESTIMONY Public N/A (Details) 05/04/2012 4:52 PM N/A N/A N/A Accepted without Docketing ORDER RE: PETITIONER'S MOTION FOR ABSENTEE TESTIMONY Public N/A (Details) 05/04/2012 4:48 PM N/A N/A Bank of America N A Successor By Merger Motion PETITIONER'S MOTION FOR ABSENTEE TESTIMONY Public N/A (Details) 05/04/2012 4:48 PM N/A N/A N/A Accepted without Docketing ORDER RE: PETITIONER'S MOTION FOR ABSENTEE TESTIMONY Public N/A (Details) 05/04/2012 11:05 AM N/A N/A Nancy Haney Entry of Appearance Entry of Appearance on behalf of Nancy Haney Public N/A (Details) 05/03/2012 11:22 AM N/A N/A Bank of America N A Successor By Merger Notice of Hearing PETITIONER'S NOTICE OF CONTESTED RULE 120 HEARING 5-15-12 AT 1:15 PM Public N/A (Details) 05/01/2012 1:29 PM Charles M Barton Chaffee County N/A Order Finding and order concerning payment of filing fees Public N/A (Details) 05/01/2012 1:19 PM N/A N/A Nancy Haney Motion Motion to vacate Public Page 3 of 5Register of Actions and Party Information 7/14/2016https://www.jbits.courts.state.co.us/icces/web/caseInformation/caseHistory.htm?cas... Case 1:16-cv-01296-PAB-NYW Document 89-2 Filed 07/28/16 USDC Colorado Page 3 of 5 Party Information order and request of stay-injunction and for extension of time N/A (Details) 05/01/2012 12:00 AM N/A N/A Nancy Haney Motion Motion to File without Payment Suppressed N/A (Details) 04/25/2012 8:00 PM N/A N/A Bank of America N A Successor By Merger Notice NOTICE OF FILING OF AFFIDAVIT Public N/A (Details) 04/25/2012 8:00 PM N/A N/A Bank of America N A Successor By Merger Filing Other AFFIDAVIT OF POSTING FOR NOTICE OF HEARING Public N/A (Details) 04/06/2012 8:00 PM N/A N/A Bank of America N A Successor By Merger Motion for Order Authorizing Sale MOTION FOR ORDER AUTHORIZING SALE Public N/A (Details) 04/06/2012 8:00 PM N/A N/A Bank of America N A Successor By Merger Notice of Hearing NOTICE OF HEARING 4-30-12 Public N/A (Details) 04/06/2012 8:00 PM N/A N/A Bank of America N A Successor By Merger Certificate CERTIFICATE OF POSTING AND MAILING OF NOTICE Public N/A (Details) 04/06/2012 8:00 PM N/A N/A Bank of America N A Successor By Merger Civil Case Cover Sheet COVER SHEET Public N/A (Details) 04/06/2012 8:00 PM N/A N/A Bank of America N A Successor By Merger Filing Other EXHIBIT- NOTE AND DEED OF TRUST Public N/A (Details) 04/06/2012 8:00 PM N/A N/A N/A Accepted without Docketing ORDER AUTHORIZING SALE Public Party Name Party Type Party Status Attorney Name Bank of America N A Successor By Merger Plaintiff Active Elizabeth S Marcus (Janeway Law Firm PC) Countrywide Home Loans Servicing Lp FKA Active N/A Nancy Haney Defendant Active Gary D Fielder (Law Office of Gary Fielder) Page 4 of 5Register of Actions and Party Information 7/14/2016https://www.jbits.courts.state.co.us/icces/web/caseInformation/caseHistory.htm?cas... Case 1:16-cv-01296-PAB-NYW Document 89-2 Filed 07/28/16 USDC Colorado Page 4 of 5 Robert Fenstemaker Defendant Active N/A Page 5 of 5Register of Actions and Party Information 7/14/2016https://www.jbits.courts.state.co.us/icces/web/caseInformation/caseHistory.htm?cas... Case 1:16-cv-01296-PAB-NYW Document 89-2 Filed 07/28/16 USDC Colorado Page of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-cv-01296-PAB-NYW NANCY HANEY, Plaintiff, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, BANK OF AMERICA, NA, THE CASTLE LAW GROUP, LLC, a Colorado limited liability company, MEDVED DALE DECKER & DEERE, LLC, a Colorado limited liability company, SETERUS, INC., WILMINGTON SAVINGS FUND SOCIETY, FSB, as Trustee for Carlsbad Funding Mortgage Trust, JANEWAY LAW FIRM, PC, a Colorado professional corporation, MORTGAGE ELECTRONIC REGISTRY SYSTEMS, INC., ROBERT FENSTEMAKER, an individual, JOHN W. HICKENLOOPER, Governor of the State of Colorado, DEE DEE COPPER, Chaffee County Public Trustee, DISTRICT COURT IN AND FOR THE ELEVENTH JUDICIAL DISTRICT, STATE OF COLORADO, and DOES 1 – 100, Defendants. ORDER GRANTING DEFENDANT THE CASTLE LAW GROUP, LLC’S MOTION TO DISMISS THE COURT, having reviewed the above named defendant’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and being otherwise fully advised, hereby Case 1:16-cv-01296-PAB-NYW Document 89-3 Filed 07/28/16 USDC Colorado Page 1 of 2 2 GRANTS the motion. The court dismisses the complaint against defendant The Castle Law Group, LLC and further, awards the defendant its costs to include attorney fees. Dated this_____day of ________, 2016. BY THE COURT: ________________________________ United States District Judge Case 1:16-cv-01296-PAB-NYW Document 89-3 Filed 07/28/16 USDC Colorado Page 2 of 2