Mbaku et al v. Bank of America | Challenge to the constitutionality of Rule 120 of the Colorado Rules of Civil Procedure is certified to the Colorado Attorney General

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Mbaku et al v. Bank of America | Challenge to the constitutionality of Rule 120 of the Colorado Rules of Civil Procedure is certified to the Colorado Attorney General

Mbaku et al v. Bank of America | Challenge to the constitutionality of Rule 120 of the Colorado Rules of Civil Procedure is certified to the Colorado Attorney General

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer
Civil Action No. 12-cv-00190-PAB-KLM

JOHN M. MBAKU,
LUVIBIDILA JOLIE LUMUENEMO,
Plaintiffs,

v.

BANK OF AMERICA, NATIONAL ASSOCIATION,
as successor by merger to BAC Home Loans Servicing, LP
f/k/a Countrywide Home Loans Servicing LP,
Defendant.

__________________________

ORDER CERTIFYING MATTER TO THE COLORADO ATTORNEY GENERAL
__________________________

In the Court’s February 1, 2013 Order [Docket No. 26], the Court declined to
dismiss the claim advanced by plaintiffs John M. Mbaku and Luvibidila Jolie
Lumuenemo that Colorado Rule of Civil Procedure 120 violates the due process clause
of the Fourteenth Amendment.1 Docket No. 26 at 18-19; see also Docket No. 1 at 2-3,
¶¶ 4-6.

Section 2403(b) of Title 28 of the United States Code provides that:

In any action, suit, or proceeding in a court of the United States to which a
State or any agency, officer, or employee thereof is not a party, wherein the
constitutionality of any statute of that State affecting the public interest is
drawn in question, the court shall certify such fact to the attorney general of
the State, and shall permit the State to intervene for presentation of
evidence, . . . and for argument on the question of constitutionality.

The local rules of the District of Colorado explicitly incorporate this provision, requiring
that “[o]n receipt of a notice of unconstitutionality, the court shall comply with the
certification provisions of 28 U.S.C. § 2403.” D.C.Colo.LCivR 24.1C.

Rule 120 of the Colorado Rules of Civil Procedure sets forth a procedure by
which a party may initiate foreclosure proceedings. Colo. R. Civ. P. 120. Given that
Rule 120 involves adjudication of property rights, it affects “the public interest” and
plaintiffs’ challenge has “drawn in question” its constitutionality. See 28 U.S.C.
§ 2403(b). Accordingly, it is

ORDERED that plaintiffs’ challenge to the constitutionality of Rule 120 of the
Colorado Rules of Civil Procedure is certified to the Colorado Attorney General. It is
further

ORDERED that the Clerk of this Court shall forward a copy of this Order, the
complaint [Docket No. 1], and the February 1, 2013 Order [Docket No. 26], certified
under seal, to the Colorado Attorney General.

DATED May 9, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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