Rader et al v. U.S. Bank National Association

Filing 38

ORDER denying 33 Motion to Reopen Case by Judge Christine M. Arguello on 5/4/18. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-00784-CMA-BNB
VIVIAN L. RADER, and
STEVEN R. RADER,
Plaintiffs,
v.
CITIBANK, N.A. as Successor Trustee to U.S. Bank
National Association, as Successor to Wachovia Bank
National Association as Trustee for the Certificate Holders
of Mastr Alternative Loan Trust 2004-1 Mortgage Pass
Through Certificates Series 2004-1,
MORTGAGE REGISTRATION SYSTEMS, INC.,
UBS WARBURG REAL ESTATE SECURITIES, INC.,
OCWEN LOAN SERVICING LLC, and
DOES 1-10,
Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO RE-OPEN CASE
This matter is before the Court on Plaintiffs Vivian L. Rader and Steven R.
Rader’s Motion to Re-open Case (Doc. # 33), wherein they argue that Defendant
Citibank perpetrated a fraud upon the Court that warrants vacating the Court’s final
order and judgment and re-commencing this litigation. Defendants Citibank; Mortgage
Electronic Registration Systems, Inc.; UBS Warburg Real Estate Securities, Inc.; and
Ocwen Loan Servicing, LLC (Defendants) responded to the motion and objected to
Plaintiffs’ request. For the following reasons, the Court denies Plaintiffs’ motion.

Plaintiffs move to re-open this case under Federal Rule of Civil Procure 63(d)(3).
Rule 60(d) motions that assert “fraud on the court” are not time-limited and can be
brought at any time. “Fraud on the court,” however, is narrowly construed. United
States v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2002). “Fraud upon the court” consists
of “only the most egregious conduct, such as bribery of a judge” or the “fabrication of
evidence by a party in which an attorney is implicated.” Id. It is fraud “directed to the
judicial machinery itself . . . where the impartial functions of the court have been directly
corrupted.” Id. Less egregious conduct such as “nondisclosure of [pertinent] facts . . .
will not ordinarily rise to the level of fraud on the court.” Id. Nor will “fraud between the
parties or fraudulent documents, false statements[,] or perjury” meet the requirements of
Rule 60(d)(3). Moreover, “intent to defraud is an absolute prerequisite,” Weese v.
Schukman, 98 F.3d 542, 553 (10th Cir. 1996), and proof of fraud must be by clear and
convincing evidence. Id. at 552.
Plaintiff’s assertion of fraud does not rise to the level of fraud on the court as
contemplated by Rule 60(d)(3), nor has Plaintiff satisfied the clear and convincing
evidentiary standard. Simply put, Plaintiff argues that Defendant Citibank
misrepresented facts to the Court. Even if true, Defendant’s misrepresentations are
insufficiently egregious to support reopening this case. Plaintiff does not adequately
contend that Defendant Citibank’s attorney was involved, that the impartial functions of
this Court were corrupted, or even that Defendant Citibank acted with fraudulent intent.
The Court therefore DENIES Plaintiff’s Motion to Re-open this case. (Doc. # 33.)

DATED: May 4, 2018

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge