December 10, 2018

Archives for May 24, 2018

Colorado Court of Appeals: Practice of Billing Foreclosure Clients for Costs Not Incurred Violates CCPA

The Colorado Court of Appeals issued its opinion in State of Colorado ex rel. Coffman v. Robert J. Hopp & Associates, LLC on Thursday, May 17, 2018.

Foreclosure Commitments—Colorado Consumer Protection Act—Colorado Fair Debt Collection Practices Act—Deceptive Trade Practices—Statute of Limitations—Title Insurance Policy—Cancellation Fee—Civil Penalties—Evidence.

Hopp is an attorney whose law firms provided legal services for mortgage defaults, including residential foreclosures, in Colorado. Hopp also owned businesses that supported the law firms’ foreclosure services, including National Title, LLC and First National Title Residential, LLC, which provided foreclosure commitments for the law firms. National Title and First National Title Residential issued title commitments and policies through an underwriter, Fidelity National Title Insurance Company (Fidelity). Fidelity had a Division of Insurance (DOI)-approved manual that set forth rates and charges for foreclosure commitments.

While representing loan servicers, the law firms typically ordered foreclosure commitments from Hopp’s title companies. National Title invoiced the law firms a charge of 110% of the schedule of basic rates upon the delivery of a foreclosure commitment. As a routine practice, within 10 days of filing a foreclosure action, the law firms passed this cost on to the servicers by billing and seeking reimbursement from them for the charge of 110% of the schedule of basic rates, even though this cost may not have actually been incurred.

The State of Colorado ex rel. Cynthia H. Coffman, Attorney General for the State of Colorado, and Julie Ann Meade, Administrator, Uniform Consumer Credit Code (collectively, plaintiffs) sued Hopp, his law firms, his affiliated title companies, and his business that provided accounting and bookkeeping services for the law firms and title companies (collectively, defendants), alleging that defendants violated the Colorado Consumer Protection Act (CCPA) and the Colorado Fair Debt Collection Practices Act (CFDCPA) by engaging in the billing practices described above. The district court found in favor of plaintiffs and imposed penalties of $624,000.

On appeal, defendants contended that the trial court erred by imposing penalties under the CCPA and the CFDCPA because they were barred by the one-year limitation period in C.R.S. § 13-80-103(1)(d) and C.R.S. § 5-16-113(5) (CFDCPA claims), and C.R.S. § 6-1-115 (CCPA claims). Because the CCPA contains a statute of limitations specifically addressing cases brought under its provisions, the three-year statute of limitations controls over the more general C.R.S. § 13-80-103(1)(d). Further, because the CFDCPA did not contain a clear statute of limitations applying to government enforcement actions at the times relevant to this action, a catch-all provision applies requiring the government to file any claims within one year of discovery, which was done in this case. Therefore, the trial court did not err in concluding that the CFDCPA claims were timely filed.

Defendants next contended that the trial court erred when it concluded that they violated the CCPA and the CFDCPA by charging 110% of the schedule of basic rates for foreclosure commitment required by Fidelity’s rates on file with the DOI. This was the same amount that Fidelity’s manual listed as the charge for a completed title insurance policy, even in cases where the policy would never be issued because the foreclosure was cured or cancelled. Defendants did not charge amounts in compliance with Fidelity’s filed rates because they required payment from servicers even when a title insurance policy was never issued. The evidence supported the trial court’s finding that defendants misrepresented the premium charges as actually incurred costs. Therefore, the trial court did not err.

Defendants also contended that the trial court erred when it concluded that they knowingly engaged in a deceptive trade practice. Here, the trial court’s finding that defendants acted knowingly was supported by evidence in the record.

Defendants next argued that the trial court abused its discretion when it admitted plaintiffs’ Exhibit 103 and relied on it in assessing civil penalties against defendants. Exhibit 103 is a 1,114-page spreadsheet compiling electronic invoicing data submitted by Hopp’s law firms through a billing software to the servicers from 2008 until the time of trial. The trial court did not abuse its discretion when it admitted Exhibit 103 as a business record under CRE 803(6).

Plaintiffs contended on cross-appeal that the trial court abused its discretion when it admitted defendants’ Exhibit 1093 to rebut plaintiffs’ Exhibit 104. At times, servicers directed the law firms to order foreclosure commitments from LSI Default Title and Closing (LSI), instead of from one of Hopp’s affiliated title companies. Plaintiffs amended their complaint to add claims for defendants’ violation of the CCPA and CFDCPA through conduct regarding the LSI transactions. Exhibit 104 reflected that LSI appeared to charge defendants only $350 for title commitments ordered, which was representative of a cancellation fee. Exhibit 1093 was an email from an LSI representative to Hopp’s wife, which included an attached spreadsheet showing charges for full policy premiums rather than outstanding charges of $350. There were “unusual and unexplained adjustments” to Exhibit 104, and the trial court declined to place any weight on the exhibit in its final order and concluded that plaintiffs failed to prove their claim based on the LSI transactions. Here, there was a proper foundation for admitting Exhibit 1093, and given the late addition of the LSI claim and the parameters of the claim set forth in the plaintiffs’ written notice, the trial court did not abuse its discretion in declining to exclude Exhibit 1093 as a sanction for defendants’ failure to supplement their mandatory disclosures at a late point in litigation.

Both parties requested an award of attorney fees and costs incurred in this appeal. Plaintiffs, but not defendants, are entitled to an award.

The judgment was affirmed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Attorney Fee Award Non-dischargeable as Civil Penalty Under CCPA

The Colorado Court of Appeals issued its opinion in State of Colorado ex rel. Coffman v. Robert J. Hopp & Associates, LLC on Thursday, May 17, 2018.

Bankruptcy—Attorney Fees—Colorado Consumer Protection Act—Colorado Fair Debt Collection Practices Act—Civil Penalty—Reasonableness—Groundless.

The State brought an action alleging that Hopp and his wife Lori Hopp, and Hopp’s law firms and affiliated companies, violated the Colorado Consumer Protection Act (CCPA) and the Colorado Fair Debt Collection Practices Act (CFDCPA) (see 2018 COA 69, No. 16CA1983, State of Colorado v. Robert J. Hopp & Associates, LLC). The district court entered judgment against Hopp and in favor of plaintiffs, but concluded there was insufficient evidence to find Lori Hopp liable for any alleged misconduct. The trial court also awarded plaintiffs most of their reasonable attorney fees and costs incurred in bringing the enforcement action under the CCPA and CFDCPA.

On appeal, Hopp contended that the trial court erred when it imposed an award of attorney fees and costs against him because it was precluded from doing so by his discharge of debts in bankruptcy. Hopp filed for bankruptcy in January 2013 and obtained a discharge in February 2014. Plaintiffs’ enforcement action was filed 10 months later. Hopp argued that the bankruptcy discharge applied to any claim for attorney fees and costs that could have been fairly or reasonably contemplated during the bankruptcy case. The trial court’s attorney fee awards under the CCPA and CFDCPA are not dischargeable, and the Court of Appeals declined to order that they be vacated as void under 11 U.S.C. § 5243.

Hopp further contended that the trial court erred when it failed to reduce plaintiffs’ attorney fees award by the amount of any fees incurred for their unpursued and unsuccessful claims. Because plaintiffs’ claims involved a common core of facts and were brought under the same legal theories, the trial court did not abuse its discretion in declining to reduce plaintiffs’ attorney fees.

Lori Hopp contended that the trial court erred in rejecting her argument that she was entitled to her attorney fees and costs under C.R.S. §§ 13-17-101 to -106 for defending against plaintiffs’ eventually unsuccessful claims against her. The trial court’s decision that plaintiffs’ CCPA claim against Lori Hopp was not substantially groundless was not manifestly arbitrary, unreasonable, or unfair, and the trial court did not abuse its discretion when it declined to award her attorney fees.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Statute of Limitations Does Not Begin when Party Signs Prepared Document

The Colorado Court of Appeals issued its opinion in Bell v. Land Title Guarantee Co. on Thursday, May 17, 2018.

Buy and Sell Contract—Mineral Rights—Warranty Deed—Negligence—Breach of Contract—Statute of Limitations—Third Party—Cause of Action—Accrual Date.

The Bells hired Orr Land Company LLC (Orr) and its employee Ellerman to represent them in selling their real property. Orr found a buyer and the Bells entered into a buy and sell contract with the buyer, which provided, as pertinent here, that the sale excluded all oil, gas, and mineral rights in the property. Orr then retained Land Title Guarantee Company (Land Title) to draft closing documents, including the warranty deed. In 2005 the Bells signed the warranty deed and sold the property to the buyer. The Bells didn’t know that the warranty deed prepared by Land Title didn’t contain any language reserving the Bells’ mineral rights as provided in the buy and sell contract. For over nine years, the Bells continued to receive the mineral owner’s royalty payments due under an oil and gas lease on the property. In 2014 the lessee oil and gas company learned that the Bells didn’t own the mineral rights, so it began sending the payments to the buyer. After that, the Bells discovered that the warranty deed didn’t reserve their mineral rights as provided in the buy and sell contract. In 2016 the Bells filed this negligence and breach of contract action against defendants Land Title, Orr, and Ellerman. Defendants moved to dismiss, arguing that the Bells’ claims were untimely because the statute of limitations had run. The district court granted defendants’ motion to dismiss.

On appeal, the Bells contended that the district court erred in granting defendants’ motions to dismiss because they sufficiently alleged facts that, if true, establish that the statute of limitations didn’t begin to accrue on their claims until the oil and gas company ceased payment in September 2014, which is when they contended they discovered that the warranty deed didn’t reserve their mineral rights. A plaintiff must commence tort actions within two years from the date the cause of action accrues, and contract actions within three years from the date the cause of action accrues. A cause of action accrues on the date that “both the injury and its cause are known or should have been known by the exercise of reasonable diligence.” The trial court relied on the legal principle that one who signs a document is presumed to know its contents, so the Bells should have known on the day they signed the deed that the mineral rights reservation language was not included, and thus their claims accrued on that date. However, the presumed-to-know principle applies conclusively only where a party (for example, a grantor) seeks to avoid the legal effects of a deed in an action against another party to the conveyance (a grantee), not where a party (a grantor) asserts claims against third parties who failed to conform the deed to an underlying agreement on that party’s behalf. Here, the Bells claims against defendants, who aren’t parties to the deed, don’t seek to avoid the deed, but seek damages for negligent preparation of the deed, and the purpose of the presumed-to-know principle isn’t applicable. Taking the complaint’s factual allegations as true, the Bells filed their negligence and breach of contract claims within the statute of limitations and stated a plausible claim for relief. The court erred in granting defendants’ motions to dismiss.

The order of dismissal was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Municipality Cannot Remove Property from Regional Transportation Authority Simply by Annexing Property

The Colorado Court of Appeals issued its opinion in Wal-Mart Stores, Inc. v. Pikes Peak Rural Transportation Authority on Thursday, May 17, 2018.

Annexation—Colorado Constitution Article XX, section 6—Regional Transportation Authority—Sales Tax—Use Tax—Matter of Mixed Local and State Concern.

Colorado’s Regional Transportation Authority law (RTA Law) allows municipalities, counties, special districts, and the state to combine to provide regional transportation services and to collect sales and use taxes to pay for such services. In 2014, the City of Fountain annexed a parcel of vacant land (the Property) from unincorporated El Paso County. The Property was within the boundaries of the Authority when it was formed in 2004. Fountain, a home rule city in El Paso County, has never been a member of the Authority. After the Pikes Peak Rural Transportation Authority (Authority) announced its intention to collect a 1% sales tax from recently built retail businesses on the Property, the operators of the businesses, Wal-Mart Stores, Inc. and Sam’s West, Inc. (collectively, plaintiffs) filed a declaratory judgment action against the Authority and the Colorado Department of Revenue (DOR), which collects sales tax on behalf of both Fountain and the Authority. Plaintiffs sought a declaration that defendants could not collect sales and use taxes on the Property because the Property was now part of Fountain, which was not a member of the Authority. On cross-motions for summary judgment the district court declared that the taxes could be collected and entered summary judgment for defendants.

On appeal, plaintiffs first argued that Fountain’s annexation of the Property removed it from the Authority’s boundaries and that the Authority’s attempt to tax retail sales outside of its boundaries violates the RTA law. A municipality may annex property from unincorporated parts of the county in which it lies. However, that annexation power does not permit a municipality to automatically remove territory from other political subdivisions of the state. The Property remained within the Authority’s boundaries.

Plaintiffs’ also argued that under C.R.S. § 43-4-603(2)(d) the Property was no longer within the boundaries of the Authority due to its annexation by Fountain, which is not a “member of the combination” constituting the Authority and must be deemed to be outside the Authority’s boundaries under RTA Law. The court of appeals concluded that the legislature intended the statute to define the boundaries of an authority at its inception, not to define requirements for changing those boundaries thereafter. Further, the RTA law defines a specific procedure for how territory may be removed from an established authority, which was not followed here. Fountain’s annexation of the Property did not remove it from the Authority’s boundaries.

Plaintiffs further contended that the Authority’s statutory power to tax is preempted by Article XX, section 6 of the Colorado Constitution, which they argued gives home rule cities “plenary” and “sole” authority over local concerns such as municipal taxation and supersedes state statutes that conflict with local laws in these areas. Colorado case law has long recognized that transportation regulation is generally a matter of mixed local and state concern, and the Colorado Constitution does not give home rule cities sole authority over taxation within their boundaries. The provision of transportation services to the Property and the imposition of taxes to pay for such services is not a matter of purely local concern that under article XX, section 6 would supersede conflicting state law. Further, plaintiffs failed to establish that the state statute granting the Authority the right to impose such a tax conflicts with Fountain’s power to impose its own taxes. The district court did not err in rejecting plaintiffs’ preemption argument and concluding that the Authority’s sales tax on eligible transactions on the Property was valid.

Lastly, the court rejected plaintiffs’ argument that the district court erred by failing to address all of the factors that courts frequently consider in determining whether an issue is a matter of local, mixed, or state concern.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 5/24/2018

On Thursday, May 24, 2018, the Colorado Court of Appeals issued no published opinion and 33 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 5/24/2018

On Thursday, May 24, 2018, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Bustamante-Conchas

Green v. Berryhill

United States v. Mays

United States v. Pulham

Christmon v. B&B Airparts, Inc.

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

Utopia Already

“If you had to choose a moment in history to be born, and you did not know ahead of time who you would be—you didn’t know whether you were going to be born into a wealthy family or a poor family, what country you’d be born in, whether you were going to be a man or a woman—if you had to choose blindly what moment you’d want to be born you’d choose now.”

Pres. Barack Obama, 2016

It’s been a good month for optimists in my reading pile. Utopia is already here, they say, and we’ve got the facts to prove it.

Harvard Professor Steven Pinker is his own weather system. Bill Gates called Pinker’s latest book Enlightenment Now “My new favorite book of all time.”

Pinker begins cautiously: “The second half of the second decade of the third millennium would not seem to be an auspicious time to publish a book on the historical sweep of progress and its causes,” he says, and follows with a recitation of the bad news sound bytes and polarized blame-shifting we’ve (sadly) gotten used to. But then he throws down the optimist gauntlet: “In the pages that follow, I will show that this bleak assessment of the state of the world is wrong. And not just a little wrong — wrong, wrong, flat-earth wrong, couldn’t-be-more-wrong wrong.”

He makes his case in a string of data-laced chapters on progress, life expectancy, health, food and famine, wealth, inequality, the environment, war and peace, safety and security, terrorism, democracy, equal rights, knowledge and education, quality of life, happiness, and “existential” threats such as nuclear war. In each of them, he calls up the pessimistic party line and counters with his version of the rest of the story.

And then, just to make sure we’re getting the point, 322 pages of data and analysis into it, he plays a little mind game with us. First he offers an eight paragraph summary of the prior chapters, then starts the next three paragraphs with the words “And yet,” followed by a catalogue of everything that’s still broken and in need of fixing. Despite 322 prior pages and optimism’s 8-3 winning margin, the negativity feels oddly welcome. I found myself thinking, “Well finally, you’re admitting there’s a lot of mess we need to clean up.” But then Prof. Pinker reveals what just happened:

The facts in the last three paragraphs, of course, are the same as the ones in the first eight. I’ve simply read the numbers from the bad rather the good end of the scales or subtracted the hopeful percentages from 100. My point in presenting the state of the world in these two ways is not to show that I can focus on the space in the glass as well as on the beverage. It’s to reiterate that progress is not utopia, and that there is room — indeed, an imperative — for us to strive to continue that progress.

Pinker acknowledges his debt to the work of Swedish physician, professor of global health, and TED all-star Hans Rosling and his recent bestselling book Factfulness. Prof. Rosling died last year, and the book begins with a poignant declaration: “This book is my last battle in my lifelong mission to fight devastating ignorance.” His daughter and son-in-law co-wrote the book and are carrying on his work — how’s that for commitment, passion, and family legacy?

The book leads us through ten of the most common mind games we play in our attempts to remain ignorant. It couldn’t be more timely or relevant to our age of “willful blindness,” “cognitive bias,” “echo chambers” and “epistemic bubbles.”

Finally, this week professional skeptic Michael Sheerer weighed in on the positive side of the scale with his review of a new book by journalist Gregg Easterbrook — It’s Better Than It Looks. Shermer blasts out of the gate with “Though declinists in both parties may bemoan our miserable lives, Americans are healthier, wealthier, safer and living longer than ever.” He also begins his case with the Obama quote above, and adds another one:

As Obama explained to a German audience earlier that year: “We’re fortunate to be living in the most peaceful, most prosperous, most progressive era in human history,” adding “that it’s been decades since the last war between major powers. More people live in democracies. We’re wealthier and healthier and better educated, with a global economy that has lifted up more than a billion people from extreme poverty.”

A similar paeon to progress begins last year’s blockbuster Homo Deus (another of Bill Gates’ favorite books of all time). The optimist case has been showing up elsewhere in my research, too. Who knows, maybe utopia isn’t such a bad idea after all. In fact, maybe it’s already here.

Now there’s a thought.

All this ferocious optimism has been bracing, to say the least — it’s been the best challenge yet to what was becoming a comfortably dour outlook on economic reality.

And just as I was beginning to despair of anyone anywhere at any time ever using data to make sense of things, I also ran into an alternative to utopian thinking that both Pinker and Shermer acknowledge. It’s called “protopia,” and we’ll look at it next time.

 

Kevin Rhodes would create workplace utopia if he could. But since he doesn’t trust himself to do that, he writes this blog instead. Thanks for reading!

Colorado Court of Appeals: District Court Lacks Jurisdiction Over Respondent who Never Received Notice of Protective Proceeding

The Colorado Court of Appeals issued its opinion in In the Interest of Spohr on Thursday, May 17, 2018.

Emergency Guardianship—Non-Emergency GuardianshipPersonal Service of Notice—Jurisdiction—Probate Code.

On July 15, 2016, the Fremont County Department of Human Services (Department) filed a petition for emergency appointment of a guardian for Spohr in the district court. Counsel was appointed for Spohr and an emergency hearing was held three days later. There was no transcript of the hearing and no indication that Spohr was present or that he received notice of the hearing. On July 19 the magistrate issued an order dispensing with notice under C.R.S. § 15-14-312 stating that Spohr would be substantially harmed if the appointment was delayed. The court appointed the Department as emergency guardian and required notice of the appointment to be personally served on Spohr within 48 hours, as required by C.R.S. § 15-14-312(2). There is no proof that service was made. Despite the C.R.S. § 15-14-312(1) requirement that an emergency guardian appointment may not exceed 60 days, the court did not hold another hearing for more than six months and the emergency guardianship remained in place during that time. A permanent guardian was appointed for Spohr at a February 2017 hearing, but there is no indication that he was served with notice of this hearing. The trial court record includes a finding that the “required notices have been given or waived.”

The court of appeals previously remanded this case to the district court to make findings as to whether any of the required notices were ever sent to Spohr. On remand, the Department presented no further information and the court found that the record remained unclear as to service.

On appeal, Spohr argued for the first time that he did not receive personal service of a notice of hearing on the petition for guardianship. As relevant to this case, the Colorado Probate Code requires personal service on the respondent of a notice of hearing on a petition for guardianship. The Probate Code would have allowed the appointment of an emergency guardian to be made without notice to Spohr only if the court found, based on testimony at the emergency hearing, that he would have been substantially harmed if the appointment were delayed. If the protected person was not present at the hearing, he must be given notice within 48 hours after the appointment. While the magistrate made this finding, the requisite notice within 48 hours of the appointment was never made.

The Probate Code does not contain provisions for how a transition is to be made from an emergency guardianship to a non-emergency guardianship. In the absence of such provision, the court concluded that after the 60-day limit on emergency guardianship, if a guardianship is still sought for the protected person, C.R.S. § 15-14-304, governing judicial appointment of a guardian on a non-emergency basis, must be followed. Among other requirements for this process, C.R.S. § 15-14-309(1) requires that a copy of the petition and notice of hearing on the petition must be served personally on the respondent. Further, the notice requirement is jurisdictional, and the lack of notice may therefore be raised at any time. Here, Spohr was not given notice within 48 hours after the appointment of his emergency guardian, nor did he waive notice of the appointment and the ability to request a hearing on the emergency guardian’s appointment. And the emergency guardian served long after 60 days had passed.

The record also fails to show that Spohr was provided with the required notice before his non-emergency guardianship. The failure to personally serve the respondent 14 days before the guardianship hearing is jurisdictional and respondent cannot waive service. Thus the court lacked jurisdiction to appoint a permanent guardian.

The judgment was vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: ICWA Requires Notice to BIA in State with No Designated Tribal Agents

The Colorado Court of Appeals issued its opinion in People in Interest of I.B.-R. on Thursday, May 17, 2018.

Dependency and Neglect—Indian Child Welfare Act Notice—Bureau of Indian Affairs.

In this dependency and neglect proceeding, J.S.R. is the father of one of the four children. He told the Weld County Department of Human Services (Department) that he had Cherokee heritage on his father’s side and his lineage descended from a tribe in Arkansas, but he did not know which tribe. The Department did not notify any tribe or the Bureau of Indian Affairs (BIA) of the dependency and neglect proceeding. Following the filing of their motion to terminate parental rights, the Department sent notice of the termination proceedings to the three federally recognized Cherokee Tribes. Each responded that the child was not a member or eligible for membership. The Department also notified the BIA, but did not mention J.S.R.’s reported affiliation to an unknown tribe in Arkansas. No further inquiry was made and all three parents’ parental rights were terminated.

On appeal, J.S.R. contended that the trial court and the Department did not comply with the Indian Child Welfare Act of 1978 (ICWA) after he asserted Native American heritage. He argued the Department failed to comply with the ICWA’s notice requirements because it did not send notice to any tribes in Arkansas. ICWA-implementing legislation in Colorado requires that in dependency and neglect proceedings, the petitioning party must make continuing inquiries to determine whether the child is an Indian child. When there is reason to know or believe that a child involved in a child custody proceeding is an Indian child, the petitioning party must send notice of the proceeding to the potentially concerned tribe or tribes. The BIA publishes a list of designated tribal agents for service of ICWA notice in the Federal Register each year. There are no federally recognized tribes with designated tribal agents in Arkansas. If the identity or location of a tribe cannot be determined, notice must be given to the BIA. While the ICWA does not require courts or departments of human services to find tribal connections from vague information, it was the BIA’s burden to research whether there could be a tribal connection in Arkansas. However, the notice in this case did not alert the BIA that J.S.R. had reported a tribal connection to Arkansas, so it had no reason to conduct such an investigation.

The case was remanded with detailed directions to proceed with ICWA compliance.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/23/2018

On Wednesday, May 23, 2018, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Barclay v. Bryant

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