May 25, 2013

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SB 13-221: Requiring an Application for a Tax Certificate for the Donation of a Perpetual Conservation Easement

April 8, 2013 by Leave a Comment

On Friday, March 15, 2013, Sen. Steve King introduced SB 13-221 – Concerning an Application and Review Process for Issuing Tax Credit Certificates for a State Income Tax Credit Allowed for the Donation of a Perpetual Conservation Easement. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law allows a landowner to claim a state income tax credit of up to $375,000 for donating all or a portion of a perpetual conservation easement to a qualified organization. Landowners are also allowed to transfer all or a portion of a credit to another taxpayer, known as a transferee. Currently, a conservation easement tax credit cannot be claimed or used by the landowner or transferred to another taxpayer unless a tax credit certificate is issued by the division of real estate (division) in the department of regulatory agencies.

The executive director of the department of revenue (department) has the authority, for good cause shown and in consultation with the division and the conservation easement oversight commission (commission), to review and accept or reject, in whole or in part, the appraised value of the conservation easement, the amount of the tax credit being claimed, and the validity of the tax credit based upon the federal and state statutes and regulations in effect at the time of the donation. Under the current process, the department reviews conservation easement tax credit claims and uses for compliance with applicable requirements after the landowner or transferee files a tax return with the department.

The bill requires a landowner to file an application for a conservation easement tax credit certificate with the division and have certain aspects of the conservation easement donation reviewed and approved by the division director and the commission before a tax credit certificate is issued. The bill sets forth provisions governing the following:

  • The authority and responsibilities of the division, the division director, the commission, and the department in the tax credit certificate application review process, including the authority of the commission to delegate its authority to the division director;
  • The required documentation to be included with an application for a tax credit certificate;
  • The payment of a fee to cover the costs of administering the tax credit certificate application review process;
  • The process for identifying potential deficiencies with a conservation easement donation for which a landowner is applying for a tax credit certificate, notifying the landowner of the potential deficiencies, and obtaining additional information from the landowner to address the potential deficiencies; and
  • The process for approving an application or, if an application is denied, conducting settlement negotiations and appealing the denial.

A landowner may also request an optional preliminary advisory opinion from the division director and the commission regarding a proposed conservation easement donation. The opinion would be advisory only and would not constitute approval of a tax credit certificate application or a tax credit claim. The bill was introduced on March 15 and is assigned to the Finance Committee.

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Colorado Court of Appeals: Assessor’s Reference Library of State Property Tax Administrator Correctly Used to Determine Valuation

April 5, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Bachelor Gulch Operating Co., LLC v. Board of County Commissioners of Eagle County on Thursday, March 28, 2013.

Tax Abatement/Refund—Subdivision of Property During a Tax Year.

Bachelor Gulch Operating Company, LLC (Bachelor Gulch) appealed the order of the Board of Assessment Appeals (BAA) denying its petition for an abatement or refund of taxes for tax year 2007. The order was affirmed.

Bachelor Gulch owns a substantial portion of the Ritz Carlton Hotel in Eagle County (hotel). For tax year 2007, the Eagle County Assessor assigned the hotel an actual value of approximately $47 million. As of January 1, 2007, which was the assessment date for tax year 2007, the hotel was a single unit for tax assessment purposes. During that year, two new plats were filed that subdivided the original hotel unit, ultimately creating fifty-one separate “child parcels.” Fifty of these were residential condominiums created out of existing hotel rooms. The other was what remained of the hotel after the subdivision (hotel child parcel).

Following the subdivisions, the Assessor allocated the $47 million among the child parcels in proportion to the square footage of each. Approximately $36 million was allocated to the hotel child parcel. Bachelor Gulch petitioned the Board of County Commissioners of Eagle County for an abatement or refund of taxes, which was rejected. Bachelor Gulch then appealed to the BAA, and the appeal was denied.

The Court of Appeals was confronted with the question of what procedure an assessor should use when a property is subdivided during the course of a particular tax year, after the initial valuation and before the next statutory assessment date or a revaluation due to unusual conditions. Colorado statutes provide for the biennial appraisal and valuation of real and personal property for property tax purposes. Bachelor Gulch argued that CRS § 39-5-125(1) applied and the Assessor was required to determine the actual value of the hotel child parcel for 2007. The Court found that the statute unambiguously allows an assessor to conduct a valuation only when it is discovered the taxable property had been omitted from the assessment roll. Because that was not the case here, CRS 39-5-125(1) does not apply.

The Court found no Colorado statute that addresses the question of what to do when a property is subdivided after the initial valuation but before the next assessment date. The State Property Tax Administrator has provided guidance in the Assessor’s Reference Library (ARL). Specifically, the ARL provides that although subdivision and condominium plats can be processed at any time during the year, “the original parcel value and classification must remain the same as assigned to the property on the January 1 assessment date.” In addition, if a project is subdivided after the notice of valuation deadline, the current actual value as of the assessment date is apportioned to the lots or units in the project. Having found that the ARL governs this situation, the Court held that the BAA correctly found that the Assessor complied with its provisions. The order was affirmed.

Summary and full case available here.

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HB 13-1225: Creating the “Homeowner’s Insurance Reform Act of 2013″ and Changing Regulations Regarding Homeowner’s Insurance

April 4, 2013 by Leave a Comment

On February 7, 2013, Rep. Claire Levy and Sen. John Kefalas introduced HB 13-1225 – Concerning Additional Protections for Homeowner’s Insurance Policyholders in Colorado, and, in Connection Therewith, Enacting the “Homeowner’s Insurance Reform Act of 2013.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill makes the following changes to the laws regulating homeowner’s insurance for owner-occupied single-family homes other than mobile homes, condominiums, and manufactured homes:

  • Requires insurers to offer extended replacement cost coverage and law and ordinance coverage, with an explanation of the terms of this coverage;
  • Requires insurers to include at least one year of additional living expense coverage and to offer a total of 24 months of additional living expense coverage, with an explanation of the terms of this coverage;
  • Requires homeowner’s insurance policies, endorsements, and summary disclosure forms be written in plain language and revised by Jan. 1, 2015, to comply with this requirement;
  • Requires an insurer to consider an estimate from a licensed contractor or licensed architect submitted by the policyholder as the basis for establishing the replacement cost;
  • Specifies that policyholders have the right to a written notification, at renewal, describing changes in their insurance contract language that are applicable to the renewal period;
  • Requires insurers to provide an electronic or paper copy, as specified by the policyholder, of the policyholder’s insurance policy, including the declaration page and endorsements, within three business days after a request from an insured;

With respect to contents coverage in total loss claims, requires insurers to:

  • Offer to pay 30 percent of contents coverage reflected in the policy declaration, subject to policy limitations, without requiring a contents inventory;
  • Provide the basis for depreciation when applicable; and
  • Allow the policyholder up to 180 days after a total loss claim to submit an inventory of lost or damaged property, or 270 days if the Governor declares a disaster that results in the total loss of multiple dwellings; and
  • Allow a policyholder up to 180 days after expiration of alternative living expense coverage to replace property and receive recoverable depreciation on that property.

Requires a summary disclosure to be given to policyholders annually, including statements that:

  • The policyholder is responsible for selecting the amount of coverage;
  • The policyholder is responsible for assessing improvements to the home and notifying the insurer;
  • The policyholder may purchase additional coverage with appropriate documentation; and
  • The policyholder should update the inventory of contents regularly and store the inventory off-site.

Implements a continuing education requirement for insurance producers offering homeowner’s insurance policies to take at least three hours of continuing education on homeowner coverages during a two-year period.

Prohibits the enforcement of terms in homeowner’s insurance policies that require policyholders to sue insurers in cases of disputes within a shorter period of time than allowed for by the applicable statute of limitations.

The bill passed out of the House on March 18 and is assigned to the Local Government Committee in the Senate.

Since this summary, the Senate Committee on Local Government heard testimony and had committee discussion.

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Tenth Circuit: Genuine Issue of Material Fact Existed as to Whether Plaintiff Suffered Emotional Damages Because of Defendant Loan Servicers’ Actions

April 1, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Llewellyn v. Allstate Home Loans, Inc. on Thursday, March 28, 2013.

Plaintiff Glen Llewellen purchased property located in Aurora, Colorado. In connection with this purchase, Plaintiff executed a note with Allstate Home Loans. The loan was funded by Allstate’s subsidiary, Equity Pacific Mortgage, Inc., (“EPMI”). Plaintiff timely made his first monthly payment. Shortly thereafter, Nomura Credit and Capital, Inc. (“NCCI”) purchased the loan and transferred the servicing rights to Ocwen. On the date of the transfer, Plaintiff’s loan was current.

Prior to the service transfer to Ocwen, Plaintiff initiated the process of refinancing the loan. Plaintiff signed the refinance documents on June 1, 2006, but did not advise the closing agent that the servicing rights had been transferred to Ocwen. Plaintiff then spoke with an Ocwen representative on June 5 and incorrectly informed Ocwen that his loan had been refinanced—at the time, he had not yet delivered the funds to the closing agent. Two days later, Plaintiff delivered the funds he owed to close the transaction.

On June 14, the closing agent wired the refinancing payoff funds to Washington Mutual Bank, identifying EPMI as the beneficiary. EPMI wired the funds to Allstate on July 11. From there, it remains unclear what became of the funds. It is undisputed, however, that neither Ocwen nor NCCI ever received the payoff funds.

Ocwen sent Plaintiff a past-due notice on the loan and a letter discussing foreclosure and its alternatives. Ocwen then provided a negative credit report regarding Plaintiff to a credit reporting agency (“CRA”).

Plaintiff called Ocwen and informed their representative his loan had been refinanced and his new loan was being serviced by Washington Mutual. The representative informed Plaintiff that Ocwen had not received any payoff funds and advised him to speak with Washington Mutual to obtain details about the status of the loan. Ocwen sent Plaintiff another past due notice and issued a foreclosure referral to the law firm of Castle Meinhold & Stawiarski, LLC (“CMS”).

After receiving the foreclosure referral from Ocwen, CMS sent a letter to Plaintiff informing him that CMS had been retained to commence foreclosure proceedings against the property.

Plaintiff sent a fax to CMS with a copy of a HUD settlement statement showing that EPMI was to receive the refinancing funds, and a letter from Washington Mutual to Plaintiff stating that if OCWEN was to be paid off and was not, please contact the closing agent for research on the payoff. CMS forwarded the information to Ocwen.

Over the course of the following months, Plaintiff’s loan was transferred to NCC Servicing, and Ocwen continued to file negative credit reports regarding Plaintiff. Plaintiff’s credit report was not reversed, in spite of assurances that it would be addressed.

Glen Llewellyn filed this action asserting a Fair Debt Collection Practices Act claim, a Fair Credit Reporting Act claim, and a state law outrageous conduct claim against Ocwen and Nomura Credit and Capital (the “Ocwen Defendants”) based on their alleged credit reporting inaccuracies, and asserting an FDCPA and an outrageous conduct claim against Castle Meinhold & Stawiarski in connection with the foreclosure actions it took against Plaintiff. The district court granted summary judgment for the Defendants on each of Plaintiff’s claims. Plaintiff appealed, arguing summary judgment was inappropriate on his Fair Credit Reporting Act (“FCRA”) and Fair Debt Collection Practices Act (“FDCPA”) claims.

I. FAIR CREDIT REPORTING ACT

Plaintiff alleges the Ocwen Defendants violated § 1681s-2(b) of the FCRA. Under this section, a furnisher of information who has received notice of a dispute from a CRA is required to: (1) investigate the disputed information; (2) review all relevant information provided by the CRA; (3) report the results of the investigation to the CRA; (4) report the results of the investigation to all other CRAs if the investigation reveals that the information is incomplete or inaccurate; and (5) modify, delete, or permanently block the reporting of the disputed information if it is determined to be inaccurate, incomplete, or unverifiable. Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App’x 744, 750 (10th Cir. 2009).

The district court granted summary judgment to the Ocwen Defendants, concluding Plaintiff had failed to provide evidence of actual damages, either economic or emotional, or willfulness, to support his FCRA claim.

A. Economic Damages

Plaintiff argued he suffered economic damages as a result of the Ocwen Defendants’ alleged violation of the FCRA. The record showed that Plaintiff’s credit score dropped three points during these events. Plaintiff’s allegations that his credit score dropped over 100 points as a result of Ocwen’s actions were conclusory allegations and did not create a genuine issue of material fact. Additionally, Plaintiff provided no evidence he had applied for, and been denied, additional loans. Accordingly, the district court’s grant of summary judgment in favor of the Ocwen Defendants was affirmed on this basis.

B. Emotional Damages

Plaintiff alleged that, as a result of the Defendants’ actions, his health began to rapidly deteriorate.

Plaintiffs who rely on their own testimony to establish emotional harm must “explain [their] injury in reasonable detail and not rely on conclusory statements. Bagby v. Experian Info. Solutions, Inc., 162 F. App’x 600, 605 (7th Cir. 2006). An injured person’s testimony alone may suffice to establish damages for emotional distress provided he reasonably and sufficiently explains the circumstances surrounding the injury.

Viewing Plaintiff’s affidavit in the light most favorable to him and drawing  all reasonable inferences in his favor, the Tenth Circuit concluded Plaintiff provided sufficient evidence he suffered emotional damages as a result of the Ocwen Defendants’ actions. His affidavit created a genuine dispute as to whether the Ocwen Defendants’ actions caused him to suffer emotional damages.

C. Willful Violation

Plaintiff contended he was entitled to statutory and punitive damages under 15 U.S.C. § 1681n because the Ocwen Defendants willfully violated the FCRA. The Tenth Circuit concluded that, at most, Plaintiff offered evidence that the Ocwen Defendants negligently violated their obligations, which was insufficient to support a claim.

II. FAIR DEBT COLLECTION PRACTICES ACT 

A. Claims Against Ocwen Defendants

Plaintiff alleged the Ocwen Defendants violated the FDCPA by communicating or threatening to  communicate to CRAs false information concerning his credit worthiness after being informed that the debt had been paid off and by failing to communicate the debt was in dispute after Plaintiff notified them of this fact.

The FDCPA applies only to “debt collectors.” Because the Ocwen Defendants acquired Plaintiff’s loan on May 15, 2006, when it was undisputedly current, they are not considered debt collectors under the FDCPA. The Tenth Circuit found no basis from which to conclude the Ocwen Defendants qualified as debt collectors under the FDCPA.

B. Claims Against CMS

Plaintiff’s FDCPA claim against CMS is barred by the one-year statute of limitations.

Order granting summary judgment to the Ocwen Defendants on Plaintiff’s FCRA claim based on his alleged emotional damages REVERSED and REMANDED for further proceedings. The district court’s order is otherwise AFFIRMED.

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SB 13-219: Implementing Rules for Remediation of Property Contaminated by an Illegal Drug Lab

March 28, 2013 by Leave a Comment

On Friday, March 15, 2013, Sen. Lois Tochtrop introduced SB 13-219 – Concerning the Remediation Performed on Property Contaminated by an Illegal Drug Laboratory. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, the state board of health may promulgate rules for the cleanup of illegal drug labs. The bill requires the board to implement and promulgate rules addressing the following:

  • Testing and evaluating contamination;
  • Training and certifying people to assess and clean up illegal drug laboratories;
  • Approval of consultants’ or contractors’ trainers; and
  • Certifying that property meets the cleanup standards established by the board.

The board is also directed to establish fees and administrative penalties to implement these standards.

Currently, a person who documents cleaning up an illegal drug lab to the board’s standards is immune from a lawsuit but the manufacturer of the illegal drugs is not immune. The bill adds, as a person who is not immune, a person convicted of possession of chemicals, supplies, or equipment with intent to manufacture the illegal drugs.

A person who violates a rule of the board is subject to a penalty of up to $15,000. The bill sets procedures for notifying a person of an alleged violation and issuing an order and establishes standards for taking administrative action and determining the penalty. The bill is assigned to the Health & Human Services Committee.

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SB 13-212: Increasing Financing Options Available Through Colorado New Energy Improvement District for New Energy Improvements

March 28, 2013 by Leave a Comment

On Thursday, March 14, 2013, Sen. Matt Jones introduced SB 13-212 – Concerning Increased Options for Financing Available Through the Colorado New Energy Improvement District for the Completion of New Energy Improvements, and, in Connection Therewith, Allowing Commercial Buildings to Access District Financing, Requiring Consent for Subordination of Mortgage Liens, and Facilitating Private Third-Party Financing. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The Colorado new energy improvement district (district) currently allows for financing of the completion of new energy improvements only for residential real estate. The bill allows owners of commercial property to utilize such financing, repeals the maximum 95 percent loan-to-value requirement for qualified applicants, and repeals the percentage-of-value and dollar caps on allowable new energy improvements. The bill also includes fuel cells within the definition of “renewable energy improvement” and includes improvements that increase the overall illumination of a property or bring the property up to building code within the definition of ”energy efficiency improvement.” The bill directs the governor to appoint five members to the district board by Sept. 1, modifies their qualifications, removes the legislative appointees from the board, and reduces the quorum from six to four members.

The bill directs the district to develop:

  • A program for the financing of new energy improvements by private third-party financing in addition to by district bonds; and
  • The parameters for requiring consent in all cases by existing mortgage holders to subordinate the priority of their mortgages to the priority of the district’s lien.

Current law includes increased market value and decreased energy bills attributable to a new energy improvement in the calculation of the amount of the special assessment; the bill repeals these factors from that calculation and also repeals language that allows special assessments to be prepaid.

If district special assessments are attributable to new energy improvements that were financed by a private third party:

  • The bill directs the board to credit the proceeds of the special assessments to the private third party; and
  • The bill specifies that district bonds are not payable from the special assessments.

The bill also prohibits county assessors from taking into account any increase in the market value of the eligible real property resulting from the completion of a new energy improvement when assessing the value of the property. The bill also affirms that the state will not impair the rights or remedies of private third parties that have financed new energy improvements. Current law conditionally repeals the district on Jan. 1, 2016; the bill repeals the repeal date.

On March 21, the Agriculture, Natural Resources, & Energy amended the bill then sent it to the full Senate for consideration on 2nd Reading.

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SB 13-183: Prohibiting Common Interest Communities from Restricting Xeriscape or Other Drought-Tolerant Landscapes

March 21, 2013 by Leave a Comment

On Tuesday, February 19, 2013, Sen. Morgan Carroll introduced SB 13-183 – Concerning Water Conservation Measures in Common Interest Communities. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill amends current law to specify that restrictive covenants or declarations, bylaws, and rules and regulations of common interest communities that prohibit or limit xeriscape or drought-tolerant vegetation or require ground covering vegetation to consist of any amount of turf grass are contrary to public policy and unenforceable. The bill also adds a definition of “xeriscape” to the “Colorado Common Interest Ownership Act” and says that a unit owners’ association (association) may not prohibit the use of xeriscape or other drought-tolerant vegetative landscapes to provide ground covering and may not levy fines against unit owners for violations of declarations, bylaws, or rules and regulations of the association for failure to adequately water when water restrictions are in place and the unit owner waters in compliance with those restrictions. On March 5, the bill passed out of the Senate; it has been assigned to the Local Government Committee in the House.

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Colorado Court of Appeals: Mechanics’ Lien Had Priority Over Bank Lien But Lien Cannot Be Filed in Excess of Contract Price

March 21, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Byerly v. Bank of Colorado on Thursday, March 14, 2013.

Excessive Mechanic’s Lien—CRS § 38-22-101(3).

Defendants Bank of Colorado and Delta Properties II, LLC (collectively, Bank) appealed the trial court’s judgment in favor of Daniel Byerly (Contractor). The judgment was reversed and the case was remanded with directions.

In 2006, Widwing Development, LLC (Developer) hired Contractor to help develop a residential subdivision in Timnath. It was a four-phase project with an extensive contract, including a compensation scheme that involved both cash payments and “Lot Compensation.” By late 2009, Developer had sold only half of the thirty-two villa home lots (valued at $110,000 each) and four of the seventy-six single family home lots (valued between $294,500 and $350,000). It had not paid Contractor’s monthly fee for several months. The Bank, which had issued construction loans to Developer, declared a default. Though Developer was in no position to do so, it sent Contractor a letter stating that as of January 5, 2010, Contractor had “earned” Lot Compensation for the first phase. The Bank later foreclosed and acquired the unsold land parcels. Neither Developer nor the Bank ever tendered Lot Compensation to Contractor.

In March 2010, shortly before the Bank’s foreclosure, Contractor recorded a mechanic’s lien on one of the parcels of land for $824,000 (later amended to $641,000) and filed a complaint in foreclosure, naming the Bank as an interested party. The amended lien included $84,000 of unpaid monthly fees and $557,000 in Lot Compensation. At trial, Contractor admitted that the conditions precedent to Developer’s duty to pay the Earned Cash Value portion of the Lot Compensation had not been met. Contractor also asserted a breach of contract claim against Developer and was awarded a default judgment based on eighteen months of unpaid monthly fees ($126,000), plus interest and costs.

Following a bench trial, the trial court made findings regarding the value of Contractor’s lien and concluded that the “full and accurate value” of Contractor’s services totaled $346,000, to which 12% interest was added, for a total of $417,095. The trial court also made findings regarding whether Contractor had knowingly filed an excessive lien under CRS § 38-22-128, and concluded he did not. The court found in favor of Contractor on his mechanic’s lien claim and ruled that Contractor’s lien was prior to the Bank’s lien.

On appeal, the Bank argued that the trial court erred in determining that Contractor’s lien was measured by the “value” of his services, rather than by the contract terms, and that it was unlawful to file a lien that exceeded the contract price. The trial court interpreted CRS § 38-22-101(3) to mean that when a contract is not recorded, a contractor may file a mechanic’s lien for the “value” of his or her services. The Court of Appeals found that interpretation to disregard the plain language of subsection 3 when read in the context of the entire subsection. Subsection 3 applies only to subcontractors and material providers, not to the direct contractor. Subcontractors are the only ones who would have occasion to do work that must be “deemed” to have been done for the owner, given that the direct contractor already has a contract with the owner. Thus, where a direct contractor performs services, the value of which is alleged to have exceeded the contract price, the contract price is the maximum amount for which a lien can be filed. Accordingly, it was error to find that subsection 3 allowed Contractor to file a lien in excess of the contract price.

The Bank also argued that it was error to determine that Contractor did not violate CRS § 38-22-128 by filing an excessive lien. The trial court found that Contractor could have reasonably anticipated receiving Lot Compensation after Developer informed him that he had “earned” it and, from Contractor’s perspective, it was not obvious that the conditions precedent for Lot Compensation could not occur and would never occur. The Court rejected these findings because there was no evidence in the record to support them. The judgment was reversed and the case was remanded for entry of judgment in favor of defendants.

Summary and full case available here.

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HB 13-1183: Imposing a Cap on the Amount of Tax Exemption that May Be Claimed for Donations of Conservation Easements

March 20, 2013 by Leave a Comment

On January 31, 2013, Rep. Claire Levy and Sen. Kent Lambert introduced HB 13-1183 - Concerning the Imposition of a Cap of 45 Million Dollars on the Total Amount of State Income Tax Credits that May Be Claimed by All Taxpayers Each Year for the Donation of a Conservation Easement in Gross. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Taxpayers are allowed to claim a state income tax credit for donating a conservation easement. Current law caps the total amount of credits that may be claimed by all taxpayers each year for a three-year period. The amount of the cap is $22 million for 2011 and 2012 and $34 million for 2013. Credits that exceed the amount allowed for each year are placed on a wait list for a future year.

The bill extends the cap for 2014 and later years and increases the annual amount of the cap for these years to $45 million. Clarifying amendments on the process of administering the cap are made. On March 15, the House approved the bill on 2nd Reading; the bill is scheduled for 3rd and final Reading in the House on Monday, March 18.

Since this summary, the bill passed the 3rd Reading in the House.

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Tenth Circuit: Court Lacked Jurisdiction in Case About Leasing of Federal Land Under the Administrative-Remand Rule

March 14, 2013 by Leave a Comment

The Tenth Circuit issued its opinion in Western Energy Alliance v. Salazar on Friday, March 8, 2013.

This litigation concerned whether the Mineral Leasing Act (“the Act” or “MLA”) requires the Secretary of the Interior (“the Secretary”) to issue leases for parcels of land to the highest bidding energy company within sixty days of payment to the Bureau of Land Management (“BLM”). Appellants (collectively “Energy Companies”) brought suit seeking to compel the Secretary to issue 118 pending leases on which they were the high bidders and more than sixty days had passed since they had paid BLM in full. The district court construed 30 U.S.C. § 266(b)(1)(A) as imposing a mandate on the Secretary to decide whether to issue such pending oil and gas leases within sixty days of payment, and ordered BLM to make such decisions regarding the still pending leases of Energy Companies within thirty days. Energy Companies appeal the district court’s order and continue to assert that § 266(b)(1)(A) requires the Secretary to issue such pending leases within sixty days rather than merely make a decision on whether the leases will be issued.

In addition to the merits, Intervenors (Conservation Groups) asserted that the administrative-remand rule barred jurisdiction over Energy Companies’ appeal. The Tenth Circuit agreed.

It is well settled law that a remand by a district court to an administrative agency for further proceedings is ordinarily not appealable because it is not a final decision. This general principle has been called the “administrative-remand rule.” The Tenth Circuit concluded that issuing specific leases like the leases in this case fell into the category of quasi-adjudicative agency action. In short, this case fell under the administrative-remand rule.

The Tenth Circuit held that the district court’s order was not a final decision for purposes of 28 U.S.C. § 1291. Under the administrative-remand rule, the Tenth Circuit held it lacked jurisdiction and DISMISSED the appeal.

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HB 13-1142: Modifying Four Tax Credit Programs Under the Urban and Rural Enterprise Zone Act

March 13, 2013 by Leave a Comment

On January 18, 2013, Rep. Dickey Hullinghorst and Sen. Rollie Heath introduced HB 13-1142 - Concerning Reforms to the “Urban and Rural Enterprise Zone Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill:

  • Commencing Jan. 1, 2014, requires the director of the Colorado office of economic development and the Colorado economic development commission (commission) to review the enterprise zone designations at least once every 10 years to ensure that the existing zones continue to meet the statutory criteria to qualify as an enterprise zone.
  • For credits certified on or after Jan. 1, 2014, limits the amount of an income tax credit that may be claimed in an income tax year for qualified investments in an enterprise zone to the sum of the taxpayer’s actual tax liability for the income tax year up to $5,000, plus 50 percent of any portion of the tax liability for the income tax year that exceeds $5,000 up to a maximum of $1 million.
  • Allows a taxpayer to appeal to the commission for a credit in excess of the $1 million limit.
  • Requires the commission to annually post information regarding certified investment tax credits on its web site or the Colorado office of economic development’s web site.
  • Increases the income tax credit for investments made in a qualified job training program in an enterprise zone for income tax years commencing on and after Jan. 1, 2014, from 10 percent of the total investment to 12 percent.
  • Increases the income tax credit for establishing a new business facility in an enterprise zone for income tax years commencing on and after Jan. 1, 2014, from $500 for each new business facility employee to $1,100.
  • Increases the income tax credit for each new business facility employee in an enterprise zone who is insured under a health insurance plan or program provided through his or her employer for income tax years commencing on and after Jan. 1, 2014, from $200 per such employee to $1,000.

    • On Feb. 28, the Finance Committee took testimony and delayed action on the bill to a future date.

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    Tenth Circuit: Dismissal of Plaintiffs’ Claims in Foreclosure Action Affirmed

    March 12, 2013 by Leave a Comment

    The Tenth Circuit issued its opinion in Toone v. Wells Fargo Bank on Friday, March 8, 2013.

    Bryan and JoLynne Toone executed a promissory note (the Note) secured by a deed of trust on their home (the Trust Deed). The Note was assigned several times. After the Toones defaulted on the Note, their home was scheduled to be sold at a trustee’s foreclosure sale. They filed suit to halt the foreclosure and to obtain damages and declaratory relief based on alleged violations of statutory and common law duties by numerous parties who had current or prior interests in the Note and Trust Deed or were involved in the foreclosure efforts. Defendants filed separate motions to dismiss under Fed. R. Civ. P. 12(b)(6), which the district court granted. The Toones appealed.

    “A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

    The heart of the Toones’ claims was the challenge to the various assignments of the Note. The gravamen of their complaint was the allegation that the purported endorsements on the Note were defective for many reasons, such that subsequent banks never legally became the owner/endorsee of the Note. The problem for the Toones is that their complaint did not adequately allege that the endorsements were improper. It asserted that the endorsements were invalid because the first was signed by an underwriting assistant for the assignee instead of the assignor, and the remaining ones were “robosigned.” However, the face of the Note contradicted the Toones’ allegations. Accordingly, the factual predicate of most of the Toones’ arguments on appeal is undermined.

    Toones’ opening brief on appeal also asserted that the defendants committed multiple acts that constituted violations of the Fair Debt Collection Practices Act (FDCPA). The brief failed, however, to specify what those acts were. The issue was so inadequately treated in the argument sections of opening briefs, the Tenth Circuit concluded it did not deserve its attention.

    The Toones next claimed that Wells Fargo violated the Real Estate Settlement Procedures Act  (RESPA) by not responding to their written requests for information. To survive a Rule 12(b)(6) motion to dismiss a claim under § 2605(e) of RESPA, plaintiffs must plead actual damages stemming from the failure to respond to requests or a pattern or practice of misconduct. See Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505, 510–11 (8th Cir. 2012).  The Tenth Circuit held this claim must fail due to the conclusory nature of the complaint.

    AFFIRMED.

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