COLORADO COURT OF APPEALS
Court of Appeals No. 11CA2627
Saguache County District Court No. 10CV6
Honorable Martin A. Gonzales, Judge
Bruce C. McDonald,
OneWest Bank, FSB and Federal Home Loan Mortgage Corporation,
Opinion by JUDGE MILLER
Fox and Ney*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced October 4, 2012
In this quiet title action, defendants, OneWest Bank (OneWest)
and Federal Home Loan Mortgage Corporation (FHLMC), appeal the
district court’s order denying their motion to set aside a judgment
entered by default in favor of plaintiff, Bruce C. McDonald. We
conclude that the district court did not abuse its discretion in
denying defendants’ motion, and we affirm.
This matter (the underlying action) is one of four separate
proceedings in state and federal courts relating to efforts to
foreclose on the property where plaintiff resides in Saguache
County. Plaintiff filed the initial complaint in the underlying action
against OneWest on March 3, 2010, seeking to invalidate an order
authorizing a foreclosure sale of his property in a prior proceeding
under C.R.C.P. 120. The public trustee sale was nevertheless held
on March 4, 2010, and the property was sold to OneWest, who then
transferred it to FHLMC. Although plaintiff filed and recorded a
notice of lis pendens concerning the underlying action on March 8,
2010, he did not serve defendants with the amended complaint
On June 29, 2010, FHLMC filed a complaint for forcible entry
and detainer against plaintiff (FED action).
On July 22, 2010, plaintiff filed an action for damages under
the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§§ 19611968, common law fraud, and other statutes in the United
States District Court for the District of Colorado against OneWest
and other unknown defendants (federal action). The federal action
was dismissed for failure to state a claim in December 2010, and
the Tenth Circuit Court of Appeals affirmed that dismissal in June
of this year. McDonald v. OneWest Bank, 680 F.3d 1264 (10th Cir.
On September 10, 2010, plaintiff amended the complaint in
the underlying action, adding FHLMC as a defendant, alleging that
OneWest was not entitled to foreclose and did not convey good title
to FHLMC, and requesting that the court quiet title to the property
in him. Plaintiff served the amended complaint on FHLMC by
personal service on its designated representative in Virginia on
September 17, 2010 and on OneWest by personal service on its
designated representative in California on September 27, 2010.
Neither defendant had a registered agent in Colorado.
Meanwhile, the district court held a hearing in the FED action
on September 17, 2010 to determine whether it should be stayed
until the issue of ownership was resolved in the underlying action.
At that hearing, plaintiff’s counsel stated that the complaint in the
underlying action had been recently amended and had been sent
out for service. Plaintiff’s counsel further stated that he was
requesting that the FED action be stayed so that the underlying
action could proceed. The status and nature of the federal case was
Neither OneWest nor FHLMC timely responded to the
amended complaint in the underlying action, and plaintiff filed a
motion for entry of default on October 29, 2010 and a motion for
entry of default judgment on November 1, 2010. The district court
entered default and default judgment against both defendants and
quieted title in the property, as among the three parties, in plaintiff
on November 19, 2010. Plaintiff personally served defendants with
notice of the default in December 2010.
Defendants filed no papers addressed to the default judgment
until they filed a motion for relief pursuant to C.R.C.P. 60 on March
18, 2011. Following a hearing and supplemental briefing, the
district court denied the motion in a wellwritten
order. Defendants then filed a motion for reconsideration pursuant to C.R.C.P. 59(a),
which the district court summarily denied.
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