May 15, 2013
A pro se plaintiff has won at least a procedural victory against her lender in Brumfiel v. U.S. Bank et al. (May 14, 2013) (12-cv-02716-WJM-MEH). US Bank filed a Notice of Withdrawal of the foreclosure action and then a Motion to Vacate in which it consented “to a permanent injunction preventing it from” proceeding with a non-judicial foreclosure. (3) (quoting Motion to Vacate, emphasis in the original)
Under Colorado law, a party “may foreclose on a property by providing a document by his or her attorney that either ‘certifies’ or simply ‘states’ that ‘holder claims to be a qualified holder’ for the purposes of foreclosure.” (Order granting Plaintiff’s Request for Interim Preliminary Injunction, May 6, 2013, at 2) The court holds a Rule 120 hearing to confirm the existence of the default. Brumfiel challenges the constitutionality of this hearing on due process grounds.
In its May 6th order, the Court held that the questions that Brumfiel “raised regarding the serious, substantial, difficult issues apparent in this case” were a sufficient basis for an interim preliminary injunction. These difficult issues included whether the Colorado process
(1)  lowers the standard of proof that a creditor must meet in order to proceed to foreclosure from original documentary evidence to an unsworn statement; and
(2)  creates an additional burden upon a debtor to establish evidence of the creditor’s identity which the creditor, itself, is not required to locate.
Whether these issues create due process concerns within the limited scope of a Rule 120 hearing creates serious constitutional questions. (13-14)
This is only a tactical victory for the homeowner. By consenting to the permanent injunction, the lender should still be able to proceed with a judicial foreclosure. But the constitutionality of Colorado’s non-judicial foreclosure process will have to wait to be tested until another day,