August 22, 2019

Archives for April 1, 2013

Colorado Court of Appeals: Consecutive Sentencing Improper for Counts that Make Up the Same Act

The Colorado Court of Appeals issued its opinion in People v. Torrez on Thursday, March 28, 2013.

Sexual Assault on a Child—Sentence Enhancers—Illegal Sentence—Concurrent Sentence—Consecutive Sentence—Sexually Violent Predator.

Defendant pleaded guilty to fourteen sex offenses. Among these were five pairs of sex offenses in which, he alleged on appeal, the two counts in each pair were based on identical evidence. The trial court sentenced him to consecutive sentences for the two counts in each of the pairs. Defendant appealed these consecutive sentences. The judgment was affirmed, the sentence was affirmed in part and reversed in part, and the case was remanded.

Defendant argued that counts 3, 7, and 15 of the information charged only sentence enhancers, not substantive crimes. Here, counts 3, 7, and 15 charged both substantive crimes—sexual assault on a child (counts 3 and 15) and sexual assault on a child by one in a position of trust (count 7)—as well as sentence enhancers. The Court of Appeals concluded that these counts identified the elements of the crimes charged and closely tracked the statutory language. Counts 3 and 15 are substantially the same as the statutory language of the crime of sexual assault on a child found in CRS §18-3-405. Count 7, which charged defendant with the crime of sexual assault on a child by one in a position of trust, closely tracked the language of CRS § 18-3-405.3. This substantial similarity means that defendant was adequately notified of the charges he faced so that he could prepare his defense and prevent further prosecution on the same charges if he were to be convicted or acquitted. The additional presence of a sentence enhancer in these counts does not undercut this conclusion.

Defendant also argued that the trial court imposed an illegal sentence when it ordered that he serve consecutive prison terms for counts 2 and 3, 9 and 10, 11 and 12, 14 and 15, and 19 and 20. On its face, the information provides support for the conclusion that the two counts in each pair resulted from the same act, so the evidence of the act is identical. Subsection 408(3) controls this case, and it requires that defendant receive concurrent sentences for the convictions of the paired counts because they relied on identical evidence. Further, subsections 408(3) and 1004(5)(a) do not conflict and can be construed harmoniously. Thus, subsection 1004(5)(a) does not create an exception to the general rule found in subsection 408(3) that a court must impose concurrent sentences for counts based on identical evidence. Therefore, the consecutive sentences for the two counts in each pair are illegal, and, to remedy that problem, concurrent sentences must be imposed for the two counts in each pair. As a result, the aggregate indeterminate sentence in this case was reduced from 300 years to life to 192 years to life.

Defendant further argued that the trial court abused its discretion when it imposed a maximum sentence. The trial court expressly found that the heinous nature of defendant’s crimes, including defendant’s repeated physical and sexual abuse of twins and the fact that he impregnated the girl four times beginning at age 12, justified the maximum possible sentence. Furthermore, there was ample evidence to support the trial court’s finding that defendant was highly likely to reoffend. These findings supported a conclusion that defendant is a sexually violent predator.

Summary and full case available here.

Colorado Court of Appeals: Restitution for Lost Wages Justified but Reversed for New Findings on Value of Damaged Ring

The Colorado Court of Appeals issued its opinion in People v. Henson on Thursday, March 28, 2013.

Restitution—Fair Market Value—Lost Wages.

Defendant Cassandra Henson appealed the district court’s order imposing restitution in the amount of $8628.31. The order was affirmed in part and reversed in part.

Henson stole the victim’s purse, which contained, among other personal property, a 1.5 carat European cut diamond ring that had belonged to the victim’s grandmother. Ultimately, the victim recovered the ring, but it was returned to her with the diamond in an unfinished state and approximately .2 carats smaller than it had been when it was stolen. The court ordered Henson to pay a total of $8,628.31 in restitution, including $2,925 in lost wages and $4,425.45 for the diamond ring. Henson appealed the restitution order.

Henson argued that the district court abused its discretion in awarding restitution for the victim’s lost wages based on the days that she investigated the theft of her purse, because there was no evidence that the victim had actually lost wages on those days. The evidence sufficiently supported the district court’s finding that work was available to the victim, and the victim was unable to work for six-and-one-half days due to her investigation of and the additional activities necessitated by Henson’s theft. The Court of Appeals concluded that the district court did not abuse its discretion in awarding restitution in the amount of $2,925 for the victim’s lost wages.

Henson next contended that the district court erred in awarding restitution in the amount of $4,425.45 for the diamond ring. The district court properly sought to determine the amount of restitution to be awarded for the ring by (1) adding the replacement value of the diamond and the cost to repair the mount and mount the diamond, and (2) subtracting from that sum the value of the returned ring. Here, there is ample evidence in the record to support the district court’s findings that the cost of the replacement diamond was $4,750.45 and the cost to fix the ring mount and to mount the new diamond was $175. The evidence does not support the district court’s finding, however, that the value of the returned ring, which the victim decided to keep, was $500. Therefore, the district court’s order awarding restitution for the ring was reversed, and the case was remanded with instructions that the court reconsider the amount of such restitution.

Summary and full case available here.

Tenth Circuit: 11 U.S.C. § 362(a)(1) Does Not Stay Appeal from Tax Court

The Tenth Circuit published its opinion in Schoppe v. Commissioner of Internal Revenue on Thursday, March 28, 2013.

John H. Schoppe petitioned for review of a Tax Court decision finding him liable for tax deficiencies. While the case was proceeding, Mr. Schoppe filed a bankruptcy petition. That filing prompted the Tenth Circuit to request supplemental briefing from the parties on whether the automatic bankruptcy stay in 11 U.S.C. § 362(a)(1) would apply to this appeal.

The Tenth Circuit held that § 362(a)(1) did not stay the appeal. It was an open question in the Tenth Circuit whether a proceeding is initiated by the debtor when he files a petition in Tax Court or whether the Tax Court proceeding is a continuation of the proceeding initiated against the debtor when the Commissioner begins the administrative process of determining that there is a tax deficiency. The Tenth Circuit agreed with the four circuits that have applied a bright-line rule that a petition filed in Tax Court is an independent judicial proceeding initiated by the debtor, not the continuation of an administrative proceeding. Because the underlying case originated with Mr. Schoppe commencing a judicial proceeding in Tax Court, The Tenth Circuit concluded the automatic stay did not apply.

On the merits, Mr. Schoppe did not file timely federal tax returns for the years 2002 through 2007. The IRS sent Mr. Schoppe a notice of deficiency, determining his income tax deficiencies, as well as additional amounts for failing to file returns, failing to pay tax when due, and failing to pay estimated tax. The Tax Court sustained the IRS’s determination of the deficiencies, concluding that Mr. Schoppe failed to adequately substantiate deductions he claimed for business expenses. Mr. Schoppe appealed.

Finding no clear error, the Tenth Circuit agreed with Tax Court’s determination that Mr. Schoppe failed to substantiate his claimed business expenses.

Tax Court’s decision AFFIRMED.

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

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.


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.


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.

Tenth Circuit: Unpublished Opinions, 3/28/13

On Thursday, March 28, 2013, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. Rauch

Kemper v. Colvin

United States v. Avalos-Estrada

Lee v. Cohen, McNeile & Pappas, PC

United States v. Hernandez-Castillo

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

HB 13-1210: Repealing Requirement that Criminal Defendant Charged with Certain Offenses Meet with Prosecuting Attorney Prior to Appointment of Counsel

On February 1, 2013, Rep. Elena Kagan and Sen. Pat Steadman introduced HB 13-1210 – Concerning Appointment of Legal Counsel During Plea Negotiations for Indigent Adult DefendantsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

To make Colorado law consistent with recent U.S. supreme court decisions regarding the right to legal counsel during critical stages, including plea negotiations, this bill repeals a statute that requires an indigent person charged with a misdemeanor, petty offense, or motor vehicle or traffic offense to meet with the prosecuting attorney before legal counsel is appointed. On March 21, the Judiciary Committee approved the bill after amending it and sent it to the Appropriations Committee for consideration of the fiscal impact.

HB 13-1206: Modifying Cap on Incentive Payments or Credits as Business Incentive Agreements with Municipalities, Counties, and Special Districts

On February 1, 2013, Rep. Brian DelGrosso and Sen. Mark Scheffel introduced HB 13-1206 – Concerning the Expansion of a Local Government’s Ability to Enter Into a Business Incentive Agreement with a TaxpayerThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A county, municipality, or special district (local government) is currently authorized to negotiate an incentive payment or credit with a taxpayer that establishes a new business facility or expands an existing business facility (business incentive agreement).

As amended in the House, the bill expands the authority for a local government to negotiate a business incentive agreement with a taxpayer that has an existing business facility in the local government if, based on verifiable documentation, the local government is satisfied that there is a substantial risk that the taxpayer will relocate the facility out of state. The verifiable documentation must include information that the taxpayer could reasonably and efficiently relocate the facility out of state and that at least one other state is being considered for the relocation.

A local government negotiating any type of business incentive agreement is not required to inform a school district of the negotiations because school districts are no longer authorized to enter into business incentive agreements. The bill was given final approval in the House on March 5.