SKIP TRACING A MISSING DEBTOR OR ASSET SEARCH
attorney has on-line search capabilities in litigation cases

        Communications will not be made with third persons other than the debtor, except permitted location inquiries.  Counsel will not harass the debtor by initiation of unreasonably repetitive communications or communications at inconvenient times, or other prohibited conduct.  Once the matter has been referred for litigation, I ask that my clients discontinue all further communications with the debtor.  Simply put, in that fashion a client can not open mouth and insert foot.  This closes the door to a claim for actual and punitive damages plus debtor's costs and attorney's fees.  See CRS 5-5-109

        Prospective clients must understand that I am an attorney with the goal of procuring judgment and satisfaction thereof, not pursuit of any vendetta.  

        If the client or any employee or agent of the client has engaged in unconscionable conduct in attempt to collect the debt prior to referral, please notify the attorney at the time the account receivable is referred.  It may be prudent to charge off and thus possibly avoid penalties.  Refer to attorney ethics WARNING.

FDCPA 15 USC 1692g   (paraphrased)
         a. Within five (5) days after the initial communication with a consumer in connection with the collection of any debt, unless the following information is contained in the initial communication or the consumer has paid the debt, a debt collector shall send the consumer a written notice contain the following information.

        The debtor will be given the mini Miranda warning notice that 
                This communication is from a debt collector.  
                This is an attempt to collect a debt.  
                Any information obtained will be used for that purpose.

        The debtor may later be given notice that a returned payment fee of $20 will be charged to him or her when any check received to apply on his or her account is not paid upon presentment.  CRS 13-21-109(1)(b)(I)

        Overshadowing is the name given to language which blurs the meaning of the notices required to be given a consumer in the first written communication from a debt collector.  As indicated above, essentially, those rights are:
                1.  The right to dispute the debt, and
                2.  The right to validation of the debt if the debt collector desires to continue further communication (verbal, written or lawsuit) in connection with connection with collection of the debt.

        It is well-settled that the parol evidence rule excludes extrinsic evidence which varies or contradicts the express terms of a written agreement, and that the rule applies to sales transactions as well as to other types of contracts.  Sentinel Accept. v. Colgate, 162 Colo. 64 (Colo. 1967).  The general rule is that parol evidence is inadmissible to vary or contradict the terms of an unambiguous agreement.  Pierce v. DeZeeuw, 824 P.2d 97 (Colo. App. 1991).  If an instrument is clear in its terms, complete, and free from ambiguity, extrinsic evidence will not be permitted to modify it.  Reisig v. Resolution Trust Corp., 806 P.2d 397 (Colo. App. 1991).  The traditional exception to the parol evidence rule applies when the "evidence is offered to establish fraud or mutual mistake or mistake of law." Light v. Rogers, 125 Colo. 209, 242 P.2d 234 (1952); see Martin v. Cole, 3 Colo. 113 (1876); Johnson v. Cummings, 12 Colo. App. 17, 55 P. 269 (1898) cited in Boyles v. Orion, 761 P.2d 278 (Colo. App. 1988)

        Ordinarily a note is prima facie evidence of an obligation.  McCaffrey v. Mitchell, 98 Colo. 467, 56 P.2d 926 (1936).  Written contract and promissory note would be a plaintiff's attorney's first choice.  If defenses may arise from original documents or lack thereof, it may be advisable to delay lawsuit and arrange a new written agreement and promissory note with the debtor.  Under law of merger, prior agreements, covenants, and conversations are merged into the final, formal, written contracts executed by the parties.  City of Westminster v. Skyline Vista Development Co., 163 Colo. 394, 431 P.2d 26 (1967); Skidmore v. First Bank, 773 P.2d 587 (Colo. App. 1988) cited in Batterman v. Wells Fargo, 802 P.2d 1112 (Colo. App. 1990).

        Should a creditor client decide to proceed to lawsuit when documentation is defective or lacking or when it appears the debtor may have a legitimate defense, unfavorable judgment on the merits may enter.  The doctrine of res judicata provides that a final judgment on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits on points or matters determined in the former suit. Whitman v. People, 161 Colo. 117, 420 P.2d 244 (1966). It bars relitigation not only of all issues actually decided, but of all issues that might have been decided. Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973).  For this doctrine to apply to a judgment of dismissal, there must have been final judgment on the merits. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); Dash v. Rubey, 144 Colo. 481, 357 P.2d 81 (1960). A judgment based on any preliminary, subsidiary, or technical grounds is not an adjudication upon the merits. Saunders v. Bankston, 31 Colo. App. 551, 506 P.2d 1253 (1972). Nor is a judgment dismissing an action or claim for lack of jurisdiction an adjudication on the merits.  I am a conservative attorney.  To avoid potential total loss of claim under such circumstances, I advise my clients to briefly delay litigation in favor of a new written agreement and promissory note with the debtor.  

        Renegotiating new agreements, creditors must avoid a contract of adhesion.  That is essentially a contract drafted unilaterally by a business enterprise and forced upon an unwilling and often unknowing public for services that cannot be obtained elsewhere. It is generally not bargained for, but is imposed on a take it or leave it basis. Jones v. Dressel, 623 P.2d 370 (Colo. 1981). The remedies recognized for contracts of adhesion are to treat the contract as unenforceable or to excise from the contract that particular term. The recognized rationales for these remedies are usually stated in terms of unconscionability, violation of public policy, or lack of true assent. See J. Calamari & N. Perillo, Contracts § 9-44 (3d ed. 1987).  Neither these rationales nor tort liability and accompanying damages are justifiably imposed on a party to a contract whose only "wrong" was to use its superior bargaining position to protect its investment by requiring protective terms in the contract.  Such claims were properly dismissed in Batterman v. Wells Fargo, 802 P.2d 1112 (Colo. App. 1990).

CRS 13-80-116. Action against joint debtors or obligors
        If, in an action against joint debtors or obligors, the plaintiff is barred by the provisions of this article as to one or more of the debtors or obligors, but is entitled to recover against any other of them by virtue of a new acknowledgment, promise, or payment, the plaintiff shall be entitled to proceed as against that defendant.

CRS 13-80-117. No dismissal for nonjoinder.
        In an action on contract, it shall not be a defense that the plaintiff failed to join a person against whom claim is barred by this article.

        Small Claims Court *

   $0 - $7,500  CRS 13-6-403 (jurisdiction concurrent with County & District Courts)

        County Court

   $0 - $15,000  CRS 13-6-104 (jurisdiction concurrent with District Court)

        District Court

   All civil actions- - no dollar limit  CRS 13-1-124

        With the complaint, Plaintiff will also file an affidavit of account.  This is an affidavit of plaintiff or plaintiff's authorized agent setting forth the basis of the claim.  As an example, the original contract, bad check, or other written documentation must be attached.  When referring the case for litigation, send the original documentation, not copies.  This also works as validation of the debt.

        A summons and complaint will be served upon the debtor / defendant.  the summons contains a return date.  At the return date, defendant will:
                a.  Default - fail to appear in which case judgment should enter for the creditor / plaintiff
                b.  Appear and enter into a stipulation in lieu of judgment
                c.  Appear and confess judgment
                d.  Appear and contest the debt - setting the case for trial.  Plaintiff may move for summary judgment.

        When the defendant confesses judgment, judgment is entered of record.  Unless the creditor client authorizes and defendant agrees to a payment plan, counsel will proceed with involuntary enforcement of the judgment.  Confession of judgment saves the time and expense of trial.

        When the defendant files an answer denying liability, the case will likely be set for pre-trial conference and trial.  Either party may request a jury trial upon payment of the jury deposit.  Each party may introduce testimony and exhibits.  At the close of evidence, the factfinder (judge in a trial to the court or jury in a jury trial) will make a determination of liability and the amount thereof, if any.  If a debtor makes a frivolous defense, defendant would be liable for creditor plaintiff's attorney's fees and costs.  Frivolous or groundless suit / defense.

        District Court.  C.R.Civ.P. 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."  When a motion for summary judgment is submitted and supported by an affidavit, an adverse party may not rest on the mere allegation of his pleadings, but must by affidavit or otherwise set forth specific facts showing there is a genuine issue for trial. C.R.Civ.P. 56(e); GTM Investments v. Depot, Inc., 694 P.2d 379 (Colo. App. 1984) cited in Reisig v. Resolution Trust Corp., 806 P.2d 397 (Colo. App. 1991).  No corresponding summary judgment county court rule.

        Upon payment in full of the underlying debt, creditor must file a satisfaction of judgment.  Failure to do so may result in an action for damages brought by the judgment debtor.  In county court actions, under C.R.Civ.P. 358(b), at the expiration of 6 years, the clerk of court is required to enter a satisfaction of judgment unless the judgment is revived pursuant to C.R.Civ.P. 354(h).

Creditors must recognize there is no "debtor's prison."
        CRS 13-59-101. No imprisonment for debt. There shall be no imprisonment or arrest for debt in this state in any case upon any contract, expressed or implied.  
        CRS 13-59-102. Execution against the body. No execution shall issue against the body of any defendant in a civil action.
        This means non-payment of a civil debt is not grounds for imposition of jail.
        However, contempt imprisonment order can enter should a debtor fail to appear for a post judgment creditor's examination or alternatively fail to answer post judgment creditor's interrogatories.

        In a district court action, an automatic stay of enforcement prohibits plaintiff from executing on the judgment for a period of fifteen (15) days from judgment entry.  C.R.Civ.P. 62(a).  No automatic stay exists in county court judgments.  C.R.Civ.P. 362(a)

        A judgment creditor must locate debtor's assets, if any, to satisfy a judgment.  Multiple remedies available.  The most common are:

a few debt collection .pdf files are linked directly from this webpage - refer to judiciary forms above for additional forms
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        Continuing writ of garnishment is valid for a period of 180 days, after which a new writ must be obtained and served upon the employer.  CRS 13-54.5-102, C.R.Civ.P.  The requirement to serve multiple writs over time is somewhat of an inconvenience, but better than the previous 90 day limitation.

        Notice to judgment debtor

        Continuing writ of garnishment CRS 13-54.5-105. Notice to judgment debtor in continuing garnishment. In a case of continuing garnishment, the judgment creditor shall serve two copies of the writ of continuing garnishment upon the garnishee, one copy of which the garnishee shall deliver to the judgment debtor as provided in section 13-54.5-107. Such writ shall include notice to the judgment debtor of the formula used to calculate the amount of exempt earnings owed to the judgment debtor for a single pay period and the amount of nonexempt earnings payable to the judgment creditor for a single pay period, and such writ shall contain notice to the judgment debtor of his right to object to such calculation of exempt and nonexempt earnings and his right to a hearing on such objection.

        Garnishment other than continuing writ of garnishment CRS 13-54-101(7) and CRS 13-54.5-106.  Notice of exemption and pending levy is required.  this would include, but not be limited to garnishments on a bank account.

CRS 13-54.5-106. Notice to judgment debtor in other garnishment. 
        (1) In a case where personal property of the judgment debtor other than earnings is subject to garnishment, following the service of the writ of garnishment on the garnishee, the person who served said writ shall, as soon as practicable, serve a copy of the writ of garnishment, together with a notice of exemption and pending levy, upon each judgment debtor whose property is subject to garnishment by said writ. The notice of exemption and pending levy shall inform the judgment debtor that the judgment creditor intends to seek satisfaction of any judgment rendered in its favor against the judgment debtor out of the judgment debtor's personal property in the possession or control of the garnishee and shall inform the judgment debtor of his right to claim exempt property.
        (2) This subsection sets forth the required information which must be contained in the notice of exemption and pending levy.  Omitted for brevity - refer to the statute.

        Debtor Objection and Hearing CRS 13-54-108 and CRS 13-54.5-109.  Debtor may file an objection the the garnishment which will stay further seizure, and expedited hearing will be held.  Provisions regarding debtor exemption claim from levy and sale are contained in to CRS 13-55-101 et. seq.

        Priorities - CRS 13-54.5-104.  Garnishments are first served, first paid - except for family support garnishments or assignments which take priority regardless of when served.  Support orders may last several years.  Therefore, if the debtor has a support income assignment or support garnishment, the creditor must pretty much look elsewhere to satisfy judgment.

        Bank accounts.  Debtor may claim proceeds in a bank account are identifiable wages.  Naturally, a creditor would disagree and this issue would be the subject of a court dispute.  Generally bank account garnishments are not subject to the above limitations.

        Co-Owned Property.  28 U.S.C. § 3010 allows enforcement against property which is owned by the debtor along with others, including but not limited to co-owned property. This form of ownership would include, but is not limited to, joint tenancy, co-tenancy, tenancies by the entirety, community property and similar interests. In enforcing the remedies as to co-owned property, the law of the state where the property is located shall determine the extent to which this property may be subjected to payment of the debtor's debt to the United States

        No discharge from employment for garnishment. CRS 5-5-107
        No employer shall discharge an employee for the reason that a creditor of the employee has subjected or attempted to subject unpaid earnings of the employee to garnishment or like proceedings directed to the employer for the purpose of paying a judgment arising from a consumer credit transaction.
        An employer would be subject to contempt of court proceedings if the employer terminated the employee due to the garnishment.  However, life is as it is.  An employer may find "other reasons" to terminate an employee whose wages are subject to garnishment.
        15 USC 1674 federal law similar provisions.

        Wage garnishments - CRS 5-5-106, 15 USC 1673.  The maximum part of the aggregate disposable earnings of an individual that is subjected to garnishment to enforce payment of a judgment arising from a consumer credit transaction may not exceed the lesser of:
                (a) Twenty-five percent of the individual's disposable earnings, or
                (b) The amount by which the individual's disposable earnings exceed thirty times the federal minimum hourly wage prescribed by section 206 (a) (1) of the "Fair Labor Standards Act of 1938", 29 U.S.C. sec. 201 et sec., in effect at the time the earnings are payable.

        State, County and Municipal Governments.  CRS 13-61-101. Funds subject to garnishment. The state of Colorado, municipal corporations, quasi-municipal corporations, and any officer, board, or commission thereof, having the control of the disbursing of any fund, whether the same be derived from appropriations, levies, fees, licenses, special taxes, or otherwise within the state of Colorado, shall be subject to garnishment upon writs of attachment and execution in the same manner as private corporations are subject to garnishment under such writs; except that the state of Colorado shall not be subject to garnishment regarding salaries or fees due to any officer designated as such and whose salary or fees are fixed by the provisions of the constitution of the state of Colorado.

        Federal Government.  
        If protected under ERISA*, pension benefits may be exempt from garnishment.  Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365 (1990)  *Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq.  Railroad retirement and unemployment benefits are exempt from Federal or State taxation, garnishment and attachment.  38 U.S.C. § 454a].  Retirement systems include, but are not limited to, the Civil Service Retirement and Disability System, 5 U.S.C. ch. 83, §§ 8301 et al. (1982); the Federal Employees Retirement System, 5 U.S.C. ch. 84, § 8401 et al. (Supp. IV 1986); the Foreign Service Retirement and Disability System, 22 U.S.C. ch. 14, subch. VIII (1982); the retirement provisions for members of the military services, 10 U.S.C. chs. 61, 63, 65, 67, 69, 71, 73, 75 (1982); and the Central Intelligence Agency Retirement and Disability System, Public Law 88-643, 78 Stat. 1043 (October 13, 1964) as amended, 50 U.S.C. § 403.  Each of these systems, and others, creates complex schemes of rights and benefits for the covered personnel and for the surviving spouses, former spouses, and children of the covered personnel under the respective systems.  The Federal courts have generally recognized that the Supremacy Clause of the Constitution, Article VI, section 2, will not permit state law to apply to a statutorily-created or authorized Federal retirement system in conflict with Federal law.  Schueler v. Rayjas Enterprises, Inc., 847 F. Supp. 1147 (S.D.N.Y. 1994)

CRS 13-54-102. Property exempt
        (1) The following property is exempt from levy and sale under writ of attachment or writ of execution:
            (a) The necessary wearing apparel of the debtor and each dependent to the extent of one thousand five hundred dollars in value;
            (b) Watches, jewelry, and articles of adornment of the debtor and each dependent to the extent of one thousand dollars in value;
            (c) The library, family pictures, and school books of the debtor and the debtor's dependents to the extent of one thousand five hundred dollars in value; except that this paragraph (c) shall not apply to any such property constituting all or part of the stock in trade of the debtor;
            (d) Burial sites, including spaces in mausoleums, to the extent of one site or space for the debtor and each dependent;
            (e) The household goods owned and used by the debtor or the debtor's dependents to the extent of three thousand dollars in value;
            (f) Provisions and fuel on hand for the use or consumption of the debtor or the debtor's dependents to the extent of six hundred dollars in value;
            (g) (I) Except as otherwise provided in subparagraph (II) of this paragraph (g), in the case of every debtor engaged in agriculture as the debtor's principal occupation, including but not limited to farming, ranching, dairy production, and the raising of livestock or poultry, all livestock, poultry, or other animals, and all tractors, farm implements, trucks used in agricultural operations, harvesting equipment, seed, and agricultural machinery and tools in the aggregate value of twenty-five thousand dollars.
                 (II) Only one exemption in the aggregate value of twenty-five thousand dollars shall be allowed for a debtor and his or her spouse under subparagraph (I) of this paragraph (g). In the event that property is claimed as exempt by a debtor or his or her spouse under subparagraph (I) of this paragraph (g), no exemption shall be allowed for such debtor or his or her spouse under paragraph (i) of this subsection (1).
            (h) Except for amounts due under court-ordered support of children or spouse which are subject to the exemption provisions of CRS 13-54-104, all money received by any person as a pension, compensation, or allowance for any purpose on account or arising out of the services of such person as a member of the armed forces of the United States in time of war or armed conflict, and whether in the actual possession of the recipient thereof or deposited or loaned by him, and a like exemption to the unremarried widow or widower and the children of such person who receive a pension, compensation, or allowance of any kind from the United States on account or arising out of such service by a deceased member of such armed forces; and when a debtor entitled to exemption under this paragraph (h) dies or leaves his family said exemption shall extend to the dependents of said debtor;
            (h.5) The articles of military equipment personally owned by members of the national guard;
            (i) The stock in trade, supplies, fixtures, maps, machines, tools, electronics, equipment, books, and business materials of any debtor used and kept for the purpose of carrying on any gainful occupation in the aggregate value of ten thousand dollars;
            (j) (I) One or more motor vehicles or bicycles kept and used by any debtor in the aggregate value of three thousand dollars; or
                (II) (A) One or more motor vehicles kept and used by any elderly or disabled debtor, or by any debtor with an elderly or disabled spouse or dependent, in the aggregate value of six thousand dollars.
                     (B) For the purposes of this subparagraph (II): "Disabled person" means any person who has a physical or mental impairment which is disabling and which, because of other factors such as age, training, experience, and social setting, substantially precludes the person having such impairment from engaging in a useful occupation as a homemaker or as a wage earner in any employment which exists in the community for which he has competence; and "elderly person" means any person who is sixty-five years of age or older.
(k) The library of any debtor who is a professional person, including a minister or priest of any faith, kept and used by the debtor in carrying on his or her profession, in the value of three thousand dollars; except that exemptions with respect to any of the property described in this paragraph (k) may not also be claimed under paragraph (i) of this subsection (1);
            (l) (I) (A) The cash surrender value of policies or certificates of life insurance to the extent of fifty thousand dollars for writs of attachment or writs of execution issued against the insured; except that there is no exemption for increases in cash value from moneys contributed to a policy or certificate of life insurance during the forty-eight months prior to the issuance of such writ of attachment or writ of execution; and
                    (B) The proceeds of policies or certificates of life insurance paid upon the death of the insured to a designated beneficiary, without limitation as to amount, for writs of attachment or writs of execution issued against the insured.
                (II) The provisions of this paragraph (l) shall not be interpreted to provide an exemption for attachment or execution of the proceeds of any policy or certificate of life insurance to pay the debts of a beneficiary of such policy or certificate.
                (III) The provisions of this paragraph (l) shall not provide an exemption for attachment or execution of the proceeds of any policy or certificate of life insurance if the beneficiary of such policy or certificate is the estate of the insured.
            (m) The proceeds of any claim for loss, destruction, or damage and the avails of any fire or casualty insurance payable because of loss, destruction, or damage to any property which would have been exempt under this article to the extent of the exemptions incident to such property;
            (n) The proceeds of any claim for damages for personal injuries suffered by any debtor except for obligations incurred for treatment of any kind for such injuries or collection of such damages;
            (o) The full amount of any federal or state earned income tax credit refund;
            (p) Professionally prescribed health aids for the debtor or a dependent of the debtor;
            (q) The debtor's right to receive, or property that is traceable to, an award under a crime victim's reparation law;
            (r) For purposes of garnishment proceedings pursuant to the provisions of article 54.5 of this title, any amount held by a third party as a security deposit, as defined in CRS 38-12-102 (2), or any amount held by a third party as a utility deposit to secure payment for utility goods or services used or consumed by the debtor or his dependents;
            (s) Property, including funds, held in or payable from any pension or retirement plan or deferred compensation plan, including those in which the debtor has received benefits or payments, has the present right to receive benefits or payments, or has the right to receive benefits or payments in the future and including pensions or plans which qualify under the federal "Employee Retirement Income Security Act of 1974" as an employee pension benefit plan, as defined in 29 U.S.C. 1002, any individual retirement account, as defined in 26 U.S.C. 408, any Roth individual retirement account, as defined in 26 U.S.C. 408A, and any plan, as defined in 26 U.S.C. 401, and as these plans may be amended from time to time;
            (t) All property which is subject to a judgment against a debtor for failure to pay state income tax to a state for periods when such individual was not a resident of such state on benefits received from a pension or other retirement plan;
            (u) Any child support obligation or child support payment required by a support order if the requirements of CRS 13-54-102.5 are met.
        (2) Notwithstanding the provisions of paragraph (h) of subsection (1) of this section and CRS 13-54-104, military pensions shall be subject to court-ordered support of children or spouse.
        (3) Notwithstanding the provisions of paragraph (s) of subsection (1) of this section, any pension or retirement benefit or payment shall be subject to attachment or levy in satisfaction of a judgment taken for arrearages for child support or for child support debt, subject to the limitations contained in CRS 13-54-104.
        (4) Notwithstanding anything to the contrary in this section, all property of a person who has committed a felonious killing, as defined in CRS 15-11-803 (1) (b), and as determined in the manner described in CRS 15-11-803 (7), shall be subject to attachment or levy in satisfaction of a judgment awarded pursuant to CRS 13-21-201 or CRS 13-21-202 for such felonious killing.

CRS 13-54-102.5. Child support payments - exemption - deposit into custodial account
        (1) Any past or present child support obligation owed by a parent or child support payment made by a parent that is required by a support order is exempt from levy under writ of attachment or writ of execution for any debt owed by either parent. A child support payment is no longer exempt under the provisions of this section if the recipient of the payment intermingles the payment with any other moneys.
        (2) A child support payment is only exempt under the provisions of subsection (1) of this section after the payment is deposited in a bank, savings and loan, or credit union account if the account is a custodial account for the benefit of the child designated for child support payments and if no moneys other than child support payments made pursuant to a support order or interest earned on the moneys in the account are deposited into the account.

      Less than $100

Class 3 Misdemeanor

      More tan $100 but less than  $500  

Class 2 Misdemeanor  (includes aggregate of 2 or more checks within 60 days)

      $500 or more

Class 6 Felony (includes aggregate of 2 or more checks within 60 days)

     also includes 2 prior convictions - fraud by check

      Non-existent account

Class 6 Felony

      Bank account closed 30 days or more

Class 6 Felony