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"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect . . . (3) the judgment is void . . . or (5) any other reason justifying relief from the operation of the judgment." |
15. A grant or denial of a C.R.C.P. 60(b) motion lies within the sound discretion of the trial court and, absent an abuse of discretion, will not be disturbed on appeal. Davidson v. McClellan, 16 P.3d 233 (Colo. 2001); Blesch v. Denver Publishing Co., ___ P.3d ___ (Colo. App. No. 01CA0728, Nov. 21, 2002). 16. C.R.C.P. 60 is not a substitute for appeal, but instead is meant to provide relief in the interest of justice in extraordinary circumstances. E.B. Jones Construction Co. v. City & County of Denver, 717 P.2d 1009 (Colo. App. 1986). Thus, a C.R.C.P. 60 motion generally cannot be used to circumvent the operation of C.R.C.P. 59(j). I. Rule 60(a) 17. Defendant has not alleged any clerical mistakes, inadvertence, surprise, or neglect of any type. She has alleged deliberate fraud by the attorney of the Plaintiffs and indirectly accused the Clerk of the Court of lying, but neither of these fall under Rule 60(a). Rule 60(a) does not apply to the Motion To Vacate. I. Rule 60(b) Rule 60(b)(1) Mistake, inadvertence, surprise, or excusable neglect 18. Again, the Defendant has not alleged any mistakes, inadvertence, surprise, or excusable neglect. 19. "Excusable neglect" occurs when there has been a failure to take proper steps at the proper time, not in consequence of carelessness, but as the result of some unavoidable hindrance or accident. Farmers Ins. Group v. District Court, 507 P.2d 865, cert. denied, Lambert v. Supreme Court of Colorado, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed.2d 123 (1973). Failure to act due to carelessness and negligence is not excusable neglect. Id. It is impossible to delineate all of the situations showing excusable neglect, but, in general, most situations involve unforeseen occurrences such as personal tragedy, illness, family death, destruction of files, and other similar situations which would cause a reasonably prudent person to overlook a required deadline date in the performance of some responsibility. Id. Rule 60(b)(3) The Judgment Is Void 20. Where a judgment is void, relief under C.R.C.P. 60(b)(3) is mandatory because from its inception, a void judgment was a complete nullity and without legal effect. Consequently, there is no judgment the propriety of which a court can review. First National Bank v. Fleisher, 2 P.3d 706 (Colo. 2000). 21. Ordinarily, the decision whether to grant relief under C.R.C.P. 60(b) is entrusted to the sound discretion of the trial court. However, "a motion under [C.R.C.P. 60(b)(3)] differs markedly from motions under the other clauses of [C.R.C.P. 60(b)]." 10A Wright, § 2862, at 322-24. If the surrounding circumstances indicate that the defaulting party's due process right was unfairly compromised by lack of notice of the default proceeding, then relief under C.R.C.P. 60(b)(3) is mandatory. See Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998) (holding that under Fed. R. Civ. Pro. 60(b)(4) it is a per se abuse of discretion for a lower court to uphold a void judgment); V.T.A., Inc., 597 F.2d at 224 & n.8 ("If voidness is found, relief is not a discretionary matter; it is mandatory."); Small v. Batista, 22 F. Supp.2d 230, 231 (S.D.N.Y. 1998) ("[U]nlike other motions made pursuant to the other subsections of Rule 60(b), the court lacks discretion with respect to a motion made under Rule 60(b)(4).") Relief under C.R.C.P. 60(b)(3) is mandatory because a void judgment "is one which, from its inception, was a complete nullity and without legal effect." Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir. 1972); see also Weaver Constr., 190 Colo. at 232, 545 P.2d at 1045 ("It is an elementary principle of due process that where [a default judgment is obtained without service of process] . . . the underlying judgment must be vacated in the first instance, as a void judgment cannot be allowed to remain in effect pending the outcome of a trial on the merits.") (emphasis added). Consequently, there is no judgment the propriety of which a court can review. Whether the judgment is void for failure to provide notice in compliance with C.R.C.P. 55(b) depends on whether the factual circumstances surrounding the default proceeding indicate that the defaulting party was nonetheless aware that a default judgment was sought against it and that the defaulting party had sufficient opportunity to be heard. 22. From Black's Law Dictionary: |
"Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901". |
23. C.R.C.P. 60(b)(3) (motion to set aside judgment as void) only requires that the motion be brought within a reasonable time. Since the Defendant allowed the judgment to become final without objection and seeks five years later to litigate the issues, she is precluded from attacking those issues through Rule 60(b)(3). Rule 60(b)(5) Any Other Reason Justifying Relief From The Operation Of The Judgment 24. When the facts of a case constitute an "extreme situation" warranting relief from judgment under C.R.C.P. 60(b)(5) or when the judgment is void. See Sandoval v. Trinidad Area Health Ass'n, 752 P.2d 1062, 1064 (Colo. App. 1988); see also People in Interest of J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002)(C.R.C.P. 60(b) balances the preferred rule of finality of judgments and the need to provide relief in the interest of justice in exceptional cases). C.R.C.P. 60(b)(5) has been narrowly interpreted to include only extreme situations and extraordinary circumstances. Davidson v. McClellan, 16 P.3d 233 (Colo. 2001). Pro Se Litigants 25. The Court is cognizant that it should construe a pro se litigant's pleadings liberally, with a less stringent standard than pleadings drawn by attorneys. If the pro se Defendant's complaint reasonably can be read "to state a valid claim on which the Defendant could prevail, the court should do so despite the Defendant's failure to cite proper legal authority, her confusion of various legal theories, her poor syntax and sentence construction, or her unfamiliarity with pleading requirements." At the same time, it is not the proper function of the district court to assume the role of advocate for the pro se litigant. Nor should the court "supply additional factual allegations to round out Defendant's complaint." As the moving party, Defendant has the burden of establishing the grounds for relief under C.R.C.P. 60(b)(1), C.R.C.P. 60(b)(3) or 60(b)(5) by clear, strong, and satisfactory proof. Mere allegations are not enough. Being pro se, she still must meet the burden of proof required and she cannot. Expiration Of Time Limits for C.R.C.P. 59 26. Defendant falsely states that she only learned of the "due process violation" through a "separate discovery process" in November 2006 (see Motion To Vacate ¶12(A). 27. The 1st Judgment was signed on October 8, 2002, and the Order in the record very plainly shows a copy was mailed to Defendant's attorney of record, M. James Zendejas of Colorado Springs, by this Court, on October 10, 2002. There is no reason to believe she was not notified at that time by her former attorney and given a copy nor has she alleged this. 28. Defendant has not alleged that she was unaware of the proceedings that led to the 1st Judgment. She cannot make such as claim because on December 11, 2001, she filed with this Court a response and an affidavit concerning the Motion For Summary Judgment On Mechanics Lien (see Motion To Vacate, Attachment 1, pg 2, Event ID #16-17). At least ten months before the 1st Judgment was signed, Defendant was fully aware of the proceedings and had entered an appearance by filing a response. 29. Defendant admits she was (personally) served notice of the hearing concerning the 2nd Judgment in late February, 2004 (see Motion To Vacate, ¶8). At least two months before the 2nd Judgment was signed, Defendant was again fully aware of the proceedings. So much so that on March 1, 2004, she filed with this Court a Motion To Deny Entering Judgment Against Barbara Robbins Individually ("Motion To Deny") and a Memorandum supporting the Motion To Deny (see Motion To Vacate, Attachment 1, pg 4, Event ID #48-49).
There is no reason to believe she did not receive a copy of the signed order in May, 2004 and nor has she alleged this.
30. She knew of the judgments and the amount. When the Defendant filed for
bankruptcy, October 7, 2005, she listed on her bankruptcy petition, under "Schedule F -
Creditors Holding Unsecured Nonpriority Claims", the names of the Plaintiffs, the
EXACT AMOUNT from the judgment, $28,477.15, and the notation that this was the
result of a counterclaim judgment (see Exhibit #A).
31. When the Plaintiffs filed an Adversarial Proceeding with the Bankruptcy
Court in Denver, case number 06-1225-EEB, on February 2, 2006, the Memorandum
included the details of the two judgments.
2
On April 21, 2006, the Defendant filed with
the Bankruptcy Court, a Motion To Dismiss Plaintiff's (sic) Claim With Prejudice and a
Motion To Vacate Default And Default Judgment ("Bankruptcy Motion To Vacate"),
both being denied by Judge Elizabeth Brown after a very brief hearing.
32. The above paragraphs document eight different instances where the
Defendant had full knowledge of the different proceedings, and had participated in these
proceedings, long before her false date of November, 2006. Her (unstated) claim this
Motion To Vacate is timely is a fabrication. Rule 59(b) sets a mandatory time limit.
Defendant's motion fails to comply with those requirements and is thus not properly
before this court under C.R.C.P. 59 or C.R.C.P. 60(a).
Mistake, Inadvertence, Surprise, or Excusable Neglect Under Rule 60(b)(1).
33. The defendant has not made any claims that would fall under Rule
60(b)(1). As shown above, she filed responses in both actions that led to the judgments
against her. She simply failed, or refused, to attend the scheduled hearings before those
judgments, hearings that she was aware were scheduled.
34. The Defendant claims that a review of the Court Docket reveals many
hearing for which she never received notice. What the Defendant doesn't say is that some
of the "hearings" were administrative reviews of the case which did not involve either
party being present. The re-scheduled hearings were because the Defendant was
avoiding service and had not been personally served (see Affidavit Of Service filed with
this Court March 3, 2004, where the process server identified the Defendant who as
attempting to hide from him and then refused to come forward to accept the Order).
35. The Defendant has not presented any circumstances that would entitle her
to relief under excusable neglect.
36. The statute of limitations for bringing a motion under Rule 60(b)(1) is six
months. Not having filed her motion until January 17, 2007, the Defendant is untimely,
and therefore not entitled to relief under C.R.C.P. 60(b)(1).
Judgment Is Void Under Rule 60(b)(3).
37. The Defendant has claimed:
|
"A default (failure to defend) judgment was placed on my (former) companies, named in this case. No case was heard and no evidence presented." |
"(Plaintiffs) claim that the court clerk (in a statement to Judge Mayhew) notified this (Defendant) that she told Ms. Robbins that the hearing date was March 19, 2004". That statement is false. When this (Defendant) spoke with a court clerk, the clerk informed this (Defendant) that the hearing was not for this date, and would be rescheduled, but that I would receive notification. No discussion of an incorrect date was had, and this (Defendant) was led to believe that the (Plaintiffs) lawyer had cancelled the hearing again." |
See Motion To Vacate, ¶21(d). But the Defendant is inconsistent and contradictory in her filing with the various courts. In her Bankruptcy Motion To Vacate, filed April 21, 2006, Defendant stated: |
"This (Defendant) only received notice of the default judgment after receiving a copy of the Plaintiff's (sic) package in March 2006". |
See Exhibit #B In her Bankruptcy "Response To Complaint Filed By Meadors/Dudnikov - Feb 2, 2006" ("Bankruptcy Response"), filed March 2, 2006, Defendant stated: |
"I received the last notice of hearing, which I appeared at, but no hearing took place. I spoke with the Clerk, who informed
me that Mr. Johnson had canceled it again."
"I called the court a week or so later to ask if the hearing had been rescheduled yet, since I hadn't received any notice, and she informed me that the hearing took place several days ago (I still don't know what day) and because I wasn't there, I lost due to default." |
See Exhibit #C
In two filings, with the same court, just 1 ½ months apart, The Defendant says she found out about the 2nd Judgment in March 2006 but that she knew of the 2nd Judgment in March 2004. Wherein lies the truth? No one knows when dealing with Barbara Robbins. What really happened is that she called the Court to see if perhaps the Court had ruled in her favor and it had not. The Court Clerk would not have told her she lost because of default because the computer entry says nothing like that, and any clerk answering the telephone call would have read her what information was on the computer screen (see Motion To Vacate, Attachment #1, Pg 4, Event ID #51). The events according to Barbara Robbins are a fabrication. 45. The Defendant failed to use reasonable care to protect her interests and therefore the Defendant was not denied a substantial opportunity to defend, but is attempting to avoid the consequences of the judgment by now feigning ignorance. Additionally, she filed responses and motions concerning the two judgments BEFORE the hearings for those judgments. 46. The taking of evidence and entry of judgment in the absence of a party who knows his case is set for trial is not proceeding under the default provisions of this rule, but is instead a trial on the merits. Davis v. Klaes, 141 Colo. 19, 346 P.2d 1018 (1959); Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757 (1969). 47. A Corporate officer's attempt to file documents is an appearance. An attempt by an officer of a corporation to file documents with the court, while not technically an appearance on behalf of the corporation, is an "appearance" sufficient to trigger the notice requirement of section (b)(2). Best v. Jones, 644 P.2d 89 (Colo. App. 1982). 48. The trial court took into account her pleadings and her absence in the 2nd Judgment, as well as citing the facts of the case and conclusions of law It is the duty of the trial court to make sufficient findings to enable the appellate court to clearly understand the basis of the trial court's decision and to enable it to determine the ground on which it rendered its decision granting a default judgment. Norton v. Raymond, 30 Colo. App. 338, 491 P.2d 1403 (1971). The Court is not a representative of non-appearing party. Where the defendant fails to answer a complaint or to make any effort to appear before the trial court, the trial court is not obliged to, and indeed should not, assume a position adversarial to the plaintiffs and representative of the parties declining to appear. Homsher v. District Court, 198 Colo. 465, 602 P.2d 5 (1979). The Court's order indicates that the court was with enough information to make a determination regarding whether Robbins pleaded her claims with sufficient particularity to establish the court's jurisdiction to make a ruling. Any Other Reason Justifying Relief From The Operation Of The Judgment Under Rule 60(b)(5). 49. Defendant has not pleaded nor presented evidence to support an "extraordinary circumstance" or an "extreme situation" as required under Rule 60(b)(5) nor has she presented any "rare and exceptional circumstances", such as being in the hospital, that were beyond her control. 50. (Defendant's) decision not to respond to the notice to show cause based upon (her) mistaken belief that it was void for lack of jurisdiction is not an "extraordinary circumstance" or "extreme situation" warranting relief under C.R.C.P. 60(b)(5). Davidson v. McClellan, 16 P.3d 233 (Colo. 2001); Spencer v. Bd. of County Comm'rs, 39 P.3d 1272 (Colo. App. 2001). C.R.C.P. 60(b)(5) has been narrowly interpreted to include only extreme situations and extraordinary circumstances. Davidson v. McClellan, supra. 51. Equitable tolling is only appropriate "when (a defendant) diligently pursues (her) claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond (her) control." Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Defendant's Pro Se Background. 52. The Defendant would have the Court believe that she is a naïve waif at the mercy of unscrupulous opponents. However, Barbara Robbins has represented herself in a number of different courts in the last six years. 53. Representing herself, Barbara Robbins has filed pleadings and made appearances in: |
2001, County Court, Park County, filing a lien against the Plaintiffs 2001, District Court, Park County, defending counter-claims 2002, Divorce Court, El Paso County, filed for divorce and separation agreement 2003, Probate Court, Pueblo County, defending herself as personal representative of her father's estate 2004, District Court, Park County, defending motion to make her personally liable 2004, District Court, Teller County, defending herself against a four-party lawsuit 2006, Bankruptcy Court, Denver, defending herself and her bankruptcy application 2007, District Court, Park County, filing this Motion To Vacate |
54. Barbara Robbins has considerable experience in representing herself in court. She is not uneducated nor is she illiterate. Her failure to cite authority and present adequate evidence should not be excused. Judge Elizabeth Brown, in her ruling denying the bankruptcy petition of Barbara Robbins, described Barbara Robbins thus: |
"The Debtor is a sophisticated businessperson, with over twenty years of experience as an accountant and more than ten years as a licensed real estate broker. Among many accomplishments, she holds a Master of Real Estate, she is a Certified Tax Practitioner, and an Accredited Business Accountant." |
see Exhibit #D
55. In the last six years, with numerous filings, Barbara Robbins has chosen to either not learn basic requirements for complaints and motions or has chosen to ignore them to give her pro se papers that look of inexperience and helplessness. 56. As an experienced litigator, the Defendant's Motion To Vacate is totally devoid of legal authority. Pursuant to C.R.C.P. Rule 121(c), § 1-15(3), "if the moving party fails to incorporate legal authority into the motion…the court may deem the motion abandoned and may enter an order denying the motion." False Statements To This Court 57. As shown above, the Defendant changes her responses to suit the needs of whatever filing she is making. She makes statements that are calculated to enhance her arguments without regard to the facts involved. 58. To wit, in her Motion To Deny, filed March 1, 2004, Defendant attempted to justify her failure to obtain an attorney to represent her (former) companies with: |
"Even though (Defendant) did not have sufficient cash flow with which to secure an attorney to collect on the unpaid contract and the subsequently filed lien, …" |
see Motion To Deny, Pg 3 ¶11 |
"Corporate entity (Defendant's) inability to afford said attorney." |
see Motion To Deny, Pg 4 ¶14(c)
57. What Barbara Robbins pointedly omits, and fails to establish with proof of any kind, is that her (former) companies certainly had sufficient cash flow to afford to pay her attorney to pursue an expensive and ill-fated defamation suit that was filed in August 2001 with a District Court hearing February 19, 2002 (the District Court ruling was unanimously reversed upon appeal to the Colorado Court of Appeals). Additionally, the same attorney, M. James Zendejas of Colorado Springs, who represented her in August 2001 during a two-day deposition and also in November 2001 at a hearing in Teller County over her contractor's license. 59. She also omits the fact that in 2001, she began receiving substantial amounts of money from the estate of her father. As the Plaintiffs established in testimony and evidence presented at trial in Bankruptcy Court in October 2006, Barbara Robbins received more than $80,000 in cash in August 2001 and a minimum of $287,000 more received in the following four years. By her own statements made to the bankruptcy court in 2006, Barbara Robbins contributed $80,000 of the $347,000 received from the estate to her business. Does this sound like someone who could not afford an attorney? 60. The statements about being unable to afford an attorney, like many other statements, are deliberate lies calculated to deceive the court. The Teller County District Court declared that construction overruns should be the exception, not the norm as in her cases, and the Bankruptcy Court did not find her testimony "credible" (see Exhibit #D) Burden Of Proof Not Met 61. As the moving party, Barbara Robbins had the burden of establishing the grounds for relief under C.R.C.P. 60(b) by clear, strong, and satisfactory proof. As a matter of law, she has failed to meet that burden. Conclusion 62. Failure to file the motion within the time allowed by C.R.C.P. 59(a), or within the time allowed by the court in response to a timely filed motion for extension of time, deprives the court of jurisdiction to act under C.R.C.P. 59. People v. Albaugh, 949 P.2d 115 (Colo. App. 1997). 63. Exceptions to time limits rule of Rule 59 occur when the facts of a case constitute an "extreme situation" warranting relief from judgment under C.R.C.P. 60(b)(5) or when the judgment is void. See Sandoval v. Trinidad Area Health Ass'n, 752 P.2d 1062, 1064 (Colo. App. 1988); see also People in Interest of J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002)(C.R.C.P. 60(b) balances the preferred rule of finality of judgments and the need to provide relief in the interest of justice in exceptional cases). Therefore, defendant's claim for relief cannot be granted under C.R.C.P. 60(b)(1). 64. Rule 60(b) provides relief only in extraordinary circumstances. See Cavanaugh v. State, Dept. of Social Services, 644 P.2d 1, 5 (Colo. 1982). 65. Defendant claims that even if the Court Clerk had notified her of the correct date, a "casual conversation" with the clerk does not constitute notice under the statutes (this argument is actually an admission that she misrepresented the conversation). C.R.C.P. 55(b) sets forth the due process expectations of a party against whom a default judgment is sought. If the notice provisions of C.R.C.P. 55(b) are not adhered to, then the presumption arises that the defaulting party has suffered a due process violation that renders the judgment against it void. However, before a judgment is set aside as void under C.R.C.P. 60(b)(3), reviewing courts should carefully examine whether, though the literal requirements of C.R.C.P. 55(b) were not adhered to, the defaulting party was nonetheless aware of the default proceedings and was afforded a sufficient opportunity to be heard in defense. If there is substantial evidence that the defaulting party had adequate notice of the default proceedings despite failure of the moving party to comply with Rule 55(b), then the purposes of Rule 55(b) are achieved and there is no basis for voiding the judgment. First National Bank of Telluride v. Fleisher, 2 P.3d 706 (Colo. 05/30/2000). 66. Further, C.R.C.P. 60(b)(5) has been narrowly interpreted to include only extreme situations and extraordinary circumstances. Davidson v. McClellan, supra. 67. Other divisions of this court have held that a C.R.C.P. 60(b) motion may not be used as a substitute for a timely appeal and that an appeal from the denial of a C.R.C.P. 60(b) motion does not bring up the underlying final judgment for review. Guevara v. Foxhoven, 928 P.2d at 795; E.B. Jones Constr. Co. v. City & County of Denver, 717 P.2d 1009, 1013-14 (Colo. App. 1986); see also 11 Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2851 (2d ed. 1995); 12 James Wm. Moore et al., Moore's Federal Practice § 60.68[3] (3d ed. 2006). Thus, "[t]he ground for setting aside a judgment under Rule 60(b) must be something that could not have been used to obtain reversal by means of a direct appeal." Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000) (applying similar Fed. R. Civ. P. 60(b)). Otherwise, a party could reargue the merits of the summary judgment in the trial court long after the judgment became final, and could obtain appellate review 68. C.R.C.P. 60(b) is not intended as a vehicle to allow her a "doover" of the first opportunity or to rescue her from her decision not to avail herself of the latter opportunity. Cf. Bell v. Eastman Kodak Co., supra, 214 F.3d at 800-0 1 (Fed. R. Civ. P. 60(b) motion could not be used to argue that the court had made a mistake in entering summary judgment); Morris v. Adams-Millis Corp., 758 F.2d 1352 (10th Cir. 1985) (party could not attack merits of order assessing attorney fees through Fed. R. Civ. P. 60(b) motion alleging mistake, inadvertence, or excusable neglect); Fairbanks Capital Corp. v. Richards, (Ohio Ct. App. No. 86173, Jan. 12, 2006) (Rule 60(b) motion that merely raises matters directly involved in the summary judgment is an improper attempt to substitute for appeal); Franklin Covey Client Sales, Inc. v. Melvin, 2 P.3d 451 (Utah Ct. App. 2000) (Rule 60(b) may not be used as a "back door" to a direct appeal of an underlying summary judgment; moving party merely alleged errors in the entry of summary judgment). 69. Exceptions to this rule occur when the facts of a case constitute an "extreme situation" warranting relief from judgment under C.R.C.P. 60(b)(5) or when the judgment is void. See Sandoval v. Trinidad Area Health Ass'n, 752 P.2d 1062, 1064 (Colo. App. 1988); see also People in Interest of J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002)(C.R.C.P. 60(b) balances the preferred rule of finality of judgments and the need to provide relief in the interest of justice in exceptional cases). 70. The Plaintiffs ask this Court to dismiss with prejudice Defendant's Motion To Vacate. The claims are substantially frivolous, substantially groundless and substantially vexatious. 71. Equitable relief from a judgment may be refused to a party thereto if |
(a) before or after the judgment was rendered the complainant or a person representing him failed to use care to protect his interests, or
(b) after ascertaining the facts the complainant failed promptly to seek redress. |