Deutsche Bank v. Passmore

• Court: Colorado Court of Appeals
• Decided: January 2, 2025
• Docket: 24CA0086
• Status: Unpublished

Opinion

24CA0086 Deutsche Bank v Passmore 01-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0086 City and County of Denver District Court No. 22CV30322 Honorable Kandace C. Gerdes, Judge

Deutsche Bank National Trust Company, as trustee for Long Beach Mortgage Loan Trust 2004-1, asset-backed certificates, series 2004-1,

Plaintiff-Appellee,

v.

Geraldine Passmore,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE GOMEZ Dunn and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 2, 2025

Murr Siler & Accomazzo, P.C., Jamie G. Siler, Connor M. Nybo, Denver, Colorado, for Plaintiff-Appellee

Geraldine Passmore, Pro Se

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this declaratory judgment action regarding a mortgage loan,

defendant, Geraldine Passmore, appeals the trial court’s summary

judgment in favor of plaintiff, Deutsche Bank National Trust

Company, as trustee for Long Beach Mortgage Loan Trust 2004-1,

asset-backed certificates, series 2004-1 (Deutsche Bank). Passmore

challenges the trial court’s determinations on summary judgment

that (1) she was properly served with process; (2) her codefendant

was properly served with process; and (3) Deutsche Bank was a real

party in interest entitled to enforce the loan. We disagree with the

first and third arguments and decline to consider the second.

Accordingly, we affirm the judgment.

I. Background

¶2 In 2003, Passmore obtained a mortgage loan by executing a

promissory note in favor of Long Beach Mortgage Company (Long

Beach). As security for the note, Passmore executed a deed of trust

encumbering a parcel of real property she owned in Denver. Long

Beach later endorsed the original note to Deutsche Bank and

assigned the deed of trust to Deutsche Bank.

¶3 In 2008, Passmore executed a quitclaim deed conveying the

property to her friend, Ella Coney, who agreed to begin making the

1 monthly payments on the note. Coney initially made those

payments but stopped doing so in 2012, and no payments have

been made since that time. Over the ensuing years, Deutsche Bank

initiated multiple foreclosure proceedings, but for various reasons it

didn’t pursue any of them to a final resolution.

¶4 In 2022, Deutsche Bank filed this declaratory judgment action

against Passmore, Coney, and Coney’s property management

company, Coney Management & Realty. After Deutsche Bank was

unable to effectuate personal service on the defendants, the trial

court granted its request to serve them by mail under C.R.C.P. 4(g).

¶5 Deutsche Bank later filed affidavits indicating it had served all

three defendants by mail. Passmore, appearing pro se, responded

with motions arguing that neither she nor Coney had been properly

served. (No one challenged the effectiveness of service on Coney’s

property management company.) The court denied the motions.1

¶6 Deutsche Bank later moved for summary judgment against

Passmore, seeking declarations enabling it to foreclose on the deed

1 Coney and her property management company never responded to

the complaint, and a default judgment was entered against them. They are not parties to this appeal. 2 of trust. The court granted the motion, declaring as a matter of law

that, as relevant here,

• Deutsche Bank “is owner and lawful holder of the [l]oan”

with “standing as the real party in interest to enforce the

[l]oan”;

• “[t]he [l]oan is a valid and enforceable contract as

reflected in the [n]ote and [d]eed of [t]rust”;

• “[t]he statute of limitations to enforce the [l]oan has not

expired”;

• “[t]he indebtedness owed under the [n]ote has not been

satisfied or fully repaid”; and

• Deutsche Bank was “entitled to foreclose on the

[p]roperty.”

¶7 While Passmore’s appeal was pending, the trial court granted

Deutsche Bank’s motion for an order authorizing a foreclosure sale

3 under C.R.C.P. 120, and the property was sold at a public auction

to a third party who is not involved in this case.2

II. Mootness

¶8 As a preliminary matter, we consider — and reject — Deutsche

Bank’s contention that this appeal is moot because a foreclosure

sale satisfying the loan balance has already occurred.

¶9 Deutsche Bank relies largely on a decision by a division of this

court in Mount Carbon Metropolitan District v. Lake George Co., 847

P.2d 254 (Colo. App. 1993). In that case, the division held that a

debtor’s challenge to a foreclosure was mooted by the foreclosure

sale and expiration of the redemption period. Id. at 256-57.

¶ 10 But another division reached a different conclusion in FCC

Construction, Inc. v. Casino Creek Holdings, Ltd., 916 P.2d 1196,

1198 (Colo. App. 1996), concluding that a foreclosure sale on the

subject lien didn’t render an appeal moot despite the fact that the

appellant didn’t redeem the property following the sale or seek a

2 We take judicial notice of the filings in this case following the

notice of appeal. See Doyle v. People, 2015 CO 10, ¶ 12 (“[I]t is clearly both convenient and permissible for courts to recognize their own records, often in the same or related cases, as establishing that various proceedings or actions have already taken place.”). 4 stay of the sale pending the appeal. The FCC Construction division

reviewed Colorado case law addressing the doctrine of mootness

and concluded that “the test . . . is whether the action of [the

appellant] was voluntary or, instead, was undertaken because of

the actual or implied compulsion of a court’s power.” Id.

Complying with a court’s order allowing a foreclosure sale to

proceed, the division held, is not a voluntary action. Id.

¶ 11 More recently, divisions of this court have followed the rule

outlined in FCC Construction as being “more in harmony with

Colorado mootness jurisprudence.” Thomas v. Lynx United Grp.,

LLC, 159 P.3d 789, 792 (Colo. App. 2006) (acquiescing in a court-

ordered foreclosure sale didn’t moot an appeal); see also Igou v.

Bank of Am., N.A., 2020 COA 15, ¶ 35 (same).

¶ 12 We agree with these decisions and apply the rule from FCC

Construction. And Deutsche Bank doesn’t offer any analysis

explaining why the rule pronounced in the FCC Construction line of

cases should apply any differently here. Thus, we conclude that

Passmore’s appeal isn’t moot simply because she acquiesced in the

court-ordered foreclosure sale and didn’t obtain a stay pending the

appeal.

5 III. Service of Process

¶ 13 Passmore contends that the trial court erred in determining

that she and Coney were both properly served with process. We

first address service of process on Passmore and then on Coney.

A. Service on Passmore

¶ 14 Passmore first argues that, because her name was listed at the

end of the affidavit confirming service on her codefendant, Coney,

the wrong person was served, meaning that jurisdiction could not

be conferred over either of them. We disagree.3

¶ 15 “We review de novo whether a court has personal jurisdiction

over a party.” Black v. Black, 2020 COA 64M, ¶ 64; cf. Goodman

Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 314 (Colo.

2010) (“[W]e review de novo a trial court’s decision to grant relief

from a judgment . . . on the basis that it is void, e.g., for lack of

personal jurisdiction over the defendant due to improper service of

process.”).

3 We disagree with Deutsche Bank’s contention that Passmore failed

to preserve this issue for appeal. She sufficiently preserved the issue by raising it in a motion to dismiss and another motion filed before she responded to the complaint. See Freed v. Bonfire Ent. LLC, 2024 COA 65, ¶ 23; C.R.C.P. 12(b)(4). 6 ¶ 16 A trial court has personal jurisdiction over a defendant only if

that defendant was properly served. United Bank of Boulder, N.A. v.

Buchanan, 836 P.2d 473, 477 (Colo. App. 1992). C.R.C.P. 4

outlines the means by which a defendant must be served with

process. Minshall v. Johnston, 2018 COA 44, ¶ 13. In actions

affecting specific property, C.R.C.P. 4(g) permits service by mail in

certain circumstances. Home Improvement, Inc. v. Villar, 2022 COA

129, ¶ 15. Under Rule 4(g)(1), if the court determines that the filing

party has applied due diligence in an attempt to obtain personal

service, the court may “[o]rder the party to send by registered or

certified mail a copy of the process addressed to such person at [the

applicable] address, requesting a return receipt signed by the

addressee only.” Proof of such service may be “by a sworn or

unsworn declaration showing the date of the mailing with the

return receipt attached, where required.” C.R.C.P. 4(h)(3).

¶ 17 When the trial court granted the motion for service by mail, it

instructed Deutsche Bank to send a copy of the summons,

complaint, and other relevant pleadings to all three defendants both

by U.S. Mail and by certified or express delivery with delivery

verification through the U.S. Post Office. Deutsche Bank later

7 submitted proof that it had complied with these instructions,

including affidavits verifying that it had sent each defendant the

pleadings by U.S. Mail and by certified mail, photocopies of the

envelopes with the mailing labels, and documentation of the

certified mail tracking numbers.

¶ 18 Passmore points out that the end of the affidavit affirming that

Coney had been served with process lists Passmore’s name instead

of Coney’s. She contends that this error indicates that the wrong

person was served, invalidating service on both Passmore and

Coney.

¶ 19 Passmore also relies on Havens v. Hardesty, 600 P.2d 116

(Colo. App. 1979), for the proposition that service on the wrong

person confers no jurisdiction over either the person intended to be

served or the person mistakenly served. That case involved service

of process on someone who wasn’t the named defendant but simply

had the same name. Id. at 118. In that context, a division of this

court said that “[w]here the person intended to be sued is named as

defendant and service is had on a different person who is not acting

for, nor an agent of, the defendant, such service confers no

8 jurisdiction over either the person named in the process or the

person actually served.” Id.

¶ 20 But the facts here are far different from those in Havens.

Passmore and Coney are both named defendants; neither is an

entirely unrelated person who was mistakenly served in the case.

As Deutsche Bank explained in the trial court, the reference to

Passmore in the Coney affidavit was a mere typographical error,

which Deutsche Bank corrected by filing a “notice of errata” with

the court. It is apparent from the affidavit and related

documentation that those documents were meant to establish

service on Coney, not Passmore. Coney’s name is on the mailing

label and is referenced throughout the rest of the affidavit.

Passmore’s name listed at the very end, in a sentence asserting that

the facts previously stated establish effective service of process, is

evidently a typographical error — not a statement one would

reasonably interpret to mean the entire set of documents was

actually intended to serve Passmore, rather than Coney.

¶ 21 Moreover, and most critically, Passmore doesn’t contend that

there were errors in the separate affidavit and other documentation

reflecting service on her. Although she contends that more evidence

9 was needed to establish that the documents were actually placed in

and received through the mail, Deutsche Bank sufficiently complied

with Rule 4 by providing an affidavit showing the date the pleadings

were sent by U.S. Mail, postage prepaid, and by certified mail and

attaching copies of the envelopes and tracking labels. And, notably,

Passmore doesn’t contend that she never received the documents

mailed to her.

B. Service on Coney

¶ 22 Relatedly, Passmore argues, based on the same typographical

error in the Coney affidavit, that Coney wasn’t properly served.

Passmore also argues that the “notice of errata” didn’t correct the

error and that the trial court violated a procedural order in its entry

of default judgment against Coney. We don’t consider these issues

because Passmore lacks standing to raise them.

¶ 23 “Standing is a jurisdictional prerequisite to any appeal.” In re

Marriage of Shapard, 129 P.3d 1007, 1009 (Colo. App. 2004). “A

party does not have standing to appeal the portions of a judgment

involving only the interests of a nonappealing party.” Id.

¶ 24 Whether Coney was properly served, and thus whether the

court properly exercised personal jurisdiction over her, is an issue

10 that involves only Coney’s interests. The same is true of the other

procedural issues relating to the judgment entered against Coney.

And Coney hasn’t appealed that judgment. Passmore therefore

lacks standing to appeal these issues on Coney’s behalf. See id.

IV. Entitlement to Enforce the Note

¶ 25 Passmore also contends that the trial court erred in ruling on

summary judgment that Deutsche Bank was the real party in

interest entitled to enforce the loan. We disagree.

¶ 26 We review de novo a grant of summary judgment. Univ. of

Denver v. Doe, 2024 CO 27, ¶ 7. Applying the same standard as the

trial court, “we must ‘determine whether a genuine issue of material

fact existed and whether the [trial] court correctly applied the law.’”

Poudre Sch. Dist. R-1 v. Stanczyk, 2021 CO 57, ¶ 12 (quoting City of

Fort Collins v. Colo. Oil & Gas Ass’n, 2016 CO 28, ¶ 9).

¶ 27 At summary judgment, “[t]he moving party bears the initial

burden of showing no genuine issue of material fact exists.” Westin

Operator, LLC v. Groh, 2015 CO 25, ¶ 20. Once this burden is met,

the nonmoving party bears the burden of “establish[ing] a triable

issue of fact.” Id. The nonmoving party may not rest on the

allegations made in the pleadings but, instead, must provide facts

11 “by affidavit or otherwise” to show that there is a triable issue. Han

Ye Lee v. Colo. Times, Inc., 222 P.3d 957, 960 (Colo. App. 2009).

And pro se parties are bound by the same procedural rules that

apply to attorneys. Cornelius v. River Ridge Ranch Landowners

Ass’n, 202 P.3d 564, 572 (Colo. 2009).

¶ 28 As best as we can ascertain,4 Passmore argues that the trial

court’s ruling was erroneous because (1) Deutsche Bank didn’t

present sufficient evidence that it was a holder of the debt; (2) there

was a break in the chain of title of the mortgage; and (3) Deutsche

Bank didn’t comply with certain provisions of the Colorado Fair

4 “Pleadings by pro se litigants must be broadly construed to ensure

that they are not denied review of important issues because of their inability to articulate their argument like a lawyer.” Jones v. Williams, 2019 CO 61, ¶ 5. 12 Debt Collection Practices Act.5 We address each of these arguments

in turn.6

A. Holder of the Note with the Right to Foreclose

¶ 29 Passmore argues that Deutsche Bank didn’t sufficiently

document that it was a holder of the note with the right to enforce

the debt. We disagree.

¶ 30 “Colorado foreclosure law allows a holder of an evidence of

debt to foreclose upon breach of the terms of the deed of trust.”

Edwards v. Bank of Am., N.A., 2016 COA 121, ¶ 15. “A ‘holder of

an evidence of debt’ is defined as ‘the person in actual possession of

or person entitled to enforce an evidence of debt.’” Id. (quoting

§ 38-38-100.3(10), C.R.S. 2024). An “[e]vidence of debt,” in turn, is

5 To the extent that Passmore attempts to raise any other issues,

they are not sufficiently developed for us to consider them. See Frisco Lot 3 LLC v. Giberson Ltd. P’ship, LLLP, 2024 COA 125, ¶ 95 n.15. 6 We disagree with Deutsche Bank’s contention that Passmore

didn’t preserve these three arguments in the summary judgment proceedings. See Freed, ¶ 23. However, Passmore raises a fourth argument that she did not raise in response to the summary judgment motion: application of the statute of limitations. Because Passmore didn’t respond to Deutsche Bank’s request for summary judgment on that issue, she waived any objection to the court’s ruling on it. See Gestner v. Gestner, 2024 COA 55, ¶ 27 (declining to consider an argument not raised in the trial court). 13 “a writing that evidences a promise to pay or a right to the payment

of a monetary obligation, such as a promissory note.” § 38-38-

100.3(8).

¶ 31 To show it has standing to foreclose, a holder may file the

“original evidence of debt, including any modifications to the

original evidence of debt, together with the original indorsement or

assignment thereof, if any, to the holder of the evidence of debt” and

an original or certified copy of the “recorded deed of trust securing

the evidence of debt.” § 38-38-101(1)(b)-(c), C.R.S. 2024.

¶ 32 In compliance with these requirements, Deutsche Bank

submitted uncontroverted evidence that it was the holder of the

note and the assignee of the deed of trust. First, Deutsche Bank

provided the original note, which on the back contained a notation

endorsing it to Deutsche Bank. Second, Deutsche Bank provided

copies of the recorded deed of trust and a recorded document

evidencing the assignment of the deed of trust from Long Beach to

Deutsche Bank. And third, Deutsche Bank provided an affidavit of

a senior loan analyst for the loan servicer, averring that Deutsche

Bank was the present owner and holder of the original note and

that, as assignee, it was the beneficiary of the deed of trust.

14 ¶ 33 This documentation, which Passmore didn’t contradict with

evidence of her own, was sufficient to show that Deutsche Bank

was a holder of the note with the right to foreclose on it.7

B. Chain of Title

¶ 34 Passmore next argues that a few alleged discrepancies in the

documentation chronicling changes in the loan servicers evidenced

a break in the chain of title of the mortgage. She argues that, due

to these alleged discrepancies, there is not a clear, unbroken chain

of transfers from the original lender, Long Beach, to Deutsche

Bank, and therefore Deutsche Bank couldn’t establish itself as a

holder of the loan with the right to enforce it.

¶ 35 This argument is unavailing, however, because Long Beach

and Deutsche Bank were holders of the loan — not servicers of it.

Loan servicers are separate entities that handle the day-to-day

management of a loan, such as collecting payments, on behalf of

the holder. See § 38-40-103.5(1)(e)(I), C.R.S. 2024. In contrast, a

7 We reject Passmore’s argument that Deutsche Bank wasn’t

entitled to enforce the note because it wasn’t the holder at the time a prior foreclosure action was initiated in 2012. What matters here is that Deutsche Bank showed it was the holder of the note when it initiated the present action. 15 holder of the loan, such as Deutsche Bank or, formerly, Long

Beach, is the owner of the loan and has the right to receive the

payments made by the debtor and collected by the servicer. See

§ 38-40-103.5(1)(c). Thus, any potential infirmities in the transfers

between servicers of the loan don’t contradict the evidence that

Deutsche Bank was the holder of the loan.

C. Colorado Fair Debt Collection Practices Act

¶ 36 Finally, Passmore argues that Deutsche Bank’s efforts to

enforce the note didn’t comply with two provisions of the Colorado

Fair Debt Collection Practices Act. See § 5-16-111(2), (3), C.R.S.

2024.

¶ 37 The first cited subsection, section 5-16-111(2), applies to the

actions of “[a] debt collector or collection agency.” The statute

defines a “[d]ebt collector” as “any person employed or engaged by a

collection agency to perform the collection of debts owed or due or

asserted to be owed or due to another.” § 5-16-103(9), C.R.S. 2024.

It defines a “[c]ollection agency” as a “[p]erson who engages in a

business the principal purpose of which is the collection of debts”

or a “[p]erson who . . . [r]egularly collects or attempts to collect,

directly or indirectly, debts owed or due or asserted to be owed or

16 due another”; “[t]akes assignment of debts for collection purposes”;

“[d]irectly or indirectly solicits for collection debts owed or due or

asserted to be owed or due another”; or “[c]ollects debt for the

department of personnel.” § 5-16-103(3)(a). Notably, the definition

of a “[c]ollection agency” expressly excludes “[a]ny officer or

employee of a creditor while, in the name of the creditor, collecting

debts for such creditor.” § 5-16-103(3)(b)(I).

¶ 38 The other cited subsection, section 5-16-111(3), applies to the

actions of a “debt buyer.” The statute defines this term as “a

person who engages in the business of purchasing delinquent or

defaulted debt for collection purposes, whether it collects the debt

itself, hires a third party for collection, or hires an attorney for

litigation in order to collect the debt.” § 5-16-103(8.5).

¶ 39 Through this action, Deutsche Bank wasn’t attempting to

collect a debt on behalf of another party; rather, it was the creditor

itself. It does not, therefore, qualify as a debt collector, a collection

agency, or a debt buyer within the meaning of this statute. Thus,

the provisions of section 5-16-111(2) and (3) didn’t apply.

¶ 40 Because Deutsche Bank provided sufficient documentation to

show that it was the holder of the original note and the assignee of

17 the deed of trust and Passmore hasn’t raised a genuine issue of

material fact, the trial court didn’t err in determining that Deutsche

Bank was a real party in interest entitled to foreclose on the note.

V. Disposition

¶ 41 The judgment is affirmed.

JUDGE DUNN and JUDGE TAUBMAN concur.