When he was a young, aspiring journalist, Dennis Obduskey would have loved to sit in the U.S. Supreme Court, listening as justices challenged lawyers with tough questions about the meaning of the Constitution or an act of Congress or some other essential legal issue.
Career choices ultimately took the 63-year-old Pueblo man away from journalism, but he will be in the Supreme Court chamber on Jan. 7 when justices take their seats to hear an important mortgage case that bears his name — Obduskey v. McCarthy & Holthus LLP — and High Court's decision will have repercussions that will impact hundreds of thousands of homeowners in default.
"If I win, if we win, then at least the banks and the law firms they use will have to start following some rules in these nonjudicial foreclosures," Obduskey said. "It's been 10 long years getting here."
That's the big picture.
On a more personal level, Obduskey wants the High Court to send his 2015 federal lawsuit against Wells Fargo Bank and its law firm back to the district court with a rule that says banks, lenders and law firms are, in fact, debt collectors when they foreclose on a home and must follow all the rules and disclosure spelled out in the 1978 federal Fair Debt Collection Practices Act.
That might seem obvious, but it's not. It's a question that has split the opinions of five federal courts of appeal.
Last January, the 10th Circuit Court of Appeals ruled against Obduskey after agreeing that he'd followed many of the steps in the federal law to try and get essential information from Wells Fargo Bank about its multiple attempts to foreclose on his home in Bailey.
Essentially, the 10th Circuit said the federal debt collection law doesn't apply to repossessing property — only money debts.
"I nearly threw up in my mouth," Obduskey snorted.
It's such an important question that only days after losing that appeal, Obduskey was contacted by two national law firms and the law schools of three major universities — Stanford, Georgetown and Virginia — all willing to represent him in an appeal to the Supreme Court.
They saw the case was just the tip of a much-bigger iceberg affecting thousands and thousands of foreclosures in states, like Colorado, that don't require them to be carried out in the court system.
Obduskey chose a Dallas attorney, Daniel Geyser. His firm regularly argues before the High Court.
"The confusion is extraordinary and entrenched," is how Obduskey's appeal to the Supreme Court reads. "This case presents an important and recurring question of statutory construction that has squarely divided the lower courts."
In 2016 alone, more than 200,000 homes were foreclosed through "nonjudicial" foreclosures, it notes. That means a bank or lender was able to simply initiate foreclosure on a homeowner with as little as an email. The idea is those foreclosures don't clog up the courts in the 29 states that allow "nonjudicial" foreclosures but Obduskey would argue that many homeowners have been mauled in the process and lose homes they might otherwise have been able to keep.
There are billions of dollars at stake here, which is why an array of banking interests are opposing Obduskey's claim, and even President Donald Trump's administration has weighed in against him. The U.S. Solicitor General's office will be given a few minutes of time on Jan. 7 to argue against applying the debt-collection regulations to foreclosures.
"I wasn't expecting this kind of fame," Obduskey laughed last week, having moved back into his family's longtime home on Pueblo's South Side. He's filed for bankruptcy and has spent most of his retirement savings fighting his case. Of course, he hopes to recover that money and clear rights to the house in Bailey.
On Obduskey's side are nine members of Congress who signed an amicus brief — including Sen. Elizabeth Warren, D-Mass., and Rep. Maxine Waters, D-Calif. — as well as supporting briefs from the National Consumer Law Center and the NAACP.
Obduskey grew up in Pueblo, learned to love journalism at South High School, went to the University of Colorado to get his journalism degree and then worked for newspapers for a time. But he also showed a flair for business and ultimately became a corporate travel manager and was successful enough to buy his $330,000 mountain home in Bailey in 1998.
But when the economy tanked in 2007, so did Obduskey's personal economy. He refinanced his house, but when he ran into payment problems in 2008, he learned Wells Fargo — not his original lender — was now "servicing" his loan.
The bank offered him a restructuring plan. He accepted and started making adjusted payments. But the bank also began foreclosing on him, a practice called "dual tracking."
"At the beginning, I thought they were actually trying to help me," Obduskey said.
Eventually, Wells Fargo gave the job of foreclosing to the McCarthy & Holthus firm.
Here's where the federal Fair Debt Collection Practices Act comes in. It expressly prevents "debt collectors" from being abusive and harassing. Among the many rights it grants debtors is the right to have their debt described in specifics, and to whom it is owed. If details and specifics aren't provided, the debt collection is blocked.
Obduskey filed many of those requests for specifics over the years and claims Wells Fargo was a moving target.
Pressed for information on just how much Obduskey owed and to whom, he says the bank would defer specifics, saying it was only "servicing" the loan for others.
"But in bankruptcy court, Wells Fargo says it's the only creditor to be paid," Obduskey counters.
Even the 10th Circuit acknowledged Obduskey had followed steps described in the debt collection act to get information about his situation. That court simply ruled the debt collection act doesn't apply to repossessing property. Three other federal appeals courts, as well as the Colorado Supreme Court, have disagreed. Which explains why the U.S. Supreme Court decided to hear the case.
Here's an interesting twist: 10th Circuit Justice Neil Gorsuch recused himself from Obduskey's case in 2017, saying he had friends and colleagues arguing the case.
"Not on my side, he didn't," Obduskey laughed. Gorsuch is now a Supreme Court justice and didn't recuse himself when the court voted to grant certiorari and hear the case.
For his part, Obduskey isn't just an anonymous property owner who has been pulled into the national spotlight by circumstances. An active Democrat, he's made a point of getting into some inner circles over the years.
Obduskey currently is the chairman of the Colorado Democratic Party's platform committee and he was on the national committee in 2016.
He's bent the ear of senators and congressmen for years about the predatory foreclosure practices of banks and he's got more than a few allies in his cause.
National Democratic strategist Donna Brazile complimented him in her recent book about the 2016 election, crediting him for his persistence in both his politics and his legal battle. He was pleased she wrote "I liked people like Dennis Obduskey — disruptors working for good."
But compliments aside, what if Obduskey loses? He's already in bankruptcy court.
"If I lose, then we'd need a legislative fix from Congress so that, in the future, people would be protected," he said.