Response to Amicus Brief - Brunfiel v. U.S. Bank

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 2012-cv-02716-WJM-MEH LISA KAY BRUMFIEL, Plaintiff, vs. U.S. BANK, LARRY CASTLE, in his individual and corporate capacities, CASTLE STAWIARSKI, and DOES 1 - 100, Defendant.

RESPONSE TO BRIEF OF AMICI CURIAE

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 for the Holders of the Merrill Lynch

First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-FF1

(the Trust) responds to the Brief of Amici Curiae (the Amici Brief) filed by Colorado Center

on Law and Policy, Inc. (CCLP) and Colorado Progressive Coalition (CPC). See Doc. 134.

RESPONSE

1. On May 14, 2013, this Court entered a minute order granting CCLP and CPC

leave to file a Brief concerning the constitutional questions at issue in this case no later than

May 20, 2013. See Doc. 123.

2. On May 20, 2013, CCLP and CPC submitted the Amici Brief that nearly doubled

the maximum length of briefs prescribed by this Court. See Doc. 134; see also WJM Revised

Practice Standards, Section III.C.1.

Case 1:12-cv-02716-WJM-MEH Document 144 Filed 05/23/13 USDC Colorado Page 1 of 5

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3. Nevertheless, the constitutional issues addressed by the Amici Brief are not

justiciable in this matter. There is no longer any case or controversy regarding the

constitutionality of the public trustee foreclosure process under C.R.S. 38-38-101 or C.R.C.P.

120 (Rule 120 Public Trustee Foreclosure) that affects Plaintiff. Each of Plaintiffs nine

causes of action has been rendered moot by: (1) Trusts withdrawal of its Rule 120 Public

Trustee Foreclosure against Plaintiff as affecting the Property,1 and (2) the Trusts consent to a

permanent injunction prohibiting any future Rule 120 Public Trustee Foreclosure against

Plaintiff under the operative Note and Deed of Trust affecting the Property. See Doc. 126 at 9

(capitalized terms defined in Doc. 126). Consequently, and with no case or controversy

remaining, the federal court must dismiss the action for want of jurisdiction. Jordan v. Sosa,

654 F.3d 1012, 1023 (10th Cir. 2011) (internal quotation marks and citations omitted); see also

Doc. 126 at 6-9 (fully incorporated herein by this reference).

4. The Trust has filed a judicial foreclosure in Arapahoe County District Court

against Plaintiff and other parties having a record interest in the Property.

WHEREFORE, the Trust requests that this Court deny the Amici Brief as moot.

1 The Trust withdrew the public trustee proceedings on May 10, 2013, as accepted by the public trustee on May 14, 2013 (see Exhibit A, attached hereto) and the Rule 120 Action was dismissed by the state court on May 21, 2013. See Doc. 141 at Exhibit B.


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Dated May 23, 2013

Respectfully submitted,

s/ Sean M. Hanlon HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 Phone: (303) 295-8270 Fax: (303) 291-9144 [email protected] ATTORNEY FOR DEFENDANTS US BANK, N.A., as Successor Trustee to Bank of America, N.A., as Successor Trustee to LaSalle Bank, N.A., as Trustee for the for the Holders of the Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-FF1


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CERTIFICATE OF SERVICE

I hereby certify that on May 23, 2013, I have caused to be electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses:

Christopher T. Groen, Esq. Phillip A. Vaglica, Esq. The Castle Law Group, LLC 999 18th Street, Suite 2201 Denver, CO 80202 (303) 865-1400 [email protected] [email protected]; [email protected] Attorneys for Castle Stawiarski, LLC, and Larry Castle

Stephen A. Brunette The Gasper Law Group, PLLC 128 S. Tejon Street, Suite 100 Colorado Springs, CO 80903 719-227-7779 [email protected] Attorney for the Colorado Center on Law & Policy, Inc., and the Colorado Progressive Coalition

Neal Joseph Valorz Robert J. Hopp Hopp Law Firm, LLC 333 West Colfax Avenue, Suite 400 Denver, CO 80204 720-833-8476 [email protected] [email protected]

Attorney for Robert J. Hopp

Christine Cachey Stretesky Arapahoe County Attorneys Office Littleton 5334 South Prince Street Littleton, CO 80120-1136 303-795-4639 [email protected]

Attorney for the Arapahoe County

Christopher J. Dawes, Esq. Lottner Rubin Fishman Brown & Saul, PC 633 17th Street, Suite 2700 Denver, CO 80202 (303) 292-1200 [email protected] Attorney for MERS


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I also certify that I caused to be served a copy of the foregoing document to the following by U.S. Mail:

Lisa Kay Brumfiel 1499 South Jasper Street Aurora, CO 80017

s/ Sean M. Hanlon Sean M. Hanlon

6209048_1.DOCX


Documents

Response to Amicus Brief - Brunfiel v. U.S. Bank