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Case No. 01 CV 120

DISTRICT COURT, PARK COUTY, COLORADO
Court Address: 300 4th Street
                Post Office Box 190
                Fairplay, CO 80440
Phone Number: 719-836-2940

Plaintiff / Counterclaim Defendant:
Northstar Companies International, LLC
Northstar Design & Construction, LLC dba
Northstar Homes Sales
Northstar Construction

v.

Michael Thomas Meadors
Karen Dudnikov


RESPONSE TO MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT


                Defendants\Counterclaim Plaintiffs Michael Thomas Meadors and Karen Dudnikov ("Plaintiffs") do hereby file this timely 1 Response To Motion To Vacate Default And Default Judgment ("Response").

BACKGROUND

        1. On October 8, 2002, Judge Plotz of the District Court, Park County, did award a money judgment in favor of the Defendants/Counterclaim Plaintiffs in the amount of $28,477.15, against the NorthStar Companies.

        2. A hearing was held in the District Court, Park County, on March 19, 2004, to determine if Barbara Robbins ("Defendant") should be held liable individually for the judgment against the NorthStar Companies, entered October 8, 2002.

        3. Barbara Robbins was served personal notice of the hearing and did not appear. The Court noted her absence and that she had been notified of the correct date and time of the hearing

        4. The Court found Barbara Robbins jointly and severally liable for the judgment entered on October 8, 2002. The order was signed on May 6, 2004, by Magistrate Judge Larry Dean Allen.

        5. On January 17, 2007, Barbara Robbins filed her Motion To Vacate Default And Default Judgment ("Motion To Vacate"). Plaintiffs received their copy of this Motion on Monday, January 22, 2007.

        6. At issue are the judgment dated October 8, 2002 ("1st Judgment") and the judgment signed May 6, 2004 ("2nd Judgment").

JURISDICTION

        7. Defendant improperly identified jurisdiction as being proper in this Court citing three Bankruptcy statutes under 28 U.S.C. §157, §1334, and §1409. Defendant also has failed to state what statutes and/or rules allowed her to file the Motion To Vacate. Plaintiffs agree this Court has jurisdiction as the Court of Origin of the judgments in question.

        8. Since the time limits set by the Colorado Rules Of Civil Procedure Rule 59 have long since expired, the only manner in which this decision can be re-opened is by using C.R.C.P. 60. Both Rule 59 and Rule 60 would fall under the jurisdiction of this Court. Since the Defendant has not stated any grounds or legal authority for filing her Motion To Vacate, the Plaintiffs will address all possible applicable sections of Rule 59 and Rule 60 in their response.

C.R.C.P. RULE 59

        9. The Defendant had ten days after any of the judgments to file motions for a new trial or for the judgments to be amended. She did not. She had fifteen days after any of the judgments in which to file a notice of appeal. She did not.

        10. At no time has the Defendant asserted that she was unaware of the 1st Judgment. She has presented no credible claim as to why she failed to meet the time limits imposed or why she failed to obtain an attorney to represent her company.

        11. Defendant has falsely claimed to this Court she only became aware of the 2nd Judgment in November, 2006 (see Motion To Vacate, ¶12A). This assertion is debunked by her bankruptcy filing (October 6, 2005) in which she listed the Plaintiffs as creditors and citing the exact amount due. She has presented no credible claim as to why she failed to meet the time limits imposed.

        12 Rule 59(a) makes mandatory the statement of the ground on which the motion is based and Rule 59(b) sets a mandatory time limit. Defendant's motion fails to comply with those requirements and is thus not properly before the court.

        Within fifteen days of entry of judgment as provided in C.R.C.P. 58 or such greater time as the court may allow, a party may move for post trial relief under C.R.C.P. 59. C.R.C.P. 59(a). The court may in its discretion extend the time period for filing such a motion, but the extension must be sought before the time period for filing the motion under C.R.C.P. 59 has expired. Austin v. Coll./Univ. Ins. Co., 30 Colo. App. 502, 495 P.2d 1162 (1972).

        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).

C.R.C.P. RULE 60

        13. Since the Defendant is not claiming any clerical errors, her motion to re-open would fall entirely under C.R.C.P. Rule 60(b).

        14. C.R.C.P. 60(b) provides in pertinent part:

"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."

see Motion To Vacate, ¶7.

        38. Defendant infers in ¶6 of her Motion To Vacate that she was unaware of the proceedings that led to the 1st Judgment. Yet 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).

        Nowhere in her Motion To Vacate does the Defendant state she was unaware of the dates of any hearings concerning the 1st Judgment.

        39. During this time, Defendant's (former) companies were employing the services of Attorney M. James Zendejas of Colorado Springs to represent them. Mr. Zendejas appeared in District Court in Fairplay on February 19, 2002, representing Barbara Robbins and her (former) companies at a hearing seeking a preliminary injunction against the Plaintiffs and their web site (that preliminary injunction was subsequently reversed by the Colorado Court of Appeals).

        Once the Defendant had been notified that she could not proceed pro se representing her (former) companies in District Court, she had the option of turning the case over to Attorney M. James Zendejas, who continued to represent her until August, 2002 when he withdrew as counsel. She chose not to. It was her choice. She effectively and willfully abandoned the defense and forfeited the decision, reinforcing the choice by not attending the hearing. She voluntarily walked away from the case.

        40. Defendant repeatedly claims "deceit" 3 and fraud against the Plaintiffs and their attorney without presenting any detail or substantive proof to support these allegations.

        42. In ¶21(a)(ii) of her Motion To Vacate, Defendant alleges the "date" on her notice was "intentionally left blank" while not telling the Court that she had received a COPY of the unsigned Order provided to the Court with the motion, preferring to allege it was designed to deceive her (see Motion To Vacate, Attachment 6). 4

        43. Defendant also claims that the Order with which she was served concerning the March 19, 2004 hearing was altered "prior to service" (see Motion To Vacate, ¶21(b) and Attachment 8). Indeed, Plaintiffs agree that a comparison of Defendant's Attachment 8 and the Order in the Court's file will show Defendant's Attachment 8 has been altered, but not before service.

        In ¶21(b) of her Motion To Vacate, Defendant claims the "(Plaintiffs) were aware of the alteration, based upon testimony received by (Defendant)" yet she does not offer any affidavit or documents to support this intentionally defamatory statement.

        The claim that the Order was altered "prior to service" is per se defamatory to the attorney, Anthony Johnson, and the process server. Since the signed order was never in the possession of the Plaintiffs before it was served, her allegations must be aimed at one, or both. She is accusing an officer of the court, and/or a licensed process server, of committing a felony when the facts support that it was probably the Defendant who altered the Order shown as Attachment 8.

        The hearing date was March 19, 2004. If it was the intention of someone to have the Defendant not appear, why would they alter the date to a day a full 18 days BEFORE the hearing and give her the opportunity to discover the real date? They would have altered the date to sometime AFTER the actual hearing. A close examination of Motion To Vacate Attachment 8 shows a small break in the date line and small areas missing in the "R" and "E" in the word "HEARBY" above, as though whiteout had been applied. But to what end? The whiteout was most likely applied by the Defendant to give her a flimsy excuse for not appearing on the 19th of March.

        If it had been the intention of Attorney Anthony Johnson to deceive the Defendant, then why did he bring the date issue to the attention of the Court on March 19th? (see Affidavit of Michael Meadors). The computer printout of the Court Docket and the Court records will support the events, including the statement by the Court Clerk, in open court and responding to questions from the presiding judge, that she distinctly remembered the event and told Barbara Robbins that she, Barbara Robbins, had to return on March 19, 2004, for the hearing.

        44. The Defendant goes on to infer the Clerk of the Court was lying without offering a shred of evidence to explain why the Clerk would do any such thing.

"(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.

Restatement of Judgments section 129, at 621 (1942).

        72. Plaintiffs also request this Court to award costs as well as any appropriate sanctions or contempt citations against the Defendant for her frivolous and defamatory motion and her lies to this court. While she may be pro se, there are standards to which everyone must be held.

Respectfully submitted this 8th day of February, 2007.


FOOTNOTES:

1. While Defendant's Certificate Of Service states a copy was mailed to Plaintiffs on January 17, 2007, the copy was postmarked PM January 19, 2007 Colorado Springs. This is not the first time Defendant has not properly complied with the Rules Of Service. back

2. Defendant falsely claimed to the Bankruptcy Court that March 2006 was the first time she had become aware of the two judgments when she received the adversarial proceeding. She attempts to reset the clock every time she files her frivolous motions. back

3. Motion To Vacate Attachment 4 has the notation “Included to show deceit”. References on the “attachments” as well as many copies of the Motion are difficult to read because of the poor quality of the copies provided to the Plaintiffs. Defendant should be cautioned to provide copies of the same quality as those submitted to the Court. back

4. Defendant repeatedly makes unsupported per se defamatory statements without any evidence except her convoluted logic and paranoia with which to support them. back

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