IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Boyd N. Boland

Civil Action No. 11-cv-02438-PAB-BNB

ALVIN MOSCH,

PATRICIA C. MOSCH, and

DAVID K. MOSCH, each individually and d/b/a MOSCH MINING COMPANY,

Plaintiffs,

v.

JOHN HENRY, a/k/a JOHN T. HENRY a/k/a JOHN L. HENRY,

UNITED STATES REAL ESTATE CORPORATION, and any one claiming by or through any

of the named persons,

Defendants.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

______________________________________________________________________________

 On August 18, 2011, the plaintiffs initiated an action in the District Court of Clear Creek

County, Colorado, by filing a “Petition for Order to Show Cause Why Documents Should Not

Be Declared Invalid” (the “Petition”). On September 15, 2011, the action was removed from the

state court pursuant to 28 U.S.C. § 1332 based on diversity jurisdiction. Notice of Removal

[Doc. # 1]. 

In their Petition, the plaintiffs request an order to show cause and a hearing as provided

by section 38-35-204, C.R.S.; attorney fees; and costs. Petition, p. 4. 

Section 204 provides:

1) Any person whose real or personal property is affected by a

recorded or filed lien or document that the person believes is a

spurious lien or spurious document may petition the district court

in the county or city and county in which the lien or document was

recorded or filed or the federal district court in Colorado for an

order to show cause why the lien or document should not be

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declared invalid. The petition shall set forth a concise statement of

the facts upon which the petition is based and shall be supported

by an affidavit of the petitioner or the petitioner's attorney. The

order to show cause may be granted ex parte and shall:

(a) Direct any lien claimant and any person who

recorded or filed the lien or document to appear as

respondent before the court at a time and place

certain not less than fourteen days nor more than

twenty-one days after service of the order to show

cause why the lien or document should not be

declared invalid and why such other relief provided

for by this section should not be granted;

(b) State that, if the respondent fails to appear at the

time and place specified, the spurious lien or

spurious document will be declared invalid and

released; and

(c) State that the court shall award costs, including

reasonable attorney fees, to the prevailing party.

(2) If, following the hearing on the order to show cause, the court

determines that the lien or document is a spurious lien or spurious

document, the court shall make findings of fact and enter an order

and decree declaring the spurious lien or spurious document and

any related notice of lis pendens invalid, releasing the recorded or

filed spurious lien or spurious document, and entering a monetary

judgment in the amount of the petitioner's costs, including

reasonable attorney fees, against any respondent and in favor of the

petitioner. A certified copy of such order may be recorded or filed

in the office of any state or local official or employee, including

the clerk and recorder of any county or city and county and the

Colorado secretary of state.

(3) If, following the hearing on the order to show cause, the court

determines that the lien or document is not a spurious lien or

spurious document, the court shall issue an order so finding and

enter a monetary judgment in the amount of any respondent's costs,

including reasonable attorney fees, against any petitioner and in

favor of the respondent.

The plaintiffs also seek a permanent injunction against the defendants “and anyone

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claiming through them from further recordation of inaccurate and forged documents affecting

title to Petitioners’ properties.” Petition, p. 4. 

On September 7, 2012, I ordered the defendants to appear on September 27, 2012, and to

show cause why the alleged spurious documents should not be declared invalid and why such

other relief provided for by C.R.S. § 38-35-204 should not be granted [Doc. #105]. Mr. Henry

requested permission to appear at the hearing by telephone [Doc. #111]. He cited ill health as

the basis for his request to appear by telephone. He did not provide any evidence to support his

current claims of ill health, and he has failed to provide evidence supporting previous claims of

ill health. See Docs. ##27 and 43. I have twice found that Mr. Henry was engaged in conduct

for the improper purpose of delaying this action. Id. Because this matter is brought pursuant to

a statute that contemplates an expedited procedure and because it is impractical to attempt to

conduct the evidentiary hearing with Mr. Henry, a pro se litigant, appearing by phone, I denied

his request and ordered him to appear in person. Minute Order [Doc. #113]; Transcript of Show

Cause Hearing (the “Transcript”), 2:19-24. 

On September 27, 2012, I conducted a hearing as provided by section 38-35-204, C.R.S. 

Mr. Henry did not appear at the hearing. Instead, he has filed copious documents with the court

[Docs. ##114, 116, 117, 118, 120, 121, 122, 123, 124, 126, 127, 128, 129, 130, 132, 133, 134,

135, 136, 137, 138, 139, and 140]. The documents were not properly offered into evidence at the

hearing, and the plaintiffs did not have an opportunity to review or object to them. Therefore, I

have not considered the documents in my findings of fact and conclusions of law. 

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Mr. Weltzer was issued a subpoena to appear at the hearing, but was unable to attend

due to a flight cancellation. Affidavit p. 2. I permitted the plaintiffs to submit the affidavit in

lieu of his appearance. Transcript, 44:24-45:1; 53:7-17. I cite to the page numbers of Mr.

Weltzer’s affidavit and attached documents as they are assigned by the court’s docketing system. 

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The plaintiffs own interests in approximately 200 mining claims. Transcript, 48:21-

22. Ownership of the plaintiffs’ claims is held one-half by Alvin Mosch, one-third by David

Mosch, and one-sixth by Patricia Mosch. Id. at 49:8-12. 

2. In 1984, Patricia Mosch created a report (the “Report”) concerning 83 patented and

unpatented mining claims then owned by the Mosches. The claims are referred to as the Lucania

Tunnel Properties. Transcript, 10:3-7; 49:13-18; Plaintiffs’ Exhibit A-1, pp. 10-12. Although

the plaintiffs have sold their interests in a number of the properties, they still hold some interest

in approximately 39 of the properties. Transcript, 49:13-50:4. 

3. In 1999, defendant United States Real Estate Corporation obtained title to Alvin

Mosch’s interest in the following six Lucania Tunnel Properties: (1) International, (2)

Knickerbocker Millsite, (3) Thunderbolt, (4) John L. Emerson, (5) Golden Star, and (6) Sunshine

Lode. Plaintiffs’ Exhibits 4 and 6. He also obtained rights to use the Lucania Tunnel. Id. 

4. On August 12, 2000, the United States Real Estate Corporation reconveyed to Alvin

Mosch its interest in the Sunshine Lode. Affidavit of Louis A. Weltzer [Doc. #119], p. 17.1

Currently, the Mosches own the Sunshine Lode. Id. at p. 26. 

5. A spurious document is “any document that is forged or groundless, contains a

material misstatement or false claim, or is otherwise patently invalid.” C.R.S. § 38-35-201(3). 

Included in the definition of a spurious document is a “wild deed,” which is “a recorded deed

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that is not in the chain of title, such as a deed executed by a grantor with no record ownership of

the interest.” GMAC Mortg. Corp. v. PWI Group, 155 P.3d 556, 557 (Colo. App. 2006)

(internal quotations and citations omitted). A groundless document is “one for which a

proponent can advance no rational argument based on evidence or the law to support” it. Westar

Holdings Partnership v. Reece, 991 P.2d 328, 330 (Colo.App. 1999). 

6. On August 10, 2005, defendant John Henry caused three separate documents to be

recorded in Clear Creek County. Transcript, 38:21-40:25. The first document recorded by Mr.

Henry on August 10, 2005, is a Mineral Rights Agreement (“MRA”) signed on July 25, 1994, by

“Alvin Mosch, Agent for Mosch Mining Company” and “Carolyn Olila-Ramsey, President of

SiHoH Recovery, Inc.” Plaintiffs’ Exhibit 1.1 (Reception No. 234546). The MRA states that the

Mosches “give unto SiHoH Recovery, Inc. the exclusive rights to all Mineral values located on,

or within, the mining claims described within Exhibit A” subject to certain terms and conditions. 

Id. at p. 2 (emphasis in original). Attached to the MRA is Patricia Mosch’s Report of the 83

patented and unpatented mining claims owned by the Mosches in 1984. Inside the cover page of

the Report is a page titled “Exhibit A.” Exhibit A lists eight of the Lucania Tunnel properties,

including the six properties deeded to Mr. Henry in 1999. 

7. The MRA was initially recorded in Clear Creek County on September 22, 1997, as an

attachment to an Assignment by SiHoH Recovery, Inc. (“SiHoH”) of five or six of the Lucania

Tunnel properties to Mr. Henry. Affidavit of Louis A. Weltzer [Doc. #119], p. 6. The

Assignment and the MRA reference “Exhibit A.” Id. at p. 4. There are two versions of Exhibit

A attached to the Assignment. The first version includes the following claims: (1) International,

(2) Knickerbocker Millsite, (3) Thunderbolt, (4) John L. Emerson, and (5) Golden Star, as well

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as rights to use the Lucania Tunnel. Id. at p. 9. The second version is the same, but also

includes the Sunshine Lode. Id. at p. 14. The record does not indicate which version of Exhibit

A is correct, nor does it show what percentage of ownership SiHoH had in these properties, and

therefore, what percentage of ownership was transferred to Mr. Henry. 

8. Mr. Henry recorded Exhibit 1.1 approximately eight years later. Although Patricia

Mosch’s Report is not referenced in the body of the MRA, Mr. Henry attached the Report to the

MRA in a manner that suggests that all of the Lucania Tunnel properties are part of the MRA. In

addition, Exhibit A has been altered to include additional properties. Therefore, Exhibit 1.1 has

been altered, is groundless, and is a spurious document. 

9. The second document recorded by Mr. Henry on August 10, 2005, contains the

affidavits of Alvin Mosch, Patricia Mosch, and David Mosch. Defendants’ Exhibit 1.2,

(Reception No. 234547). The affidavits are dated September 15, 1997, and state that “on July

25, 1994, Mosch Mining Company assigned certain mineral interests to SiHoH Recovery, Inc., a

Colorado corporation, pursuant to the attached Mineral Rights Agreement which is marked

Exhibit A” and that they “affirm, represent and warrant that Mosch Mining Company considers

said Mineral Rights Agreement to be in full force and effect . . . .” Id.

10. Mr. Henry re-recorded the affidavits eight years after they were signed. Although

each affidavit refers to an attached MRA, there is no such attachment. Without the attachments

the affidavits contained in Exhibit 1.2 are incomplete, invalid, and spurious.

11. The third document recorded by Mr. Henry on August 10, 2005, is a re-recording of

the Assignment between SiHoH and Mr. Henry which was initially recorded in Clear Creek

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The Reception Number from Mr. Henry’s recordation is located at the bottom of the

pages. The Reception Number at the top of page one is evidence of the initial recording.

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County on September 22, 1997. Plaintiffs’ Exhibit 1.3 (Reception No. 234548).

2

 As with the

affidavits, the Assignment states that the MRA is attached as an exhibit. However, the only

attachment is a statement dated January 26, 1999, by Pam Phipps, Clear Creek County Clerk &

Recorder, which states that there are no liens recorded against mineral interests in five named

properties. Exhibit 1.3 is incomplete, invalid, and spurious.

12. Mr. Henry subsequently recorded several other documents in Clear Creek County. 

On September 26, 2005, he recorded a Quit Claim Deed which purports to convey all of the

Lucania Tunnel properties from John Henry to the United States Real Estate Corporation. 

Plaintiffs’ Exhibit 1.4 (Reception No. 235276). Because Mr. Henry only had an interest in five

of the properties, Exhibit 1.4 is a “wild deed,” i.e. a deed that is not in the chain of title. 

Therefore, Exhibit 1.4 is spurious. 

13. On April 9, 2008, Mr. Henry recorded two affidavits and a 158 page attachment. 

Plaintiffs’ Exhibit 1.5 (Reception No. 248446). The first page is the Affidavit of Carolyn OlilaRamsey which states that she is the former president of SiHoH and that on July 25, 1994, the

MRA was executed in the form attached to her affidavit. She further states that she has put her

initials and “today’s date” on each page of the MRA “to confirm that it is an accurate copy and

to confirm that the Mineral Rights Agreement therein is the same as the Mineral Rights

Agreement that was assigned to John Henry.” However, there is no MRA attached to Ms. OlilaRamsey’s affidavit. The second page is the Affidavit of Timothy G. Arata which states that he is

an investment professional working for Mr. Henry; he has “initialed and marked as Exhibit 1 a

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Mineral Reserves Report that includes a Mineral Rights Agreement executed by Carolyn OlilaRamsey and Alvin Mosch on July 25, 1994"; and that the MRA was provided to him by Mr.

Henry. A Mineral Reserves Report is attached to Mr. Arata’s affidavit, and each of its 158 pages

is initialed and dated by Mr. Arata. 

14. Because there is no MRA attached to Ms. Olila-Ramsey’s affidavit and because Ms.

Olila-Ramsey’s affidavit makes no mention of Mr. Arata’s Affidavit, Exhibit 1.5 is incomplete,

invalid, and spurious. 

15. On November 9, 2010, Mr. Henry recorded another version of the MRA. Plaintiffs’

Exhibit 1.6 (Reception No. 258531). This version includes as an attachment a letter from the

Clear Creek County Assessor dated March 16, 1999. It was filed 13 years after the initial MRA,

and its Exhibit A has been altered to include additional properties. Exhibit 1.6 is an altered

version of the initial MRA and contains false claims. Therefore, Exhibit 1.6 is spurious.

16. On May 18, 2011, Mr. Henry re-recorded the assessor’s letter, but added his own

commentary to it. Plaintiffs’ Exhibit 1.7 (Reception No. 260614). He also crossed out the name

of the County Assessor and replaced it with “Perhaps Alvin Mosch’s Mole.” These alterations to

the letter are groundless, and the document is spurious.

17. The Mosches attempted to sell a number of the Lucania Tunnel properties to a real

estate company, but the “deal fell through” because they could not obtain title insurance due to

Mr. Henry’s spurious recordings. Transcript, 50:7-14. 

18. “[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a

court may grant such relief. A plaintiff must demonstrate (1) that it has suffered an irreparable

injury; (2) that remedies available at law, such as monetary damages, are inadequate to

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Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have 14 days

after service of this recommendation to serve and file specific, written objections. A party’s

failure to serve and file specific, written objections waives de novo review of the

recommendation by the district judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-

48 (1985), and also waives appellate review of both factual and legal questions. In re Key

Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000). A party’s objections to this

recommendation must be both timely and specific to preserve an issue for de novo review by the

district court or for appellate review. United States v. One Parcel of Real Property, 73 F.3d

1057, 1060 (10th Cir. 1996). 

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compensate for that injury; (3) that, considering the balance of hardships between the plaintiff

and defendant, a remedy in equity is warranted; and (4) that the public interest would not be

disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 126 S.Ct. 1837, 1839

(2006). 

19. The plaintiffs have made no showing that remedies available at law are inadequate

to compensate them for their injuries. 

I respectfully RECOMMEND:

a. The documents recorded by Mr. Henry and bearing Reception Nos. 234546, 234547,

234548, 235276, 248446, 258531, and 260614 (Plaintiffs’ Exhibits 1.1 through 1.7) be declared

spurious under section 38-35-201(3), C.R.S., be held invalid, and be released pursuant to section

38-35-204(2), C.R.S.;

b. The plaintiffs be awarded their costs and attorney fees; and

c. The plaintiffs’ request for a permanent injunction be DENIED.3 

Dated November 6, 2012.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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