Am I Out of the Woods Yet?: Colorado’s Statutes of Limitations on Credit Card Collections

Tags

, , , , , , , ,

There’s an old cliché that states, “Don’t believe everything you read.” In today’s day and age, it should be updated to “Don’t believe everything you read, ESPECIALLY on the Internet.” (This sounds funny coming from a blogger, right?) Nowhere is this truer than in the countless question-and-answer forums that have surfaced online. In case you are not familiar with the sites to which I am referring, they are essentially cyber round-tables, usually divvied up by topics, where users can post a question to the online world, and then wait for answers from who-knows-where and who-knows-whom.

It is one thing to engage in online discussions about who has the best tuna salad recipe. However, the Internet is inundated with forums dealing with very weighty topics, including serious legal matters. I am both fascinated and petrified at the amount of very bad legal advice that is doled out in these online forums, and even more amazed at the amount of people who choose to rely on such advice. .

For example, a few days ago I happened upon one of the more well-known question-and-answer forums, and found that someone had posted a question that read something like this: “I defaulted on a credit card 5½ years ago, and now the bank is coming after me, claiming that the statute of limitations is six years. Can they really do that after all this time?”

What followed were a whole host of varied responses from scores of would-be-experts opining on which of Colorado’s statutes of limitations applied to the collection of a credit card debt. One particularly forceful and aggressive individual insisted that the credit card company had only three years to collect, rather than six, and urged the inquirer to bear down and fight them to the end.

Which brings me to another cliché: “You get what you pay for.”

Colorado’s general time period allotted to a creditor to sue on a contract is three years. See C.R.S. § 13-80-101. However, the law carves out a very large six-year exception to the three-year rule for “all actions to recover a liquidated debt or an unliquidated, determinable amount of money due to the person bringing the action.” See C.R.S. § 13-80-103.5. The statute itself does not define what is meant by “liquidated”, but the courts have essentially held that if there is a written contract between the debtor and the creditor that defines the terms of the agreement such that the debtor is reasonably capable of determining the amount that is due, then the debt is “liquidated.” The last time I checked, credit card companies are not in the habit of handing out credit cards without first making the debtor sign a written agreement. In other words, credit card debts are almost always liquefiable, which almost always means that the credit card companies will have six years to pursue the debt.

Because every situation is different and circumstances vary for each individual, we encourage you to contact us regarding the facts pertaining to your case to determine how the laws discussed in this article apply to you.

by Josh Deere, Attorney
Hanes Hrbacek & Bartels, LLC

Fair Housing Discrimination Claims: Knowledge Is A Landlord’s Best Defense

Tags

, , , , , , , , , ,

When teaching Fair Housing classes to landlords and property managers, I often start with one question: Is it ever okay to discriminate against a prospective tenant? The “knee-jerk” reaction of most attendees is almost always, “No way! It is always wrong to discriminate!”

Wrong answer … believe it or not.

Merriam-Webster’s Dictionary defines “discriminate” as “to mark or perceive the distinguishing or peculiar features of”, or “to distinguish by discerning or exposing differences.” The fact is, landlords and property managers discriminate almost every day. Think about it. According to the dictionary’s definition, every time you check the prior rental history of a prospective tenant, you are discriminating … not necessarily in a bad way, but you are discriminating. Every time you refuse to rent to someone because their dog is too large, you are discriminating. Every time you choose to evict one tenant because of non-payment, you are discriminating.

In other words, the action of “discriminating” is not, in and of itself, necessarily bad. In fact, it is part of a landlord’s job. In our modern-day society, however, we have grown to associate the word “discriminate” with many negative connotations related to racism, sexism, etc. And that kind of discrimination is, of course, very bad, not only for moral reasons, but because it is precisely the kind of discrimination that exposes landlords to liability under federal Fair Housing law.

The federal Fair Housing Act was adopted by Congress as part of the Civil Rights Act of 1968. Fair Housing laws prohibit most landlords and property managers from discriminating against tenants on the basis of race, color, national origin, religion, sex, disability and familial status (which usually means having children under 18 in the household). We refer to these seven categories as the “protected classes.” In other words, a landlord can discriminate against a tenant, as long as the landlord does not do so based upon one of the protected classes.

A tenant who believes that he or she has been the victim of housing discrimination may elect to assert claims against the landlord in one of several ways. First, and probably the most common, the tenant may file a complaint with HUD’s Office of Fair Housing and Equal Opportunity (FHEO), or one if its local affiliates. The FHEO often delegates investigation and enforcement of such claims to local agencies on the state level, such as the local HUD or attorney general’s office. Those agencies will proceed not only with the investigation of such claims, but will also decide whether probable cause exists to pursue the landlord, and the extent of punishment to be administered. In that sense, they act as the judge, jury and executioner, with the power to enforce penalties including

• Ordering the landlord to Compensate the tenant for any actual damages, including humiliation, pain and suffering
• Assessment of fines to be paid to the Federal Government ranging from as much as $16,000 for a first violation to $65,000 for the third within a seven-year period
• Payment of reasonable attorney’s fees and costs
• Other forms of equitable relief, including forcing the landlord to allow the tenant to live in the rental property

The tenant may also choose to bring a private lawsuit against the landlord, in which the tenant might ask for monetary damages, including actual damages, pain and suffering, attorneys’ fees, court costs, and even punitive damages. Most of those cases are filed in federal court, and have a tendency to drag on for years, thus costing a large amount of time, money and resources to defend.

Needless to say, any landlord or property management company faced with a Fair Housing claim should seriously consider seeking the assistance of an attorney experienced in that area.

Any landlord who has been in the business for much time at all is sure to have some horror stories of defending against Fair Housing claims. However, the old adage, “an ounce of prevention is better than a pound of cure” can go a long way in saving the well-prepared landlord a lot of money and heartache when it comes to Fair Housing claims. An attorney experienced in landlord law can assist you to educate you and your employees how to avoid the many pitfalls that surround discrimination claims under Fair Housing, and can help establish protocols to assure that you and/or your company do not engage in activities that can be perceived as discrimination against the protective classes discussed above.

If you are interested in consulting with our office regarding Fair Housing issues, or even in having one of our attorneys travel to your office or one of your properties to teach a Fair Housing class, please call (719) 260-7900.

by Josh Deere, Attorney at Hanes Hrbacek & Bartels, LLC

Forgiven, But Not Forgotten: Can Your Prior Criminal Conviction Prevent You From Possessing A Firearm In Colorado?

Tags

, , , ,

“I can forgive, but I cannot forget, is only another way of saying, I will not forgive. Forgiveness ought to be like a cancelled note – torn in two, and burned up, so that it never can be shown against one.”
~ Henry Ward Beecher
Famed 19th Century social reformer (and father of Harriet Beecher Stowe)

A fine quote indeed, but what does it have to do with prior criminal convictions and your Second Amendment rights? Quite a bit, it turns out.

The Second Amendment’s right to bear arms is no doubt a hotly contested issue, one which could fill a thousand or more blogs, and which we will reserve for a later time. For the purpose of this entry, suffice it to state that despite the surplus of passions on the matter, the right to bear arms is not an absolute one. In other words, a person’s behavior can definitely impact his or her right to bear arms, especially if a criminal conviction results. But the question remains, just how far back into my past can the law look when deciding to impede my ability to possess a firearm?

The answer: it depends upon the nature and severity of the conviction.

Colorado has its own law that prohibits a convicted felon from possessing a firearm. See, C.R.S. 18-12-108. The law is very restrictive, applies to most felony convictions from other states, and the prohibitions imposed upon a felon do not expire. In other words, a felony conviction from 50+ years ago will still serve to prevent the felon from possessing a firearm, despite all time having been served, and despite decades of good behavior. Hence my reference to forgiving, but not forgetting.

But what about a misdemeanor conviction? Surely the same exclusions do not apply, right? In most cases, that is true … unless your misdemeanor was related to domestic violence.

A very controversial Federal law called “The Lautenberg Amendment” prohibits the possession of a firearm by anyone convicted of a misdemeanor crime related to domestic violence, no matter how far back the conviction. (The full name of the law is “Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence”, found at 18 U.S.C. § 922(g)(9).) While many Second Amendment advocates argue that The Lautenberg Amendment is overly broad and unduly burdensome, Federal courts have upheld the law as constitutional.

What About Expungement?

Is it possible to expunge your prior criminal records such that they do not affect your gun possession rights? Unfortunately, the law in Colorado is also not very favorable in that regard. In fact, Colorado does not actually allow expungement at all, but does allow some criminal records to be sealed in some very limited circumstances. To be clear, the difference between expungement and sealing the records is that with an expungement, the criminal records and files are essentially destroyed, whereas with the sealing they are only sealed and protected from public view.

The downside is that Colorado law only allows criminal records to be sealed in three circumstances: 1) when you were not actually charged with the crime for which you were arrested, 2) when the case was completely dismissed, or 3) when you were found not guilty of the crime. If you were either found guilty or pled guilty to any charges, the court will not grant a request to seal the records, no matter how long ago it happened.

So, in short, an individual is prohibited from possession a firearm in Colorado if he or she has been convicted of 1) a felony, or 2) a misdemeanor conviction that involved domestic violence. Furthermore, a person who has been convicted or has pled to either of those categories of crimes is not likely to be able to seal the records of the crime in order to better his or her chances of being able to possess a firearm.

There are usually exceptions to every rule, so I would encourage you to speak with a qualified attorney about your particular circumstances.

by Josh Deere, Attorney at Hanes Hrbacek & Bartels, LLC

Welcome To The Blog Site of Hanes Hrbacek & Bartels, LLC

Tags

, , , , , , , , , , , , , , ,

Welcome to our legal blog. The goal of this site is to provide a series of discussions on legal topics that have real-world application.

Hanes Hrbacek & Bartels, LLC is a law firm in Colorado Springs comprised of attorneys with over 100 years of combined experienced in the profession. Our firm is dedicated to the proposition that a small group of respectable attorneys and staff can provide highly focused, expeditious and knowledgeable client services with irreproachable integrity and professionalism. We strive to provide legally sound, cost-effective, and creative counsel to advance the individual and business interests of our clients.

Our team of attorneys has substantial experience in the following areas:

• Intellectual Property, including representation of clients in matters such as patents, trademarks, and copyrights before the United States Patent and Trademark Office and the U.S. Copyright Office
• Litigation, including representation in civil, commercial, business, real estate, intellectual property, and administrative disputes
• Appeals before the state Court of Appeals and Supreme Court, the Federal Circuit Court of Appeals, administrative boards, and others
• Landlord-Tenant, including evictions; lease drafting and review; lawsuits involving security deposits, property damage or other disputes; representation in Fair Housing and ADA discrimination; and consulting for landlords and property management firms
• Special government districts
• Real estate
• Business entity formation and other transactional services
• Legislative, regulatory and administrative representation
• Immigration

We sincerely hope that you find the topics posted on this site to be insightful and beneficial. If you are faced with your own particular legal challenge, please remember that every set of circumstances is different. As such, we encourage you to contact us at (719) 260-7900 for further discussion.