Background
Linn Jensen, proceeding pro se, appealed a district court order affirming a bankruptcy court’s decision permitting Bank of New York Mellon’s proof of claim concerning real property she owned and overruling her statute-of-limitations objections. The property had belonged to Mark and Sonya Ashmore, who mortgaged it in 2004. The Bank came to hold the note secured by a deed of trust; the note required monthly payments through 2035. The Ashmores were in default by June 2010.
The Bank sent a notice of intent to accelerate and filed a Notice of Election and Demand for Sale, or NED, with the Boulder County Public Trustee in 2011, but withdrew it without completing a sale. It filed a second NED in January 2013. The property was auctioned to Resurgent Capital Services, LP, which paid Mr. Ashmore $2,000 to move out but then set aside the sale and reinstated the note and deed of trust. The Bank withdrew the second NED, and filed and withdrew a third NED in 2015.
The Ashmores quitclaimed their interests to Jensen in 2017. In 2019, the Bank filed a fourth NED and obtained a state-court order authorizing a foreclosure sale. Before the sale was completed, Jensen filed for Chapter 13 bankruptcy. She objected to the Bank’s proof of claim in an adversary proceeding, arguing that the limitations period began when the first NED was filed and expired six years later. After a trial, the bankruptcy court found that withdrawal of the 2011, 2013, and 2015 NEDs abandoned acceleration and restored the note’s original maturity date for accrual purposes. The district court affirmed.
The Court’s Holding
The Tenth Circuit affirmed. Exercising jurisdiction under 28 U.S.C. § 1291, it independently reviewed the bankruptcy court’s decision without deference to the district court, reviewing factual findings for clear error and legal conclusions de novo. It applied Colorado law because the property was located in Colorado and the deed of trust called for application of federal law and the law of the jurisdiction where the property was located. Jensen’s request to apply New York law failed because she supplied no reason why New York law controlled or why the Colorado Supreme Court would prefer New York common law to the Colorado appellate decisions discussed by the panel.
Colorado imposes a six-year limitations period for foreclosure-related enforcement actions. Acceleration of an installment note ordinarily makes the entire remaining balance immediately due and triggers limitations for installments not previously due. But Colorado intermediate appellate decisions, including Bank of New York Mellon v. Peterson and Igou v. Bank of America, N.A., recognize that a lender may abandon acceleration through a clear affirmative act, restoring the original maturity date for limitations-accrual purposes. Because the Colorado Supreme Court had not decided the precise issue, the panel predicted that it would follow those decisions, absent persuasive data indicating otherwise.
The court held that the Bank manifested its intent to abandon acceleration by withdrawing the NEDs in 2011, 2013, and 2015. Those withdrawals restored the note’s original maturity date, so the limitations period had not expired when the Bank foreclosed on Jensen. The bankruptcy court therefore did not err in overruling her limitations objection. The court also deemed waived Jensen’s passing, undeveloped assertion that a “Covid Era Zoom Trial” undermined the bankruptcy proceedings: she did not explain how the format caused adverse findings or made the trial unfair or mismanaged. That waiver ruling addressed the inadequacy of her appellate briefing, not a categorical rule about remote trials.
Key Takeaways
- Withdrawing the 2011, 2013, and 2015 NEDs constituted abandonment of acceleration under the Colorado authorities applied by the panel.
- Abandonment restored the note’s original maturity date for limitations purposes, defeating Jensen’s claim that the period expired six years after the first NED.
- The court reviewed bankruptcy legal conclusions de novo and factual findings for clear error, while giving no deference to the district court’s appellate ruling.
- Jensen’s conclusory Zoom-trial complaint was waived because it was not developed in her opening brief.
Why It Matters
The decision illustrates how repeated, withdrawn foreclosure demands can affect limitations accrual when a lender seeks to enforce an installment note in bankruptcy. It also underscores the importance of addressing choice of law and fully developing procedural challenges on appeal. The order and judgment is nonbinding precedent except under law of the case, res judicata, and collateral estoppel, though it may be cited for its persuasive value under the applicable federal and Tenth Circuit rules.