Brumfeil v. U.S. Bank et al

Filing 240

ORDER denying 225 Plaintiffs Motion for Relief from Judgment or Order and Request for Expedited Hearing; denying 229 Plaintiffs Ex Parte Emergency Motion for Order to Extend or Renew Preliminary Injunction or In the Alternative Issue a New TR O; and Plaintiff is prohibited from filing any further motions seeking postjudgment relief in this action. Violation of this Order by Plaintiff may subject her to the imposition of sanctions by the Court, by Judge William J. Martinez on 9/5/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-02716-WJM-MEH
LISA KAY BRUMFIEL,
Plaintiff,
v.
U.S. BANK,
LARRY CASTLE, in his individual and corporate capacities,
CASTLE STAWIARSKI, LLC,
ROBERT J. HOPP, in his individual and corporate capacities,
CYNTHIA MARES, Public Trustee in her official capacity,
MERS, a division of MERSCorp, and
DOES 1-100,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT

This matter is before the Court on pro se Plaintiff Lisa Kay Brumfiel’s Motion for
Relief from Judgment or Order and Request for Expedited Hearing (“Rule 60(b)
Motion”). (ECF No. 225.) Plaintiff asks the Court for relief from the judgment pursuant
to Federal Rule of Civil Procedure 60(b)(2) on the basis of newly discovered evidence.
(Id.) For the following reasons, Plaintiff’s Rule 60(b) Motion is denied.
I. BACKGROUND
On October 12, 2012, Plaintiff brought this action alleging procedural defects in
the foreclosure process under Colorado Rule of Civil Procedure 120 and Colorado
Revised Statute § 38-38-101, as well as common law tort claims and constitutional
claims. (ECF No. 1.) Plaintiff amended her Complaint on March 22, 2013 to add new
defendants. (ECF No. 45.) In April and May of 2013, the various Defendants filed four

Motions to Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6). (ECF Nos. 51, 69, 90 & 91.) On October 2, 2013, the Court
issued an Order granting the Motions to Dismiss pursuant to Rule 12(b)(1) (“Dismissal
Order”), holding that Plaintiff lacked standing to assert her claims for monetary
damages, and that Plaintiff’s claims for injunctive relief were moot. (ECF No. 200.) A
Final Judgment against Plaintiff was entered on October 4, 2013. (ECF No. 203.)
On October 7, 2013, Plaintiff a Motion to Alter and Amend the Judgment
pursuant to Federal Rule of Civil Procedure 59(e). (ECF No. 205.) On October 16,
2013, Plaintiff filed an Emergency Motion for a Limited Evidentiary Hearing on the
12(b)(1) Jurisdictional Issue, in which she requested reconsideration of the Dismissal
Order. (ECF No. 207). On October 17, 2013, the Court construed Plaintif f’s
Emergency Motion as a duplicate motion for Rule 59(e) relief, and thus denied the
Emergency Motion. (ECF No. 208.) On August 14, 2014, the Court denied Plaintiff’s
Motion to Alter and Amend the Judgment. (ECF No. 224.)
On August 25, 2014, Plaintiff filed the instant Rule 60(b) Motion. (ECF No. 225.)
The Court directed Defendants to file any responses on or before September 3, 2014,
and ordered that no reply from Plaintiff would be accepted. (ECF No. 227.) Before
Defendants’ Responses were filed, Plaintiff filed an “Ex Parte Emergency Motion for
Order to Extend or Renew Preliminary Injunction or In the Alternative Issue a New TRO”
(“Emergency Motion”) in which she seeks to enjoin the foreclosure sale of the property
that is the subject of this action. (ECF No. 229.) Given the pending Rule 60(b) Motion,
the Court ordered that it would not rule on the Emergency Motion until after Defendants’
deadline to respond to the Rule 60(b) Motion had elapsed. (ECF No. 232).
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Defendants’ Responses were timely filed on September 2 and 3, 2014. 1 (ECF Nos.
234, 235, 236, 238.) The Rule 60(b) Motion is now ripe for disposition.
II. DISCUSSION
Rule 60(b) permits a Court to grant relief from a final judgment or order for
specified reasons, including “newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under Rule 59(b),” “fraud
. . . , misrepresentation, or misconduct by an opposing party,” or “the judgment is void.”
Fed. R. Civ. P. 60(b)(2), (3), (4). “Rule 60(b) relief ‘is extraordinary and may only be
granted in exceptional circumstances.’ ‘Parties seeking relief under Rule 60(b) have a
higher hurdle to overcome because such a motion is not a substitute for an appeal.’”
Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (quoting
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Cummings v.
Gen. Motors Corp., 365 F.3d 944, 955 (10th Cir. 2004)) (internal citations om itted).
Such motions “are inappropriate vehicles to reargue an issue previously addressed by
the court when the motion merely advances new arguments, or supporting facts which
were available at the time of the original motion.” Servants of Paraclete, 204 F.3d at
1012. Thus, “[i]t is not appropriate to revisit issues already addressed or advance
arguments that could have been raised in prior briefing.” Id. (citing Van Skiver v. United
States, 952 F.2d 1241, 1243 (10th Cir. 1991)). W hether to grant a Rule 60(b) motion

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The Response filed by Defendants Larry Castle and Castle Stawiarski, LLC also
requests attorneys’ fees. (ECF No. 235 at 7.) The Court declines to consider this request, as it
violates both Local Rule D.C.COLO.LCivR. 7.1(c) (“A motion shall not be included in a response
or reply”) and this Court’s Revised Practice Standard III.B. (“All requests for the Court to take
any action . . . must be contained in a separate, written motion”).

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rests within the trial court’s discretion. See Beugler v. Burlington N. & Santa Fe Ry.
Co., 490 F.3d 1224, 1229 (10th Cir. 2007).
Plaintiff’s Rule 60(b) Motion raises three arguments that relief from judgment is
warranted here: (1) Plaintiff has newly discovered evidence of forgery and fraud by
Defendants; (2) Plaintiff has negotiated with the bankruptcy trustee and has obtained
standing to bring the claims for monetary damages that are part of the bankruptcy
estate; and (3) Defendants U.S. Bank, Castle Law Group, and their counsel have
committed fraud on the court. (ECF No. 225 at 2-14.)
In her Motion, Plaintiff cites Rule 60(b)(2), which permits relief from a judgment
based on newly discovered evidence. (ECF No. 225 at 1.) Where a party seeks a new
trial based on newly discovered evidence, the moving party must show:
(1) the evidence was newly discovered since the trial; (2) the moving party
was diligent in discovering the new evidence; (3) the newly discovered
evidence could not be merely cumulative or impeaching; (4) the newly
discovered evidence is material; and (5) that a new trial with the newly
discovered evidence would probably produce a different result.
Zurich N. Am., 426 F.3d at 1290 (citing Graham v. Wyeth Lab., 906 F.2d 1399, 1416
(10th Cir. 1990)) (brackets omitted). While Plaintiff does not seek a new trial here, she
does seek reconsideration of the Dismissal Order. Plaintiff contends that she has
received a letter from a third party purporting to possess the original Promissory Note
and Deed of Trust, and has obtained a report by an expert who has examined those
purported originals in the possession of Defendants and has declared them to be
forgeries. (ECF No. 225 at 2-3.) Plaintiff argues that this evidence proves her
assertions in her Amended Complaint that Defendants lack the documentation required
to foreclose. (Id. at 3-14.) However, even assuming that these documents constitute
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evidence that was newly discovered, they do not alter the analysis in the Dismissal
Order, because they do not show that Plaintiff has standing to bring her claims for
damages that accrued prior to bankruptcy, nor do they alter the mootness analysis that
applies to Plaintiff’s injunctive claims. Thus, this newly discovered evidence does not
provide reason to vacate the judgment under Rule 60(b)(2) because it is immaterial to
the challenged Dismissal Order and would not produce a different result. See Zurich N.
Am., 426 F.3d at 1290.
With respect to Plaintiff’s assertion that she has reopened her bankruptcy case
and regained ownership of her damages claims, such an alleged change in
circumstances does not constitute “newly discovered evidence”. See id. Furthermore,
Plaintiff’s assertion appears to be unfounded. She has filed a copy of an agreement
between herself and the bankruptcy trustee that states that “[t]he Trustee shall file a
notice of abandonment concerning any claim or standing he may have in the Debtor’s
State and Federal cases, thus allowing the Debtor to freely litigate her claims.” (ECF
No. 225-3 ¶ 1.) However, no proof of such abandonment has been filed; instead,
Defendant U.S. Bank has filed a copy of a Motion to Approve Settlement Agreement
that it filed jointly with the bankruptcy trustee, which states that U.S. Bank intervened
when the trustee indicated an intention to abandon the claim s, and has since agreed to
settle those claims. (ECF No. 236-1.) Thus, Plaintiff has failed to present newly
discovered evidence that would alter the standing analysis in the Dismissal Order, and
this argument provides no reason to vacate the judgment.

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Although Plaintiff does not cite Rules 60(b)(3) or (4), she makes arguments that
could be construed as falling under those subsections. 2 Plaintiff contends that
Defendants have committed “fraud on the Court”, which could fall under Rule 60(b)(3).
(ECF No. 225 at 5.) However, “[f]raud on the court . . . is fraud which is directed to the
judicial machinery itself and is not fraud between the parties or fraudulent documents,
false statements or perjury. . . . It is thus fraud where the court or a member is
corrupted or influenced or influence is attempted or where the judge has not performed
his judicial function—thus where the impartial functions of the court have been directly
corrupted.” Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) (en banc).
Plaintiff’s allegation that Defendants “fil[ed] false documents to steal homes through a
wrongful foreclosure process” (ECF No. 225 at 6) does not constitute a f raud on the
Court, nor could any such fraud have resulted in the Dismissal Order or judgment in the
instant case, as the Dismissal Order was based not on the validity of the foreclosure
process but on justiciability grounds. (See ECF No. 200.) Plaintiff’s contentions of
fraud go to the merits of her claims, not the analytical grounds for the Dismissal Order.
Similarly, Plaintiff does not cite Rule 60(b)(4), but she argues that the judgment
is “voidable” and is subject to Rule 60(b) because Defendants’ attempt to foreclose was
“manufactured on fraud and therefore any judgment is rendered void ab initio . . . .”
(ECF No. 225 at 3.) Even if Plaintiff’s allegations of forged documents are taken as
true, however, the judgment is not rendered void. See United Student Aid Funds, Inc.
v. Espinosa, 559 U.S. 260, 270 (2010) (“A judgment is not void, for example, simply

2

As Plaintiff is proceeding pro se, the Court must liberally construe her pleadings.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

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because it is or may have been erroneous.”) (internal quotation marks omitted).
“Instead, Rule 60(b)(4) applies only in the rare instance where a judgment is premised
either on a certain type of jurisdictional error or on a violation of due process that
deprives a party of notice or the opportunity to be heard.” Id. at 271. The fraud alleged
in Plaintiff’s Rule 60(b) Motion does not constitute a jurisdictional def ect or evidence a
deprivation of procedural due process.
In sum, none of the arguments raised in Plaintiff’s Rule 60(b) Motion provide any
reason to grant relief from the judgment. Apart from the arguments discussed above,
the Rule 60(b) Motion merely “revisit[s] issues already addressed . . . [and] advance[s]
arguments that could have been raised in prior briefing.” Servants of Paraclete, 204
F.3d at 1012. Accordingly, the Court finds that Plaintiff has failed to meet her burden
under Rule 60(b), and the Motion must be denied. 3
Plaintiff has now filed a total of three post-judgment motions requesting
reconsideration of the Dismissal Order. (ECF Nos. 205, 207, 225.) All three of these
motions were meritless, and largely raised arguments that were, or could have been,
raised in the briefing on the underlying Motions to Dismiss. (See ECF Nos. 208, 224.)
Plaintiff has caused the Court and opposing parties to needlessly expend resources in
this case, and has exhausted the Court’s patience. Therefore, pursuant to the Court’s
inherent power to manage the cases before it and deter frivolous filings, the Court will
not entertain any further motions from Plaintiff seeking post-judgment relief. See

3

Plaintiff also requests a hearing on her allegations of fraud. (ECF No. 225 at 1.) As
the Court has found no merit to the Rule 60(b) Motion, no hearing is necessary. Plaintiff’s
request is therefore denied.

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Overton v. United States, 48 F. App’x 295, 302 (10th Cir. 2002) (citing Judd v. Univ. of
N.M., 204 F.3d 1041, 1043-45 (10th Cir. 2000), and Tripati v. Beaman, 878 F.2d 351,
352 (10th Cir. 1989)). Should Plaintiff persist in maintaining that the Court has erred,
she may file an appeal pursuant to Federal Rules of Appellate Procedure 4(a)(1) and
4(a)(4).
Finally, while the instant Motion was pending, Plaintiff filed an “Ex Parte
Emergency Motion for Order to Extend or Renew Preliminary Injunction or In the
Alternative Issue a New TRO.” (ECF No. 229.) Because all claims have been
dismissed in this matter, final judgment has been entered, and Plaintiff’s post-judgment
motions have all been denied, the Court lacks jurisdiction over Plaintiff’s new request.
Accordingly, Plaintiff’s Emergency Motion is denied.
III. CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1.

Plaintiff’s Motion for Relief from Judgment or Order and Request for Expedited
Hearing (ECF No. 225) is DENIED;

2.

Plaintiff’s Ex Parte Emergency Motion for Order to Extend or Renew Preliminary
Injunction or In the Alternative Issue a New TRO (ECF No. 229) is DENIED; and

3.

Plaintiff is prohibited from filing any further motions seeking postjudgment relief in this action. Violation of this Order by Plaintiff may
subject her to the imposition of sanctions by the Court.

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Dated this 5th day of September, 2014.

BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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