John Davis v. Deutsche Bank National Trust Co., et al.

The Supreme Court held in Fuentes v. Shevin, 407 U.S. 67 (1982), that statutes allowing recovery provisions after a temporary, non-final deprivation of non-essential personal property, were nonetheless "deprivations" in terms of the 14th Amendment, and that before a state takes a person’s property, a fair hearing must be held. Theoretically, the homeowner may dispute the creditor’s entitlement to foreclose as holder in due course under Colorado's Rule 120(c). However, Rule 120(c) was effectively disabled by conclusive presumptions embedded in 2006 legislation drafted by two creditor attorneys. Mortgage trusts can now acquire promissory notes after the Trust's closing date without proof they paid value, or proof that they are the real party in interest and without rebuttal. A judge issues a non-final Order Authorizing Sale in Colorado's nonjudicial foreclosure limited to reasonable probability of a default and whether the homeowner is subject to the Service Members’ Civil Relief Act and compels a public trustee to auction the property with a confirmation deed followed by an eviction prior to a fair hearing. The questions presented are: 1. Whether foreclosure and eviction of homeowners, by virtue of statutory conclusive presumptions that allow courts to deem a creditor's ownership without proof or a homeowner's ability to dispute an alleged creditor's standing, and property to be taken in a limited summary judgment proceeding based on reasonable probability of default, deprive homeowners of due process.