COLORADO COURT OF APPEALS                                         2016COA121

Court of Appeals No. 14CA2337
El Paso County District Court No. 12CV10
Honorable G. David Miller, Judge


Charolyn KH Edwards,

Plaintiff-Appellant,

v.

Bank of America, N.A.,

Defendant-Appellee.


                             JUDGMENT AFFIRMED

                                    Division I
                         Opinion by JUDGE STERNBERG*
                         Taubman and Dailey, JJ., concur

                           Announced August 25, 2016


Charolyn KH Edwards, Pro Se

Akerman LLP, Justin D. Balser, Ashley E. Calhoun, Denver, Colorado, for
Defendant-Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24 51 1105, C.R.S. 2015.
¶1    In this action involving a disputed real estate foreclosure,

 plaintiff, Charolyn KH Edwards, appeals the district court’s

 summary judgment entered in favor of defendant, Bank of America,

 N.A. We affirm.

                            I. Background

¶2    In 2005, plaintiff obtained a loan from Irwin Mortgage

 Corporation (Irwin) to finance the purchase of property in Colorado.

 The loan was evidenced by a note and repayment was secured by a

 deed of trust. Both documents were executed by plaintiff, and the

 deed of trust was duly recorded. Under the deed of trust, Mortgage

 Electronic Registration System, Inc. (MERS) was named the

 beneficiary and nominee for Irwin.

¶3    Plaintiff subsequently defaulted on the loan. Defendant, as

 the holder of the evidence of the debt, commenced foreclosure by

 executing a notice of election and demand for sale (the notice).

 Defendant filed the notice with the El Paso County Trustee, who

 duly recorded it on August 5, 2011.




                                   1
¶4    On September 9, 2011, MERS executed an assignment

 documenting the transfer of the note and deed of trust to

 defendant. The assignment was recorded on September 12, 2011.

¶5    On September 14, 2011, defendant filed a C.R.C.P. 120 motion

 for order authorizing sale in the El Paso County District Court. The

 court granted the motion and authorized the sale. The property

 was sold on February 15, 2012.

¶6    On January 10, 2012, plaintiff filed a complaint alleging that

 defendant lacked standing to file a motion under C.R.C.P. 120 and

 to commence foreclosure proceedings. Defendant moved to dismiss

 under C.R.C.P. 12(b)(5), asserting that plaintiff failed to state a

 claim on which relief could be granted. Defendant attached no

 supporting documentation to its motion. The district court

 dismissed the case under C.R.C.P. 12(b)(5) and sua sponte granted

 summary judgment for defendant under C.R.C.P. 56.

¶7    Plaintiff appealed and a division of this court reversed. See

 Edwards v. Bank of Am., N.A., (Colo. App. No. 12CA1055, Aug. 29,

 2013) (not published pursuant to C.A.R. 35(f)). The division

 concluded that when viewed in the light most favorable to the

 plaintiff, the complaint asserted that defendant was not the holder


                                    2
  of the evidence of the debt and was not entitled to foreclose. The

  division also concluded that the district court erred in granting

  summary judgment because the supplemental record provided by

  defendant on appeal was not before the district court when it

  dismissed the case under C.R.C.P. 56.

¶8     After remand, defendant moved for summary judgment under

  C.R.C.P. 56, attaching the documents included in the supplemental

  record. The district court granted the motion, finding that the

  documents were self-authenticating and could be judicially noticed,

  that there was no genuine issue of material fact, and that defendant

  had standing to foreclose because the documents demonstrated

  that defendant was the holder of the debt at the time of foreclosure.

¶9     Subsequently, plaintiff filed a motion to reconsider summary

  judgment. Plaintiff argued that the district court’s grant of

  summary judgment was premature because plaintiff was not given

  sufficient opportunity for discovery. The district court denied the

  motion.

                     II. Summary Judgment Ruling

¶ 10   Plaintiff contends that the district court erred in granting

  defendant’s summary judgment motion. We disagree.


                                    3
         A. Summary Judgment Law and Standard of Review

¶ 11   Summary judgment may be granted if the pleadings and

  supporting documentation demonstrate that there is no genuine

  issue of material fact and that the moving party is entitled to

  judgment as a matter of law. C.R.C.P. 56(c); Bailey v. Lincoln Gen.

  Ins. Co., 255 P.3d 1039, 1051-52 (Colo. 2011).

¶ 12   The party moving for summary judgment has the initial

  burden of showing that there is no genuine issue of material fact.

  Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987). If

  the moving party satisfies that burden, the nonmoving party must

  then put forward evidence showing that a triable issue of fact exists.

  Id. at 713; see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

  U.S. 574, 586 (1986) (stating that the nonmoving party “must do

  more than simply show that there is some metaphysical doubt as to

  the material facts”). The nonmoving party is entitled to the benefit

  of all favorable inferences that reasonably may be drawn from the

  evidence, and all doubts as to the existence of a genuine issue of

  material fact must be resolved in that party’s favor. Brodeur v. Am.

  Home Assurance Co., 169 P.3d 139, 146 (Colo. 2007).




                                    4
¶ 13   We review a district court’s decision granting summary

  judgment de novo. Rocky Mountain Festivals, Inc. v. Parsons Corp.,

  242 P.3d 1067, 1074 (Colo. 2010).

                    B. Substantive Law and Analysis

¶ 14   As she did in the district court, plaintiff contends on appeal

  that defendant failed to properly present evidence that it had

  standing to foreclose. We disagree, and conclude that defendant

  produced sufficient evidence to establish that it was entitled to

  foreclose, and that plaintiff failed to demonstrate that there was a

  genuine issue of material fact as to defendant’s standing to

  foreclose.

¶ 15   Colorado foreclosure law allows a holder of an evidence of debt

  to foreclose upon breach of the terms of the deed of trust. See § 38-

  38-101, C.R.S. 2015. 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.” § 38-38-100.3(10), C.R.S. 2015; see McDonald v.

  OneWest Bank, F.S.B., 680 F.3d 1264, 1266 (10th Cir. 2012) (“[A]




                                    5
  person entitled to enforce an instrument may be a holder, and need

  not be an owner, of the instrument.” (applying Colorado law)).1

¶ 16   Under sections 38-38-101(1)(b)(II) and (1)(c)(I), the holder of an

  evidence of debt may initiate foreclosure proceedings with a copy of

  the evidence of debt and deed of trust, rather than the original

  documents.

¶ 17   To foreclose in this manner, the holder of an evidence of debt

  must file “a statement signed by the attorney for such holder, citing

  the paragraph of section 38-38-100.3(20) under which the holder

  claims to be a qualified holder and certifying or stating that the copy

  of the evidence of debt is true and correct.” § 38-38-101(1)(b)(II)

  (emphasis added).

¶ 18   Here, in accordance with sections 38-38-101(1)(b)(II) and

  (1)(c)(I), defendant foreclosed with a copy of the note and the deed of

  trust, along with a certification in which its attorney stated that it

  was a qualified holder. These documents were sufficient to show



  1 “Evidence of debt” is “a writing that evidences a promise to pay or
  a right to the payment of a monetary obligation, such as a
  promissory note, bond, negotiable instrument, a loan, credit, or
  similar agreement, or a monetary judgment entered by a court of
  competent jurisdiction.” § 38-38-100.3(8), C.R.S, 2015.

                                     6
  that defendant was a qualified holder, and thus had standing to

  foreclose. See Miller v. Deutsche Bank Nat’l Tr. Co. (In re Miller), 666

  F.3d 1255, 1265 (10th Cir. 2012) (applying Colorado law and

  recognizing the ability of a holder of evidence of debt to foreclose

  under section 38-38-101(1)(b)).

¶ 19   Accordingly, the district court did not err in granting

  defendant’s motion for summary judgment.

             III. Motion to Reconsider Summary Judgment

¶ 20   Plaintiff also contends that the district court erred in denying

  her motion to reconsider summary judgment because the court

  prematurely granted summary judgment without giving plaintiff

  sufficient opportunity to conduct discovery. We perceive no error.

¶ 21   A trial court’s discovery rulings will not be disturbed on

  review, absent an abuse of discretion. A trial court abuses its

  discretion when its decision is manifestly arbitrary, unreasonable,

  or unfair. Keybank, Nat’l Ass’n v. Mascarenas, 17 P.3d 209, 215

  (Colo. App. 2000).

¶ 22   C.R.C.P. 56(f) allows a party who cannot produce facts

  essential to its opposition to a motion for summary judgment to

  submit an affidavit explaining why it cannot do so. In this case,


                                     7
  plaintiff did not submit a C.R.C.P. 56(f) affidavit. Plaintiff’s motion

  to reconsider summary judgment cannot take the place of a

  C.R.C.P. 56(f) affidavit, because the rule requires that the affidavit

  be submitted prior to the court’s summary judgment ruling. See

  Sundheim v. Bd. of Cty. Comm’rs, 904 P.2d 1337, 1352 (Colo. App.

  1995) (“In order to avoid the precipitous and premature grant of

  judgment against the opposing party, C.R.C.P. 56(f) affords an

  extension of time to utilize discovery procedures to seek additional

  evidence before the trial court rules on a motion for summary

  judgment.”), aff’d, 926 P.2d 545 (Colo. 1996).

¶ 23   Plaintiff’s argument in her reconsideration motion that the

  trial court erred in granting summary judgment without giving her

  sufficient opportunity to conduct discovery is foreclosed because

  plaintiff did not file a C.R.C.P. 56(f) affidavit. See Foster v. Redd,

  128 P.3d316, 319 (Colo. App. 2005). Accordingly, the district court

  properly denied plaintiff’s motion to reconsider summary judgment.

                              IV. Conclusion

¶ 24   We affirm the district court’s judgment.

       JUDGE TAUBMAN and JUDGE DAILEY concur.




                                      8
