June 18, 2019

Colorado Court of Appeals: If More than Six Years Have Elapsed Since Entry of Judgment, Judgment Creditor Must Revive Judgment Prior to Asserting Lien

The Colorado Court of Appeals issued its opinion in Security Credit Services, LLC v. Hulterstrom on Thursday, January 24, 2019.

Civil Procedure—Creditors and Debtors—Judgments—Judgment Liens—Revival.

In 2010, the district court entered a money judgment in favor of plaintiff. In 2017, Marshall Recovery II LLC (Marshall) filed notice with the district court that it had purchased the money judgment from plaintiff. Soon thereafter, but more than six years after entry of the judgment, Marshall moved under C.R.C.P. 54(h) to revive the judgment. The district court denied the motion.

On appeal, Marshall argued that the trial court erred in denying its request to revive the judgment. A creditor may obtain a judgment lien at any time during the 20-year life of the judgment, but if more than six years have passed since entry of the judgment, the creditor must first revive the judgment and record the transcript of the revived judgment. This is true whether or not the judgment creditor previously obtained a judgment lien. Here, not more than 20 years had passed since the judgment entered, so Marshall was entitled to revive the judgment to obtain a judgment lien.

The order denying the motion was reversed and the case was remanded to address the motion

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Assets in Revocable Trust are Assets of Settlor and Can Be Sold to Satisfy Creditor Claims

The Colorado Court of Appeals issued its opinion in Independent Bank v. Pandy on Thursday, January 15, 2015.

Foreign Judgment—Domesticated Judgment—Lien—Statute of Limitations—Interlocutory Appeal—Quiet Title.

In August 2010, Independent Bank (Bank) obtained two judgments against Joseph Pandy in a Michigan state court. In April 2012, the Bank domesticated the Michigan judgment in the district court in Grand County, Colorado. It then filed transcripts of the domesticated judgments with the Grand County Clerk and Recorder in January 2013 to obtain a judgment lien against Joseph Pandy’s real property in the county, including the C Lazy U Homesteads. At that time, the Joseph Pandy, Jr. and Elizabeth Pandy Living Trust (Trust) held title to the C Lazy U Homesteads. In March 2014, the Bank filed a “Complaint for Quiet Title and Decree of Foreclosure” against the Pandys in Colorado. The complaint sought a decree that the judgment lien against Joseph Pandy individually was valid against his interest in the Trust. After the court denied the Pandys’ motion to dismiss, the Pandys filed a CAR 4.2 petition for interlocutory appeal.

The Pandys contended that their petition for interlocutory appeal satisfies the requirements of CAR 4.2. Here, if the statute of limitations in CRS § 13-80-101(1)(k) bars the Bank’s complaint, the litigation would be resolved without the need for a trial. Because the issue presented is both case dispositive and presents an unresolved question of law, the Pandys’ petition for interlocutory appeal satisfies the requirements of CAR 4.2.

The Pandys also contended that the three-year statute of limitations in CRS § 13-80-101(1)(k) bars the Bank’s complaint. The three-year statute of limitations is inapplicable to the Bank’s complaint because the Bank was not seeking a judgment. The applicable statute here is CRS § 13-52-102(1), which gives the Bank six years from the date of the Michigan judgment to foreclose on the judgment lien. Because the Bank brought its quiet title and foreclosure action within six years of the Michigan judgment, the action is not precluded by the statute of limitations. Accordingly, the three-year statute of limitations in CRS § 13-80-101(1)(k) does not bar the Bank’s complaint for quiet title on and foreclosure of the Trust’s property. The order was affirmed and the case was remanded for further proceedings.

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

Colorado Court of Appeals: Action Seeking to Enforce Contractual Agreements In Personam in Nature; Maritime Law Not Implicated

The Colorado Court of Appeals issued its opinion in BDG International, Inc. v. Bowers on Thursday, April 11, 2013.

Subject Matter Jurisdiction—Maritime Law—Finality of Judgment—Contract—Duress—Offsetting—Attorney Fees.

Defendants Robert J. Bowers and Auxiliary Graphic Equipment, Inc. (AGE) appealed the judgment entered after a bench trial in favor of plaintiff BDG International, Inc. (BDG). The judgment was affirmed.

AGE purchased printing presses from a seller in Australia for a client located in Colorado. AGE contracted with Fortner Graphic Solutions, Inc. (Fortner) to dismantle the printing presses and transport them to Colorado. Fortner then subcontracted with BDG and other firms to perform its contractual duties. BDG was responsible for transoceanic shipping, and another company was responsible for packing and inland transportation to the client’s site in Colorado. BDG brought this action after defendants failed to pay all costs for inland and ocean freight for the dismantling and shipping of the presses and failed to make payment as required by the agreements to release the resulting liens. The court entered a judgment in favor of BDG and against defendants, jointly and severally.

On appeal, defendants contended that the trial court lacked subject matter jurisdiction over this case, because it involved admiralty or maritime law and exclusive jurisdiction resided with the federal courts. Contrary to defendants’ arguments, however, this action is not in rem in nature; rather, it is a proceeding in personam, because it sought to enforce the contractual agreements against defendants personally and not against the cargo or another type of property of a maritime nature. Accordingly, jurisdiction in this case did not lie exclusively in the federal courts, and the trial court did not lack subject matter jurisdiction to hear this case.

Defendants also contended that the judgment was not final because it does not dispose of the litigation. The judgment entered by the trial court resolved BDG’s and the third-party claim; dismissed the counterclaim with prejudice; and awarded a sum certain for damages, collection costs, and prejudgment interest. Although the trial court provided directions with regard to how the proceeds of any sums recovered by Bowers or AGE should be applied to the judgments they obtained against Fortner in Colorado and Missouri, those directions do not alter the finality of the underlying judgment.

Defendants also contended that the trial court erred in not finding the contracts voidable on the basis of duress. Although defendants may have felt economic pressure to sign the releases to obtain possession of the cargo, the lienholders did not engage in wrongful conduct to coerce payment from defendants.

Defendants further contended that the trial court erred in failing to set off against one another the judgments in this case. Contrary to defendants’ contention, however, the principle of offsetting judgments does not apply, because the judgments are not against the same parties.

BDG collection costs primarily were attorney fees amounting to 40% of the principal due under the agreements signed by defendants. The Court of Appeals therefore ruled that the trial court did not err in awarding BDG collection costs.

Summary and full case available here.