Summaries of Selected Opinions, 0421 COBJ, Vol. 50, No. 4 Pg. 84

PositionVol. 50, 4 [Page 84]

50 Colo.Law. 84

Summaries of Selected Opinions

Vol. 50, No. 4 [Page 84]

Colorado Lawyer

April, 2021


No 20-1027. Mayotte v. U.S. Bank National Ass'n. 1/22/2021. D.Colo. Judge Bacharach. Economic Loss Rule—Lender-Borrower Relationship—Forfeited Claims.

Plaintiff sought modification of her mortgage with U.S. Bank National Ass'n (U.S. Bank). She alleged that Wells Fargo Bank, N.A. (Wells Fargo), the loan's servicer, had agreed to modify her loan if she withheld three payments. Plaintiff withheld three payments, but Wells Fargo denied agreeing to modify the loan, and U.S. Bank foreclosed. Plaintiff brought several tort claims against U.S. Bank and Wells Fargo (collectively, defendants), a statutory claim under the Colorado Consumer Protection Act (CCPA), and a claim for declaratory judgment. The district court granted defendants' motion for summary judgment on all claims, relying on both the economic loss rule and plaintiff's failure to present evidence of compensatory damages.

Plaintiff argued on appeal that the economic loss rule does not bar her claims, contending that defendants had duties outside of the contract with U.S. Bank. Under the economic loss rule, a plaintiff alleging an economic loss from a breach of contract lacks a cause of action for a tort unless the defendant has an underlying duty independent of the contractual duties. Here, plaintiff failed to show the existence of duties outside of the contract. Further, plaintiff's argument that she had a special relationship with defendants to take the claims outside the ambit of the economic loss rule failed because Colorado law does not recognize a special relationship between lenders and borrowers. Therefore, the district court properly applied the economic loss rule.

Plaintiff also argued that the economic loss rule didn't apply to her CCPA or declaratory judgment claims, but she failed to make this argument in district court or to urge plain error review, so the Tenth Circuit did not consider it.

Plaintiff further contended that even if the economic loss rule bars recovery for economic harm, she could still recover for non-economic harm such as emotional distress. However, plaintiff failed to present any evidence of non-economic harm in response to defendants' motion for summary judgment.

The summary judgment was affirmed.

Nos. 19-3030, 3034, & 3035. United States v. Stein. 1/25/2021. D.Kan. Judge Kelly. Conspiracy to Use Weapons of Mass. Destruction—Conspiracy to Violate Civil Rights—Jury Selection Challenge—Entrapment Instruction—Terrorism Enhancement.

Defendants schemed to bomb a mosque and an apartment complex where a large number of Somali immigrants resided. They manufactured their own explosives and met with an FBI undercover employee posing as an arms dealer. Defendants were charged with conspiring to use a weapon of mass destruction against people and property in violation of 18 U.S.C. § 2332a(a)(2) and knowingly and willfully conspiring to violate the civil rights of the residents of the apartment complex in violation of 18 U.S.C. § 241. A jury convicted them on all counts. At sentencing, the district court applied the terrorism enhancement over defendants' objection and then varied downward from the range of life imprisonment.

Defendants argued on appeal that the method of petit jury selection violated the jury Act, contending that the trial court erred in not drawing jurors from the division where most of the conduct took place. Here, defendants' jury Act motions were procedurally defective because they were not filed within seven days of notice of the jury selection plan and were not supported by a sworn statement of facts. Further, even if defendants' challenge was not procedurally barred, it failed on the merits because the jury selection plan did not prevent the random selection of jurors.

Defendants also argued that the...

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