May 21, 2019

Archives for March 30, 2015

Frederick Skillern: Real Estate Case Law — Titles and Title Insurance (2)

Editor’s note: This is Part 17 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillernBy Frederick B. Skillern

Egelhoff v. Taylor
Colorado Court of Appeals, August 15, 2013
2013 COA 137,
312 P.3d 270

Spurious lien statute; phony lien against judge.

Lest anyone be confused about why the legislature passed the spurious lien statute in 1998, we give you the case of Denver District Judge Egelhoff. In 2008, the judge sentenced Taylor to prison on a felony conviction. After he was sentenced, Taylor began mailing the judge various documents, claiming that Judge Egelhoff was indebted to him. The judge understandably did not respond. Taylor filed suit, claiming that the judge’s failure to respond created liability to Taylor under a terrific doctrine called the “commercial affidavit process.” Robin Hood could not have done better.

Taylor contends that the “commercial affidavit process” permits an individual to send an affidavit to a purported debtor, claiming the recipient owes the sender a debt, and if the recipient does not specifically rebut the alleged debt, he is deemed to have agreed to the debt and its collection by any means. At our social gathering tonight, perhaps someone can advise us from whence this legal doctrine derives. According to Taylor, a recipient’s silence results in a “self-executing contract,” binding the recipient to pay the amount of the alleged debt. Thus, Taylor argues that, because the judge did not respond to his affidavit, his honor “agreed” that the five hundred million dollar debt was valid.

The panel of the court of appeals, seemingly lacking any sense of humor, goes on for several pages as to why this procedure does not form a contract between judge and convict. An opportunity was missed. It is interesting that this case was selected for publication, when many other real estate cases of considerable substance are passed over.

Ute Mesa Lot 1, LLC v. First-Citizens Bank & Trust Co. (In re Ute Mesa Lot 1, LLC)
United States District Court, District of Colorado, November 25, 2013
No. 12-1134

Bankruptcy; lis pendens; preferential transfer.

Ute Mesa Lot 1, LLC (Ute Mesa) borrowed $12 million from United Western Bank to finance the construction of a home in Aspen. The deed of trust incorrectly named the property’s owner, so the deed of trust was ineffective in giving the Bank a lien on the property. Later, the Bank filed suit to reform the deed of trust and give it a first priority lien on the property. The Bank then recorded a notice of lis pendens with the county real property records. Two months later, Ute Mesa filed for bankruptcy and sought to avoid the lis pendens as a preferential transfer. The bankruptcy court and district court dismissed Ute Mesa’s claim. Ute Mesa appealed, arguing that the lis pendens would prevent a bona fide purchaser from acquiring an interest in the property superior to the Bank’s. Therefore, it was a “transfer of an interest in property” and an avoidable preferential transfer.

The Tenth Circuit holds that a lis pendens is merely a notice and does not constitute a lien, despite the fact that under Colorado law, a lis pendens renders title unmarketable. The lis pendens is not a transfer, so it was not subject to the bankruptcy provision allowing a debtor-in-possession to avoid a transfer of an interest in property that occurs within ninety days before the filing of the bankruptcy petition. The judgment is affirmed.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Court of Appeals: Defendant Has Right to Withdraw Plea as Void Ab Initio Even When Deferred Judgment Completed

The Colorado Court of Appeals issued its opinion in People v. Corrales-Castro on Thursday, March 26, 2015.

Deferred Judgment—Successful Completion of Sentence—Withdrawal of Guilty Plea—Jurisdiction—Immigration Consequences—Voluntary—Unconstitutional—Ineffective Assistance of Counsel.

In 2009, defendant pleaded guilty to criminal impersonation and DUI. The district court imposed a one-year deferred judgment and sentence on the criminal impersonation count, and one year of probation on the DUI count. In 2010, defendant successfully completed the conditions of the deferred judgment and probation. The district court withdrew the guilty plea on the criminal impersonation count, dismissed that count, and closed the case. In 2013, defendant filed a Crim.P. 32(d) motion to withdraw his guilty plea to criminal impersonation, alleging ineffective assistance of counsel. The district court denied the motion, holding that it lacked jurisdiction to consider defendant’s motion to withdraw his guilty plea.

On appeal, defendant argued that the district court erred when it held it did not retain jurisdiction to consider his motion. When a guilty plea that is withdrawn after the successful completion of a deferred judgment may nevertheless result in the removal of a defendant from the United States (or the defendant’s inability to re-enter the country), Crim.P. 32(d) authorizes the defendant to challenge the constitutionality of the plea, regardless of its prior withdrawal. Here, defendant claimed that ineffective assistance of counsel rendered his guilty plea involuntary and thus unconstitutional because his defense counsel had failed to inform him that his guilty plea to criminal impersonation could have negative federal immigration consequences, even if he successfully completed the conditions of the deferred judgment. Furthermore, under the circumstances presented here, a Crim.P. 32(d) motion is not subject to the time limits of CRS § 16-5-402(1), and defendant’s motion is not time barred by that statute. Accordingly, the district court retained jurisdiction to decide defendant’s motion, the order denying defendant’s motion to withdraw his guilty plea under Crim.P. 32(d) was reversed, and the case was remanded for a determination of defendant’s Crim.P. 32(d) motion.

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

Colorado Court of Appeals: Declaratory Judgment Appropriate and Statutory Definition of Firearm Encompasses Bow Hunting

The Colorado Court of Appeals issued its opinion in Moss v. Board of County Commissioners for Boulder County on Thursday, March 26, 2015.

Declaratory Judgment—Firearm—Definition—County Board—Geographic Area.

This case concerns a county resolution that prohibits firearm discharges in a designated area of Sugar Loaf Mountain in unincorporated Boulder County. Moss and Westby live and own property in this area. Colorado Advocates for Public Safety is a nonprofit corporation whose mission is to assist in protecting the public from safety hazards, such as those involving firearms. This dispute between plaintiffs and the Board of County Commissioners for Boulder County (County Board) centers around the definition and scope of this resolution.

On appeal, plaintiffs contended that the district court erred in dismissing their declaratory judgment claim, wherein plaintiffs sought a judicial determination that, as a matter of law, the word “firearm” in CRS §§ 30-15-301 to -302 and Resolution 80-52 includes bows and arrows. Because a declaratory judgment would terminate the controversy or uncertainty regarding the scope of the resolution, plaintiffs’ declaratory judgment claim was properly raised in the district court and the district court erred in declining to address it.

The statute that authorizes counties to prohibit firearm discharges expressly defines “firearm” or “firearms” as “any pistol, revolver, rifle, or other weapon of any description from which any shot, projectile, or bullet may be discharged.” A bow is a weapon and an arrow is a projectile. Therefore, a bow and arrow constitute a “firearm” under this statute, and plaintiffs were entitled to a declaratory judgment in their favor on this issue.

Plaintiffs also requested an expansion of the geographic area covered by the resolution in their claim for injunctive relief. CRS § 30-15-302 does not subject the County Board to any procedural requirements to address plaintiffs’ request, and Colorado’s Administrative Procedure Act does not apply to the County Board. Additionally, plaintiffs concede that they have not asserted and cannot assert a claim under CRCP 106(a)(4) because there has been no final agency action in this case. Finally, plaintiffs have failed to state a constitutional due process claim on which relief can be granted. Therefore, the district court did not err in dismissing plaintiffs’ claim for injunctive relief on this issue.

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

Tenth Circuit: Specific Findings Must be Made Before Occupational Restrictions Imposed

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dunn on Tuesday, February 10, 2015.

Michael Dunn was convicted of possession, receipt, and distribution of child pornography and sentenced to 144 months’ imprisonment followed by 25 years’ supervised release after placing images of child pornography in a shared folder on a peer-to-peer file sharing network. The district court imposed several conditions of supervised release, including restricting Dunn’s ability to use and access computers and the internet, and also imposed restitution based on a request from one of the minors depicted in the images Dunn shared. Prior to his conviction, Dunn was a computer teacher and computer technician. Dunn appealed, arguing: (1) the jury was erroneously instructed that by placing the child pornography images in the shared folder, he could be convicted on the distribution charge; (2) his sentences for receipt and distribution are duplicitous; (3) the district court failed to make the necessary findings regarding the occupational restriction imposed during his supervised release; and (4) the district court applied the wrong legal standard in determining the amount of restitution he was required to pay.

The Tenth Circuit first examined the jury instruction issue, and, following its precedent, found that defendant’s knowing placement of the child pornography files into a shared folder was sufficient to constitute distribution. Dunn also argued that the instructions forced the jury to accept the prosecution’s explanation of how the peer-to-peer software worked, but the Tenth Circuit found nothing to support this conclusion, finding instead that the jury was free to accept either the prosecution’s or the defense’s evidence.

As to Dunn’s second point on appeal, the prosecution conceded that Tenth Circuit precedent precluded separate sentences for both receipt and possession of child pornography regarding the same images. The Tenth Circuit agreed and remanded on this point for vacation of one of the sentences.

Dunn also argued that the district court impermissibly imposed special conditions on his release that prevented him from being employed without making specific findings. The 25-year term of special conditions of Dunn’s release include numerous restrictions on Dunn’s ability to use computers and the internet, which impact his employment as a computer technician and computer teacher. Because the district court did not make specific determinations regarding the necessity of the occupational restrictions and did not impose the restrictions for the minimum time necessary, the Tenth Circuit remanded with instructions for the district court to vacate the restrictions and reconsider the issue with proper findings.

Finally, Dunn argued, and the prosecution agreed, that the district court’s imposition of the victim’s entire amount of restitution was inconsistent with the Supreme Court’s decision in Paroline v. United States. The Tenth Circuit agreed, and, analyzing Paroline‘s effect on restitution awards in child pornography cases, remanded for the district court to consider Dunn’s actual contribution to the victim’s damages.

The judgment was affirmed in part, reversed in part, and remanded with instructions.

Tenth Circuit: Unpublished Opinions, 3/30/2015

On Monday, March 30, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Valdez-Rodriguez v. Holder

Callen v. Wyoming Department of Corrections

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.