Tuesday, May 28, 2013

Bankster's Effort To Evade Judicial Review Of Constitutional Challenge To Colorado Non-Judicial Foreclosure Law By Rendering Issue Moot Advances After State Court Judge Tosses Order Authorizing Forced Home Sale

In Denver, Colorado, The Denver Post reports:

  • A Denver judge [last] week rescinded his order authorizing the county foreclosure auction of an Aurora woman's house, paving the way for the banks she sued in federal court to press for the suit's dismissal.

    The legal maneuver to end a specific type of foreclosure against Lisa Kay Brumfiel gives strength to U.S. Bank's pending request to toss out her federal lawsuit challenging the constitutionality of Colorado's foreclosure laws.(1)

    That's because the bank contends in papers filed in U.S. District Court that Brumfiel, 43, no longer faces any harm since U.S. Bank won't foreclose via the county public trustee.

    Instead, lawyers for U.S. Bank, which is the trustee to the investor-owned trust that owns the note on Brumfiel's four-bedroom house, said they will file their own lawsuit to foreclose.

    Brumfiel contended the public-trustee process violates her 14th Amendment right to due process by allowing banks to foreclose without providing proof they have the right to do so.

    In a three-sentence decision, Denver District Court Judge J. Mark Hannen granted U.S. Bank's request to close the foreclosure case it filed in October 2011 against Brumfiel.

    Brumfiel challenged the dismissal, which also rescinded Hannen's order to auction the house, saying it would impact her federal lawsuit, ultimately leaving her constitutional question unaddressed. Hannen called Brumfiel's contention "speculative" and sided for U.S. Bank.

    In papers filed Wednesday, Brumfiel challenged U.S. Bank's request to close the federal case.
Source: Denver judge closes foreclosure; law's fate rests in federal court.

(1) Rescinding the foreclosure appears to be nothing more than this bankster's attempt to render the homeowner's Constitutional challenge moot.

The case law appears abundantly clear that the mere voluntary cessation of the alleged illegal conduct by the challenged party will not ordinarily render the matter moot, and won't necessarily evade judicial review, especially if there is a public interest in having the legality of the practices settled.

See United States v. WT Grant Co., 345 US 629 (1953), in which the U.S Supreme Court made these comments in this regard:
  • Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. United States v. Trans-Missouri Freight Assn., 166 U. S. 290 (1897); Walling v. Helmerich & Payne, Inc., 323 U. S. 37 (1944); Hecht Co. v. Bowles, 321 U. S. 321 (1944).

    A controversy may remain to be settled in such circumstances, United States v. Aluminum Co. of America, 148 F. 2d 416, 448 (1945), e. g., a dispute over the legality of the challenged practices. Walling v. Helmerich & Payne, Inc., supra; Carpenters Union v. Labor Board, 341 U. S. 707, 715 (1951).

    The defendant is free to return to his old ways.[4] This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. United States v. Trans-Missouri Freight Assn., supra, at 309, 310.
See also, ACLUM v. Conference of Catholic Bishops, 705 F. 3d 44 (1st Cir. January 15, 2013) (discussing the 'voluntary cessation doctrine which provides for an exception to mootness):
  • The voluntary cessation exception "traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior." City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001).

    This is to avoid a manipulative litigant immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after. See Already, LLC v. Nike, Inc., ___ U.S. ___, ___, 133 S.Ct. 721, ___ L.Ed.2d ___, 2013 WL 85300, No. 11-982, slip op. at 4 (U.S. Jan. 9, 2013); Brown, 613 F.3d at 49; see also United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (noting that if a court declares the case moot, "[t]he defendant is free to return to his old ways").

    As the Supreme Court stated last term, "[s]uch ... maneuvers designed to insulate a decision from review ... must be viewed with a critical eye" and, as a result, "[t]he voluntary cessation of challenged conduct does not ordinarily render a case moot." Knox v. Serv. Emps. Int'l Union, Local 1000, ___ U.S. ___, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (citation omitted).

    However, even in circumstances where the voluntary cessation exception applies, a case may still be found moot if the defendant meets "the formidable burden[[9]] of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing United States v. Concentrated Phosphate Exp. Ass'n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007).
Colorado federal courts are bound to follow rulings of the U.S. Court of Appeals for the 10th Circuit. Go here for links to 10th Circuit Court of Appeals cases discussing the stringent test in determining mootness in cases where the party alleged to have engaged in illegal conduct voluntarily ceases said conduct under threat of a pending lawsuit.

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