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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.

12-cv-02716-WJM-MEH LISA KAY BRUMFIEL, Plaintiff, v. US BANK, LARRY CASTLE, in his corporate capacity, LARRY CASTLE, in his individual capacity, CASTLE STAWIARSKI LLC, ROBERT J. HOPP, ATTORNEY, CYNTHIA MARES, Public Trustee in her official capacity, MERS a division of MERSCORP Inc. and, DOES 1-100 Defendants

PLAINTIFF'S PETITION FOR INJUNCTIVE RELIEF AGAINST US BANK N.A. AS TRUSTEE AND THE COLORADO STATE COURT IN ACTION 2013-cv-825
D.C.COLO.LCivR. 7.1A Certification: The undersigned---LISA KAY BRUMFIEL, plaintiff contacted US Bank N.A by calling their attorney, Sean M. Hanlon , at 303-2958270 Sean M. Hanlon indicated he would a. oppose; or b. not oppose. Plaintiff Lisa Kay Brumfiel hereby petitions the Court for an injunction enjoining US Bank and the Colorado State Court in action 2013-cv-825 based on the prior exclusive jurisdiction doctrine PRELIMINARY STATEMENT In the Order Granting plaintiff a preliminary Injunction [Docket #94, pgs 13, 14] this

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Court expressed its concern over the procedures employed in the Rule 120 Foreclosure statute 38-38-101 as amended through HB 06-1387 when it said: Indeed, much of the reasoning in the Younger abstention analysis gave credence to the serious, substantial, difficult, and doubtful questions that persist in this case. Rather, with respect to Plaintiffs Ninth Claim, the Court finds that she has met her burden with respect to the modified standard. (See ECF No. 45.) According to Plaintiffs legal theory, Colo.Rev. Stat. 38-38-101 does two things: (1) it lowers the standard of proof that a creditor must meet in order to proceed to foreclosure from original documentary evidence to an unsworn statement; and (2) it creates an additional burden upon a debtor to establish evidence of the creditors identity which the creditor, itself is not required to locate. Whether these issues create due process concerns within the limited scope of a Rule 120 hearing creates serious constitutional questions. [B,U] If this Court is concerned over the effect Colo. Rev. Stat. 38-38-101 has on the Rule 120 Foreclosure because the standard of proof that a creditor must meet in order to proceed to foreclosure from original documentary evidence to an unsworn statement; and (2) it creates an additional burden upon a debtor to establish evidence of the creditors identity which the creditor, itself is not required to locate, it should be an equally valid concern of this Court over proceedings in the Judicial Foreclosure action 2013cv825 which US Bank N.A. seeks to pursue because the Judicial Foreclosure is also governed by Colo. Rev. Sta. 38-38-101 (See JUDICIAL FORECLOSURE ACTIONS PROCEDURES AND TACTICS, Exhibit A) where US Bank N.A. will present the same copies of the Deed of Trust and Promissory Note and a Statement of Qualified Holder (not sworn under penalty of perjury) that the lender is the real party in Interest. [A]n additional burden will be placed on the debtor to establish evidence of the creditors identity which the creditor, itself is not required to locate.

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ARGUMENT

I. TWO CONCURRENT JUDICIAL BODIES SHOULD NOT OCCUPY THE SAME SPACE Two courts may not exercise simultaneous in rem jurisdiction over the same res. A federal court may enjoin a state court proceeding "where the federal court's jurisdiction is in rem and the state court action may effectively deprive the federal court of the opportunity to adjudicate as to the res." Conversely, where the state court's in rem jurisdiction is antecedent, a federal court may not take jurisdiction over the res. United States v. $2,542 in U.S. Currency, 754 F. Supp. 378, 379-380 (D. Vt. 1990) The Prior Exclusive Jurisdiction Doctrine was precisely created for the situation now before this court because The threat posed by a parallel state court proceeding is most acute when federal jurisdiction is dependent upon a res. For that reason, the most prominent "in aid of jurisdiction" exception is for in rem actions. Where a state court proceeding interferes with a federal court's jurisdiction over a res, the federal court may enjoin the state court proceeding. BENNET V MEDTRONIC, INC., (9th Cir. 2002) II. GENERAL PRINCIPLES OF EXCLUSIVE CONCURRENT JURISDICTION As explained by the court in Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786-787, Under the rule of exclusive concurrent jurisdiction, when two superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have

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been resolved. [Citation.] The purpose of the rule is to avoid unseemly conflict between courts that might arise if they were free to make contradictory decisions. (Franklin & Franklin v. 7Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1176.) The doctrine is similar to the rule of abatement. (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.) And, it has been recognized that [t]he pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action. [Citation.] (Ibid, emphasis added.) On October 12th, 2012, Plaintiff Lisa Kay Brumfiel filed an in rem over the res (plaintiffs home at 1499 South Jasper St., Aurora, Colorado 80017) in the above entitled action under 42 USC 1983, 1985 against defendants which included US Bank. On May 24th, 2013, after dismissing the non judicial foreclosure, US Bank filed in rem Judicial foreclosure on the same res against Lisa Kay Brumfiel (2013cv825) In SEXTON v. NDEX WEST LLC FSB, No. 1117432. April 12, 2013, 9th Circuit the court stated: Under the Supreme Court's long-standing prior exclusive jurisdiction doctrine, if a state or federal court has taken possession of property, or by its procedure has obtained jurisdiction over the same, then the property under that court's jurisdiction is withdrawn from the jurisdiction of the courts of the other authority as effectually as if the property had been entirely removed to the territory of another sovereign. State Engineer v. S. Fork Band of TeMoak Tribe of W. Shoshone Indians, 339 F.3d 804, 809 (9th Cir.2003) (emphasis omitted) (quoting Palmer v. Texas, 212 U.S. 118, 125, 29 S.Ct. 230, 53 L.Ed. 435 (1909)). That is, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. Chapman, 651 F.3d at 1043 (internal quotation marks omitted).4 As we have explained, [t]he purpose of the rule is the maintenance of comity between courts; such harmony is especially compromised by state and federal judicial systems attempting to assert concurrent control over the res upon which jurisdiction of

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each depends. United States v. One 1985 Cadillac Seville, 866 F.2d 1142, 1145 (9th Cir.1989) (citing Penn Gen. Cas. Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935)).5 In BENNET V MEDTRONIC, INC., (9th Cir. 2002) the court explained the reasoning in enjoining state court proceeding under the exceptions to the Anti-Injunction Statute. As the court outlined: I. THE ANTI-INJUNCTION ACT The Anti-injunction Act provides as follows: A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. 28 U.S.C. 2283. The Supreme Court has confirmed what is facially apparent; the breadth of the Act's prohibition is broad. Atlantic Coast Line R.R. Co. v Bhd. of Locomotive Eng'rs, 398 U.S. 281, 286-87 (1970). "Any doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy." Id. at 297. The threshold question we address is whether the district court's order constitutes "an injunction to stay [state court] proceedings." Because the issue before us is a legal one, we review the injunction de novo. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). II. THE EXCEPTIONS The next question is whether the circumstances of this case fall within one of the three exceptions to the Act-- injunctions that: (1) Congress has expressly authorized; (2) are necessary in aid of the federal court's jurisdiction; or (3) are necessary to protect or effectuate the federal court's judgments. The Supreme Court has cautioned that the exceptions are to be narrowly construed and "should not be enlarged by loose statutory construction." Atlantic Coast , 398 U.S. at 287. The exception applicable in this action is 1 and 2. This court has already determined that Plaintiffs action under than 42 US 1983, 85 is one of the actions that is expressly authorized exception to the Anti Injunction Statute. Mitchum v. Foster, 407 U.S. 225, 235 (1972); Moreover, this court is authorized under the second exception authorized by Congress in aid of the federal courts jurisdiction. As the Court in Bennet said:

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In Atlantic Coast, the Supreme Court explained that "some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court's consideration or disposition of a case as to seriously impair the federal court's flexibility and authority to decide that case." 398 U.S. at 295. [10] The Act creates a presumption in favor of permitting parallel actions in state and federal court. Id The threat posed by a parallel state court proceeding is most acute when federal jurisdiction is dependent upon a res. For that reason, the most prominent "in aid of jurisdiction" exception is for in rem actions. Where a state court proceeding interferes with a federal court's jurisdiction over a res, the federal court may enjoin the state court proceedings. See Vendo, 433 U.S. at 641; Mitchum v. Foster, 407 U.S. 225, 235 (1972); Kline 260 U.S. at 229; Federal Shopping Way, Inc. v. McQuaid, 717 F.2d 1264, 1274 (9th Cir. 1983). Consistent with this approach, injunctions are permitted where an in personam action bears substantial similarity to an in rem action. See Alpine Land & Reservoir, 174 F.3d 1007, 10131014 (9th Cir. 1999) (water rights sufficiently similar to in rem actions). In CHAPMAN v. DEUTSCHE BANK NATIONAL TRUST COMPANY, No. 10 15215, June 23, 2011 Ninth Circuit held that the prior exclusive jurisdiction doctrine is based at least in part on considerations of comity and prudential policies of avoiding piecemeal litigation, it is no mere discretionary abstention rule. Rather, it is a mandatory jurisdictional limitation. State Eng'r v. S. Fork Band of TeMoak Tribe of W. Shoshone Indians, 339 F.3d 804, 810 (9th Cir.2003) [B, U[ The Tenth Circuit in Town of Colorado City, an Arizona municipality, v. United Effort Plan Trust, et al., No. CV11-08037-PHX-DGC, January 4th, 2011 referred to The Chapman case said: .The prior exclusive jurisdiction doctrine holds that when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. Chapman v. Deutsche Bank Nat. Trust Co., 651 F.3d 1039, 1043 (9th Cir. 2011) (quoting Marshall v. Marshall, 547 U.S. 293, 311 (2006)). The doctrine is a mandatory jurisdictional limitation. Id. Where parallel state and federal proceedings seek to determine interests in specific property as against the whole world (in rem), or where the parties interests in the property serve as the basis of the jurisdiction for the parallel proceedings (quasi in rem), then the doctrine of prior exclusive jurisdiction fully applies. Id. at 1044. Here, no party

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disputes that the Utah state court first asserted jurisdiction over the trust litigation in 2005, well before Colorado City filed its action in this Court, or that the trust litigation was in rem. The Utah state courts exercise of jurisdiction takes priority. See Chapman, 651 F.3d at 1044-45. The Court must then determine whether this case is properly characterized as in rem, quasi in rem, or in personam. See id. at 1045. In order to characterize the actions, the Court must look behind the form of the action[s] to the gravamen of [the] complaint and the nature of the right[s] sued on. Id. (quoting State Engr of Nevada v. South Fork Band of Te-Moak Tribe, 339 F.3d 804, 810 (9th Cir. 2003)). In this case as in the state case, which US Bank seeks to pursue, is based on the same nucleus of facts which may give rise to contrary opinions. The first opinion rendered would serve as a retraxit If a state court reaches the decision that copies are perfectly fine and constitutional, then plaintiffs only recourse is an appeal in state court leaving the Federal court holding an empty bag. Furthermore, plaintiff should not be put under the ordeal of two cases determining the same issues of fact in a proceeding. Also the plaintiff will most likely not have a jury trial because it is an action in equity.(See JUDICIAL FORECLOSURE ACTIONS PROCEDURES AND TACTICS by Frederick B. Skillern, attorney Exhibit A) It would be manifestly unjust to allow the state court, which will apply accelerated procedures by a new program called the Colorado Civil Access Pilot Program for Business Actions the purpose of which is to reach dispositive determinations in the State case which may interfere with this courts jurisdiction. to proceed wasting plaintiffs emotional and monetary resources which are already strained. In the Reporters transcript of the May 6th hearing [Docket # 117, pg 10,lns 22-25; and p. 11, lns 1-22] Plaintiff Lisa Kay Brumfiel recounts how she has attended several of the evidentiary hearings and when the homeowner raises the Real Party in Interest

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Defense as was required by the Goodwin Court they will listen and then say but in the end the say : Limited in scope and does not rule on any of your evidence. The judges that will determine the case are the same judges that determine the evidentiary hearing in the non-judicial foreclosure. If the determination of the Real Party in Interest is guided by the Colo. Rev. Stat 38-38-101 then Plaintiff will experience the same result as in the non judicial evidentiary hearing. Plaintiffs emphasizes that under Colo. Rev Stat 38-38-101 as amended by HB 06 1387, which plaintiff claims is substantively and procedurally defective under section 1 of the Fourteenth Amendment, is the governing statute for both the Rule 120 (non judicial foreclosure) and Rule 105 (Judicial Foreclosure)and is the focal point of plaintiffs constitutional challenge. WHEREFORE, Lisa Kay Brumfiel prays this Honorable Court enjoin US Bank N.A. and the State Court under the Prior exclusive jurisdiction doctrine as argued in this petition. Respectfully submitted,

_______________ LISA KAY BRUMFIEL

Date: ___________, 2013

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VERIFICATION Petitioner Lisa Kay Brumfiel verifies that the information set forth above is true and correct to the best of her knowledge, except for those matters alleged to be on information and belief, which Lisa Kay Brumfiel believes to be true.

________________ LISA KAY BRUMFIEL

Date:______________. 2013

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