FILED

United States Court of Appeals

Tenth Circuit

June 11, 2012

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRUCE C. MCDONALD, an

individual,

Plaintiff - Appellant,

v.

ONEWEST BANK, F.S.B.; John and

Jane Does, 1-100 inclusive; ABC

CORPORATIONS, entities of

unknown form, 1-20 inclusive,

Defendants - Appellees.

No. 11-1071

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 1:10-CV-01749-RPM)

Gary Fielder, Arvada, Colorado, for Plaintiff - Appellant.

Victoria Edwards (and Justin D. Balser of Akerman Senterfitt, L.L.P., on the

brief), Denver, Colorado, for Defendants - Appellees. 

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and O’BRIEN,

Circuit Judge.

KELLY, Circuit Judge.
Background

Plaintiff-Appellant, Bruce McDonald, took out a $198,000 loan (“Note”)

secured by a deed of trust on Colorado real property in favor of the lender,

IndyMac Bank. Mr. McDonald made payments on the loan from its 2003

inception until April 2009, including while IndyMac was operated in receivership

by the Federal Deposit Insurance Corporation (“FDIC”). According to the

Complaint, the trouble began when the FDIC sold IndyMac to a holding company

that operated it as Defendant-Appellee OneWest, F.S.B. and OneWest, as the new

loan servicer, notified Mr. McDonald of the sale. Aplt. App. 7. Mr. McDonald

stopped making payments because OneWest “did not provide [him] with the

instrument or reasonable evidence of authority to make such a presentment” in

accordance with his demands for the original Note. Aplt. App. 8. OneWest did

provide him with a copy of the Note and deed of trust. Aplt. App. 64-67.

Ultimately, OneWest foreclosed on the property and obtained a Rule 120

Order authorizing the sale of the property, after it produced the original Note, the

deed of trust, and a pooling and servicing agreement governing the Note. Aplt.

App. 14. Mr. McDonald twice sought reconsideration of the sale order, which

was denied. The property was sold on March 4, 2010 and OneWest purchased it,

later assigning its interest in the property to the Federal Home Loan Mortgage

Corp (“FHLMC”). On March 3, 2010, Mr. McDonald filed suit in state district

court claiming that OneWest was not entitled to payment on the Note and the

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order of sale was void. Aplt. App. 190-92. FHLMC filed a forcible entry and

detainer action against Mr. McDonald seeking to evict him; Mr. McDonald

obtained a stay pending resolution of his state court action. Aplt. Br. 13. Mr.

McDonald amended his state-court complaint to join FHLMC and include a quiet

title action; neither defendant answered and the state district court granted a

default judgment quieting title in Mr. McDonald, and denial of relief from that

default judgment is now on appeal. Aplee. Br. 13-14.

On July 22, 2010, Mr. McDonald filed this federal action against OneWest

Bank on the following theories: (1) civil RICO, (2) pattern of racketeering

activities, (3) violation of the Fair Debt Collection Practices Act, (4) fraud, and

(5) violation of the Colorado Consumer Protection Act. He sought damages for

the loss of his home, mental anguish, pain and suffering, and attorney’s fees and

costs. The federal district court noted that it probably lacked subject matter

jurisdiction under the Rooker-Feldman doctrine given that Mr. McDonald was

attempting to litigate the same claims that the Rule 120 court had rejected. But it

ultimately dismissed the action on the basis of Mr. McDonald’s failure to state a

claim. Fed. R. Civ. P. 12(b)(6). See Order of Dismissal, McDonald v. OneWest

Bank, F.S.B., Civ. Action No. 10-cv-01749-RPM, 2010 WL 5423715, at *1 (D.

Colo. Dec. 27, 2010). The district court denied reconsideration. Aplt. App. 200

(Jan. 14, 2011). Mr. McDonald then filed various post-judgment motions, which

were denied. Aplt. App. 501-11 (Dec. 1, 2011).

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Discussion

OneWest contends that the appeal should be dismissed based on an

untimely notice of appeal since it was not filed by February 14, 2011—or

functionally 30 days after the denial of the motion for reconsideration. OneWest

recognizes that a Fed. R. Civ. P. 59(e) or 60 motion may toll the time to file a

notice of appeal, Fed. R. App. P. 4(a)(4)(A)(iv) & (vi), but claims that because

Mr. McDonald failed to cite to Rule 59 or 60 in his motion for reconsideration, no

tolling should occur. We are unaware of any authority that prevents the district

court from considering the substance of a post-judgment motion as a routine

motion for reconsideration; here the motion plainly sought relief from the

judgment and tolled the time for filing a notice of appeal.

Furthermore, we recently decided that Rooker-Feldman did not apply to

determinations in Colorado Rule 120 proceedings, at least insofar as preventing a

foreclosure sale where proceedings are pending. In re Miller, 666 F.3d 1255,

1261-62 (10th Cir. 2012); Dillard v. Bank of N.Y., No. 11-1379, 2012 WL

1094833, at *1 (10th Cir. Apr. 3, 2012) (unpublished). Here, state proceedings

are ongoing and the case is easily resolved on other grounds, so we will not

further consider this issue.

In deciding a motion to dismiss for failure to state a claim, we review the

complaint for plausibility, taking the facts as true. See Bixler v. Foster, 596 F.3d

751, 756 (10th Cir. 2010). The gravamen of Mr. McDonald’s claims on appeal is

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that OneWest was not entitled to foreclose because it was not “a holder in due

course,” and did not own the underlying Note. See Aplt. Br. 20-21. This attempt

to graft “holder in due course” requirements onto this process, though obvious in

its purpose, is meritless and clearly distorts the law.

In Colorado, non-judicial foreclosure based upon a violation of a deed of

trust provision can be accomplished by “a holder of an evidence of debt.” Colo.

Rev. Stat. § 38-38-101(1). The “holder of an evidence of debt” includes a

“person entitled to enforce an evidence of debt” and presumptively includes “[t]he

person in possession of a negotiable instrument evidencing a debt, which has been

duly negotiated to such person or to bearer or indorsed in blank.” Id. § 38-38-

100.3(10)(c); see also id. § 4-1-201(20). As the commercial code makes clear, a

person entitled to enforce an instrument may be a holder, and need not be an

owner, of the instrument. Id. § 4-3-301. Contrary to Mr. McDonald’s position,

nothing in the law states that “holder in due course” status is required. Id. 

 At oral argument, Mr. McDonald’s counsel told the panel that the note

presented to the state court was not the original Note, and therefore was invalid. 

See Oral Argument at 8:24-9:20, McDonald v. OneWest Bank, F.S.B., No. 11-

1071 (May 9, 2012). He stated that this argument was raised in a Rule 60 Motion

before the district court (though it is not apparent), id. at 9:24-9:30; and that it

was included in the reply brief before this court, id. at 12:20-12:28. Counsel also

admitted that this issue was not covered by the notice of appeal, which only

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specifies the orders of dismissal and denial of reconsideration. Id. 9:30-9:45;

Aplt. App. 201. The Rule 60 motion was not filed until nearly six months after

the notice of appeal was filed, and no new notice of appeal has been entered on

this issue. Therefore, we are unable to consider these claims in this appeal. See

Ysais v. Richardson, 603 F.3d 1175, 1179 (10th Cir. 2010).

AFFIRMED.

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