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Case 1:12-cv-00190-PAB-KLM Document 37 Filed 05/09/13 USDC Colorado Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 12-cv-00190-PAB-KLM

JOHN M. MBAKU,
LUVIBIDILA JOLIE LUMUENEMO,

Plaintiffs,

v.

BANK OF AMERICA, NATIONAL ASSOCIATION,
as successor by merger to BAC Home Loans Servicing, LP
f/k/a Countrywide Home Loans Servicing LP,

Defendant.

_____________________________________________________________________

ORDER CERTIFYING MATTER TO THE COLORADO ATTORNEY GENERAL

_____________________________________________________________________

In the Court’s February 1, 2013 Order [Docket No. 26], the Court declined to

dismiss the claim advanced by plaintiffs John M. Mbaku and Luvibidila Jolie

Lumuenemo that Colorado Rule of Civil Procedure 120 violates the due process clause

of the Fourteenth Amendment. Docket No. 26 at 18-19; see also Docket No. 1 at 2-3,

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¶¶ 4-6.

Section 2403(b) of Title 28 of the United States Code provides that:

In any action, suit, or proceeding in a court of the United States to which a
State or any agency, officer, or employee thereof is not a party, wherein the
constitutionality of any statute of that State affecting the public interest is

1

This claim is not enumerated as a cause of action in the complaint. Rather, the

complaint’s introduction states in part: “plaintiffs contend that [Rule 120] violates the
due process clause of the U.S. Constitution by improperly shifting the burden from the
bank to the plaintiffs.” Docket No. 1 at 2, ¶ 4. In light of plaintiffs’ pro se status, the
Court construed the complaint liberally and found the language in the introduction
sufficient to assert a constitutional claim. See Haines v. Kerner, 404 U.S. 519, 520
(1972).

Case 1:12-cv-00190-PAB-KLM Document 37 Filed 05/09/13 USDC Colorado Page 2 of 2

drawn in question, the court shall certify such fact to the attorney general of
the State, and shall permit the State to intervene for presentation of
evidence, . . . and for argument on the question of constitutionality.

The local rules of the District of Colorado explicitly incorporate this provision, requiring

that “[o]n receipt of a notice of unconstitutionality, the court shall comply with the

certification provisions of 28 U.S.C. § 2403.” D.C.Colo.LCivR 24.1C.

Rule 120 of the Colorado Rules of Civil Procedure sets forth a procedure by

which a party may initiate foreclosure proceedings. Colo. R. Civ. P. 120. Given that

Rule 120 involves adjudication of property rights, it affects “the public interest” and

plaintiffs’ challenge has “drawn in question” its constitutionality. See 28 U.S.C.

§ 2403(b). Accordingly, it is

ORDERED that plaintiffs’ challenge to the constitutionality of Rule 120 of the

Colorado Rules of Civil Procedure is certified to the Colorado Attorney General. It is

further

ORDERED that the Clerk of this Court shall forward a copy of this Order, the

complaint [Docket No. 1], and the February 1, 2013 Order [Docket No. 26], certified

under seal, to the Colorado Attorney General.

DATED May 9, 2013.

BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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