April 26, 2017

Archives for August 2016

Colorado Court of Appeals: Holder of Evidence of Debt May Initiate Foreclosure with Copy of Evidence of Debt

The Colorado Court of Appeals issued its opinion in Edwards v. Bank of America, N.A. on Thursday, August 25, 2016.

Mortgage—Foreclosure—Standing—Summary Judgment—Affidavit.

Plaintiff obtained a loan to finance the purchase of property. When she defaulted on the loan, defendant sold the house through foreclosure. During the foreclosure proceedings, plaintiff filed a complaint alleging that defendant lacked standing to file a C.R.C.P. 120 motion and to commence foreclosure proceedings. The district court granted defendant’s summary judgment motion and subsequently denied plaintiff’s motion to reconsider the judgment.

On appeal, plaintiff contended that the district court erred in granting defendant’s summary judgment motion. The holder of an evidence of debt may initiate foreclosure proceedings with a copy of the evidence of debt and deed of trust, rather than the original documents. Here, defendant produced sufficient evidence to establish that it was entitled to foreclose and that plaintiff failed to demonstrate there was a genuine issue of material fact as to defendant’s standing to foreclose. Accordingly, the district court did not err in granting defendant’s motion for summary judgment.

Plaintiff also contended that the district court erred in denying her motion to reconsider summary judgment because the court prematurely granted summary judgment without giving her sufficient opportunity to conduct discovery. C.R.C.P. 56(f) allows a party who cannot produce facts essential to its opposition to a motion for summary judgment to submit an affidavit explaining why it cannot do so. Plaintiff did not submit a C.R.C.P. 56(f) affidavit. Accordingly, the district court properly denied plaintiff’s motion to reconsider summary judgment.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: License Suspension Arbitrary and Capricious Due to Lack of Standards

The Colorado Court of Appeals issued its opinion in Farmer v. Colorado Parks & Wildlife Commission on Thursday, August 25, 2016.

Big Game Hunter—Suspension of Wildlife License—Colorado Parks and Wildlife Commission—Agency Standards—Arbitrary and Capricious.

Farmer is a big game hunter and guide. After allowing his Colorado outfitter’s license to lapse, Farmer was charged with six counts of illegal sale of big game wildlife for outfitting mountain lion hunts without the proper license. Farmer pleaded guilty to one count. Pursuant to CRS § 33-6-113(2)(a), his guilty plea triggered an administrative hearing by the Colorado Parks and Wildlife Commission (Commission) to determine whether to suspend Farmer’s wildlife license privileges. After a hearing, Farmer’s hunting license was suspended for 20 years. Farmer initiated this action for review of the Commission’s decision, and the district court affirmed.

On appeal, Farmer contended that he was deprived of due process because neither CRS §§ 33-6-106 and -113 nor any applicable regulations contain sufficient standards to constrain the Commission’s discretion in determining the length of his suspension. CRS § 33-6-113(2)(a) merely provides that, upon conviction for the illegal sale of big game, the Commission may suspend “any or all wildlife license privileges of the person for a minimum of one year to life.” Because neither the statute nor any applicable regulations provide sufficient standards to guide the Commission’s suspension decision, its action in suspending Farmer’s license was arbitrary and capricious.

The district court’s order was reversed and Farmer’s suspension was vacated. Because remanding to the hearing officer would not provide Farmer a complete remedy for the arbitrary and capricious suspension of his license under defective procedures, the Court of Appeals declined to remand for a new hearing.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/30/2016

On Tuesday, August 30, 2016, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions.

Chavez-Torres v. City of Greeley

In re Rindlesbach: Rindlesbach v. Jones

United States v. Akers

Gonzales v. State of Colorado

Hill v. Fort Leavenworth Disciplinary Barracks

Lewis v. Mercy Health

Harper v. Guthrie

Walker v. Allbaugh

United States v. Walton

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Officer Justified in Conducting Pat-Down Search Before Allowing Person to Enter his Vehicle

The Colorado Court of Appeals issued its opinion in People v. Gow on Thursday, August 25, 2016.

Tommy Gow was walking in a residential neighborhood at about 2:15 a.m. when a police officer approached him. Gow told the officer he had just purchased an iPad from a friend, and, when the officer verified that Gow had no outstanding warrants, he told Gow he was free to leave. Gow started to leave, but then flagged down the officer and asked for a ride to another house a few blocks away. The officer told Gow he would have to pat him down to check for weapons before Gow could enter his car, and also wanted to look in the iPad box. When Gow opened the box, two small baggies fell to the ground, which Gow told the officer contained “speed.” Gow was arrested and ultimately convicted of possession of methamphetamine and possession of a schedule I controlled substance. He appealed, arguing the officer’s pat-down search violated his Fourth Amendment rights and therefore the evidence should have been suppressed.

On appeal, the Colorado Court of Appeals evaluated Gow’s claim that the pat-down search, including the search of the box, was unconstitutional because under People v. Berdahl, 2012 COA 179, “an officer may not, in the course of providing a courtesy ride, search the individual to be transported without a reasonable, articulable suspicion that the individual is armed and dangerous.” Because the officer in this case did not have a reasonable suspicion that Gow was armed and dangerous, the pat-down search was unconstitutional and the resulting evidence should have been suppressed. The trial court did not cite Berdahl, but its holding that the pat-down was reasonable was directly at odds with Berdahl‘s holding that Colorado does not recognize an “officer safety” exception to the rule that an officer must have a reasonable, articulable suspicion before searching a person.

The court of appeals disagreed with Berdahl, finding that the out of state cases relied on by the division in Berdahl did not stand for the position that an officer may never conduct a pat-down search without reasonable suspicion. The court concluded that the reason for the search was determinative, and in cases where the officer was conducting a pat-down search for his or her own safety prior to transporting individuals in his or her car, it was reasonable for the officer to conduct a pat-down for weapons. The court found it would be illogical to require an officer to compromise his or her safety by allowing individuals in his or her car without patting them down for weapons, and the unintended result would be that officers would be reluctant to offer courtesy rides. The court noted that the Berdahl division was rightly concerned about eroding Fourth Amendment protections, but noted that by only permitting pat-down searches prior to allowing individuals to receive rides, the Fourth Amendment would not be violated.

The court of appeals affirmed the trial court’s denial of Gow’s suppression motion.

Chief Justice Directive 95-01 Regarding Authority of Chief Judges Amended

On Friday, August 26, 2016, the Colorado State Judicial Branch released an amended version of Chief Justice Directive 95-01, “Authority and Responsibility of Chief Judges,” effective August 24, 2016. The changes to the Chief Justice Directive were minor; section 3 of the Directive was amended to clarify the Chief Justice’s authority to designate a presiding county court judge in each county with more than one county court judge. Click here to read the directive; click here for all of the Colorado Supreme Court’s Chief Justice Directives.

Tenth Circuit: Unpublished Opinions, 8/29/2016

On Monday, August 29, 2016, the Tenth Circuit Court of Appeals issued four published opinions and eight unpublished opinions.

Martinez Garcia v. Lynch

In re Anthony: J&R Investment v. Anthony

United States v. Clayton

Krug v. Kastner

Jimenez v. Fourth Judicial District Attorney’s Office

United States v. Castillo-Arment

United States v. Olaveson

United States v. Santiago-Villanueva

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Public Comment Period Open for Changes to 10th Circuit Local Rules

On Friday, August 26, 2016, the Tenth Circuit Court of Appeals released proposed changes to the Tenth Circuit Rules, effective January 1, 2017. These rule changes are in addition to the changes to the Federal Rules of Appellate Procedure that take effect December 1, 2016. The changes include a reduction in word count for briefs; primary brief word limits have been reduced from 14,000 to 13,000 and reply brief word limits have been reduced from 7,000 to 6,500. The word limit changes are summarized in a new Appendix to the Federal Rules of Appellate Procedure. The changes to the rules also address when filings are timely under F.R.A.P. 4, clarify service dates when filings are completed electronically, and require attorneys to explain the criminal process and right to object in a defendant’s native language.

Comments regarding any of the changes may be submitted via email to clerk@ca10.uscourts.gov. For a memo outlining the various amendments, click here. For a redline of the changes, click here.

Honorable David W. Crockenberg to Retire from Tenth Judicial District Court

Crockenberg (Formatted)On Friday, August 26, 2016, the Colorado State Judicial Branch announced the retirement of Hon. David W. Crockenberg from the Tenth Judicial District Court. Judge Crockenberg was appointed to the district court bench in December 2002. Prior to his appointment, he was an attorney in private practice in Pueblo, specializing in insurance defense, personal injury, employment law, and civil rights. He received his undergraduate degree from Syracuse University and his law degree from the University of North Carolina at Chapel Hill.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of the Tenth Judicial District at the time of investiture, and must have been admitted to practice law in Colorado for five years. Application forms are available from the State Judicial website and also from the ex officio chair of the Tenth Judicial District Nominating Commission, Justice Richard Gabriel. Applications must be received no later than 4 p.m. on October 3, 2016, and anyone wishing to nominate another must do so no later than September 28, 2016.

For more information about the vacancy, click here.

Tenth Circuit: Unpublished Opinions, 8/26/2016

On Friday, August 26, 2016, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.

United States v. Shrader

Castillo v. Bobelu

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

John Moye and John McCabe Receive Cathy Stricklin Krendl Business Lawyer Lifetime Achievement Award

Moye-McCabeIn 2014, the Colorado Bar Association Business Law Section created the “Cathy Stricklin Krendl Business Lawyer Lifetime Achievement Award.” The award is named for the first recipient in 2014, Cathy Stricklin Krendl, and is intended to recognize and honor her contributions to Colorado business law, including intellectual and professional excellence in the practice Colorado business law; generosity of spirit as reflected in the advancement of Colorado business law; efforts to enhance the general quality of business law practice by Colorado lawyers; and devotion to the principles of legal professionalism, all manifested consistently over years of endeavor.

The CBA Business Law Executive Council chose two outstanding recipients for 2016—John Moye, founding partner at Moye White, and John McCabe, Senior Of Counsel, with Davis Graham and Stubbs LLP. The awards will be presented at the 2016 Business Law Institute at the reception on the first day, September 15 at 5 p.m.  We invite all members of the CBA Business Law Section to attend the awards ceremony and reception even if you are unable to attend the Institute.  The exemplary contributions that the recipients have made to the area of business law will be shared at the ceremony. We look forward to seeing everyone there to celebrate their achievements.

 

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CLE Program: 2016 Business Law Institute

This CLE presentation will occur on September 15-16, 2016, at the Marriott City Center (1701 California Street, Denver). Register for the live program here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: CD • MP3Video OnDemand.

Tenth Circuit: Unpublished Opinions, 8/25/2016

On Thursday, August 25, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Frazier

Watson v. State of Missouri

United States v. Franco

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Announcement Sheet, 8/25/2016

On Thursday, August 25, 2016, the Colorado Court of Appeals issued seven published opinions and 50 unpublished opinions.

People v. Gow

Farmer v. Colorado Parks & Wildlife Commission

Edwards v. Bank of America, N.A.

Semler v. Hellerstein

Arrabelle at Vail Square Residential Condominium Association, Inc. v. Arrabelle at Vail Square, LLC

People v. Garcia

People in Interest of J.W. and N.W.

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.