A second federal lawsuit contesting the constitutionality of Colorado’s foreclosure laws has emerged.
Unlike the case of an Aurora woman who obtained an interim federal injunction against the foreclosure auction of her house, the other involves a federal judge who decided a Denver man’s 14th Amendment guarantee of due process was in question.
U.S. District Judge Philip Brimmer last week dismissed the entirety of John Mbaku’s complaint against Bank of America that challenged the bank’s right to foreclose on his condominium. Brimmer determined there was a constitutional issue, though Mbaku didn’t bring it up specifically.
Because Mbaku, a law-school graduate who doesn’t practice law, is representing himself, the judge is given wider latitude to read between the lines of a complaint since plaintiffs might not be as sophisticated or well-versed in the complexities of law.
In the introduction to his lawsuit filed last year, Mbaku noted how Colorado law allows a bank or lender to foreclose without showing how it obtained ownership of the loan.
More important, because loan ownership is determined by who has possession of the document — known as indorsement in blank — Mbaku said anyone could come by that right, even a thief.
“Plaintiffs could illegally obtain or otherwise steal a promissory note … from any bank … and present themselves at a … hearing and be deemed … to be the proper party to foreclose,” Mbaku wrote.
Lots more below…
|Plaintiffs:||John M. Mbaku and Luvibidila Jolie Lumuenemo|
|Defendant:||Bank of America, National Association|
|Filed:||January 24, 2012|
|Court:||Colorado District Court|
|Presiding Judge:||Philip A. Brimmer|
|Referring Judge:||Kristen L. Mix|
|Nature of Suit:||Torts – Property – Truth in Lending|
|Jury Demanded By:||Plaintiff|
Available Case Documents
|Date Filed||#||Document Text|
|May 9, 2013||37||ORDER CERTIFYING MATTER TO THE COLORADO ATTORNEY GENERAL. Plaintiffs’ challenge to the constitutionality of Rule 120 of the Colorado Rules of Civil Procedure is certified to the Colorado Attorney General. The Clerk of this Court shall forward a copy of this Order, the 1 complaint, and the 26 February 1, 2013 Order, certified under seal, to the Colorado Attorney General. By Judge Philip A. Brimmer on 5/9/13. (mnfsl, )|
|April 12, 2013||36||MINUTE ORDER denying without prejudice 34 Plaintiffs’ Motion for Leave to File Amended Complaint Pursuant to Fed. R. Civ. P. 15(a). By Magistrate Judge Kristen L. Mix on 4/12/13.(mnfsl, )|
|January 30, 2012||7||ORDER denying 5 plaintiffs’ Emergency Motion for Temporary Restraining Order. By Judge Philip A. Brimmer on 1/30/12.(pabsec)|
|January 27, 2012||4||ORDER Setting Scheduling Conference for 5/14/2012 at 09:30 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix. By Magistrate Judge Kristen L. Mix on 1/27/12. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4) (mnfsl, )|
|January 26, 2012||2||ORDER re: 1 Complaint for Declaratory and Injunctive Relief. Until such time as plaintiffs file a motion that complies with the Federal Rules of Civil Procedure and the Local Rules, the Court will not take up any request for relief found within their complaint. By Judge Philip A. Brimmer on 1/26/12. (mnfsl, )|