February 21, 2018

A Colorado District Judge has ordered Deutsche Bank to prove up a claimed “original” Note in a CRCP 120 proceeding. The attorney for Deutsche Bank requested the Judge to take “judicial notice” of a claimed “original” Note in an apparent effort to bypass the evidentiary proof requirements, and without any evidence being presented that the alleged Note is in fact an “original”. Section 202 of the The Colorado Evidence Code, which governs requests for judicial notice, does not provide for a court to take judicial notice of a disputed document.

The borrower disputes the claimed “original” nature of the Note given that (a) the original lender filed for bankruptcy in 2007, and (b) there was no evidence that the Note was either a retained asset of the bankrupt original lender or that it was sold before the bankruptcy was filed. There is thus no evidence as to how Deutsche Bank could be in possession of the alleged “original” Note.

Jeff Barnes, Esq. represents the borrower, who has also raised the defense that the Note is not enforceable as it is a prohibited “negative amortization” Note, as “neg am” loans were declared to be illegal by Colorado statute long before the origination of the loan. The Judge remarked that the case has significant legal issues as to real party in interest under CRCP 17 and the case law in Colorado.

The Judge thus declined to entertain Deutsche Bank’s CRCP 120 request for an Order Authorizing Sale, and has scheduled a full evidentiary hearing on all issues for March 9, 2018.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com