December 12, 2017

Archives for June 14, 2011

Wear Purple on Wednesday for World Elder Abuse Awareness Day

It’s a sad fact that many elders fall victim to frauds, scams, and other forms of elder abuse. Every year, thousands of people are victimized by loved ones, people of trust, and complete strangers. In Colorado alone, more than 6,000 incidents of adult abuse, exploitation, or neglect are reported each year, with countless more going unreported.

This Wednesday, June 15, help support the elders in our community by raising awareness at the World Elder Abuse Awareness Day Special Event at the Greek Amphitheater in Civic Center Park in downtown Denver. From 10 am to noon, join seniors, their caretakers, and those wanting to learn more about the issues facing our seniors in this special event, featuring:

  • Denver leaders committed to stopping elder abuse
  • Service providers offering resource information
  • Attendees helping to tie giant purple ribbons and awareness pins around trees in Civic Center Park
  • Planting of a dedication tree to remember victims of elder abuse

Free parking will be available at the McNichols Building parking lot at the corner of Bannock and Colfax. Click here for more information.

Wear purple to show your support and come help bring awareness to this important issue!

And don’t forget, you can continue your commitment to seniors next month at Senior Law Day. The popular annual seminar provided by CBA-CLE offers programs specifically for elders in the Colorado community. This one-day event presents a comprehensive view of the issues facing our growing senior citizen population, educating them, their caretakers, and other attendees on a vast range of topics, including elder abuse, assisted living and nursing home issues, fraud prevention, end of life issues, estate planning, elder independence, health care, social security, non-traditional relationships, and even pets!

Join us for Senior Law Day in Denver on Saturday, July 23, from 8 am to 1 pm. Registration and more information about the event can be found here.

Not in Denver? Don’t worry. You can find other Senior Law Day events across the front range this summer. Click here for more information.

Tenth Circuit Posts Temporary Staff Attorney Positions

On Friday, the Tenth Circuit Court of Appeals posted a temporary Staff Attorney job opening. According to the listing, more than one attorney applicant may be hired by the Court.

The Office of Staff Counsel for the U.S. Tenth Circuit Court of Appeals is seeking highly qualified graduate of accredited law school to serve as temporary staff attorney to the full court. The office currently consists of twenty attorneys and four support staff. The duration of this temporary position will not exceed three months and is dependent upon funding.

The Office of Staff Counsel’s principal responsibility is to recommend to the court the disposition of substantive motions, appeals decided without oral argument, original proceedings, and emergency matters. Staff attorneys confer with the judges, conduct legal research, prepare legal memoranda, and draft proposed opinions. The office also drafts and maintains substantive legal reference works for the benefit of the judges and their clerks. The court is looking for individuals who are proficient at legal research, can analyze complex legal issues thoroughly and efficiently, express themselves clearly, both orally and in writing, and have strong editing skills.

According to the Tenth Circuit Blog, the Court is seeking applicants who can begin work by July 3, with their primary responsibilities being updates of the Deskbook and Immigration Manual. The position is expected to last two to three months.

Information about the how to apply for the job opportunity can be found at the Tenth Circuit website.

Department of Health Care Policy and Financing Adopts New Rule Regarding Colorado All-Payer Claims Database

The Department of Health Care Policy and Financing has adopted a new rule to establish the basis for submitting medical and pharmacy claims and eligibility and provider data to the Colorado All-Payer Claims Database. The purpose of the rule is to facilitate the reporting of health care and health quality data. Reporting to the database allows public and private health care purchasers, consumers, and data analysts to identify and compare health plans, insurers, care facilities, and care providers regarding the provision of safe, cost effective, and high quality health care services in the state.

The new rule includes term definitions, reporting requirements, and penalties for noncompliance.

A hearing on the new rule will be held on Tuesday, July 12, 2011 at the Capitol Center, 225 E. 16th Ave., 6th Floor, Denver, Colorado 80203, beginning at 8:30 am.

Full text of the proposed changes and new rule can be found here. Further information about rule and hearing can be found here.

Bankruptcy Court Issues Warning Regarding Appearances via Telephone

The United States Bankruptcy Court for the District of Colorado has posted requirements to be observed when participating in hearings via telephone. The Court warns that appearing telephonically is a privilege that will be revoked if the Court cannot obtain an accurate record. In order to make proper electronic recordings of its proceedings when parties appear telephonically, the Court requires the following from participants:

  • eliminate all excessive noise (including, but not limited to: typing, background conversations, barking dogs, traffic, wind, music, etc.);
  • do not use cellular phones as they are more susceptible to background noise and have issues with clarity; use a land line if at all possible; and
  • do not use speakerphones as they cause incredible and annoying feedback in the courtroom.

Participants who have excessive background noise, lack clarity, or who are causing feedback into the courtroom risk being disconnected and excluded from the hearing.

Colorado Court of Appeals: Spurious Liens and Documents Statute Does Not Require Hearing or Permit Attorney Fees Award After Challenged Lien or Document Has Been Released

The Colorado Court of Appeals issued its opinion in Sifton v. Stewart Title Guaranty Co. on June 9, 2011.

Attorney Fees—Spurious Liens and Documents—CRS §§ 38-35-204 and 13-17-102.

The issue in this case was whether a trial court must hold a hearing to resolve a respondent’s liability for attorney fees under CRS §38-35-204 when the respondent has released a contested lien or document before the show cause hearing. Here, the trial court dismissed plaintiff’s action and declined to award attorney fees because respondent Stewart Title Guaranty Company (Stewart) had voluntarily released its contested deeds of trust before the show cause hearing. The Court of Appeals agreed that plaintiff was not entitled to a hearing on attorney fees under the statute. However, the Court remanded for a determination of whether plaintiff was entitled to attorney fees under CRS §13-17-102.

Plaintiff filed this action to have two deeds of trust that encumbered her property, on which she asserted her signature had been forged, declared spurious, and released. The deeds of trust originally were for the benefit of two of Stewart’s insureds and had been assigned to Stewart. The proceedings lasted almost a year. The trial management order stated that the signatures were forged. Shortly before the show cause hearing date, Stewart deposed plaintiff, released both deeds of trust, and moved to vacate the hearing. Plaintiff argued that the court still should determine whether the deeds had been spurious and, if so, award her attorney fees. Plaintiff also argued she was entitled to attorney fees under § 13-17-102 because Stewart had “unnecessarily expanded the proceedings” by not promptly investigating the alleged forgeries. The trial court dismissed the case without addressing plaintiff’s latter argument.

The Court of Appeals affirmed the trial court’s determination that the spurious liens and documents statute does not require a hearing or permit an attorney fees award after the challenged lien or document has been released. Because the trial court did not address attorney fees under CRS §13-17-102, the Court remanded for consideration of this issue.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 9, 2011, can be found here.

Colorado Court of Appeals: Material Misrepresentation in Request to Public Trustee Is Sufficient to Demonstrate Fraud

The Colorado Court of Appeals issued its opinion in 17 West Mill St., LLC v. Smith on June 9, 2011.

Invalid Release of Deed of Trust—CRS § 38-39-102(8).

Plaintiff 17 West Mill Street, LLC (17 West Mill) appealed from the trial court’s judgment entered after a bench trial, where most of its claims were rejected and only nominal damages were awarded against defendants Floyd Smith, Dennis Shaw, First Horizon Home Loan Corporation (First Horizon), and the Public Trustee of La Plata County (Public Trustee). The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Jonathan Robbins is the sole member and manager of 17 West Mill, which develops and holds commercial real estate as investment property. In 2004, Robbins began lending money to James Kreutzer, a local real estate developer. Robbins made a series of loans to Kreutzer over several years, some of which were made through 17 West Mill.

In March 2006, 17 West Mill made a loan to one of Kreutzer’s companies, Animas Investments, LLC (Animas), using a $75,000 promissory note secured by a deed of trust on real property described as “Parcel F, Ptarmigan Ridge.” Kreutzer’s attorney (Smith) prepared the note and deed of trust, which was recorded on March 26, 2006.

One month later, Kreutzer asked 17 West Mill to do a “deed swap,” substituting a different deed of trust to real property for the original deed of trust securing the note. Robbins, on behalf of 17 West Mill, authorized the substitution and recording of a new deed of trust on release of the original deed of trust. Smith prepared a pre-printed form requesting release on the March 2006 deed of trust, signed it as “Floyd L. Smith as attorney for 17 West Mill,” and presented it to the Public Trustee. On release of the deed of trust, a deed of trust on “Phase 1C of Lightner Creek Village” was executed and recorded.

At least three more “deed swaps” took place, all similar to the first one. Ultimately, 17 West Mill held a deed of trust on a condominium property identified as “Unit 42 of Lightner Creek Village.”

In January 2007, Kreutzer, individually and on behalf of another of his companies, Wildcat Properties, LLC, signed a $134,000 promissory note to Robbins, doing business as 17 West Mill, that was secured by the deed of trust on Unit 42. Robbins handwrote on the note, “this replaces the $75,000 note for ’06 and the deed of trust still applies.” The $134,000 note was never recorded and the $75,000 note was never marked “paid” or otherwise cancelled.

Todd Demko, another local real estate developer who shared an office with Robbins, also made loans to Kreutzer on similar terms. Smith believed Robbins and Demko were business partners.

In May 2007, Kreutzer contracted to sell some real estate at Lightner Creek, including Unit 42, to Shaw. This was part of a complex refinancing deal worth $14 million and involved several lenders and numerous properties. Robbins was out of the country, so Smith, thinking Demko could authorize the release of the deed of trust on Unit 42 on behalf of Robbins, drafted a letter for Demko to sign as “Johann Robbins by Todd Demko,” which Demko signed. Smith then filed a request for release of the deed of trust signed by him as attorney for lender, and the release was executed by the Public Trustee.

Before its release from the 17 West Mill deed of trust, Unit 42 was encumbered by a previous deed of trust, the face amount of which was greater than the value of Unit 42. At the closing with Shaw, that deed of trust was released for $293,317.42 as part of the refinancing deal. Shaw granted a new deed of trust on Unit 42 to First Horizon.

A year later, Robbins learned of the release of the deed of trust on Unit 42 and that no substitute collateral had been recorded. Smith explained that a deed of trust on substitute collateral had been prepared but that its execution was “overlooked.” A deed of trust was then recorded in favor of 17 West Mill on a condominium property, “Unit 50 of Lightner Creek Village.”

17 West Mill sued Smith for negligence, civil conspiracy, and breach of fiduciary duty, as well as for other claims against Shaw, Kreutzer, the Public Trustee, First Horizon, and Animas. The complaint requested “an equitable lien on Unit 42, a declaratory judgment that the release of the Unit 42 Deed of Trust was void and that the Unit 42 Deed of Trust is in first position and senior to all other liens.” Following a bench trial, the court concluded that the release of the deed of trust had not been obtained fraudulently. The court awarded nominal damages for Smith’s negligence.

The Court of Appeals reviewed the trial court’s finding that the release of the deed of trust was not void as the result of a fraudulent request under CRS § 38-39-102(8), because the elements of actual fraud had not been established. The statute states that “[i]f the written request to release the lien of any deed of trust is a fraudulent request, the release by the public trustee based upon such request shall be void.” The Court held, contrary to the trial court, that “fraudulent” in this context does not require proof of the elements of actual fraud but merely that a material misrepresentation as to the statutory requirements in the request to the public trustee has occurred.

Smith made two material misrepresentations: (1) he signed as “attorney for lender”; and (2) he represented that the purpose of the deed of trust had been satisfied. Therefore, the trial court should have found that the release was void and entered a declaratory judgment restoring the priority of the Unit 42 deed of trust. Accordingly, this portion of the decision was reversed and the case was remanded for further proceedings as to 17 West Mill’s claims for a declaratory judgment, reinstatement of the Unit 42 Deed of Trust, and judicial foreclosure. The remainder of the judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 9, 2011, can be found here.

Tenth Circuit: Prosecutorial Questions and Testimony Did Not Improperly Invade the Grand Jury’s Deliberative Process

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hillman on Monday, June 13, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner was convicted of several crimes arising out of a scheme to steal a large amount of money from the insurance company for which he worked; his girlfriend used her position in the company’s annuities department to transfers funds to him from inactive annuities, where the company might have owed money but could not locate the annuitant. Petitioner contends that 1) the district court should have dismissed the indictment based on prejudicial statements made by the prosecutor and a witness to the grand jury, 2) the prosecutor violated Petitioner’s due process rights when questioning a witness in a pre-indictment interview, 3) trial testimony by a government witness violated Petitioner’s right to a fair trial, and 4) the district court should not have given a deliberate ignorance jury instruction.

The Court disagreed with all of Petitioner’s contentions, finding that none of them fundamentally affected the fairness of the trial or were otherwise an abuse of discretion by the district court. First, the questions from the prosecuting Assistant United States Attorney and the responses from the IRS Agent witness were appropriate and did not instruct the grand jury that Petitioner violated the law, or invade the grand jury’s deliberative process. Second, there was nothing improper about the AUSA’s witness interview; Petitioner’s rights were not violated and there was no plain error. Third, the IRS Agent’s testimony that Petitioner lied during their interviews was properly permitted as it was not the Agent’s opinion, but rather his factual repetition of Petitioner’s own conflicting answers. Lastly, Petitioner’s challenge to the jury instruction fails to consider the fact that sufficient evidence supported the actual knowledge instruction, and a rational jury could have found that he knowingly participated in the scheme, even without being deliberately ignorant.

Tenth Circuit: Unpublished Opinions, 6/13/11

On Monday, June 13, 2011, the Tenth Circuit Court of Appeals issued one published opinion and nine unpublished opinions.

Unpublished

Williams v. Watts

Knox v. Workman

Kelly v. Wilson

Fuller v. Robinson

United States v. Thrasher

United States v. Carnagie

United States v. Metcalf

Zaring v. Davis

Holly v. Gotcher

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.