February, 2012:

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 Tammy M. Alcock or any of the other attorneys at Sweetbaum Sands.

February, 2012:

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 Sands' Shareholders Alan D. Sweetbaum and Tammy M. Alcock 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.

February, 2012:

Alan D. Sweetbaum and Tammy M. Alcock 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. 

February, 2012:

Tammy M. Alcock successfully represented the Cherry Park Owners Association in an action to enforce the homeowner’s association covenants that barred storage of property in the front of the homes within the development [See, Cherry Park Owners Association v. Nancy Ellwood, Arapahoe County Court, 09C200127]. After obtaining a preliminary injunction that barred the defendant from continuing to store her jet skis in front of her home, a two day trial to the Court was held on the Association’s request for a permanent injunction and on the homeowner’s counterclaim for differential enforcement. The Court rendered a verdict for the Association and against the defendant on all claims and awarded the Association’s attorney fees and costs pursuant to the Colorado Common Interest Ownership Act. The Arapahoe County District Court denied the defendant's appeal [09CV2810 (2010] and the Colorado Supreme Court rejected a subsequent Petition for Writ of Certiorari [2010SC579 (2011)].

February, 2012:

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 Sands 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.
 

February, 2012: 

COLORADO COURT OF APPEALS HOLDS THAT TRIAL COURT IS PROPER FORUM FOR CONTESTING PROCEDURAL VALIDITY OF MECHANIC'S LIEN

Sweetbaum Sands 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 Sands' 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 Sands, provides necessary clarity to the scope of arbitration proceedings, particularly as they relate to mechanic’s lien foreclosure actions.

January, 2012:

SWEETBAUM SANDS HALTS FORECLOSURE ACTION

Sweetbaum Sands 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 and Jonathan G. Nash 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 Mr. Nash, 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.

 January, 2012:

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 Carolyn Abrahams  or any of the commerical real estate attorneys at Sweetbaum Sands.

December, 2011:

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.

December, 2011:

Carolyn Abrahams presents at the National Business Institute's CLE seminar titled "BUSINESS CONTRACTS A TO Z" on December 13, 2011.  Materials and additional information can be found at NBI's website or by selecting the link Business Contracts A to Z.

October, 2011:

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.
 

October, 2011:

Geoffrey P. Anderson presents "Colorado Real Estate Title Standards" at the CLE in Colorado's Real Estate Fall Update 2011.

July, 2011: 

The firm announces its new name Sweetbaum Sands Anderson PC.