Arnold & Arnold, LLP Attorneys at Law - construction
Arnold & Arnold, LLP Attorneys at Law - construction

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Arnold & Arnold, LLP
Attorneys at Law
7691 Shaffer Parkway, Suite A
Littleton, CO 80127
Phone: 720-962-6010
Fax: 720-962-6011
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A&A Across the Finish Line

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2015 saw a few new finisher medals hung around the offices at A&A.

In May, the men of Arnold & Arnold competed in and completed the Spartan Sprint at Fort Carson, Colorado. It was a fun filled day of barbed wire, mud pits, fire, and rattle snakes. We bled, bruised, and otherwise had a great time.

Later, in August, attorney Josh Keltner made it to the top of Pikes Peak in the annual Pikes Peak Half Marathon. The 13.2 mile race begins in Manitou Springs and gains a total of 7,815 feet from start to summit.

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The team is still assessing its plans for races in 2016.

Jean Arnold Invited to Serve on Executive Council for Real Estate Section of the Colorado Bar Association

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11698663_967929026562528_7172295837454033703_n.jpgA&A is proud to announce that Partner Jean Arnold has been invited to serve on the executive council for the Real Estate Section of the Colorado Bar Association. The Real Estate Law Section monitors and reports on judicial, legislative and other developments that affect the practice of real estate law. The goal of the section is to promote, clarify and educate members concerning issues arising in Colorado real estate law.

This honor is a testament to Jean's wide expertise in the area of real estate law and to the esteme and respect she has developed with her colleagues in the real estate bar.

2016 Client Appreciation Seminar

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Come spend the day with the attorneys and paralegals of Arnold & Arnold getting up to date on critical legal issues that affect you, your business and your bottom line. Arnold & Arnold presents this seminar biennially for the benefit of its valued clients, both past and present. This event is offered free of chrage and is our gift to you.

CLICK HERE TO REGISTER NOW

General Topics Covered:

Mechanic's Liens

Bond Claims

Collections

Estate Planning


WHEN: Thursday, February 11, 2016


WHERE: Terrace Gardens Conference Center, 11851 Shaffer Drive, Littleton, Colorado.


NEARBY LODGING OPTIONS:


Homewood Suites - Littleton


Hampton Inn & Suites - Littleton


Holiday Inn Express - Littleton

CLICK HERE TO REGISTER NOW

Arnold & Arnold invites you to enjoy an afternoon of chamber music in June

Arnold & Arnold is proud to announce its sponsorship of a June benefit concert for world music education.

Arnold & Arnold is partnering with Peace Notes, Inc. to put on the recital. Peace Notes is an international charity and registered 501(c)(3) committed to supporting music education in areas of the world ravaged by war and political upheaval.

Arnold's & Arnold's connection with the charity comes by way of its new associate and cellist, Josh Keltner. Josh helped found the organization in 2011 during his last semester in law school. Since then, the organization has developed partnerships with music schools in Afghanistan and Cambodia.

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The June benefit will focus on fundraising for the Khmer Cultural Development Institute in Kampot, Cambodia and will feature a brief presentation by Retired Colorado District Court Judge Juanita Rice regarding her experience with the school during her time in Cambodia as a Senior Legal Advisor with the Cambodian Court Training Project funded by USAID.

The program will include chamber works by Beethoven, Myaskovsky, and Dvorak performed by cellist Josh Keltner, pianist Beth Deboer, and long-time violinist/violist of the Denver Ballet and Opera, Lora Stevens.

The program will also include a debut performance by Quartet at Law, the region's only all-lawyer string quartet. Members of the quartet include Retired Judge Raymond Satter, Deputy District Attorney Kate Knowles, attorney Carin Ramirez of Wood, Ris & Hames, P.C., and A&A's very own Mr. Keltner.


WHERE: St. Philip Lutheran Church at 7531 S Kendall Blvd, in Littleton


WHEN: June 14th, 2015 at 3:00 pm (MDT).


Admission is free of charge and an opportunity for donations will be provided.

Off to the Races

It may not come as a surprise to many, but the legal field can be competitive. This year several members of the A&A team found outlets for their competitive edge in the pursuit of a finish line.

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Partner Scott Havn, the firm's first triathlete, competed in his first Ironman in 2011. In the past year he's competed in no less than four triathlons both here in Colorado and around the country (HITS Championship, Palm Springs, CA; Rev 3 Maine at Old Orchard Beach, ME; Evergreen Sprint Triathlon, CO Littlefoot Triathlon, Lakewood, CO).

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Paralegal Candace Mitchell is also a confirmed runner and easily puts in more miles in any given week than anyone else in the firm. She competed in last year's Denver Half Marathon and is a regular in the Highline Canal 10k.

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The most recent convert, our newest associate attorney Josh Keltner, competed in his first race ever this March and qualified to enter the Pikes Peak Ascent Half Marathon this coming August.

BREAKING NEWS:

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The men of Arnold & Arnold will compete in this year's Spartan Race Sprint at Fort Carson in Colorado Springs. Let the burpees begin!

Upcoming races:

Colorado Spartan Sprint, Fort Carson, CO

Winter Park Half Marathon, Winter Park, CO

Highline Canal 10k, Littleton, CO

Pikes Peak Ascent Half Marathon, Colorado Springs, CO

Attorney Jean Arnold to Present Mechanics Lien Seminar to Mountain States Commercial Credit

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This year will mark attorney Jean Arnold's 30th year presenting the Mechanics Lien Seminar to the construction industry's credit leaders. The seminar has played an instrumental role over the years in training a generation of credit managers in the intricacies of Colorado mechanics liens and public project claims.

Mechanics liens are an indispensible tool for collecting accounts receivable in the construction industry, but they can be tricky. The deadlines are absolute and the notice requirements full of pitfalls. If mechanics liens are a regular tool for your business, or even if you think they could be, you should attend this seminar. Jean has a wealth of experience and an encyclopedic knowledge of issues that can make the difference between collection and a dead end.

The presentation will cover the ins & outs of filing liens, disburser notices, bond claims and all the required forms that go with them. Jean will also cover verified and Miller Act claims for recovery in cases of public projects.

WHEN: Thursday, April 23, 2015

WHERE: Renaissance Denver Hotel, 3801 N. Quebec St.

HOW DO I REGISTER?

Download the registration form by clicking below and returning the form as directed or contact Tom Claybaugh to register, tom@msccm.com or call (303) 806-5300.

DOWNLOAD THE FLYER AND REGISTRATION FORM HERE

4 Common Taxes Affecting Probate Transfers

1. Ordinary Income Tax: This is the income tax reported annually in tax returns by most working adults. Additionally, a tax return for the decedent's final year is usually required. For example, if a person dies on August 15, 2014, the Personal Representative will need to file a return by April 15, 2015 for the decedent's 2014 income. The return is marked "Final Return" on the first page.

In addition, if the estate has income during the period of administration, then the estate will need to file an "Estate Return." In some cases, it is advisable to file the return even if the estate does not have income. In other cases, a small amount of income may be reported on the beneficiaries' personal returns.

2. Gift and Estate Tax: This is a tax levied by the U.S. and State of Colorado on transfers by gift or by reason of death exceeding $5,250,000. Very few families pay this tax. Gift taxes are the responsibility of the giver of the gift, not the receiver.

3. Capital Gains Tax: This is a tax levied on the increase in value of an asset. It is calculated at the time the asset is transferred. In most cases, that is on the sale of the asset. A recipient of a gift receives the "basis" of the giver in the gift at the time of the transfer. The "basis" is the amount the owner paid for the asset, plus capital improvements, less depreciation. "Capital gain" is the amount of the value transferred less the owner's basis. A special rule allows beneficiaries of an estate to receive a basis greater than the decedent owned. The estate and heirs are considered to have basis equal to the market value of the asset on the date of decedent's death, or a "stepped up basis."

4. Local Property Taxes: Many assets, including real estate, are taxed each year by local government based upon asset value. As an example, a residence in Jefferson County, Colorado that is worth $300,000 would have an annual tax of between $1,500-$3,000 depending on its exact location and the various applicable local governments. The tax is owed every year and is generally payable by April 30th for the prior year tax. In Colorado, senior citizens are often taxed at a lower rate. Therefore, when the owner dies, the estate may have to pay at a higher rate for the year of the owner's death. Certainly, the following year will be at the normal rate.

10 Steps to Reviewing a Construction Contract

Construction contracts can consist of: Contract Agreement (general contract, subcontract, rental contract or Sales Contract); Purchase Order; Terms and Conditions; Proposals or Quotes; and Credit Agreements.  The following are 10 steps in reviewing any of these kinds of agreements:

1. Who are you contracting with?

Are you a subcontractor to a general contractor or to another subcontractor? Is the company registered? Do you have a personal guaranty from an individual?

2. When will you get paid?

If you are extending credit, do you have terms for payment? Is there a joint check agreement? Is there a "paid-when-paid" or "paid-if-paid" clause?

3. What is your security for payment?

Perhaps it is a mechanic's lien, a security interest in equipment, a bond, or a personal guaranty? See one of our recent posts for further information on this question.  Blog on Mechanic's Liens

4. When you receive payment, are you waiving any rights?

Are you waiving mechanic's liens and when? Is there is a conditional waiver?

5. How are changes and damages handled?

Do change orders need to be signed or is a verbal change order accepted? Is proof of insurance required for damage? What is covered in the insurance policy?

6. What are your warranty obligations?

If you are a dealer, distributor, or supplier you should NOT provide a warranty yourself and you need to make that clear in writing. Provide a manufacturer's warranty where necessary.

7. What are your indemnity obligations?

You want to limit liability where possible.

8. What happens if there is a dispute?

Some contracts have arbitration clauses and others specificy a venue for any litigation. Look for these clauses in the contract.

9. Will I get my attorney's fee and costs?

In Colorado, there needs to be a statute or contract clause allowing for attorney's fees. Make sure their contract doesn't have a one-way provision for fees - meaning only they get fees and you don't.

10. When do I have to file a lien or take legal action?

Discuss this with your attorney.  Mechanic's liens and other legal actions have deadlines and limits. You should know these limits prior to signing a contract.

By: Jean C. Arnold, Esq Arnold & Arnold, LLP

What is a Mechanic's Lien?

A mechanic's lien is a security interest (similar to a mortgage) in real estate upon which the construction work was performed or upon the property benefited by the work. The Colorado mechanic's lien law provides remedies for most privately-owned projects located in the State of Colorado. The statutes that govern Colorado Mechanic's Liens can mostly be found in Sections 38-22-101, et seq. C.R.S.

Mechanic's lien rights are generally available:

(1) to unpaid creditors who furnished labor, equipment, materials and/or services used for construction of privately-owned construction work;

(2) when required notices are properly and timely given;

(3) when affidavits of service of Notices of Intent and the Statement of Lien are accurately completed and timely filed for record in the county where the property is located;

(4) when suit to foreclose and notice thereof has been timely filed and recorded; and

(5) the reasonable value of the labor, equipment, materials or services have been established in court.

The following are very important deadlines for mechanic's lien, which can be found in Section 38-22-109, C.R.S.:

(1) A Notice of Intent to File a Lien Statement has to be personally served or sent by registered or certified mail to the owner or reputed owner of the property or his agent and the principal contractor or his agent at least ten days before the time of filing the lien statement with the county clerk and recorder;

(2) The lien statement must be filed prior to the expiration of four months after the day on which the last material or labor was furnished by the lien claimant;

(3) Within that four-month period, a lien claimant may file a Notice Extending Time to File Lien Statement, which extends the time for filing the mechanic's lien statement up to six months after the date of filing the notice or four months from project completion, whichever is earlier; and

(4) An action be commenced to foreclose the lien statement within six months after the last materials were delivered or the improvements were completed.

By: Jean C. Arnold, Esq. Arnold & Arnold, LLP

Construction Projects and Remedies for Non-Payment

If you are not getting paid on a construction project, there are possible remedies to securing payment. The tools available to collect the monies owed to you depend on the circumstances.

First, you must consider whether the construction project is publicly or privately owned. If the project is public (federal, state or local), you have certain remedies available to you. MECHANIC'S LIENS ARE AVAILABLE ONLY ON PRIVATELY-OWNED PROJECTS. On public projects, under the federal law, the "Miller Act" or comparable state public contractor bond laws such as the Colorado "Little Miller Act" are available. These laws provide for bonds, which are used to replace the mechanic's lien remedies found on private projects. In addition, under Colorado state law, Verified Claims can be filed, which will cause funds to be withheld from the general contractor pending payment to the unpaid subcontractor or supplier.

Each one of these remedies has its own requirements and deadlines. Consult with a construction attorney to learn more about Colorado construction remedies.

By: Jean C. Arnold, Esq. Arnold & Arnold, LLP

Rocky Mountain High - How Colorado's New Law May Affect You

Amendment 64 became effective on January 1, 2014, allowing Colorado residents 21 and over to possess up to an ounce, no matter the form, of recreational marijuana for personal use within private residences. Colorado residents can also grow six plants per year for private, non-commercial use. Non-residents may possess up to .25 ounces of recreational marijuana inside the state of Colorado.

THE DOS AND DON'TS: You cannot consume marijuana in places accessible to the public. This includes outdoor areas on private, non-residential land, which can be seen by the public. You may use marijuana outside on private, residential property if you are the owner, lessee, or have permission from the owner or lessee. You cannot cross state lines with it, including through the airport. You may transport the legal amount of marijuana in a vehicle, but do not have it in an open container and do not cross the state border with it in your vehicle.

DUI WITH MARIJUANA: It is still illegal to drive under the influence of any drug, including marijuana. If the driver's blood contained five nanograms or more of THC, there will be a permissible inference that the driver was under the influence of drugs for purposes of the DUI statute. C.R.S. § 42-4-1301(6)(a)(iv). This permits but does not require the jury to find that the "under the influence" element of DUI has been established.

EMPLOYMENT POLICIES: Nothing prohibits employers from enacting policies restricting the use of marijuana by employees. If you enact policies restricting its use, you may conduct random drug tests to monitor compliance with your policies. You may also conduct criminal background checks for the purpose of hiring employees who comply with your policies.

LEASES: Leasing to a licensed recreational seller is allowed. However, nothing prohibits any person or entity who occupies, owns, or controls a property to regulate the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property. You should address this policy specifically in any commercial or residential lease. If you rent for residential or commercial purposes, know whether your landlord is restricting the use of marijuana on the premises.

By: Kelley G. Shirk, Esq. Arnold & Arnold, LLP

What is an Apostille?

If you conduct foreign business, are moving to a foreign country, or moved here from a foreign country, you may need to authenticate certain documents before they will be accepted - enter an apostille.

You will need an apostille if you ever need a foreign country to recognize an official public document such as birth, adoption, marriage, or death certificates, a judgment, articles of incorporation, a diploma, a college transcript, or any other notarial attestation.

An apostille is a certificate that authenticates the origin of a public document.  It must be issued by the proper public official (often the secretary of state) in the jurisdiction in which it originated (was signed and notarized) for a foreign country to accept it.

Historically, apostilles have been sent to the foreign country by paper after going through that countries consulate in the US, which can be costly and cumbersome. Kansas is now the first state to successfully transfer an apostille eletronically (it went straight from the Kansas Secertary of State to Columbia).

In the future, other states may be able to provide this E-Apostille system. Now you know what an apostille is!

By: Kelley G. Shirk, Esq. Arnold & Arnold, LLP

Representing Your Client in a Foreclosure

There are two main sides to a foreclosure - the borrower and the lender. There are many considerations when representing either side, but you can start by reviewing the following:

If you represent the borrower, begin by analyzing the client's options.  A list of available workout options can be found at the Colorado Foreclosure Hotline website - Foreclosure Hotline Workout Options. Identify those that apply to your client and then contact the Lender to discuss the options for which your client will qualify. You will first need written authorization from your borrower-client, before the Lender will discuss the matter with you. You will also so need identifying information for your borrower - Social Security number and Loan number. If you are uncertain whether your client will qualify for certain programs, such as the FHA interest-free loan, explore this option with the Lender and review the programs and incentives they can offer.

If representing the Lender, you are probably handling the matter at one of the following points in the process: notice to cure, forbearance, foreclosure, deed in lieu or sale of the property (including short sales). You will need to make sure you comply with the Fair Debt Collection Practices Act and its Colorado equivalent during your negotiations with the borrower. The FDCPA is discussed in more detail in other blog posts.  Also in handling the case, be sure you are aware of your different roles under the Colorado Rules of Professional Responsibility. We will discuss the ethics involved in the foreclosure process in a later blog post.

By: Jean Arnold, Esq. Copyright 2013. Arnold & Arnold, LLP

Transferring Assets - Estate Planning

In Colorado, there are a number of ways to transfer assets from one generation to the next. They fall into three basic categories. First, inheritance or probate transfers. Second, transfers by trust. Third, transfers by operation of law. Each has unique advantages and disadvantages.

Inheritance or probate transfers:

This is the transfer most people think of when that think about estate planning. A person's estate is comprised of assets in the name of the decedent at the time of his death. The estate will pass to the decedent's heirs if he does not have a will. Those people are typically his spouse and children. If he has a will his estate passes to the persons or charities named in the will.

Depending on the value and nature of the assets, the estate will pass through one of four levels of the probate process. The simplest is an "Affidavit for Collection of Small Estate." This is a one page form and no court filing is involved. The next, and most common, level is "Informal Probate." The process gets more complex with "Formal Probate."  The highest level of judicial involvement is "Supervised Administration." In Colorado, 95% of estates are in the two simplest forms. In some states (i.e. New York) probate can be very expensive. In other localities probate can have many delays, and take years. In Colorado, those risks are low.

The advantages of passing property in this way include: (1) the property remains in your name during your lifetime; (2) the estate plan is less expensive to complete; (3) you do not have to deal with the hassle of administering your assets in trust ownership; and (4) while informal probate involves some hassle, it is rarely onerous, and provides for judicial assistance if needed.

The disadvantages are the costs, delays, and procedural hassles assocaited with probate.

Check out our next blog to review other ways of transferring assets.

By: Richard M. Arnold, Esq. Arnold & Arnold, LLP

Home Foreclosure Resources

Foreclosure - Programs and Incentives Available

In Colorado, the place to start is the Colorado Foreclosure Hotline 1-877-601-HOPE. The website contains excellent information www.coloradoforeclosurehotline.org. Colorado Foreclosure Hotline is a HUD-approved counseling agency. If you represent the Lender, then right to cure letters must include reference to this agency using language such as:

There may be assistance available to help you cure the default and avoid foreclosure. We encourage you to contact the Colorado Foreclosure Hotline at 1-877-601-HOPE (toll free). You may also contact undersigned counsel for the purpose of payment.

The website reports: "Since its Oct. 11, 2006 establishment, the Colorado Foreclosure Hotline has received more than 165,000 calls and helped more than four out of five homeowners to reach positive resolution." The website also includes a list of resources and links.

The Home Affordable Modification Program (H.A.M.P.) is a federal program. HAMP gives mortgage lenders the opportunity to enter into contracts with the US Treasury to modify homeowners mortgage loans and receive incentive payments. An overview of HAMP and the incentives offered along with training schedules for interested lenders can be found at: https://www.hmpadmin.com/portal/programs/hamp.jsp.

The Regulations governing the above acts can be found at 16 CFR Part 322 - Mortgage Assistance Relief Services. The Regulations empower the attorney general or other officer of a state to bring action to enforce the Act and Regulations. See 16 CFR 322.10.

The incentives offered were broadened through FHA (Federal Housing Administration) to address people who lost jobs. The HAMP reduced monthly payment of 31% of gross monthly income has been modified further if the homeowner is unemployed, including a temporary support program to delay repayment while the homeowner conducts a job search. The program has fixed criteria discussed in more detail on the Colorado Foreclosure Hotline website.

Copyright 2013. Jean C. Arnold. Arnold & Arnold, LLP

Non-Traditional Family Units - Guardianships

A. Guardianships

Guardianship traditionally existed so that parental responsibilities could be exercised when parents are unavailable due to death, military deployment or other circumstances.

(1) Temporary Guardianship. Guardianship may be granted by a parent while the parent is unable to care for her children. Most states have specific forms that a parent may use to grant temporary custody to a trusted relative or friend.

(2) Formal Guardianship. In other instances a probate court may use formal guardianship proceedings to appoint a guardian when the parents are deceased.

In either case, the practical effect of the guardianship may include the development of a familial bond. Where parents have passed away, this is a positive development.

However, conflict may then arise between guardian and parents, or other extended family over the permanent care and custody of the children. In the vast majority of cases involving parents, the parents will prevail in their effort to regain care and custody of their children. Generally, only when the parent's behavior rises to the level of unfitness will they lose permanent custody. If the state has a statutory basis for standing (such as described for Colorado earlier in the materials), and the parents are unfit, a guardian may seek permanent custody of the child. This may ultimately lead to adoption if the parents continue to neglect their children.

When conflict arises between a guardian and extended family members, the dispute may be less clear-cut. In most jurisdictions, the court's determination will be made based upon the best interests of the child, as delineated within the statutory and judicial law of the jurisdiction.

By: Richard M. Arnold, Esq. Arnold & Arnold, LLP

Non-Traditional Family Units - Grandparent Rights

A. Grandparent Rights

In the last thirty years, extended family, and particularly grandparents, have increasingly shouldered child rearing responsibilities. Some states give standing to non-parents to seek custody of children in their care. For example, in Colorado parental responsibilities (custody) may be sought "by a person other than a parent, by filing a petition seeking the allocation of parental responsibilities for the child in the county where the child is permanently resident or where the child is found, but only if the child is not in the physical care of one of the child's parents; or by a person other than a parent who has had the physical care of a child for a period of one hundred eighty-two days or more, if such action is commenced within one hundred eighty-two days after the termination of such physical care." Once standing has been established, grandparents may pursue custody or parenting time in the same manner as traditional parents.

Many states have also passed grandparent visitation statutes. These effectiveness of the rights granted by the statutes has been significantly limited by the plurality ruling of the U. S. Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed2d 49 (2000). In striking down the Grandparent Rights statute of Washington State, the court found that parents have a fundamental constitutional right to the "care, custody and control of their children." The Washington state statute was very broad in its applicability, and gave little or no deference to the decisions of parents regarding non-parent visitation. The court found that states must give "special weight" to parental decisions regarding visitation. The Washington statute infringed too deeply on the fundamental rights of the parents.

In response some states have enacted statutory changes to ensure the constitutionality of their grandparent visitation statute. Other states have, through judicial interpretation, reconciled existing statutes with the requirements of Troxel. For example, see In re the Adoption of C.A., 137 P3d 318 (Colo. 2006) which reconciles the best interests of the child standard set forth in §19-1-117, C.R.S. with the "special weight" given parental decisions under Troxel.

By: Rich M. Arnold, Esq. Arnold & Arnold, LLP

Non-Traditional Family Units - Same Sex Couples

A. Same Sex Couples

While the concept remains controversial, there is a demonstrable trend in some parts of the U.S. to recognize marriage rights for same sex partners. Thirteen states now permit marriage by persons of the same gender (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington). These states comprise about 30% of the U.S. population. Thirty-five states prohibit marriage by persons of the same gender. Five states which do not recognize same sex marriage authorize civil unions between persons of the same gender (Colorado, Hawaii, Illinois, Nevada and New Jersey). These states include another 11% of the U.S. population. Wisconsin provides certain limited rights for same sex couples.

The same laws concerning traditional marriage apply for same sex spouses in those states recognizing same sex marriage. Presumably, same sex common law marriage may exist in Iowa and Rhode Island.

States permitting civil unions typically apply the same provisions for dissolution of marriage to civil union partners who have separated and are seeking to sever their legal bond (for example, New Jersey Statutes Annotated 37: 1-33, and Colo. Rev. Statute §14-115-107).

Over time, we will expect to see how courts in states which do not recognize same sex marriage or civil unions handle litigants seeking to dissolve their union in those states. Conflict of law issues as well as issues comity among the states is implicated by these possible cases. With the recent Supreme Court case striking down provisions of the federal Defense of Marriage Act (DOMA), same sex marriages should be entitled to federal social security, taxation and other benefits.

Less clear is how civil unions will be treated under federal law. One would presume that civil unions would not receive the same benefits as marriages, but we can expect new cases seeking federal benefits for civil unions. Civil unions will commonly be used by same sex couples, but in Illinois and Colorado couples of different genders may enter into a civil union. Test caes regarding federal benefits may include heterosexual couples seeking equal treatment with married couples under federal programs. On the other hand couples of any gender may seek the state law benefits of civil unions, while seeking to keep "single" filing status for federal tax purposes.

The family law attorney should become familiar with the status of civil unions or same sex marriage in the states they practice in.

By: Rich M. Arnold, Esq. Arnold & Arnold, LLP

Non-Traditional Family Units - Cohabitating Couples

A. Cohabitating Couples

In the past forty years the number of unwed couples living together and raising families together has mushroomed. The law has changed in many respects, but there are still significantly less legal protections for cohabitating couples compared with married couples.

(1) Common Law Marriage. Common law marriage is not recognized in the majority of states (40 in all). Nine states (Alabama, Colorado, Iowa, Kansas, Rhode Island, South Carolina, Utah, Texas and Montana) recognize common law marriage, as does the District of Columbia. New Hampshire recognizes the concept for inheritance purposes only. The existence of a common law marriage is based upon the agreement of the spouses to be married. Individual states have a variety of legal tests to establish the existence of a marriage in divorce or probate proceedings. In most states which recognize common law marriage, cohabitation as husband and wife, as well as repute within the community must be proven in order to establish the marital relationship.

(2) Cohabitation Agreements. In some states, a written agreement between cohabitants is necessary for one party to enforce any rights in the income or property of the other upon separation (for example, Minnesota). In some states, if a court finds the relationship to include consideration which is severable from the meretricious nature of the relationship, the court may permit a real property partition action to proceed. The relationship may be viewed as analogous to a business partnership. (see for example Arizona, Carroll v. Lee, 712 P.2d 923 (1986). In a few states a meretricious relationship may give rise to an equitable claim by on party to assets held in the name of the other (Washington, In re Marriage of Pennington, 14 P.3d 764 (2000).

As a point of practice, the advice given to a party in a cohabitation situation is to either carefully maintain separate title to important assets, or obtain a clear and written agreement as to the rights of the parties in the event of separation.

(3) Parental Rights. Most states allow for the enforcement of parental rights even in the absence of marriage. This is a recognition of the fundamental right to the "care, custody and control of their children," Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.Ed2d 49 (2000), as well as the right of children to a relationship with their parents. In some states, the statutes governing paternity actions specifically provide for the determination of custody, decision making responsibility, and parenting time. In addition many states provide for a parent's standing to seek parenting time (visitation) and decision making responsibility (legal custody) regardless of the marital status (for example, Colorado §14-10-123, C.R.S.).

By: Richard M. Arnold, Esq. Arnold & Arnold, LLP

Military Deployment and Family Law

Uniform Deployed Parents Custody and Visitation Act

The new Uniform Deployed Parents Custody and Visitation Act repeals C.R.S. §14-10-131.3 and adds a new article 13.7 to Title 14 of the Colorado Revised Statutes. House Bill 13-1200 became a law on July 1, 2013.

This new bill addresses issues that arise when a parent is deployed while serving in the military. In the past, most states have not adequately addressed this issue. This bill hopes to ensure that deployed parents are not penalized while serving their country and while protecting the best interest of the child and the rights of the non-deployed parent. It also recognizes that there may be step-parents and half-siblings who are involved in the child's life and with whom the relationships should continue even though the parent is now deployed.

One of the key points of the new bill provides that the absence of a military parent from a state does not deprive the state court of jurisdiction over the custody or visitation proceeding if the state court already had jurisdiction regarding matters of custody. As part of this, the deploying must give notice of deployment to the other parent within 12 days of receiving notice of the deployment orders. There is a provision recognizing this may not always be possible. The bill also requires that a plan be prepared for the care of the children during a deployment. (C.R.S. §14-13.7-105). Section 201 sets forth the requirements of a parenting plan during deployment which may include the rights of a non-parent (step-parent) for visitation and decision making in the place of the deployed parent. The non-parent is given standing to enforce the terms the deployment parenting agreement. Section 202 specifically states that this order terminates when the deployed parent returns from the deployment. Section 204 allows the deploying parent to delegate custodial authority to an adult non-parent if the deploying parent has full custody of the child or the other parent is barred from contact with the child.

Part 3 of the bill provides for the means for a court hearing which may be expedited and which may take testimony by electronic means if the deploying parent is unavailable to determine interim orders while the parent is deployed. This section also acknowledges that a non-parent may be granted custody and visitation in place of the deployed parent.

Part 4 of the bill discusses how the interim orders are terminated upon the parent's return from the deployment. In most cases, as long as the parents agree, the interim orders are terminated. If the parents cannot agree, then any interim orders expire 35 days after notice is given to the non-deployed parent that the deployed parent has returned from the deployment.

By Richard M. Arnold, Esq  Arnold & Arnold, LLP

Violence in the Home and Family Law

Unfortunately, too many domestic relationships are marred by abuse and violence. The Family Law attorney must understand the relief available for victims, and be prepared to defend a client who has been accused of violence or abuse. When violence occurs, there are several points of entry to the judicial system for the affected family. They include child protective services, adult protective services, the criminal justice system, the juvenile justice system, and the civil courts.

A. Protective orders Under Title 18 vs. Civil Protective Order

In Colorado, there are two processes for entry of protection orders between spouses or domestic partners. A mandatory protection order is created whenever a person is charged with a violation the Colorado Criminal Code, Title 18 of the Colorado Revised Statutes. The order "... restrains the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness or victim of the acts charged." §18-1-1001(1), C.R.S. In the context of domestic violence or child abuse, typically a law enforcement agency is responding to an emergency call or a report. When a charge is then filed, the court will issue the protection order. When there is violence in the home, very often the other family members who are not the direct victim are witnesses. Thus, the protective order often applies to the defendant's entire family.

Upon motion, the order may be modified or dismissed. In the case of domestic violence, the order can be expanded to prohibit any contact between defendant and the victim and witnesses, prohibit alcohol or drug use, and prohibit possession of a firearm. Violation of the mandatory protection order is prosecutable as a misdemeanor pursuant to §18-6-803.5, C.R.S.

The mandatory protection order continues in effect until the final disposition of the criminal action, including the completion of any sentence to incarceration or jail.

A civil protection order is granted by the appropriate court upon the motion or complaint of a victim to prevent assaults and bodily harm, domestic abuse, emotional abuse of the elderly, or stalking. The procedure for obtaining a civil protection order is set forth in §13-14-102, C.R.S. and Rule 365, C.R.C.P.

By: Rich M. Arnold, Esq.  Arnold & Arnold, LLP

When can you collect your attorney's fees?

Collection - Attorney's Fees:

Attorney's fees can only be collected in Colorado if there is a written agreement allowing the recovery of attorney fees or if there is a statute that allows their recovery. The following suggested language (or something similar) should be included on contract documents, credit agreements, invoices, delivery tickets, and work orders:

"Payment in full is due on the fifteenth day of the month. Interest of 24% per annum will be charged on all past-due balances. In the event of non-payment, customer will pay all costs of collection, including reasonable attorney fees and costs."

OR

"The prevailing party in any litigation is entitled to attorney fees and costs including expert witness fees and costs."

The same language should also be included on invoices and delivery tickets. The inclusion of this language may allow collection of interest and attorneys' fees even without a signed Credit Application or contract. Offen, Inc. v. Rocky Mountain Constructors, Inc., 765 P.2d 600 (Colo. App. 1988) (delivery tickets supplied contract terms for recovery of interest and attorneys' fees); Murray Equipment Co. v. Curtis, Inc., 725 P.2d 35 (Colo. App. 1986) (quotation from supplier established terms of contract including delivery schedule, interest and consequential damages).

A debt collector or attorney cannot threaten a recovery of attorney's fees unless allowed by the underlying documents and state law, and the amount cannot be stated until reduced to judgment. 15 U.S.C. 1692g(b) and Aramburu v. Healthcare Financial Services, F. Supp. 2d 21 (D. Conn. 2005).

An attorney can engage in collection action on a contingency fee basis so long as the requirements of Rule 1.5, C.R.P.C. are followed along with the Rules Governing Contingent Fees, Chapter 23.3. Chapter 23.3 includes Colorado Supreme Court approved contingent fee agreements and disclosure statements.

By Jean C. Arnold, Esq. Copyright 2013 Arnold & Arnold, LLP

SO WHO SAYS YOU CAN'T GET PAID?

Mechanic's Lien Pre-Lien Notices in Colorado, New Mexico and Wyoming

Mechanic's liens are highly effective collection tools for unpaid contractors, subcontractors, designers and suppliers available on privately-owned projects. In Colorado, New Mexico and Wyoming, mechanic's liens are available only if the conditions of the state's statues are first met. One of those conditions is a pre-lien or preliminary lien notice.

Mechanic's liens are available to all persons supplying labor, laborers, materials, machinery, tools, or equipment, to be used in the construction, alteration or repair of any structure, or to make an improvement upon the land itself, including design services. For lien claimants in Colorado, New Mexico and Wyoming, the first condition may be a pre-lien or preliminary lien notice. Colorado does not have a mandatory pre-lien notice requirement, but New Mexico and Wyoming do.

Colorado law, §38-22-102, allows for a preliminary notice that is not mandatory. The unpaid supplier, contractor or designer may give a written notice to the owner or the construction superintendent, agent, architect, or to the financing institution or other person disbursing construction funds. The written notice states "in general terms the kind of labor, laborers, or materials and the name of the person to or for whom the same was or is to be done, or performed, or both, and the estimated or agreed amount in value," and is sent to the owner and "a principal contractor, or any person acting by authority of the owner." If a preliminary notice is sent, the owner must make sure there will be sufficient funds available to assure payment to the claimant sending the notice - powerful stuff!

New Mexico law, §48-2-2.1, requires persons claiming a right to lien to send a notice of right to lien to the owner or to the original contractor within 60 days of furnishing work or materials. This notice is not required for claims of $5,000 or less or for residences of four units or less. If a lien claimant elects not to give the notice within 60 days of the claimant's first work or supplying materials, then the claimant can look back only 30 days prior to the date notice is given.

Wyoming law is the most restrictive of the three states. Wyoming made substantial changes to its mechanic's lien statutes that went into effect on July 1, 2011. The claimant shall send written notice to the record owner or agent and to the contractor of the right to assert a lien against the property for which services or materials are provided. The notice must be sent within 30 days after first providing services or materials to the construction project. The preliminary notice is required and, if it is not sent within the time specified, the claimant shall be barred from asserting a lien. The preliminary notice must be sent for all Wyoming projects. Wyoming provides a sample preliminary notice form and lien waiver under W.S. §29-10-101.

So, before you start that next construction project, make sure you know your time deadline to serve your pre-lien or preliminary lien notice. Sending the notice will give you one more tool to assure you get paid!

By Jean Arnold, Esq. Arnold & Arnold, LLP

Overview of the Law Governing Debt Collection Practices - Part IV

Some additional requirements and what happens if you violate the FDCPA or CFDCPA -

Validation of debts. Under 15 U.S.C. §1692g provides as follows:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing -

(1) The amount of the debt;

(2) The name of the creditor to whom the debt is owed;

(3) A statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of the judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

The above provision is the basis for the FDCPA language to be included in collection letters and in voice mail messages to the consumer.

Attorneys Fees. Attorney's fees can only be collected in Colorado if there is a written agreement allowing the recovery of attorney fees or there is a statute that allows their recovery.

A debt collector or attorney cannot threaten a recovery of attorney's fees unless allowed by the underlying documents and state law, and the amount cannot be stated until reduced to judgment. 15 U.S.C. 1692g(b) and Aramburu v. Healthcare Financial Services, F. Supp. 2d 21 (D. Conn. 2005).

An attorney can engage in collection action on a contingency fee basis so long as the requirements of Rule 1.5, C.R.P.C. are followed along with the Rules Governing Contingent Fees, Chapter 23.3. Chapter 23.3 includes Colorado Supreme Court approved contingent fee agreements and disclosure statements.

Civil liability. The civil liability for violating the FDCPA is "actual damage" sustained by any person and additional damages not to exceed $1000 for an individual and not to exceed the lesser of $500,000 or 1 per cent of the net worth of the debt collector for a class action together with all attorney fees and costs. 15 U.S.C. §1692k.

By: Jean C. Arnold, Esq. Copyright 2013  Arnold & Arnold, LLP

Overview of the Law Governing Debt Collection Practices - Part III

FDCPA and CFDCPA No No's!

1. Harassment or abuse. DON'T DO IT! The FDCPA 15 U.S.C. §1692d and the CFDCPA both prohibit conduct likely to harass, oppress, or abuse a person. Section 5-5-109, C.R.S. prohibits harassment and "unconscionable debt collection" practices. The C.R.P.C. requires a lawyer to respect the rights of third persons. Rule 4.4. The following conduct is harassment under Colorado law (§5-5-109(4), C.R.S.):

· Communicating with the debtor or his family at frequent intervals;

· Communicating with the debtor or his family at unusual hours;

· Communicating with the debtor or his family under "other circumstances so that it is a reasonable inference that the primary purpose of the communication was to harass the consumer;"

· Causing or threatening to cause injury to the consumer's reputation or economic status;

· Using or threatening to use force against the consumer or a member of the consumer's family.

2. False or misleading representations and unfair practices. Prohibitions against misleading representations both in writing and in collection calls are at the heart of the FDCPA 15 U.S.C. §1692e and f and the CFDCPA as well as §5-5-109 and §§12-14-106, 107 and 108, C.R.S. As stated above, a primary prohibition is against a non-lawyer acting like a lawyer or sending a communication on an attorney's letterhead. The misrepresentation analysis does not turn on what the debt collector knew, but rather on "whether the debt collector's communication would deceive or mislead an unsophisticated, but reasonable, consumer." Bragg, O. Randolph, The Fair Debt Collection Practices Act 15 U.S.C. §§1692 ET SEQ., Practising Law Institute March-May 2007, Corporate Law and Practice Course Handbook Series, pp. 470-71. According to Bragg, common misrepresentations include:

- False representation of the character, amount or legal status of the debt.

- Representation or implication that nonpayment will result in arrest, imprisonment, seizure, garnishment, attachment, or sale of the consumer's property.

- Use of any name other than the true name of the debt collector.

- The false suggestion of affiliation with governmental agencies.

- Representation that the debt collector is part of a credit reporting agency.

- References to civil penalty, attorney's fees, and overstated interest calculations in collection letters where the statements are contrary to state law.

- A non-lawyer's letter threatening referral to an attorney for litigation if payment was not made in 5 days.

- Collection letter that state the debt must be paid in the next 30 days in order to qualify for a discount.

- Treble damages and attorney fees not reduced to judgment cannot be stated or demanded in the initial communication.

    • A tenant agrees to waive or forego rights or remedies under the article;
    • Any provision authorizing any person to confess judgment on a claim arising out of the rental agreement;
    • Any provision agreeing to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith.

The lawyer is responsible for the conduct of nonlawyer assistants over whom the lawyer has direct supervisory authority. The lawyer must assure that his assistants abide by the law and the C.R.P.C.

By: Jean C. Arnold, Esq. Copyright 2013. Arnold & Arnold, LLP

Overview of the Law Governing Debt Collection Practices - Part II

FDCPA and CFDCPA in practice

Today we are taking a look at what is allowed when communicating with a consumer debtor.

1. Acquisition of location information. Under 11 U.S.C. §1692b, a debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the debtor shall -

(1) Identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer;

(2) Not sate that such consumer owes any debt;

(3) Not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;

(4) Not communicate by post card;

(5) Not use any language or symbol on an envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and

(6) After the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney's name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the debt collector.

2. Communication with the Debtor. 15 U.S.C. §1692e - A debt collector is prohibited from communicating with a consumer "at any unusual time or place" defined as before 8:00 a.m. and after 9:00 p.m. A debt collector is prohibited from communicating with a consumer at the consumer's place of business. If the consumer notifies the debt collector in writing that the consumer refuses to pay the debt and to cease all further communications, the debt collector is prohibited from further contact.

3. Collection Letters. The FDCPA (15 U.S.C. 1692a(2)) and the CFDCPA (§12-14-105, C.R.S.) require the following notice in consumer debt collection letters that are the "initial communication:

"This is an attempt to collect a debt. Any information obtained will be used for that purpose. Unless you dispute the validity of the debt, or any portion thereof, within thirty (30) days after receipt of this letter, we shall assume the debt to be valid. If you notify us in writing of your dispute within the 30-day period, we will obtain verification of the debt or judgment and will mail you a copy. Upon your written request within the 30-day period, we will provide you with the name and address of the original creditor if different from the current creditor. We may proceed with suit against you without waiting the 30 days if so requested by our client. A Consumer has the right to request in writing that a debt collector or collection agency cease further communication with the consumer. A written request to cease communication will not prohibit the debt collector or collection agency from taking any other action authorized by law to collect the debt."

FOR INFORMATION ABOUT THE COLORADO FAIR DEBT COLLECTION PRACTICES ACT, SEE http://www.coloradoattorneygeneral.gov/departments/consumer_protection/uccc_cab.

Tun in next time for more FDCPA and CFDCPA considerations when collecting a debt from consumers.

By: Jean C. Arnold, Esq.  Copyright 2013. Arnold & Arnold, LLP

Overview of the Law Governing Debt Collection Practices - Part I

FDCPA and CFDCPA - Brief Overview

The Federal Debt Collection Practices Act is mirrored in the Colorado Fair Debt Collection Practices Act. Both acts apply to "consumer debt" and are intended to eliminate "abusive, deceptive and unfair" practices. Both acts clearly outline prohibited conduct and provide the injured consumer with redress. Both the FDCPA and CFDCPA have influence the collection practices industry in the collection of "commercial debt" especially given the breadth of definition of a "consumer" as any natural person obligated or allegedly obligated to pay any debt. 15 U.S.C. 1692a(3) and 12-14-103(4), C.R.S.

We will begin with the definitions sections of both statutes. The CFDCPA also applies to collection of child support under §12-14.1.103, C.R.S.

Definitions. Debt (Federal) - "means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment." 15 U.S.C. §1692a(5) and

Debt (Colorado) - "means any obligation or alleged obligation of a consumer to pay money arising out of a transaction, whether or not such obligation has been reduced to judgment." §12-14-103(6)(a), C.R.S.

Debt collector (Federal) - "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purposes of which is the collection of debts or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. §1692a(6). Note: The definition includes attorneys, law firms, private investigators employed by debt collectors and collection agencies.

Debt collector (Colorado) - "means any person employed or engaged by a collection agency to perform the collection of debts owed or due or asserted to be owed or due to another, and includes any person employed by the department of personnel, or any division of said department, when collecting debts due to the state on behalf of another state agency." §12-14-103(7), C.R.S.

Tune in next week on what condcut is allowed to collect a debt!

Copyright 2013. Jean C. Arnold, Esq.

Collections

Is Colorado Becoming a Tenant-Friendly State?

Does the strengthening of tenant rights in the Mobile Home Park Act mean Colorado is becoming a tenant-friendly state? A review of the proposed Uniform Residential Landlord & Tenant Act may provide clues to the future of landlord-tenant law in Colorado.

The Proposed Uniform Residential Landlord & Tenant Act

On January 19, 2012, the Uniform Residential Landlord & Tenant Act was introduced in the Colorado General Assembly. The Uniform Act, if passed, would impact the following standard provisions in residential leases:

Attorney fees. A rental agreement may not provide that the Tenant agrees to pay the landlord's attorney fees. • Default and remedy clauses. Waives the landlord's right to terminate the lease if the landlord accepted rent knowing of the tenant's default. • Rules and regulations. Contains limitations on the landlord's imposing rules and regulations, similar to the limitations found in the Mobile Home Park Act.

The Uniform Act, if passed, would require a landlord at the commencement of the tenancy to disclose in writing: 1) the name and address of the authorized manager of the premises, and 2) an owner, or other person authorized to act for the owner, for purposes of service of process and receiving notices and demands.

The Uniform Act, if passed, would prohibit certain provisions in rental agreements including:

Finally, under the Uniform Act, the tenant may recover, in addition to actual damages, an amount of up to three months periodic rent and reasonable attorney fees for a landlord's violation of the prohibitions stated above.

Unfortunately, Senate Bill 70 did not pass during the 2012 Colorado legislative session. It is currently not known whether it will be reintroduced. However, its introduction in 2012 may signal a change in how Colorado is viewing the future of landlord-tenant law. In the past, when Colorado recognized a need for expanding mobile home tenant's rights and protections, the Mobile Home Park Act was incrementally amended over ten years to meet the need. Will Colorado become a tenant-friendly state? We must wait and see.

Jean Arnold, Esq and Kelley Shirk, Esq.

See the full published article here:DU Law Review

Clocking-In - How to Calculate Hours Worked

Are you an employer wondering if you can round hours to the nearest quarter of an hour?

Are you an employee wondering what hours count for overtime?

Check this out: if the employee clocks out at 36 minutes past the hour it can be rounded down to 30 minutes and if the employee clocks out at 37 minutes past the hour it can be rounded up to 45 minutes past the hour.  Pursuant to its Advisory Bulletins, Colorado Department of Labor permits this rounding of hours worked. However the rounding must be reasonable and benefit the employee as often as it benefits the employer. It also contemplates a 5 minute or tenth of an hour rounding not a quarter of an hour. Even if rounding does occur, it should be done in a way that ensures the employee is fully compensated for all hours worked.

As for working overtime, there is a requirement that all hours over 40 hours be compensated at 1.5 times the base rate. Overtime pay must be paid for the actual time worked over 40 hours per week.

How do these two concepts mix? Using the rounding method above, if an employee were to work eight hours and six minutes each day for a week, the employee would be entitled to 30 minutes of overtime for that week because he worked 30 minutes over the 40 hour limit. This conclusion is reached because of the language requiring payment for any work in excess of the 40 hour limit.

In other Labor Bulletins, the term "actual hours worked" is used. This language would imply that rounding is not permitted even in light of the most recent Labor Bulletin cited above. A conundrum?  Perhaps, but we would follow the most recent Labor Bulletin that allows rounding.

More questions? Contact us: Arnold & Arnold, LLP

Kris Jukola, Esq.

Dealing with Emotions in Family Law Practice

Family law is a challenging, yet satisfying area of practice. It is one of the few fields of law that remains dominated by solo practitioners and small law firms. Family law emphasizes the individual, family, and personal relationships. Assisting a family which is in conflict to find compromises and common ground can profoundly benefit the parties and their children. The rewards from this practice are great but there are pitfalls in the practice also.

According to psychological research, the second most stressful event in an individual's life is divorce. The most stressful event in an individual's life is the death of a spouse or child. Surprisingly, numbers seven and nine on this list are getting married or reconciling a marriage. Therefore, attorneys who practice family law must recognize that their clients will be experiencing very high levels of stress during this process.

This stress will express itself in different ways and at different times. Clients will experience raw emotional pain that may not be given a chance to heal until the dissolution process is complete. A client may, at times, lash out at those who are trying to help them through this process. While attorneys are not family therapists or counselors, they must be aware of their client's emotions and stress during this difficult time. If the client is not in counseling, it may be appropriate to suggest such a course of action. Having knowledge of available resources to which clients can be referred is beneficial.

Remember the complicated emotions that are at play in family law cases. Attorneys that learn to navigate those emotions will be more successful in this practice.

Rich Arnold, Esq.

Family Law - Arnold & Arnold, LLP

Colorado Welcomes Civil Unions

The Colorado Civil Union Act passed the Senate and is currently pending approval from Govenor John Hickenlooper.  Govenor Hickenlooper is expected to sign the civil unions bill into law in a public ceremony on March 21, 2013.  Portions of the Act will go into effect May 1, 2013 and the remaining portions will be effective January 1, 2014.

Colorado Civil Union Act is designed to provide the same protections and benefits currently reserved for spouses to other eligible couples.  An "eligible couple" means that both parties are adults (regardless of gender), neither is a party to another civil union and neither is married. The eligible couples will still need to apply for a civil union license with the county clerk and recorder - a similar procedure to the marriage certificate.

The new protections and benefits include financial benefits, legal protections, inheritance rights, visitation rights, and medical treatment decisions among others.

Civil unions will also be subject to the same domestic relations laws as a married couple, meaning they will have to go through similar divorce and parental allocation proceedings to terminate a civil union. Colorado attorneys practicing family law will need to familiarize themselves with the new application to civil unions. Arnold & Arnold attorneys will be attending and teaching upcoming seminars on the subject.

Stay tuned for more information on this brand new law!

Arnold & Arnold - Family Law

Kelley G. Shirk, Esq.

Bankruptcy Proof of Claim Made Easy!

Did a debtor that owed you money just file for bankruptcy? Now you can file a proof of claim form with the Colorado Bankruptcy Court online.

First, fill out the proof of claim form, which can be found at:

http://www.cob.uscourts.gov/files/mrfa.doc#_Local_Bankruptcy_Form_8

You will need the Colorado Bankruptcy Court number, the debtor's name, the amount owed and any documents that support your amount owed.

Scan and electronically save your proof of claim with any attachments and then go here for filing:  http://www.cob.uscourts.gov/poc/poc.asp

Click on the live link at the bottom of the webpage "Online Proof of Claim." You will be led through a series of filing boxes and will be able to upload your proof claim to the Colorado Bankruptcy Court's filing site.

If you are trying to file in a No Asset Chapter 7 case, you will not be allowed to file a proof of claim until the Court changes the case designation and invites creditors to file a proof of claim.

Visit our website for more information: http://www.arnoldarnold.com/collections-and-creditor-Representation.shtml

Jean Arnold, Esq. and Kelley Shirk, Esq.

POST - JUDGMENT COLLECTION

HOW DO YOU KNOW WHAT PROPERTY THE DEBTOR HAS?

Rule 69, C.R.C.P. provides for Execution and Proceedings Subsequent to Judgment. The Rule allows a creditor to either serve written interrogatories on the judgment debtor, who must be personally served under Rule 45, CR.C.P., or serve a subpoena on the judgment debtor to appear in Court to answer questions concerning property. You can serve a subpoena duces tecum and require the judgment debtor to bring documents with him, so you can verify the answers.

If the debtor fails to answer the Interrogatories within 21 days after service of the Interrogatories, the creditor can file a motion with the Court requesting an order to have the judgment debtor appear in court at a specified time to show cause why he should not be held in contempt for failure to answer the interrogatories. It is generally better to prepare this Motion as a contempt citation. If the judgment debtor fails to appear for this show cause hearing, the Court can issue a bench warrant for the debtor's arrest.

If the debtor fails to appear on the date specified on the Rule 69 Subpoena, the Court will issue a bench warrant for his arrest.

Once you have determined what property you want to seize, you file a Writ of Execution with the clerk of the court. You must list an exact description of the real or personal property belonging to the defendant that is situated in the county and the exact location. The clerk issues the Writ of Execution which is valid for 90 days. The Writ of Execution is then filed with the Sheriff. Most sheriff's have instructions for how they want the sale conducted. Read our next blog for the specifics!

By Terry Ehrlich, Esq. http://www.arnoldarnold.com/Collections-and-Creditor-Representation.shtml

Addressing Validity of Pre- and Post-Nuptial Agreements

Addressing Validity of Pre- and Post-Nuptial Agreements.

Colorado recognizes the validity of marital agreements. These sorts of agreements are governed by the Colorado Marital Agreement Act, §14-2-301, et seq, C.R.S. Colorado recognizes the enforceability of agreements between both prospective spouses and between present spouses. Unlike most contracts, the enforcing party does not need to demonstrate the existence of consideration. However, a marital agreement must be in writing and signed by both parties (§14-2-303, C.R.S.).

A full examination of marital agreements would be the worthy subject of an entire seminar, but in the context of client intake for a dissolution of marriage case, a few critical points should be discussed.

First, if maintenance is an issue, a marital agreement's provisions as to spousal maintenance will not be enforced if the provisions are unconscionable at the time of enforcement. An agreement is unconscionable if it is not fair, reasonable and just. In re Christen, 899 P.2d 339 (Colo.App. 1995).

Second, a practitioner should inquire as to the circumstances of the parties at the time of the execution of the marital agreement. The agreement must be voluntary. In addition, both parties must have received a fair and reasonable disclosure of the other party's property and financial obligations.

If your client is seeking to avoid the provisions of a validly executed marital agreement, the most productive line of attack is usually in the area of disclosures. The client and attorney should develop a discovery plan that will unearth all details of the spouse's financial circumstances at the time of the agreement. This can then be compared with the disclosure actually provided. Litigating an inadequate disclosure case can be quite expensive, and the client should properly advised in that regard prior to embarking on this strategy.

http://www.arnoldarnold.com/Family-Law.shtml

By Rich Arnold, Esq.

New Court Rule of Seven

The Rule of Seven - When does a tenancy terminate? By Jean Arnold.

I was never good at my "7's" in multiplication and division. Thanks to the State Legislature and Colorado Supreme Court, my "7's" proficiency is improving.

Effective July 1, 2012, Senate Bill 175 (SB 12-175), applied the "Rule of Seven" to the provisions of §13-40-107, C.R.S. affecting the duration and termination of tenancies in real property. The Rule of Seven changed the calculation of statutory deadlines for a myriad of existing Rules and Statutes so now most deadlines must be divisible by "seven." The idea being that a deadline would not fall on a weekend. Plus, the former rule of adding three days for mailing to any deadline was eliminated. Now, statutory and rule deadlines are figured in 7-day increments: 7 days, 14 days, 28 days, 35 days, etc. Gone are: 3 days, 10 days, 15 days and 30 days, 90 days etc. - used prior to July 1, 2012.

Applying the "Rule of Seven" to the Forcible Entry and Detainer process and termination of tenancies:

(1) A tenancy may be terminated by notice in writing, served not less than the respective period fixed before the end of the applicable tenancy, as follows:

(a) A tenancy of one year or longer, ninety-one days;

(b) A tenancy of six months or longer but less than a year, twenty-eight days;

(c) A tenancy of one month or longer but less than six months, seven days;

The Rule of Seven does not apply to deadlines, cure provisions and tenancy terms written into leases, however. Therefore, the common 5-day late "late charge" provisions and 10-day "cure" provisions for defaults remain unaffected by the statutory change if these time periods are written into the lease. If the lease contains a written provision shortening the above notice periods for termination of a tenancy, such provisions are enforceable. Beware as to return of residential security / damage deposits. The 30-day requirement to account for and return a security deposit cannot be lengthened in favor of the landlord under the terms of a lease. In Colorado, the protections afforded the tenant as to the tenant's security deposit under §38-12-103(7), C.R.S. cannot be waived.

http://www.arnoldarnold.com/

Annulment, Divorce or Separation

Annulment, Divorce or Separation: Helping Clients Understand Their Options

(1) Overview.

Colorado has enacted no-fault dissolution. There are no grounds other than the marriage is irretrievably broken for the dissolution of a marriage. C.R.S. §14-10-102(2)(c). In like manner, there are no defenses to an action for dissolution of marriage. C.R.S. §14-10-107(5). A respondent may still raise jurisdictional requirements, such as the existence of a pending action in another jurisdiction or perhaps the parties were never married. However, once the court has decided these issues, there are no grounds to prevent the court from entering a decree of dissolution.

(2) Legal Separation.

A legal separation keeps the marriage legally intact but defines the parties' obligations toward one another, C.R.S. §14-10-106(2). A legal separation may be appropriate when the parties desire to attempt a reconciliation but need some time apart, for religious reasons or to preserve certain benefits that would be lost if there was a dissolution. Very often the responding spouse will seek dissolution of the marriage in their response. The court then is obligated to treat the proceeding as a dissolution of marriage action and not as an action for decree of legal separation.

The jurisdictional requirements for a decree of legal separation are the same as a decree of dissolution of marriage, and the parties' rights as to property and spousal maintenance are also the same. Once a decree of legal separation has been granted and one-hundred eighty-two days has elapsed, upon motion of either party, the court is required to convert the decree of legal separation into a decree of dissolution of marriage.

(3) Declaration of Invalidity (annulment).

A declaration of invalidity (sometimes referred to as an annulment) may be entered by the court if the grounds set forth in C.R.S. § 14-10-111are met. These grounds may include a lack of capacity to consent to the marriage, a lack of physical capacity to consummate the marriage by sexual intercourse, one party was underage and did not have consent of the parents, there was a fraudulent act to induce one party to enter into the marriage, there was duress, a jest or dare to marry, the marriage is prohibited by law or is entered into before an existing marriage is dissolved. A decree of invalidity means that the marriage never took place. If, however, there are children of such a marriage the children are considered legitimate. The division of marital property, child support and custody and spousal support are resolved the under the same provisions of law as in a dissolution proceeding.

By Rich Arnold, Esq. http://www.arnoldarnold.com/Family-Law.shtml

SUBPOENAS - NEW RULE 45

NEW REQUIREMENTS FOR RULE 45 - SUBPOENAS

The Janaury 2013 issue of The Colorado Lawyer has an article on the new Rule 45 - Subpoenas.  Colorado Judicial branch nows has a new form subpoena that can be found through our resource page: http://www.arnoldarnold.com/Resources.shtml

What does this mean for practicing attorneys?  We need to tweak our subpoena procedure and forms.

The new requirements call for more detail in the subpoena.  For example, we need to identify the court, the case, all parties and counsel in the case, and exactly what the subpoena is commanding.  We also need to state what, if any, method we will use to record testimony commanded by a subpoena.  Is it a subpoena to produce documents only, or is it a subpoena to appear to testify? Be clear and be specific on dates, deadlines, and locations.

Does this new rule help attorneys issuing a subpoena? Yes!  The new Rule 45 allows subpoenas to produce documents without requiring a deposition to be scheduled when all you want is the documents.  Be aware that you now have to serve a subpoena to produce 14 days prior to the requested production date, unless you have an expedited hearing.  We still must obtain personal service, but there are now methods to modify this requirement when a recipient is avoiding service.

Does the new rule help recipients of a subpoena? Yes! We now have to spell out a specific statement from Rule 45(c) notifying the recipient of the protections afforded him by the rule.  The recipient is also protected from subpoenas to produce that impose an undue burden or expense. They have an opportunity to request a narrower scope and then to request sanctions if that is not done.

Does the new rule help individuals that hold a privilege in relation to the documents requested? Yes! A subpoena requesting privileged documents must be accompanied by an authorization by the privilege holder or by a court order.

This new rule requires more detailed subpoenas and additional procedures, but it affords new protections to recipients and privilege holders. It also give the issuing attorney new avenues when facing difficult recipients. Make sure to review the new Rule 45 before issuing your next subpoena!

Kelley Shirk, Esq.

COLLECTIONS: SEEKING AND COLLECTING A JUDGMENT

ISSUES WITH COLLECTING A JUDGMENT:

FRAUDULENT CONVEYANCES: What happens if you are trying to collect from a debtor and you find that he/she recently transferred all or a large portion of their property to another person, most likely the spouse. I recently became involved in litigation regarding just that issue.

The husband owned a large house in Elbert County with his wife. As litigation loomed, he quit claimed his interest in the house to his wife, so that she is now the sole owner. Is this a fraudulent transfer?

Colorado Statute defines a fraudulent transfer two ways: either a transfer made with actual intent to hinder, delay, or defraud any creditor, or a reasonably equivalent value was not given in exchange for the transfer and the debtor was engaged in a business or transaction in which the remaining assets of the debtor were unreasonably small in relation to the business or transaction.

The second of these factors would eliminate a sale of an asset made to a unrelated third party for the value of the asset, such as a sale of real property. In my situtation, there was no a sale to an unrelated third party.

How do we prove intent to defraud? The Court can look at multiple factors. Was the transfer made to an insider? The wife is considered an insider. Did the debtor retain control of the property after it was transferred? Since his wife is the owner, it can be assumed that the use of the property is still available to the debtor. Before the transfer was made, was the debtor sued or threatened with lawsuit? The debtor had been sued personally in multiple lawsuits totalling hundreds of thousands of dollars. Was the transfer was of substantially all of the debtor's assets? It was a large portion of his assets. Did the debtor abscond? This debtor moved to Texas, which is very protective of debtors. Did the transfer occur shortly before or after a substantial debt was incurred? The transfer occurred shortly before subtantial judgments were entered against the debtor. Did the debtor become insolvent as a result of the transfer? This fact is not known at this time. Was a reasonably equivalent value received for the transfer? The wife has alleged that she gave her husband consideration, but she has has not given proof of what that consideration was. Was this a fraudulent transfer? Soon the judge will decide. that question, if the parties do not settle it before trial.

By: Terry Ehrlich, Esq. http://www.arnoldarnold.com/Collections-and-Creditor-Representation.shtml

Quick Guide to Eviction

MY TENANT STOPPED PAYING RENT! Quick Guide to Eviction

If you are a landlord having trouble collecting your rents, this is a quick guide to eviction.  Colorado eviction instructions and necessary forms can be found by following our law firm's link at: http://www.arnoldarnold.com/Resources.shtml. 

Step 1- Post on the door either the Demand for Compliance (if the tenancy has a specified termination date) or the Notice to Quit (if the tenancy does not have a specified termination date). The notice should be posted for the applicable time period before filing any court action. 

Step 2- Once the time period has passed from posting the Demand for Compliance or Notice to Quit, you can file an action for Forcible Entry and Detainer in the County Court where the property is located.  Print the Summons, Complaint, and Affidavit of Service forms. The plaintiff is the named landlord on the lease.  The tenant(s) is/are the defendant(s). The maximum amount of damages you can request is $15,000. 

You can request all back rent owed plus late fees if they are specifically mentioned in your signed lease. Attach a copy of the signed lease to the complaint. You can request all costs for filing the action in your judgment (filing and service fees).

Filing- Take all the paperwork to the courthouse and file it with the clerk. They will give you a case number and a court date. There is a fee.

Service- you can either post the summons and complaint with the attached lease on the door of the property again OR you can have the defendant(s) personally served. If you want to request a money judgment from the court, you must have them personally served. The county sheriff or a private process server can do this for you.  If you serve the defendant(s) personally, the server will have to fill out the affidavit of service.

Step 3- Go to court on the day your summons states and bring copies of all ocuments. Bring the original signed and notarized affidavit of service and give it to the court clerk upon arrival. You will either meet with the defendant(s) and try to work out a deal or the defendant(s) will need to file an answer.

If the defendant(s) do not file an answer or do not show up at court, you can request judgment. If you had them personally served, you can request judgment for possession and for money. If you only posted the paperwork on the door, you can only request judgment for possession. This allows you to evict the tenants. You will need to get a Writ of Restitution from the Court and take this to the county sheriff's department.

Step 4- The sheriff will serve the writ of restitution upon the tenants, which gives them 3 days to get out or be forced out. You may need to have people ready to move the tenants out. The sheriffs will usually only give you one hour to do this. Be prepared.

Kelley G. Shirk, Esq.

MEDIATION

I have just been ordered to mediation! What does that mean?

Courts are frequently ordering mediation before you can go to trial. Many people have never experienced alternative dispute resoluation and don't know what it is. It is separate from a trial. It is a time to sit down with a mediator - a neutral third party who doesn't have a stake in the outcome - and discuss possible resolutions to the conflict. Mediators can be employed by the court or can be private mediators. Mediation is an opportunity to hear your opponent's side of the conflict and be creative in coming to a resolution. Sometimes this is the first time that you can hear the other person's story. This process often brings new facts to light, which helps people resolve their dispute. It also gives parties control over the outcome. The disadvantage of having a judge resolve a dispute is that the judge can only rule for one party and they can only enter orders allowed under law. There is always a risk in going to court. Mediation helps parties control that risk by having control over the outcome.

Some people dislike mediation because they may have already tried to resolve the issue themselves and think it is hopeless. However, there is something advantageous about having to tell your side of the dispute to a third party. People are usually better behaved and don't shout or interrupt the other person when there is a third party present. The mediator listens to both sides equally and asks questions to try to narrow the disputed issues. The mediator will control the discussion and can intervene and talk to one party separately if necessary. Sometimes the conflict is centered around emotional issues, such as hurt feelings or anger, completely separate from the legal issues that are the source of the complaint. A skilled mediator can seek to address those emotional issues and see if there can be resolution of those issues as well as the legal issues. I have seen the parties noticeably soften, once the conflict is resolved, and begin talking to each other after mediation. They would hardly look at the other person when the discussion started, but afterwards they are able to look the other person directly in the eye and have a normal conversation. This rarely happens in a courtroom. When the judge issues the order of the Court, people usually leave without talking to each other. After a trial, both parties are unhappy because the outcome was not what they hoped for. So be open about mediation and go ready to mediate in good faith. You might be surprised at the positive outcome.

By Terry Ehrlich, Esq. http://www.arnoldarnold.com/Mediation.shtml

Differences under Chapter 7 and Chapter 13 of The Bankruptcy Code

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).

http://www.arnoldarnold.com/

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.arnoldarnold.com/Resources.shtml

http://www.courts.state.co.us/Self_Help/Local_Small_Claims.cfm


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 Wednesday of the month by Arnold & Arnold, LLP.

Kelley G. Shirk, Esq.

Construction Work on Federally-Owned Projects

CONSTRUCTION WORK ON FEDERALLY-OWNED PROJECTS - Summary of Payment Remedy under the Miller Act

Miller Act Remedies. On federally-owned construction 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 10th 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 (10th 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.

http://www.arnoldarnold.com/Construction-Law-and-Mechanic-s-Liens.shtml

Estate Planning - Medical Advance Directives

Medical Advance Directives in Estate Planning

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 http://www.arnoldarnold.com/

Finding Assets after Judgment - Disclosure Hearings

Finding Assets- Disclosure Hearings

Rule 69, C.R.C.P. provides for Execution and Proceedings Subsequent to Judgment. The Rule allows a creditor to either serve written interrogatories on the judgment debtor, who must be personally served under Rule 45, CR.C.P., or serve a subpoena on the judgment debtor to appear in Court to answer questions concerning property. You can serve a subpoena duces tecum and require the judgment debtor to bring documents with him, so you can verify the answers. County Court allows Interrogatories to be served under Rule 369, C.R.C.C.P., but does not provide for subpoenas.

There is a dispute as to whether Rule 45 requires a judgment debtor to be served a witness fee. Many attorneys serve a witness fee in accordance with the requirements of Rule 45. This office does not serve a witness fee on a judgment debtor who is personally named. Judge King in Douglas County agreed with this and said that Rule 69 is a rule that affects proceedings occuring post-judgment. He ruled that it doesn't make sense to give a judgment debtor money to appear in court and answer questions about his/her own assets. So at least one judge doesn't require the witness fee. There may be a divergence of opinions on this issue.

At the Rule 69 hearing, you can ask questions of the debtor regarding his/her/its assets. The debtor is required to answer truthfully, under oath. The judgment creditor is allowed to bring a court reporter to the Rule 69 hearing. A deposition of any person, including the judgment debtor, may be taken upon order of the Court under Rule 69 (i). Rule 69 (f) also allows for the creditor to subpoena a debtor of the judgment debtor. The debtor must owe the judgment debtor at least $500.00. The Court is allowed to make reasonable orders for mileage and expenses.

If the debtor fails to answer the interrogatories within 21 days after service of the interrogatories, the creditor can file a motion with the Court requesting an order to have the judgment debtor appear in court at a specified time to show cause why he should not be held in contempt for failure answer the interrogatories. It is generally better to prepare this Motion as a contempt citation and serve the citation at least 21 days prior to the hearing. If the judgment debtor fails to appear for this show cause hearing, the Court can issue a bench warrant for the debtor's arrest.

If the debtor fails to appear on the date specified on the Rule 69 subpoena, the Court will issue a bench warrant for his or her arrest. This also applies to corporate officers or registered agents who fail to appear.

Submitted by Terry Ehrlich

http://www.arnoldarnold.com/collections-and-creditor-bankruptcy.shtml

ETHICAL CONSIDERATIONS IN DIVORCE AND FAMILY LAW

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

http://www.arnoldarnold.com/Family-Law.shtml

CONSTRUCTION LAW - JOINT PAYMENT ARRANGEMENTS

GETTING TO YES WHEN YOU WANT TO SAY NO - JOINT PAYMENT ARRANGEMENTS IN CONSTRUCTION

Whether selling materials, renting equipment, or providing labor, consider whether your customer has the financial ability to pay without funds from the project. Perhaps, establish a "joint payment" arrangement with either the owner or general contractor when you want to say "no" to the customer, but "yes" to the project. Beware, however, of some pitfalls.

Joint Check Agreements. First, analyze your customer's contract. Check the contract for "pay-when" and "pay-if" paid terms that could impact when and if payment will occur.

Second, understand the joint payment agreement is a contract creating rights and obligations. In White Construction Company, Inc. v. Sauter Construction Company, Inc., 731 P.2d 734 (Colo. App. 1986), a sub-subcontractor was held liable to the general contractor for work not performed in a workmanlike manner because the general contractor and the sub-subcontractor had entered into a joint check agreement. In Buttermore v. Firestone Tire and Rubber Company, 721 P.2d 701 (Colo. App. 1986), the owner was held to be personally liable to subcontractors because of a joint check arrangement on a project.

Finally, employ caution when using the owner's or general contractor's joint payment agreement form. Many owners and general contractors, in order to limit liability to suppliers, will include such language as: "This arrangement is made merely as an accommodation to the supplier and is not intended to be relied upon by the supplier or to prove any contractual obligations owing from contractor to supplier." Others will include language: (1) limiting their payment obligation to the amount due the subcontractor; (2) incorporating arbitration or other dispute resolution conditions stated in the subcontract agreement; and (3) language waiving mechanic's lien rights or other supplier's payment remedies. If you are a supplier, beware of these limitations.

Remitting joint payments to your customer. Some material suppliers remit portions of the joint check proceeds to their customers even though they are still owed money for materials for the project. A materialman can make loans to his customer, but not with the owner's or general contractor's money intended to avoid liens against the property. Section 38-22-127, C.R.S. Additional language would need to be added to the joint payment form if you are planning to remit funds to your customer from joint payments received. Be sure to keep the owner or general contractor apprised as to the amounts remitted.

Payment application. Often suppliers will apply joint payments received to oldest invoices rather than to the invoices for the project - even knowing the source of funds. In the case of Jackson v. A.B.Z. Lumber Co., 155 Colo. 33, 392 P.2d 288 (1964), the Colorado Supreme Court found that a lumber supplier could not maintain its mechanic's lien against the property because the lumber company knew the source of funds used by the subcontractor to pay the delinquent material bill even though the subcontractor never directed the lumber company how to apply the payment.

http://www.arnoldarnold.com/Construction-Law-and-Mechanic-s-Liens.shtml

Copyright 2011. Jean C. Arnold.

Collecting the Judgment - Judgment Liens

COLLECTING THE JUDGMENT

A. USE OF JUDGMENT LIENS ON REAL PROPERTY

RECORDING THE TRANSCRIPT OF JUDGMENT: One of the easiest and most cost-effective collection tools in your arsenal is the transcript of judgment. You can lien any real property owned by the judgment debtor. (See 13-52-102, C.R.S.) . As soon as judgment is entered, you should obtain the transcript of judgment from the Clerk of the Court for a fee of $25.00 (as of July 1, 2008) and record it with the Clerk and Recorder of each county where the judgment debtor owns property. The transcript of judgment only encumbers real property in the county that it is recorded in, so you need to verify the correct county prior to recording the lien. You can record the transcript in multiple counties. The recording of the transcript does not effectuate execution of the judgment. Recording the lien makes the judgment a lien against the property, which needs to be paid off if the property is sold or refinanced. It may also make the judgment creditor a secured creditor in the event of a bankruptcy as long as the transcript is recorded at least 90 days prior to the filing of bankruptcy. It also gives the creditor the right to redeem the property in the event of a foreclosure.

REVIVAL OF THE JUDGMENT LIEN: Pursuant to Section 13-52-102(1), C.R.S. the lien expires 6 years from the judgment date, unless revived as set forth in Rule 54, C.R.C.P. A Motion to Revive the lien must be filed and the Court will issue a Show Cause Order, ordering the judgment debtor to file cause, in writing, within 10 days as to why the judgment lien should not be revived. The Order to Show Cause must be served upon the judgment debtor. If the debtor files an answer, a hearing must be held. If the Court finds no cause or no answer is filed, then the Court will enter an order reviving the judgment lien and the clerk will issue a revived transcript of judgment. The revived transcript of judgment must be recorded in the same county to keep the same priority date.

http://www.arnoldarnold.com/Collections-and-Creditor-Representation.shtml

NEW COURT RULES - THE RULE OF 7

The New Rule of 7 - why do I have to learn new deadlines after practicing law for 29 years?

On January 1, 2012, the Colorado Supreme Court changed all of the Rules of Civil Procedure to make all deadlines divisible by 7. I learned in law school that an answer was due 20 days after service. Now it is 21 days after service. Answers to discovery requests were always due in 30 days. Now it is 35 days. I can understand that all new deadlines are divisible by 7, but why did the Supreme Court give a District Court judgment debtor 21 days to answer Rule 69 Interrogatories and only give a County Court judgment debtor 14 days to answer Rule 369 Interrogatories? Why couldn't it be the same amount of time?

Now the Colorado State Legislature has joined into the Rule of 7. It changed all deadlines that affect court proceedings to be divisible by 7 as well. This is effective on July 1, 2012. So if you want to appeal a county court judgment, you now have 21 days to do so, instead of the 15 you used to have. So take heed all you attorneys who get the desperate phone call from the procrastinating litigant on the 13th day, you still have 8 more days to file that appeal!

Terry Ehrlich, Esq. Arnold & Arnold, LLP
http://www.arnoldarnold.com/

NEW COURT RULES - PILOT PROGRAM IN CVIL CASES IN CERTAIN COUNTIES

NEW COURT RULES as of January 1, 2012

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.

For more help on these new court rules visit http://www.arnoldarnold.com/

Written by Scott Havn, Esq.