Mbaku et al v. Bank of America: Second Federal Suit Challenging Colorado Foreclosure Law Emerges


A second federal lawsuit contesting the constitutionality of Colorado’s foreclosure laws has emerged.

Unlike the case of an Aurora woman who obtained an interim federal injunction against the foreclosure auction of her house, the other involves a federal judge who decided a Denver man’s 14th Amendment guarantee of due process was in question.

U.S. District Judge Philip Brimmer last week dismissed the entirety of John Mbaku’s complaint against Bank of America that challenged the bank’s right to foreclose on his condominium. Brimmer determined there was a constitutional issue, though Mbaku didn’t bring it up specifically.

Because Mbaku, a law-school graduate who doesn’t practice law, is representing himself, the judge is given wider latitude to read between the lines of a complaint since plaintiffs might not be as sophisticated or well-versed in the complexities of law.

In the introduction to his lawsuit filed last year, Mbaku noted how Colorado law allows a bank or lender toforeclose without showing how it obtained ownership of the loan.

More important, because loan ownership is determined by who has possession of the document — known as indorsement in blank — Mbaku said anyone could come by that right, even a thief.

“Plaintiffs could illegally obtain or otherwise steal a promissory note … from any bank … and present themselves at a … hearing and be deemed … to be the proper party to foreclose,” Mbaku wrote.

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