FirsTier Bank, Kimball, Nebraska v. Federal Deposit Insurance Corporation et al

Filing 138

ORDER denying 88 Motion for Order Terminating and Releasing Notice of Claim to Real Estate Interest by Judge Christine M. Arguello on 1/30/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-03231-CMA-MJW (Consolidated for All Purposes with
Civil Action No. 11-cv-03404-CMA-KMT and
Civil Action No. 12-cv-00240-CMA-KMT)
FIRSTIER BANK, KIMBALL, NEBRASKA, a Nebraska Bank,
Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for
FIRSTIER BANK, LOUISVILLE, COLORADO, a Colorado Bank in receivership,
Defendants.

ORDER DENYING FDIC’S MOTION FOR ORDER TERMINATING AND
RELEASING NOTICE OF CLAIM TO REAL ESTATE INTEREST

This matter is before the Court on the FDIC’s Motion for Order Terminating and
Releasing Notice of Claim to Real Estate Interest. (Doc. # 88.) The motion is ripe for
the Court’s review. The facts and background of this case are set forth in detail in
FirsTier Bank, Kimball, Neb. v. F.D.I.C., 935 F. Supp. 2d 1109 (D. Colo. 2013), in which
this Court dismissed all claims for failure to exhaust administrative remedies and failure
to state a claim. The Court denied Consolidated-Plaintiff Adams Bank & Trust’s
(“Adams”) motions to reconsider that ruling on November 13, 2013. 1 (Doc. # 118.)
In the instant motion, the F.D.I.C. asks that the Court terminate a notice that
Adams filed with Arapaho County, Colorado, that states that Adams holds legal title to
real estate and requests that any buyer or other transferee of any right, title, or interest
obtain Adams’ written consent to any such transfer. (Doc. # 88-1.) The F.D.I.C. argues
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Accordingly, Adams’ argument that this motion is premature because the Court had not yet
decided Adams’ motions to reconsider and stay proceedings is moot.

that the notice is a lis pendens and should be “terminated and released pursuant to
the Court’s inherent power to enforce its own orders.” (Doc. # 88, at 3.) However,
lis pendens are filed after the filing of a court action, whereas the notice at issue here
was filed approximately two and a half months prior to this lawsuit. See Colo. Rev. Stat.
§ 38-35-110(1) (“After filing any pleading in an action in any court . . . wherein relief is
claimed affecting the title to real property, any party to such action may record in the
office of the county clerk and recorder in the county or counties in which the real
property or any portion thereof is situated a notice of lis pendens . . . .”) The F.D.I.C.
points to no case law interpreting Colorado’s lis pendens statute as applying to a notice
filed prior to a lawsuit. Therefore, the Court agrees with Adams that the notice is not lis
pendens and the F.D.I.C. has not established that the Court has the authority to grant
the relief it requests—namely, to terminate the notice. That being said, the Court
shares that F.D.I.C.’s apparent concern, voiced in its motion to dismiss (Doc. # 75),
that this notice is improper and that Adams has an obligation to withdraw the notice
or otherwise be open to a separate action for slander of title.
Accordingly, it is ORDERED that the FDIC’s Motion for Order Terminating and
Releasing Notice of Claim to Real Estate Interest (Doc. # 88) is DENIED.
DATED: January 30, 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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