SIGNIFICANT RULING IN COLORADO UPHOLDING AFFIRMATIVE DEFENSES TO FED (EVICTION) ACTION

November 1, 2016

A Colorado (state) District Court has entered an Order which has upheld three affirmative defenses to a Forcible Entry and Detainer (FED/eviction) action. Jeff Barnes, Esq. represents the homeowners, who have been battling Citibank as the securitization trustee claiming to have inherited rights to the Note and Deed of Trust on a loan which was originated by a third party.

Citi prevailed in the underlying CRCP 120 action, which is Colorado’s “probable cause” procedure to begin the non-judicial foreclosure sale process. The Rule provides for the filing of a separate action to contest any Order Authorizing Sale entered as a result of a 120 proceeding. As those of you who follow this website know, Rule 120 is under attack, and Mr. Barnes will be speaking at the hearing on proposed changes to the Rule in Denver on November 10.

Citi later filed a FED action, to which the homeowners raised several affirmative defenses. FED cases are heard by the County Court. The County Court Judge determined that he was without jurisdiction to determine the merits of the asserted affirmative defenses, and stayed the FED action pending a determination on the merits of the defenses by the “District Court”. As several of the defenses were based on state law, the homeowners filed an action for Declaratory Relief and Quiet Title in the state District Court for a determination of the merits of the defenses. Citi filed a Motion to Dismiss that action.

Yesterday, the District Judge denied Citi’s Motion to Dismiss as to three of the five affirmative defenses, which sound in issues relating to an undetermined tenant in common interest as to one of the homeowners; no clear chain of title as to the loan; and that the loan is owned by a third party. The District Court ordered Defendant Citi to file an Answer to those defenses and to the remainder of the Complaint.

The first defense related to the (then) lack of a ruling on the homeowners’ objection to sale, which was denied. The fifth defense is a procedural defense: that issues as to title must be resolved before issues of possession are determined in a FED action. This is why the County Court Judge stayed the FED case: so that the merits of the “title” related issues could be adjudicated first (which is the law in Colorado).

The homeowners will now proceed to discovery on the issues arising out of the preserved defenses, two of which relate directly to the alleged standing of Citi to do anything.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

Leave a Reply