More Coloradans have their wages garnished than the national
average.Nearly 1 in 13 workers here are
subject to wage garnishments.
Your wages could be garnished for child support, alimony, or
payment of debts.In Colorado, more people
have garnishments for debt than for child support or alimony.Interestingly, more white collar workers are subject
to garnishment in Colorado than manufacturing employees.
If your wages are garnished for debt repayment, the
garnisher can take up to 25 percent of your net income from every paycheck
until the debt is paid.CRS 13‑54‑104.If you’re being garnished for a domestic
support obligation, up to 50 percent can be taken.CRS 13‑54‑104.Only one garnishment is allowed at a time, so
multiple debts may take quite a while to pay off.
There are ways to resolve a garnishment including a debt
workout plan or a bankruptcy.A debt
workout plan involves communicating with all your creditors and working out a
plan to pay something less than what you owe.Some creditors will take 30 cents on the dollar while others want 50
percent or more.
A bankruptcy will stop the garnishments in their tracks and
your debts can be discharged.However, Child
support and alimony must be paid.In addition,
debts where the creditor has a secured interest in your real or personal property
(mortgages and car loans) have to be worked out.
You’d have to contact an attorney to discover who bankruptcy
or a debt workout will work for you.
US Bank has
decided to agree to the injunction against its foreclosing on Lisa Brumfiel’s
home.
Why?US Bank didn’t want to face a hearing in
Federal Court on the constitutionality of Colorado’s foreclosure process.Judge William Martinez had set a hearing on Colorado’s
Rule 120 hearings for Wednesday May 15, 2013.
In Colorado
a court must approve a foreclosure sale following a Rule 120 hearing.The only two issues litigated at the hearing are
whether there is a default on the note and whether the borrower is in the
military.However, the issue of standing
must always be addressed in any court proceeding.Here a company can be in court if it is the
holder of the borrower’s note.
Unlike other
states, Colorado does not require a mortgage company to prove they hold the
original note on a mortgage. Colorado statutes
section 38‑38‑101 allows a foreclosing company to produce just a copy of the
note along with a statement by its attorney that the company is the holder of
the note.
Ms. Brumfiel
was to argue to the Court that not allowing a borrower to contest the validity
of the holder’s evidence of ownership is a violation of the Due Process Clause
of the 14th Amendment to the United States Constitution.
If Judge
Martinez had ruled that Rule 120’s attorney statement provision is unconstitutional,
foreclosing in Colorado would no longer be a slam-dunk.
Congratulations
to Ms. Brumfiel, but I’m sure we’ll be back in court.US Bank may have dodged this attempt at justice
for Colorado’s homeowners by giving up on one foreclosure, but we’ll keep
fighting.
A Federal
Judge has temporarily halted a foreclosure in order to rule on Colorado’s
unique and likely unconstitutional foreclosure law.
US District
Court Judge William Martinez has set a hearing on Colorado’s qualified holder
law for May 15, 2013.Martinez will take
arguments regarding the Colorado foreclosure statute allowing an attorney to
state that his client has standing to foreclose on a property.
Colorado Revised
Statutes, section 38‑38‑101(6)(a) states that proper evidence of an indorsement
or assignment of a debt shall include the original indorsement or assignment or
a certified copy thereof recorded in the county where the property is located.
Section 38‑38‑101(6)(b),
however, allows for the presentation of a copy of the indorsement or assignment
together with a statement by his attorney that the copy is true and correct.
A copy of
the original note and deed can usually be obtained from the clerk and recorder’s
office.Anyone can go online and obtain
such a copy, so that’s not conclusive evidence of standing.
In order to
prove that the copy is a true and accurate copy of the original, not just a
downloaded version, the court needs to hear testimony from someone who has
first-hand knowledge regarding the original and copied versions of the
documents.
Normally a
witness can be examined about the veracity of his statements.Simple questions about a note would include ‘when
did you see the original?’, ‘where did you see the original?’, ‘when was the
copy made?’, ‘who made the copy?’, and ‘have you compared the copy and the
original side-by-side?’.
In Colorado,
however, according to the State’s foreclosure statute, the court must accept the
foreclosing party’s attorney’s statement as true.
Our
Constitutional right to due process requires that we receive a reasonable process
before other rights are denied.This generally
means that one who wishes to take something from me must show that he has the
right to do so and I have a right to contest his assertions.
In the case
of a foreclosure, the foreclosing party must prove that he owns the note on
which he is foreclosing.I have the
right to contest his assertion that he owns the note.
In Colorado,
a mortgage company can simply produce a copy of a note and have their attorney
state that is a true and correct copy.I
cannot contest the attorney’s assertion of the truthfulness of the copy.
This is unconstitutional
and needs to be removed from Colorado’s laws.Borrowers’ rights under the Due Process clause to the US Constitution to
examine any evidence put before the court must be restored.
The Denver
Post reported today that Sean Mandel was stopped by Denver Police while riding
his bicycle.The officer charged him
with not stopping at a stop sign.Should
Mandel pay or fight his ticket?
The first
question is whether stopping a cyclist for a traffic violation is legitimate:A bicyclist on the public roads must follow
the same traffic laws as a vehicle.So,
the stop was legitimate.
The next
question is whether Mandel violated the traffic laws:An officer of the law has discretion as to
whether to stop a bicyclist, so this is a fact based question.
The final
issue here is the facts of the case; whether Mandel failed to stop a stop
sign.According to Mandel, the officer
told him “he did not come to a complete stop because his foot did not touch the
ground.”Mandel contends that “it is
reasonable that a good, experienced cyclist can stop and stand on the bike and
be at a complete stop.”
So, the real
issues here are whether the officer actually made the statement and whether a
bicyclist can come to a complete stop without putting his foot down.
I personally
believe Mr. Mandel is right.As a cyclist
in my youth, I did the same thing many times.It was easier than my bad habit of riding no-hands everywhere (btw … Currently
illegal in Colorado).Now all the
bicyclists in Colorado say it with me … Any decent cyclist can stop and stand
on his bike !!!
Mandel’s argument
relates to a driver “stopping” at a stop sign on a hill and rolling slightly
backward.I don’t think that an officer
would ticket the driver for not staying at a complete stop.When driving a car with a stick shift, you
can come to a complete stop without the brake lights coming on. You shouldn’t get a ticket for being at a
complete stop just because your foot’s not riding the brake pedal.
Colorado and
the City of Denver have many seemingly obscure bicycle laws.Circle Law can help sort out your options if
you’ve been ticket with riding your bicycle.
Pets Are Now Covered Under Colorado Restraining Orders
Beginning July 1, 2010, courts in Colorado may issue temporary or permanent Civil Protection Orders restraining a person from family pets.
Senate Bill 10-80 now allows a court to include a family owned animal in any civil protection order.
Pets have become cherished members of the family. They may be the target of threats or acts intended to coerce, control, punish, intimidate, or extract revenge upon a party. An injury to a pet can be devastating, especially when intended to harm the pet's owner.
Adding pets to civil protection orders should help protect them and their owners from harm. Colorado Statutes Title 13. COURTS AND COURT PROCEDURE Article 14. Civil Protection Orders 13-14-101. Definitions
(1) "Abuse of the elderly or of an at-risk adult" means mistreatment of a person who is sixty years of age or older or who is an at-risk adult as defined in section 26-3.1-101(1), C.R.S., including but not limited to repeated acts that:
(1)(f) CONSTITUTE THREATS OR ACTS OF VIOLENCE AGAINST, OR THE TAKING, TRANSFERRING, CONCEALING, HARMING, OR DISPOSING OF, AN ANIMAL OWNED, POSSESSED, LEASED, KEPT, OR HELD BY THE ELDERLY OR AT-RISK ADULT, WHICH THREATS OR ACTS ARE INTENDED TO COERCE, CONTROL, PUNISH, INTIMIDATE, OR EXACT REVENGE UPON THE ELDERLY OR AT-RISK ADULT.
(2) "Domestic abuse" means any act or threatened act of violence that is committed by any person against another person to whom the actor is currently or was formerly related, or with whom the actor is living or has lived in the same domicile, or with whom the actor is involved or has been involved in an intimate relationship. "Domestic abuse" may also include any act or threatened act of violence against:
(a) The minor children of either of the parties; or
(b) AN ANIMAL OWNED, POSSESSED, LEASED, KEPT, OR HELD BY EITHER OF THE PARTIES OR BY A MINOR CHILD OF EITHER OF THE PARTIES, WHICH THREAT OR ACT IS INTENDED TO COERCE, CONTROL, PUNISH, INTIMIDATE, OR EXACT REVENGE UPON EITHER OF THE PARTIES OR A MINOR CHILD OF EITHER OF THE PARTIES.
(2.4) (a) "Protection order" means any order that prohibits the restrained person from contacting, harassing, injuring, intimidating, molesting, threatening, or touching any protected person, OR FROM THREATENING, TAKING, TRANSFERRING, CONCEALING, HARMING, OR DISPOSING OF AN ANIMAL OWNED, POSSESSED, LEASED, KEPT, OR HELD BY A PROTECTED PERSON, or from entering or remaining on premises, or from coming within a specified distance of a protected person or premises or any other provision to protect the protected person from imminent danger to life or health that is issued by a court of this state or a municipal court and that is issued pursuant to:
(IV) Any other order of a court that prohibits a person from contacting, harassing, injuring, intimidating, molesting, threatening, or touching a person, OR FROM THREATENING, TAKING, TRANSFERRING, CONCEALING, HARMING, OR DISPOSING OF AN ANIMAL OWNED, POSSESSED, LEASED, KEPT, OR HELD BY A PERSON, or from entering or remaining on premises, or from coming within a specified distance of a protected person or premises.
13-14-102. Civil Protection Orders - Legislative Declaration
(15) A municipal court of record that is authorized by its municipal governing body to issue protection or restraining orders and any county court, in connection with issuing a civil protection order, shall have original concurrent jurisdiction with the district court to issue such additional orders as the municipal or county court deems necessary for the protection of persons. Such additional orders may include, but are not limited to:
(f) Such other relief as the court deems appropriate;
(f.2) RESTRAINING A PARTY FROM THREATENING, MOLESTING, INJURING, KILLING, TAKING, TRANSFERRING, ENCUMBERING, CONCEALING, OR DISPOSING OF AN ANIMAL OWNED, POSSESSED, LEASED, KEPT, OR HELD BY ANY OTHER PARTY, A MINOR CHILD OF ANY OTHER PARTY, OR AN ELDERLY OR AT-RISK ADULT;
(f.4) SPECIFYING ARRANGEMENTS FOR POSSESSION AND CARE OF AN ANIMAL OWNED, POSSESSED, LEASED, KEPT, OR HELD BY ANY OTHER PARTY, A MINOR CHILD OF ANY OTHER PARTY, OR AN ELDERLY OR AT-RISK ADULT. CRS §§ 13-14-101 and 13-14-101.
Contact Circle Law to set up an appointment: John Scanlan
Collectors Required to Reveal the Location of Their Local Office
Beginning July 1, 2010, collection agencies operating in Colorado must not only maintain a local office in the state, but allow debtors to make payments at that office.
More importantly, agencies must notify debtors of the location and telephone number of that local office.
Whether this change will allow collection agencies to continue to screen calls through a national call center is unclear. Colorado Statutes
Title 12. PROFESSIONS AND OCCUPATIONS
Article 14. Colorado Fair Debt Collection Practices Act 12-14-123. Duties of Collection Agencies - Repeal (1) A licensee shall:
(b) (I) (A) Maintain, at all times, an office within this state that is open to the public during normal business hours, is staffed by at least one full-time employee, keeps a record of all moneys collected and remitted by the agency for residents of Colorado, AND ACCEPTS PAYMENTS PHYSICALLY MADE AT THE OFFICE FOR ANY DEBT THE AGENCY IS ATTEMPTING TO COLLECT.
(B) NOTIFY, IN EACH WRITTEN COMMUNICATION, THE CONSUMER FROM WHOM THE AGENCY IS ATTEMPTING TO COLLECT A DEBT OF THE ADDRESS AND TELEPHONE NUMBER OF THE LOCAL OFFICE REQUIRED BY THIS SUBPARAGRAPH (I). CRS § 12-14-123.
Contact Circle Law to set up an appointment: John Scanlan
Colorado has updated the State's drunk driving laws, effective July 1, 2010.
The Legislature has updated the State's penalties for drunk driving. The Legislature simplified what was a very complex matrix of penalties.
The new penalties are still complex, but more standardized.
In particular, the Legislature combined penalties for all second offenses, regardless of whether DUI or DWAI, into a single section. The Legislature also added penalties for multiple offenses within a five year period and for more than two drunk driving offenses. Some penalties increased and some decreased.
The legislature also now encourages courts to require ignition interlocks for two or more convictions.
The following table identifies the new drunk driving penalties:
Drunk Driving Penalties (as of July 1, 2010)
1st offense
2nd offense
2nd within 5 yrs
3rd or more
DUI, DUI per se, DWAI, Habitual User
Jail Time
10 days - 1 yr
(2) (4)
10 days - 1 yr
(4) (5)
60 days - 1 yr
(4) (5)
Fine
$600 - $1,500
$600 - $1,500
$600 - $1,500
Public Service
48-120 hrs
(3)
48-120 hrs
(3)
48-120 hrs
(3)
Probation
at least 2 yrs
(6) (7) (8)
at least 2 yrs
(6) (7) (8)
at least 2 yrs
(6) (7) (8)
Additional Suspended Sentence
1 yr
1 yr
1 yr
DUI, DUI per se, Habitual User
Jail
5 days - 1 yr
(1)
Fine
$600 - $1,000
Public Service
48-96 hrs
(3)
Probation
up to 2 yrs
DUI, DUI per se, DWAI, Habitual User with BAC above 0.2
Jail
10 days - 1 yr
(2)
Fine
$600 - $1,000
Public Service
48-96 hrs
(3)
Probation
up to 2 yrs
DWAI
Jail
2 - 180 days
(1)
Fine
$200 - $500
Public Service
24-48 hrs
(3)
Probation
up to 2 yrs
Notes:
(1) Minimum may be suspended.
(2) House arrest or work release ok.
(3) Minimum cannot be suspended.
(4) No good credit allowed during minimum.
(5) No house arrest. Only limited work release.
(6) Level II alcohol and drug driving safety education or treatment program
(7) May add additional 2 yrs probation.
(8) May require ignition interlock and/or alcohol monitoring during probation.
Note: Courts are encouraged to require ingnition interlocks
Other costs
Crime Victim's Fund
$33
Persistent Drunk Driver's Fund
$100 - $500
Traumatic Brain Injury Trust Fund
$20
Rural Subtance Abuse Fund
$1 - $10
Restitution
???
Attendance at Victim Impact Panel
up to $25
Presentence report
???
Evaluation and treatment programs
???
Cost of public service
up to $120
CRS 42-4-1307. Penalties for traffic offenses involving alcohol and drugs
Contact Circle Law to set up an appointment: John Scanlan
