June 20, 2019

Archives for March 23, 2012

HB 12-1262: Enacting Amendments to Article 9 of the Uniform Commercial Code, Regarding Secured Transactions, that Were Adopted in 2010 by NCCUSL

On February 7, 2012, Rep. Bob Gardner and Sen. Ellen Roberts introduced HB 12-1262 – Concerning Enactment of Amendments to the Secured Transactions Provisions of the “Uniform Commercial Code.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The CBA LPC has voted to support this bill.

Colorado Commission on Uniform State Laws

The bill enacts amendments to article 9, regarding secured transactions, of the “Uniform Commercial Code,” that were adopted in 2010 by the national conference of commissioners on uniform state laws. Article 9 provides the rules governing any transaction that couples a debt with a creditor’s interest in a debtor’s personal property. If the debtor defaults, the creditor may repossess and sell the property to satisfy the debt.

The creditor’s interest is called a “security interest.” The 2010 amendments to article 9 modify the existing statutes to respond to filing issues and other matters.

The bill provides greater guidance as to the name of a debtor to be provided on a financing statement. For business entities and other registered organizations, the amendments clarify that the proper name for perfection purposes is the name filed with the state and provided on the organization’s charter or other constitutive documents, to the extent there is a conflict with the name on an entity database. In particular, the bill adopts a “safe harbor” rule by leaving intact the requirement that the financing statement use the debtor’s “individual name”, but specifying that the name on the driver’s license will also be sufficient as well as the debtor’s surname and first personal name.

A number of related changes were also made. For example, the 2010 amendments clarify that a change in the name used on a debtor’s driver’s license or the expiration of the driver’s license may qualify as a name change. With respect to trusts, if collateral is held by a statutory trust or in a Massachusetts-type business trust, the trust is a registered organization and the trust’s name is the debtor name. For common law trusts that are not Massachusetts-type business trusts, the financing statement must provide the name of the trust as identified in the trust’s organic records if it has name indicated there, or otherwise the name of the settlor or testator and sufficient additional information to distinguish a particular trust from others held by that same settlor or testator.

The amendments also deal with perfection issues arising on after-acquired property when a debtor moves to a new jurisdiction. Article 9 currently provides that perfection by filing continues for 4 months after the jurisdiction in which the debtor is located changes. However, this temporary period of perfection applies only with respect to collateral owned by the debtor at the time of the change. Even if the security interest attaches to after-acquired collateral, there is currently no perfection with respect to such new collateral unless and until the secured party perfects pursuant to the law of the new jurisdiction. The amendments change this by giving the filer perfection for 4 months in collateral acquired post-move. A similar change is made with respect to a new debtor that is a successor by merger. The new rule provides for temporary perfection in collateral owned by the successor before the merger or collateral acquired by the successor within 4 months after the merger.

Existing law authorizes the debtor to file a correction statement: A claim that a financing statement filed against it was in fact unauthorized. While this filing has no legal effect on the underlying claim, it does put in the public record the debtor’s claim that the financing statement was wrongfully filed. The amendments change this in 2 ways. First, the filing is no longer called a “correction statement,” but is instead referred to as an “information statement”. Second, the amendments authorize the secured party of record to also file an information statement if the secured party believes that an amendment to its financing statement was not authorized. The change addresses concerns of secured parties that an amendment to a different financing statement may be inadvertently filed on the secured party’s financing statement because the amendment contains an error when referring to the file number of the financing statement to be amended.

A number of additional technical amendments are also included in the bill. For example, some extraneous information currently provided on financing statements will no longer be required. A safe harbor for the transfer of chattel paper in conformance with the “Uniform Electronic Transactions Act” is included, and the bill clarifies that the broader override of contractual restrictions found in existing law applies with respect to enforcement of a security interest through the sale or strict foreclosure of payment intangibles and promissory notes. Certificates of title for goods are clarified where the certificates of title are, in whole or in part, in electronic form, and greater guidance is given with respect to the notice requirements applicable to electronic dispositions of collateral (specifically, time and “electronic location” of online auctions) when a security interest is enforced by sale or other disposition of the collateral.

The bill has a uniform effective date of July 1, 2013, so as to allow states to adopt the amendments uniformly and have them become operative simultaneously, thereby avoiding unnecessary conflicts and confusion with respect to interstate transactions. The House adopted the bill on March 5; the Senate Judiciary Committee will hear the bill on Tuesday, March 20 Upon Adjournment.

Since this summary, the bill was referred unamended from the Senate Judiciary Committee to the Senate Committee of the Whole.

Summaries of other featured bills can be found here.

SB 12-154: Creation of Standards for Responsible Medical Marijuana Vendors and for Training of Medical Marijuana Vendors to Receive Responsible Vendor Designation

On February 29, 2012, Sen. Lois Tochtrop introduced HB 12-1226 – Concerning Standards for Responsible Medical Marijuana Vendors. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A person who wants to operate a responsible medical marijuana vendor server and seller training program must submit an application to the medical marijuana state licensing authority. The authority shall approve a program if the program contains, at a minimum, the following components:

  • Program standards that specify, at a minimum, who must attend, the time frame for new staff to attend, recertification requirements, record-keeping, testing and assessment protocols, and effectiveness evaluations; and
  • A core curriculum of pertinent statutory and regulatory provisions

The state medical marijuana licensing authority may grant a licensed medical marijuana business a “responsible vendor” designation. A business receives the designation if all employees who sell or handle medical marijuana, all managers, and all resident on-site owners successfully complete a program that the authority has approved. A designation is valid for 2 years from the date of issuance. If a licensing authority brings an administrative action against a business that has received the designation, the licensing authority shall consider the designation as mitigation. On March 14 the Business, Labor and Technology Committee amended the bill and moved it to the full Senate for consideration on 2nd Reading.

Since this summary, the bill passed a Second Reading with amendments, and on March 21, the bill passed a Third Reading in the Senate, but the Third Reading was reconsidered that same day.

Summaries of other featured bills can be found here.

HB 12-1254: Change in Allocation of Conservation Trust Fund Moneys for Metropolitan District Parks and Recreation Services in Unincorporated Counties

On February 7, 2012, Rep. Keith Swerdfeger and Sen. Angela Giron introduced HB 12-1254 – Concerning the Reallocation of the Conservation Trust Fund to a Metropolitan District that Provides Parks and Recreation Services Within the Unincorporated Area of a County Only. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill changes the reallocation of conservation trust fund moneys to a metropolitan district that provides parks and recreation services exclusively within the unincorporated area of a county from one-half of the percentage to the full percentage which the district’s population within the county is to the total population of the unincorporated area of the county. A metropolitan district may opt-out of the increased reallocation. On March 16, the Appropriations Committee amended the bill and moved it to the House floor for consideration on 2nd Reading.

Since this summary, the bill was laid over daily for Second Reading on March 20.

Summaries of other featured bills can be found here.

HB 12-1244: Requiring the Department of Local Affairs to Develop an Inventory of Local Governments

On February 7, 2012, Rep. Ray Scott and Sen. Joyce Foster introduced HB 12-1244 – Concerning an Inventory of Local Governmental Entities Maintained by the Department of Local Affairs and, in Connection Therewith, Requiring the Inclusion of Certain Information in the Inventory. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the department of local affairs to update its on-line inventory of local governmental entities with certain information, including information about local governmental entity agents authorized to receive notices of claims under the “Colorado Governmental Immunity Act.”

Filing a notice of a claim arising under the act with a person listed as an agent in the inventory is deemed to satisfy requirements for filing such notice. Service to the most recently listed registered agent is deemed valid if the local governmental entity failed to timely update its registered agent information. The bill passed out of the House on February 28 and is assigned to the Local Government Committee. Committee review is scheduled for Tuesday, March 20 at 2 p.m.

Summaries of other featured bills can be found here.

Tenth Circuit: Revised Opinions in Mortgage Fraud Conspiracy Cases

The Tenth Circuit Court of Appeals revised its opinion in United States v. Irvin on Thursday, March 22, 2012.

The Tenth Circuit granted panel rehearing and issued a revised opinion for the case decided August 31, 2011. “In this regard, [the Court noted] that because no petition for rehearing was filed in companioned matter, United States v. Irvin, [with United States v. Miller,] the mandate issued in the normal course on September 22, 2011. Because the grant of rehearing in [Miller] necessarily impacts the Irvin opinion, however, [the Court] sua sponte recall the mandate in that case and likewise direct the clerk to file the attached new decision in that appeal.

Tenth Circuit: Unpublished Opinions, 3/22/12

On Thursday, March 22, 2012, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Unpublished

Peterson v. Sun Life Assurance Co. of Canada

United States v. Pace

Everplay Installation Inc. v. Guindon

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

HB 12-1243: Requiring Governor to Review Process By Which He Appoints Members to Boards and Commissions

On February 7, 2012, Rep. Nancy Todd introduced HB 12-1243 – Concerning the Review Processes Used to Make Appointments to State Boards and Commissions. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In connection with the various state boards and commissions for which the governor possesses the power to make appointments of the members, the bill requires the office of the governor to review the process by which the governor makes such appointments to determine whether and to what extent the process allows for sufficiently diverse representation among the persons serving on such boards and commissions considering such factors as geographic and political background, expertise, and life and work experience of potential appointees.

As part of the review, the bill also requires the governor’s office to review the process by which the governor makes appointments to state boards and commissions in general to determine whether any action could be taken to make the appointment process more uniform and consistent.

The office of the governor is further required to develop recommendations for soliciting the broadest possible applicant pool for making gubernatorial appointments to state boards and commissions. In performing this task, the office of the governor is to consider the use of all available media that would advertise open appointments and mechanisms that would increase the awareness of appointments among the public generally and within various groups with persons representing their interests on the various boards and commissions more particularly.

Not later than December 15, 2013, the bill requires the office of the governor to report any findings and recommendations it has made to the general assembly.

The bill requires the legislative council of the general assembly to undertake the same kind of review with respect to legislative appointments to state boards and commissions that requires the office of the governor to undertake for gubernatorial appointments. As part of the review, not later than December 15, 2013, the legislative council is required to assemble any findings and recommendations it has made into a report for the use of the council, the executive committee of the legislative council, the full membership of the general assembly, and the public. The bill is assigned to the State, Veterans, and Military Affairs Committee; it has not been scheduled for committee review.

Summaries of other featured bills can be found here.

HB 12-1241: Clarifying Requirements for Enterprise Zone Determination and Setting Five-Year Review of Enterprise Zones

On February 7, 2012, Rep. Mark Ferrandino and Sen. Rollie Heath introduced HB 12-1241 – Concerning Enterprise Zone Designations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires any new enterprise zone designation to meet at least 2 of the criteria currently listed in statute, rather than at least one. Additionally, the bill requires the director of the Colorado office of economic development and the Colorado economic development commission to review the enterprise zone designations at least once every 5 years to ensure that the existing zones continue to meet those criteria. As a part of each 5-year review, the director and the commission are required to analyze the annual documentation of efforts required by law. The bill allows the director and the commission to make changes or terminate existing enterprise zone designations based on the review. If it is determined that existing enterprise zone designations need to change or be terminated, the change or termination shall not be undertaken in a high unemployment period. The bill requires any changes or terminations to be reported to the legislative audit committee and the finance committees of the house of representatives and the senate. The bill allows the director and the commission to make recommendations for improved or different criteria to be used for the designation of an enterprise zone. Any recommendations are required to be presented to the legislative audit committee in conjunction with the annual presentation already required by law and reported to the finance committees of the house of representatives and the senate. The bill requires the director of the Colorado economic development commission to notify the state auditor when the review is completed. The state auditor is then required to commence a performance audit of the review undertaken and to submit a report to the governor and general assembly. The bill also requires all enterprise zones to comply with the requirement to submit annual documentation of efforts to improve economic conditions. The bill was given final approval by the House on March 15; it has not been assigned to a committee.

Since this summary, the bill was introduced in the Senate and assigned to the Finance Committee.

Summaries of other featured bills can be found here.

HB 12-1237: Clarifies Which Records Need to be Kept by Owners’ Associations in Common Interest Communities

On February 6, 2012, Rep. Angela Williams and Sen. Ted Harvey introduced HB 12-1237 – Concerning the Records Kept By the Unit Owners’ Association of a Common Interest Community. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill adopts, with some revisions, suggested language from the commission on uniform state laws concerning the records required to be kept by a unit owners’ association concerning the finances, board meeting minutes, and other affairs of a common interest community under the “Colorado Common Interest Ownership Act.” The bill passed out of the House on March 1 and has been assigned to the Local Government Committee in the Senate.

Summaries of other featured bills can be found here.

HB 12-1236: Changing Regulations Related to Paid Solicitations

On February 6, 2012, Rep. Ken Summers and Sen. Cheri Jahn introduced HB 12-1236 – Concerning the Regulation of Charitable Solicitations and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill makes several changes to the laws governing charitable solicitations. The bill excludes grant writers from the definition of “paid solicitor” unless the grant writer’s compensation is computed on the basis of funds raised from the grant. The bill specifies that fundraising on behalf of a named individual is not a charitable appeal and therefore the fundraiser does not have to register with the secretary of state.

In addition, the bill eliminates the need for a charity to request a 3-month extension for the filing of its initial or annual financial report with the secretary of state if the charity has filed for an extension with the internal revenue service.

The bill clarifies that only monetary contributions must be deposited with a financial institution. The bill requires paid solicitors, near the beginning of a telephone solicitation, to disclose that a contribution is not tax-deductible, if that is the case, before soliciting the donation and to state their full and complete name. The bill appropriates $41,440 to the department of state from the department of state cash fund for implementation of the act. The bill cleared the House on March 6. On March 15 the Finance Committee approved the bill and moved it to the Committee on Appropriations.

Summaries of other featured bills can be found here.