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: