Eppler Johnson PC

When a Registered Agent Refuses to be Served

Jacob Eppler — Thu, 14 Jul 2011 23:22:39 +0000

When a company does business in Colorado it is required to have register agent to receive service. Service is the legal notice that is required for a court to bring an entity into a lawsuit. As such, every domestic entity that transacts business in the state of Colorado “shall continuously maintain in this state a register agent…” C.R.S. § 7-90-701. The purpose of the statute is to provide means of providing due process notice to an entity of a pending legal action. C.R.S. § 7-90-704(1).Unfortunately, some business believe that they can avoid law suits by making it difficult or impossible to contact their registered agent. Often they list the wrong address with the Secretary or State or hide from process servers. This kind of behavior denies a party the opportunity to bring the entity before a court and escape legal liability yet to still transact business in Colorado.Luckily, C.R.S. § 7-90-704(2) provides for service on an entity by alternative means when an entity’s register agent cannot be served or found.“If an entity that is required to maintain a registered agent pursuant to this part 7 has no registered agent, or if the registered agent is not located under its registered agent name at its registered agent address, or if the registered agent cannot with reasonable diligence be served, the entity may be served by registered mail or by certified mail, return receipt requested, addressed to the entity at its principal address. Service is perfected under this subsection (2) at the earliest of:(a) The date the entity receives the process, notice, or demand;(b) The date shown on the return receipt, if signed on behalf of the entity; or(c) Five days after mailing.”Thus, a party can start their case by sending service by certified mail and get their case before a court and thwart registered agents attempting to avoid service.Jake Eppler

The Rule of Lenity in Criminal Law

Jacob Eppler — Fri, 08 Jul 2011 16:28:03 +0000

If a criminal law has ambiguous language, should it be interpreted in favor of the State or the Defendant?In criminal law the Rule of Lenity requires the strict construction of criminal statutes. People v. Lowe, 660 P.2d 1261 (Colo.1983). Criminal laws are to be strictly construed against the state and in favor of the accused. United States v. Bramblett, 348 U.S. 503, 509–510 (1955). If there is doubt as to the meaning or application of a criminal statute, courts must presume that the legislature intended the least inclusive definition of the statutory language and resolve the doubt in favor of the defendant. McBoyle v. United States, 283 U.S. 25 (1931). The Rule of Lenity applies to both criminal laws and sentencing statutes. People v. District Court, 834 P.2d 236 (Colo.1992).Thus, a criminal defense attorney must be diligent to read all statutes with a critical eye to find language that may potentially help their client.Jake Eppler

“Harassment”in the Collections World

Christian Johnson — Thu, 30 Jun 2011 01:24:25 +0000

Whether you are the debt collector, or the one being collected upon, the Colorado Fair Debt Collection Practices Act (CFDCPA) articulates the rights and rules of the process. Below you will find the CFDCPA’s definition of “Harassment and Abuse”.C.R.S. 12-14-106(1) A debt collector or collection agency shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, including, but not limited to, the following conduct:(a) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person;(b) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader;(c) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of 15 U.S.C. sec. 1681b (a) (3) and section 12-14.3-103 (1) (c);(d) The advertisement for sale of any debt to coerce payment of the debt or agreeing to do so for the purpose of solicitation of claims;(e) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number;(f) Except as provided in section 12-14-104, the placement of telephone calls without meaningful disclosure of the caller’s identity within the first sixty seconds after the other party to the call is identified as the debtor.-Christian L. Johnson

Corporal Punishment vs. Child Abuse

Jacob Eppler — Tue, 21 Jun 2011 09:27:54 +0000

In the criminal context child abuse comes in a myriad of forms under Colorado law; C.R.S. 18-6-401. A Child Abuse charge can arise when a child is unreasonably placed in situation that poses a threat of injury, or being in the proximity of the manufacture of drugs, or simply injuring the child.One defense to the charge of child abuse in the context of physical force can be found at C.R.S. 18-1-703, Use of Physical Force- Special Relationships. Under this statute the use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: A parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person, and a teacher or other person entrusted with the care and supervision of a minor, may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or incompetent person. C.R.S. 18-1-703(1)(a).Thus, a parent can under Colorado law use corporal punishment when disciplining a child. However, the amount of physical force must be reasonable. Reasonable force is not defined-but at law it is generally viewed as the community norm. This were facts of a particular case create debate: is spanking reasonable; is spanking with a belt reasonable and so forth?A second aspect of many child abuse cases is in conjunction with the criminal child abuse case the State may file a dependency & neglect case; pursuant to C.R.S. 19-3-102. These proceeding have different goals, but can also be very demanding on a family. This type of case is not a criminal prosecution handled by the District Attorney’s Office, rather, it is handled by the Department of Social Services with County Attorney’s Office prosecuting the case.Jake Eppler

UCC Acceleration Clause Requirements Prior to Acting

Christian Johnson — Wed, 15 Jun 2011 17:59:17 +0000

If your contract or transaction falls under the Uniform Commercial Code and you have in your agreement what is commonly referred to as an Acceleration Clause, you still have the requirement of a good faith belief in impairment before accelerating payments or demanding additional collateral.C.R.S. 4-1-309A term providing that one party or that party’s successor in interest may accelerate payment or performance or require collateral or additional collateral “at will” or when the party “deems itself insecure”, or words of similar import, means that the party has power to do so only if that party in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against which the power has been exercised.-Christian L. Johnson

Equity Skimming of Real Property

Christian Johnson — Tue, 14 Jun 2011 01:07:43 +0000

There has been a lot of discussion recently about the exact requirements of the criminal charge of Equity Skimming of Real Property. It is a class 5 felony, and while the affirmative defense articulated in subsection 4 is somewhat complicated, the black-letter law of the charge is fairly straightforward.C.R.S. 18-5-802

(1) A person commits the crime of equity skimming of real property if the person knowingly:

(a) Acquires an interest in real property that is encumbered by a loan secured by a mortgage or deed of trust and the loan is in arrears at the time the person acquires the interest or is placed in default within eighteen months after the person acquires the interest; and

(b) Either:

(I) Fails to apply all rent derived from the person’s interest in the real property first toward the satisfaction of all outstanding payments due on the loan and second toward any fees due to any association of real property owners that charges such fees for the upkeep of the housing facility, or common area including buildings and grounds thereof, of which the real property is a part before appropriating the remainder of such rent or any part thereof for any other purpose except for the purpose of repairs necessary to prevent waste of the real property; or

(II) After a foreclosure in which title has vested pursuant to section 38-38-501, C.R.S., collects rent on behalf of any person other than the owner of the real property.

-Christian L. Johnson

What is Considered a Partnership, Do We Need a Contract?

Christian Johnson — Sat, 11 Jun 2011 01:33:18 +0000

While it is always advisable to commit the terms and agreements of the parties to a writing, in Colorado a partnership occurs, and partnership law applies, simply by the conduct of the parties if the statutory requirements are met.C.R.S. 7-60-106(1)A partnership is an association of two or more persons to carry on, as co-owners, a business for profit and includes, without limitation, a limited liability partnership.An express agreement is not required to create a partnership; a partnership may be formed by the conduct of the parties. Stratman v. Dietrich, 765 P.2d 603 (Colo. App. 1988); In re Winden, 120 Bankr. 570 (Bankr. D. Colo. 1990).-Christian L. Johnson

Changing Your Name in Colorado, is the Court Necessary?

Jacob Eppler — Fri, 10 Jun 2011 18:35:12 +0000

In Colorado under the common law, a person may lawfully change his or her name without any legal proceedings. In re Knight, 537 P.2d 1085 (Colo. App. 1975).If the change is not made for any fraudulent purpose, the changed name will constitute a legal name change. No formalities are required except that the person should use the new name for all purposes, private and public. People v. Darcy, 139 P.2d 118 (Cal. App.1943).However, Colorado law also allows a name change through the Court system. This statutory process does not abrogate the common law by which an individual may change their name without a petition to the court. In re Knight, 537 P.2d 1085 (Colo. App. 1975). Nevertheless, most people that wish to change their name look to the courts and file a petition to change their name under C.R.S. 13-15-101 and C.R.S. 13-15-102. The advantage of the court process stems from the ‘official’ documents generated by the courts that will allow the petitioner to obtain the necessary identification commonly used in daily life: e.g. drivers licenses, library cards, etc.So do you need the courts to change your name in Colorado? No, but by using the statutory method to change your name it may reduce the hassles associated with a name change and add perceived legitimacy to your name change.Jake Eppler- Attorney

Is it a Lease or a Security Interest?

Christian Johnson — Thu, 09 Jun 2011 19:52:42 +0000

This question comes up a lot depending on the context of the Agreement in question.C.R.S. 4-1-203(b)A transaction in the form of a lease creates a security interest if the consideration that the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease and is not subject to termination by the lessee, and:(1) The original term of the lease is equal to or greater than the remaining economic life of the goods;(2) The lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods;(3) The lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement; or(4) The lessee has an option to become the owner of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement.-Christian L. Johnson

Destroying LLC Limited Liability to Get to Personal Assets

Christian Johnson — Thu, 09 Jun 2011 01:14:28 +0000

Individuals and/or companies may, under certain circumstances, “pierce the corporate veil” of a Limited Liability Company in order to attempt to satisfy a judgment from a member’s/partner’s personal assets, banking accounts, homes, etc. In Colorado, this is done by applying the same law as is utilized for corporations.C.R.S. 7-80-107(1)In any case in which a party seeks to hold the members of a limited liability company personally responsible for the alleged improper actions of the limited liability company, the court shall apply the case law which interprets the conditions and circumstances under which the corporate veil of a corporation may be pierced under Colorado law.-Christian L. Johnson