Brumfiel v. U.S. Bank, N.A. et al
ORDER denying 58 Motion for Order Declaring Lisa Kay Brumfiel a Vexatious Litigant by Magistrate Judge Michael E. Hegarty on 1/28/2015.(mdave)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02453-WJM-MEH
LISA KAY BRUMFIEL,
U.S. BANK, N.A. trustee, for Merrill Lynch/ First Franklin Mortgage Loan Trust,
Mortgage Loan Asset Backed Certificates, Series 2007 FF1,
SELECTED PORTFOLIO SERVICING INC.,
BANK OF AMERICA, N.A., and
JOHN DOES 1-100,
ORDER DENYING MOTION FOR ORDER DECLARING
LISA KAY BRUMFIEL A VEXATIOUS LITIGANT
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendants’ Motion for Order Declaring Lisa Kay Brumfiel a Vexatious
Litigant and Imposing Pro Se Filing Limitations [December 12, 2014; docket #58] filed by
Defendant U.S. Bank, N.A., as Successor Trustee to Bank of America, N.A., as Successor Trustee
to LaSalle Bank, N.A., as Trustee for the Holders of the Merrill Lynch First Franklin Mortgage Loan
Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-FF1 (the “Trust”) and Defendant
Select Portfolio Servicing, Inc. The motion is fully briefed (including supplemental submissions
at the request of the Court), and the Court heard oral argument on January 15, 2015. (Docket #63.)
Based upon the record herein and for the reasons that follow, the Court denies the Motion.
On September 3, 2014, Plaintiff, Lisa Kay Brumfiel, brought this action to quiet title on the
real property located at 1499 S. Jasper Street in Aurora, Colorado (“the property”). (Docket #1.)
This is not the first time the property has been the subject of litigation. In October 2011, U.S. Bank
commenced a non-judicial foreclosure action against the property pursuant to Colorado Rule of Civil
Procedure 120 because Plaintiff had failed to pay the amounts due on her mortgage loan. Brumfiel
v. U.S. Bank, 12-cv-02716-WJM, 2013 WL 5495543 *1 (D.Colo. Oct. 2, 2013). On October 12,
2012, Plaintiff initiated a federal action challenging the Rule 120 foreclosure process. Id. In May
2013, U.S. Bank withdrew the Rule 120 proceeding and commenced judicial foreclosure under
Colorado Rule of Civil Procedure 105. Id. at *2. On October 2, 2013, the District Court
subsequently dismissed Plaintiff’s federal action without prejudice due to lack of jurisdiction. Id.
Plaintiff has appealed the final judgment in that case to the Tenth Circuit.
On February 28, 2014, the Arapahoe County District Court awarded the Trust with a decree
of foreclosure and entered an order of foreclosure sale on the property. (Docket #10-4.) Plaintiff’s
appeal of the foreclosure judgment is pending before the Colorado Court of Appeals. The
foreclosure sale occurred in September 2014 and, when Brumfiel did not vacate the property, the
Trust filed an unlawful detainer action in Arapahoe County Court on October 8, 2014. (Docket #244.) Plaintiff has vacated the property.
In the present case Plaintiff sought to quiet title in her favor based on allegations of fraud
committed by the Trust; that is, she sought an order declaring that she is the only party with an
interest in the property. On December 12, 2014, District Judge William Martinez dismissed the case
without prejudice, on the undersigned’s recommendation, on grounds that the Court lacks
jurisdiction pursuant to the doctrine set forth in Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 817-18 (1976) (explaining that, based upon principles resting on
“considerations of wise judicial administration, giving regard to conservation of judicial resources
and comprehensive disposition of litigation,” a federal court may dismiss an action proceeding
concurrently with a state court action.). The time for appeal of this final judgment has passed with
no appeal filed.
In their Motion, the Defendants submitted an excellent and thorough recounting of Ms.
Brumfiel’s litigation history regarding her ownership interest in her personal residence which will
not be repeated here (I encourage Ms. Brumfiel to read this again, carefully, focusing particularly
on the various holdings and statements of the Court regarding the merits of her arguments). I do not
disagree with their position that any additional litigation concerning the subject property will be
frivolous, particularly in light of the currently pending appeal in the Colorado Court of Appeals, a
forum in which Plaintiff may assert whatever arguments are available to her concerning the
legitimacy of Defendants’ interest in the subject property and their conduct during the transactions
and occurrences underlying the loan Ms. Brumfiel obtained for the purchase of her residence. I
would also anticipate that if -- as Ms. Brumfiel indicated at the January 15, 2015 hearing -- she files
another federal lawsuit based on the same subject matter, she will face severe monetary and other
sanctions from the Court.
I will note several matters mitigating against the particular relief requested by the
Defendants. First, there are remedies short of declaring Ms. Brumfiel a vexatious litigant, which
Defendants have not sought, for a reason only they know, that would discourage any further filings
by Ms. Brumfiel, in particular the Court’s awarding the Defendants’ their costs in this litigation, an
effective tool in reapportioning at least some of the financial inconvenience that Ms. Brumfiel
caused in the current case. Defendants chose not to submit a bill of costs. Second, my review of
the cases in the Tenth Circuit in which the requested sanction of “vexatious litigant” has been
imposed by the District Court and upheld by the Tenth Circuit, or in which the Tenth Circuit has
directly imposed such a sanction, demonstrates that those cases involved (1) more actual cases (in
some instances, many more) than Ms. Brumfiel has pursued here; (2) actual sanctions having been
imposed already (and unsuccessfully) as an intermediate measure to halt the vexatious litigation, a
step that has not occurred here; and/or (3) at least one actual court finding that an action was
frivolous (again, which has not occurred here) as a predicate. Thus, I do not believe the requested
relief is, at this time, warranted.
However, as the Tenth Circuit stated in a recent case:
Based on [Plaintiff’s] manifestly abusive pattern of filing frivolous
appeals in this court, we caution him future frivolous appeals on this
or any other matter may result in summary disposition without
discussion and/or an order requiring him to show cause why this
court should not impose both appellate filing restrictions and
sanctions. In addition, because this is Mr. Jackson's fourth attempt at
filing a civil rights action containing the same or similar deficiencies
against the same defendants, we may consider any future attempted
action against them a form of harassment and advise him this court,
as well as the district court, have the power, under 28 U.S.C. §
1651(a), to enjoin him from pursuing any such action. See Tripati,
878 F.2d at 352–53.
Jackson v. Enforcer of Constitutional Policy, 412 F. App’x 181, 184, 2011 WL 489789, *2 (10th
Cir. Jan. 12, 2011). The District Court has the same inherent authority as that stated in Jackson.
Ms. Brumfiel must consider herself sufficiently warned of the potential consequence of any future
lawsuit concerning this same subject matter, i.e., the mortgage on, or subsequent loss of, her former
residence at 1499 S. Jasper Street in Aurora, Colorado .
Accordingly, based upon the foregoing and the entire record herein, this Court denies
Defendants’ Motion for Order Declaring Lisa Kay Brumfiel a Vexatious Litigant and Imposing Pro
Se Filing Limitations [December 12, 2014; docket #58].
Entered and dated at Denver, Colorado, this 28th day of January, 2015.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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