FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 6, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARK D. NIEDERQUELL; JUDITH A.
NIEDERQUELL,
Plaintiffs - Appellants,
v. No. 16-1107
(D.C. No. 1:11-CV-03185-RM-MJW)
BANK OF AMERICA N.A.; THE BANK (D. Colo.)
OF NEW YORK MELLON; PEGGY J.
KERN; GREEN TREE SERVICING,
LLC,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before KELLY, McKAY, and MORITZ, Circuit Judges.
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In 2005, Plaintiffs obtained a loan from Countrywide Home Loans, Inc., to
refinance their mortgage. The loan was secured by a deed of trust and evidenced by a
promissory note indorsed in blank. Plaintiffs made regular loan payments until 2009
when they defaulted. In 2011, Bank of New York Mellon asserted that it was the holder
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
of the promissory note, and therefore entitled to foreclose on the property, and
commenced foreclosure proceedings by filing a Notice of Election and Demand for Sale
by Public Trustee with the Rio Grande County Public Trustee. The bank then filed in
state court a Rule 120 motion under Colorado Rule of Civil Procedure for an order
authorizing sale. Attached were copies of the promissory note and the deed of trust.
Plaintiffs did not oppose the Rule 120 motion, which was subsequently granted. For
whatever reason, the property was not sold. Instead, two years later Bank of New York
Mellon sought voluntary dismissal of the order authorizing sale.
But before the order was dismissed, Plaintiffs commenced a separate action in
state court against Bank of New York Mellon and Bank of America, the loan servicer,
seeking (1) a declaratory judgment stating that the Rule 120 order authorizing sale was
void because the Bank of New York Mellon did not have standing to invoke the sale
provision of the deed of trust and (2) a declaration that neither Bank of America nor Bank
of New York Mellon holds a valid lien against the property. Defendants removed the
matter to federal court. A few months later, Plaintiffs amended their complaint, adding
the county public trustee as a defendant, as well as a new claim against Bank of America
under the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. A few
months after that, servicing on the loan transferred from Bank of America to Ditech
(formerly Green Tree Servicing), and Plaintiffs filed a second amended complaint to add
Ditech as a defendant.
After limited discovery, Defendants moved for summary judgment. Copies of the
promissory note and deed of trust were attached as exhibits. The motions were fully
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briefed by May 2015. In November 2015, Ditech’s counsel notified Plaintiffs that the
original promissory note had been obtained. A month later, Defendants filed a joint
motion to supplement their motions for summary judgment to add the original promissory
note as an exhibit. Plaintiffs objected to the motion to supplement, and the court set a
hearing on this motion as well as the pending motions for summary judgment.
At the hearing, the district court granted the motion to supplement after it
inspected the promissory note and deed of trust. The presiding judge explained: “I have
no doubt and so find that these documents that have been given to me . . . are, in fact,
original documents.” (Appellants’ App. at 444.) Plaintiffs requested an opportunity to
“submit that original, that document to forensic analysis,” (id. at 453), which the judge
denied because he found “that there is nothing about that note that raises even a
suspicion,” (id. at 455). As the judge pointed out, “[A]ll that exists, contrary to that
finding [of authenticity], is some potential speculation that some forensic person
somewhere might find something about that note that . . . could lead a reasonable jury to
conclude that there is a question with regard to the originality of the note.” (Id. at 468.)
The judge then held that permitting Defendants to supplement the record on summary
judgment was not “unduly prejudicial” to Plaintiffs and granted the motion to
supplement. (Id. at 443.)
Next, the judge turned to the pending motions for summary judgment, which he
granted after whittling down the complaint claim-by-claim. The judge dismissed first, to
no objection, Plaintiffs’ claims against the public trustee. Ditto the claim to void the
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Rule 120 order sale. He granted Ditech’s summary-judgment motion after Plaintiffs had
conceded that “[t]here is no direct claim against [Ditech].” (Id.at 452.) The judge then
denied Plaintiffs’ claim that neither bank held a valid lien against the property because
(1) “[Bank of America] never asserted a lien” (id. at 461) and (2) Bank of New York
Mellon was “in possession of the original note,” (id. at 468). Finally, the FDCPA claims
were dismissed because, the district court held, the two banks were “not a debt collector
within the meaning of the Fair Debt Collection Practices Act” as they had “obtained the
loan prior to its default.” (Id. at 466). Plaintiffs timely appealed.
“We review de novo a district court’s grant of summary judgment and must view
the factual record and make reasonable inferences therefrom in the light most favorable
to the party opposing summary judgment.” Bird v. W. Valley City, 832 F.3d 1188, 1199
(10th Cir. 2016) (internal quotation marks omitted). “We will uphold the district court’s
grant of summary judgment only if there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Id. (internal quotation marks
omitted). “[I]f the nonmovant bears the burden of persuasion on a claim at trial,
summary judgment may be warranted if the movant points out a lack of evidence to
support an essential element of that claim and the nonmovant cannot identify specific
facts that would create a genuine issue.” Patel v. Hall, 849 F.3d 970, 978 (10th Cir.
2017). “Importantly, in opposing a motion for summary judgment, the non-moving party
cannot rest on ignorance of facts, on speculation, or on suspicion.” Bird, 832 F.3d at
1199 (internal quotation marks omitted).
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We review a district court’s evidentiary rulings for abuse of discretion at the
summary judgment stage, Jones v. Barnhart, 349 F.3d 1260, 1270 (10th Cir. 2003),
which means that we “will not reverse if the district court’s ruling falls within the bounds
of permissible choice in the circumstances and is not arbitrary, capricious or whimsical,”
United States v. Willis, 826 F.3d 1265, 1270 (10th Cir. 2016) (internal quotation marks
omitted).
At this point, it might be more helpful to list what was not appealed than what
was. Plaintiffs do not appeal the dismissal of their claims against the public trustee or
dismissal of their claim to void the Rule 120 order sale. Plaintiffs do not argue that the
district court erred in granting summary judgment in favor of Ditech or on their FDCPA
claims, at least in their Opening Brief, and “the omission of an issue in an opening brief
generally forfeits appellate consideration of that issue,” Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007); see also Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir.
2011) (“The general rule in this circuit is that a party waives issues and arguments raised
for the first time in a reply brief.” (brackets omitted)). That leaves one legal issue:
whether Bank of New York Mellon holds a valid lien against the property, i.e., whether
the bank holds the promissory note.
In moving for summary judgment, Defendants put forward evidence tending to
show that Bank of New York Mellon was the holder of the promissory note. First, Bank
of America’s corporate representative testified that Bank of America had possession of
the promissory note as custodian for Bank of New York Mellon while it serviced the
loan. Second, Bank of America testified that it transferred the promissory note to Ditech
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when loan servicing transferred. Third, counsel for Ditech produced the original
promissory note in open court and attested, under oath, that Ditech held the note on
behalf of Bank of New York Mellon.
In response to Defendants’ motions for summary judgment, Plaintiffs failed to
establish a genuine dispute as to whether Bank of New York Mellon was the holder of the
note. Plaintiffs maintain that they “proffered evidence to prove . . . that neither [Bank of
New York Mellon] nor [Bank of America] are holders of the Note[] in the only way
possible—a demand to produce the original Note and a failure on the part of the
Defendants or their agents to do so.” (Appellants’ Opening Br. at 15.) Plaintiffs are
referring to discovery request number 1, which requested that Defendants “Produce the
original Promissory Note signed by [Plaintiffs].” (Appellants’ App.at 294 (emphasis in
original).) Ditech responded by stating the promissory note was in possession of Bank of
New York Mellon and had “been requested for your review and will be made available
for inspection at the offices of [Ditech’s counsel] at a mutually agreeable date and time if
it is received.” (Id.) Ditech’s counsel then produced the original when it was received
some months later.
Plaintiffs argue that the proffered original was inadmissible because it was
untimely and not properly authenticated. But Plaintiffs have not demonstrated the district
court abused its discretion by considering the note. See Jones, 349 F.3d at 1270; see also
Turner v. Reynolds Ford, Inc., 145 F.3d 1346 (table), 1998 WL 234540, at *7 (10th Cir.
1998) (unpublished) (“Whether to allow a party to supplement a summary judgment
response is ordinarily subject to the trial court’s discretion.”). At the hearing, the judge
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examined the note and found it authentic. What’s more, Federal Rule of Evidence 902(9)
provides for the self-authentication of “[c]ommercial paper, a signature on it, and related
documents, to the extent allowed by general commercial law.” This covers promissory
notes and the signatures on such notes. See 31 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 7143 (1st ed.).
At the hearing, Plaintiffs could only speculate that the proffered original was not,
in fact, the original. Plaintiffs’ counsel admitted that, “looking in that note,” he could not
“come to any conclusion” other than the judge’s, i.e., that “this appears to be the original
note and deed of trust.” (Appellant’s App. at 452–53.) The judge, in his discretion,
denied Plaintiffs’ request to conduct a forensic analysis of the promissory note,
explaining: “[Plaintiffs] signed this or didn’t sign this. They know what they signed. . . .
I have so found that it is the original note. I find that there is nothing about that note that
raises even a suspicion . . . . I understand counsel’s position, but it is simply chasing
speculation.” (Id. at 453, 455.)
With the admission of the original promissory note, Plaintiffs’ only evidence that
Bank of New York Mellon is not the holder of the note is Ditech’s tardiness in producing
the document during discovery. This is not enough to defeat Defendants’ summary-
judgment motions. As we have held, “in opposing a motion for summary judgment, the
non-moving party cannot rest on ignorance of facts, on speculation, or on suspicion.”
Bird, 832 F.3d at 1199 (internal quotation marks omitted). Speculation and suspicion are
all Plaintiffs have.
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Accordingly, we AFFIRM.
Entered for the Court
Monroe G. McKay
Circuit Judge
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