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.

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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