LISA'S PETITION TO ENJOING US BANK AND THE STATE COURT.pdf

7/28/2019 LISA'S PETITION TO ENJOING US BANK AND THE STATE COURT.pdf

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PLAINTIFFS PETITION FOR INJUNCTIVE RELIEF Page1

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02716-WJM-MEH

LISA KAY BRUMFIEL,

Plaintiff,

v.

US BANK,LARRY CASTLE, in his corporate capacity,LARRY CASTLE, in his individual capacity,CASTLE STAWIARSKI LLC,

ROBERT J. HOPP, ATTORNEY,CYNTHIA MARES, Public Trusteein her official capacity,MERS a division of MERSCORP Inc. and,DOES 1-100

Defendants

PLAINTIFF'S PETITION FOR INJUNCTIVE RELIEF AGAINST

US BANK N.A. AS TRUSTEE AND THE COLORADO

STATE COURT IN ACTION 2013-cv-825

D.C.COLO.LCivR. 7.1A Certification: The undersigned---LISA KAY BRUMFIEL,

plaintiff contacted US Bank N.A by calling their attorney, Sean M. Hanlon , at 303-295-

8270 Sean M. Hanlon indicated he would a. oppose; or b. not oppose.

Plaintiff Lisa Kay Brumfiel hereby petitions the Court for an injunction enjoining US

Bank and the Colorado State Court in action 2013-cv-825 based on the prior

exclusive jurisdiction doctrine

PRELIMINARY STATEMENT

In the Order Granting plaintiff a preliminary Injunction [Docket #94, pgs 13, 14] this


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Court expressed its concern over the procedures employed in the Rule 120 Foreclosure

statute 38-38-101 as amended through HB 06-1387 when it said:

Indeed, much of the reasoning in the Younger abstention analysis gave

credence to the serious, substantial, difficult, and doubtful questions that persistin this case.

Rather, with respect to Plaintiffs Ninth Claim, the Court finds that she has mether burden with respect to the modified standard. (See ECF No. 45.) Accordingto Plaintiffs legal theory, Colo.Rev. Stat. 38-38-101 does two things: (1) itlowers the standard of proof that a creditor must meet in order to proceedto foreclosure from original documentary evidence to an unswornstatement; and (2) it creates an additional burden upon a debtor toestablish evidence of the creditors identity which the creditor, itself is notrequired to locate. Whether these issues create due process concerns within

the limited scope of a Rule 120 hearing creates serious constitutional questions.[B,U]

If this Court is concerned over the effect Colo. Rev. Stat. 38-38-101 has on the

Rule 120 Foreclosure because 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) it creates an additional burden upon a debtor to establish evidence of the

creditors identity which the creditor, itself is not required to locate , it should be an

equally valid concern of this Court over proceedings in the Judicial Foreclosure action

2013cv825 which US Bank N.A. seeks to pursue because the Judicial Foreclosure is

also governed by Colo. Rev. Sta. 38-38-101 (See JUDICIAL FORECLOSURE

ACTIONSPROCEDURES AND TACTICS, Exhibit A) where US Bank N.A. will

present the same copies of the Deed of Trust and Promissory Note and a Statement of

Qualified Holder (not sworn under penalty of perjury) that the lender is the real party in

Interest. [A]n additional burden will be placed on the debtor to establish evidence of

the creditors identity which the creditor, itself is not required to locate.


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ARGUMENT

I. TWO CONCURRENT JUDICIAL BODIES SHOULDNOT OCCUPY THE SAME SPACE

Two courts may not exercise simultaneous in remjurisdiction over the same res. A

federal court may enjoin a state court proceeding "where the federal court's jurisdiction

is in remand the state court action may effectively deprive the federal court of the

opportunity to adjudicate as to the res." Conversely, where the state court's in rem

jurisdiction is antecedent, a federal court may not take jurisdiction over the res. United

States v . $2,542 in U.S. Cur rency, 754 F. Supp. 378, 379-380 (D. Vt. 1990)

The Prior Exclusive Jurisdiction Doctrine was precisely created for the

situation now before this court because The threat posed by a parallel state court

proceeding is most acute when federal jurisdiction is dependent upon a res. For

that reason, the most prominent "in aid of jurisdiction" exception is for in rem

actions. Where a state court proceeding interferes with a federal court's

jurisdiction over a res, the federal court may enjoin the state court proceeding.

BENNET V MEDTRONIC, INC., (9th Cir. 2002)

II. GENERAL PRINCIPLES OF EXCLUSIVE CONCURRENT JURISDICTION

As explained by the court in Plant Insu lation Co. v. Fibreboard Corp. (1990) 224

Cal.App.3d 781, 786-787,

Under the rule of exclusive concurrent jurisdiction, when two superior courts have

concurrent jurisdiction over the subject matter and all parties involved in litigation, the

first to assume jurisdiction has exclusive and continuing jurisdiction over the subject

matter and all parties involved until such time as all necessarily related matters have


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been resolved. [Citation.]

The purpose of the rule is to avoid unseemly conflict between courts that might

arise if they were free to make contradictory decisions. (Frankl in & Frankl in v . 7-

Eleven Owners for Fair Franchis ing(2000) 85 Cal.App.4th 1168, 1176.)

The doctrine is similar to the rule of abatement. (People ex rel. Garamend i v.

Am erican Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.) And, it has been recognized

that [t]he pendency of another earlier action growing out of the same transaction and

between the same parties is a ground for abatement of the second action. [Citation.]

(Ibid, emphasis added.)

On October 12th, 2012, Plaintiff Lisa Kay Brumfiel filed an in remover the res

(plaintiffs home at 1499 South Jasper St., Aurora, Colorado 80017) in the above

entitled action under 42 USC 1983, 1985 against defendants which included US Bank.

On May 24th, 2013, after dismissing the non judicial foreclosure, US Bank filed in

remJudicial foreclosure on the same resagainst Lisa Kay Brumfiel (2013cv825)

In SEXTON v. NDEX WEST LLC FSB,No. 1117432. April 12, 2013, 9th Circuit

the court stated:

Under the Supreme Court's long-standing prior exclusive jurisdiction doctrine, ifa state or federal court has taken possession of property, or by its procedurehas obtained jurisdiction over the same, then the property under that court's

jurisdiction is withdrawn from the jurisdiction of the courts of the other authorityas effectually as if the property had been entirely removed to the territory ofanother sovereign. State Engineer v. S. Fork Band of TeMoak Tribe of W.Shoshone Indians, 339 F.3d 804, 809 (9th Cir.2003) (emphasis omitted)(quoting Palmer v. Texas, 212 U.S. 118, 125, 29 S.Ct. 230, 53 L.Ed. 435(1909)). That is, when one court is exercising in rem jurisdiction over a res, asecond court will not assume in rem jurisdiction over the same res. Chapman,651 F.3d at 1043 (internal quotation marks omitted).4As we have explained,[t]he purpose of the rule is the maintenance of comity between courts; suchharmony is especially compromised by state and federal judicial systemsattempting to assert concurrent control over the res upon which jurisdiction of
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each depends. United States v. One 1985 Cadillac Seville, 866 F.2d 1142,1145 (9th Cir.1989) (citing Penn Gen. Cas. Co. v. Pennsylvania ex rel.Schnader, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935)).

5

In BENNET V MEDTRONIC, INC., (9th Cir. 2002) the court explained the reasoning

in enjoining state court proceeding under the exceptions to the Anti-Injunction Statute.

As the court outlined:

I. THE ANTI-INJUNCTION ACT The Anti-injunction Act provides as follows: Acourt of the United States may not grant an injunction to stay proceedings in aState court except as expressly authorized by Act of Congress, or wherenecessary in aid of its jurisdiction, or to protect or effectuate its judgments.28 U.S.C. 2283. The Supreme Court has confirmed what is facially apparent;the breadth of the Act's prohibition is broad. Atlantic Coast Line R.R. Co. v Bhd.

of Locomotive Eng'rs, 398 U.S. 281, 286-87 (1970). "Any doubts as to thepropriety of a federal injunction against state court proceedings should beresolved in favor of permitting the state courts to proceed in an orderly fashionto finally determine the controversy." Id. at 297.

The threshold question we address is whether the district court's orderconstitutes "an injunction to stay [state court] proceedings." Because the issuebefore us is a legal one, we review the injunction de novo. A&M Records, Inc. v.Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001).

II. THE EXCEPTIONS The next question is whether the circumstances of thiscase fall within one of the three exceptions to the Act-- injunctions that: (1)Congress has expressly authorized; (2) are necessary in aid of the federalcourt's jurisdiction; or (3) are necessary to protect or effectuate the federalcourt's judgments. The Supreme Court has cautioned that the exceptions are tobe narrowly construed and "should not be enlarged by loose statutoryconstruction." Atlantic Coast , 398 U.S. at 287.

The exception applicable in this action is 1 and 2. This court has already

determined that Plaintiffs action under than 42 US 1983, 85 is one of the actions that is

expressly authorized exception to the Anti Injunction Statute. Mitchum v. Foster, 407

U.S. 225, 235 (1972); Moreover, this court is authorized under the second exception

authorized by Congress in aid of the federal courts jurisdiction.

As the Court in Bennetsaid:
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In Atlantic Coast, the Supreme Court explained that "some federal injunctiverelief may be necessary to prevent a state court from so interfering with afederal court's consideration or disposition of a case as to seriously impair thefederal court's flexibility and authority to decide that case." 398 U.S. at 295. [10]The Act creates a presumption in favor of permitting parallel actions in state and

federal court. Id

The threat posed by a parallel state court proceeding is most acute whenfederal jurisdiction is dependent upon a res. For that reason, the mostprominent "in aid of jurisdiction" exception is for in rem actions. Where astate court proceeding interferes with a federal court's jurisdiction over ares, the federal court may enjoin the state court proceedings. See Vendo,433 U.S. at 641; Mitchum v. Foster, 407 U.S. 225, 235 (1972); Kline 260 U.S. at229; Federal Shopping Way, Inc. v. McQuaid, 717 F.2d 1264, 1274 (9th Cir.1983). Consistent with this approach, injunctions are permitted where an inpersonam action bears substantial similarity to an in rem action. See Alpine

Land & Reservoir, 174 F.3d 1007, 10131014 (9th Cir. 1999) (water rightssufficiently similar to in rem actions).

In CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST COMPANY, No. 10

15215, June 23, 2011 Ninth Circuit held that the prior exclusive jurisdiction doctrine

is based at least in part on considerations of comity and prudential policies of avoiding

piecemeal litigation, it is no mere discretionary abstention rule. Rather, it is a

mandatory jurisdictional limitation. State Eng'r v. S. Fork B and o f TeMoak Tribe

of W. Shoshon e Indians, 339 F.3d 804, 810 (9th Cir.2003) [B, U[

The Tenth Circuit in Town of Colorado City, an A rizona munic ipal i ty , v. Uni ted

Effort Plan Tru st, et al., No. CV11-08037-PHX-DGC, January 4th

, 2011 referred to

The Chapmancase said:

.The prior exclusive jurisdiction doctrine holds that when one court is exercisingin remjurisdiction over a res, a second court will not assume in rem jurisdictionover the same res. Chapman v. Deutsche Bank Nat. Trust Co., 651 F.3d 1039,1043 (9th Cir. 2011) (quoting Marshall v. Marshall, 547 U.S. 293, 311 (2006)).The doctrine is a mandatory jurisdictional limitation. Id. Where parallel state andfederal proceedings seek to determine interests in specific property as againstthe whole world (in rem), or where the parties interests in the property serve asthe basis of the jurisdiction for the parallel proceedings (quasi in rem), then thedoctrine of prior exclusive jurisdiction fully applies. Id. at 1044. Here, no party
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disputes that the Utah state court first asserted jurisdiction over the trustlitigation in 2005, well before Colorado City filed its action in this Court, orthat the trust litigation was in rem. The Utah state courts exercise of jurisdictiontakes priority. See Chapman, 651 F.3d at 1044-45.

The Court must then determine whether this case is properly characterized asin rem, quasi in rem, or in personam. See id. at 1045. In order to characterizethe actions, the Court must look behind the form of the action[s] to thegravamen of [the] complaint and the nature of the right[s] sued on. Id. (quotingState Engr of Nevada v. South Fork Band of Te-Moak Tribe, 339 F.3d 804, 810(9th Cir. 2003)).

In this case as in the state case, which US Bank seeks to pursue, is based on the

same nucleus of facts which may give rise to contrary opinions. The first opinion

rendered would serve as a retraxit If a state court reaches the decision that copies are

perfectly fine and constitutional, then plaintiffs only recourse is an appeal in state court

leaving the Federal court holding an empty bag.

Furthermore, plaintiff should not be put under the ordeal of two cases determining

the same issues of fact in a proceeding. Also the plaintiff will most likely not have a jury

trial because it is an action in equity.(See JUDICIAL FORECLOSURE ACTIONS

PROCEDURES AND TACTICS by Frederick B. Skillern, attorney Exhibit A)

It would be manifestly unjust to allow the state court, which will apply accelerated

procedures by a new program called the Colorado Civil Access Pilot Program for

Business Actions the purpose of which is to reach dispositive determinations in the

State case which may interfere with this courts jurisdiction. to proceed wasting plaintiffs

emotional and monetary resources which are already strained.

In the Reporters transcript of the May 6th

hearing [Docket # 117, pg 10,lns 22-25;

and p. 11, lns 1-22] Plaintiff Lisa Kay Brumfiel recounts how she has attended several of

the evidentiary hearings and when the homeowner raises the Real Party in Interest


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Defense as was required by the GoodwinCourt they will listen and then say but in the

end the say : Limited in scope and does not rule on any of your evidence.

The judges that will determine the case are the same judges that determine the

evidentiary hearing in the non-judicial foreclosure. If the determination of the Real Party

in Interest is guided by the Colo. Rev. Stat 38-38-101 then Plaintiff will experience the

same result as in the non judicial evidentiary hearing.

Plaintiffs emphasizes that under Colo. Rev Stat 38-38-101 as amended by HB

06 1387, which plaintiff claims is substantively and procedurally defective under section

1 of the Fourteenth Amendment, is the governing statute for both the Rule 120 (non

judicial foreclosure) and Rule 105 (Judicial Foreclosure)and is the focal point of

plaintiffs constitutional challenge.

WHEREFORE, Lisa Kay Brumfiel prays this Honorable Court enjoin US Bank N.A.

and the State Court under the Prior exclusive jurisdiction doctrine as argued in this

petition.

Respectfully submitted,

_______________ Date: ___________, 2013LISA KAY BRUMFIEL


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VERIFICATION

Petitioner Lisa Kay Brumfiel verifies that the information set forth above is true and

correct to the best of her knowledge, except for those matters alleged to be on

information and belief, which Lisa Kay Brumfiel believes to be true.

________________ Date:______________. 2013LISA KAY BRUMFIEL

LISA'S PETITION TO ENJOING US BANK AND THE STATE COURT.pdf

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