Pilot Program in Civil Cases in Certain Counties

PILOT PROGRAM IN CVIL CASES IN CERTAIN COUNTIES

WHO:  The pilot program applies to District Court civil litigation business cases, including breach of contract, business tort actions, (e.g. unfair competition, fiduciary duty, fraud, misrepresentation) transactions involving the Uniform Commercial Code, commercial real property transactions, cases involving business dealings, intellectual property, business transactions with commercial banks or other financial institutions, and product liability.  There are other matters as well.

Excluded are :  Construction defect claims; foreclosure actions or for rent on real property, replevin cases, and cases involving a statute or rule that contains distinct time frames for the proceeding.  (Mechanic Lien foreclosures would be included in this). There are other exclusions not listed.

WHAT:  Plaintiff must file a disclosure statement within 21 days after service of the complaint.  Defendant must file an answer within 21 days after service of the disclosure statement.  The parties are to meet and confer within 14 days after filing of the answer.  An initial case management conference will be held within 49 days after the answer is filed.  Seven days prior to the conference, the parties will submit a joint report.

WHERE:   Jefferson, Gilpin, Adams, Denver, and Arapahoe Counties.  

WHEN:  On January 1, 2012, the Colorado Supreme Court instituted a pilot program for civil cases. It expires on January 1, 2014.  

HOW DOES THIS AFFECT YOU:   You will need to give us more information up front in order to file the disclosure statement.  The statement must include a listing of all person with information related to the claims and a brief description of the information each such individual is believed to possess; and a list of documents related to the claims, whether they are supportive or harmful.      

Be aware of the change of dates in when the answer is due. 

Your case may move faster than before.  A single judge is assigned to the case from start to finish.  The judge will manage the case much more closely than before.  Requests for extensions and continuances will be denied by the Court, so we have to be sure that trial dates work for all witnesses schedules. 

Medical Advance Directives

             Medical Advance Directives.

            One often overlooked area of planning is that of advance medical planning.   These are documents in which you can express your wishes to your family and medical care givers.   The following are typical:

Medical Durable Power of Attorney.  This document appoints an agent to make medical decisions for you in the event you lack legal capacity to express your desires.  Typically, a person appoints his or her spouse or adult child.  This document usually has a very broad grant of authority.  The agent gains the authority only after the principal has lost legal capacity.  This document can be drafted with “customized” limitations to the agent’s authority.

Declaration as to Medical Treatment (Living Will).  This document provides in advance for the cessation of active medical treatment for a person when certain specific conditions are met.  A person must have an irreversible or terminal condition and be in a persistent vegetative state in order for this directive to be effective.  These conditions must be certified by two physicians.   Upon satisfaction of those conditions, the living will directs that further medical procedures cease.

HIPPA Release.  This document is effective immediately and grants a spouse or other trusted person access to medical records.

Medical Order for Scope of Treatment (MOST).   This document must be prepared with the assistance of a physician, advanced practice nurse or physician assistant.  This is normally used at a stage of life when further treatment may not be desired.  It can include “do not resuscitate” orders. 

Other Directives.   You may see other documents such as the “Five Wishes” or similar documents.  These often contain simplified versions of the directives described above, along with other instructions.

Submitted by Rich Arnold Copyright 2012

Work on Federally-Own Projects - Summary of Payment Remedy under the Miller Act

WORK ON FEDERALLY-OWNED PROJECTS.

            Miller Act Remedies.  On federally-owned projects, Miller Act bonds are usually required to be filed with the Contracting department of the government.  Procedures under the Miller Act require that the claimant who DOES NOT have a direct contract with the contractor who furnished the bond, give written notice to the prime contractor by certified or registered mail within ninety (90) days from the date that labor, materials or equipment were last furnished.  The right to recover under the Miller Act is lost if the required notice is not given.  It should be noted that other jurisdictions have expressly ruled that giving written notice “requires receipt of the notice by the contractor.”  This means that the notice should be received by the contractor prior to the ninety days, regardless of whether it was sent by registered mail or not.  This issue has not been ruled on in Colorado or in the 10^th Circuit, but it is good practice to follow this rule.  See, Pepper Burns Insulation, Inc. v. Artco Corp., 970 F.2d 1340, 1343 (C.A.4 (N.C.),1992); U.S. for Use and Ben. of B & R, Inc. v. Donald Lane Const., 19 F.Supp.2d 217, 226 (D.Del.,1998). Only those who have not contracted directly with the contractor providing the bond need give the Miller Act notice.  Interest can also be recovered on the bond from the contractor and surety. U.S. for the Use of C.J.C., Inc. v. Western States Mechanical Contractors, Inc., 834 F.2d 1533 (10^th Cir. 1987).

            Parties who have a contract directly with the general contractor as well as subcontractors and suppliers who have given timely notice by certified or registered mail must commence suit on the Miller Act bond in Federal Court.  The suit must be commenced within one (1) year after the date that labor, materials or equipment were last furnished.

Submitted by Jean C. Arnold, Esq.

ETHICAL CONSIDERATIONS IN DIVORCE AND FAMILY LAW

Mandatory and Permissive Withdrawal of Legal Representation
   
            A lawyer must withdraw from representation if any of three circumstances exist.   First, if the representation will result in violation of the RPC.  Second, if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.  Third, if the client discharges the lawyer.  Colo. RPC 1.16(a). 

Permissive withdrawal may occur when the attorney is in compliance with Colo. RPC 1.16(b).  Seven circumstances are described in the rule.  I will touch on only a few.  A lawyer may withdraw if the withdrawal can be accomplished without material adverse effect on the interests of a client.  A lawyer may also withdraw if the client fails substantially to fulfill an obligation to the lawyer.  These permissive reasons for withdrawal are tempered by the tribunal’s authority to order the attorney to continue the representation (Colo. RPC 1.16(c)).  In short, if you plan to get out of the case do so well in advance of any hearing.  I recommend seeking withdrawal at least 90 days prior to any hearing of the matter.

Permissive withdrawal is also allowed when the client persists in a course of action involving the lawyer’s services that the lawyer believes to be fraudulent.  This circumstance may require a “noisy withdrawal.”  If the client intends to present false testimony or evidence, the attorney may not participate, and has a duty to the court to correct false statements (Colo. RPC 3.3).  The attorney must also keep client confidentiality (Colo. RPC 1.16).  Thus, the attorney should cite as the basis of withdrawal that “professional considerations require termination.”   Ordinarily, this should be sufficient.

© 2011 Richard M. Arnold, Arnold & Arnold, LLP, Attorneys at Law

Colorado Pre-Lien Legislation 2012

Colorado Pre-Lien Update

The Colorado Association of Home Builders Government Affairs Committee removed mechanics’ liens as a proactive item from their 2012 legislative agenda and as such will not be proceeding with a bill on this issue. 

In 2011, House Bill 11-1020, initiated by the CAHB was considered by the House Economic and Business Development Committee.  On March 3, 2011 the Committee - on a 13-0 vote - referred HB 11-1020 to a Legislative Committee for further study.  I participated on the committee through the summer and early fall.  A revised version of a possible bill was reviewed this week by CAHB, who decided not to pursue the bill in the 2012 legislative session.

Jean Arnold, Esq.

NAVIGATING SMALL CLAIMS COURT

NAVIGATING THE LEGAL SYSTEM ON YOUR OWN IN SMALL CLAIMS COURT

Small claims court can be useful when the amount in controversy is $7,500 or less.  It is a quick process that avoids attorney's fees and the delays of typical litigation.  There are some excellent self-help resources at the websites below if you decide to embark on the process or if you find yourself involuntarily involved.

http://www.courts.state.co.us/Self_Help/Local_Small_Claims.cfm
http://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=9

Some of the important steps and rules of the small claims court are as follows:

1. Only certain actions can be filed in small claims court, so first make sure you have a case that is allowed to be heard in small claims court.  You can see a list of the correct types of cases at Colorado Revised Statute §13-6-403 or at the self-help website. 

2. There is a limit for how much money you can sue for in small claims court.  Your amount has to be $7,500 or less, which includes interest. 

3. Your trial will be before a Judge or Magistrate.  There are no jury trials in small claims court.

4. You will sue in the county in which any of the defendants resides, is regularly employed, or is a student at a University.  In an action involving real property, such as a landlord-tenant dispute, the action may be brought in the county in which the subject real property is located.

5. You can print the forms off of the self-help website above and file them in the county that you choose.  If you are the Plaintiff, you will need to file the Notice, Claim and Summons to Appear for Trial.  You will also need to have those papers served on the Defendant(s) and file an Affidaivit of Service.  If you are the Defendant, you need to appear to the named court on the day listed on your summons.  Failure to appear could result in a default judgment against you. 

6. Service can be obtained by a Sheriff's Department or a private process server.  You must have the defendant(s) served personally.  You can recover your costs of service in a final judgment against the Defendant(s). You can also recover the filing fee as a cost.  The filing fee depends on the amount of your claim. If you are the defendant and you win at trial or you win a counterclaim, you can recover your costs. 

7. If you obtain a judgment, the court will not help you collect that judgment.  If you live near Jefferson County, there is a collection clinic taught at the courthouse every first Tuesday of the month by Arnold & Arnold, LLP. 

Kelley G. Shirk, Esq.

Differences under Chapter 7 and Chapter 13 of The Bankruptcy Code: Secured or Unsecured, payment of judgment, impairment of exemptions?

What are the Differences under Chapter 7 and Chapter 13:  Secured or Unsecured, payment of judgment, impairment of exemptions?  By Jean C. Arnold, Esq.

A.             Payment of judgment – unsecured debt.  In Bankruptcy, it is unlikely the debtor will pay the full amount of the judgment unless the underlying debt is found to be non-dischargeable under 11 U.S.C. §523 or the judgment is part of a Chapter 13 plan to pay the judgment in full or the judgment is reaffirmed by agreement with Court approval. 

Under Chapters 7 and 13, if there are non-exempt assets available for distribution, the creditor must timely file a proof of claim under 11 U.S.C. §501.  The creditor’s deadline to file the proof of claim is shown on the notice of bankruptcy, and in Chapter 7 or Chapter 13 cases, must be filed within 90 days after the first date set for the meeting of creditors under 11 U.S.C. § 341(a).  See Bankruptcy Rule 3002(c).  The bar date for Chapter 7 and Chapter 13 proofs of claim cannot be extended for excusable neglect.  In re Smartt Construction Co., 138 B.R. 269 (D.Colo.1992) and Jones v. Arross, 9 F.3d 79 (10th Cir.1993).  If the claim is allowed, the creditor will receive the pro rata distribution of assets, following payment of administrative expenses and the Trustee’s fee. 

B.                 Payment of judgment – secured debt.  Under both Chapters 7 and 13, the creditor is entitled to maintain its security interest in the debtor’s property.  The creditor may seek relief from the automatic stay under 11 U.S.C. §362 and proceed to dispose of the secured asset to satisfy its debt.  If the value is insufficient, then the creditor can seek recovery for the unsecured – undersecured – debt component through the claims process under §501. 

There are circumstances under 11 U.S.C. §363(c) allowing the Trustee and debtor to use, sell, or lease secured property.  Such as the use of “cash collateral” in the ordinary course of the debtor’s business under §§ 721 or 1304.  Then, unless the creditor consents, the debtor must comply with the requirements of 11 U.S.C. §363 by providing “adequate protection” to the creditor under §363(e).  Adequate protection generally takes the form of providing the creditor with alternative property to secure the debt.   

C.                 Impairment of exemptions.  Colorado’s listing of exempt property appears in §13-54-102, C.R.S.  However, §13-54-107, C.R.S. expressly prohibits the Bankruptcy exemptions contained in 11 U.S.C. § 522(d).   Thus, because Colorado’s state exemptions are not inconsistent with Federal Law, Colorado residents can only use the state exemptions when filing bankruptcy in Colorado.  In re Parrish, 19 B.R. 331 (D. Colo. 1982).