PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

In re: RUMSEY LAND COMPANY, 

LLC, 

 Debtor. 

------------------------------ 

RUMSEY LAND COMPANY, LLC, 

 Plaintiff - Appellant, 

v. 

RESOURCE LAND HOLDINGS, LLC; 

SORIN NATURAL RESOURCE 

PARTNERS, LLC; PUEBLO BANK AND 

TRUST COMPANY, LLC, 

 Defendants - Appellees. 

No. 18-1452 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:16-CV-02117-CMA-SKC)

_________________________________ 

Ronald L. Wilcox, Wilcox Law Firm, LLC, Denver, Colorado for Plaintiff - Appellant. 

David M. Rich, Minor & Brown, P.C., Denver, Colorado, and Sarah B. Wallace, Ballard 

Spahr LLP, Denver, Colorado, (Andrew J. Petrie, Ballard Spahr LLP, Denver, Colorado, 

with them on the brief) for Defendants - Appellees. 

_________________________________ 

Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 20, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

MATHESON, Circuit Judge. 

_________________________________ 

This appeal stems from a dispute involving land sold at a bankruptcy auction. 

Rumsey Land Company, LLC (“Rumsey”) owned a property subject to a first deed of 

trust held by Pueblo Bank & Trust Company, LLC (“PBT”). In 2010, Rumsey filed for 

bankruptcy. Resource Land Holdings, LLC (“RLH”)1

 offered to purchase the property, 

but the bankruptcy court did not approve the sale. Shortly thereafter, PBT purchased the 

property at a bankruptcy auction. PBT then transferred the land to RLH. 

In 2015, Rumsey discovered that during the bankruptcy proceedings, RLH had 

entered a loan purchase agreement to purchase PBT’s interest in the property. The 

agreement eventually led to litigation in state court between RLH and PBT, which 

culminated with a settlement agreement allowing RLH to purchase Rumsey’s property 

from PBT for $4.75 million. 

Rumsey believed the loan agreement, lawsuit, and settlement influenced the price 

at its bankruptcy auction. It initiated this adversarial proceeding in bankruptcy court 

against RLH and PBT (collectively “Defendants”), alleging (1) fraudulent concealment in 

violation of state law and (2) collusive bidding activities in violation of 11 U.S.C. 

§ 363(n). The case was transferred to federal district court, which granted summary 

 

1

 RLH is a registered agent of the third defendant in this case, Sorin Natural 

Resource Partners, LLC. For simplicity, the parties and the district court referred to 

Sorin and RLH collectively as “RLH.” We do the same. 
3 

judgment to Defendants on both claims. Exercising jurisdiction under 28 U.S.C § 1291 

and § 1294(1), we affirm. 

On the fraudulent concealment claim, we affirm summary judgment for RLH on 

the alternative ground that RLH was not a party to a business transaction with Rumsey 

and therefore had no duty to disclose information. We affirm summary judgment for 

PBT because Rumsey forfeited its arguments about PBT’s duty to disclose and has not 

argued plain error on appeal. 

On the § 363(n) collusive bidding claim, we distinguish between Rumsey’s 

alternative requests (1) to avoid the bankruptcy sale and (2) for damages. As to the 

former, we affirm summary judgment for Defendants on the alternative ground that the 

claim was time-barred by the one-year limitations period in Federal Rule of Civil 

Procedure 60(c)(1). As to damages, we affirm summary judgment because Rumsey 

failed to demonstrate a genuine dispute of material fact as to whether Defendants 

intended to control the sale price at the bankruptcy auction. 

I. BACKGROUND 

A. Factual Background 

Rumsey, a Colorado-based limited liability company, owned real property in 

Evans, Elizabeth, and Nederland, Colorado. In January 2010, it filed for bankruptcy in 

the United States Bankruptcy Court for the District of Colorado. At the time it filed for 

bankruptcy, Rumsey’s holdings included a property known as the Rumsey Farm (“the 

property” or “the land”), which was encumbered by a first deed of trust held by PBT. 
4 

RLH’s Initial Attempts to Acquire the Property 

In March 2010, RLH attempted to purchase the property from Rumsey. It 

discussed with Rumsey the possibility of buying the PBT loan but ultimately offered to 

purchase the property for $7,484,397.75. 

In April 2010, Rumsey filed a motion to approve the sale with the bankruptcy 

court. Because three creditors objected, the court denied the motion and instructed 

Rumsey to market the property more broadly. 

RLH and PBT’s Loan Purchase Agreement and Lawsuit 

Because RLH could not acquire the property from Rumsey directly, it decided to 

pursue the possibility of purchasing the debt Rumsey owed to PBT. On December 1, 

2010, RLH signed a written loan purchase agreement (“the loan purchase agreement” or 

“the agreement”) to purchase the debt from PBT for $4.93 million. The agreement 

contained a confidentiality provision prohibiting disclosure of the agreement or its terms. 

The parties did not disclose the agreement to Rumsey or to the bankruptcy court. 

On February 1, 2011, PBT refused to close on the loan purchase agreement. On 

March 15, RLH sued PBT to enforce the agreement. As explained below, this lawsuit 

eventually settled. The parties did not inform Rumsey about the lawsuit. 

Rumsey’s Bankruptcy Auction 

In early March 2011, the bankruptcy court approved the sale and notice 

procedures to auction the property. On March 31, 2011, RLH submitted a $4 million 
5 

stalking horse bid.2

 The same day, PBT submitted a credit stalking horse bid, which did 

not offer new money but agreed to reduce Rumsey’s debt by $5 million. Rumsey 

selected PBT’s bid as the stalking horse. 

Shortly after Rumsey selected PBT as the stalking horse bidder, RLH’s counsel 

e-mailed PBT regarding the pending lawsuit with RLH. He noted that “[t]he indications 

that RLH has received from [Rumsey’s] marketing agent are that RLH was the second 

place contender to be the stalking horse and no other offers were really in the ball park.” 

App. at 949. He then added, 

[PBT] and [RLH] may turn out to be the only two horses in 

this race. If that should come to pass, there may be some 

avenues for a consensual resolution of the disputes between 

our clients . . . . Naturally, collusive bidding is inappropriate 

and I’m not suggesting anything like that, but the bankruptcy 

court might be a good forum for a global resolution. 

Id. PBT’s counsel responded that it did “not want to create the appearance or impression 

of any sort of impropriety or collusive bidding to which . . . some other interested party 

could object pursuant to Section 363(n) of the Bankruptcy Code.” Id. at 1019. It 

therefore suggested that “until the auction and sale process is concluded, . . . it would be 

 

2

 “A ‘stalking horse’ contract is a first, favorable bid strategically solicited by the 

bankrupt company to prevent low-ball offers.” In re WestPoint Stevens, Inc., 600 F.3d 

231, 239 n.3 (2d Cir. 2010). “A stalking horse bidder . . . makes an initial bid to purchase 

the assets of a debtor. . . . Stalking horse bidders often contract to receive a ‘break-up-fee’ 

compensating it for its bidding activities should a higher bid ultimately emerge and win 

an eventual asset auction.” Brown Media Corp. v. K & L Gates, LLP, 586 B.R. 508, 518 

(E.D.N.Y. 2018). 
6 

unwise to engage in any dispute resolution or settlement discussions, of any nature, 

which may involve the property to be sold at the auction or the underlying loan 

documents held by [PBT].” Id. 

On May 11, 2011, Rumsey auctioned the property. RLH did not participate in the 

auction. Confluence Resource Holdings, LLC (“Confluence”) placed the winning bid. 

On May 25, 2011, Rumsey submitted a Proposed Sale Order, which contained the 

following representation: 

The Debtor and each Successful Bidder and the Back-Up 

Bidder have fully disclosed all consideration to be given by 

each Successful Bidder and the Back-Up Bidder and all other 

agreements or arrangements entered into by each Successful 

Bidder and the Back-Up Bidder in connection with the sale of 

the Assets. 

Id. at 963. RLH and PBT both received copies of the Proposed Sale Order, but neither 

disclosed their loan purchase agreement or lawsuit. 

The bankruptcy court entered the Proposed Order on June 17, authorizing 

Confluence as the successful bidder and PBT as the back-up bidder. In August, 

Confluence announced it would not proceed with closing. As a result, Rumsey accepted 

PBT’s back-up bid. 

Defendants’ Settlement Agreement 

On September 13, 2011, RLH and PBT agreed to settle their lawsuit. As part of 

their settlement, they agreed that after PBT acquired the property through the bankruptcy 

sale, it would sell the property to RLH for $4.75 million. On September 20, the parties 

entered a contract formalizing this agreement. 
7 

Sale to PBT and Later Transfer to RLH 

On October 4, 2011, PBT moved the bankruptcy court to approve transfer of the 

property from Rumsey to PBT. In the motion, PBT represented that the property was 

“free and clear of all liens, encumbrances, claims, and interests.” Id. at 1021. PBT 

provided a non-exhaustive list of liens and encumbrances but did not disclose the loan 

purchase agreement or settlement with RLH. The bankruptcy court’s proposed 

Supplemental Sale Order also did not mention the loan purchase agreement, and it 

specified that “[t]he acquisition of the Assets is undertaken by [PBT] without collusion 

and in good faith.” Id. at 1034. Both RLH and PBT received copies of the Order, which 

the bankruptcy court entered on October 6, 2011, thereby transferring the property to 

PBT. On October 13, PBT conveyed the property to RLH. 

Discovery of Defendants’ Loan Purchase Agreement and Settlement 

PBT and RLH never disclosed their loan purchase agreement, lawsuit, or 

settlement to Rumsey, and Rumsey did not learn of the agreement until 2015. Rumsey 

stated that “the [agreement] and subsequent efforts to enforce it had the effect of limiting 

RLH’s bid to the amount agreed to by RLH and PBT,” and that it “would have objected 

to credit bidding as a part of the sale process if it had known of the [agreement].” Id. at 

964. 

* * * * 

The following table summarizes the events described above. 

 
8 

Events Relating to Sale of The Property Events Relating to Loan Purchase Agreement 

01/15/2010 Rumsey files for bankruptcy. 

03/08/2010 RLH offers to purchase the property 

for approximately $7.5 million. 

09/03/2010 Bankruptcy court denies Rumsey’s 

motion to approve sale to RLH. 

12/01/2010 RLH signs agreement to purchase 

debt from PBT for $4.93 million. 

02/01/2011 PBT refuses to close on loan 

purchase agreement. 

03/02/2011 

Bankruptcy court approves sale and 

notice procedures for bankruptcy 

auction of the property. 

03/15/2011 RLH sues PBT to enforce loan 

purchase agreement. 

03/31/2011 

RLH and PBT submit stalking 

horse bids. Rumsey selects PBT as 

the stalking horse. 

05/11/2011 Rumsey auctions the property. 

Confluence places winning bid. 

05/25/2011 

Rumsey submits Proposed Sale 

Order specifying parties have 

disclosed agreements related to the 

property. 

06/17/2011 

Bankruptcy court enters Proposed 

Sale Order designating Confluence 

as winning bidder and PBT as 

back-up bidder. 

08/15/2011 Confluence backs out of sale, 

leaving PBT as winning bidder. 

09/13/2011 

RLH and PBT agree to settle 

lawsuit; parties agree that PBT will 

transfer the property to RLH for 

$4.75 million. 

09/20/2011 

RLH and PBT enter contract 

formalizing settlement and sale 

from PBT to RLH. 

10/04/2011 

PBT files motion to transfer the 

property from Rumsey to PBT. It 

represents that property is free of 

liens and encumbrances and that 

acquisition of assets was undertaken 

without collusion. 

10/06/2011 

Bankruptcy court enters 

Supplemental Sale Order 

transferring the property to PBT. 

10/13/2011 PBT transfers the property to RLH. 
9 

B. Procedural Background 

Adversarial Proceeding Against RLH and PBT 

In 2015, Rumsey initiated an adversarial proceeding against Defendants in 

bankruptcy court. Its complaint alleged Defendants “entered into a secret collusive 

agreement which had the effect of corrupting the bidding mechanism approved by the 

Court.” Id. at 442. Specifically, Rumsey noted RLH initially offered to purchase 

Rumsey Farm from it for approximately $7.5 million and later agreed to purchase PBT’s 

loan for $4.9 million.3

 Rumsey alleged that the loan purchase agreement between RLH 

and PBT was “[a] ‘secret deal’ [that] allowed [RLH] to acquire the Rumsey Farm for a 

savings of $2.5 million based on the price that they originally bid” and “deprived 

[Rumsey’s] creditors of . . . $2.5 million.” Id. at 443. 

Bankruptcy Court Proceedings 

The bankruptcy court re-opened Rumsey’s bankruptcy case, and Rumsey filed an 

amended complaint asserting six causes of action: (1) fraud on the court (against 

Defendants), (2) violation of 11 U.S.C. § 363(n)’s prohibition of collusive bidding 

activities (against Defendants), (3) breach of contract (against PBT), (4) negligence 

(against Defendants), (5) fraudulent concealment (against Defendants), and (6) breach of 

the duty of good faith and fair dealing (against PBT). On the § 363(n) claim, Rumsey 

 

3

 As noted above, RLH acquired the property from PBT for $4.75 million after the 

auction. 
10 

requested two alternative forms of relief: “that the Bankruptcy Court avoid the sale” or 

“[i]n the alternative, . . . that PBT and RLH be required to pay damages in the amount by 

which the value of the property sold exceeds the price at which such sale was 

consummated . . . .” Id. at 519. 

RLH and PBT filed separate motions to dismiss for failure to state a claim. The 

bankruptcy court denied the motions, finding Rumsey had “alleged facts supporting a 

conclusion” that PBT and RLH “reached a secret understanding or agreement regarding 

the sale of [Rumsey’s] Assets, which agreement improperly lowered the ultimate sale 

price.” Id. at 689. The court also found Rumsey “alleged sufficient facts to support a 

conclusion that the agreement between RLH and [PBT] controlled the bidding price for 

the sale of” the property. Id. at 691. 

District Court Proceedings 

RLH filed a Motion to Withdraw Reference4

 to the bankruptcy court, and the 

proceedings were transferred to the United States District Court for the District of 

Colorado. RLH then moved for summary judgment on claims 1, 2, 4, and 5, arguing that 

 

4

 A Motion to Withdraw Reference allows a party to a bankruptcy proceeding to 

move the proceeding from bankruptcy court to federal district court. The Bankruptcy 

Law Manual explains: “Congress provided in § 157(a) of Title 28 that each district court 

could provide that any or all cases and any or all proceedings arising in, under, or related 

to the case be ‘referred’ to the bankruptcy judges in the district. . . . Section 157(d) then 

provides that the district court may withdraw the reference of any case or proceeding, in 

whole or in part, that has been previously referred. . . . The district court may, on a 

discretionary basis, withdraw the reference . . . upon ‘timely’ motion of a party.” 

1 Bankruptcy Law Manual § 2:11 (5th ed. 2019). 
11 

each was time-barred and that Rumsey “[could not] meet [its] burden to produce 

evidence supporting any of [its] claims.” Id. at 734. PBT moved to join RLH’s motion 

for summary judgment, which the court granted. PBT also moved for dismissal of claims 

3 and 6 for breach of contract and breach of duty of good faith and fair dealing, arguing 

those claims were “predicated on Rumsey . . . being successful in proving [the other four 

claims].” Id. at 952. 

The district court first addressed RLH’s statute of limitations argument. The court 

listed the relevant limitations periods for each of Rumsey’s claims, including the § 363(n) 

claim. It stated that the § 363(n) claim was “governed by Federal Rule of Civil 

Procedure 60(b)’s one-year limitations period.”5

 Id. at 1481. It then suggested for all 

claims, including the § 363(n) claim, “there [was] a genuine dispute of material fact as to 

when Rumsey’s causes of action accrued.” Id. at 1483. It thus denied RLH’s motion “to 

the extent that [it sought] to dismiss Rumsey’s claims on the grounds of statutes of 

limitations.” Id.6

 

5

 This one-year limitations period is described in Federal Rule of Civil Procedure 

60(c)(1). As we explain below, the limitations period governs motions brought under 

Rule 60(b). Because of this, courts and litigants sometimes describe it as “Rule 60(b)’s 

one-year limitations period.” Here, we refer to the limitations period using its precise 

location in Rule 60(c)(1). 

6

 As we explain later, this analysis was flawed in two ways. First, the district 

court applied the Rule 60(c)(1) limitations period to Rumsey’s claim for damages. This 

was incorrect because Rule 60(c)(1) does not apply when a § 363(n) plaintiff seeks only 

damages. Second, the district court conducted an accrual analysis for the § 363(n) claim. 

This was error because Rule 60(c)(1)’s one-year limitations period is absolute and runs 

from the date of the entry of judgment. 
12 

The court then granted summary judgment on the merits as to all six of Rumsey’s 

claims. The rulings on only two—the fraudulent concealment claim and the § 363(n) 

claim—are challenged on appeal. 

First, on the fraudulent concealment claim, the district court stated that “[t]here is 

no general duty for all participants in market transactions to disclose material, nonpublic 

information,” id. at 1486, and that a duty to disclose arises only if the parties have “a 

fiduciary or other similar relation of trust and confidence,” id. at 1485. It granted 

summary judgment for RLH because it found “Rumsey [had] not offered evidence of a 

relationship of trust and confidence between it and . . . RLH.” Id. at 1486. The court also 

granted summary judgment for PBT because “Rumsey focuse[d] exclusively on its 

relationship with . . . RLH” and did “not proffer any argument about why . . . PBT in 

particular owed it a duty to disclose.” Id. at 1488. 

Second, on the § 363(n) claim, the court granted summary judgment for 

Defendants because “Rumsey [did] not set forth specific facts from which a rational trier 

of fact could infer that . . . RLH and PBT entered into the Loan Purchase Agreement with 

intent that the Agreement control the price.” Id. at 1492. 

II. DISCUSSION 

This appeal presents two issues: (1) whether the district court erred in granting 

summary judgment for Defendants on Rumsey’s fraudulent concealment claim, and (2) 

whether the district court erred in granting summary judgment for Defendants on 

Rumsey’s § 363(n) claim. As to both issues, we present the standard of review for 
13 

summary judgment and the Tenth Circuit’s law on forfeiture. We then turn to the 

fraudulent concealment and § 363(n) collusive bidding claims. 

A. Background Law 

Standard of Review 

“We review the grant or denial of summary judgment de novo, applying the same 

standard of review as the district court.” S.E.C. v. Cochran, 214 F.3d 1261, 1264 (10th 

Cir. 2000). “The court shall grant summary judgment if the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248-51 (1986). “There is a genuine issue of material fact if a rational jury could find in 

favor of the nonmoving party on the evidence presented.” Fassbender v. Correct Care 

Sols., LLC, 890 F.3d 875, 882 (10th Cir. 2018) (quotations omitted). 

“The movant bears the initial burden of making a prima facie demonstration of the 

absence of a genuine issue of material fact . . . .” Adler v. Wal-Mart Stores, Inc., 144 

F.3d 664, 670 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986)). The movant may carry this burden “by ‘showing’—that is, pointing out to the 

district court—that there is an absence of evidence to support the nonmoving party’s 

case.” Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party to “set 

forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 

256. 
14 

When applying this standard, courts “view the evidence and draw all reasonable 

inferences therefrom in the light most favorable to the party opposing summary 

judgment.” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th 

Cir. 2000). 

Forfeiture 

“It is the general rule . . . that a federal appellate court does not consider an issue 

not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). Accordingly, “if 

the theory [a party urges on appeal] simply wasn’t raised before the district court, we 

usually hold it forfeited.” Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1203 (10th 

Cir. 2014) (quotations omitted). 

Our case law explains “what kind of specificity is required in the trial court in 

order to preserve an issue for appeal.” Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 

(10th Cir. 1993). Although “[p]leadings and motions in the trial court will be given a 

liberal reading,” Tele-Commc’ns, Inc. v. Comm’r., 104 F.3d 1229, 1233 (10th Cir. 1997), 

we do not address “bald-faced new issue[s],” “theor[ies] that [were] discussed in a vague 

and ambiguous way,” or “issues that were raised and then abandoned pre-trial,” Lyons, 

994 F.2d at 722. 

We also do not address “arguments raised in the District Court in a perfunctory 

and underdeveloped manner.” Tele-Commc’ns, 104 F.3d at 1233 (quoting Kensington 

Rock Island Ltd. P’ship v. Am. Eagle Historic Partners, 921 F.2d 122, 124-25 n.1 (7th 

Cir. 1990) (alterations omitted)). “[V]ague, arguable references to a point in the district 
15 

court proceedings do not . . . preserve the issue on appeal.” Lyons, 994 F.2d at 721 

(quotations omitted). “Fleeting references” to an argument are also insufficient. 

Tele-Commc’ns, 104 F.3d at 1233-34 (issue forfeited where brief to the tax court 

“contain[ed] only a single paragraph addressing the issue,” but “[o]n appeal, [that] 

fleeting contention bec[ame] ten pages of argument, replete with examples and 

citations”). 

To urge reversal of an issue that was forfeited in district court, an appellant must 

argue plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 

2011). If an appellant does not explain how its forfeited arguments survive the plain 

error standard, it effectively waives those arguments on appeal. See McKissick v. Yuen, 

618 F.3d 1177, 1189 (10th Cir. 2010) (noting that “even if [a party’s] arguments were 

merely forfeited before the district court, [the] failure to explain . . . how they survive the 

plain error standard waives the arguments in this court”); see also United States v. Qualls, 

741 F. App’x 592, 596 (10th Cir. 2018) (unpublished) (holding that appellant waived a 

forfeited argument “because his briefing made no mention of the plain error standard of 

review”); United States v. Herrera-Zamora, 647 F. App’x 855, 858-59 (10th Cir. 2016) 

(unpublished) (“[Appellant] makes his two remaining arguments for the first time on 

appeal. Because he does so without arguing for plain-error review, these arguments are 
16 

effectively waived on appeal.”).7

 “[F]ailure to argue for plain error and its application on 

appeal[] surely marks the end of the road for an argument . . . not first presented to the 

district court.” Richison, 634 F.3d at 1131. 

B. Fraudulent Concealment Claim 

We affirm the grant of summary judgment on Rumsey’s fraudulent concealment 

claim. As to RLH, the district court granted summary judgment because it found Rumsey 

and RLH were not in a relationship of trust and confidence as described in the 

Restatement (Second) of Torts § 551(2)(a). We affirm on the alternative ground that 

RLH was not a party to a business transaction with Rumsey and therefore had no duty to 

disclose under § 551(2). As to PBT, the district court granted summary judgment 

because it found that Rumsey “[did] not proffer any argument about why . . . PBT in 

particular owed it a duty to disclose.” App. at 1488. We affirm because Rumsey has 

forfeited its arguments about PBT and has not argued plain error on appeal. 

Legal Background 

Under Colorado law,8

 a plaintiff claiming fraudulent concealment must prove five 

elements: 

 

7

 Although not precedential, we find the reasoning of the unpublished opinions 

cited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not 

precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1. 

8

 Rumsey’s fraudulent concealment claim is a state law tort claim. Accordingly, 

we apply Colorado law. See Alpine Bank v. Hubbell, 555 F.3d 1097, 1109-12 (10th Cir. 

2009) (applying Colorado law to a state law fraudulent concealment claim where 

jurisdiction was based on bankruptcy law); In re ms55, Inc., 420 B.R. 806, 820 n.6 
17 

(1) the concealment of a material existing fact that in equity 

and good conscience the defendant should have disclosed; (2) 

knowledge on the defendant’s part that such a fact was being 

concealed; (3) ignorance of that fact on the plaintiff’s part; (4) 

the intention that the concealment be acted upon; and (5) 

action on the concealment resulting in damages. 

Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP, 420 P.3d 223, 234 (Colo. 

2018). 

To satisfy the first element, the “plaintiff must show that the defendant had a duty 

to disclose material information.” Mallon Oil Co. v. Bowen/Edwards Assocs., Inc., 965 

P.2d 105, 111 (Colo. 1998). Colorado courts look to the Restatement (Second) of Torts 

§ 551 to determine whether a party has a duty to disclose. See Level 3 Commc’ns, LLC v. 

Liebert Corp., 535 F.3d 1146, 1163-64 (10th Cir. 2008); Mallon Oil, 965 P.2d at 111. 

That section provides: 

One who fails to disclose to another a fact that he knows may 

justifiably induce the other to act or refrain from acting in a 

business transaction is subject to the same liability to the 

other as though he had represented the nonexistence of the 

matter that he has failed to disclose, if, but only if, he is under 

a duty to the other to exercise reasonable care to disclose the 

matter in question. 

Restatement (Second) of Torts § 551(1) (Am. Law. Inst. 1977). It then describes five 

situations when a duty to disclose might arise: 

(2) One party to a business transaction is under a duty to 

exercise reasonable care to disclose to the other before the 

transaction is consummated, 

 

(Bankr. D. Colo. 2009) (discussing Tenth Circuit choice of law analysis for state law 

claims where jurisdiction is based on bankruptcy law). 
18 

(a) matters known to him that the other is entitled to 

know because of a fiduciary or other similar relation of 

trust and confidence between them; and 

(b) matters known to him that he knows to be 

necessary to prevent his partial or ambiguous 

statement of the facts from being misleading; and 

(c) subsequently acquired information that he knows 

will make untrue or misleading a previous 

representation that when made was true or believed to 

be so; and 

(d) the falsity of a representation not made with the 

expectation that it would be acted upon, if he 

subsequently learns that the other is about to act in 

reliance upon it in a transaction with him; and 

(e) facts basic to the transaction, if he knows that the 

other is about to enter into it under a mistake as to 

them, and that the other, because of the relationship 

between them, the customs of the trade or other 

objective circumstances, would reasonably expect a 

disclosure of those facts. 

Restatement (Second) of Torts § 551(2)(a)-(e). Each subsection of § 551(2) gives rise to 

an independent duty to disclose. See, e.g., Alpine Bank v. Hubbell, 555 F.3d 1097, 

1109-12 (10th Cir. 2009) (recognizing § 551(2)(a) as basis for a duty to disclose); Level 3 

Commc’ns, 535 F.3d at 1163-64 (recognizing § 551(2)(b) as basis for a duty to disclose); 

Mallon Oil, 965 P.2d at 111 (recognizing § 551(2)(e) as basis for a duty to disclose). 

The disclosure duties described in § 551(2)(a)-(e) apply only to “part[ies] to a 

business transaction.” Restatement (Second) of Torts § 551(2). Our case law is in 

accord. In cases where we have considered whether § 551(2) triggered a duty to disclose, 
19 

the parties have always been engaged in business transactions. See, e.g., Level 3 

Commc’ns, 535 F.3d at 1149, 1163-64 (considering whether there was a duty to disclose 

between two parties who directly contracted for the sale and purchase of batteries)9

; 

Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1382 (Colo. App. 1990) (considering 

whether there was a duty to disclose between employer and employee). And in at least 

one unpublished case, a Colorado district court stated it was “aware of no[] [cases] that 

[have] found a duty to disclose the terms of a contract to non-parties who may be affected 

by the agreement.” Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv. II, LLC, 

No. 14-CV-00134, 2014 WL 4400764, at *13 (D. Colo. Sept. 5, 2014) (unpublished). 

Analysis 

We analyze Rumsey’s fraudulent concealment claim as to each defendant, RLH 

and PBT. We begin with the claim against RLH. We first consider whether Rumsey 

forfeited its arguments against RLH by failing to present them to the district court. We 

conclude Rumsey did not forfeit its § 551(2)(b) and (e) arguments about RLH because it 

raised those arguments in its opposition to RLH’s motion for summary judgment. We 

next consider whether the district court properly granted summary judgment for RLH on 

 

9

 Although contractual partners qualify as parties to a business transaction, a 

contractual relationship is not required under § 551(2)(b). See, e.g., Church Mut. Ins. Co. 

v. Coutu, No. 17-CV-00209, 2018 WL 1517022, at *4 (D. Colo. Mar. 28, 2018) 

(“Although [Black’s Law Dictionary] gives as an example [of a ‘party’] ‘a party to the 

contract,’ the Court does not consider that to be the universe of parties who can take part 

in a transaction [under § 551(2)(b)].”). 
20 

the fraudulent concealment claim. We affirm on the alternative ground that RLH was not 

party to a business transaction and therefore had no duty to disclose under § 551(2). 

As to Rumsey’s fraudulent concealment claim against PBT, we conclude that 

Rumsey did not advance any specific arguments about PBT’s duty to disclose. Rumsey 

thus forfeited its duty-to-disclose arguments about PBT in district court. Rumsey also 

has not argued plain error on appeal. Its failure to do so effectively waives the fraudulent 

concealment claim as to PBT in this court. We therefore affirm the district court without 

addressing the merits of Rumsey’s fraudulent concealment claim against PBT. 

a. Fraudulent concealment claim against RLH 

Forfeiture analysis 

Defendants argue Rumsey forfeited its arguments about RLH’s duties under 

Restatement § 551(2)(b) and (e). See Aplee. Br. at 23 (“Rumsey . . . cannot make new 

arguments on appeal regarding RLH.”). We disagree. 

In its opposition to RLH’s motion for summary judgment, Rumsey explicitly 

argued RLH had a duty to disclose the loan purchase agreement. Rumsey quoted 

§ 551(2)(b) and (e) in full. It also provided facts to support a duty of disclosure under 

§ 551(2)(b) and (e). 

For example, Rumsey: 

 Identified specific, “clearly ambiguous” statements that RLH made to 

Rumsey’s broker. App. at 968. 

 Explained how these statements could be interpreted in multiple ways and 

argued that the statements were “misleading in light of the fact that RLH 

and PBT had [already] entered into the [loan purchase agreement].” Id. 
21 

 Argued RLH had “an affirmative duty” to correct misleading 

representations made in the proposed sale orders submitted on May 25, 

2011 and October 4, 2011. Id. at 970. 

In addition, Rumsey argued RLH should have been aware that Rumsey “would 

reasonably expect disclosure of an agreement by RLH to purchase PBT’s loan” because 

knowledge of the purchase agreement “was necessary to enable [Rumsey’s broker], in 

conjunction with the debtor and objecting creditors, to determine how to proceed with an 

auction.” Id. Rumsey thus alleged disclosure was required “in light of the relationship 

between [the parties], the customs of the trade[,] and other objective circumstances.” Id. 

 Rumsey’s opposition to Defendant’s motion for summary judgment presented 

more than “vague, arguable references” to § 551(2)(b) and (e). Lyons, 994 F.2d at 721. 

Instead, it “actually articulated” § 551(2)(b) and (e) arguments, Tele-Commc’ns, 104 F.3d 

at 1233, and “[gave] the basis for [those] argument[s]” to the district court, United States 

v. Immordino, 534 F.2d 1378, 1381 (10th Cir. 1976). Accordingly, Rumsey did not 

forfeit its § 551(2)(b) and (e) arguments about RLH. 

b. Summary judgment for RLH 

The district court granted summary judgment for RLH because it found no 

relationship of trust and confidence giving rise to a duty to disclose under § 551(2)(a). 

As discussed above, however, § 551(2)’s disclosure duties apply only to parties that have 

entered into business transactions. Here, RLH was not a party to a business transaction 

with Rumsey. Although RLH made an initial offer to purchase Rumsey’s land and later 

placed an unsuccessful stalking horse bid on the property, RLH did not contract to buy 
22 

anything from Rumsey. See, e.g., Level 3 Commc’ns, 535 F.3d at 1149, 1163-64 

(recognizing duty to disclose between two parties who directly contracted for the sale and 

purchase of batteries). It also never contracted to perform services for Rumsey, and it 

was not part of an employment relationship with Rumsey. See, e.g., Wood v. Houghton 

Mifflin Harcourt Publ’g Co., 589 F. Supp. 2d 1230 (D. Colo. 2008) (recognizing duty to 

disclose arising from contract between photographer and publisher); Berger v. Sec. Pac. 

Info. Sys., Inc., 795 P.2d 1380, 1382 (Colo. App. 1990) (recognizing duty to disclose 

between employer and employee). Rumsey identifies no other interaction with RLH that 

would constitute a business transaction. 

We conclude RLH was not party to a business transaction with Rumsey. RLH 

was thus not subject to the disclosure duties in § 551(2). We affirm the district court’s 

summary judgment for RLH on this alternative ground. 

c. Fraudulent concealment claim against PBT 

Defendants argue Rumsey forfeited all arguments about PBT because “[i]n 

responding to the motions for summary judgment, Rumsey . . . focused exclusively on 

RLH’s duty . . . and it was only in its Opening Brief to this Court that Rumsey . . . for the 

first time assert[ed] that [PBT] also had a duty to disclose.” Aplee. Br. at 29. We agree. 

Although Rumsey preserved its arguments about RLH’s duty to disclose under 

§ 551(2)(b) and (e), it forfeited any arguments about PBT’s disclosure duties. In its 

opposition to RLH’s motion for summary judgment, Rumsey did not make any specific 

allegations about PBT’s duty to disclose. Instead, it focused exclusively on RLH and 
23 

supported its arguments using facts specific to RLH. For example, Rumsey argued RLH 

had a duty to correct misleading statements it made to Rumsey’s broker. But Rumsey did 

not identify any situations where PBT similarly made false or misleading statements that 

might have triggered a disclosure duty. 

Because PBT joined RLH’s motion for summary judgment, Rumsey could have 

advanced arguments in district court about both Defendants in its opposition brief. It did 

not. It made no arguments about PBT’s duty to disclose. Any reference to PBT’s duty 

was done only in “a vague and ambiguous way,” Lyons, 994 F.2d at 722, or “in a 

perfunctory and underdeveloped manner,” Tele-Comm’cns, 104 F.3d at 1233. Such 

references are not sufficient to preserve an issue for appellate review. Rumsey thus 

forfeited its arguments about PBT. Rumsey’s failure to explain now how these forfeited 

arguments “survive the plain error standard waives the arguments in this court.” 

McKissick, 618 F.3d at 1189. 

Because Rumsey forfeited its arguments about PBT and has not argued plain error 

on appeal, we affirm the district court without addressing the merits of Rumsey’s 

fraudulent concealment claim against PBT. See United States v. Branch, 658 F. App’x 

375, 376 (10th Cir. 2016) (unpublished) (“[B]ecause [appellant] . . . fails to argue for 

plain error review[,] . . . we decline to review his claims and affirm the district court.”). 

C. Section 363(n) Collusive Bidding Claim 

We also affirm the grant of summary judgment on Rumsey’s § 363(n) claim. We 

first consider whether Rumsey’s § 363(n) claim was time-barred under Federal Rule of 
24 

Civil Procedure 60(c)(1). In its complaint, Rumsey requested two alternative forms of 

relief: (1) avoidance of the bankruptcy sale, or (2) damages. We conclude its § 363(n) 

claim was time-barred insofar as Rumsey sought to vacate the bankruptcy sale but was 

not time-barred insofar as Rumsey sought damages. We then consider whether the 

district court properly granted summary judgment for Defendants on the § 363(n) 

damages claim. We affirm the district court because Rumsey did not set forth specific 

facts to show that Defendants intended to control the sale price at the bankruptcy 

auction.10 

Legal Background 

a. Section 363(n) 

Title 11 U.S.C. § 363(n) provides that a “trustee may avoid a [bankruptcy] sale . . . 

if the sale price was controlled by an agreement among potential bidders at such sale.”11 

 

10 In district court, Rumsey presented its argument in opposition to summary 

judgment on its § 363(n) claim in a single, short paragraph. See App. at 974. Although 

its argument was sparse, we give Rumsey’s “[p]leadings and motions in the trial court . . . 

a liberal reading,” Tele-Commc’ns, Inc. 104 F.3d at 1233, and conclude that Rumsey 

sufficiently preserved its § 363(n) claim for appellate review. Defendants do not contend 

otherwise on appeal. 

11 On its face, § 363(n) applies only to bankruptcy trustees. But 11 U.S.C. 

§ 1107(a) clarifies that, with a few exceptions, “a debtor in possession shall have all the 

rights . . . and powers, and shall perform all the functions and duties . . . of a trustee.” 

Section 1107(a) does not include § 363(n) in its list of exceptions. Thus, a debtor in 

possession may act as a § 363(n) plaintiff and has the same rights, powers, and duties as a 

trustee for § 363(n) proceedings. See, e.g., In re Sunnyside Timber, LLC, 413 B.R. 352, 

358-59 (Bankr. W.D. La. 2009) (entertaining § 363(n) action brought by Chapter 11 

debtors, even though separate trustees had been appointed); In re N.Y. Trap Rock Corp., 

42 F.3d 747 (2d Cir. 1994) (entertaining § 363(n) action brought by Chapter 11 debtors); 
25 

The section also allows a trustee to “recover from a party to [a bankruptcy sale] any 

amount by which the value of the property sold exceeds the price at which such sale was 

consummated.” Id. Courts have divided this claim into “three essential elements”: (1) 

an agreement, (2) between potential bidders, (3) that controls the price at bidding. In re 

Sunnyside Timber, LLC, 413 B.R. 352, 363 (Bankr. W.D. La. 2009); see also In re 

Sanner, 218 B.R. 941, 944 (Bankr. D. Ariz. 1998). Only the third element is at issue 

here. 

“Congress explained that § 363(n) is ‘directed at collusive bidding on property,’” 

which “indicates that Congress intended in Section 363(n) to prohibit only agreements 

that are intended to control a sale price, and not all agreements having the unintended 

consequence of influencing a sale price.” In re N.Y. Trap Rock Corp., 42 F.3d 747, 752 

(2nd Cir. 1994). “The influence on the sale price must be an intended objective of the 

agreement, and not merely an unintended consequence, for the agreement among 

potential bidders to come within the prohibition of § 363(n).” Id.; see also In re 

Sunnyside Timber, 413 B.R. at 363-64 (“Section 363(n) only forecloses those agreements 

whose purpose is to control the sale price resulting from a section 363 sale. . . . The 

determining factor is the intent or purpose of the agreement.”); Ramsay v. Vogel, 970 

F.2d 471, 474 (8th Cir. 1992). 

 

see also 2 William L. Norton III, Bankruptcy Law and Practice § 44:36 (3d ed. July 2019 

Update) (“Code § 363(n) provides a mechanism by which trustees or debtors-inpossession can invalidate sales of assets tainted by collusion.”).
26 

b. Limitations period for 363(n) claims 

As discussed above, § 363(n) provides two remedies for collusive bidding: (1) 

avoidance of the bankruptcy sale, or (2) damages. These remedies have different statutes 

of limitations. 

 In general, courts construe § 363(n) avoidance claims as motions under Federal 

Rule of Civil Procedure 60(b)(3), which permits courts to “relieve a party . . . from a final 

judgment, order, or proceeding” for “fraud . . . , misrepresentation, or misconduct by an 

opposing party.” Fed. R. Civ. P. 60(b)(3); see 2 Bankruptcy Desk Guide § 15:62 (2019) 

(“An action to avoid a sale order under § 363 is essentially a request to relieve a party 

from a final order under Rule 60(b)(3) . . . .”); see also In re Sunnyside Timber, 413 B.R. 

at 360-61 (construing party’s § 363(n) claim as a Rule 60(b)(3) motion); In re Clinton 

Street Food Corp., 254 B.R. 523, 529 (Bankr. S.D.N.Y. 2000) (same). Section 363(n) 

avoidance claims are therefore subject to the one-year limitations period provided in 

Federal Rule of Civil Procedure 60(c)(1). See Fed. R. Civ. P 60(c)(1) (stating that 

motions under 60(b)(1)-(3) must be brought “no more than a year after the entry of the 

judgment or order or the date of the proceeding”); In re Int’l Nutronics, Inc., 28 F.3d 965, 

968-69 (9th Cir. 1994) (trustee’s § 363(n) claim to avoid sale barred by Rule 60(c)(1)); 2 

Bankr. Desk Guide § 15:62 (“An action to avoid a sale order under § 363(n) . . . is . . . 

subject to the one-year limitation of Rule 60(c).”). 

Rule 60(c)(1)’s limitations period is “absolute.” Tool Box, Inc. v. Ogden City 

Corp., 419 F.3d 1084, 1088 (10th Cir. 2005); see also In re Clinton Street Food, 254 B.R. 
27 

at 532 (one-year limitations period is “an absolute, outside limit”). It is not subject to 

tolling, and “the concept of reasonable time cannot be used to extend the one-year limit.” 

11 Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure § 2866 (3d 

ed. 2019). Thus, “[a] motion under [60(b)(3)]”—and avoidance actions under § 363(n)—

“must be denied as untimely if made more than one year after judgment regardless of 

whether the delay was reasonable.” Id. (emphasis added).12 

Courts do not apply Rule 60(c)’s one-year limitations period when a § 363(n) 

plaintiff seeks damages rather than avoidance or vacatur of a bankruptcy sale. See, e.g., 

In re Am. Paper Mills of Vt., Inc., 322 B.R. 84, 88-90 (Bankr. D. Vt. 2004) (declining to 

apply Rule 60(c)’s one-year limitations period where plaintiff sought “damages under 

§ 363(n), but [did] not seek to vacate the Sale Order”). Instead, courts apply the most 

analogous state statute of limitations. See In re Taylorcraft Aviation Corp., 163 B.R. 734, 

738 (Bankr. M.D. Pa. 1993) (applying state statute of limitations rather than Rule 

60(c)(1) because the trustee sought damages but “[was] not seeking to avoid an Order 

approving the sale”). This is because “the linkage to Rule 60 breaks down when a 

 

12 See also Tool Box, 419 F.3d at 1088 (noting an “appeal does not toll or extend 

the one-year time limit of Rule 60(b)”); In re Clinton Street Food, 254 B.R. at 532

(noting “[no] authority suggesting that ignorance of the claims tolls the period of 

limitations under Fed. R. Civ. P. 60(b)(3)”); Martins v. Charles Hayden Goodwill Inn 

Sch., 178 F.R.D. 4, 6 (D. Ma. 1997) (applying the one-year limitations period to bar 

plaintiff’s 60(b)(2) claim even though plaintiff could not have discovered evidence in 

time to move for a new trial); Gambocz v. Ellmyer, 438 F.2d 915 (3d Cir. 1971) (applying 

one-year limitations period even though plaintiff alleged counsel had not notified him of 

the order dismissing his case).
28 

plaintiff is asserting only a claim for damages under section 363(n).” In re Sunnyside 

Timber, 413 B.R. at 362. As one court explained, 

The section 363(n) cases that adopt the one-year time 

limit of Rule 60 are avoidance cases where the plaintiff seeks 

to modify or vacate a sale order. The rationale for applying 

the one-year time limit of Rule 60 in this context is that the 

avoidance remedy of section 363(n) is derived from the 

power to vacate an order under Rule 60, and thus must be 

subject to the limitations of that rule. Even if this analysis is 

correct, the linkage to Rule 60 breaks down when a plaintiff 

is asserting only a claim for damages under section 363(n). 

A section 363(n) damages claim does not seek to vacate or 

modify the court’s order approving the sale. 

Id. 

Analysis 

We first describe two errors the district court committed in analyzing Rumsey’s 

§ 363(n) claim. We then consider whether the one-year limitations period in Rule 

60(c)(1) barred the claim. We conclude that Rule 60(c)(1) governs the § 363(n) claim 

insofar as Rumsey sought to avoid the bankruptcy sale. Rumsey’s request to avoid the 

sale was thus time-barred. Rumsey’s alternative claim for damages, however, was 

governed by Colorado state law and was not time-barred under Rule 60(c)(1). 

Finally, we consider whether the district court properly granted summary 

judgment for Defendants on the § 363(n) damages claim. We conclude that it did, 

because Rumsey did not set forth specific facts in opposition to the summary judgment 

motion to demonstrate that Defendants intended to control the sale price at the 

bankruptcy auction. 
29 

a. District court errors 

In granting summary judgment on Rumsey’s § 363(n) claim, the district court 

committed two errors. First, the court applied Rule 60(c)(1)’s one-year limitations period 

to Rumsey’s entire § 363(n) claim. But it did not acknowledge that Rumsey sought two 

alternative forms of relief: (1) avoidance of the bankruptcy sale or (2) damages. Rule 

60(c)(1) does not apply when a § 363(n) plaintiff seeks only damages, and because 

Rumsey pled in the alternative, its § 363(n) damages request was, in effect, a request for 

only damages. The district court thus should not have applied Rule 60(c)(1) to Rumsey’s 

§ 363(n) damages claim. See In re Sunnyside Timber, 415 B.R. at 362; In re Am. Paper 

Mills, 322 B.R. at 88-90; In re Taylorcraft Aviation, 163 B.R. at 738. 

Second, the district court conducted an accrual analysis and determined there was 

“a genuine dispute over a fact material to . . . the date the [§ 363(n)] cause[] of action 

accrued.” App. at 1482. But as explained above, Rule 60(c)(1)’s limitations period is 

“absolute,” Tool Box, 419 at 1088, and runs from the date of the entry of judgment. 

Because the district court determined that Rule 60(c)(1) applied, it should not have 

performed an accrual analysis. 

b. Timeliness 

The district court incorrectly applied Rule 60(c)(1)’s one-year limitations period to 

Rumsey’s entire § 363(n) claim. But Rumsey requested two alternative forms of relief: 

(1) avoidance of the bankruptcy sale or (2) damages. See App. at 494 (“Plaintiffs 

requests [sic] that the sale be reversed and that the Rumsey Farm be returned to the 
30 

bankruptcy estate. In the alternative[,] the Plaintiffs request that PBT and RLH be found 

liable for damages . . . .” (emphasis added)). We address the timeliness of each request 

for relief in turn. See McGlohon v. United States, 121 F. App’x. 854, 855 (Fed. Cir. 

2005) (unpublished) (conducting separate statute of limitations analysis for alternativelypled claims). 

First, Rumsey sought to avoid the bankruptcy sale. This request was subject to 

Rule 60(c)(1)’s one-year limitations period. See, e.g., In re Int’l Nutronics, 28 F.3d at 

968-69 (trustee’s claim seeking to avoid sale time-barred under Rule 60(c)(1)). The 

limitations period began to run at the “entry of the judgment or order or the date of the 

proceeding.” Fed. R. Civ. P. 60(c)(1). Rumsey brought its § 363(n) claim approximately 

four years after the bankruptcy court signed the Order of Sale. Its request to avoid the 

bankruptcy sale was thus untimely under Rule 60(c)(1). Insofar as Rumsey’s § 363(n) 

claim sought to avoid the bankruptcy sale, we affirm the district court on the alternative 

ground that the claim was time-barred. 

Second, Rumsey alternatively requested damages. As discussed above, courts do 

not apply Rule 60(c)(1)’s limitations period when a party seeks only damages. See In re 

Sunnyside Timber, 413 B.R. at 362; In re Am. Paper Mills, 322 B.R. at 88-90; In re 

Taylorcraft Aviation, 163 B.R. at 738-39. To the extent Rumsey’s § 363(n) claim 

requested damages, it was not subject to Rule 60(c)(1)’s one-year limitations period, but 

was instead subject to the most closely analogous state statute of limitations. See In re 
31 

Am. Paper Mills, 322 B.R. at 90 (applying state law statute of limitations where § 363(n) 

trustee sought only damages). 

The district court did not say which statute of limitations should apply to 

Rumsey’s § 363(n) claim, and it did not determine whether the claim was timely under 

state law. Instead, the court granted summary judgment for Defendants because it found 

no genuine dispute of material fact as to whether Defendants intended to control the sale 

price at the bankruptcy auction. We likewise do not address the timeliness of Rumsey’s 

§ 363(n) damages claim, because we choose to affirm on the same ground as the district 

court. 

c. Summary judgment 

The district court said “Rumsey [did] not set forth specific facts from which a 

rational trier of fact could infer that Defendants . . . entered into the Loan Purchase 

Agreement with intent that the Agreement control the price.” App. at 1492. We agree 

and affirm the summary judgment on Rumsey’s § 363(n) claim for damages on this 

ground. 

To avoid summary judgment, the nonmoving party must “set forth specific facts 

showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. Rumsey did 

not do so. In its opposition to Defendants’ motion for summary judgment, Rumsey 

presented only a single paragraph to argue why summary judgment was not appropriate 

on the § 363(n) claim. This paragraph read, in full: 

Rumsey Land has met its burden of establishing the 

existence of an agreement between potential bidders that 
32 

controls the sale price. The very purpose of RLH’s lawsuit 

against PBT was to establish its contractual right to have the 

agreed upon amount of the [loan purchase agreement] control 

the sale price as between potential bidders RLH and PBT. As 

RLH alleged in its lawsuit [against PBT], absent the 

[agreement] and the lawsuit to enforce it, RLH might have 

had to make a cash bid that would have exceeded the amount 

agreed to in the [agreement]. Because of the [agreement] and 

the lawsuit to enforce it, RLH never had to exceed the amount 

agreed to in the [agreement]. 

App. at 974 (citations omitted). 

Aside from these general and conclusory allegations, Rumsey offered no specific 

details to support its position. For example, the record contains communications between 

RLH and PBT acknowledging that “collusive bidding is inappropriate,” id. at 949, and 

expressing the parties’ mutual desire to avoid “the appearance or impression of any sort 

of impropriety,” id. at 1019. Rumsey provided no evidence to contradict these 

communications or to show that, despite their caution, Defendants in fact intended to 

control the sale price. Rumsey also did not provide evidence showing “[t]he influence on 

the sale price [was] an intended objective of the agreement, and not merely an unintended 

consequence.” In re N.Y. Trap Rock, 42 F.3d at 752 (emphasis added). Nor did it show 

that the “purpose of RLH’s lawsuit . . . was to establish its contractual right to . . . control 

the sale price as between potential bidders RLH and PBT.” Id. Instead, Rumsey offered 

only brief, vague, and general allegations, unsupported by facts or evidence. It thus 
33 

failed to carry its burden of “set[ting] forth specific facts showing that there is a genuine 

issue for trial.” Anderson, 477 U.S. at 256.13

In district court, Rumsey did not identify evidence in the record to support its 

position. Although the district court “may ‘go beyond the referenced portions’ of the 

plaintiffs’ evidentiary materials, ‘[it] is not required to do so.’” Bird v. Regents of N.M. 

State Univ., 619 F. App’x 733, 740 (10th Cir. 2015) (unpublished) (quoting Adler, 144 

F.3d at 672). On appeal, we also “ordinarily limit[] our review to the materials 

adequately brought to the attention of the district court by the parties.” Adler, 144 F.3d at 

671. “[W]e, like the district courts, have a limited and neutral role in the adversarial 

process, and are wary of becoming advocates who comb the record of previously 

available evidence and make a party’s case for it.” Id. at 672; see also SIL-FLO, Inc. v. 

SFHC, Inc., 917 F.2d 1507, 1513 (10th Cir. 1990) (a court of appeals “need not sift 

through the record to find . . . evidence” in the absence of citations in a party’s brief 

(quotations omitted)). If there was evidence to support Rumsey’s § 363(n) claim, it was 

Rumsey’s responsibility—not the court’s—to identify it. 

 

13 We conduct our summary judgment “review from the perspective of the district 

court at the time it made its ruling, ordinarily limiting our review to the materials 

adequately brought to the attention of the district court by the parties.” Birch v. Polaris 

Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). We note, however, that even on 

appeal, Rumsey does not provide specific facts or evidence to support its § 363(n) claim. 

In its opening brief, Rumsey discusses its § 363(n) allegations in three brief paragraphs, 

which contain broad and conclusory allegations about “RLH’s and [PBT’s] specific 

intent to control the price.” Aplt. Br. at 22. But Rumsey provides no specific facts or 

evidence to show that RLH and PBT in fact acted with this intent. 
34 

Because Rumsey did not provide any facts or evidence to demonstrate an issue of 

material fact on its § 363(n) claim, it failed to “set forth specific facts showing that there 

is a genuine issue for trial.” Anderson, 477 U.S. at 256. The district court did not err in 

granting summary judgment for Defendants on Rumsey’s § 363(n) claim for damages. 

We affirm. 

III. CONCLUSION 

We affirm the district court’s grant of summary judgment for Defendants.