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ARTICLE INDEX:
- Collecting On Your Judgment
- Garnishment in Colorado
- Colorado Lien Law
- Landlord-Tenant Disputes and the Colorado Security Deposit Act
- Successor Liability of Business Entities
- 1031 Tax-Deferred Exchanges
- Colorado Foreclosures
- Fraud Litigation, Election of Remedies, and Real Estate Contracts
- Domestication of Judgments and Foreign Judgments
- Arrested or Under Investigation?
- Estate Planning FAQ
Unfortunately, most Colorado litigants do not realize that winning a lawsuit, whether by default or trial, in many instances is only half the battle. A judgment is no more than a piece of paper and quite commonly requires post-judgment enforcement to render the litigant entitled to the benefits set forth in the judgment. To collect the money, assets, or property you were awarded can only occur in two situations, voluntarily and involuntarily.
The prevailing party can simply ask for payment from the losing party and in some instances, payment or transfer of assets is readily forthcoming. Obviously, this is the most favorable outcome and results in little, if any, post-judgment intervention.
However, in a large number of instances, the debtor is unreasonable and unlikely to be willing to pay a judgment. At this point, a number of post-judgment remedies are available to you. Most self-represented litigants do not realize that a court will not collect your judgment for you. Simply put, you must enforce your rights to collect when it comes to collecting your judgment against an unwilling defendant.
Collecting from unwilling solvent debtor, in a worse case scenario, may be delayed, but generally results in payment, as there are assets available which can be levied upon. In order to facilitate payment, it is not uncommon during negotiations to receive an offer for a lower lump-sum payment. However, if the debtor staunchly refuses, there are a number of available remedies to legally force payment.
What is often not fully appreciated is that collecting a judgment against unwilling litigants can be also complicated by a number of factors, such as (1) the knowledge of the laws of collection by the unwilling defendant, (2) lack of or hiding of assets, (3) federal bankruptcy and state laws concerning unfair debt collections, (4) exempt assets or protected property.
Inherent in not knowing the laws of a particular jurisdiction is the risk that your collection efforts may be in violation of such laws or may be deemed retaliatory, possibly resulting in a judgment being entered against you. Furthermore, judgments can become judgment liens and are enforceable for a specified period of time. For example, a Colorado District Court judgment is valid for a 20 year period from the date of judgment and upon application (by motion), it may be revived for another 20 year period. A Colorado County Court judgment can also be valid for a 20 year period, but must be revived within every six year period. Simply put, sleeping on one's rights or not properly reviving a judgment can result in the judgment becoming unenforceable and consequently uncollectible. In the event of competing creditors, such as in a bankruptcy context, there is also a possibility that your judgment may be subordinated to a lower level of priority.
Another related and slightly more complicated issue is enforcing out-of-state judgments against Colorado assets or residents of this state.
At Schunk & Dunn, we accept local and out-of-state collection cases and employ a variety of legal and practical means to locate and levy upon assets of an unwilling defendant. Such methods involve: post-judgment discovery and/or depositions; asset tracing; garnishing wages; garnishing bank accounts and other assets, such as stocks & bonds; garnishing other personal non-exempt property, such as business equipment; foreclosing on interests of real property, which may include placing a lien on a primary residence or vacant land owned by the defendant; and, filing an independent action to impose a constructive trust on illegally transferred assets originally belonging to the debtor.
Our primary focus at Schunk & Dunn is to maximize your return and achieve of the benefits of your judgment as fully permitted by law. We accept collection cases on a straight fee, contingency fee, flat fee, and/or a hybrid of contingency and straight fee basis.
Please also see our article on garnishment in Colorado.
The Five Types of Garnishments in Colorado Under C.R.C.P. Rule 103
In Colorado, garnishment is one of the most effective ways of a creditor to collect on a judgment, when a debtor refuses to pay. Colorado Rules of Civil Procedure, Rule 103 sets forth the exclusive process for garnishment. In Colorado, there are five forms of garnishments: (1) A writ of continuing garnishment, (2) writ of garnishment with notice of exemption and pending levy, (3) writ of garnishment for support, (4) writ of garnishment -- judgment debtor other than a natural person, and (5) writ of garnishment in aid of writ of attachment. Once properly issued by the Court, garnishments are valid for 180 days and then need to be renewed.
The process of obtaining a garnishment must be strictly followed. Ensuring that all of correct forms are used as well as filing with the court,paying the correct fees, issuance of the writs, and timing of personal service on the garnishee and debtor are the steps involved to maximize the benefits that garnishments are designed to achieve. At this juncture, it should be noted that failure to follow the correct process can result in liability against the issuer of the garnishment. A brief description of the five writs follows.
Writ of Continuing Garnishment
These writs are used to garnish the individual wages of judgment debtor and are directed to the employer of the judgment debtor.
Writ of Garnishment with Notice of Exemption and Pending Levy
The writs are used to collect on personal assets other than wages, such as bank accounts, personal property of the judgment debtor which is held in the hands of third parties.
Writ of Garnishment for Support
This writ is similar to the writ of continuing garnishment but actually receives a higher priority in the eyes of the courts in Colorado. It is important to note that this is the exclusive procedure for withholding the earnings of a judgment debtor for payment of a judgment debt for child support arrearages, maintenance when combined with child support, or child support debts, or maintenance.
Writ of Garnishment on Judgment Debtor other than a Natural Person
This is the exclusive form to be used when the judgment debtor is a business entity.
Writ of Garnishment in Aid of Writ of Attachment
This is the exclusive form used when the judgment debtor is also using other direct methods of levying or seizing upon the personal assets of the judgment debtor directly.
Once the writs are issued and properly and timely served, the judgment debtor has the ability to contest the garnishment. He must attempt in good faith to resolve the issue within 5 days with judgment creditor, and if the issue cannot be resolved, he must file a written objection within 10 days. At that point, the judgment creditor must file a traverse of the answer or objection; otherwise the matters are deemed accepted as true as set forth in the objection or answer of the judgment debtor. A hearing is then scheduled to resolve those issues raised in the answer, objection and traverse. Upon the hearing of the traverse, the Court makes its determination and orders the subject property to be released to the party who received the favorable ruling.
In the event the judgment debtor fails to respond, then default is entered by the Court and the subject property (funds or personal assets) are tendered to the prevailing party.
Please also see our article on other methods to collect on a judgment in Colorado.
In Colorado, as with most states, liens are created by statute. As a result, for a party to take advantage of the protections and rights afforded by liens, there must be strict compliance with the required statutory steps to impress a lien on a non-complying party.
Liens can be placed on personal and real property in a variety of situations. A judgment lien occurs after trial or by default and can encumber real or personal property, by the recording of the transcript of judgment. By law, the lienor is entitled to statutory interest of 8.0% or at the rate of interest as agreed to by the parties. A mechanic's or materialman's lien is a result of providing services or product, which remains unpaid after demand. Commonly, these liens occur in the area of construction law by suppliers of materials or subcontractors performing day labor or project labor. While not often contemplated, liens can result for automotive services, laundry services, and even for farming and ranching services.
If the steps are correctly and timely followed, liens can be a powerful and effective negotiating tool for a party to obtain payment. As an example, by placing a valid lien on property, the party can effectively avoid an imminent transfer of title and obligate the non-paying party to satisfy the amounts in controversy.
For purposes of brevity, I will restrict my general and brief synopsis to the most often-used lien which arises in the field of construction law- the mechanic's and materialman's liens.
Lienors, within a relatively short period of time, must give proper Notice of the Intent to File a Lien to the non-paying party. Those requirements of proper notice are set forth in the lien statute, C.R.S. § 38-22-101, et seq. In the event the non-paying party fails to address the issues as set forth in the Notice, the lienor then is entitled to file and record a Lien Statement with the Clerk and Recorder in the county in which the services were performed. However, a cautionary note: failure to properly and timely follow the steps to impress a lien on property can result in attorney's fees and costs being assessed against you.
Unfortunately, when a lienor represents themselves what commonly occurs after compliance with the statutory notice provisions of the lien, is that the lienor fails to commence litigation within six months after the last day of services performed. As a result, the lien must be removed and the party must commence litigation based on other legal theories of relief, such as contract (oral or written), quantum meruit, or unjust enrichment.
At Schunk & Dunn, we accept local and out-of-state construction law cases, including those involving non-payment of services or materials. We represent owners, architects, general contractors, subcontractors, day laborers, suppliers, and other third parties, such as realtors, appraisers, and surveyors.
Our primary focus at Schunk & Dunn is to maximize your return and achieve of the benefits of your work as fully permitted by law. We accept cases on a straight fee, contingency fee, flat fee, and/or a hybrid of contingency and straight fee basis.
COLORADO SECURITY DEPOSIT ACT:
Landlord-Tenant Disputes and Residential Security Deposit Issues under C.R.S. § 38-12-101 et seq.
The Colorado State Legislature enacted the Security Deposit Act under C.R.S. § 38-12-101, which arguably gave substantial rights to both landlords and tenants with respect to security deposits. However, in practice, residential tenants are the primary beneficiary of this statutory enactment.
The Security Deposit Act was passed as a result of the inequity that tenants suffered at the end of their residential leases. In many instances, landlords would forfeit the tenant's security deposit without notice and/or without valid reasons. Tenants, who generally were considered not to have the financial capacity to contest these forfeitures, would walk away from the leases as well as monies to which they may have been rightfully entitled.
To address the above inequities and possibly greater financial backing that a landlord may have vis-a-vis a tenant, the Security Deposit Act imposes treble damages, costs and attorney's fees against the Landlord on amounts of the security deposit determined by the Court to be willfully and wrongfully withheld. Interestingly enough, if the tenant is found to be liable, the Security Deposit Act does not impose treble damages or attorney's fees against the tenant. At this juncture, it should be noted that if the lease provides for the recovery of costs and attorney's fees, the Court shall award same to the Landlord if such costs and fees are found to be reasonable.
Under the Security Deposit Act, a Landlord shall give an itemization of damages and return the unearned amounts of the security deposit within 30 days upon termination of the lease to the tenant's last known address. An area of much consternation as well as litigationis what constitutes damage above ordinary wear and tear. Such a determination generally is ruled on a case-by-case basis.
By statute, this 30-day period may be extended to a maximum 60-day period if so provided for in the lease. Upon expiration of the applicable period of time and no itemization has been forthcoming with the time period, such funds that are not returned are deemed to be willfully withheld. At that point in time, the tenant has an additional obligation to provide a 7-day demand letter to the Landlord requesting an itemization and return of the security deposit. If Landlord elects not respond, upon the passage of seven days, the tenant may commence legal proceedings and if he prevails, shall be entitled to treble damages on amounts wrongfully and willfully withheld, plus attorney's fees and costs. Finally, as a caveat, it should be noted that if more than one year elapses from the date of filing suit, the prevailing tenant is NOT entitled to recover treble damages.
At Schunk & Dunn, we accept cases concerning security deposit disputes as well as constructive eviction, and evictions (called "forcible entry and detainer" (FED) actions under the Colorado Revised Statutes). We represent owners, landlords, property management companies as well as residential and commercial tenants.
Our primary focus at Schunk & Dunn is to protect one's property rights as well as recover amounts to which you are legally entitled as permitted by law. We accept cases on a straight fee, contingency fee, flat fee, and/or a hybrid of contingency and straight fee basis.
Call Schunk & Dunn, LLC for an initial 30 minute free consultation.
SUCCESSOR LIABILITY FOR COLORADO BUSINESS ENTITIES:
Far too often businesses in Colorado are closing their doors and in some instances filing dissolution documents with the Colorado Secretary of State, and after some passage of time, the owners and directors mistakenly believe that they have foreclosed claims of liability. These same people then form a new a business, become profitable, only then to be sued by a former employee, disgruntled creditor, or some other third party relating to a transaction that involved the former company.
Unfortunately, liability to the new corporation can occur for acts of the old corporation in a number of instances. Generally speaking, a corporation which acquires the assets of another corporation does not become liable for the debts of the selling corporation. This rule is limited, and successor corporations have been held liable under four circumstances: (1) there is an express or implied assumption of liability; (2) the transaction results in a merger or consolidation of the two corporations; (3) the purchaser is a mere continuation of the seller; or (4) the transfer is for the fraudulent purpose of escaping liability. Alcan Aluminum Corp. v. Elect. Metal Products, Inc. , 837 P.2d 282 (Colo. App. 1992); Ruiz v. ExCello Corp. , 653 P.2d 415 (Colo. App. 1982); see also, Kloberdanz v. Joy Manufacturing Co. , 288 F. Supp. 817 (D. Colo. 1968).
For sake of brevity of this article, I will focus on the third exception, which appears to be the most problematic for business owners and courts alike. The "mere continuation" exception applies when there is a continuation of directors and management, shareholder interest, and, in some cases, inadequate consideration and appears to be a more-result driven test, then an actual test. The test focuses on whether purchasing corporation is, in effect, a continuation of selling corporation, not whether there is continuation of seller's business operation. CMCB Enterprises, Inc. v. Ferguson , 114 P.3d 90 (Colo. App. 2005).
Specifically, in determining whether the new corporation is a mere continuation of the old corporation or business entity, courts have generally looked to several factors, including continuation of ownership by the same shareholders, adequacy of the consideration paid for the predecessor's assets, dissolution of the predecessor corporation following the asset transfer, continuation of officers and directors, retention of the same employees, retention of the same supervisory personnel, retention of the same production facilities in the same physical location, production of the same product, retention of the same name, continuity of assets, continuity of general business operations, and whether the successor holds itself out as the continuation of the previous enterprise.
The identity and number of factors to be considered may vary between jurisdictions, but the existence of some factors common to most or all of the tests has been elevated by many courts to a status of most significant, if not indispensable, in order to warrant imposing liability on the successor corporation, such as the continuation of ownership by the same shareholders as the predecessor, the dissolution of the predecessor entity as soon as practicable after transferring its assets to the successor, or the common identity of management personnel between the successor and predecessor corporations. Underlying most analyses of these independent factors is the element of control exercised by the "old" corporation" over the "new" or successor corporation.
In some jurisdictions, courts have expanded the scope of "mere continuation" to allow liability to assess against a successor corporation where there is a "continuation of enterprise". In these jurisdictions, even though there is not a continuity of directors, liability has been assessed. This particular approach imposes liability against a successor corporation where there is no underlying element of control and has the chilling effect on any potential sale due to the risk of future liability being assessed against the new successor corporation. The ramifications of buying a business in jurisdictions which follow a "continuity of enterprise" approach may result in financial disaster.
It is important to note that Colorado has declined to adopt the "continuity of enterprise" exception to the general rule of successor nonliability and opted to follow the more traditional analysis of liability for successor corporations.
The Colorado Court of Appeals in Johnston v. Amsted Industries, Inc. , 830 P.2d 1131 Colo. App. 1992), a products liability action against a successor of a manufacturer of an allegedly defective power press, applied the mere continuation exception to the successor nonliability rule, and, in distinguishing the two exceptions, justified its choosing the traditional exception over the continuity of enterprise approach. Characterizing the continuity of enterprise exception as an expansion of traditional de facto merger doctrine, the court explained that, unlike the mere continuation exception, the continuity of enterprise exception allows liability to be imposed even though the sale of assets is for cash, without any continuity of shareholders. Explaining the significance of the continuity of shareholder requirement, the court stated that, in a traditional or de facto merger, the liability of the successor corporation is based on the rationale that the same shareholders stand to benefit from the success of both the predecessor and successor corporation, therefore they cannot move as a group to another corporation to enjoy the continuing profits of the same business earned before merger, but escape all possible losses that accumulated before the merger. On the other hand, the court continued, in a sale of assets with no continuity of shareholders, all that has transferred is the business, while the predecessor corporation is left behind with liabilities and with "money in hand" to satisfy them, therefore there is little logic and little justice in requiring the successor to assume the liabilities of the predecessor, since the successorhas paid a substantial price for the assets of the predecessor, and the law should not require the successor to pay a greater price in the form of liabilities that were not part of the negotiation between the buyer and seller corporations.
In addition, the Colorado Court of Appeals observed, the continuity of enterprise exception is inconsistent with the basic tenet of products liability that it is the manufacturer of the injury-causing product that should assume liability for its defective condition. Affirming the judgment in favor of the defendant-successor corporation, the court opined that, even if it could be said that adoption of the continuity of enterprise exception would encourage corporations to produce safer products, the fact remains that liability will have been imposed on a successor corporation that had no control over products already in use, and that it neither marketed or manufactured.
In the relatively recent decision of CMCB Enterprises, Inc. v. Ferguson , 114 P.3d 90 (Colo. App. 2005), which dealt with successor liability, the argument presented was that only 1.3 % of the assets were transferred to the new corporation, and therefore, the exceptions set forth in Ruiz , supra do not apply. The Colorado Court of Appeals summarily dismissed that argument by stating that was only one element to be considered in determining whether control existed from the former corporation over the new corporation and that Ruiz ruling did not preclude liability to be assessed if less than all of the shares and/or assets were transferred. The court ruled that that the new corporation continued to be liable for the past debts and lease obligations of the former corporation.
To discuss the potential sale or purchase of an on-going business and to assess other aspects of any business consummation or formation in Colorado, please contact Schunk & Dunn, LLC for a free initial 30-minute consultation.
It has been our experience that almost every Section 1031 exchange transaction is different. We recommend that you consult a competent Qualified Intermediary, attorney, or tax advisor to determine how an exchange may best be structured to accomplish your investment objectives.
In a typical transaction, the property owner is taxed on any gain realized from the sale. However, through a Section 1031 Exchange, the tax on the gain is deferred until some future date.
Section 1031 of the Internal Revenue Code provides that no gain or loss shall be recognized on the exchange of property held for productive use in a trade or business, or for investment. A tax-deferred exchange is a method by which a property owner trades one or more relinquished properties for one or more replacement properties of "like-kind", while deferring the payment of federal income taxes and some state taxes on the transaction. The theory behind Section 1031 is that when a property owner has reinvested the sale proceeds into another property, the economic gain has not been realized in a way that generates funds to pay any tax. In other words, the taxpayer's investment is still the same, only the form has changed (e.g. vacant land exchanged for apartment building). Therefore, it would be unfair to force the taxpayer to pay tax on a "paper" gain.
It is important to note that the like-kind exchange under Section 1031 is tax-deferred, not tax-free. When the replacement property is ultimately sold (not as part of another exchange), the original deferred gain, plus any additional gain realized since the purchase of the replacement property, is subject to tax.
A Section 1031 exchange is one of the few techniques available to postpone or potentially eliminate taxes due on the sale of qualifying properties. By deferring the tax, you have more money available to invest in another property. In effect, you receive an interest free loan from the federal government, in the amount you would have paid in taxes. Any gain from depreciation recapture is postponed. You can acquire and dispose of properties to reallocate your investment portfolio without paying tax on any gain.
Listed below are some of the elements to effect a proper 1031 exchange. The property (relinquished and replacement property), must qualify, be of like-kind and fulfill the proper purpose doctrine and be accomplished within certain time-frames.
* Qualifying Property - Certain types of property are specifically excluded from Section 1031 treatment: property held primarily for sale; inventories; stocks, bonds or notes; other securities or evidences of indebtedness; interests in a partnership; certificates of trusts or beneficial interest; and choses in action. In general, if property is not specifically excluded, it can qualify for tax-deferred treatment.
* Proper Purpose - Both the relinquished property and replacement property must be held for productive use in a trade or business or for investment. Property acquired for immediate resale will not qualify. The taxpayer's personal residence will not qualify.
* Like Kind - Replacement property acquired in an exchange must be "like-kind" to the property being relinquished. All qualifying real property located in the United States is like-kind. Personal property that is relinquished must be either like-kind or like-class to the personal property which is acquired. Property located outside the United States is not like-kind to property located in the United States.
* A taxpayer has 45 days after the date that the relinquished property is transferred to properly identify potential replacement properties. The exchange must be completed by the date that is 180 days after the transfer of the relinquished property, or the due date of the taxpayer's federal tax return for the year in which the relinquished property was transferred, whichever is earlier. Thus, for a calendar year taxpayer, the exchange period may be cut short for any exchange that begins after October 17th. However, the taxpayer can get the full 180 days, by obtaining an extension of the due date for filing the tax return.
Please contact Schunk & Dunn, LLC for a free initial 30-minute consultation.
Colorado Foreclosure Process Under C.R.S. § 38-38-101:
The laws governing foreclosure in Colorado are complex, with strict adherence to the statutes, regulations, and court rules required at all times, to ensure that the borrower's rights are not impaired as well as to ensure that the lender rights are fully protected. The laws governing foreclosure in Colorado are undergoing revision and are slated to be implemented in July, 2007. Currently, the laws governing foreclosure are as outlined below.
The day after a payment is due, technically, a loan is considered delinquent even if there are no other unpaid payments. A loan is in default as soon as any payment has been due and unpaid for more than 30 days. Default usually triggers a lender to send a letter a letter to the borrower requesting payment. If a number of defaults occur, the lender has the option of commencing foreclosure. Having three defaults (3 months' of unpaid mortgage payments), the Lender most likely shall begin the foreclosure process.
In Colorado, the lender, through the public trustee, is foreclosing on a deed of trust, which document is securing the promissory note, i.e., the evidence of indebtedness. Based on the restrictions of the length of this article, the deed of trust is assumed to contain a power of sale and that the process for foreclosure is a nonjudicial process.
Two Notices of Election and Demand for Sale and other documents are filed with parties of interest, including the Public Trustee of the county in which the real property is located. Upon receipt, the Public Trustee shall commence the foreclosure process by filing with the Clerk and Recorder and fulfilling its publication obligations. The borrower has the right to cure if such written notice of the intent to cure, and other additional documentation, is properly and timely filed with the Public Trustee 15 days before the date of the public auction.
Upon filing the right to cure, the Public Trustee shall provide the sum necessary to cure the default.
By paying all sums outstanding, including attorney's fees, late fees, default interest, unpaid mortgage payments, etc., the borrower is able to reinstate the loan as if no foreclosure process were initiated. The "cure" amount must be paid by cashier's check before noon one day prior to the public auction.
Assuming no cure, a Rule 120 hearing (order authorizing sale) shall be scheduled to take place before the auction date. This hearing is an expedited hearing where the borrower is able to legally present certain limited defenses if the lender is legally entitled to foreclose on the property. The judge may cancel/vacate this hearing if the borrower does not respond when given notice. The lender must provide the signed Rule 120 Order to the Public Trustee two days before the sale, or the public auction sale is void.
Seldom is the home is sold at the public auction, and when it is, generally the only bidder is the first lender. That notwithstanding, the borrower still retains rights in the property for 75 days following the auction. This redemption period allows the borrower to obtain alternative financing or to sell the property. At this point, the borrower must pay all additional default fees, attorney's fees, unpaid payments, Public Trustee charges, etc.
To exercise the right to redeem, the borrower must file a written notice of intent to redeem with Public Trustee's office at least 15 calendar days prior to the end of the redemption period. Within eight days, the redemption amount is received from the Public Trustee, leaving the borrower one week to provide a cashier's check to the Public Trustee for the sums as provided by the Public Trustee.
In Colorado's present residential real estate market, with rapidly declining market values, it is not surprising to have the loan exceed the value of the home. If the debt on the home exceeds what the lender thinks the home is worth, a homeowner could still owe the lender money even after the loss of the home (a "deficiency").
Call Schunk & Dunn, LLC for an initial 30 minute free consultation.
Fraud Litigation, Election of Remedies, and the Real Estate Contract
As may occur, Colorado purchasers of real property, whether it be a principal residence or investment property, learn that real property may have a construction defect or the purchase may have resulted due to false misrepresentations.
Due to the website constraints, the scope of this article does not address what constitutes fraud or what representations provider by the Seller raise to the level of material misrepresentation or mere puffery. This article addresses remedies available to a wronged Buyer of real property and further addresses election-of-remedies considerations.
Assuming that the representation by Seller raises to the level of fraud or material misrepresentation, typically, an attorney drafts the fraud claim, allowing for two inconsistent remedies. For fraud, the Buyer may rescind the contract and claim restitution and be put in a position before the breach occurred. This is essentially a tort claim for relief. Alternatively, the Buyer can reaffirm the real estate contract, and sue for damages. This is essentially a contract claim for relief.
As the facts are the same set of facts that entitled the Buyer to two clearly inconsistent prospects for relief, at what point must a Buyer elect, if at all, which of the above remedies he wishes to pursue in Colorado and can the wrongdoer force such an election upon the Buyer?
A quick summary of other jurisdictions is not particular instructive on these issues. California, for example, allows the Buyer to pursue both theories of relief and such election needs not be made until trial. Other jurisdictions have ruled that pursuing one theory of relief, such as rescission, may preclude suing for damages and vice versa. Other jurisdictions have ruled that one particular claim of relief may or may not bar recovery on the other theory of relief.
Colorado takes an interesting approach. Colorado has clearly stated that the choice of remedies cannot be forced upon the Buyer by the wrongdoer. H & K Automotive Supply Co. v. Moore & Co. , 657 P.2d 986, 988 (Colo. App. 1982).
In Colorado in the event that the Buyer accepts rescission by tendering the property back to Seller, is he barred from bringing a claim for damages? The answer depends on whether the Buyer by accepting rescission, the Buyer is affirmatively agreeing to forego his/her claim for damages. Colorado courts are inclined to allow the conflicting remedies to be pursued, especially where relief of one proposed remedy is or becomes unavailable. See generally, Rice v. Hilty , 559 P.2d 725, 726-7 (Colo. App. 1976); Schtul v. Wilson , 266 P 112 (Colo. 1928).
DOMESTICATION OF FOREIGN JUDGMENTS:
Domestication of a Foreign Judgment in the State of Colorado
As creditors often discover, collection efforts on a final state judgment are compounded when a judgment debtor moves to another state. As we know, the United States Constitution through the principals of comity, requires that full faith and credit be given to judgments rendered in a sister state, although no uniform procedure for registering and enforcing such sister state judgments was envisioned.
One method for enforcement originated in common law and is still used by many states today, to wit: filing a separate action for enforcement of the "foreign" judgment in the state where the debtor resides. If the creditor is successful, the second state will render a new judgment on the old judgment.
The other method for streamlined enforcement is The Uniform Enforcement of Foreign Judgment Act (UEFJA), which was adopted in 1963 and to which Colorado is a signatory. See C.R.S. § 13-53-101. The state of Colorado allows a judgment creditor to enforce a foreign judgment either by common law or under UEFJA.
At this juncture it should also be noted that a federal court judgment has certain advantages over state court judgments due to revisions of the Federal Judicial Code in 1948 which allowed a federal judgment to be easily transferred, registered and otherwise be enforceable to the law of the state in which the federal district court sits. See 28 U.S.C.A. § 1962, Federal Rules Civil Procedure, Rules 64, 69.
The UEFJA is simultaneously a registration and enforcement statute. Rather than filing a separate suit, the creditor must authenticate and file the foreign judgment in accordance with the provisions of the Act. Authentication may be performed under C.R.C.P. Rule 44 or C.C.R.C.P. Rule 344. Once authentication is completed, the judgment creditor may file it the clerk of the court, accompanied by affidavit, setting forth the name and address of the judgment debtor with all filing and docketing fees.
Upon filing the authenticated judgment, affidavit and payment of all filing and docketing fees, the clerk will mail to the judgment debtor a notice of filing. The judgment is stayed for 10 days to allow considerations for due process. The judgment debtor has the ability to set forth defenses as well as request proceedings for reopening, vacating or staying the judgment under C.R.C.P. Rule 62(d) as for anyother judgment rendered by a court of this state.
The distinct advantage of proceeding under the UEFJA is that a Colorado court is statutorily constrained to not revisit the merits of the foreign judgment and to limit its inquiry to generally jurisdictional and/or other procedural grounds. For example, once the judgment creditor has filed a properly authenticated judgment, which appears to be facially valid, the judgment creditor has made a prima facie case. At that point, the burden then shifts to the judgment debtor to produce evidence that the foreign judgment is void or voidable.
ARRESTED OR UNDER INVESTIGATION:
Know Your Rights!
Do not make statements. Do demand to talk to your lawyer.
Under the Fifth Amendment to the United States Constitution, you are provided the right to remain silent. You should exercise this right! There is no one, under state or federal law, you can confide in except your attorney, without risking the possibility that your statements will later be used against you in court. This includes friends, family members and spouses, and especially law enforcement officers.
If you have been arrested or are under investigation and are being questioned, you should not make any statements, especially a written statement. While most law enforcement officers and other government investigators are persons of high integrity, sometimes a questioning officer will twist words, have a "selective" memory, or genuinely forget important details in the months or years between the statement and trial. Remember that law enforcement agencies work closely with prosecutors, but never call defense attorneys for advice on how to conduct an investigation!
You must be vigilant about maintaining your right to remain silent. "Statements" can include body
language and non-verbal utterances, such as shoulder shrugs, head nods or shakes, sighs, rolling eyes, and similar things you might not think qualify as a "statement." Ask if you are under arrest and demand a clear answer. If you are not under arrest, it is your absolute right to leave. If you are under arrest, you still retain the right to remain silent, and you also have the right to consult with a lawyer; be sure to state clearly "I want to speak with my lawyer." Stating that "I might want to talk to a lawyer" or "I should speak with a lawyer" is not enough to protect your rights and stop an interrogation. Understand and exercise your rights!
Do not authorize searches of yourself, your home, office, or car
Similar to your rights regarding making statements, you have the Fourth Amendment right to be free of unreasonable searches and seizures. As a general matter, you should not give a law enforcement officer or investigator permission to search you or your clothing, personal articles like bags, your home, office, or car. Frequently an officer will ask just on a "hunch," which is not "probable cause" to conduct a search.
Whether to take a polygraph, also known as a "Lie Detector"
Like the question of whether to make statements, you should not agree to take a polygraph without first consulting with a criminal defense lawyer. Occasionally, an investigator will use a polygraph as an interrogation tool, where regardless of the results of the examination you will be told you failed, that they've got you nailed, and that you need to explain why you failed the polygraph. THIS IS ABSOLUTELY FALSE! Polygraphs themselves are almost never admissible in court, which won't be explained to you, but any statements you make ARE admissible. It is simply a tool to pressure someone to make statements (in an incredibly stressful situation) that are not in their best interests. Do NOT agree to take a polygraph without discussing the issue with your lawyer.
If you are in jail
You must contact someone who can either provide help directly (a criminal defense lawyer) or who can get such help for you. Have that person contact a bail bondsman for you or bring cash to post a cash bond (see below regarding bonds). Try to refrain from eating and drinking, because the restroom facilities in jails are often hard to get to, unsanitary, in open view, or are otherwise something you may wish to avoid.
Posting bond and release from custody
You will have an opportunity to "post bond" shortly after your arrest. Generally, a "bond" stands in your place to ensure your appearance at future court hearings. If you do not show up for a hearing, the state may forfeit your bond and a warrant will be issued for your arrest.
Shortly after your arrest and arrival at the jail, you will be able to request that the judge or another official determine the type and amount of bond to which you will be entitled. Once you have posted your bond, you will be able to leave the jail subject to certain conditions, usually that you may not leave the state, consume alcohol or drugs, and other conditions without permission from the court.
There are several different types of bonds. A "personal recognizance bond" is your written promise to appear at future court dates and does not require payment of an amount of money other than a minimal fee. A "cash bond" is an amount you post with the court which represents the entire amount of the bond, and which you should have returned to you if you attend all of your court hearings. A cash bond may or may not be used to pay fines and court costs.
A "surety bond" is posted by a third-party bail bondsman, licensed by the state. The bondsman will almost always require a co-signer on your bond, so that if the state forfeits the bond, they may have recourse against the co-signer as well as you. Bail bondsmen are usually listed in the yellow pages under "bonds" or "bail bonds." They charge fees that must be paid prior to the bond being posted, usually between 10% and 20% of the bond set by the court, plus other fees. Amounts paid to bail bondsmen are generally not refunded to you at the conclusion of your case.
If you are being arrested, try to make arrangements in advance with friends, family, or your criminal defense attorney to be able to post bond, including having funds available to post a cash bond or pay fees to a bail bondsman and providing for a co-signer on the bond. Often, if plans are made in advance, you can be released from custody within a few hours of your arrest.
Law Offices of Schunk & Dunn, LLC
Attorneys and Counselors at Law
808 South Public Road, Suite 202
Lafayette, CO 80026
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The Law Offices of Schunk & Dunn, LLC represents clients in Boulder, Arapahoe, Jefferson, Denver City, La Plata, Grand, El Paso, Pueblo, and Denver counties, including residents of the University of Colorado, Boulder, Longmont, Broomfield, Louisville, Aurora, Lafayette, Denver, Nederland, Niwot, and Buckley Air Force Base and throughout Colorado.