September 21, 2017

Small Estate Affidavit, Writs of Garnishment, and More Forms Amended in March

In March 2017, the Colorado State Judicial Branch issued amendments to 13 of its JDF forms. The amended forms include trust and estate forms such as JDF 999, “Collection of Personal Property by Affidavit,” and writ of garnishment forms such as C.R.C.P. Form 26, “Writ of Continuing Garnishment.”

The 13 forms amended in March available below in PDF format. Some of these forms are also available in Word format on State Judicial’s forms page. Additionally, one form was amended in February and seven were amended in January. These forms are also available below in PDF format.

ADOPTION

  • JDF 495 – Instructions for Second Parent Adoption – Without a Civil Union (revised 1/17)
  • JDF 498 – Instructions for Kinship Adoption (revised 1/17)
  • JDF 499 – Instructions for Custodial Adoption (revised 1/17)
  • JDF 500 – Instructions for Stepparent Adoption (revised 1/17)
  • JDF 528 – Petition for Adult Adoption (revised 3/17)

CRIMINAL LAW

  • JDF 323(a)Instructions to File a Petition to Seal Records Related to Illegal Possession or Consumption of Ethyl Alcohol by an Underage Person (MIP) (For Offenses Committed Prior to July 1, 2014) (revised 3/17)
  • JDF 375 – Compensated Surety Request for a Show Cause Hearing (revised 1/17)

DOMESTIC RELATIONS

  • JDF 1111 – Sworn Financial Statement (revised 1/17)
  • JDF 1337 – Certificate of Mediation/ADR Compliance (CADR) (revised 2/17)

GARNISHMENT

  • C.R.C.P. Form 26 – Writ of Continuing Garnishment (revised 3/17)
  • C.R.C.P. Form 28 – Objection to Calculation of Exempt Earnings (revised 3/17)
  • C.R.C.P. Form 29 – Writ of Garnishment with Notice of Exemption and Pending Levy (revised 3/17)
  • C.R.C.P. Form 31 – Writ of Garnishment for Support (revised 3/17)
  • C.R.C.P. Form 32 – Writ of Garnishment – Judgment Debtor Other Than Natural Person (revised 3/17)
  • C.R.C.P. Form 33 – Writ of Garnishment in Aid of Writ of Attachment (revised 3/17)

PROTECTIVE PROCEEDINGS/PROBATE

  • JDF 782 – Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado from Sending State (revised 3/17)
  • JDF 906 – Instructions for Probate With a Will (revised 3/17)
  • JDF 907 – Instructions for Probate Without a Will (revised 3/17)
  • JDF 998 – Instructions for Completing Affidavit for the Collection of Personal Property of a Decedent (revised 3/17)
  • JDF 999 – Collection of Personal Property by Affidavit (revised 3/17)

SMALL CLAIMS

  • JDF 250 – Notice, Claim, and Summons to Appear for Trial (revised 1/17)

Colorado Court of Appeals: Trial Court Did Not Err in Considering Unredacted Invoices on Remand

The Colorado Court of Appeals issued its opinion in Thompson v. United Securities Alliance, Inc. on Thursday, September 8, 2016.

Judgment—Garnishment—Mandate—Prejudgment Interest—Post-judgment Interest.

Plaintiffs obtained a judgment against United Securities Alliance, Inc. (United), and then instituted garnishment proceedings against Catlin Insurance Company (UK) Ltd. (Catlin), United’s insurer. The district court deducted from the policy limit the amount of attorney fees incurred by Catlin in defending the underlying arbitrations against United, and entered judgment for plaintiffs for the remainder of the policy. The court denied plaintiffs’ requests for pre- and post-judgment interest.

On appeal, plaintiffs contended that the district court acted beyond the scope of the court of appeals’ mandate because, by considering the unredacted attorney fees invoices submitted after the mandate, the district court expressly disregarded the mandate’s instruction to review “the existing record.” Given the unusual procedural posture of this case and the largely “indiscernible” unredacted invoices, the language to review “the existing record” was permissive rather than restrictive, and the remand order meant that the district court could rely exclusively on the existing record to calculate reasonable fees, not that it had to. Accordingly, the district court did not err in considering the unredacted invoices.

Plaintiffs next contended that the district court erred in declining to award prejudgment interest pursuant to C.R.S. § 5-12-102(1). This statute, however, governs contract and property damage cases. Because garnishment actions do not result in damages to the garnishor, prejudgment interest is not appropriate.

Plaintiffs also argued that an award of post-judgment interest was mandatory under C.R.S. § 5-12-106(1)(b) and the district court erred by denying their request. Because the court of appeals’ mandate did not direct the district court to award post-judgment interest and plaintiffs did not request that the court amend its mandate, the district court correctly held that it lacked jurisdiction to make such an award.

The judgment was affirmed.

Summary available courtesy of The Colorado Lawyer.

Tenth Circuit: Government Lacks Authority to Garnish Retirement Accounts When Restitution Paid According to Schedule

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez on Wednesday, December 16, 2015.

Toby Martinez was convicted of mail fraud and conspiracy and was ordered to pay roughly $2.7 million in restitution. The district court ordered that he was to pay the restitution through monthly payments of a percentage of his net disposable income. Upon leaving prison, Martinez was unable to obtain steady employment, and as a result owed relatively little through his court-ordered payment schedule. The government served writs of garnishment for two of Martinez’s retirement accounts, which were worth roughly $470,000 together. Martinez moved to quash the writs of garnishment in district court, but the court denied his motion. Martinez appealed, asking the court to consider whether the government can garnish assets beyond the amount currently due under the court-ordered payment plan. The Tenth Circuit determined it could not.

The Tenth Circuit began by analyzing 18 U.S.C. §§ 3613 and 3664, which allow the government to enforce orders of restitution as if they were liens or judgments in favor of the United States. The Tenth Circuit rejected the government’s argument that it could garnish the entire restitution amount, noting the argument incorrectly assumed the entire restitution amount was currently owed. The Tenth Circuit found that by statute, the district court—not the government—had the ability to determine how a defendant is to pay restitution. It is the government’s job to enforce the district court’s order. The Tenth Circuit analyzed whether Martinez owed the full restitution amount immediately or whether he owed only the installment payments until the full amount was paid. Analyzing the district court’s restitution order, the Circuit found that the district court ordered that Martinez owed only the installment payments. The Tenth Circuit noted that the full amount of restitution is owed only immediately only if the restitution order does not provide for installment payments. The Tenth Circuit also cautioned that the government’s position conflicts with the statutory directive to the district court to impose a payment schedule that reflects the defendant’s financial condition.

The Tenth Circuit reversed and remanded with instructions for the district court to grant Martinez’s motion to quash.

Two JDF Forms Amended in March

The Colorado State Judicial Branch has amended two JDF forms this month: JDF 604, “Notice and Order to File JDF 601 District Court Case Cover Sheet,” and Form 32, “Writ of Garnishment – Judgment Debtor Other Than Natural Person.” Additionally, one JDF form was amended in February: JDF 100, “Instructions for Forcible Entry and Detainer (FED)/Evictions.” The JDF forms are generally available as PDFs and Word documents on the State Judicial forms page. For all of State Judicial’s JDF forms, click here.

Probate, Domestic Relations, District Court Civil, and More Forms Amended in June and July

In June and July 2015, the Colorado State Judicial Branch amended several forms in many different categories, including guardianship, small estate affidavit, dissolution of marriage, district court civil, and transcript request. The forms are available for download here in PDF format, and are available as Word documents on the State Judicial forms pages.

Adoption

  • JDF 532 – “Request for Access to Adoption Records” (revised 6/15)

District Court Civil

  • JDF 601 – “District Court Civil (CV) Case Cover Sheet for Initial Pleading of Complaint, Counterclaim, Cross-Claim, or Third Party Complaint” (revised 7/15)
  • JDF 603 – “Instructions to Complete District Court Civil (CV) Case Cover Sheet JDF 601 for Initial Pleading of Complaint, Counterclaim, Cross-Claim, Third Party Complaint, Rule 16.1 Simplified Procedure” (revised 7/15)
  • JDF 622 – “Proposed Case Management Order” (issued 7/15)

Domestic Relations

  • JDF 1099 – “Instructions to File for a Dissolution of Marriage or Legal Separation if there are No Children of this Marriage or the Children are Emancipated” (revised 7/15)
  • JDF 1100 – “Instructions to File Dissolution of Marriage or Legal Separation With Children of this Marriage” (revised 7/15)
  • JDF 1300 – “Instructions to Request Service by Publication” (revised 7/15)

Garnishments

  • JDF 82 – “Instructions for Collecting a Judgment and Completing a Writ of Garnishment” (revised 6/15)

Protective Proceedings/Probate

  • JDF 834 – “Guardian’s Report – Minor” (revised 6/15)
  • JDF 849 – “Letters of Guardianship – Adult” (revised 6/15)
  • JDF 850 – “Guardian’s Report – Adult” (revised 6/15)
  • JDF 998 – “Instructions for Completing Affidavit for the Collection of Personal Property of a Decedent” (revised 6/15)
  • JDF 999 – “Collection of Personal Property by Affidavit” (revised 6/15)

Transcript Request

  • JDF 4 – “Transcript Request Form” (revised 7/15)

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

Colorado Supreme Court: Health Savings Account Not Retirement Account for Garnishment Exemption Purposes

The Colorado Supreme Court issued its opinion in Roup v. Commercial Research, LLC on Monday, June 1, 2015.

Health Savings Account—Statutory Exemptions From Garnishment—CRS § 13-54-102(1)(s).

In this decision, the Supreme Court held that a Health Savings Account (HSA) is not a “retirement plan” within the meaning of Colorado’s exemption statute. An HSA is not intended to replace income lost as a result of retirement; it is intended to cover medical costs incurred at any point during a person’s lifetime. The General Assembly has not chosen to provide an exemption for HSAs in the relevant statutes. Accordingly, the Court affirmed the judgment of the court of appeals.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Attorney Fee Award in Traverse Proceeding Limited to Fees Incurred to Prepare, File, and Prosecute Traverse

The Colorado Court of Appeals issued its opinion in L&R Exploration Venture v. CCG, LLC on Thursday, April 23, 2015.

Garnishment—Attorney Fees Under CRCP 103 § 8(b)(5).

This is the second appeal in a garnishment proceeding. In the first appeal, intervenors challenged the district court’s order allowing garnishment of their bank accounts to satisfy an underlying judgment in favor of L&R Exploration Venture and its participants (collectively, L&R plaintiffs). A division of the Court of Appeals affirmed the order, concluding that the district court did not err in (1) determining that intervenor CCG is the alter ego of judgment debtor Jack Grynberg; (2) concluding that Grynberg and his alter egos had made voidable fraudulent transfers to intervenors Gadeco, Pricaspian, and Celeste Grynberg; and (3) allowing L&R plaintiffs to garnish the bank accounts of those intervenors.

Intervenors challenged the district court’s order awarding L&R plaintiffs attorney fees and costs under CRCP 103, § 8(b)(5), which states “[a]t any hearing upon a traverse, the court shall make such orders as to reasonable attorney fees, costs and expense of the parties to such hearing as are just.” The Court held that it was error to award attorney fees and costs not incurred to prepare and file the traverses of the intervenors’ challenges to the garnishments or to subsequently prosecute the traverse proceeding. It held that such an award is limited, in a successful traverse action, to only the attorney fees and costs incurred by the garnishor to prepare, file, and prosecute the traverse, and, in an unsuccessful action, to the attorney fees and costs incurred by the putative garnishee to defend against the traverse. The order was vacated for a recalculation of attorney fees and costs.

Summary and full case available here, courtesy of The Colorado Lawyer.

Filing Fees Amended Along with Forms in Domestic, Probate, Seal My Case, and Other Categories

The Colorado State Judicial Branch continues to revise its JDF forms. In February and March 2014, forms were revised in the Adoption, Appeals, Domestic, Garnishment & Judgment, Probate, and Seal My Case categories, and the filing fees were also amended. Additionally, forms were added to the Seal My Case category regarding juvenile contacts with law enforcement that do not result in referrals to other agencies.

Forms are available here for download in PDF format. Forms are available as Word documents from the State Judicial website.

ADOPTION

  • JDF 526 – “Affidavit of Diligent Efforts” (R2/14)

APPEALS

  • JDF 126 – “Instructions to File a Small Claims or County Civil Appeal” (R2/14)

DOMESTIC

  • JDF 211 – “Motion to Reduce Payment for ODR Services and Supporting Financial Affidavit” (R3/14)
  • JDF 1804 – “Income Withholding for Support” (R2/14)

FEES

  • JDF 1 – “Filing Fees, Surcharges, and Costs in Colorado Courts” (R2/14)
  • JDF 205 – “Motion to File Without Payment of Filing Fee/Waive Other Costs Owed to the State and Supporting Affidavit” (R3/14)

GARNISHMENTS & JUDGMENTS

  • JDF 125 – “Order for Revival of Judgment” (R3/14)

PROBATE

  • JDF 998 – “Instructions for Completing Affidavit for Collection of Personal Property” (R2/14)
  • JDF 999 – “Collection of Personal Property by Affidavit” (R2/14)

SEAL MY CASE

  • JDF 301 – “Instructions to File an Expungement Juvenile ‘JD’ Case, Criminal ‘CR’ Case, or Municipal Case” (R3/14)
  • JDF 302 – “Petition for Expungement of Records” (R3/14)
  • JDF 303 – “Notice of Hearing on Petition for Expungement” (R3/14)
  • JDF 304 – “Order of Expungement of Records” (R3/14)
  • JDF 324 – “Petition for Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency” (Added 3/14)
  • JDF 325 – “Notice of Hearing on Petition for Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency” (Added 3/14)
  • JDF 326 – “Order of Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency” (Added 3/14)

Click here for all of State Judicial’s JDF forms.

Revised JDF Forms Available in Family, Adoption, Miscellaneous, and Other Categories

The Colorado State Judicial Branch continues to revise JDF forms. Several forms have been revised in December 2013 and January 2014. These include forms from the adoption, domestic, miscellaneous, money demand, name change, and other categories.

Forms are available here in PDF format. Most forms are also available for download as Microsoft Word documents from the State Judicial website.

ADOPTION

  • JDF 515 – “Motion to Waive Family Assessment/Home Study” (R12/13)
  • JDF 520 – “Petition to Terminate the Parent-Child Legal Relationship” (R12/13)

DOMESTIC RELATIONS

  • JDF 211 – “Motion to Reduce Payment for ODR Services and Supporting Financial Affidavit” (R12/13)
  • JDF 1115 – “Separation Agreement (Marriage)” (R1/14)
  • JDF 1201 – “Affidavit for Decree Without Appearance of Parties (Marriage)” (R1/14)
  • JDF 1215 – “Evaluation of a Foreign Decree” (R1/14)
  • JDF 1256 – “Separation Agreement (Civil Union)” (R1/14)
  • JDF 1258 – “Affidavit for Decree Without Appearance of Parties (Civil Union)” (R1/14)
  • JDF 1820M – “Worksheet A – Child Support Obligation: Sole Physical Care” (R1/14)
  • JDF 1821M – “Worksheet A – Child Support Obligation: Shared Physical Care” (R1/14)
  • JDF 1822 – “Instructions for Completing Child Support Worksheets” (R1/14)

EVICTIONS

  • JDF 91 – “Motion for Entry of Judgment on Stipulation” (R12/13)

GARNISHMENTS

  • JDF 82 – “Instructions for Collecting a Judgment and Completing a Writ of Garnishment” (R12/13)

MISCELLANEOUS

  • JDF 35 – “Application for Administrative Relief from Federal Firearms Prohibitions” (12/13)
  • JDF 36 – “Petition for Relief Pursuant to § 13-5-142.5 or § 13-9-124 from Federal Firearms Prohibitions” (12/13)
  • JDF 37 – “Order for Relief from Federal Firearms Prohibitions” (12/13)

MONEY CASES

  • JDF 91 – “Motion for Entry of Judgment on Stipulation” (R12/13)
  • JDF 601 – “District Court Civil Cover Sheet” (R12/13)
  • JDF 603 – “Instructions to Complete District Court Civil Cover Sheet” (R12/13)

NAME CHANGE

  • JDF 420 – “Instructions for Filing for a Change of Name – Minor” (R12/13)
  • JDF 432 – “Instructions for Filing a Change of Name – Adult” (R12/13)

SEAL MY CASE

  • JDF 417 – “Petition to Seal Arrest and Criminal Records Other Than Convictions” (R12/13)

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

Colorado Court of Appeals: Decedent’s Son’s Interest in Liquidating Trust Could Be Garnished Without Obtaining Judgment in Separate Action

The Colorado Court of Appeals issued its opinion in In re Estate of Beren: Beren v. Beren on Thursday, December 5, 2013.

Probate—Contribution/Garnishment—Spendthrift Provision—Appellate Attorney Fees.

This appeal involved the estate of Sheldon Beren, who died testate in 1996 and whose estate has been the subject of previous litigation (Beren I). This appeal involved defendant David Beren, who is one of decedent’s sons; Robert Goodyear, Jr., the estate’s personal representative in his capacity as liquidating trustee,; and the decedent’s surviving spouse, Miriam Beren (garnishor).

On September 2, 2010, the probate court approved Goodyear’s petition for final settlement and distribution (Final Distribution Plan), which called for the creation of liquidating trusts, including the Beren Estate Residuary Liquidating Trust Agreement (Liquidating Trust), because of Goodyear’s concern over a contingent income tax liability of the estate. Over defendant’s objections to the creation of the trusts, the probate court ordered Goodyear to distribute the estate assets as outlined in the Final Distribution Plan.

On appeal, defendant argued that garnishor could not garnish his interest in the Liquidating Trust to collect the contribution amounts that he owed her until she obtained a judgment establishing his liability in a separate contribution action. The Court of Appeals found that because the September 2 order fixed the contribution liability, garnishor was not required to obtain a separate judgment before she could garnish his account.

CRS § 15-11-205(4) provides for determination by the probate court of the elective-share and empowers it to “order its payment from the assets of the augmented estate or by contribution.” Under this authority, the probate court, in its September 2, 2010 order, had shown a 1997 distribution of $1 million to defendant subject to contribution of $459,546.51 for funding garnishor’s elective share. Defendant argued that this order was not an executable judgment and that under § 15-11-205(5), garnishor was required to bring a separate contribution action and obtain a judgment on which she could execute, before serving a writ of garnishment. The Court of Appeals found this section did not require a separate action but addressed only whether an order or judgment on contribution liability may be enforced in other Colorado state courts or other jurisdictions.

Alternatively, defendant argued that his bequest should not have been subject to contribution because the 1997 stipulation did not reserve to garnishor any right to seek contribution. This argument was foreclosed by Beren I. The division there declined to address this issue and he was precluded from raising it again.

Garnishor sought a portion of her appellate attorney fees under CRS § 13-17-102 because defendant’s assertion that the 1997 stipulation precluded contribution liability lacked substantial justification. The Court agreed and remanded the case for a determination of the amount.

Defendant argued that because the Liquidating Trust Agreement contained a spendthrift provision, the probate court erred by allowing his interest in the Liquidating Trust to be garnished before any distribution to him. The Court held that this provision did not protect funds that Goodyear was required to distribute under the Agreement, although the distribution had not yet occurred.

The Agreement provided that as soon as all applicable statutes of limitations on the contingent tax liabilities had expired, the Liquidating Trustee must distribute the remaining balance of each beneficiary’s separate share. The statute of limitations ran, and Goodyear told the beneficiaries he planned to make a distribution to each of them. Before he did so, garnishor served a writ of garnishment on Goodyear requiring him to pay her any personal property belonging to defendant up to the amount of his contribution liability from the September 2 order, plus interest. Defendant filed a claim of exemption relying on the spendthrift provision in the Agreement.

The probate court found that the spendthrift provision was invalid, or, even if the provision was valid, the trust funds could be garnished once Goodyear exercised his discretion to make a distribution. On appeal, the Court noted that funds under the discretionary control of a trustee subject to a spendthrift provision cannot be garnished. Once distributed, such funds are within the reach of creditors. The Court ruled that once the trust funds had become subject to mandatory distribution, they could be garnished. The order was affirmed and the case was remanded for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Health Savings Account Not Exempt From Garnishment

The Colorado Court of Appeals issued its opinion in Commercial Research LLC v. Roup on Thursday, December 5, 2013.

Garnishment—Health Savings Account—Retirement Plan—Exemption.

Gary S. Roup appealed the trial court’s order denying his claim of garnishment exemption in favor of Commercial Research, LLC (creditor). The order was affirmed.

Creditor obtained an assignment of a default judgment that had been entered against Roup in a Texas court. Creditor then filed the judgment in Colorado and began collection proceedings against Roup’s assets, including $3,729 held in a health savings account (HSA).

On appeal, Roup contended that his HSA is a “retirement plan” and therefore exempt from garnishment under CRS § 13-54-102(1)(s). An HSA is not intended to replace income lost as a result of retirement; it is intended to cover medical costs incurred at any point during an individual’s lifetime. Therefore an HSA is not a “retirement plan” and is not exempt from garnishment.

Summary and full case available here.

Colorado Court of Appeals: In Garnishment Action, Earnings Exemption Does Not Apply to Independent Contractor Since Indebtedness Owed to Contractor Not Earnings

The Colorado Court of Appeals issued its opinion in Idaho Pacific Lumber Co., Inc. v. Celestial Land Co. Ltd. on Thursday, September 26, 2013.

Judgment—Creditor—Debtor—Garnishment—Independent Contractor—Exemption—Writ of Assistance.

Plaintiff Idaho Pacific Lumber Company, Inc. (judgment creditor) appealed the trial court’s order in favor of Celestial Land Company Limited (garnishee) regarding a debt it owed defendant Jack B. Kaufman (judgment debtor). The order was affirmed in part and reversed in part, and the case was remanded.

Judgment creditor served garnishee with a writ of garnishment on personal property and a writ of continuing garnishment for any debt owed to judgment debtor. Garnishee, who was an independent contractor rather than an employee, answered the writs on the basis that the debt owed to judgment debtor constituted earnings, and therefore only 25% was subject to garnishment.

On appeal, judgment creditor contended that the trial court erred in concluding that the debt owed to judgment debtor by garnishee constituted earnings under CRS § 13-54.5-101(2)(a)(I). Because indebtedness owed to an independent contractor is not earnings, the exemption was inapplicable.

Judgment creditor also contended that the trial court erred by denying its motion for a writ of assistance to collect all of judgment debtor’s property. There is no Colorado authority that supports judgment creditor’s request for such a broad writ of assistance under CRCP 69. Accordingly, the trial court did not err in denying judgment creditor’s motion for a writ of assistance. Finally, judgment creditor’s request for attorney fees pursuant to CRCP 103(8)(b)(5) was denied.

Summary and full case available here.