Bank of America v. Bank One, N.A., et al

Filing 62

ORDER granting 59 Plaintiff's Motion for Entry of Default Judgment Against Defendants Bank One, N.A. and Compass Bank, by Judge Robert E. Blackburn on 4/16/12.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-00930-REB-BNB
BANK OF AMERICA, a national banking association,
Plaintiff,
v.
BANK ONE, N.A., a national banking association,
COMPASS BANK, a Colorado corporation, and
CAROL SNYDER, Public Trustee For Adams County Colorado,
Defendants.

ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
Blackburn, J.
This matter is before the court on the Plaintiff’s Motion for Entry of Default
Judgment Against Defendants Bank One, N.A. and Compass Bank [#59]1 filed
March 9, 2012. The defendants did not file a response. I grant the motion on the terms
stated in this order.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1367 (supplemental).
II. STANDARD OF REVIEW
When a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, the clerk of the court must enter the party’s default. FED.
R. CIV. P. 55(a). After default has entered, the party seeking relief against the defaulting
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“[#59]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.

party may apply to the court for a default judgment and, if the party seeking relief
provides a proper basis for the entry of default judgment, the court may enter default
judgment against the defaulting party. FED. R. CIV. P. 55(b).
III. ANALYSIS
In its Amended Complaint [#20], plaintiff Bank of America alleges that on
December 15, 2000, Neil Schluterbusch, executed a promissory note under which he
borrowed 284,050.00 dollars. The proceeds of the note were used to purchase a house
in Westminster, Colorado, located at 10289 Julian Ct., Westminster, Colorado (the
Property). The legal description of the Property is
LOT 19, BLOCK 2,
NORTHPARK SUBDIVISION FILING NO. 1,
County of Adams, State of Colorado,
Also known as 10289 Julian Ct., Westminster, Colorado 80031.
Mr. Schluterbusch also executed a deed of trust, in the full amount of the promissory
note, which deed of trust effectively created a security interest in the Property. The
deed of trust was recorded and created a first lien on the Property.
On September 28, 2001, Mr. Schluterbusch refinanced his loan by executing a
new promissory note. The proceeds of this note were used to pay off the balance due
on the previous note and to borrow additional funds. Mr. Schluterbusch executed a
deed of trust in the full amount of the September 28, 2001 note that created a security
interest in the Property. The parties to this transaction intended that the September 28,
2001 deed of trust create and be a fist lien on the property. By mistake or inadvertence,
the September 28, 2001 deed of trust was not recorded with the Adams County Clerk
and Recorder until April 28, 2010. Plaintiff Bank of America is the current holder of the
September 28, 2001, promissory note.

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Defendant Compass Bank is the beneficiary of a deed of trust executed by Mr.
Schluterbusch on April 18, 2002 and recorded on May 20, 2002. The original principal
amount of the deed of trust was 33,000 dollars. The lien of this deed of trust effectively
created a security interest in the Property. Defendant Bank One holds a judgment
entered in its favor against Mr. Schluterbusch in the amount of 27,455 dollars. The
judgment was recorded properly on February 27, 2004.
In its complaint [#20], Bank of America seeks a declaratory judgment declaring
that Bank of America’s deed of trust lien created by the September 28, 2001 deed of
trust executed by Mr. Schluterbusch is prior and superior to any security interest or lien
held by any and all of the defendants in the Property. Under Colorado law, a purchase
money mortgage is entitled to priority over all other claims or liens arising through the
mortgagor, even if such other claims are recorded prior thereto and regardless of
whether or not the purchase money mortgage was recorded. ALH Holding Co. v.
Bank of Telluride, 18 P.3d 742, 747 (Colo. 2000). The declaration sought by Bank of
America is consistent with Colorado law.
Under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 - 2202, the court may
enter a judgment declaring “the rights and other legal relations of any interested party
seeking such declaration . . . .” 28 U.S.C. § 2201. A declaratory judgment declaring
that the September 28, 2001, lien created by the deed of trust executed by Mr.
Schluterbusch is prior and superior to any security interest or lien held by any and all of
the defendants in the Property is the only relief sought by Bank of America in its present
motion. On this record the plaintiff is entitled to entry of a default judgment against the
defaulting defendants, Bank One, N.A., a national banking association, and Compass
Bank, a Colorado corporation.
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IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Plaintiff’s Motion for Entry of Default Judgment Against
Defendants Bank One, N.A. and Compass Bank [#59] filed March 9, 2012, is
GRANTED;
2. That under FED. R. CIV. P. 55(b), default JUDGMENT SHALL ENTER in favor
of the plaintiff, Bank of America, a national banking association, against defendants,
Bank One, N.A., a national banking association, and Compass Bank, a Colorado
corporation;
3. That under 28 U.S.C. § 2201, the court ENTERS a declaratory judgment
declaring:
A. Plaintiff Bank of America, a national banking association, has a lien
and security interest in the real property described as LOT 19, BLOCK 2,
NORTHPARK SUBDIVISION FILING NO. 1, County of Adams, State of
Colorado, Also known as 10289 Julian Ct., Westminster, Colorado 80031
(the Property);
B. The the lien and security interest of Bank of America in the real
property described as LOT 19, BLOCK 2, NORTHPARK SUBDIVISION
FILING NO. 1, County of Adams, State of Colorado, Also known as 10289
Julian Ct., Westminster, Colorado 80031, was created by the deed of trust
executed by Michael Neil Schluterbusch on September 28, 2001, and
recorded with the Public Trustee for Adams County, Colorado, on April 28,
2010; and
C. The lien and security interest created by the September 28, 2001,
deed of trust concerning the real property described as LOT 19, BLOCK 2,
NORTHPARK SUBDIVISION FILING NO. 1, County of Adams, State of
Colorado, Also known as 10289 Julian Ct., Westminster, Colorado 80031,
is superior to any liens or other interests in this real property held or
claimed by defendants Bank One, N.A., a national banking association,
and Compass Bank, a Colorado corporation;

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6. That once the claims asserted by the plaintiff against the sole remaining
defendant, Carol Snyder, Public Trustee for Adams County, Colorado, are resolved, the
court will order the entry of a final judgment.
Dated April 16, 2012, at Denver, Colorado.
BY THE COURT:

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