Coney v. Deutsche Bank

23CA1847 Coney v Deutsche Bank 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1847
City and County of Denver District Court No. 20CV34214
Honorable Shelley I. Gilman, Judge

Ella M. Coney,

Plaintiff-Appellant,

v.

Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage
Loan Trust 2004-1 Asset-Backed Certificates Series 2004-1; Long Beach
Mortgage Company; PHH Mortgage Corporation Successor by Merger to Ocwen
Loan Servicing LLC Successor in Interest to Ocwen Federal Bank FSB; and
Ameriquest Mortgage Company,

Defendants-Appellees.

ORDERS AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE YUN
Harris and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Ella M. Coney, Pro Se

Murr Siler & Accomazzo, P.C., Jamie G. Siler, Denver, Colorado, for
Defendants-Appellees
¶1 This is the second appeal arising from an unsuccessful

spurious lien action brought by the plaintiff, Ella M. Coney, against

the defendants, (1) Deutsche Bank National Trust Company as

Trustee for Long Beach Mortgage Loan Trust 2004-1 Asset-Backed

Certificates Series 2004-1; (2) Long Beach Mortgage Company;

(3) PHH Mortgage Corporation Successor by Merger to Ocwen Loan

Servicing LLC Successor in Interest to Ocwen Federal Bank FSB;

and (4) Ameriquest Mortgage Company (collectively, the lenders).

Coney appeals the district court’s orders (1) granting the lenders

their appellate attorney fees and costs incurred in defending the

first appeal, see Coney v. Deutsche Bank, slip op. at ¶¶ 13-14 (Colo.

App. No. 22CA0438, Apr. 6, 2023) (not published pursuant to

C.A.R. 35(e)) (Coney I); and (2) declining to reopen the evidentiary

hearing on the lenders’ motion for attorney fees. We affirm and

remand for a determination of the lenders’ appellate attorney fees

incurred in defending the present appeal.

I. Background

¶2 In 2020, Coney petitioned the district court to invalidate, as a

spurious lien under section 38-35-204, C.R.S. 2024, and C.R.C.P.

105.1, a deed of trust on a parcel of Coney’s real property. Coney I,

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¶ 2. After a hearing, the district court denied Coney’s petition and

awarded the lenders their attorney fees. See § 38-35-204(1)(c)

(providing that “the court shall award costs, including reasonable

attorney fees, to the prevailing party”); C.R.C.P. 105.1(a)(3) (same).

The lenders moved for attorney fees and, after an evidentiary

hearing, the district court awarded them $39,515.78. Coney I, ¶ 5.

¶3 Coney appealed, and a division of this court affirmed. Id. at

¶ 1. The division also concluded that, because the lenders were

“properly awarded attorney fees by the district court under section

38-35-204(3) and Rule 105.1, [they were] entitled to attorney fees

incurred defending that award on appeal.” Id. at ¶ 13. Accordingly,

the division remanded the case to the district court to determine the

lenders’ reasonable and necessary appellate attorney fees. Id. at

¶ 14. The mandate issued on May 30, 2023.

¶4 On May 31, 2023, the lenders filed a motion for appellate

attorney fees and costs. Coney filed a response in opposition,

arguing that the lenders’ motion was untimely and that the Coney I

division erred by awarding the lenders their appellate attorney fees.

The district court granted Coney’s request for a hearing but ruled

that (1) the lenders’ motion, filed one day after the Coney I mandate

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issued, was timely; and (2) the only issues to be addressed at the

hearing were “the reasonableness and necessity of the requested

fees and costs.”

¶5 The hearing was scheduled for August 18, 2023, at 9:30 a.m.

Before the hearing, Coney filed a “Hearing Brief” reiterating the

arguments in her earlier response. She did not address the

reasonableness or necessity of the lenders’ requested fees and

costs.

¶6 At 9:12 a.m. on the day of the hearing, Coney called the

courthouse and left a voicemail stating that she was on her way to

the hearing but would be late because she was stuck in traffic. The

court waited until 10:00 a.m. When Coney did not appear or

further contact the court, the court proceeded with the hearing and

issued its findings of fact, conclusions of law, and final order,

awarding the lenders $24,015.17 in attorney fees and costs. The

hearing concluded at 10:39 a.m.

¶7 Meanwhile, unbeknownst to the district court, Coney called

again at 10:36 a.m. to say she was in the emergency room and

would not attend the hearing. Later that day, she went to the

courthouse and filed a status report stating that she had suffered

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an unspecified “substantial sudden medical emergency” and

requesting a new hearing. She attached to her status report a

receipt for an emergency visit at SCL Health on August 18, 2023.

The receipt does not indicate the time of the visit, the reason for the

visit, or whether Coney received any treatment.

¶8 The district court construed the status report as a motion to

reopen the hearing and invited the parties to brief the matter. The

lenders responded that, while a medical emergency could certainly

constitute good cause to reopen the hearing, “the prior delays in

this case, together with the sequence of events on the day of the

hearing (evolving from Ms. Coney being stuck in traffic on the way

to the hearing, to a medical emergency, to being medically okay

and . . . filing a status report in-person at the courthouse that day)

raise[d] questions regarding the particulars of the alleged

emergency” that the receipt, with its lack of specificity, did not

answer. They noted that, “[w]ithout divulging any sensitive medical

information, Ms. Coney may still explain and verify when . . . and

how the emergency arose,” and they asked the court not to reopen

the hearing unless Coney provided “confirmation, sufficient for [the]

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Court in its reasonable discretion, that [she] indeed suffered a

sudden emergency.”

¶9 Coney filed an untimely reply reiterating her arguments that

the lenders’ motion for attorney fees was untimely and that the

lenders were not legally entitled to their appellate fees from Coney I.

She did not address the medical emergency.

¶ 10 The district court denied Coney’s motion to reopen the

hearing. It found that the receipt from SCL Heath did not establish

that Coney experienced a sudden emergency; that Coney had

originally “represented that she was in route to the hearing and did

not provide any reason to suspect that she would suffer a sudden

emergency moments later”; and that she was “medically available to

file the . . . status report later that day.” It further found that

Coney had a history of causing scheduling delays in the case and

noted that, in December 2021, it had granted her request for a

continuance despite explicitly finding that there was no good cause

to do so. Accordingly, the court found that Coney had failed to

establish good cause to reopen the hearing.

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II. Analysis

¶ 11 Coney contends that the district court made three errors:

(1) not dismissing the case due to alleged mail fraud committed by

the lenders; (2) finding that the lenders’ motion for appellate

attorney fees was timely; and (3) denying her request to reopen the

hearing. The lenders, for their part, contend that they are entitled

to their attorney fees incurred in defending this appeal. We begin

with Coney’s arguments, then turn to the lenders’ fee request.

A. Mail Fraud

¶ 12 Coney argues for the first time on appeal that the lenders’

motion for attorney fees was “filed and served with the incorrect

return address” and that the lenders thereby violated a federal

criminal statute, 18 U.S.C. § 1342, prohibiting the use of a

fictitious address to conduct unlawful business by means of the

Postal Service. She does not say what address was used or why she

believes it was incorrect. Because Coney did not raise this issue in

the district court or develop this argument on appeal, we do not

address it. See Brown v. Silvern, 141 P.3d 871, 874 (Colo. App.

2005) (“[A]rguments never presented to, considered by, or ruled

upon by a trial court may not be raised for the first time on

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appeal.”); In re Estate of Chavez, 2022 COA 89M, ¶ 26 (“We don’t

consider undeveloped and unsupported arguments.” (quoting

Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34,

¶ 41 n.12)).

B. Timeliness

¶ 13 Next, Coney argues that the lenders’ motion for appellate

attorney fees was untimely because it was filed “after [the] mandate

[in Coney I] was issue[d].” However, according to C.A.R. 41(b)(3),

“any itemized and verified bill of costs . . . must be filed within 14

days after entry of the appellate mandate.” Indeed, the district

court would have been without jurisdiction to consider a motion

filed before the appellate mandate issued. See People v. Jones,

631 P.2d 1132, 1133 (Colo. 1981) (“It is a well-established principle

of law that where an appeal has been perfected, the trial court is

divested of jurisdiction to issue any further orders in the case. . . .

It is equally well-settled that the trial court’s jurisdiction is restored

when the appellate court issues its mandate.”). The district court

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thus did not err by finding that the lenders’ motion, filed one day

after the Coney I mandate issued, was timely.1

C. Motion to Reopen

¶ 14 Finally, Coney argues that the district court erred by finding

that she did not establish good cause to reopen the hearing. We are

not persuaded.

1. Standard of Review

¶ 15 The district court has the “discretion to decide whether

reopening the evidence is appropriate and necessary to advance

justice and facilitate the court’s determination on the merits.” In re

Marriage of Medeiros, 2023 COA 42M, ¶ 22. “A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair, or based on a misapprehension or misapplication of the

law.” Far Horizons Farm, LLC v. Flying Dutchman Condo. Ass’n,

2023 COA 99, ¶ 17.

1 To the extent Coney argues that the Coney I mandate issued or

was supposed to issue on April 21, 2023, fifteen days after the
remand order, she is mistaken. The mandate was properly issued
on May 30, 2023. See C.A.R. 41(b)(1) (Absent exceptions not
relevant here, “the court of appeals mandate will issue no earlier
than 42 days after entry of the judgment.”).

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2. Law and Discussion

¶ 16 In deciding whether to reopen the evidence, courts should

consider factors including, as relevant here, (1) “the extent to which

the motion is presented in good faith to facilitate the court’s

decision on the merits of the case and not for purposes of delay,

harassment, or gamesmanship”; and (2) “what evidence the party

seeks to present and its relevance to the pending issues.” Medeiros,

¶ 22.

¶ 17 Here, the court found, with record support, that Coney’s

motion to reopen was not presented in good faith. Coney’s account

of her absence at the hearing changed from a traffic delay to a

medical emergency, yet she never provided evidence of or an

explanation for the emergency, despite the lenders’ offer that, if she

would simply “explain and verify when . . . and how the emergency

arose,” they would withdraw their opposition to reopening the

hearing. Coney’s history of scheduling delays in the case further

supports the court’s finding. See Butler v. Farner, 704 P.2d 853,

859 (Colo. 1985) (noting that “a serious question arose about [the

defendant’s] good faith in claiming unavailability” when the “request

for a continuance was not [the] first attempt to postpone trial in this

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case” and that, under these circumstances, the district court

justifiably could conclude that the request “was interposed solely

for delay”).

¶ 18 Further, although Coney’s status report did not indicate (and

the district court did not address) what evidence she sought to

present at the hearing, the record suggests that she sought to

present evidence irrelevant to the pending issues. See City of

Aurora v. Dep’t of Revenue, 2023 COA 17, ¶ 11 (“An appellate court

may . . . affirm on any ground supported by the record.”) (citation

omitted). Although the district court had already ruled that the

only issues to be addressed at the hearing were “the reasonableness

and necessity of the [lenders’] requested fees and costs,” Coney

continued to dispute the timeliness of the lenders’ fee request and

the lenders’ entitlement to appellate fees in her hearing brief and

her reply in support of her motion to reopen the hearing. She did

not, in contrast, raise any issues related to the reasonableness and

necessity of the lenders’ requested appellate fees and costs.

¶ 19 We thus conclude that the district court did not abuse its

discretion by declining to reopen the hearing.

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D. Appellate Attorney Fees

¶ 20 The lenders argue that, because they were properly awarded

attorney fees by the district court under section 38-35-204(1)(c) and

Rule 105.1(a)(3), they are entitled to attorney fees incurred

defending that award on appeal. We agree. See Shyanne

Properties, LLC v. Torp, 210 P.3d 490, 494 (Colo. App. 2009)

(holding that, “[b]ecause defendants were correctly granted attorney

fees by the trial court” under section 38-35-204 and Rule 105.1,

“they are entitled to reasonable attorney fees on appeal”);

Kennedy v. King Soopers Inc., 148 P.3d 385, 390 (Colo. App. 2006)

(“When a party is awarded attorney fees for a prior stage of the

proceedings, it may recover reasonable attorney fees and costs for

successfully defending the appeal.”). Therefore, on remand, we

direct the district court to determine and award reasonable attorney

fees the lenders incurred in this appeal.

III. Disposition

¶ 21 The orders are affirmed, and the case is remanded to the

district court to determine the lenders’ reasonable and necessary

attorney fees incurred on appeal.

JUDGE HARRIS and JUDGE KUHN concur.

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