- Case No: 11-1272 (10th Cir. 2012)
- The 10th Circuit Court of Appeals ruled in favor of creditor Bank of America ("BAC" or "Creditor"), as successor in interest to Countrywide Financial, affirming the judgment of the district court.
- Procedural context:
- Debtor, Dany Clementson, ("Debtor") filed for Chapter 7 bankruptcy protection in March 2007 and the case was closed on November 20, 2009. In July 2010, Debtor filed suit against Bank of America, who had acquired Countrywide, asserting seven causes of action including fraud, breach of contract, breach of implied covenant of good faith and fair dealing, and violation of various state consumer statutes. The magistrate judge recommended dismissal of all claims except the debtor's request for injunctive relief. The district adopted the recommendation dismissed the injunctive-relief issue, and entered judgment in favor of Bank of America. The Debtor appeals the decision to the circuit court.
- Debtor refinanced his home mortgage in October 2003 and obtained a consolidated loan through creditor, Countrywide Home Loans. Debtor fell behind and foreclosure was scheduled for February 1, 2007. The creditor delayed its foreclosure and on March 14, 2007, Debtor filed for Chapter 7 bankruptcy. At the time of his bankruptcy, debtor unsuccessfully attempted to get a loan modification from the creditor, which it refused. The case was thereafter closed on November 20, 2009. In July 2010, Debtor filed suit against the creditor asserting the following causes of action: (1) violation of Colorado Consumer Protection Act; (2) fraud resulting in theft; (3) conspiracy to commit fraud resulting in theft; (4) tortious acts resulting in personal injuries; (5) breach of contract; (6) breach of the implied covenant of good faith and fair dealing; and (7) violation of the Colorado Organized Crime and Control Act, ("COCCA") Colo. Rev. Stat. §§ 18-17-101 to 18-17-109. On appeal, the circuit court indicated that, first, it lacks jurisdiction over the debtor's appeal from the order dismissing his claim for injunctive relief. Secondly, since the debtor did not identify any disputed material facts, the record was sufficient and the district court did not abuse its discretion of declining to hold a hearing. Third, since the Debtor did not list his causes of actions in his bankruptcy petition, he was divested of standing to pursue his underlying litigation with the creditor. As such, he did not have appropriate standing to bring the suit against the creditor. Fourthly, all the claims, except the COCCA, were barred by Colorado's applicable five year statute of limitations. And finally, in respect to the COCCA claim, debtor failed to allege "at least to acts of racketerring activity" as required by the statute.
- Kelly, Murphy and Holmes - Circuit Judges
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