PLAINTIFF'S FOURTH OPPOSITION TO DEFENDANT'S MOTION TO REMAND TO STATE COURT.docx

7/27/2019 PLAINTIFF'S FOURTH OPPOSITION TO DEFENDANT'S MOTION TO REMAND TO STATE COURT.docx

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PLAINTIFFS OPPOSITION TO US BANKS MOTION

TO REMAND TO STATE COURT Page1

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02716-WJM-MEH

LISA KAY BRUMFIEL,

Plaintiff,

v.

US BANK,LARRY CASTLE, in his corporate capacity,LARRY CASTLE, in his individual capacity,CASTLE STAWIARSKI LLC,ROBERT J. HOPP, ATTORNEY,

CYNTHIA MARES, Public Trustee in her official capacity,MERS a division of MERSCORP Inc. and DOES 1-100

Defendants

PLAINTIFF'S OPPOSITION TO US BANKS MOTION TO REMAND TO

COLORADO STATE COURT ACTION 2013-cv-825

_____________________________________________________________

PRELIMINARY STATEMENT AND INTRODUCTION

This court has already assumed original federal question jurisdiction to determine

if the Colorado State Foreclosure Statute--- 38-38-101 violates Section 1 of the 14th

Amendment, which governs both non judicial foreclosures (Rule 120), and judicial

foreclosures 105 (Exhibit A p. 1), and therefore both are unconstitutional. At issue is the

burden of proof required under the 14 th Amendment before plaintiffs fundamental

property interest (her home) is taken through foreclosure proceedings whether non

judicial or judicial. Both procedures are in controversy, and will be affected by this courts

decision.

In Defendants response to opposition to plaintiffs MOTION FOR LEAVE TO FILE


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THIS NOTICE OF REMOVAL AND PETITION INTO THE ABOVE ENTITLED CASE

[Dkt #163, p. 2] which US Bank incorporates in its Motion to Remand [Dkt # 171, p 2, 4]

defendant US Bank states:

The State Court Action does not involve the Rule 120 Public Trustee Foreclosurein any fashion. Plaintiffs constitutional questions before this Court are moot.Similarly, the State Court Action also does not involve any constitutional orfederal issues.

But the State Court Action is fully involved since it is also governed by 38-38-101

which is the subject of Plaintiffs constitutional challenge, and therefore this court has

already assumed federal question jurisdiction over that question.

At p. 3 of Defendants Response, defendant states :

Plaintiff does not have the required unanimous written consent of all partydefendants in the State Court Action. The failure of all defendants to join in orconsent to the removal request precludes removal

But as this court reviews plaintiffs argument, unanimity was not necessary since the

non joining defendants were only nominal defendants.

In the Order Granting plaintiff an Injunction [Docket #94, pgs 13, 14] this Court

expressed serious concern over the procedures employed in the Rule 120 Foreclosure

governed by 38-38-101 as amended through HB 06-1387 when it said:

Rather, with respect to Plaintiffs Ninth Claim, the Court finds that she has mether burden with respect to the modified standard. (See ECF No. 45.)According to Plaintiffs legal theory, Colo.Rev. Stat. 38-38-101 does twothings: (1) it lowers the standard of proof that a creditor must meet in orderto proceed to foreclosure from original documentary evidence to anunsworn statement; and (2) it creates an additional burden upon a debtorto establish evidence of the creditors identity which the creditor, itself isnot required to locate. Whether these issues create due process concernswithin the limited scope of a Rule 120 hearing creates serious constitutionalquestions. [B,U]

At the May 6th, 2013 hearing, from the Reporters Transcript Docket # 117, p. 41, lns


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22-25, p. 42, lns1-25, this Court said:

THE COURT: Well, if we were operating in a procedural setting pre-2006 wherein order to prevail at a Rule 120 hearing the holder in due course would have tocome in with an original deed of trust and an original promissory note, or a

verified assignment document, I would agree with you, because then the realparty in interest and who is the true holder of the note would not have been anissue.

But what this lawsuit raises in my mind is we have a totally changed landscapepost-2006, and there's a very real issue as to who is actually the owner of thisproperty. If it turns out that U.S. Bank, your clients -- are not the ownersright now, Ms. Brumfiel is the owner***

***[I]f your clients are not the actual holders in due course of the note anddeed of trust, then she's the victim, because she loses her property to folks

who can't prove they actually own the deed of trust or promissory note.

So because I can't answer that question today, I can't answer that questionpreliminarily, it's something that has to be viewed in the longer term as to how themerits develop in this case, isn't that an argument for maintaining the statusquote now, issuing the temporary restraining order, freezing things where theyare, in place, and then allowing the suit to go forward to see if your clients canprove that they are the actual current holders of the deed of trust andpromissory note? [B, U]

Accordingly, the answer to the question above posed by this Court in the May 6th,

2013 hearingdetermination of who is the current holder of the deed of trust and

promissory note, will be raised in both the proposed judicial foreclosure and this

federal action, in which the defendants seek to evade the scrutiny of this court and

will ultimately determine ifUS Bank N.A. can foreclose irrespective of whether the

proceeding is non-judicial or judicial. This court has assumed original federal

question jurisdiction (12-cv-02716), and that issue is inextricably linked to the

issues in this case. So why subject plaintiff to two forums to determine the same

issue? Would two forums lead to judicial economy? .Would the federal ruling and

the state court ruling harmonize? It is inappropriate for two courts to effectively


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retain jurisdiction over the same controversy, under the same set of predicate facts, as

this will inexorably lead to conflicts between the courts. We must remember that the

Colorado non-judicial foreclosure Rule 120, and the Colorado Judicial foreclosure Rule

105 are governed by the same statute 38-38-101 (See JUDICIAL FORECLOSURE

ACTIONSPROCEDURES AND TACTICS, Exhibit A) which is the focus of the

constitutional challenge, and lays the foundation for the burden of proof the lender is

required to produce to show that it is the holder of the note with standing to foreclose

without regard to a higher burden of proof requirement imposed by the 14 th Amendment

when a fundamental property right is involved.

By reference to the transcript of the May 6th

, 2013 hearing, and subsequent orders of

this court DIRECTING defendants to file the original deed of trust, and original

promissory note with original endorsements, this court has been made aware of the

evasive tactics that defendants employ to avoid producing the evidence that the lender is

the holder of the note entitled to foreclose.

At the May 6th

hearing defendants asserted that they had the Original Deed of Trust

and Promissory Note in hand [Reporters Transcript, Docket # 117, p.63, RT: 20-25] :

MS. BRUMFIEL:

Yes, that is true, your Honor. We had been asking for the note, by the way, for -- inwriting for over probably -- I don't know, probably a year now, over and over andover and over. And it -- even at the point in time when they started the foreclosureproceedings, they had not had the original note in their possession.`At p. 67, RT: 19-22

COURT:Mr. Vaglica, Ive asked you earlier to file by Wednesday a copy of the originaldeed of trust and promissory note, so well be looking forward to that.

MR. VAGLICA: Yes, your honor.


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At p. 68, RT:21-23

MR. VAGLICA: Would you like us to deposit the original with the clerk downstairs asopposed to filing it through the system?

THE COURT: Well, I will take your representation as an officer of the Court that what you

will be filing is an accurate copy of what you have in your hand, and for now that willsuffice.

At p. 69, RT:3-7

MR. VAGLICA: We'll bring it to the hearing.

THE COURT: Yes, please.

MR. VAGLICA: Just in case his Honor wants to look at the original signatures.

THE COURT: I would appreciate that. Thank you.

In the ORDER GRANTING PLFS REQUEST FOR INTERIM PRELIMINARY

INJUNCTION footnote 2, p. 2, 3, [Docket 94, May 6th

, 2013] this Court said:

The Court notes that during the course of todays hearing, the Castle Defendants offered

to provide original evidence of the debt. To date, Defendants have been relying upon a

document titled Statement By Attorney for Qualified Holder pursuant to Colo. Rev. Stat.38-38-101. (ECF No. 9-4.) That document has been relied upon by Defendant Trust in

the Rule 120 foreclosure proceedings. The issue of original evidence is relevant to

Plaintiffs arguments based on her Amended Complaint. Plaintiff [Defendant] has untilWednesday, May 8, 2013 at 9:00 a.m. to file with the Court such evidence. It will be duly

considered by this Court at the evidentiary hearing, and the parties are on notice that it

could potentially have a bearing on the Courts view whether a preliminary injunctionshould be granted. In addition, the Court will be giving much scrutiny to which entities

signed the original documentation, and in what capacity.

On May 8th, 2013 Defendants filed copies of the originals Deed of Trust & note.

On May 9th, 2013 [Docket # 110] the Court ORDERED that defendants file the

Original Deed of Trust, the Original Promissory Note, and all Original endorsements to

be submitted by May 10th

, 2013 at 4:00 p.m.

In Documents # 111-113 Filed 05/10/13 p.1, CS Defendants stated:


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Defendants Larry Castle and Castle Stawiarski, LLC (collectively, the CastleDefendants), through their attorneys, The Castle Law Group, LLC, by Phillip A.Vaglica, of counsel, and Christopher T. Groen, hereby respond to the courtsorder of May 9, 2013:

The Castle Defendants previously filed a true and correct copy of the original

note and all endorsements, along with a true and correct copy of the originaldeed of trust on Wednesday, May 8, 2013 [Doc. #104].

The Castle Defendants hereby submit a true and correct copy of the originalAssignment of Deed of Trust, dated October 4, 2011.

The Castle Defendants have no other original documents in their possession withregard to this matter.

Defendants US Bank N.A. and Castle Defendants are Judicially Estopped to deny

that they do not have the original Deed of Trust and Promissory Note and must produce

the originals in this case and explain the manner of procurement , or admit that they

never had the originals. On the other hand, a state court obligated to follow the

foreclosure statute 38-38-101, would allow the copies to be submitted with a statement

of qualified holder that the lender is the holder entitled to foreclose.

ARGUMENT

UNANIMITY FOR REMOVAL MAY BE DISREGARDED

Plaintiff did not seek approval of defendants because the state court did not have

subject matterjurisdiction under the Prior Exclusive Jurisdiction Doctrine, the statute

governing the judicial foreclosure, 38-28-101 as amended is unconstitutional, and the

non-joining defendants (parties with an interest in the property, See 2013cv825 compl.

Parties) were nominal defendants who (i) are only nominal defendants because they

would not be liable to pay a resulting judgment and (ii) a nominal defendant is not

counted for jurisdictional purposes , and therefore is not a bar from removing this case..

The Supreme Court of the United States has long held that a federal court must


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disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real

parties to [a] controversy. Navarro Savings Assn v. Lee, 446 U.S. 458, 461 (1980)

INITIAL LACK OF THE RIGHT OF REMOVAL MAY BE CURED

WHEN THE FINAL POSTURE DOES NOT WRONGFULLY

EXTEND JURISDICTION

Any defect in the removal process in state court can be subsequently cured.

In MOFFITT v. RESIDENTIAL FUNDING COMPANY LLC JP, , Nos. 10-1316, 10-

1319, 10-1321., May 03, 2010 citing American Fire & Casualty Co. v. Finn, 341 U.S. 6,

16 (1951)) said, . As we explained, an initial lack of the right t o removal may be cured

when the final posture of the case does not wrongfully extend federal jurisdiction.

In Pegram v. Herdrich, 530 U.S. 211 (2000), for instance, the Supreme Court

reasoned that because the plaintiff had amended her complaint to add federal claims,

said: we therefore have jurisdiction regardless ofthe correctness of the removal

But this court alreadyhad assumed original federal question jurisdiction and can

assume supplemental jurisdiction as well regardless of the correctness of the removal.

This court has derivative jurisdiction under 28 USC 1441(f) when The court to which a

civil action is removed under this section is not precluded from hearing and determining

any claim in such civil action because the State court from which such civil action is

removed did not have jurisdiction over that claimPlaintiff has claimed that 38-38-101

which governs judicial foreclosures as well is unconstitutional. [T]he presence of even

one claim arising under federal law is sufficient to satisfy the requirement that the case

be within the original jurisdiction of the district court for removal. Wiscons in

Department of Correct ions v. Schacht, 524 U.S. 381, 386 (1998)
http://scholar.google.com/scholar_case?case=6959863816460092607&q=schacht&hl=en&as_sdt=2,14http://scholar.google.com/scholar_case?case=6959863816460092607&q=schacht&hl=en&as_sdt=2,14http://scholar.google.com/scholar_case?case=6959863816460092607&q=schacht&hl=en&as_sdt=2,14http://www.jureeka.net/Jureeka/US.aspx?doc=U.S.&vol=524&page=381&pinpoint=undefined&bUrl=http://federalpracticemanual.org/node/14/edithttp://www.jureeka.net/Jureeka/US.aspx?doc=U.S.&vol=524&page=381&pinpoint=undefined&bUrl=http://federalpracticemanual.org/node/14/edithttp://scholar.google.com/scholar_case?case=6959863816460092607&q=schacht&hl=en&as_sdt=2,14http://scholar.google.com/scholar_case?case=6959863816460092607&q=schacht&hl=en&as_sdt=2,14


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TWO CONCURRENT JUDICIAL BODIES CANNOTOCCUPY THE SAME SPACE

Two courts may not exercise simultaneous in remjurisdiction over the same subject

matter of the case. A federal court may enjoin a state court proceeding "where the

federal court's jurisdiction is in remand the state court action may effectively deprive the

federal court of the opportunity to adjudicate as to the subject matter."

The Prior Exclusive Jurisdiction Doctrine was precisely created for the situation

now before this court because The threat posed by a parallel state court proceeding

is most acute when federal jurisdiction is dependent upon a res. For that reason,

the most prominent "in aid of jurisdiction" exception is for in remactions. Where a

state court proceeding interferes with a federal court's jurisdiction over a res, the

federal court may enjoin the state court proceeding. BENNET V MEDTRONIC, No.

01-55966, (March, 2002, 9th

, Circuit) Marshal l v. Marshal l, 547 U.S. 293, 311

PlaintiffUS Bank N.A. Claims that the state action 2013cv825 was properly before

the state court. Defendant Lisa Kay Brumfiel claims that the state court did not have

subject matter jurisdiction under the Prior Exclusive Jurisdiction Doctrine also

known as the Colorado Priority Jurisdiction, orThe First to File Rule.Where

concurrent proceedings in state and federal court are both suits in remorquasi in rem,

the court first assuming jurisdiction over the property may maintain and exercise that

jurisdiction to the exclusion of the other. Knaefler v. Mack, 680 F.2d 671, 675 (1982)

On October 12th, 2012, Plaintiff Lisa Kay Brumfiel filed an in remaction over the

subject matter (res) of the case (plaintiffs home at 1499 South Jasper St., Aurora,


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Colorado 80017) in the above entitled action under 42 USC 1983, 1985 against

defendants which includes US Bank.

On May 24th, 2013, after dismissing the non judicial foreclosure, US Bank filed in rem

judicial foreclosure action on essentially the same subject matter, involving the same

foreclosure statute 38-38-101 against plaintiff (2013cv825) as in the federal court case

12-cv-02716 in which the statute is the subject of a constitutional challenge.

In this case as in the state case, which US Bank is forum shopping, the same

nucleus of facts are present which may give rise to contrary opinions.

On June 4th, 2013 plaintiff filed a notice of removal in the State case no. 2013cv825

and concurrently filed a Notice of Removal and petition in the federal case 12-cv-02716

with a motion to join the state case in the above entitled action..

The Judicial foreclosure 105 is governed by Colo. Rev. Stat. 38-38-101, where the

burden of proof required of lenders to show that they are the real party in interest with

standing to foreclose has been intentionally reduced through a broad conspiracy by the

defendants to deprive homeowners like Plaintiff of due process and equal protection of

fundamental property interests The burden of proof allowed in a foreclosure under

section 38-38-101 as amended by HB 06-1387 in the state case 2013cv825 is not

allowed in other actions such as Adverse Possession 38-41-101et seq, where the

party claiming a right to the property must prove by Clear and convincing evidence their

right to the property.Raftopou los v. Monger, 656 P.2d 1308, 1311(Colo. 1983).

Therefore, even in a judicial foreclosure plaintiff will be denied the equal protection of the

law under the 14th Amendment. Addingtonv. Texas, 441 U.S. 418 (1979)


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RULES OF ENGAGEMENT IN PARALLEL LITIGATIONAND SUPPLIMENTAL JURISDICTION

In SASCO vs BRUCE BYERS, Case Number C 08-5641 JF (RS) (Cal. 2009) The

United States District Court for Northern California, San Jose Div., remanded the case

on the grounds of the First to File Rule.. The court explained the Rule:

There is a generally recognized doctrine of federal comity which permits adistrict court to decline jurisdiction over an action when a complaint involving thesame parties and issues has already been filed in another district. PacesetterSys., Inc. v. Medtron ic, Inc., 678 F.2d 93, 94-5 (9th Cir. 1982). This doctrine,

known as the first-to-file rule, gives priority, for purposes ofchoosing amongpossible venues when parallel litigation has been instituted in separate courts, tothe party who first establishes jurisdiction. Northw est Air l ines, Inc. v.Am er ican Air l ines, Inc., 989 F.2d 1002, 1006 (8th Cir. 1993). The rule servesthe purpose of promoting efficiency well and should not be disregarded lightly.Church of Scientology of Cal. v. U.S. Dept of Army, 611 F.2d 738, 750 (9thCir. 1979).

In this case the First to File Rule, orPriority Rule orPrior Exclusive

Jurisdiction Doctrine militates against remand to the state court

The state court lacked in remjurisdiction under the Prior Exclusive Jurisdiction

Doctrine, also known as the Priority Rulein Colorado.

In both in remcases, Colorado Rev Stat. 38-38-101 is involved, and is the subject

in this federal action of plaintiffs challenge to the constitutionality of the foreclosure

statute and the Rule 120 proceeding. A District Court has supplemental jurisdiction over

all claims that form part of the same case or controversy as the claim over which the

court has original jurisdiction. 28 U.S.C. 1367(a). The Supreme Court has provided

further guidance, holding that a federal court has jurisdiction over an entire action,

including state-law claims, whenever the federal-law claims and state-law claims in the


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case derive from a common nucleus of operative facts and are such that would

ordinarily be expected to try them all in one judicial proceeding. Carnegie-Mellon Univ .

v. Cohil l, 484 U.S. 343, 349 (1988)

Cohi l lPrinciples: Economy, Convenience, Fairness, and Comity

The factors of economy and convenience weigh heavily in favor of exercisingsupplemental jurisdiction over the entire action. If the Court chose to remand Plaintiffs

state-law claims, it would splinter the litigation into two separate forums. Requiring the

parties to manage two different lawsuits in two different forums would force both sides toexpend significantly more time, money, and effort than by having the parties litigate the

entire action before this Court. Thus, exercising supplemental jurisdiction over all of

Plaintiffs state-law claims would be significantly more economical and convenient for

both parties.

Likewise, the principles of fairness and comity favor the exercise of supplementaljurisdiction. Plaintiff asserted, inadvertently or not, a federal claim against Defendant and,as a result, Defendant had the statutory right to remove the case to federal court. It wouldbe unfair forthe Court to subvert Defendants statutory right by forcing it to fight two

separate legal battles in two different forums without a compelling justification. While

Plaintiff would prefer to argue his case in state court, the holding is nonetheless fair to himas well because he will still have the opportunity to fully and fairly argue his case, albeit in

a federal forum. [U]

Therefore, after considering the impact of removal on both parties, the Court finds that it isappropriate to exercise supplemental jurisdiction over all of Plaintiff's state law claims.

Should the Court ultimately dismiss or otherwise resolve all federal claims, the Court will

reconsider whether remand of any remaining state-law claim is appropriate.

Allowing competing courts to proceed could lead to conflicting rulings in which the

first opinion rendered could serve as a retraxit If a state court reaches the decision that

copies are perfectly fine and constitutional, then plaintiffs only recourse is an appeal in

state court leaving the Federal court nothing left..

In the Colorado Revised Statute entitled PART 1. FORECLOSURE SALE C.R.S.

38-38-101 (2012) states in relevant part:

(II) A copy of the evidence of debt and a certification signed and properlyacknowledged by a holder of an evidence of debt acting for itself or as agent,nominee, or trustee under subsection (2) of this section or a statement signed by


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the attorney for such holder, citing the paragraph ofsection 38-38-100.3 (20)under which the holder claims to be a qualified holder and certifying or statingthat the copy of the evidence of debt is true and correct and that the use of thecopy is subject to the conditions described in paragraph (a) of subsection (2) ofthis section.

If this Court is concerned over the effect Colo. Rev. Stat. 38-38-101 has on the

Rule 120 Foreclosure as it had declared because the standard of proof that a creditor

must meet in order to proceed to foreclosure from original documentary evidence to an

unsworn statement; and because (2) it creates an additional burden upon a debtor to

establish evidence of the creditors identity which the creditor, itself is not required to

locate, it should be an equally valid concern of this Court over proceedings in the

Judicial Foreclosure action 2013cv825 which US Bank N.A. seeks to pursue because the

Judicial Foreclosure is also governed by Colo. Rev. Sta. 38-38-101 (See JUDICIAL

FORECLOSURE ACTIONSPROCEDURES AND TACTICS, Exhibit A) where US

Bank will present the same copies of the Deed of Trust and Promissory Note and a

unsworn Statement of Qualified Holder that the lender is the real party in Interest. [A]n

additional burden will be placed on the debtor to establish evidence of the creditors

identity which the creditor, itself is not required to locate [Docket #94, court quote]

The First to File Rule has been applied in the Colorado District Court in the case

ofANIMAL HEALTH INTERNATIONAL , INC., v. LIVINGSTON ENTERPRISES, INC.,,

Civil Case No. 12-cv-00369-LTB (April 26th

, 2012 the court applied the First to File Rule

and dismissed the action in favor of the Nebraska federal court which pre-dated the

Colorado lawsuit. As the court explained at p. 3 and 4:

Regardless of whether this court has subject matter and personal jurisdiction over

defendants, whether venue is proper in this district*** , the fact remains that there are

now two parallel federal lawsuits implicating the same set of facts.
http://web.lexisnexis.com/research/buttonTFLink?_m=4ba12a40d09fd2caf1ebe1da4e70946a&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bC.R.S.%2038-38-101%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=2&_butInline=1&_butinfo=COCODE%2038-38-100.3&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAW&_md5=e37ed9f6d4b84dc6c00f633bd1fa7f6ahttp://web.lexisnexis.com/research/buttonTFLink?_m=4ba12a40d09fd2caf1ebe1da4e70946a&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bC.R.S.%2038-38-101%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=2&_butInline=1&_butinfo=COCODE%2038-38-100.3&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAW&_md5=e37ed9f6d4b84dc6c00f633bd1fa7f6a


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Under the first-filed or first to file rule, the first federal district court which obtains

Jurisdiction of parties and issues should have priority and the second court should

decline consideration of the action until the proceedings before the first court areterminated.***

[W]hen parallel litigation has been instituted in separate courts, to the party who first

establishes jurisdiction in order to conserve judicial resources and avoid conflictingrulings.). The rational for the rule is that [t]he simultaneous prosecution in two

different courts of cases relating to the same parties and issues leads to the wastefulnessof time, energy and money. (Cite)

Livingston argues that the first to file rule applies and that the instant case should bedismissed, stayed, or transferred as a result. In support, it asserts that the pending

Nebraska Action predates this one, that the parties are the same, and that the actions

require the respective courts to decide many of the same issues. [B, U]

COLORADO PRIORITY RULE

In Town of Mintu rn, Colo. v. Sensible Housin g Co., Inc., 2012 CO 23, (April 8th,

2012) the Supreme Court of Colorado said:

The court of appeals agreed and applied the priority rule*** the court first acquiringjurisdiction [over] the parties and the subject matter has exclusive jurisdiction .(cite)

.. The purpose of the priority rule is to promote judicial efficiency and avoid

unnecessary duplication and multiplicity of suits. (Cite)

In SEXTON v. NDEX WEST LLC FSB,No. 1117432. 2013, the court stated:

Under the Supreme Court's long-standing prior exclusive jurisdiction doctrine, if a state

or federal court has taken possession of property, or by its procedure has obtained

jurisdiction over the same, then the property under that court's jurisdiction iswithdrawn from the jurisdiction of the courts of the other authority as effectually as if the

property had been entirely removed to the territory of another sovereign.(cite)

In BENNET V MEDTRONIC, INC., No. 01-55966, (9th Cir. 2002) the court explained

the reasoning in enjoining state court proceeding under the exceptions to the Anti-

Injunction Statute. As the court outlined:

I. THE ANTI-INJUNCTION ACT The Anti-injunction Act provides as follows: Acourt of the United States may not grant an injunction to stay proceedings in a State court

except as expressly authorized by Act of Congress, or where necessary in aid of its

jurisdiction, or to protect or effectuate its judgments. 28 U.S.C. 2283. ***
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The threshold question we address is whether the district court's order constitutes

"an injunction to stay [state court] proceedings." Because the issue before us is a

legal one, we review the injunction de novo. (Cite)

II. THE EXCEPTIONS The next question is whether the circumstances of this case fall

within one of the three exceptions to the Act-- injunctions that: (1) Congress has

expressly authorized; (2) are necessary in aid of the federal court's jurisdiction; or (3) arenecessary to protect or effectuate the federal court's judgments.***

The exceptions applicable in this action are 1 and 2. This court has already

determined that Plaintiffs action under than 42 US 1983, 85 is one of the actions that is

expressly authorized exception to the Anti Injunction Statute. Mitchum v. Foster, 407

U.S. 225, 235 (1972); Moreover, this court is also authorized under the second exception

by Congress in aid of the federal courts jurisdiction.

As the Court in Bennetsaid:

In Atl antic Coast, the Supreme Court explained that "some federal injunctive relief may

be necessary to prevent a state court from so interfering with a federal court'sconsideration or disposition of a case as to seriously impair the federal court's flexibility

and authority to decide that case." 398 U.S. at 295.

In CHAPMAN v . DEUTSCHE BANK NATIONAL TRUST COMPANY, No. 10

15215, June 23, 2011 Ninth Circuit held that the prior exclusive jurisdiction doctrine

Is no mere discretionary abstention rule. Rather, it is a mandatory jurisdictional

limitation. (cite)[B, U[

Plaintiff should not be put under the ordeal of two cases determining the same issues

of fact in a proceeding where the burden of proof applied in the state case will be the one

mandated by 38-38-101 which does not require Clear and convincing evidence to show

that the lender is the note holder entitled to foreclose.

In the Reporters transcript of the May 6th

hearing [Docket # 117, pg 10, lns 22-25;

and p. 11, lns 1-22] Plaintiff Lisa Kay Brumfiel recounts how she had attended several of
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the evidentiary hearings in the Rule 120, noting that when the homeowner raised the

Real Party in Interest Defense as was required by the Goodwin, the court will listen and

then say : Limited in scope, and does not rule on any of your evidence.

The judge in the judicial foreclosure who will determine the case is among the same

judges that determine the evidentiary hearing in the non-judicial foreclosure. If the

determination of the Real Party in Interest is guided by the Colo. Rev. Stat 38-38-101

then Plaintiff will experience the same result as in the non judicial evidentiary hearing.

Colo. Rev Stat 38-38-101 as amended by HB06 1387, which plaintiff claims is

substantively and procedurally defective under section 1 of the Fourteenth Amendment,

is the governing statute for both the Rule 120 and the 105 and is the lynchpin of

plaintiffs constitutional challenge. The constitutional infection of Colorado Rev Stats 38-

38-101 as amended by HB 06-1387, is no less a threat to plaintiffs due process

protections by subjecting plaintiff to a Rule 105. The same rationale for applying the

First File Rule is present in this case. It would be in the best interests of efficiency,

judicial economy, and avoiding conflicting rulings.

In Kl ine v. Burke Constr . Co., 260 U.S.226 (1922) the Court said:

It is settled that, when a state court and a court of the United States may each take

jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it, to theexclusion of the other, until its duty is fully performed, and the jurisdiction involved is

exhausted. . . . The rule is limited to actions which deal either actually or potentially

with specific property or objects.

CONCLUSION

For the foregoing reasons this court should deny plaintiff US Bank N.A. remand.

Respectfully submitted,


16/16



_______________ Date: ___________, 2013LISA KAY BRUMFIEL

PLAINTIFF'S FOURTH OPPOSITION TO DEFENDANT'S MOTION TO REMAND TO STATE COURT.docx

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