August 18, 2019

Archives for March 12, 2013

Congratulations to John Gleason, 2013 Recipient of the ABA Michael Franck Professional Responsibility Award

GleasonJohn Gleason, former Chief Regulation Counsel for the Colorado Office of Attorney Regulation Counsel, has been selected to be the 2013 recipient of the ABA Michael Franck Professional Responsibility Award. The award will be presented at the 39th National Conference on Professional Responsibility on May 30-31, 2013.

The Michael Franck Award is given annually to attorneys whose career commitments in areas such as legal ethics, disciplinary enforcement, and lawyer professionalism demonstrate the best accomplishments of lawyers. It is named in honor of Michael Franck, the former director of the State Bar of Michigan who embraced professional responsibility and worked to improve lawyer regulation in the public interest. He strove to turn intellectual honesty, compassion, and uncompromising ethics to every aspect of the practice of law.

Mr. Gleason is active nationally with the National Organization of Bar Counsel, the National Organization of Judicial Counsel, and the American Bar Association, and he is president of the Board of Directors of the National Client Protection Organization. In early 2013, he accepted a position as the Oregon State Bar’s Director of Regulatory Services, where he is now.

While at the Colorado Office of Attorney Regulation, he served as a member of the Colorado Supreme Court’s Judicial Council and Standing Committee on the Rules of Professional Conduct. Additionally, he was an adjunct professor of law at the University of Denver Sturm College of Law and adjunct faculty member at Columbia College-Denver. Mr. Gleason received national recognition recently for his work investigating and prosecuting Maricopa County Attorney Andrew Thomas in Arizona. He spoke about his experience for CLE in July 2012 (click here to order the homestudy). He also was interviewed for The Docket about the Arizona case.

So You Want to Self-Publish?

I’ve read some terrific books written by Colorado lawyers—fiction, non-fiction, and history books. Lawyers are a talented, creative group and many love to write as a hobby, writing even when spare time is limited—finding time at night and on the weekend to fulfill a passion. If you decide to take the plunge to publish a book or even several, it’s time to get serious. Getting a traditional publishing contract can be difficult, however, and self-publishing has become very popular in the past several years.

Jon Tandler, an attorney with Ryley, Carlock & Applewhite, practices corporate, intellectual property, and publishing law. He works extensively in the publishing industry, representing publishers, distributors, agencies, trade associations, authors, and others as to content acquisition, contracts, licenses, and other legal matters. Jon says that there are many considerations to self-publishing, including one that many people fail to do—creating a business plan. A business plan includes researching the market for your publication, setting a publishing schedule, finding assets, and researching sales and distribution channels.

On March 18, Jon is speaking on self-publishing at a CBA-CLE presentation. The program will be a practical tutorial on several business and legal aspects of self-publishing books and other literary content. He’ll also touch on the issue of plagiarism, which seems to be an increasing problem in the industry.

So, if you’ve seriously thought about self-publishing or just want more information, this seminar will provide some critical, concrete steps to take—before you start.

CLE Program: Self-Publishing—Business and IP—Important Things to Know Before You Start

This CLE presentation will take place on Monday, March 18, 2013, at 12:00 p.m. (noon). Click here to register for the live program, and click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.

Colorado Supreme Court Updates Rules of Criminal and Civil Procedure

On March 7, 2013, the Colorado Supreme Court issued Rule Change 2013(03), amending Rules 5 and 7 of the Colorado Rules of Criminal Procedure. The changes to Rule 5, “Preliminary Procedings,” clarify language regarding the felony complaint, and adds language regarding waiver of the right to a preliminary hearing. The changes to Rule 7, “The Indictment and the Information,” discuss filing for preliminary hearings and set forth time limits. In addition, a subsection (i) was added, which provides time limits for requests to transfer cases to juvenile courts. A redline of the changes is available here.

The Supreme Court issued Rule Change 2013(02) on February 21, 2013, which changed Form 20 in the Appendix to Chapters 1 through 17A – Colorado Rules of Civil Procedure.

Rule Change 2013(01) was issued on February 8, 2013. Colorado Rules of Civil Procedure, Rule 16.2 and Rule 313, were amended with this rule change. The changes to Rule 16.2, “Court Facilitated Management of Domestic Relations Cases and General Provisions Governing Duty of Disclosure,” clarify that if an initial expert report is served early, the rebuttal report need not be submitted until 35 days prior to hearing. The changes to Rule 313, “Counterclaim and Cross Claim,” discuss remand to the county court if the counterclaim that caused removal to district court is dismissed.

All of the Supreme Court’s rule changes are available here.

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

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.


Tenth Circuit: Jury Instructions Proper and Speedy Trial Act Not Violated in Defendant’s Conviction of Bank Fraud

The Tenth Circuit published its opinion in United States v. Loughrin on Friday, March 8, 2013.

Kevin Loughrin was convicted of bank fraud and other charges arising from a check and identity theft scheme.

He appealed his conviction on two grounds: (1) the district court’s jury instructions on the bank fraud  counts, 18 U.S.C. § 1344(2), were erroneous because they did not contain a requirement that Loughrin intended to defraud a bank; and (2) the delay between his indictment and trial violated his rights under the Speedy Trial Act.

Jury Instructions

Loughrin first argued that the district court’s jury instructions on the bank fraud counts, 18 U.S.C. § 1344(2), were erroneous because they did not contain a requirement that Loughrin intended to defraud a bank.

The case law requires the government to prove: “(1) that the defendant knowingly executed or attempted to execute a scheme (i) to defraud [§ 1344(1)] or (ii) to obtain property by means of false or fraudulent pretenses, representations or promises [§ 1344(2)]; (2) that defendant did so with the intent to defraud; and (3) that the financial institution was then insured by the Federal Deposit Insurance Corporation.” United States v. Rackley, 986 F.2d 1357, 1360–61 (10th Cir. 1993).

There is no requirement in either Rackley or the text of § 1344(2) that the fraud must be intentionally directed at a bank. Unlike clause (1), clause (2) does not explicitly state who must be the object of the scheme. Rackley indicates that only an intent to defraud someone is required. 986 F.2d at 1360–61. Thus, under Tenth Circuit precedent, an individual can violate § 1344(2) by obtaining money from a bank while intending to defraud someone else. The fact that Loughrin fraudulently obtained funds using bank checks, even though the bank was not at risk of loss, was sufficient to support his conviction for bank fraud.

The Tenth Circuit concluded the district court did not err in applying the requisite elements for bank fraud under § 1344(2) and that the subsection does not require proof that the defendant intended to defraud a bank.

Speedy Trial Act

Loughrin next argued that the district court violated his rights under the Speedy Trial Act (STA).

The Speedy Trial Act requires that a criminal trial begin no more than seventy days after the filing of an indictment or the defendant’s first appearance in court. 18 U.S.C. § 3161(c)(1). But not every day counts towards the seventy-day limit because of a multitude of statutory exclusions, 18 U.S.C. § 3161(g). If a delay does not fit within an explicit exclusion, the court may still exclude days from the seventy-day tally as long as it makes “findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” Id. § 3161(h)(7)(A).

Loughrin made his first appearance in federal court on June 8, 2010. After a series of continuances for various reasons, Loughrin went to trial in April 2011.

However, after reviewing each continuance in turn, the Tenth Circuit agreed with the district court that Loughrin was tried within seventy days as required by the Speedy Trial Act.


Updated JDF Forms Available in Adoption, Appeals, and Domestic Categories

Three updated JDF forms are now available from the Colorado State Judicial Branch, in the areas of adoption, civil appeals, and domestic relations.

  • JDF 496, “Instructions for Adult Adoption,” in the Adoption category, was revised in February 2013.
  • JDF 126, “Instructions for Filing a County Court Civil Appeal or Small Claims Appeal,” in the Appeals category, was revised in March 2013.
  • JDF 1302, “Order for Publication of Summons/Service by Certified Mail/Publication by Consolidated Notice,” in the Divorce & Family Matters category, was revised in February 2013.

All of State Judicial’s JDF forms are available here.

e-Legislative Report: March 11, 2013

Michael Valdez, the Director of Legislative Relations for the Colorado Bar Association, discusses notable bills at the Capitol in this week’s edition of the e-Legislative Report. The Legislative Policy Committee did not meet on March 8, so there is no update from LPC.

At the Capitol

  • HB 13-1138. Concerning Benefit Corporations. By Rep. Lee and Sen. Kefalas. On Friday, March 9, the House Appropriations moved the bill to the full House for consideration on 2nd Reading. The bill will be on the calendar for 2nd Reading sometime during the week of March 11.
  • On March 8, Governor Hickenlooper signed into law, HB 13-1035. Concerning an increase in the number of judges in certain judicial districts, and, in connection therewith, making an appropriation. The bill creates two new district court judgeships; one each in the 5th and 9th Judicial Districts. Although the bill was signed on March 8, the act doesn’t take effect until July 1.
  • Almost 10 years in the making, SB 13-33. Concerning in-state classification at institutions of higher education for students who complete high school in Colorado was given final approval by the House of Representatives on Friday, March 8. The bill requires an institution of higher education in Colorado to classify a student as an in-state student for tuition purposes if the student: 1) attends a public or private high school in Colorado for least 3 years immediately preceding graduation or completion of a general equivalency diploma (GED) in Colorado; and 2) is admitted to a Colorado institution or attends an institution under a reciprocity agreement
  • Civil Unions watch: SB 13-11. Concerning authorization of civil unions, and, in connection therewith, making an appropriation. By Sen. Steadman and Rep. Ferrandino. On March 6, the Finance Committee approved the bill and referred it to the Appropriations Committee. On March 8, the Appropriations Committee adopted the bill and sent it to the full House for consideration on 2nd Reading. Why all the attention to SB 11? Once approved, the vast majority of the bill goes into effect on May 1. View the current bill version online.

Also available in the e-Legislative Report are summaries of 20 bills of interest — 10 from each house. Click here for the full list of bill summaries, or stay tuned to CBA-CLE Legal Connection.

Governor Hickenlooper Signs Several Bills Into Law

Governor Hickenlooper continues to sign bills into law as they make it through the House and Senate. To date, he has signed 46 bills into law since January 31, 2013. Most recently, he signed 15 bills on March 8, 2013. Five of these bills are summarized here.

The governor also signed four bills on February 27, 2013, which are summarized here.

Prior to this, the governor signed 23 Joint Budget Committee bills and two other bills on February 19, 2013.

For a complete list of the governor’s legislative decisions to date, click here.