November 18, 2017

Archives for July 2012

Colorado State Judicial Branch Revises Several Forms in Many Categories

This is Part 4 of 4 posts about new forms from State Judicial. Click here for Part 1, here for Part 2, and here for Part 3.

The Colorado State Judicial Branch issued several revised forms in July across multiple practice areas. These include instructions for county court civil and small claims, instructions for filing county court criminal appeals, instructions and a form for appealing property tax determinations, eviction/FED forms, garnishment forms, and more. Practitioners should begin using the new forms immediately.

Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word and Excel templates. Download the new forms from State Judicial’s individual forms pages, or below.

Appeals

  • JDF 126 – “Instructions to File a Small Claims or County Court Civil Appeal” (Revised 7/12)
  • JDF 221 – “Instructions for Filing a County Court Criminal Appeal (For Defendant/Appellant Only)” (Revised 7/12)
  • JDF 610 – “Complaint for Judicial Review Pursuant to 24-4-106 C.R.S. and Request for Stay and Designation of Record” (Revised 7/12)
  • JDF 605 – “Instructions for Appealing Property Tax Assessment” (Revised 7/12)
  • JDF 606 – “Petition to Appeal Property Tax Assessment” (Revised 7/12)

County Civil

  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED)/Evictions” (Revised 7/12)
  • CRCCP 1A – “Summons in Forcible Entry & Unlawful Detainer” (Revised 7/12)
  • JDF 97 – “Notice to Quit” (Revised 7/12)
  • JDF 99 – “Complaint in Forcible Entry and Detainer” (Revised 7/12)
  • JDF 103 – “Writ of Restitution” (Revised 7/12)
  • JDF 140 – “Instructions for Mobile Home FED” (Revised 7/12)

County Civil / District Civil

  • JDF 82 – “Instructions on How to Collect a Judgment and Completing a Writ of Garnishment” (Revised 7/12)
  • Form 26 – “Writ of Continuing Garnishment” (Revised 7/12)
  • Form 29 – “Writ of Garnishment with Notice of Exemption and Pending Levy” (Revised 7/12)
  • Form 31 – “Writ of Garnishment for Support” (Revised 7/12)
  • Form 32 – “Writ of Garnishment – Judgment Debtor Other Than Natural Person” (Revised 7/12)
  • Form 33 – “Writ of Garnishment in Aid of Attachment” (Revised 7/12)
  • Form 34 – “Notice of Levy” (Revised 7/12)

Criminal

  • JDF 370 – “Appearance Bond” (Revised 6/12)
  • JDF 371 – “Consent of Surety” (Revised 7/12)
  • JDF 375 – “Surety Request – Show Cause Hearing” (Revised 7/12)

Small Claims

  • JDF 248 – “Small Claims Instructions” (Revised 7/12)
  • JDF 250 – “Notice, Claim, and Summons to Appear for Trial” (Revised 7/12)

For all of State Judicial’s forms, click here.

Colorado Court of Appeals: Week of July 22, 2012 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and thirty-four unpublished opinions for the week of July 22, 2012.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Tenth Circuit: Lane Change on Highway Without Use of Signal Is Justifiable Basis for Stopping Vehicle; Drug Evidence Found in Subsequent Search Is Admissible

The Tenth Circuit Court of Appeals published its opinion in United States v. Burciaga on Wednesday, July 25, 2012.

The Tenth Circuit reversed and remanded the district court’s decision. The government appeals the district court’s determination that an officer’s stop of Respondent’s vehicle was not justified after pulling the vehicle over for failing to use a turn signal. As a result, drug evidence found after a search of the vehicle was excluded from trial. “Where ‘other traffic may be affected,’ § 66-7-325 of the New Mexico Statutes requires a motorist changing traffic lanes to signal ‘continuously during not less than the last one hundred feet traveled by the vehicle’ before the change. The New Mexico Supreme Court has construed § 66-7-325 to require ‘a signal even when there is only a reasonable possibility that other traffic may be affected by the signaling driver’s movement.'”

The Tenth Circuit disagreed with the district court and found that a New Mexico highway patrol officer lawfully stopped Respondent’s vehicle based on a suspected violation of § 66-7-325, where Respondent, “without timely engaging his directional signal, changed from the left to the right lane on the interstate after passing the officer’s patrol car.” While the district court found that the stop violated Respondent’s Fourth Amendment right to be free from unreasonable seizures because the officer’s testimony failed to establish that traffic “could have been affected” by Respondent’s lane change absent facts not in evidence, the Court held that “§ 66-7-325 as applied to the facts provided the officer with an objectively justifiable basis for stopping [Respondent]’s vehicle.”

Tenth Circuit: Unpublished Opinions, 7/25/12

On Wednesday, July 25, 2012, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Peterson v. Lampert

American Contractors Indemnity Co. v. Boeding

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

Tenth Circuit: Unpublished Opinions, 7/24/12

On Tuesday, July 24, 2012, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Mellott v. MSN Communications

United States v. Gamez-Tapia

Corredor v. Holder

United States v. Hatch

United States v. Izenberg

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

Civil Access Pilot Project: Making Colorado Courts More Efficient?

Earlier this year, we, as attorneys, were blessed by the Colorado Supreme Court’s decision to completely overhaul the procedure for practicing law in Colorado.  Dubbed the Colorado Civil Access Pilot Project, or CAPP for short, its new procedures apply in (1) “Business Actions” (2) filed between Jan. 1, 2012, and Dec. 31, 2013 (3) in Adams, Arapahoe, Denver, Gilpin, or Jefferson counties.

For what constitutes a “Business Action”, see page 8 of Chief Justice Directive 11-02, available here.  Notable exclusions from CAPP include: actions solely for the payment of rent on real property, CRCP 120 proceedings, actions brought by financial institutions solely for the collection of debt, employment actions other than disputes concerning the breach of a non-compete or theft of trade secrets, construction defect claims, negligence actions for physical injuries, and actions involving a statute or rule that contains distinct timeframes for the proceedings.

I have had the opportunity to represent parties in two CAPP cases this year — one as a plaintiff and one as a defendant. Our CAPP plaintiff case was filed in late March.  I don’t have much to report from this case because it settled shortly thereafter, but I did take notice of how quickly we were required to make our initial disclosures.  Under CAPP, the plaintiff is required to file initial disclosures no later than 21 days after service of the complaint.  This felt like a very quick turnaround.  We definitely had to do a little more work on the front end to meet the deadline.  These initial disclosures consist of:

 [A] statement listing all persons with information related to the claims and a brief description of the information each such individual is believed to possess, whether the information is supportive or harmful.  The statement shall also include a certification that the party has available for inspection and copying all reasonably available documents and things related to the claims, along with a description by category and subject area of the documents and things being disclosed, whether they are supportive or harmful.

Again (it was not a typo two sentences ago), these disclosures must be filed with the court and served on the opposing party or parties.

A few things to note here: First, regarding the scope of the initial disclosure statement, the CAPP authors have emphasized that “all documents” means all documents, whether supportive or harmful.  Based on the wording of C.R.C.P. 26(a)(1), I think lawyers were already under an obligation to produce everything, but the CAPP authors seem to think that many attorneys don’t give over the juicy stuff unless asked.  Second, the scope of discovery changed from “relevant to” to “related to.”  Based on my reading, it appears that “related to” is a broader standard.  Third, this initial disclosure statement is somewhat narrow in that no counterclaims have yet been brought.  So the scope of discovery at that point is only documents “related to” the claims in the complaint.  However, if counterclaims are brought, the plaintiff has to file an additional disclosure statement (discussed more below).  Finally, I took note of how different it is to give documents to a defendant who has not yet filed an answer.

The CAPP case where our firm represents the defendant has been much juicier.  That case was filed in early March and remains ongoing.  I’ve observed a couple CAPP pitfalls in this case.  First, file your initial disclosure statement.  The CAPP deadlines are structured such that one deadline begins only after the previous deadline has been met.  Under the CAPP rules, the answer is not due until 21 days after the plaintiff files the disclosure statement.  Technically, if you don’t file your disclosure statement, the defendant doesn’t have to answer.  Second, the CAPP courts are issuing delay reduction orders shortly after the filing of the complaint.  One of the provisions of the DROs is for the plaintiff to set a case management conference within seven days after the last answer is filed.  Note, this deadline is not in the CAPP rules, so watch out for it.

At this point in the case, if I were to identify the biggest difference between CAPP and the Colorado Rules of Civil Procedure it would be that, if counterclaims are filed, the CAPP pleading/initial disclosure stage can take a long time.  As I said, this case was filed in early March, and the final disclosure statement is not due until mid-to-late June.  Time will tell whether the CAPP rules can justify this lengthy pre-discovery period by significantly reducing the length and burden of discovery.  If not, I don’t think the CAPP rules will make litigating any more efficient than under the CRCP.

Michael Ley is an associate at Brosseau Bartlett Seserman, LLC and concentrates his practice on insurance, commercial, and civil litigation.. He contributes to the CBA’s SOLO in COLO blog, where this post originally appeared on July 23, 2012.

Finalists Selected to Fill Judgeship on Montrose County Court Bench

The Seventh Judicial District Nominating Commission has nominated three candidates for a Montrose County court judgeship created by the resignation of the Honorable Jerry Montgomery on July 3, 2012.

The nominees for the bench are Bennet Morris, Seth Ryan, and Jason Wilson. All nominees are from Montrose and were selected by the commission on July 24.

Under the Colorado Constitution, Governor Hickenlooper has until August 9 to appoint one of the nominees as County Court Judge for Montrose County.

Tenth Circuit: Conviction for Criminally Transporting Alien Affirmed; Need Only Show Alien Was Illegally Present In US, Not Illegal Entry

The Tenth Circuit Court of Appeals published its opinion in United States v. Franco-Lopez on Monday, July 23, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner appeals his conviction on one count of transporting an illegal alien. The statute under which he was convicted “criminalizes the transportation of an alien who ‘has come to, entered, or remains in’ the country illegally.” Petitioner argues that the district court erred in denying his motion for acquittal because the government did not present evidence that the transported alien illegally ‘entered’ the United States. In support, Petitioner relies on the definition of ‘entry’ used in the context of civil immigration law or in illegal reentry cases.” The Court, however, concluded that “the government need only prove that the transported alien was present in the United States in violation of the law.”

Tenth Circuit: Unpublished Opinions, 7/23/12

On Monday, July 23, 2012, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Crawford v. Barnes

United States v. Davis

Mathis v. Jones

United States v. Ramirez-Fragozo

McDonald v. Astrue

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

Senior Law Day: The Village Movement and Your Community

Denver Senior Law Day will be held Saturday, July 28 at the Denver Merchandise Mart. This annual educational seminar presents programs specifically designed for seniors in the Colorado community. This seminar will provide attendees with important and useful information on many issues facing our growing senior citizen population. If you are a senior, an adult child with an aging parent, or a caregiver, this is one day you cannot afford to miss. Every attendee will receive a free copy of the 2012 Senior Law Handbook. Mark your calendar today for this excellent and informative event. Click here for more information.

Neighbors Helping Neighbors

Ready for some refreshing news on the challenges of an aging America?  Look no further than the surging Village Movement. Across the United States, Villages are sprouting up like well-watered tufts of grass, defying an otherwise arid landscape. Within the past two years, this innovative, community-style approach to keeping older adults in their own homes has grown by 80%. According to Village to Village Network, a national advocacy group, 90 Villages are now open and operating, with another 125 in development.

A Village may grow to serve 100 to 400 members or more, typically age 55 and up. Members live in their own homes, which may be located anywhere within the defined membership service area. Most Villages are local nonprofit organizations (IRS 501(c)(3)) with a board of directors who live in the community. The Village Movement was pioneered by Boston’s Beacon Hill Village, founded in 2001.

Village membership offers convenient, one-call access to volunteer services or vendor referrals. Does the member need a ride to the doctor or to the beauty shop? A day out to go shopping with friends? How about a volunteer to fix a leaky faucet, or to climb a ladder and clean out roof gutters?  When a member needs a reliable contractor – for example, a painter, plumber, or lawn service – the Village can suggest vendors from a vetted list.

Social connection is a powerful advantage to Village membership.  Informal get-togethers and educational activities stimulate and strengthen friendships. “Neighbors helping neighbors” is much more than a tagline; nationally, about 60% of Village members serve as volunteers too.  Certainly, this high level of participation is influenced by the can-do will-do spirit of younger members, who are still in their 50s, 60s, or 70s.  However, it also reflects the passion of members in their 80s and 90s to stay active – teaching, mentoring, leading, or whatever they may choose to do.  Community is the heart and soul of a Village.

In brief, Villages can help older adults to deal successfully with three of biggest obstacles to living independently in their own homes.

  1. The Need for Transportation — Driving may eventually become a challenge, so it’s harder to get to the doctor, pharmacy, grocery store, etc.
  2. The Risk of Falling — Injuries due to falls make it necessary for some to leave their homes for assisted living or skilled nursing facilities.
  3. Social Isolation and Loneliness — People need to be around other people, to live in community and maintain a sense of purpose.

A recent study highlights the effectiveness of a Village in helping older adults to live safely at home.  According to One Call Club in Knoxville, Tennessee, 80% of Village members will avoid moving to an assisted living residence or nursing home for at least one year. With nursing home costs running around $200 per day, it doesn’t take a math whiz to see that $600 per year for household membership in a Village is a bargain. (For an individual Village membership, the national average is $460 per year.)

The success of Villages may be attributed to several factors: reduced risk of injury or accident, healthier eating, a brighter emotional outlook, and a renewed sense of purpose. For all these reasons and more, Villages are a promising, cost-effective option for older adults who want to stay in their own homes, in a community of neighbors helping neighbors.

Arnie Snyder is owner of Elder Life Advisors and co-founder of the first two Colorado Villages: Washington Park Cares (now, A Little Help), Denver, and Columbine Community Village, Littleton. He is a member of the National Advisory Committee for Village to Village Network, LLC.

Changes to Colorado Notary Law Effective in August

On August 8, 2012, changes to the notary law become effective. Colorado notaries are responsible for complying with these new standards. Important changes include:

  • JOURNAL REQUIREMENTS – A journal book will be required to contain the type and date of the notarial act, the title or type of document being notarized, the name, address and signature of the person signing, and the name, address, and signature of each witness to the notarization.
  • SEAL STANDARDS– The notary seal standards have changed. Renewing notaries will be required to obtain and use a seal that conforms to new standards.  The new seal standards require:
    • A rectangle rubber ink stamp.
    • The stamp must contain within the outline the notary’s printed legal name, the words ‘Notary Public,’ the words ‘State of Colorado,’ the notary’s 11-digit ID number, and the notary’s commission expiration date.
  • Currently commissioned notaries may continue using seals obtained before August 8, 2012 until renewal of their commission. 

HB 12-1274 outlines the changes to the notary law and can be reviewed in its entirety here.

Contact the Colorado Secretary of State’s office if you have questions or need additional information about the standards.  More information is on their website. Questions can be directed to them at notary@sos.state.co.us or call (303) 894-2200 ext. 9500.

Colorado Court of Appeals: Statute of Limitations Began to Run at Maturity Date of Loans and Therefore Action Was Timely Filed

The Colorado Court of Appeals issued its opinion in Castle Rock Bank v. Team Transit, LLC on July 19, 2012.

Promissory Notes —Statute of Limitations.

Defendant Michael L. Zinna appealed the trial court’s ruling that plaintiff Castle Rock Bank’s (Bank) action was timely filed under the applicable statute of limitations. The judgment was affirmed and the case was remanded with directions.

On December 18, 1996, the Bank loaned Team Transit, LLC, $100,000 (Team Transit loan), pursuant to a promissory note signed by Zinna, president of Team Transit. Team Transit was required to pay the Bank $1,378 per month beginning one month from December 18, 1996, with “the balance of the principal and interest payable 10 years from the date [t]hereof.”

On April 9, 1998, the Bank loaned Kelly A. Spooner $75,000 (Spooner loan), pursuant to a promissory note signed by her. Spooner was to pay the Bank $1,295 per month beginning one month from April 9, 1998, with “the balance of the principal and interest payable 7 years from the date [t]hereof.”

On March 1, 2001, both loans were modified and new promissory notes were executed by Zinna and Spooner, who had married. The new principal on the Team Transit loan was $75,671.39. Zinna and Spooner were added as co-borrowers in their personal capacities and Spooner pledged additional collateral, consisting of a third deed of trust on their family home. The monthly repayment schedule was revised with a final payment on December 18, 2006. The new principal on the Spooner loan was $48,959.15. Zinna was added as a co-borrower in his personal capacity and the payment terms were revised, with a final payment due on April 9, 2005.

Zinna made two installment payments on both loans in May and July of 2001, and then stopped making payments. The Bank received a “pay-down” of $5,000 from the sale of their home, which it applied to the Team Transit loan on August 2, 2002. The Bank received no further payments, Zinna and Spooner divorced, and Spooner filed for bankruptcy.

On June 5, 2009, the Bank filed its complaint in this action, alleging two claims for breach of contract. On the Team Transit loan, the allegation was against Team Transit and Zinna, and on the Spooner loan, the allegation was against Zinna.

A clerk’s default was entered against Team Transit for failing to answer. Zinna answered and asserted the statute of limitations as an affirmative defense.

The Bank filed a motion for summary judgment, arguing it was entitled to judgment as a matter of law against Zinna for the amount due on the two notes. The Bank represented the Team Transit loan went into “default” on September 20, 1997, and the Spooner loan went into default on January 8, 2002, both for failure to make payments.

Zinna responded, alleging there were questions of material fact and attached an affidavit regarding his understanding that the loans had been paid from various sources. The Bank responded that this was correct but that there still were outstanding balances under both loans. The summary judgment motion was denied based on the dispute about material facts, and a one-day bench trial was held. The court orally denied Zinna’s motion for judgment as a matter of law based on the statute of limitations and ultimately held that Zinna owed $69,108.77 plus interest on the Team Transit loan and $45,036.60 plus interest on the Spooner loan and entered judgment.

Zinna appealed. Shortly before briefing was completed, the Supreme Court issued its opinion in Hassler v. Account Brokers of Larimer County, Inc., 274 P.3d 547 (Colo. 2012), which addressed the specific statute of limitations at issue in this case. Supplemental briefing was requested.

The trial court had found that the Bank had never called the notes in default but had pursued Zinna due to their delinquency. The Court considered what appeared to be an issue of first impression in Colorado: when does the statute of limitations begin to run on a promissory note that is to be repaid in installments; was not accelerated by the creditor; and provides that a “final payment of the unpaid principal balance plus accrued interest is due and payable” on the note’s maturity date?

The Court held that under the circumstances of the case, the statute of limitations didn’t begin to run until then notes’ maturity dates, which were December 18, 2006 for the Team Transit loan and April 9, 2005 for the Spooner loan. Therefore, the Bank timely filed suit. The Court reached this conclusion based on slightly different reasoning than the trial court.

Hasslerset forth the legal framework for evaluating how the statute of limitations applies to an installment payment security agreement that was validly accelerated by the creditor. Based on Hassler, the Court held, as a matter of law, that the Bank did not accelerate the notes when it applied funds to pay them down because it did not express a “clear, unequivocal intent” to do so. Finally, it found the plain meaning of the terms of the notes was that the statute of limitations began running when Zinna was obligated to make a “final payment of the unpaid balance plus accrued interest” on the notes’ respective maturity dates. The Court awarded the Bank its attorney fees in bringing the appeal as permitted under the terms of the notes.

Summary and full case available here.