|The United States District Court for the District of Colorado ruled in favor of Sweetbaum Miller’ client and held that two roads in Garfield County are public roads pursuant to R.S. 2477 and prescriptive use. See The High Lonesome Ranch, LLC v. The Board of County Commissioners for the County of Garfield, Case No. 2017-cv-001260-RBJ-GPG, Order dated December 22, 2020, and Judgment dated December 23, 2020.
This opinion was also discussed in the December 23, 2020, edition of The Daily Sentinel, County wins, judge orders ranch to open road outside De Beque.
|The Colorado Court of Appeals, in favor of Sweetbaum Miller’ client, reversed a trial court judgment regarding a royalty interest related to a limestone quarry located near Glenwood Springs. The Court of Appeals held that the royalty agreement was a real a property interest that runs with the land and binds the parties and their successors in interest. See Pitkin Iron Corporation v. RMR Aggregates, Inc., Case No. 2019CA299, unpublished opinion dated June 25, 2020.
This opinion was also discussed in the July 16, 2020, edition of the Glenwood Springs Post Independent, Colorado Appeals Court reversal holds Glenwood quarry owners accountable for back royalty payments.
|The Colorado Court of Appeals affirmed a trial court judgment in favor of Sweetbaum Miller’ clients regarding a prescriptive easement, easement by necessity, easement by prior use and permanent injunction for an access drive to a single-family home in Red Cliff, Colorado. The Court of Appeals agreed with the trial court that Sweetbaum Miller’ clients had established more than 18 years of use for the access drive and it must remain open. See Jacob S. Blevins and Valarie K. Blevins v. William Sean Richie, Case No. 19CA0418, unpublished opinion dated April 2, 2020.
|Sweetbaum Miller’ clients prevailed on summary judgment before the Eagle County District Court in a dispute between limited liability company members and a former member. Geoff Anderson and Josh McMahon successfully argued that claims in a limited liability company lawsuit were derivative claims and the plaintiff lacked standing to assert them against the company.
|Congratulations to Alan Sweetbaum and Jon Sands for their inclusion in the 2019 Edition of The Best Lawyers in America!
Alan was selected by his peers for inclusion in The Best Lawyers in America for his work in Commercial Litigation, Real Estate Litigation and Real Estate Law.
Jon was selected by his peers for inclusion in The Best Lawyers in America for his work in Commercial Litigation, Insurance Law, Insurance Litigation and Real Estate Law.
|The Colorado Court of Appeals ruled in favor of Sweetbaum Miller PC’s insurer client, agreeing it met insurance policy requirements by paying for roof shingles meeting the applicable building code, and rejecting an argument that a manufacturer warranty requirement not in the code should also apply. High Impact, LLC v. State Farm Fire & Cas. Co., No 17CA1670 (Colo. App. Sept. 27, 2018) (unpublished). For more information and to discuss this case please contact Jon Sands.
|Sweetbaum Miller PC attorneys successfully contended that bargained for settlements and releases of underinsured motorist claims were not invalidated by a later court decision on statutory setoff issues. McCracken, et al. v. Progressive Direct Ins. Co., et al., 896 F.3d 1166 (10th Cir. 2018). For more information and to discuss this case please contact Jon Sands.
|Diane Delaney’s and Geoff Anderson’s article Robert Delaney (1917-2008) One of the Greatest was published in the May 2018 edition of the Colorado Lawyer.
|Congratulations to Alan Sweetbaum and Josh McMahon for their successful representation of a Denver area amusement park and restaurant. The matter was submitted to arbitration in which the landlord asserted various lease breaches and attempted to evict the amusement park and restaurant. On March 6, 2018, the Arbiter entered an award in favor of Sweetbaum Miller’ clients in all material respects, including an award of damages, attorneys’ fees, and costs.
For more information about this arbitration, or for questions regarding leases and eviction matters, please contact Alan Sweetbaum.
|In favor of Sweetbaum Miller’ client, the Colorado Supreme Court reversed a judgment of the Colorado Court of Appeals regarding whether a junior lienor is entitled to redeem, or has a duty to accept a tendered lien payoff from the certificate of purchase holder who bought property at a foreclosure sale. The Colorado Supreme Court held that under the plain language of the applicable redemption statutes, a junior lienor who has complied with its obligations by timely filing its notice of intent to redeem is entitled to do so and, at that point, has no duty to accept a tendered payoff from a certificate of purchase holder. Although the debtor-prior owner had a right to cure before the foreclosure sale, the respondent gained no additional rights by obtaining a limited power of attorney from the debtor-prior owner after the sale. See Oakwood Holdings, LLC v. Mortgage Investments Enterprises, LLC, 2018 CO 12.
|Congratulations to Jon Sands for being named Lawyers of the Year by The Best Lawyers in America!
Jon was named Lawyer of the Year in Insurance Law. Only a single lawyer in each practice area in Denver is honored as Lawyer of the Year.
|Congratulations to Alan Sweetbaum and Jon Sands for their inclusion in the 24th Edition of The Best Lawyers in America!
Alan was selected by his peers for inclusion in The Best Lawyers in America for his work in Commercial Litigation and Real Estate Law.
Jon was selected by his peers for inclusion in The Best Lawyers in America for his work in Commercial Litigation, Insurance Law, Insurance Litigation and Real Estate Law.
|Sweetbaum Miller PC attorneys obtained a judgment, affirmed on appeal, barring a claim against a financial institution client under Colorado’s Fair Debt Collection Practices Act. McCulley v. State Farm Bank, No. 16CA1293 (Colo. App. May 18, 2017) (unpublished). For more information and to discuss this case please contact Jon Sands.
|Sweetbaum Miller PC attorneys served on the core briefing team successfully obtaining dismissal of a case brought against over 100 insurance companies and related entities, Snyder v. ACORD, 684 Fed.Appx. 710 (10th Cir. 2017). For more information and to discuss this case please contact Jon Sands.
|The Colorado Court of Appeals affirmed a trial court judgment in favor of Sweetbaum Miller’ clients regarding an access drive in a four-lot commercial subdivision in Parker, Colorado. The Court of Appeals agreed with the trial court that the access drive must remain open pursuant to land use approvals and because the access drive was an easement implied by a general plan. The Colorado Supreme Court denied a Petition for Writ of Certiorari. See Parker Lincoln Retail, LLC, et al. v. 19185 E. Lincoln Ave., LLC, et al., Case No. 14CA1905, unpublished opinion dated August 25, 2016.
|The United States District Court for the District of Colorado, Judge Martinez, ruled in favor of Sweetbaum Miller’ client in dismissing a Clean Water Act citizen suit. The Court held that it lacked jurisdiction over the Plaintiffs’ claims because the Plaintiffs did not provide adequate notice of the claims as required by the Clean Water Act and related regulations. See Richard G. Hamilton and The South Park Coalition v. High Mountain Mining Company, LLC, 1:15-cv-72.
|Congratulations to Alan Sweetbaum and Jon Sands for being named to the 2017 Edition of The Best Lawyers in America!
|Sweetbaum Miller PC has been ranked in the 2017 U.S. News – Best Lawyers “Best Law Firms” list regionally in the practice areas of Commercial Litigation, Insurance Law, Real Estate Law and Real Estate Litigation.
|Congratulations to Jon Sands who was selected as one of Law Week Colorado’s Barrister’s Best. Jon was selected as Best Insurance Lawyer for Defendants in the People’s Choice category.
|2016 Top 10 Colorado Super Lawyer
Congratulations to our partner, Jon Sands, on his recognition as a Top 10 Colorado Super Lawyer for 2016! His achievement was also recognized in the Law Week Colorado article, Super Lawyers: Familiar Faces in the Top Tier, which was published in the April 4, 2016, print edition of Law Week Colorado.
|2016 Super Lawyers and Rising Stars
Alan Sweetbaum was recognized as 2016 Colorado Super Lawyers.
Tom DeVine was recognized as 2016 Colorado Rising Stars.
|Alan Sweetbaum presented seminars at the 33rd Annual Real Estate Symposium, on July 16-18, 2015, in Steamboat Springs. Alan Sweetbaum presented the following topic:
A River Runs Through It: How Fundamental Mistakes in Real Estate Development Can Lead to Five+ Years of Litigation; Role of the Real Estate Attorney, Surveyor and Title Company; Coordinated Efforts of Transactional and Litigation Attorneys to Untangle the Mess
|2015 Super Lawyers and Rising Stars
Sweetbaum Miller attorneys Alan Sweetbaum and Jon Sands were each recognized as 2015 Super Lawyers, and Tom DeVine was recognized as 2015 Rising Stars.Alan Sweetbaum and Jon Sands have been recognized as Super Lawyers for each of the past 10 years.
|Geoffrey P. Anderson and Alan D. Sweetbaum provided a seminar on the topic of “Resolving Real Estate-Related Disputes in Colorado,” presented by the National Business Institute on December 2, 2014. Materials and additional information can be found on the National Business Institute website or by selecting the link: Resolving Real Estate-Related Disputes in Colorado
|Jon F. Sands has been elected to the American Board of Trial Advocates.
|GENERAL PARTNERSHIP INTERESTS CAN BE SECURITIES!
Recent 10th Circuit Case Wipes Away the Bright Line
Most lawyers and business clients realize capital stock in corporations, limited partnership interests in limited partnerships, and non-managing membership interests in limited liability companies are “securities” for regulatory purposes. The circumstances of their issuance, like a “private placement,” may trigger an exemption from registration requirements, but their purchase and sale are still subject to the anti-fraud provisions of state and federal securities laws.
For decades most lawyers and business clients would not have said the same about equity interests in a general partnership. Measured by traditional factors, a general partnership interest also involves  an investment  in a common enterprise, but general partners almost always have been assumed  to not rely on the efforts of others to produce their profits or returns. Since they are liable for the debts of the business, and usually have extensive rights to control and direct its affairs, general partners typically rely on their own efforts as well as the efforts of their partners when operating the business. They are not mere passive inventors. They have decision-making rights and access to information as active participants.
Now, however, the bright line that has divided, for purposes of securities regulation, general partnership interests from limited partnership interests has faded to fuzzy at best. The U.S. Court of Appeals for the 10th Circuit has adopted a different, more flexible test.
The change came on February 24, 2014, in SEC v. Shields, a case about a shady peddler of “joint venture interests” in oil and gas drilling ventures. Since joint ventures are simply general partnerships used for limited purposes, the U.S. district court had dismissed the SEC’s anti-fraud case against the peddler, saying there was no security involved. The 10th Circuit reversed, holding the SEC had alleged enough facts to overcome the usual “presumption” that general partnership interests are not securities.
And so the 10th Circuit—whose jurisdiction includes Colorado—joined several other Federal appeals courts in adopting a flexible approach that considers the “totality of the circumstances.” The judges reasoned form should yield to substance when it comes to protecting investors from the abuses addressed by the securities acts. The focus should be on the economic realities of the situation and not on the labels used by the promoter. Several questions guide the inquiry.
Do the partnership documents leave so little power in the hands of the investors that the arrangement in reality distributes power as would a limited partnership? Are the investors knowledgeable or sophisticated? Are they so dependent on the managerial and entrepreneurial abilities of the managing partners that they cannot replace the manager in a meaningful way? Are the investors’ voting rights effective or a sham? And who controls the information?
The message is clear. Lawyers and their clients can no longer rely on the bright line between the world of stocks, bonds, limited partnership interests, membership interests in LLCs and other forms of securities from the world of general partnerships. The usual presumption that a general partnership interest is not a security can be overcome. Greatly enhanced and expanded liabilities can result.
Clients cannot be expected to keep up to date with cases like SEC v. Shields. Cases like these do not hit the news. That’s why they should consult with their lawyers sooner than later when structuring their transactions.
|CH ASSOCIATES II v. SURE-SHOCK ELECTRIC, INC. AND DOUGLAS GREENSPAN- Judicial Arbiter Group Arbitration
On February 21, 2014, an arbitrator issued an award in favor of Sweetbaum Miller’ clients, Sure-Shock Electric, Inc. and Douglas Greenspan and against CH Associates II. CH Associates II had commenced the arbitration proceeding seeking damages in excess of $1 million. The basis of the claim was the allegation by CH Associates II that Sure-Shock Electric, Inc. had filed an excessive mechanic’s lien. After hearing all of the evidence, the arbitrator ruled that the lien was not excessive and dismissed all claims by CH Associates II. The arbitrator further awarded all attorney’s fees and costs incurred by Sweetbaum Miller’ clients, Sure-Shock Electric, Inc. and Douglas Greenspan. This was a complete victory for our clients.
For more information about this arbitration or other mechanics’ lien litigation issues, please contact Alan Sweetbaum.
|Colorado Court of Appeals Rules in Favor of Sweetbaum Miller PC Clients and Remands for New Trial in District Court
The Colorado Court of Appeals issued its opinion in Zykronix, Inc. v. Advantech Company, Ltd., Case Nos. 12CA223 & 12CA922 (October 31, 2013), reversing a judgment against Sweetbaum Miller’ client Zykronix, Inc. and remanding the case to the district court for a new trial. Zykronix, Inc. is a Colorado corporation that designs and manufactures top performing, PC compatible single board computers for use in embedded control applications. Advantech is a billion dollar company headquartered in Taiwan and manufactures computer products. Zykronix filed its lawsuit against Advantech alleging that Advantech breached a manufacturing agreement by improperly overcharging Zykronix for the manufacturing of home automation devices. At the trial court, Advantech refused to produce the evidence of the prices it incurred to manufacture Zykronix’s home automation devices, despite Zykronix’s filing of an unopposed Motion to Compel that information.
The Court of Appeals agreed with the arguments made on appeal by Alan D. Sweetbaum and Joshua D. McMahon that the trial court erred in not compelling Advantech to produce the requested information. The Court of Appeals reversed the judgment against Zykronix regarding Advantech’s alleged overcharging of Zykronix and remanded to the trial court to grant Zykronix’s Motion to Compel and for a new trial.
|Sweetbaum Miller PC Shareholders Recognized as 2014 Best Lawyers in America
Alan Sweetbaum: Commercial Litigation
Jon Sands: Insurance Law
|Colorado Supreme Court Rules in Favor of Sweetbaum Miller Clients and Overrules Court of Appeals
The Colorado Supreme Court issued its opinion in Dennis Shaw and First Horizon Home Loan Corporation v. 17 West Mill St., LLC, 2013CO37, 11SC516, 307 P.3d 1046 (2013), reversing the Colorado Court of Appeals (Case No. 10CA955) and upholding the Trial Court decision in favor of Sweetbaum Miller clients Dennis Shaw and First Horizon. This case attracted widespread attention in the real estate and title communities and saw amicus briefs filed by the Real Estate Law Section of the Colorado Bar Association and the Land Title Association of Colorado.
Alan Sweetbaum and Geoff Anderson’s successful appeal of the Court of Appeals’ decision, discussed in this column in February and June, 2012, resulted in the Colorado Supreme Court ruling in favor of the positions espoused by Sweetbaum Miller, the Real Estate Law Section of the CBA, and LTAC, by holding that C.R.S. Section 38-39-102(8) creates only a narrow exception for voiding a public trustee’s deed of trust, and that exception exists only when proof of actual fraud is demonstrated by a preponderance of the evidence.
|Sweetbaum Miller Obtains Order Dismissing Case in Multi-Million Dollar Mortgage Fraud Case
Attorneys Alan Sweetbaum and Josh McMahon prevailed on a summary judgment motion in a multi-million dollar mortgage fraud case in the United States District Court for the District of Colorado. The case involved a Colorado credit union, various title insurance companies, individual borrowers and numerous other parties and centered on allegedly fraudulent loans used to construct homes on properties in California. Sweetbaum Miller represented Stewart Title of California, which was named as a defendant due to its involvement as an escrow and closing agent on some of the loan transactions. The claims of mortgage fraud included allegations involving an internet scam that attracted borrowers from all over the country. After more than five years of litigation and discovery, including hundreds of depositions, Sweetbaum Miller filed a motion for summary judgment seeking dismissal of the case on a number of grounds. Federal District Court Judge Wiley Y. Daniel granted the summary judgment motion and dismissed the lawsuit with prejudice, agreeing with Sweetbaum Miller that the Plaintiff lacked standing to sue. The Court’s ruling is a complete victory for Stewart Title of California.
For additional information regarding this case (Security Service Federal Credit Union v. First American Mortgage Funding, LLC, et al., 861 F.Supp.2d 1256 (D. Colo. March 21, 2012)) or to discuss matters related to the mortgage industry, please contact Alan Sweetbaum.
|Loan by Member/Manager of LLC Not Subject To Trust Fund Statute
Recently, the Colorado Supreme Court held that a capital contribution by a member/manager of a limited liability company in the form of a “survival loan” not specifically intended for any particular purpose, could be utilized by the LLC as intended without subjecting the lending member/manager to liability for violation of Colorado’s Trust Fund Statute. Additionally, the Court held that because the Trust Fund Statute had not been violated, the member/manager also could not be held liable for committing civil theft.
In Yale v. AC Excavating, Inc., 2013 WL 441895 (Colo. 2013), Antelope Development, LLC was engaged in business as a residential real estate developer. Its sole business was the development of the Antelope Hills subdivision near Bennett, Colorado. Following the exhaustion of its construction financing, the LLC needed an infusion of capital in order to continue its operations. That infusion came in the form of a “survival loan” from a member, who was also the sole manager, in the amount of $157,500. The funds were used by the LLC for corporate obligations including, but not limited to the payment of outstanding invoices from subcontractors who had done work at the project.
Eventually, the LLC’s operations failed. AC Excavating, Inc., a subcontractor at the project, was not paid in full and sued the member/manager claiming that the application of the loaned funds to pay debts other than the subcontractors who were owed money on the project was a violation of Colorado’s Trust Fund Statute, C.R.S. §38-22-127, and amounted to civil theft under C.R.S. §18-4-401, entitling AC to recover treble damages and its attorney fees under C.R.S. §18-4-405.
Colorado’s Trust Fund Statute serves dual purposes. First, it protects property owners from unscrupulous contractors, thus avoiding the potential for having to pay more than once for work to avoid mechanic’s liens. Secondly, it protects subcontractors by assuring that monies received by the prime contractor will be available to pay for the work performed by the subcontractors. A violation of this statute subjects the wrongdoer to sanctions for committing civil theft.
In its ruling, the Supreme Court noted that the trust obligation is incurred when funds are (1) disbursed (2) to a contractor or subcontractor (3) under a building, construction or remodeling contract. In this instance the first and second factors were met. However, the third factor was lacking because the loan made by the member/manager was a voluntary loan given to capitalize the business. The member/manager was under no obligation to make the loan and the LLC was under no obligation to apply the loan proceeds to any purpose other than general business operations. Thus, the loan proceeds were not advanced under a building, construction or remodeling contract, even though the only business of the LLC was the development of a single project. Looking at the totality of the circumstances of the disbursement and recognizing that the loan proceeds were not earmarked for construction or specifically dedicated to the project and that the member/manager intended them to be available for all business obligations, the Supreme Court held that the loaned funds were not subject to a trust.
The member/manager was not liable for violating the Trust Fund Statute and consequently, had also not committed civil theft. This ruling is important for business owners engaged in real estate development or construction in these difficult economic times. While it will still be important for the corporate officer, director, member or manager who may be considering loaning funds to prop up an entity to work closely with his/her accountants, attorneys and other advisors to make sure the loans are properly documented, the investor considering such a move now has legal authority to support a defense to a claim of civil theft arising out of a violation of the Colorado Trust Fund Statute.
|2013 Super Lawyers and Rising Stars
|Sweetbaum Miller Newest Shareholder, Tom DeVine
Congratulations go out to Tom DeVine on his admission as a Shareholder of the Firm, effective January, 2013. Tom’s practice will continue to focus on civil and commercial litigation, including an emphasis on construction related matters.
|New Associates Join Sweetbaum Miller
Sweetbaum Miller is pleased to announce the addition of two new associates, Melissa Collins and Andy Miller.
Melissa, a 2001 graduate of Northwestern University Law School in Chicago, is practicing with the firm’s insurance and civil litigation groups and was recently admitted to the 2013 50 for Colorado Leadership Program at the Leeds School of Business at the University of Colorado, Boulder.
Andy began his legal career in Los Angeles where he attended the University of Southern California Law School, and returned to Colorado in 2011. A Division 1 Track and Field athlete while attending UC Boulder for his undergraduate degree, Andy will be continuing his practice in the areas of commercial and civil litigation.
|Geoff Anderson and Alan Sweetbaum are among the faculty members slated to speak at the upcoming National Business Institute CLE Seminar titled Road and Easement Law From A to Z. The seminar is being held on Thursday, December 13, 2012 at the Denver Doubletree Hotel. Registration and additional information is available on the NBI website or by clicking through on the link above.
|Jon Sands and Alan Sweetbaum included in The Best Lawyers in America® 2013
Sweetbaum Miller’ shareholders Alan Sweetbaum and Jon Sands were selected by their peers for inclusion in The Best Lawyers in America® 2013 (Copyright 2012 by Woodward/White, Inc., of Aiken, SC). Jon Sands was included in the fields of Insurance Law, Commercial Litigation, and Real Estate Law, and Alan Sweetbaum was recognized in the field of Commercial Litigation.
|Successful Arbitration Ruling Sets Stage for Favorable Business Transaction.
Sweetbaum Miller’ attorneys Alan Sweetbaum and Tom DeVine successfully represented a client in an arbitration proceeding arising out of a shareholder dispute between the two founders of a closely held corporation. In the arbitration, Sweetbaum Miller argued that the president of a corporation does not have the authority to terminate the employment of a co-equal shareholder and director of the corporation absent express authority from the board of directors. Sweetbaum Miller also successfully argued that the interests of a shareholder, officer and director in a closely held corporation are inextricably intertwined with a reasonable expectation of continued employment such as to negate the “at will” employment relationship otherwise existing in Colorado. After obtaining these favorable rulings in the arbitration, Sweetbaum Miller was able to negotiate and close a buy-sell transaction to resolve the underlying disputes.
For additional information, please contact Alan Sweetbaum.
|Colorado Supreme Court Grants Certiorari on Issue of Constructive Fraud by Person Requesting Release of Public Trustee Deed of Trust
The Colorado Supreme Court has accepted an appeal of the Court of Appeals’ decision in 17 West Mill Street, LLC v. Smith, ___P.3d ___, 2011 10CA955 (COCA). The Court granted cert. on the question of whether the Court of Appeals erred in concluding that the legislature “intended a release of a deed of trust by a public trustee to be void” under Section 38-39-102, C.R.S., where the requestor committed “constructive fraud” in the request for the release. The trial court’s ruling (that the release of deed of trust was not void absent a finding of “actual” fraud) was reversed by the Court of Appeals. Alan Sweetbaum, lead counsel in the trial court, will brief and argue this appeal to the Colorado Supreme Court, seeking a reversal of the Court of Appeals’ ruling.
|Proposed Zoning Code Revisions for City of Lakewood
The City of Lakewood has published for comment a Draft of its Zoning Code which proposes a comprehensive revision to the current land use law within the City. The Draft Code is the product of an extensive review of current land use trends and forecasted future needs of the community. The Draft Code contains a series of amendments which are intended to foster a sustainable urban agricultural community, such as allowing the raising of a limited number of chickens, keeping of bees and miniature goats. The addition of limited agricultural uses within the traditional residential development standards supports the ongoing reversion to a simpler, secure and local food source that is demanded by the forward-thinking residences of the City. Many have applauded the efforts of the City of Lakewood’s forward-thinking land use trends.
The City will conduct a series of community events intended to educate Lakewood residents and to provide an avenue for stakeholder participation. Central to the stakeholder process is the City’s website, www.playyourpart.org which provides access to the draft code, draft zoning map and an avenue for stakeholder comment. All residents are encouraged to participate in the code revision process.
|New Law on Residential Roof Construction Activities
Senate Bill 2012-038, which was signed into law by the Governor on June 6, 2012, imposes requirements on the activities of roofing contractors performing work on residential property in Colorado. Under this statute, roofing contractors (which include individuals and businesses) performing any roofing work on residential properties, are required to have a written contract, signed by the property owner, specifying various matters as specified in the new legislation. A 72-hour right of rescission will apply under certain circumstances, rebates or waivers of insurance deductibles continue to be prohibited, and the payments made by the homeowner are required to be held in trust in certain situations and under certain conditions.
Anyone involved in performing residential roofing repairs or replacements must pay careful attention to this new law and must make sure that written contracts, in compliance with the requirements of the statute, are in place.
|COLORADO’S REAL PROPERTY RECORDING ACT – RESOLVING A MATTER OF FIRST IMPRESSION IN COLORADO
In June 2012, the Colorado Court of Appeals issued its ruling in Goodman Associates, LLC v. Winter Quarters, LLC, — P.3d —; 2012 WL 2044736 (Colo. Ct. App. 2012) (publication pending), adopting the arguments presented by Tom DeVine and affirming the trial court’s ruling in favor of the firm’s clients.
In the trial court, it was argued that a judgment creditor cannot recover attorneys fees and costs incurred in connection with a judgment lien foreclosure action from a subsequent innocent third party property owner. In this case, at the time of the clients’ purchase of the property, the purchaser was unaware that a transcript of judgment had been recorded against the seller, resulting in a judgment lien against the property. After the purchaser acquired title to the property, the seller attempted to invalidate the judgment, causing the judgment creditor to incur over $100,000 in attorneys fees and costs, which the judgment creditor then sought to recover against the purchaser in the lien foreclosure action.
In affirming the judgment, the Colorado Court of Appeals decided, as a matter of first impression in Colorado, that a supplemental award of damages could not be related-back, nunc pro tunc, to the date of the original judgment if relating the judgment back to the original date caused prejudice to an innocent intervening third-party.
For additional information on the judgment lien foreclosure process, please contact Thomas L. DeVine, Jr. or Alan Sweetbaum or any of the other real estate litigation and foreclosure attorneys at Sweetbaum Miller PC.
|New Legislation Concerning Record Keeping by Community Associations
House Bill 1237, signed by the Governor on May 29, 2012 and scheduled to go into effect January 1, 2013, amends the records provisions under the Colorado Common Interest Ownership Act (“CCIOA”), and applies to all associations governed by CCIOA. This new Act sets out what records associations must keep and produce upon a request from a member, what records the association may produce, and what records associations may not produce. For instance, associations must produce detailed records of receipts and expenditures, written contracts to which the association is a party, written communications among board members when acting without a meeting, and copies of all ballots, proxies and other records relating to voting. Records which are not to be produced include confidential records such as personnel, salary, or medical records and records relating to pending, potential, or threatened litigation. Additionally, with the removal of the “proper purpose” requirement found under current law, upon the effective date of this new law, it will no longer be permissible for the association’s board to deny requests for records if the board did not consider the request to be for a proper purpose.
For guidance in interpreting and implementing this new law, contact Alan Sweetbaum or any of the other real estate attorneys at Sweetbaum Miller PC.
|OIL AND GAS LEASES AND MINERAL RIGHTS
Today, U.S. energy companies are securing more oil and gas leases across the nation as the U.S. nears energy self-sufficiency and also because of the rise in hydraulic fracturing known as fracking. As a result, mineral interests are increasingly valuable. A key step in any mineral development or conveyance is a title examination, which can often be complex and reveal numerous defects. Past severances from the surface estate, missing or improper conveyances, and incorrect legal descriptions break chains of title, leaving minerals less secure and marketable.
Colorado’s adverse possession statutes may provide a solution. Where a party has been in actual, adverse, hostile, exclusive, and uninterrupted possession of mineral interests under a claim of right for 18 years, he is entitled to legal ownership of the mineral interests under C.R.S. § 38-41-101 and recent Colorado Court of Appeal decisions.
Several companion statutes shorten the 18-year statutory period if certain requirements are met. For instance, under C.R.S. § 38-41-108, any person who has actual possession of mineral interests and under color of title pays the taxes on the mineral interests for seven successive years may be deemed the legal owner of the mineral interests.
Color of title requires a paper writing purporting to convey title to the mineral interests even though the document may be defective or void. Where the mineral estate has been severed from the surface estate, “actual possession” requires the physical possession of the minerals under the surface or sufficient exclusion of others from entering the land to mine or otherwise exploit the minerals.
In those instances where no one actually possesses the mineral interests, a claimant may be entitled to rely on constructive possession through color of title and the possession of related property.
The attorneys at Sweetbaum Miller PC specialize in curing title defects and securing marketable title to mineral and other real estate interests. For additional information on these topics, please contact any of the commercial and real estate litigation attorneys at Sweetbaum Miller PC.
|COLORADO CONSIDERS REQUIRING COMMUNITY ASSOCIATION MANAGERS TO BE LICENSED.
The Legislative Action Committee of the Community Associations Institute has submitted an application to the Department of Regulatory Agencies (DORA) to investigate whether community association managers should be licensed and regulated. Nine states and the District of Columbia already require HOA managers to be licensed, or otherwise regulate community managers. The Colorado Department of Regulatory Agencies received 478 complaints concerning HOAs as of December 1, 2011, a significant number of which are classified as complaints against the HOA Manager.
DORA is expected to issue its report in early March, 2012, at which time it would be up to the State Legislature to take action.
For additional information on this pending legislation, contact any of the attorneys at Sweetbaum Miller.
|In Weston v. T & T, LLC, 09CA2786 (2011 WL 2186434), (Colo. App. May 26, 2011), pet. for cert. den. 2012 WL 53795 (Colo. 2012) Sweetbaum Miller’ Shareholders Alan D. Sweetbaum successfully represented the Plaintiff/Creditor in the trial court, and on appeal, in connection with his claims against Debtor T&T, LLC for fraudulent transfers of monies under the Colorado Uniform Fraudulent Transfer Act. The Court of Appeals upheld the trial court’s judgment in favor of the Plaintiff/Creditor. Of particular interest was the Debtor’s argument that the judgment should be reversed because the trial court granted the Debtor’s request to allow the principals of the closely-held LLC (a father and son), who were not licensed attorneys, to represent the LLC. The Court of Appeals agreed that the trial court should not have permitted the father and son to represent the LLC in the case, however, the Court of Appeals refused to grant the request for a new trial in light of the fact that the trial court had repeatedly admonished the principals that they would have to satisfy the statutory exceptions that would excuse the LLC from being represented by counsel, and moreover, holding that the principals of the LLC would not be permitted to benefit from an error that they created.
|Alan D. Sweetbaum obtained a judgment in excess of $1.4 Million on behalf of the Firm’s clients following an 8-day jury trial in the Jefferson County District Court, in connection with claims of professional neligence and breach of contract against the clients’ prior counsel, accountants and real estate brokers. When the Plaintiffs sought to sell a 153-unit apartment project that represented their life’s savings, the professionals they engaged to represent and protect their interests failed to discharge their duties by structuring a scheme whereby the Plaintiffs transferred ownership of the apartment project to a LLC controlled by a third party. When the third party failed to make the agreed payments to the Plaintiffs, the Plaintiffs learned that the project had been repeatedly encumbered, the equity cashed out, and the proceeds misapplied.
|ELEMENTS OF ACTUAL FRAUD HELD NOT NECESSARY TO VOID PUBLIC TRUSTEE’S RELEASE OF DEED OF TRUST
In a surprise decision, the Colorado Court of Appeals, in a published opinion, 17 West Mill Street, LLC v. Smith, ___ P.3d ___, 2011 WL 2321430 (Colo. App. June 9, 2011), reversed the trial court’s findings that because the elements of actual fraud had not been established, a request for release of a deed of trust was not void under C.R.S. § 38-39-102(8). The statute states that “[i]f the written request to release the lien of any deed of trust is a fraudulent request, the release by the public trustee based upon such request shall be void.” Sweetbaum Miller was retained to represent the homeowner facing foreclosure. The case was tried by Alan D. Sweetbaum. The trial court found that by executing the request for release of a deed of trust, Smith acted negligently by representing to the public trustee that: (a) he was acting as the “attorney for lender,” when he was not, and (b) the conditions of the deed of trust to be released had been satisfied, when they had not. Notwithstanding these representations, the trial court interpreted “fraudulent,” in the statute, to require the elements of “actual” fraud; therefore, because the attorney did not act with fraudulent intent, the request for release was not void. The Colorado Court of Appeals disagreed, holding that “fraudulent,” in this context, did not require proof of the elements of actual fraud but merely that a material misrepresentation as to the statutory requirements in the request to the public trustee had occurred. This opinion arguably changes the common law definition of fraud, as used in the statute. A petition for writ of certiorari has been filed with the Colorado Supreme Court. Because of the impact on homeowners, lenders, title insurers and attorneys, this decision, and the Supreme Court’s ultimate ruling, may have wide ranging implications in the Colorado real estate industry and the real estate bar. Specifically, it may require a title agent or party to the closing to review the facts and circumstances and determine if a release of a deed of trust, properly recorded, was properly executed.
|COLORADO COURT OF APPEALS HOLDS THAT TRIAL COURT IS PROPER FORUM FOR CONTESTING PROCEDURAL VALIDITY OF MECHANIC’S LIEN
Sweetbaum Miller was retained by an electrical subcontractor to prosecute a mechanic’s lien foreclosure. In Sure-Shock Electric, Inc. v. Diamond Lofts Venture, LLC, the developer failed to pay the subcontractor, and the subcontractor recorded a mechanic’s lien against the project. The contract between the parties contained an arbitration clause. After Alan D. Sweetbaum successfully proved his client’s claim at arbitration, the subcontractor was awarded the amount of its lien, plus interest. The trial court confirmed the award, and the developer appealed, arguing that the subcontractor failed to establish the procedural validity of the mechanic’s lien at arbitration. The question for the Court of Appeals was whether the trial court, as part of the foreclosure proceeding, may decide the procedural validity issue, or whether it was required to be raised at arbitration. Alan D. Sweetbaum and Fredric J. Lewis argued that the trial court is the proper forum for contesting any disputes as to the procedural validity of the subcontractor’s mechanic’s lien. After review the parties’ arguments, the Colorado Court of Appeals agreed with Sweetbaum Miller’ arguments and, in a published opinion, affirmed the district court’s confirmation of the arbitration award. 259 P.3d 546 (Colo. App. 2011). This decision, which endorses the arguments asserted by Sweetbaum Miller, provides necessary clarity to the scope of arbitration proceedings, particularly as they relate to mechanic’s lien foreclosure actions.
|SWEETBAUM SANDS HALTS FORECLOSURE ACTION
Sweetbaum Miller was retained by a title insurer to defend a homeowner in a foreclosure action brought by a Colorado lender. In Armijo v. Citywide Banks, a warehouse lender had taken an assignment of a promissory note; however, it had permitted the original lender to continue to service the underlying loan. A subsequent payoff of the promissory note was delivered to the original lender, who absconded with the funds without paying off the warehouse lender. The warehouse lender refused to recognize the payoff and attempted to foreclose on the property, arguing that Colorado’s UCC required payoff to the note holder. The homeowner was completely innocent, having paid off the note in full. Alan D. Sweetbaum argued that the original lender was acting as the warehouse lender’s agent, with the authority to receive the payoff on behalf of the warehouse lender. The district court agreed with the arguments asserted by Mr. Sweetbaum, and ruled in the homeowner’s favor. After reviewing the parties’ arguments, and amicus briefs submitted by Land Title Association of Colorado and Colorado Bankers Association, the Colorado Court of Appeals, in a published opinion, affirmed the district court’s order. ___ P.3d ___, 2011 WL 4837501 (Colo. App. October 13, 2011). The warehouse lender has since filed a petition for writ of certiorari with the Colorado Supreme Court. Because of its implications on real estate closing and loan servicing practices, this decision, and the Supreme Court’s ultimate ruling, may have a wide-ranging impact in both the lending and title insurance industries. An adverse ruling could force title agents to require the seller to bring the original note to closing. This could slow down or completely halt many residential closings.
|U.S. JUSTICE DEPARTMENT INCREASES PRESSURE ON COMMERCIAL REAL ESTATE OWNERS.
On January 12, 2012, the Colorado U.S. Attorney is reported to have sent letters to owners and managers of commercial premises that house medical marijuana dispensaries that are located within 1,000 feet of a school. This step is the latest in a series of moves by the U.S. Justice Department in response to Colorado’s medical marijuana industry. Guidance letters have been issued by the Justice Department warning that Amendment 20 of the Colorado State Constitution, which ostensibly created an affirmative defense to prosecution under the State’s Criminal Code for “patients” and “primary care givers,” does not legalize the operation of retail dispensaries nor extend the defense to commercial property owners. Among the concerns for the commercial real estate industry is the potential for forfeiture of the real property used in the unlawful manufacture and distribution of a controlled substance.
Commercial property owners and managers wishing to learn more can contact any of the commerical real estate attorneys at Sweetbaum Miller.
|Geoffrey P. Anderson and Alan D. Sweetbaum speak on “ROAD AND EASEMENT LAW FROM A TO Z,” presented by the National Business Institute on December 14, 2011. Materials and additional information can be found on the National Business Institute website or by selecting the link: Road and Easement Law From A to Z.
|Best Lawyers®, the oldest and most respected peer-review publication in the legal profession, names Jon F. Sands as the “Denver Best Lawyers Insurance Law Lawyer of the Year” for 2012.
Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”
Best Lawyers® compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 18th edition of The Best Lawyers in America (2012) is based on more than 3.9 million detailed evaluations of lawyers by other lawyers.
The lawyers being honored as “Lawyers of the Year” have received particularly high ratings in the surveys by earning a high level of respect among their peers for their abilities, professionalism, and integrity.
|The firm announces its new name Sweetbaum Miller PC.