Case 1:12-cv-02716-WJM-MEH Document 88 Filed 05/02/13 USDC Colorado Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge William J. Martnez Civil Action No. 12-cv-02716-WJM LISA KAY BRUMFIEL, Plaintiff, v. U.S. BANK, LARRY CASTLE, in his individual and corporate capacity, and CASTLE STAWIARSKI, LLC, ROBERT J. HOPP, in his and corporate and individual capacities, CYNTHIA MARES, Public Trustee in her official capacity, MERS, a division of MERSCorp, and DOES 1-100, Defendants.

ORDER SETTING HEARING ON PETITION FOR TEMPORARY RESTRAINING ORDER This matter is before the Court on Plaintiffs Petition for Emergency Temporary Restraining Order (Petition). (ECF No. 82.) Defendant U.S. Bank (ECF No. 86) and Defendants Larry Castle and Castle Stawiarski LLC (ECF No. 87) have each filed a Response to the Petition. In light of the parties filings, a hearing on Plaintiffs Motion for Petition shall be held on May 6, 2013 at 1:00 p.m., Courtroom A801 of the Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado 80294.

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The Court notes that it has reviewed the recent decision by U.S. District Judge Philip A. Brimmer of the District Court of Colorado in Mbaku v. Bank of America, Nat. Ass'n 2013 WL 425981 at *9 (Feb 1., 2013). The matter is at a similar procedural posture as the instant case. The plaintiff in that case pled a claim for relief as follows: Because it is so limited in scope, and plaintiffs contend that it violates the due process clause of the U.S. Constitution by improperly shifting the burden from the bank to the plaintiffs, the language of C.R.C.P. 120 invites homeowners such as plaintiffs to file their own lawsuit in another forum and raise their objections and defenses there. In other words, the bank as movant need not prove it is the real party in interest but plaintiffs need to prove they are not.... Indeed, C.R.C.P. 120 provides for no deposition, witnesses may testify via telephone even when their identity and credibility is challenged as was done by plaintiffs in this case. The defendant is deemed to have standing by mere possession of a note, without regard to ownership of the mortgage, the note, the assignment, as well as forgery and other misrepresentation.... To illustrate, plaintiffs could illegally obtain or otherwise steal a promissory note and mortgage from any bank or other private entity, and present themselves at a Colorado Rule 120 hearing and be deemed by mere possession of the note to be the proper party to foreclose. The state court, without more, would issue an order for foreclosure sale. (Id). The court stated in Mbaku that the plaintiffs pleading, construed liberally, was enough to survive Rule 12(b)(6) pursuant to the Federal Rule of Civil Procedure. Id. The court held that the claim was sufficiently pled so that the defendant(s) were put on notice of the claim that Rule 120 of the Colorado Rules of Civil Procedure violates the due process clause of the Constitution. Id. Although the claim was not enumerated as a cause of action in the complaint, it was alleged in the complaint's introduction. To support

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the liberal construction of same, the court cited: Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n. 3 (10th Cir.1991).1 In light of the above, and in preparation for the TRO hearing on Monday, May 6, the Court places the parties on notice that questions will be directed to the following issues, among others: 1. Notwithstanding the Courts Orders in ECF Nos. 5 and 34, can the Court construe Plaintiffs Ninth Claim in the Amendment Complaint (ECF No. 45) as a claim that Rule 120 of the Colorado Rules of Civil Procedure violates, facially and as applied, the due process clause of the Fourteenth Amendment to the U.S. Constitution? 2. Should the modified standard for preliminary injunctions apply to a case such as instant one? See generally Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009). 3. Assuming the modified standard does apply, has Plaintiff met her burden for the purposes of her Petition? (ECF No. 82.)

In a footnote the court also stated: Although a court may dismiss sua sponte when it is patently obvious that the plaintiff could not prevail on the facts alleged, Hall, 935 F.2d at 1110, such dismissals are strong medicine, and should be dispensed sparingly. Chute v. Walker, 281 F.3d 314, 319 (1st Cir.2002). The Court concludes that sua sponte dismissal is not appropriate in this instance. Mbaku v. Bank of America, Nat. Ass'n 2013 WL 425981 at *9 (Feb 1., 2013). 3

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In accordance with the foregoing, the Court hereby ORDERS that a hearing on Plaintiffs Petition shall be held on May 6, 2013 at 1:00 p.m., Courtroom A801 of the Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado 80294. Dated this 2nd day of May, 2013. BY THE COURT:

_________________________ William J. Martnez United States District Judge