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Foreclosure hearing denied improperly, 2 owners claim
Their case is pending in federal court. They say the hearing might have helped their situation.
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Author: Christine Tatum, Denver Post Staff Writer
Source: Denver Post, The (CO)
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March 13, 2005 Denver, CO -- Section: BUSINESS
Page: K-08
Sometime this week, sheriff's deputies are expected to lock Allen Russell and James Bailey out of the building they co-own in Denver's Five Points neighborhood.
The cousins vow the imminent foreclosure will not derail their legal fight against a Denver magistrate who, they allege, improperly denied them a hearing they say might have helped change their fate. The men also say the magistrate reported in court records that she held the hearing - commonly known among legal professionals as a "Rule 120" - when she had not.
The case is pending in federal court. Calls to the magistrate, Diane Dupree, weren't returned Friday.
The men say they were informed of their lender's intentions to foreclose on the building in the 2800 block of Downing Street in January 2004. The notice stated that they were entitled to a hearing that sharply limits testimony, forcing judges to rule only on whether there is "reasonable probability" that property owners are in default of their loans, and whether lenders properly initiated the process.
Judges who make those determinations typically authorize the continuation of the foreclosure process, which includes a public sale of the property.
The Colorado attorney general's office represents Dupree. In a brief responding to the men's allegations, Assistant Attorney General Melody Miraba wrote that the men asked for a Rule 120 hearing and that "no hearing was held." Miraba also acknowledged that "the Colorado court database" tracking court proceedings improperly indicated "hearing held" when judges may have conducted only an in-chamber review of files.
"This problem has since been resolved so that 'hearing held' will no longer show in such instances," Miraba wrote.
Miraba did not return a call for comment. However, Deputy Attorney General Jason Dunn said Miraba believes the men failed to properly state to the court their reasons for wanting the hearing and were therefore not entitled to one. Dupree apparently agreed, Dunn said, because she "reviewed their response and all of the documents they sent and didn't see reason" to hold a hearing.
Bailey said: "We're not lawyers, and we don't have the money to hire one. But we're smart enough to know that the court didn't tell us our request was rejected. The next thing we heard, the foreclosure process was on its way. Surely someone who petitions the court is entitled to an answer before a judge authorizes a process that takes away personal property. And surely a judge who reports she held a hearing should have actually held that hearing."
Dunn said the erroneous indication of "hearing held" would not have changed the men's fate.
Staff writer Christine Tatum can be reached at 303-820-1015 or ctatum@denverpost.com.
Source: Denver Post, The (CO)
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