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NOTICE:
Due to current
workload, attorney is not accepting new debt collection cases at this time.
"NO VACANCY" |
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attorney is
exercising caseload management
this is a temporary cessation of new business acceptance |
please feel free
to check back in the near future
attorney usually welcomes new representation inquiries |
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during the interim, information contained in this website
remains available at no cost to site visitors |
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existing clients are always welcome
to call or email |
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new
prospective clients may wish to call
Attorney
Dave Kelly -
Phone (719) 577-4466
uncompensated
courtesy referral - no affiliation or business relationship |
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STATUTES OF LIMITATIONS
COLORADO SPRINGS DEBT COLLECTION
Colorado Springs Attorney - Trial Practice 25+ Years Colorado State Courts & Colorado
Springs Municipal Court |
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GENERAL
INFORMATION |
STATUTES
OF LIMITATIONS |
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JUDGMENT
LIENS |
NOTICE
TO GOVERNMENT |
DEBT
NOT EXTINGUISHED
ONLY RIGHT TO ENFORCE |
TOLLING
OF STATUTE OF LIMITATIONS
Partial Payment and Promises to Pay
Concealment or Absence from Colorado
Involuntary Dismissal |
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CAUSE OF
ACTION - ACCRUAL |
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DO I NEED AN ATTORNEY?
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RECOVERY
OF ATTORNEY'S FEES &
COSTS
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ATTORNEY'S
FEES AND COSTS |
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ATTORNEY
POLICIES
Attorney
Representation & Declined Matters
Legal Advice
Limited to Clients - Not General Public
Pro Bono Representation or Installment Payment
Representation Now - Another Attorney or Self
Post Judgment - Enforcement or Appeal
Cases Outside Colorado
Springs - Travel |
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general information, skip tracing, asset search, co-maker
notices, notice of right to cure, cure of default, fair
debt collection practices, collection conduct, validation
of debt, overshadowing, interest, recovery of fees & costs |
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OTHER TOPICS |
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Litigation * *
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PRIVATE ATTORNEY
NOT A COLLECTION
AGENCY |
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I will represent creditors only
collecting
accounts receivable or debt |
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if you are a consumer or debtor
defending against a creditor claim
please do not email or call seeking advice or
representation
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Colorado Creditor Debt Collection - statutes of limitations, statute of limitations, judgment liens, notice to government, claims against county, claims against State of Colorado, debt not extinguished, cause of action, accrual, statute of limitations tolling, tolling, partial payment, promise to pay, absence from Colorado, involuntary
dismissal.
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The general statute of limitations
governing contract actions is 3 years. Do not
rely upon information contained in this web page as being dispositive to circumstances
surrounding a debt you intend to enforce. Other statutes of limitations may apply
depending upon the facts of any given case. Multiple statutes of
limitations have been omitted from this web page.
A
statute of limitations precludes recovery after a period of time. Put
another way - if you snooze, you lose. If an action is barred by the statute
of limitations, this attorney will not attempt to enforce the debt.
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STATUTES
OF LIMITATIONS
CIVIL LITIGATION |
CRS 13-80-101. General limitation of actions - three
years
(1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within three
years after the cause of action accrues, and not thereafter:
(a) All contract
actions, including personal contracts and actions under the "Uniform Commercial Code",
except as otherwise provided in CRS 13-80-103.5.
(b) Repealed.
(c) All actions for fraud, misrepresentation, concealment, or deceit except those in
CRS 13-80-102(1)(j) or CRS 13-80-103(1)(g).
(d) and (e)
Repealed.
(f) All actions for breach of trust or breach of fiduciary duty;
(g) All claims under the "Uniform Consumer Credit Code", except
CRS 5-5-201(5);
(h) All actions of replevin or for taking, detaining, or converting goods or chattels,
except as otherwise provided in CRS 13-80-103.5
....
CRS 13-80-102. General limitation of actions - two
years
(1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within two years after the cause of action accrues, and not thereafter:
(a) Tort actions, including but not limited to actions for negligence, trespass, malicious abuse of process, malicious prosecution, outrageous conduct, interference with relationships, and tortious breach of contract; except that this paragraph (a) does not apply to any tort action arising out of the use or operation of a motor vehicle as set forth in section 13-80-101 (1) (n);
(b) All actions for strict liability, absolute liability, or failure to instruct or warn;
(c) All actions, regardless of the theory asserted, against any veterinarian;
(d) All actions for wrongful death.
(e) Repealed.
(f) All actions against any public or governmental entity or any employee of a public or governmental entity for which insurance coverage is provided pursuant to article 14 of title 24,
CRS;
(g) All actions upon liability created by a federal statute where no period of limitation is provided in said federal statute;
(h) All actions against any public or governmental entity or any employee of a public or governmental entity, except as otherwise provided in this section or
CRS 13-80-103;
(i) All other actions of every kind for which no other period of limitation is provided;
(j) All actions brought under
CRS 42-6-204;
(k) All actions brought under
CRS 13-21-109(2).
CRS 13-80-102.5. Limitation of actions - medical or health
care
omitted
CRS 13-80-103. General limitation of actions - one
year
(1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within one year after the cause of action accrues, and not thereafter:
(a) The following tort actions: Assault, battery, false imprisonment, false arrest, libel, and slander;
(b) All actions for escape of prisoners;
(c) All actions against sheriffs, coroners, police officers, firefighters, national guardsmen, or any other law enforcement authority;
(d) All actions for any penalty or forfeiture of any penal statutes;
(e) All actions under the "Motor Vehicle Repair Act of 1977", article 9 of title 42,
CRS
(f) Repealed.
(g) All actions for negligence, fraud, willful misrepresentation, deceit, or conversion of trust funds brought under
CRS 12-61-303;
(h) All actions against a person alleging liability for a penalty for commission of a class A or a class B traffic infraction, as defined in
CRS 42-4-1701.
CRS 13-80-103.5. General limitation of actions - six
years
(1) The following actions shall be commenced within six years after the cause of action accrues, and not thereafter:
(a) All actions to recover a liquidated debt or an
unliquidated, determinable amount of money due to the person bringing the action, all actions for the enforcement of rights set forth in any instrument securing the payment of or evidencing any debt, and all actions of
replevin to recover the possession of personal property encumbered under any instrument securing any debt; except that actions to recover pursuant to
CRS 38-35-124.5 (3) shall be commenced within one year;
(b) All actions for arrears of rent;
(c) All actions brought under
CRS 13-21-109, except actions brought under CRS 13-21-109 (2);
(d) All actions by the public employees' retirement association to collect unpaid contributions from employers for persons who are not members or inactive members at the time the association first notifies an employer of its claim for unpaid contributions. This paragraph (d) shall apply to causes of action as provided in
CRS 24-51-402(2)
(e) All actions brought for restitution and civil penalties pursuant to
CRS 26-4-1104.
CRS 13-80-109. Limitations apply to noncompulsory counterclaims
&
setoffs
Except for causes of action arising out of the transaction or occurrence which is the subject matter of the opposing party's claim, the limitation provisions of this article shall apply to the case of any debt, contract, obligation, injury, or liability alleged by a defending party as a counterclaim or setoff. A counterclaim or setoff arising out of the transaction or occurrence which is the subject matter of the opposing party's claim shall be commenced within one year after service of the complaint by the opposing party and not thereafter.
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CRS 13-52-102. Property subject to execution - lien - real
estate
(1) All goods and chattels, lands, tenements, and real estate of every person against whom any judgment is obtained in any court of record in this state, either at law or in equity, or against whom any foreign judgment is filed with the clerk of any court of this state in accordance with the provisions of the "Uniform Enforcement of Foreign Judgments Act" pursuant to article 53 of this title, which judgment, in either case, is for any debt, damages, costs, or other sum of money are liable to be sold on execution to be issued upon such judgment. A transcript of the judgment record of such judgment, certified by the clerk of such court, may be recorded in any county; and from the time of recording such transcript, and not before, the judgment shall become a lien upon all the real estate, not exempt from execution in the county where such transcript of judgment is recorded, owned by such judgment debtor or which such judgment debtor may afterwards acquire in such county, until such lien expires.
The lien of such judgment shall expire six years after the entry of judgment unless,
prior to the expiration of such six-year period, such judgment is revived as provided by law and a transcript of the judgment record of such revived judgment, certified by the clerk of the court in which such revived judgment was entered, is recorded in the same county in which the transcript of the original judgment was recorded, in which event the lien shall continue for six years from the entry of the revived
judgment. A lien may be obtained with respect to a revived judgment in the same manner as an original judgment and the lien of a revived judgment may be continued in the same manner as the lien of an original judgment. The lien of any judgment shall expire if the judgment is satisfied or considered as satisfied as provided in this section. The lien created by recording a notice of lien of a judgment for child support or maintenance or arrears thereof or child support debt pursuant to
CRS 14-10-122, shall be governed by such section. The lien created by recording a transcript of an order for restitution pursuant to
CRS 16-18.5-104 (5) (a), shall be governed by article 18.5 of title 16, CRS.
(2) (a) Except as provided in paragraph (b) of this subsection (2),
execution may issue on any judgment described in subsection (1) of this section to enforce the same at any time within twenty years from the entry
thereof, but not afterwards, unless revived as provided by law, and, after twenty years from the entry of final judgment in any court of this state, the judgment shall be considered as satisfied in full, unless so revived.
(b) (I) With respect to judgments entered in
county courts on or after July 1, 1981, the time limitation within which execution may issue is
six years from the entry thereof, but not afterwards, unless revived as provided by law, and, after six years from the entry of final judgment in any county court of this state, the judgment shall be considered as satisfied in full, unless so revived.
(II) The twenty-year limitation contained in paragraph (a) of this subsection (2) shall not apply to judgments entered for restitution pursuant to article 18.5 of title 16,
CRS. Execution may issue on judgments for restitution at any time until paid in full.
(c) If, after the date that a transcript of judgment is recorded in a county, some portion or all of such county is merged with, annexed to, or otherwise becomes part of some other county or city and county, whether then existing or newly formed, then:
(I) It shall not be necessary to record the transcript of judgment in such other county or city and county in order to continue the lien of the judgment and the priority thereof as to any real estate that the judgment debtor acquired before or acquires after the date of recording of the transcript of judgment if such real estate was in the county in which the transcript of judgment was recorded on or after the date of recording of the transcript of judgment; and
(II) If such judgment is revived as provided by law, timely recording of a transcript of the revived judgment in such other county or city and county is necessary to continue the lien of the original judgment and the priority thereof with respect to any real estate that was in the county in which the transcript of the original judgment was recorded on or after the date of recording the transcript of the original judgment but, at the time of recording of the transcript of the revived judgment, is in such other county or city and county.
(3) The term "real estate" as used in this section includes all interests of the defendant or any person to his use held or claimed by virtue of any deed, bond, covenant, or otherwise for a conveyance or as mortgagor of lands in fee, for life, or for years.
(4) (a) Any person, including a title insurance company as defined by article 11 of title 10,
CRS, who makes representations concerning the existence of any judgment lien on the real property of another shall have the duty to make a bona fide good faith effort, prior to the making of such representations, to determine whether the person against whom the judgment was obtained is the same person as the person who holds an interest in the real property which is the subject of the representation. If a bona fide good faith effort is made and such effort fails to disclose satisfactory information as to whether or not the person against whom the judgment was obtained is the same person as the person who holds an interest in the real property which is the subject of the representation, then, in that event, the person or title insurance company who makes the representation may require the person who holds an interest in the real property which is the subject of the representation to provide satisfactory evidence or information that he is not the same person as the judgment debtor.
(b) Any person, including a title insurance company as defined by article 11 of title 10,
CRS, who makes representations concerning the existence of any judgment lien on the real property of another without making a bona fide good faith effort, prior to the making of such representations, to determine whether the person against whom the judgment was obtained is the same person as the person who holds an interest in the real property which is the subject of the representation is liable to any person damaged by the failure to make such effort in a sum of not less than one hundred dollars nor more than one thousand dollars for his actual and exemplary damages. The prevailing party shall recover the costs of the action together with reasonable attorney fees, as determined by the court. No action pursuant to this paragraph (b) shall be brought more than one year after the date of the representation concerning the existence of the judgment lien.
(c) As used in this subsection (4), "bona fide good faith effort" means honesty in fact in the effort to discover and determine the actual and true identity of the judgment debtor against whom the judgment lien attaches. The effort shall include but need not be limited to an examination of the judgment debtor's social security number, his driver's license, his address, his birth record, and the court record in the action which resulted in the judgment lien, if available. |
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C.R.Civ.P. 54(h) Revival of
Judgments. A judgment may be revived
against any one or more judgment debtors whether they are jointly or severally
liable under the judgment. To revive a judgment a motion shall be filed alleging
the date of the judgment and the amount thereof which remains unsatisfied.
Thereupon the clerk shall issue a notice requiring the judgment debtor to show
cause within ten days after service thereof why the judgment should not be
revived. The notice shall be served on the judgment debtor in conformity with
Rule 4. If the judgment debtor answer, any issue so presented shall be tried and
determined by the court. A revived judgment must be entered within twenty
years after the entry of the judgment which it revives, and may be enforced
and made a lien in the same manner and for like period as an original judgment.
If a judgment is revived before the expiration of any lien created by the
original judgment, the filing of the transcript of the entry of revivor in the
register of actions with the clerk and recorder of the appropriate county before
the expiration of such lien shall continue that lien for the same period from
the entry of the revived judgment as is provided for original judgments. Revived
judgments may themselves be revived in the manner herein provided.
See Mark v. Mark, 697 P.2d 799
(Colo.App. 1984), Santarelli v. Santarelli, 839 P.2d 525 (Colo.App. 1992) |
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C.R.Civ.P. 354(h) Revival of
Judgments. A judgment may be revived against any
one or more judgment debtors whether they are jointly or severally liable under the judgment. To revive a judgment a motion shall be
filed alleging the date of the judgment and the amount thereof which remains unsatisfied. Thereupon the clerk shall issue a notice
requiring the judgment debtor to show cause within ten days after service thereof why the judgment should not be revived. The notice
shall be served on the judgment debtor in conformity with Rule 304. If the judgment debtor answer, any issue so presented shall be tried
and determined by the court. A revived judgment must be entered within twenty years after the entry of the judgment which it revives,
and may be enforced and made a lien in the same manner and for like period as an original judgment.
A judgment entered on or after July 1, 1981 must be revived within six years after the entry of the
judgment which it revives, and may be enforced and made a lien in the same manner and for like period as an original judgment. If a
judgment is revived before the expiration of any lien created by the original judgment, the filing of the transcript of the entry of
revivor in the register of actions with the clerk and recorder of the appropriate county before the expiration of such lien shall continue
that lien for the same period from the entry of the revived judgment as is provided for original judgments. Revived judgments may
themselves be revived in the manner herein provided. |
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NOTICE
TO GOVERNMENT
statutory requirements |
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CRS 24-10-109. Notice required - contents - to whom given -
limitations.
(1) Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a
written notice as provided in this section
within one hundred eighty days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.
(2) The notice shall contain the following:
(a) The name and address of the claimant and the name and address of his attorney, if any;
(b) A concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of;
(c) The name and address of any public employee involved, if known;
(d) A concise statement of the nature and the extent of the injury claimed to have been suffered;
(e) A statement of the amount of monetary damages that is being requested.
(3) If the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity. Such notice shall be effective upon mailing by registered mail or upon personal service.
(4) When the claim is one for death by wrongful act or omission, the notice may be presented by the personal representative, surviving spouse, or next of kin of the deceased.
(5) Any action brought pursuant to this article shall be commenced within the time period provided for that type of action in articles 80 and 81 of title 13,
C.R.S., relating to limitation of actions, or it shall be forever barred; except that, if compliance with the provisions of subsection (6) of this section would otherwise result in the barring of an action, such time period shall be extended by the time period required for compliance with the provisions of subsection (6) of this section.
(6) No action brought pursuant to this article shall be commenced until after the claimant who has filed timely notice pursuant to subsection (1) of this section has received notice from the public entity that the public entity has denied the claim or until after ninety days has passed following the filing of the notice of claim required by this section, whichever occurs first.
Purpose of requirement is to give authorities prompt notice of need to investigate the matter, to allow for immediate abatement of dangerous conditions, to foster prompt settlement of meritorious claims, to make adequate fiscal arrangements to meet any potential
liability as well as to allow a knowledgeable compliance with the statutory requirements for budgeting and tax
levies, and to prepare a defense to the claim. Antonopoulos v. Town of
Telluride, 187 Colo. 392, 532 P.2d 346 (1975); Jefferson County Health
Svcs. Ass'n v.
Feeney, 974 P.2d 1001 (Colo. 1998); Barham v. Scalia, 928 P.2d 1381 (Colo. App. 1996);
Mesa County Valley School Dist. No. 51 v. Kelsey, 8 P.3d 1200 (Colo. 2000);
Gallagher v. Univ. of Northern Colorado, 18 P.3d 837 (Colo. App. 2000).
The effect of a nonclaim statute is to bar substantive claims. Barnhill v. Public
Serv.
Co., 649 P.2d 716 (Colo. App. 1982), aff'd, 690 P.2d 1248 (Colo. 1984).
Notice provision of the governmental immunity article stands as a condition precedent to the commencement of an action against a public entity.
Antonopoulos v. Town of Telluride, 187 Colo. 392, 532 P.2d 346 (1975); Jones v.
Kristensen, 38 Colo. App. 513, 563 P.2d 959 (1977), aff'd, 195 Colo. 122, 575 P.2d 854 (1978);
Fritz v. Regents of Univ. of Colo., 196 Colo. 335, 586 P.2d 23 (1978); Sussman v. University of Colo. Health Sciences
Center, 706 P.2d 443 (Colo. App. 1985); Lloyd v. State Personnel Bd., 710 P.2d 1177 (Colo. App. 1985), rev'd on other grounds, 752 P.2d 559 (Colo. 1988);
Mountain Gravel and Const. v. Cortez, 721 P.2d 698 (Colo. App. 1986); McMahon v. Denver Water
Bd., 780 P.2d 28 (Colo. App. 1989); Brown v. Teitelbaum, 830 P.2d 1081 (Colo. App. 1991); City of Lafayette v. Barrack, 847 P.2d 136 (Colo. 1993).
A plaintiff's failure to meet the 180 day notice requirement is a jurisdictional defect that may be raised by the defendant or the court at any time, but a plaintiff's failure to meet the notice requirement of subsection (3) is not jurisdictional and merely gives rise to an affirmative defense that must be timely raised by the defendant.
Brock v. Nyland, 955 P.2d 1037 (Colo. 1998).
Compliance with the 180 day notice requirement is a jurisdictional prerequisite to suit.
Water Dist. v. Board of Land Comm'rs, 968 P.2d 168 (Colo. App. 1998);
Bird v. Pioneers Hosp., 121 F. Supp.2d 1321 (D. Colo. 2000).
Section does not apply to contract claims. State Personnel Bd. v.
Lloyd, 752 P.2d 559 (Colo. 1988); Barrack v. City of Lafayette, 829 P.2d 424 (Colo. App. 1991).
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CRS 30-25-110. Claims presented to board, when - how
paid.
(1) Any claim or demand held by any person against a county shall be presented for audit and allowance to the board of county commissioners of the proper county, in due form of law, before an action in any court shall be maintainable thereon, and all claims, when allowed, shall be paid by a county warrant or order, drawn by said board on the county treasury, upon the proper fund in the treasury, for the amount of such claim. It is the duty of the board of county commissioners to ensure that all warrants and orders issued on or after April 2, 1998, are drawn upon the proper fund in the treasury and that there are sufficient moneys in said fund. Such warrant or order shall be signed by the chairperson of the board, permanent or temporary, and attested by the county clerk and recorder, and said warrant or order shall specify the amount and value of the claim or service for which it is issued and be numbered and dated in the order in which it is issued.
The purpose of CRS 30-25-110 is to give the county an opportunity to pay a claim before being required to defend against it in court.
Tisdel v. Board of County Comm'rs, 621 P.2d 1357 (Colo. 1980).
The statute of limitations is tolled between the time a claim is presented and the time it is acted upon by the county where there is no suggestion that contractor failed to prosecute its claims in good faith and with diligence.
CAMAS Colorado, Inc. v. Board of County Comm'rs, 36 P.3d 135 (Colo. App. 2001).
CRS 30-25-112. Appeal on disallowance of
claim.
When any claim of any person against a county is disallowed, in whole or in part, by the board of county commissioners, such person may appeal from the decision of such board to the district court for the same county by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision and executing a bond to such county, with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal and the payment of all costs that are adjudged against the appellant.
There is no provision for an appeal from the district court, and the court determined that neither appeal nor writ of error would lie from the judgment of the district court.
Board of Comm'rs v. Pinnacle Gold Mining Co., 36 Colo. 492, 85 P. 1005 (1906);
Pilgrim Consol. Mining Co. v. Board of Comm'rs, 20 Colo. App. 311, 78 617 (1904).
This section and section 30-25-113 are confined to appeals from orders disallowing claims against a county.
Golden Canal Co. v. Bright, 8 Colo. 144, 6 P. 142 (1884).
One whose claim against a county has been presented to and disallowed by the board of county commissioners has the right to elect to appeal from the decision of the board, or bring an independent action.
Board of Comm'rs v. Brown, 2 Colo. App. 473, 31 P. 525 (1892); Board of Comm'rs v.
Locke, 2 Colo. App. 508, 31 P. 351 (1892).
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DEBT NOT
EXTINGUISHED
ONLY RIGHT TO ENFORCE |
Running of statute does not extinguish debt. While the statute of limitations may cause the remedy on a debt to be lost, it does not extinguish the
debt. And, the statute of limitations is a personal bar which may be raised or waived by the defendant.
Estate of Ramsey v. State, Dep't of Revenue, 42 Colo. App. 163, 591 P.2d 591 (1979). The statute of limitations is a personal defense of which a defendant may or may not avail himself at his
pleasure; the defense may be waived, and where not pleaded in the first instance, it is presumed to have been waived.
Williams v. Carr, 4 Colo. App. 368, 36 P. 646 (1894); Owers v. Olathe Silver Mining
Co., 6 Colo. App. 1, 39 P. 980 (1895); Foot v. Burr, 41 Colo. 192, 92 P. 236
(1907); Chivington v. Colorado Springs Co., 9 Colo. 597, 14 P. 212 (1886);
Atchinson T. & S. F. R. R. v. Tanner, 19 Colo. 559, 36 P. 541 (1894); Brown v. Bell, 46 Colo. 163, 103 P. 380 (1909).
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CAUSE OF
ACTION - ACCRUAL |
CRS 13-80-108. When a cause of action
accrues.
(1) Except as provided in subsection (12) of this section, a cause of action for injury to person, property, reputation, possession, relationship, or status shall be considered to accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.
(2) A cause of action for wrongful death shall be considered to accrue on the date of death.
(3) A cause of action for fraud, misrepresentation, concealment, or deceit shall be considered to accrue on the date such fraud, misrepresentation, concealment, or deceit is discovered or should have been discovered by the exercise of reasonable diligence.
(4) A cause of action for debt, obligation, money owed, or performance shall be considered to accrue on the date such debt, obligation, money owed, or performance becomes due.
(5) A cause of action for balance due on an open account for goods or services shall accrue at the time of the last item of goods or services proved in such account.
(6) A cause of action for breach of any express or implied contract, agreement, warranty, or trust shall be considered to accrue on the date the breach is discovered or should have been discovered by the exercise of reasonable diligence.
(7) A cause of action for wrongful possession of personal property, goods, or chattels shall accrue at the time the wrongful possession is discovered or should have been discovered by the exercise of reasonable diligence.
(8) A cause of action for losses or damages not otherwise enumerated in this article shall be deemed to accrue when the injury, loss, damage, or conduct giving rise to the cause of action is discovered or should have been discovered by the exercise of reasonable diligence.
(9) A cause of action for penalties shall be deemed to accrue when the determination of overpayment or delinquency for which such penalties are assessed is no longer subject to appeal.
(10) A cause of action for recovery of erroneous or excessive refunds of any tax administered under
CRS 39-21-102, shall accrue on the date the department of revenue issues said refund.
(11) A cause of action for a penalty for commission of a class A or a class B traffic infraction, as defined in
CRS 42-4-1701, shall be deemed to accrue on the date the traffic infraction was committed.
(12) A cause of action for bodily injury or property damage arising out of the use or operation of a motor vehicle accrues on the date that both the existence of the injury or damage and the cause of the injury or damage are known or should have been known by the exercise of reasonable diligence.
(13) A cause of action by the public employees' retirement association against an employer for unpaid contributions shall accrue on the date the nonpayment of contributions is discovered or should have been discovered by the exercise of reasonable diligence. This subsection (13) shall apply to causes of action as provided in
CRS 24-51-402 (2).
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TOLLING
OF STATUTE OF LIMITATIONS |
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PARTIAL
PAYMENT AND PROMISES TO PAY |
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A voluntary payment by the
defendant who owes the principal debt, or is bound for it, will stop the running
of the statute. National State Bank v. Rowland, 1 Colo. App. 468, 29 P.
465 (1892); Adams v. Tucker, 6 Colo. App. 393, 40 P. 783 (1895); Dodger v.
East, 100 Colo. 36, 64 P.2d 1270 (1937).
Since it amounts to acknowledgment
from which new promise is implied. The principle upon which a part payment by a
debtor will prevent his availing himself of the bar of the statute is that such
a payment amounts to an acknowledgment of the debt, and from an absolute
acknowledgment the law implies a new promise founded upon the old consideration.
Sears v. Hicklin, 3 Colo. App. 331, 33 P. 137 (1893). Payment must be
voluntary and by the debtor to the creditor. Id. For payment of interest
being sufficient acknowledgment of debt, see Purdy v. Deprez, 39 Colo.
68, 88 P. 972 (1906).
The authorities generally declare
that the new promise implied by a part payment is a promise to pay a subsisting
debt then due; not a debt which might thereafter become due under the terms of
the contract. Buckingham v. Orr, 6 Colo. 587 (1883).
CRS 13-80-113. New promise - effect of payment
No acknowledgment or promise shall be
evidence of a new or continuing contract sufficient to take a case out of the
operation of the statute of limitations, unless it is in writing signed by the
party to be charged; but this section shall not alter the effect of a payment of
principal or interest.
CRS 13-80-113 does not interfere
with general rule as to effect of payment. This section clearly evidences the
legislative intent not to interfere with the general rule that the payment of
interest, before the running of the statute, removes the demand therefrom, and
that proof of payment may be by parol evidence. Lieske v. Swan, 93
Colo. 396, 26 P.2d 807 (1933).
The promise to pay must be
express. To remove the bar of the statute of limitations so that a debt
otherwise barred may be recovered upon a new promise, there must be an express
promise to pay it. Thomas v. Carey, 26 Colo. 485, 58 P. 1093
(1899).
Although, after a new promise,
the action can be maintained upon the original consideration, recovery can
only be had upon the new contract to pay, hence, it must have the necessary
elements of a contract. It must be a full recognition of the indebtedness
evidenced by the note, and a promise to pay that particular debt. Sears v.
Hicklin, 3 Colo. App. 331, 33 P. 137 (1893). Alleged promise to pay
a debt is not evidence of a new or continuing contract sufficient to bar
application of the statute of limitations unless it is in writing. An oral
acknowledgment of an existing debt and forbearance to bring suit alone are
insufficient to invoke equitable estoppel. Equitable estoppel requires
evidence that the defendant's actions adversely affected filing the
plaintiff's claim. Samples-Ehrlich v. Simon, 876 P.2d 108 (Colo. App.
1994).
Where the debtor was under no
legal obligation whatever to pay the debt, whatever promise he made was
entirely voluntary; and the authorities universally recognize his right to
impose any condition which he might deem proper. Richardson v. Bricker,
7 Colo. 58, 1 P. 433, 49 Am. R. 344 (1883).
An offer in compromise is not an
admission of the debt so as to remove the bar of the statute. Van Diest v.
Towle, 116 Colo. 204, 179 P.2d 984 (1947).
CRS 13-80-114. Promise by one of parties in joint interest
No joint debtor, obligor, or his
personal representative or successor shall lose the benefit of the provisions of
this article so as to be chargeable by reason only of any acknowledgment,
promise, or payment made by any other of them.
Payments of one indorser of a
promissory note operate only to avoid the bar of the statute of limitations as
to himself not as to a joint maker. Coulter v. Bank of Clear Creek County,
18 Colo. App. 444, 72 P. 602 (1903); Torbit v. Heath, 11 Colo. App.
492, 53 P. 615 (1898) (decided under former § 13-80-124).
CRS 13-80-115. Endorsement by payee - effect
Nothing in this article shall alter,
take away, or lessen the effect of a payment of any principal or interest made
by any person; but no endorsement or memorandum of any such payment, written or
made upon any promissory note, bill of exchange, or other writing, by or on
behalf of the party to whom such payment is made, or purports to be made, shall
be deemed sufficient proof of the payment so as to take the case out of
operation of the provisions of this article.
It was not intended to lessen
the effect of a payment, but to require proof that a payment was in fact made,
whenever it shall be relied upon to revive an action otherwise barred. Without
such a requirement there would practically be no bar to an action upon a
promissory note, for the simple indorsement of a credit without payment in
fact, would always operate to revive the cause of action. Under this section,
however, the plaintiff must not only state a subsisting cause of action, but
he must prove such a cause. Meyer v. Binkleman, 5 Colo. 262 (1880);
MacGinnis v. Pickett, 109 Colo. 169, 123 P.2d 410 (1942).
The mere indorsement of a
partial payment upon a note will not in and of itself toll the running of the
statute of limitations. MacGinnis v. Pickett, 109 Colo. 169, 123 P.2d 410
(1942); Christensen v. Hugh M. Woods Mercantile Co., 104 Colo. 403, 91
P.2d 999 (1934). The indorsement on the promissory note of a debtor to a
banking corporation, without the assent of the maker, of a balance to the
maker's credit standing on the books of the corporation, does not constitute a
voluntary payment on the note, and is not effective to stop the running of the
statute of limitations as to the note. National State Bank v. Rowland,
1 Colo. App. 468, 29 P. 465 (1892); Indorsement of partial payment on note is
insufficient. "Generally speaking, the rule is well established that the
mere indorsement of a partial payment upon a note will not in and of itself
toll the running of the statute of limitations." MacGinnis v. Pickett,
109 Colo. 169, 123 P.2d 410 (1942).
There must be payment and clear
acknowledgment of additional debt. In order to avert the bar of the statute of
limitations a payment of a portion of an admitted debt must be made and
accepted by the creditor and accompanied by circumstances amounting to an
unqualified acknowledgment of more being due from which a promise must be
inferred to pay the remainder. Ferris v. Curtis, 53 Colo. 340, 127 P.
236 (1912); Holmquist v. Gilbert, 41 Colo. 113, 92 P. 232 (1907).
Burden of proof is upon
plaintiff. In an action on a promissory note the burden of proving part
payment so as to remove the bar of the statute of limitations is upon the
plaintiff. Manby v. Sweet Inv. Co., 78 Colo. 371, 242 P. 51 (1925);
MacGinnis v. Pickett, 109 Colo. 169, 123 P.2d 410 (1942)
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CONCEALMENT
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CRS 13-80-118. Absence or concealment of a party subject to
suit
If, when a cause of action accrues
against a person, the person is out of this state and not subject to service of
process or has concealed himself, the period limited for the commencement of the
action by any statute of limitations shall not begin to run until he comes into
this state or while he is so concealed. If, after the cause of action accrues,
he departs from this state and is not subject to service of process or conceals
himself, the time of his absence while not subject to service of process or the
time of his concealment while not subject to service of process shall not be
computed as a part of the period within which the action must be brought.
A suit on a foreign judgment based upon a cause of action accruing more
than six years prior to the filing of an action thereon in Colorado, and more
than three months after the entry thereof, would be barred by the statute of
limitations, except for the provisions of CRS 13-80-118, which tolled the
running of the statute until defendant came into the state of Colorado. Blackmon
v. Klein, 144 Colo. 461, 357 P.2d 91 (1960).
The statute of limitations having been pleaded in bar and prima facie
appearing to be a bar from the note set out in the complaint, the burden
shifted to plaintiff to establish that the statute had been tolled. Smith
v. Kent Oil Co., 128 Colo. 80, 261 P.2d 149 (1953). See Norton v.
Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961).
This section is limited in its provisions to causes of action in
personam,
and is wholly inapplicable to actions in rem or actions quasi in rem. Fastenau
v. Asher, 124 Colo. 161, 235 P.2d 587 (1951).
CRS 13-80-118 specifically fixes time when period of limitation begins to
run and is clearly a statute of limitations. Jones v. O'Connell, 87
Colo. 103, 285 P. 762 (1930).
CRS 13-80-118 applies to absence from the state of Colorado, not to absence
from another state or from a territory or foreign country. If the section were
intended to cover the latter situation, it would have said "out of the
state, territory, or foreign country where the cause of action accrued",
and "depart from such state, territory, or foreign country". Simon
v. Wilnes, 97 Colo. 78, 47 P.2d 406 (1935)(concurring opinion).
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CRS 13-80-111. Commencement of new action upon involuntary
dismissal
(1) If an action is commenced within the period allowed by this article and is terminated because of lack of jurisdiction or improper venue, the plaintiff or, if he dies and the cause of action survives, the personal representative may commence a new action upon the same cause of action within ninety days after the termination of the original action or within the period otherwise allowed by this article, whichever is later, and the defendant may interpose any defense, counterclaim, or setoff which might have been interposed in the original action.
(2) This section shall be applicable to all actions which are first commenced in a federal court as well as those first commenced in the courts of Colorado or of any other state. |
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ATTORNEY
REPRESENTATION
AND DECLINED MATTERS
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I
welcome representation inquiries however please refer to
first
consultation - the purpose is not to provide free legal advice to the
general public. Unless seeking to retain counsel, please do not email or
call. I do not provide legal opinions, answers or information in response
to questions submitted from non-clients. Given the scope of internet
accessibility I can not be the free "Colorado answer man" and will
politely decline.
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ALTERNATIVES
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FIND
A LAWYER |
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if
you are seeking the below
please refer to above links for helpful information
sole practitioner
attorney does not accept these matters |
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a. a pro-bono (free) lawyer
b. an attorney who may take
lower fees - economic hardship
c. an attorney who may take installment payments |
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MID-LITIGATION
REPRESENTATION
alternatives and find a
lawyer links provided as a courtesy
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Attorney
Policies
Litigant Pro Se - Attempt to
Prepare or Defend Own Collection Lawsuit |
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1.
Adequate Time. If sufficient time exists to adequately prepare your
collection lawsuit and if prospective client approves this
attorney's fees and costs structure, attorney will
likely accept representation. This shall
not constitute an offer of representation; attorney and
prospective client retain discretion through
first
consultation. |
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2.
Insufficient Time. If you've waited until the eleventh hour and there is not
sufficient time to adequately prepare your collection lawsuit before a
limitation deadline or contested court hearing, please do not call. I decline. |
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3.
Limited Assistance.
Please do not call requesting instruction, directions, legal theory,
forms completion or limited document drafting, partial representation, or an explanation of
applicable law to assist you in preparation of your own
collection lawsuit. I decline. |
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Attorney
Policies
Representation
by Previous Attorney
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1.
Current Attorney.
Until an order has entered withdrawing representation by an
attorney, an ethical rule violation exists if counsel
knowingly speaks to another attorney's client without current
attorney's consent. This ethical rule governs all
attorneys. Please do not call until after
you have terminated representation by a former attorney.
After
other counsel's withdrawal it may take significant effort for the the new attorney to "catch up." Please be aware fees and costs will be associated with procuring
relevant documentation, the court file and coming up to speed in the case.
Attorney would be less likely to accept a new
case on a contingency fee basis in the event of prior
representation. |
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2.
Adequate Time.
If prospective client terminates employment of the
former attorney, if sufficient time exists to adequately prepare your
collection lawsuit and if prospective client approves this
attorney's fees and costs structure, attorney will
likely accept representation. This shall
not constitute an offer of representation; attorney and
prospective client retain discretion through
first
consultation. |
3.
Insufficient Time. If you've waited until the eleventh hour and there is not
sufficient time to adequately prepare your collection lawsuit before a
limitation deadline or contested court hearing, please do not call. I decline. |
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4.
Second Opinion.
I will not arm chair quarterback another
attorney's case preparation, trial tactics or theory of
the case. Please do not call for a second
opinion or an opinion regarding the competence
of preparation in your current collection
lawsuit. I decline. |
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POST
JUDGMENT MATTERS
Attorney
Policies
alternatives and find a
lawyer links provided as a courtesy
former clients are naturally welcome to call anytime
regarding any legal matter |
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1.
Post Judgment Enforcement.
Prospective client has been awarded a judgment, but it seems like
a worthless piece of paper - you've gotten bogged down and are
unable to convert the court order to cash.
I will review post judgment requests
to enforce a lawful judgment with the goal of acceptance. Depending
on
enforcement issues apparent at the time retained, attorney reserves the right to quote fees
either upon a contingency basis or hourly basis. This shall
not constitute an offer of representation; attorney and
prospective client retain discretion through
first
consultation. |
2.
Appeal.
Prospective client has lost the case through default judgment,
summary judgment or
trial on the merits, had damages awarded against prospective client or a set-off
awarded. I do not
accept debt collection or other civil appeals unless I provided
representation during the underlying case in chief at the trial
court level and am familiar with the facts,
testimony and exhibits received into evidence
and meritorious issues for appeal. That's been my policy for years. Please do not
call or inquire regarding appellate matters if you are not a
former client. |
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CASES
OUTSIDE EL PASO COUNTY
ECONOMIC CONSIDERATIONS
Geographic Distance - Travel
Time, Mileage and Expense
Colorado is a big
state. Ease of internet access, email and toll free phone doesn't change
that fact. |
Attorney
is very willing to travel outside the Colorado Springs area to present a
case or
defend against counterclaim,
bu | | | |
