September 22, 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 Supreme Court: Disclosed Costs Can Be Actionable Under CCPA if Costs Are Not Actual, Necessary, and Reasonable

The Colorado Supreme Court issued its opinion in State v. The Castle Law Group, LLC on Monday, July 5, 2016.

In this C.A.R. 21 original proceeding, the State appealed from the trial court’s order barring testimony of market rate prices. The State brought CCPA claims against Castle and several affiliated vendors, alleging that the vendors conspired with Castle to charge above market rate prices for various foreclosure-related services, and the inflated charges were eventually carried by mortgage servicers and the public because they relied on Castle’s representation that the costs were “actual, necessary, and reasonable.”

The trial court limited the State’s ability to provide market rate comparisons because it ruled that charging high prices is not illegal, and as long as Castle disclosed everything it charged, there was no deception. The Colorado Supreme Court disagreed with the trial court’s characterization of the CCPA claims. The court ruled that the trial court misperceived the alleged deception: that the prices charged were not “actual, necessary, and reasonable.” Because market rate comparison evidence directly impacts the determination of whether the charges were “actual, necessary, and reasonable,” the supreme court made its Order to Show Cause absolute and remanded to the trial court for further proceedings.

Colorado Court of Appeals: State Entitled to Attorney Fees for Successful Subpoena Enforcement Action

The Colorado Court of Appeals issued its opinion in State of Colorado v. Vaden Law Firm, LLC on Thursday, May 21, 2015.

Investigative Subpoena—Colorado Consumer Protection Act—Attorney Fees.

The State of Colorado served an investigative subpoena on respondent Vaden Law Firm LLC (Vaden) pursuant to CRS § 6-1-108(1) of the Colorado Consumer Protection Act. The State sought records pertaining to costs Vaden had tried to recover on behalf of lenders in foreclosure actions. Vaden refused to produce any records. The State filed an application to enforce the Vaden subpoena in Denver District Court pursuant to CRS § 6-1-109. The court ordered Vaden to produce the requested records but denied the State’s request for attorney fees.

On appeal, the State contended that the district court’s denial of attorney fees was contrary to the plain language of CRS § 6-1-113(4). Subsection 113(4) requires an award of attorney fees and costs in all actions in which the Attorney General “successfully enforces this article.” This includes an award of attorney fees and costs in favor of the State when the State successfully enforces an investigative subpoena pursuant to the procedure dictated by CRS § 6-1-109. Accordingly, the district court’s order was vacated and the case was remanded for a determination of the State’s reasonable attorney fees and costs to be awarded against Vaden.

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

Budget Bills, HOA Transfer Fee Bill, and More Signed by Governor

Governor Hickenlooper signed nine more bills into law last Friday, bringing the total of signed bills up to 147 with two vetoed bills. The nine signed on April 18, 2014, are summarized here.

  • HB 14-1057 – Concerning the Colorado Fraud Investigators Unit, by Rep. Clarice Navarro and Sen. Steve King. The bill increases the fraud investigation surcharge on Uniform Commercial Code (UCC) filings with the Secretary of State from $3 to $4 per filing, effective July 1, 2014, through June 30, 2017.
  • HB 14-1100 – Concerning the Use of Title Documents to Give Notice of Characteristics of Motor Vehicles that Affect a Vehicle’s Value, and, In Connection Therewith, Making an Appropriation, by Reps. Spencer Swalm & Dan Pabon and Sen. Kevin Grantham. The bill requires that a branding be placed on the title of a motor vehicle if the vehicle meets certain criteria, such as if the vehicle is non-repairable, was constructed from two or more vehicles, is junk, and so on.
  • HB 14-1141 – Concerning the Confidentiality of Social Security Numbers Under Statutes Protecting the Privacy of Individuals, by Rep. Don Coram and Sen. Ellen Roberts. The bill amends a statute within the Colorado Consumer Protection Act to provide that an organization may not require disclosure of an individual’s SSN in order for that individual to serve on the organization’s board of directors.
  • HB 14-1186 – Concerning the Release of Medical Records to a Person Other Than the Patient, and, In Connection Therewith, Setting Reasonable Fees to be Paid for the Release of the Medical Records, by Rep. Sue Schafer and Sen. Irene Aguilar. The bill requires health care facilities and providers to release medical records to anyone with a valid authorization or subpoena, and sets reasonable costs for copying the medical records.
  • HB 14-1254 – Concerning a Requirement to Disclose Fees Charged to a Unit Owners’ Association by a Community Association Manager, by Rep. Jeanne Labuda and Sen. David Balmer. The bill requires a licensed community association manager who provides services to an HOA to fully disclose all fees and costs that will be charged to the HOA or unit owners.
  • HB 14-1282 – Concerning the Specification of What Materials May Be Provided in a Language Other Than English by an Insurer to a Customer, by Rep. Dan Pabon and Sen. Lois Tochtrop. The bill specifies that an insurer providing materials to a customer in a language other than English need only supply copies in English of the insurance policies, endorsements, and riders.
  • HB 14-1308 – Concerning Procedures for a Department to Vary an Appropriation, by Rep. Cheri Gerou and Sen. Pat Steadman. The bill, a Joint Budget Committee bill, allows agencies to overexpend appropriations or transfer funds between agencies to cover certain costs in certain situations.
  • HB 14-1340 – Concerning the State Toxicology Laboratory, and, In Connection Therewith, Making an Appropriation, by Rep. Cheri Gerou and Sen. Kent Lambert. The bill, a Joint Budget Committee bill, requires the Colorado Bureau of Investigation to operate a State Toxicology Laboratory on or before July 1, 2015 in order to assist local law enforcement authorities in their enforcement of DUI laws.
  • HB 14-1341 – Concerning a Transfer of Moneys from the State General Fund to the Department of State Cash Fund for the Purpose of Repaying a Prior Transfer, by Rep. Jenise May and Sen. Pat Steadman. The bill, a Joint Budget Committee bill, requires the state treasurer to make a one-time transfer of general fund moneys to the Department of State cash fund in order to repay moneys borrowed during the 2008-2009 fiscal year.

Governor Hickenlooper plans to sign HB 14-1337 – Concerning an Increase in the General Fund Reserve, a Joint Budget Committee bill, today, April 21, 2014, at a press conference.

For a list of Governor Hickenlooper’s legislative decisions, click here.

HB 14-1285: Amending Colorado Consumer Protection Act to Include Colorado Taxpayer Protection Act

On February 19, 2014, Rep. Su Ryden and Sens. Irene Aguilar & Mike Johnston introduced HB 14-1285 – Concerning a Requirement that a Professional Tax Preparer Provide Certain Disclosures to a Client When Preparing Tax Documents for the Client. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a person who prepares, for a fee, an income tax return or a claim for a refund on an income tax return for a taxpayer (professional tax preparer) to make certain disclosures to the taxpayer concerning the professional tax preparer’s qualifications, fees, year-round contact information for the tax preparer or the tax preparation company, willingness to represent the taxpayer in a government audit, and obligation to sign the tax documents prepared. The bill exempts certain certified public accountants, attorneys-at-law, enrolled agents, and individuals employed by a local, state, or federal government agency from having to comply with the disclosure requirements.

The bill makes a professional tax preparer’s failure to provide a taxpayer with the requisite disclosures a deceptive trade practice, and provides the penalty scheme for the deceptive trade practice.

The bill requires the department of revenue to provide a disclosure form available on its web site and requires every professional tax preparer to provide a copy of either the department’s disclosure form or a substantially similar disclosure form to each taxpayer before commencing work on preparing the taxpayer’s income tax return or claim for refund on an income tax return.

The bill criminalizes the act of providing fraudulent information in a professional tax preparer’s disclosure form and makes the crime a class 2 misdemeanor.

The CBA Legislative Policy voted to amend the bill to exempt attorneys at law from the provisions of the act; the bill has been amended accordingly.

The bill passed out of the House on March 17 and is assigned to the Senate Finance Committee.

Since this summary, the bill was amended in the Senate Finance Committee and referred to the Senate Committee of the Whole for consideration on Second Reading.

Colorado Court of Appeals: County Court’s Judgment was Final Determination of Fraud and Plaintiffs Could Recover on Surety Bond

The Colorado Court of Appeals issued its opinion in Mendoza v. Pioneer General Insurance Co. on Thursday, March 13, 2014.

Surety Bond Recovery—Declaratory Judgment—Colorado Consumer Protection Act Fraud Claim.

In March 2009, plaintiffs Mendoza and Gonzales bought an action against Fitzgerald Automotive Group, alleging a claim that Fitzgerald violated CRS § 6-1-708, a provision of the Colorado Consumer Protection Act (CCPA) that expressly prohibits motor vehicle dealers from engaging in certain specified deceptive trade practices. After a trial to a jury, the jury found in favor of plaintiffs on their CCPA claim and also found in a special interrogatory that Fitzgerald had engaged in bad-faith conduct under CRS § 6-1-113(2)(a)(III), which allows for an award of treble damages. Judgment was entered in the amount of $3,500, which was trebled. The court also awarded attorney fees of $15,475 and costs of $436.61.

Fitzgerald then ceased operations and plaintiffs were not able to recover on their judgment. They brought this action against Pioneer General Insurance Company (Pioneer), requesting a declaratory judgment that the motor vehicle dealer’s licensing bond required by CRS § 12-6-111 “is available to consumers who have been damaged by car dealers that commit deceptive trade practices . . . and that the bond is applicable to costs and attorney fees incurred by the consumer. . . .” The district court denied the motion.

On appeal, plaintiffs argued the district court erred because the county court’s judgment was a final determination of fraud or fraudulent representation that was sufficient to satisfy CRS § 12-6-111(2)(b). The Court of Appeals agreed.

Plaintiffs argued that CRS §§ 6-1-708 and 12-6-111 should be read together to accomplish their legislative purpose of providing remedies for consumer fraud. The Court held that § 6-1-708(1)(a)(I) has “at the very least, the element of an intent to deceive.” In essence, the Court found that a prohibited deceptive trade practice requires, as a matter of law, an intent to deceive, which, if found guilty of so doing, is a determination of fraud or fraudulent misrepresentation sufficient to satisfy CRS § 12-6-111(2)(b).

The Court also found that because the CCPA specifically authorizes the recovery of costs and reasonable attorney fees, plaintiffs can recover those fees and costs from Pioneer, as the surety on the bond, in addition to their actual damages of $3,500. Accordingly, the judgment denying plaintiffs’ motion for declaratory judgment was reversed and the case was remanded.

Summary and full case available here.

Colorado Court of Appeals: Colorado Consumer Protection Act Does Not Provide for Trial by Jury

The Colorado Court of Appeals issued its opinion in People v. Shifrin on Thursday, February 27, 2014.

Deceptive Trade Practices—Colorado Consumer Protection Act—CRCP 41(b).

The Attorney General (AG) brought this action against defendant, Leonid Shifrin, Jerry A. Johnson, and five companies with which defendant was involved. The complaint alleged a pattern of deceptive trade practices whereby defendants, acting in concert, fraudulently placed consumers in high risk “option” adjustable rate mortgage loans.

The trial court ruled that defendant was not entitled to a jury trial. The Colorado Consumer Protection Act (CCPA) does not provide for trial by jury. Further, based on the equitable nature of the relief sought under the CCPA, defendant was not entitled to a jury trial.

The trial court refused to stay the trial, pending resolution of federal criminal proceedings against him. The court did not abuse its discretion in this regard because the two proceedings had minimal overlap.

The trial court found a CCPA violation based on the testimony of representative witnesses, without requiring testimony from all thirty-seven borrowers allegedly harmed. Although the CCPA permits the AG to subpoena witnesses, the CCPA does not require the AG to elicit testimony from every consumer who was harmed to prove a violation. Thus, the question becomes whether the evidence was sufficient to prove a CCPA violation.

The trial court admitted the affidavits of borrowers who did not testify at trial. These affidavits constituted inadmissible hearsay, and allowing them into evidence was an abuse of discretion. However, because the trial court found that the affidavits were relevant only to determine the remedy for defendant’s violations of the CCPA, their lack of admissibility affects only restitution and disgorgement. Therefore, the amount of restitution awarded to the borrowers who did not testify was set aside. Further, the disgorgement also reduced by those amounts established through the affidavits.

Defendant contended that the trial court’s restitution award was barred by the credit agreement statute of frauds, CRS § 38-10-124. This statute requires the existence of a debtor–creditor relationship. Defendant, who was a mortgage broker, is not a creditor pursuant to § 38-10-124; therefore, it does not apply and the trial court’s restitution award was not barred. Also, the trial court’s formula for calculating restitution was within its discretion under § 6-1-110.

The trial court concluded that defendant was not entitled to a setoff for the amount paid by codefendant Johnson in settlement. Because tort damages are not recoverable by the AG under the CCPA, defendant was not entitled to a setoff.

The AG argued that the trial court erred in granting Shifrin’s directed verdict motion, because it applied the wrong legal standard. When an action is tried to the court without a jury, a directed verdict motion can be dismissed pursuant to CRCP 41(b). The standard for ruling on a CRCP 41(b) motion is “whether judgment in favor of defendant is justified on the evidence presented.” Because the court applied the wrong legal standard, the case was remanded for the court to consider the motion under CRCP 41.

Summary and full case available here.

Colorado Court of Appeals: Claims Correctly Dismissed Where Plaintiff Failed to Exhaust Administrative Remedies

The Colorado Court of Appeals issued its opinion in Barry v. Bally Gaming, Inc. on Thursday, December 19, 2013.

Limited Gaming Act of 1991—Administrative Remedies—Outrageous Conduct—Contract Claims—Colorado Consumer Protection Act—Jurisdiction.

Plaintiff Charles Barry brought this action after he played a slot machine manufactured by Bally Gaming, Inc. (Bally) in the Lady Luck casino owned and operated by CCSC/Blackhawk, Inc. (Lady Luck). The slot machine indicated that he had won $31,202.41, but it was later determined that the machine had malfunctioned, voiding his winnings. The trial court dismissed Barry’s claims, finding that he failed to exhaust administrative remedies.

On appeal, Barry asserted that the district court erred in dismissing his outrageous conduct and contract claims because the Colorado Limited Gaming Control Commission (Commission) did not have exclusive jurisdiction over those claims. Through the Limited Gaming Act of 1991 (Act), the General Assembly vested in the Commission the authority to regulate limited gaming, and this regulatory power was intended to embrace all aspects of the operation of gaming in Colorado. Barry’s outrageous conduct and contract claims present precisely the type of patron dispute governed by the Act and the “patron disputes” regulation. Accordingly, the district court correctly ruled that these claims fell within the Commission’s exclusive regulatory authority and properly dismissed them.

Barry also contended that the district court erred in concluding that his Colorado Consumer Protection Act (CCPA) claim was within the Commission’s exclusive jurisdiction. Barry, however, failed to assert a CCPA claim that was distinct from a claim falling within the Commission’s exclusive regulatory jurisdiction. Accordingly, the district court correctly ruled that the Commission had original and exclusive jurisdiction over Barry’s CCPA claim and properly dismissed that claim.

Barry further asserted that even if he were required to pursue his administrative remedies, exhaustion here was unnecessary because (1) the matter in controversy raised questions of law that were not within the Commission’s expertise or capacity, and (2) further administrative review before the Commission would have been futile. The Court of Appeals disagreed. Barry’s claims centered not on questions of law but on factual issues falling squarely within the Commission’s regulatory authority and expertise. Moreover, Barry failed to show that exhausting his administrative remedies would be futile. Barry’s remedy was to file an appeal and not a separate action in district court after he had exhausted his administrative remedies. The judgment was affirmed.

Summary and full case available here.

SB 13-248: Allowing the Attorney General or a District Attorney to Enforce Subpoenas Against Out-of-State Persons for Cases Involving Consumer Protection Violations

On Monday, April 1, 2013, Sen. Irene Aguilar introduced SB 13-248 – Concerning the Authority of the Attorney General or a District Attorney to Enforce Subpoenas for Consumer Protection Violations Against Persons Located Outside Colorado. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

For the purposes of the “Colorado Consumer Protection Act,” the “Refund Anticipation Loans Act,” the “Colorado Rental Purchase Agreement Act,” the “Colorado Fair Debt Collection Practices Act,” and the “Colorado Credit Services Organization Act,” the bill states that the power of the attorney general or a district attorney to issue subpoenas includes the right to issue a subpoena to any person, whether in this state or elsewhere, who has engaged in or is engaging in violations of these acts.

For the purposes of the “Colorado Consumer Protection Act,” if the records of a person who has been issued a subpoena are located outside this state, the person shall either:

  • Make them available to the attorney general or district attorney at a convenient location within this state; or
  • Pay the reasonable and necessary expenses for the attorney general or district attorney, or his or her designee, to examine the records at the place where they are maintained.

The attorney general or district attorney may designate representatives, including comparable officials of the state in which the records are located, to inspect the records on behalf of the attorney general or district attorney. The bill was introduced on April 1 and is assigned to the Judiciary Committee.

Since this summary, the bill was referred, unamended, to the Senate Committee of the Whole for Second Reading.

SB 13-182: Amending Provisions of the Colorado Consumer Protection Act Relating to Time Share Transactions

On Tuesday, February 19, 2013, Sen. Jeanne Nicholson introduced SB 13-182 – Concerning Deceptive Trade Practices Related to Time Share Resale Services. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill amends provisions of the “Colorado Consumer Protection Act” relating to time share transactions and, in particular, transactions involving resale time shares. The bill requires entities that provide time share resale services to disclose specified information about the services to the owner of the resale time share, and makes failure to disclose the information a deceptive trade practice. A time share resale entity is prohibited from knowingly transferring or offering to transfer, or receiving compensation in connection with a transfer of, a resale time share to a transferee who is unable or does not intend to fulfill the obligations of ownership. A person injured by a violation of the requirements relating to time share resale services may bring an action for damages within three years after discovering the violation.

The bill defines specified activities as deceptive trade practices in the advertisement or sale of a time share or the provision of a time share resale service.

The bill defines the following terms: “Resale time share,” “time share resale entity,” “time share resale service,” and “time share resale transfer agreement.” On March 8, the bill passed 2nd Reading in the Senate.

Since this summary, the bill passed the Senate on Third Reading and was introduced in the House. It is assigned to the Business, Labor, Economic, & Workforce Development Committee.

Colorado Court of Appeals: Plaintiffs’ Unexplained Delay in Filing Complaint Not Attributable to Defendant and Therefore Extension of Statute of Limitations Not Applicable

The Colorado Court of Appeals issued its opinion in Damian v. Mountain Parks Electric, Inc. on Thursday, December 27, 2012.

Colorado Consumer Protection Act—Deceptive Trade Practices—Statute of Limitations—Extension—Equitable Tolling.

Plaintiffs Ann Damian and John Taylor, Jr. appealed the summary judgment in favor of defendant Mountain Parks Electric, Inc. The judgment was affirmed.

Plaintiffs filed a complaint against defendant, asserting claims under the Colorado Consumer Protection Act (CCPA) for damages allegedly caused by defendant’s deceptive trade practices in the marketing and sale of a heating system.

Plaintiffs contended that the district court erred in not applying the one-year extension of the statute of limitations set forth in CRS § 6-1-115. The CCPA provides for a limitations period of three years, but extends that limitations period by one year if the plaintiff proves that the defendant caused the plaintiff to delay or refrain from filing the action. Here, it was not defendant’s conduct that caused the statute to run, but rather plaintiffs’ unexplained eighteen-month delay in instituting the administrative proceeding through the Colorado Public Utilities Commission.. Therefore, the district court did not err in ruling that the one-year extension of the statute of limitations was not applicable based here.

Plaintiffs also argued that the district court should have held that the statute of limitations was equitably tolled in light of the facts and procedural history of this case. Because the CCPA already provides a one-year extension of the limitations period if a defendant engages in conduct calculated to induce the plaintiff to refrain from or postpone the commencement of the action, application of the equitable tolling doctrine to the CCPA would be redundant. Accordingly, the district court did not err in dismissing plaintiffs’ complaint on statute of limitations grounds.

Summary and full case available here.