Gorsuch, Ltd, B.C. v Wells Fargo National Bank Association

Gorsuch Cooper, a purported assignee of Gorsuch, Ltd, appeals its dismissal as a party and the denial of its motion to amend its complaint filed after the scheduling order deadline. The panel affirmed. As to dismissal, the panel held that the plain language of the relevant credit agreement explicitly bared third party claims and further barred assignment without Wells Fargo’s approval. As Cooper was a guarantor of the line of credit and not a party to the credit agreement, Wells Fargo did not give its approval to any assignment and Colorado law bars waiver or approval by implication, Cooper had no basis to bring suit and dismissal was proper. As to the motion to amend, the panel adopted the good cause standard for motions to amend complaints after the scheduling order deadline. Applying here, it held the claims which Cooper sought to add were not subject to the economic loss rule and thus could have been pled in the original compliant and Cooper provided no grounds to excuse the nearly two year wait to file the motion. Thus, the denial was appropriate.

United States v Titley

Titley challenged his career criminal sentence arguing that 18 USC 924(e)(1) violated his 5th Amendment equal protection rights by having some state convictions trigger the longer sentences while having other convictions not trigger those sentences. The panel affirmed. Applying rational basis review, it held that incapacitating repeat offenders has been recognized by the United States Supreme Court as a legitimate interest and 924(e)(1)’s inclusion of only those drug offenses carrying sentences of 10 years or more  rationally contributes to that purpose as a ten year sentence demonstrates the serious nature of the crime and limits the population of convicts subject to the higher sentence to those previously guiltyof significant trafficking offenses.

Niemi v Lasshoffer

Niemi obtained a default judgment against Lasshoffer and several corporate entities in his fraud and state RICO case. The panel affirmed in part and reversed in part. It held that appellate jurisdiction existed because the district court dismissed all counts with prejudice except the two subject to the default judgment, the fugitive forfeiture rule did not apply as the underlying order resulting in a contempt of court judgment had been vacated earlier in the case and no criminal process in the 10th Circuit was pending against Lasshoffer and there is no need to pay a bond in these circumstances. It held that the district court had subject matter jurisdiction as the corporate parties to the loan agreement assigned their claims to Niemi and the non-assignment provision in the loan agreement were fraudulently obtained. It held that there was specific personal over Lasshoffer given his knowledge that his fraud was directed at Colorado and would have effects in Colorado and personal jurisdiction existed over two corporate entities as one prepared the fraudulent documents and the other was a beneficiary of the loan agreement. A third entity did not exist at the time of the fraud and thus there was no jurisdiction over it. The panel held that Lasshoffer lied about litigating past loans in New York in order to get a forum selection clause in New York as he never loaned any money to anyone and thus venue was proper in Colorado. The panel finally held the district court did not clearly error in calculating damages as Niemi provided documentary proof of the moneys actually spent and received. The case was remanded to vacate the contempt order.

Security Service FCU v First American Mortgage Funding LLC

Security purchased the assets of a liquidated credit union then sued First American alleging negligence and other claims. The district court adopted First American’s argument that Security did not purchase the claims asserted and dismissed. The panel reversed. Adopting the reasoning of the 6th Circuit in a similar case, the panel held that because First American was neither a party nor a beneficiary of the contract between Security and the liquidating agency, it lacked prudential standing to claim the purchase agreement did not transfer the claims when both Security and the agency agree the claim was sin fact transferred.