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Summer 2011

Summer 2011

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•  Highlights of the 29th Annual Real Estate Symposium

Use of “Disposable” LLCs Creates Possible New Avenue to Pierce Corporate Veil

2011 ALTA Amended Endorsements and New Endorsements

Changes to the Mortgage Loan Originator Licensing and Mortgage Company Registration Act

Real Estate Law Section Welcomes New Council Members

 

Committee Reports

      •     Legislative Policy Committee          
      •     Title Standards Committee
      •     Trusts and Estates Section
      •     Real Estate Commission Forms Committee
      •     Interprofessional Committee
      •     Colorado Housing Council
      •     Membership Committee
      •     Community Service Committee
      •     Ethics Committee
      •     Courts & Civil Rules Committee
      •     Additional Information

Legal Writing Opportunities

2011-2012 Real Estate Section Council Contact Names and Numbers

Visit the Real Estate Section Website: www.cobar.org/RealEstate

 

HIGHLIGHTS OF THE 29TH ANNUAL REAL ESTATE SYMPOSIUM

By Catherine A. Hance, Davis, Graham & Stubbs, LLP

The 2011 Real Estate Symposium, to be held July 14 through 16, 2011 at the Vail Marriott Mountain Resort in Vail, Colorado will include programs on a variety of subjects, including the impact of EPA greenhouse gases regulations on commercial buildings, eminent domain trends, rooftop leasing, loan guarantee issues, lien priority issues involving  HOA liens and first mortgages, and a legislative update from the recently completed 2011 Colorado General Assembly Session. 

A highlight of the Symposium will be a panel presentation on Advanced Issues in Distressed Real Estate, moderated by Robert L. Brown  of Sherman & Howard, LLC, and featuring Mark L. Fulford, also from Sherman & Howard, LLC, Richard H. Krohn of Dufford, Waldeck, Milburn & Krohn, LLP, Andrew S. Miller of the Miller Frishman Group, M. Lou Raders from Kutak Rock LLP, Elizabeth Marcus of Castle & Stawiarski, LLC, and Koger Propst from First Bank.  The panel presentation will include a discussion of current real estate trends, as well as commercial and residential loan workout considerations, foreclosure issues, bankruptcy issues, and deeds in lieu of foreclosure. 

The panel program will include a discussion on the increased use of receiverships, presented by M. Lou Raders.    Because of the origination, servicing and liquidation guidelines applicable to collateralized mortgage back securities (“CMBS”) to maintain the tax benefits of Real Estate Mortgage Investment Conduit (“REMIC”) status, workout options for troubled CMBS loans are limited.  CMBS loans are pooled and the entire pool must meet certain REMIC tests to avoid reclassification of a REMIC trust as a C corporation, which would result in taxation at both the corporate and individual investor levels.  As a result, loan modifications are prohibited unless they comply with strict guidelines to prevent the loan from being “reissued” or otherwise restructured to create a fundamentally new loan.   Special servicers have significantly increased their use of receiverships for CMBS properties to provide more of an ability to structure loan workouts.   Use of a receiver allows for property stabilization as well as an opportunity for the lender to evaluate whether it can take the property into its REO portfolio, as well as, in a construction situation, to maximize the value of the collateral and protection of the asset.   Receiverships also present potential benefits to borrowers and guarantors, by reducing the potential to trigger non-recourse loan carve-out events, such as wasting of the property.   Receiverships also provide benefits for REMIC bondholders, by having the receiver operate the property for a period of time, delaying foreclosure to maximize the return on the sale of the property, including the potential for a sale involving assumption of the existing loan and return thereof to performing status. 

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USE OF “DISPOSABLE” LLCs MAY CREATE NEW AVENUE
TO PIERCE CORPORATE VEIL

By Michael J. Repucci, Johnson & Repucci LLP

In 2009, the Colorado Court of Appeals ruled in Sheffield Services Co. v. Trowbridge, 211 P.3d 714 (Colo.App.Div. 1 2009) that the common law theory of corporate veil piercing as applied to limited liability companies should be extended to allow claims for personal liability against the manager of an LLC in those instances where it is necessary to promote justice, protect against fraud, or preserve legitimate creditors’ claims.  In the underlying action, the trial court determined that the plain language of C.R.S. §7-80-107(1) prohibited it from applying the common law doctrine of piercing the corporate veil to impose personal liability on the manager of the LLC, because, although he was a manager, he was not a member of the LLC.  Id. at 719.  The Colorado Court of Appeals disagreed and ruled that absent an express statutory restriction, C.R.S. §7-80-107(1) did not prohibit a court from applying the equitable common law doctrine of piercing the corporate veil to hold an LLC manager personally liable for the LLC’s improper actions. Id. at 720. 

The Sheffield case provides a stark reminder that the limited liability protections afforded LLCs by Colorado law will not be observed in those instances where injustice, fraud or avoidance of legitimate creditors’ claims is present.  In Sheffield, Trowbridge and Mason co-managed Colfax Industrial, LLC (“Colfax”) and Villas Ventures, LLC (“Villas”) (collectively, the “LLCs”). Each LLC owned residential lots in a subdivision in the City and County of Broomfield that it intended to develop.  In April 1998, Colfax entered into a subdivision agreement with Broomfield. The agreement required the LLCs to complete specific landscaping and infrastructure improvements to receive necessary building permits. When the LLCs did not complete this work, Broomfield declared a breach of the agreement.

Later, on behalf of each LLC, Trowbridge negotiated a separate purchase and sale contract with Sheffield to sell it the lots owned by the LLCs. Both contracts provided that each LLC remained responsible for completing the subdivision agreement's requirements.  Prior to closing on either contract, Sheffield was aware that the LLCs had not completed the improvements. Nevertheless, Sheffield closed on the contracts.  After the Villas closing but Before the Colfax closing, Trowbridge and Mason received a letter from Broomfield explaining that it would withhold building permits if the LLCs failed to comply with the subdivision agreement.  Trowbridge and Mason did not disclose to Sheffield, prior to the Colfax closing, either the contents of the letter or the LLCs’ continuing noncompliance with the subdivision agreement.

After the Colfax closing, Sheffield learned of Broomfield's letter. To mitigate its losses, Sheffield assumed the LLCs' obligations under the subdivision agreement. Sheffield then filed his action against the LLCs, Trowbridge, and Mason, asserting four claims for relief: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) negligent misrepresentation/nondisclosure, and (4) wrongful attempt to deplete the LLCs’ assets.

The trial court entered judgment against the LLCs jointly and severally on Sheffield's breach of contract and breach of implied covenant of good faith and fair dealing claims (collectively breach of contract claims), and dismissed all remaining claims, including the claims for personal liability against Trowbridge as manager of the LLCs.

The Sheffield court disagreed based on the findings of the trial court which found, with record support, that (1) the complicated, interrelated and commingled financial circumstances of Trowbridge and his various business entities were intended to frustrate the entities’ creditors; (2) Trowbridge’s overall conduct resulted in a clear financial benefit to him, which was not properly documented because of his elaborate scheme of concealment; and (3) Trowbridge engaged in various transactions and complicit conduct that disregarded the separate LLC entities, intending to keep the “ambulance chasers” from identifying and reaching the LLCs’ members’ assets at the time of liquidation and provide him and one LLC member “plausible deniability” to insulate preferential distributions to another member.  Id. at 722.  Based upon these findings, the Sheffield court ruled that “[b]ecause allowing an LLC manager to hide behind the LLC’s cloak of limited liability would promote injustice, protect fraud, or defeat legitimate creditors’ claims,” then “the equitable common law doctrine of piercing the corporate veil may be applied to hold an LLC manager personally liable for the LLC’s improper actions.” Ibid.
 
Since Colorado has expanded the reach of common law veil piercing to include not only members but managers as well, real estate practitioners should be further cautioned by a recent California Court of Appeals decision extending the common law doctrine of veil piercing to those situations where so-called “disposable” LLCs are used for specific projects or purposes.  In Asphalt Professionals, Inc. v. Bock, 2011 WL 1124401 (Cal.App. 2 Dist., Unpublished, Mar. 29, 2011), the California Court of Appeals considered whether a defendant’s business practice of setting up, using, then disbanding LLCs might actually be an alter ego “conduit for a single venture,” Zoran Corp. v. Chen, 185 Cal.App.4th 799, 811 (Cal.App. 2010); Pan Pacific Sash & Door Co. v. Greendale Park, Inc., 166 Cal.App.2d 652, 658 (Cal.App. 1958), permitting application of the common law doctrine of corporate veil piercing in order to hold the defendant LLC officer personally liable for the debts of the LLC.  Since use of single purpose entities is pervasive in Colorado and elsewhere, practitioners should be aware that this business practice may actually create a new avenue to successfully pierce the corporate veil of an LLC.  The full opinion in the Asphalt Professionals, Inc. case can be found at http://goo.gl/ILoKc.

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2011 ALTA AMENDED ENDORSEMENTS AND NEW ENDORSEMENTS

By Catherine A. Hance, Davis, Graham & Stubbs, LLP

The ALTA® Board approved the revision of 12 existing endorsements, adopted 4 new endorsements, and decertified several policy forms in February 2011.     More information, and copies of the modified and new endorsement forms, can be found on the ALTA website at the following location:  http://www.alta.org/forms/index.cfm.

The modifications include changes to ALTA Endorsement Forms 9-06, 9.1-06, 9.3-06, 9.4-06 and 9.5-06, which insure against certain restriction violations, encroachments, and specified damage to stated improvements because of surface use for mineral development, which were revised to clarify the exceptions from and scope of coverage in response to the interpretation of ALTA Endorsement 9 in the case of Nationwide Life Insurance Company v. Commonwealth Land Title Insurance Company, 579 F.3d 304, currentlyon appeal.    Modifications were also made to ALTA Endorsement Forms 13-06 and 13.1-06, which provide coverage with respect to leasehold property interests, which revisions included clarification with respect to the coverage of costs of securing a replacement leasehold estate may be covered in the event of eviction of the tenant.  Lastly, future advance ALTA Endorsement Forms 14-06, 14.1-06, 14.2-06 and 14.3-06 were modified to add the following sentence in each of the endorsements: “The Indebtedness includes Advances,”  to provide consistency among all ALTA 14 series endorsements and with the ALTA Loan Policy in recognizing that Indebtedness will include specified future advances of loan funds and that the Amount of Insurance is not synonymous with the Amount of the Indebtedness.

The ALTA Board adopted new ALTA Endorsement Form 31-06, regarding severable improvements.  The new endorsement provides that if a defect insured against by the policy results in loss, then the calculation of loss will include the diminution in value of the insured’s interest in the severable improvements because of the defect and specified costs of removal or relocation and transportation because of the defect.   The endorsement and the policy do not insure against loss relating to ownership of, or defects, liens or encumbrances on the title to, the severable improvements and does not constitute personal property title insurance.   Additional new endorsement forms also include Forms 32-06, 32.1-06, and 33-06, related to lien priority for construction loans and date-down of construction loan policies.  The ALTA Board approved the adoption of the new forms and to decertify the ALTA Construction Loan Policy and Construction Loan Policy Endorsements A, B, D, and D.

The ALTA Master Residential Loan Policy and Residential Loan Certificate were decertified by the Board because of the lack of use and demand for these forms and because the Master Loan Policy incorporates an ALTA Policy that has been decertified.

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CHANGES TO THE MORTGAGE LOAN ORIGINATOR LICENSING AND MORTGAGE COMPANY REGISTRATION ACT

By Daniel A. Sweetser, The Sweetser Law Firm PC

The Mortgage Loan Originator Licensing and Mortgage Company Registration Act was enacted in 2006 at Section 12-61-901, et seq., C.R.S.  Amendments to the Act were promulgated as part of Colorado’s 2011 legislative session, which amendments affect, primarily, the ability of governmental agencies and government approved public or private non-profit organizations participating in public housing, community housing, HUD approved housing counseling, and self help housing construction to operate exempt from the Act’s licensing and other requirements.  An exemption previously in place for individuals providing residential carry back financing upon the sale of that individual’s residence was expanded to provide an exemption for any person, estate or trust providing financing for the sale of no more than three residential properties during any twelve month period, so long as the residential property sold is owned by the person, estate or trust providing the financing and the property, itself, secures the loan.

The full texts of the 2011 legislative changes to the Act can be viewed at:

http://www.leg.state.co.us/CLICS/CLICS2011A/csl.nsf/fsbillcont3/E5FBAFB4B4B0AAF88725783E00677E4B?Open&file=206_enr.pdf

and

http://www.leg.state.co.us/CLICS/CLICS2011A/csl.nsf/fsbillcont3/B13E9950FBC659CB872578080080E2E2?Open&file=1022_enr.pdf

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REAL ESTATE LAW SECTION WELCOMES NEW COUNCIL MEMBERS

By Daniel A. Sweetser, The Sweetser Law Firm PC

The Colorado Bar Association’s Real Estate Law Section Council has added four new members and realigned two others to set the full membership slate for the Council.  RESC’s new members are:

Cynthia Hodge Shearer

Cindy has been active in the Colorado and national real estate legal world for more than 35 years.  After starting as a paralegal with Carpenter & Klatskin in 1975 Cindy went on to obtain her law degree and establish a very distinguished real estate resume through an initial stint with the Colorado Attorney General’s office; on to private practice; sixteen years as senior corporate counsel and VP with US Bancorp and its predecessors Bank Western Federal Savings Bank and Colorado National Bank; and most recently as Real Estate Corporate Counsel with M.D.C. Holdings since 2002.  Cindy has extensive experience in all aspects of commercial and residential development and financing.

Nicole R. Nies

Nicole is a partner with Rothgerber Johnson & Lyons, LLP, where she has practiced since graduating from the University of Kansas School of Law in 2002.  In her still young career Nicole has been able to work with not only owners and developers but also institutional lenders in countless purchase and sale and development transactions, including complex mezzanine, construction and term loan financing.  Commercial leasing, complex loan work outs, affordable housing, conservation easements, and real estate covenant matters are also areas in which Nicole practices regularly and has garnered extensive experience.

Erik K. Foster

Erik is the co-chair of Moye White, LLP’s real estate group.  He is one of only a handful of LEED AP certified attorneys and has focused his 25 year practice on transactional real estate matters representing title insurance companies, custom home builders, owners, specialty real estate investors, tenants and non-profit affordable housing providers in a host or real property matters.  Erik is also an active participant on Moye White’s litigation teams when construction, financing, leasing and other real property issues arise.

Jeffrey R. Bergstrom

Jeff is the newest special counsel to Grimshaw & Harring, P. C.  He supports his clients with not only his JD experience, but also MBA and LLM degrees.  For more that 20 years Jeff has assisted his broad spectrum of clients with a wide variety of legal needs including business formation, succession and reorganization.   Jeff provides invaluable support in business, real estate and tax matters to his banking/private lender, construction contractor, retail, insurance, property owner, HOA and charitable organization clientele.

Each of the Council’s new members will serve a three year term.

Additionally, Peter Griffiths, Vice President and legal Counsel for Land Title Guaranty Company, will stay on the Council as its Colorado Bar Association Board of Governor’s representative to for another 2 years and Chris Payne, partner with Ballard Spahr, LLC, takes over for a 1 year stint as RESC secretary, the beginning of his 3 year officer track on the Council.

Congratulations to all of the new and continuing Real Estate Section Council members and thank you for your volunteer work on the Council.

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COMMITTEE REPORTS

Legislative Policy Committee

Each legislative session of the Colorado General Assembly, members of the Real Estate Section Council review, and in some cases recommend sponsoring, proposing changes to, supporting or opposing proposed legislation affecting real property.  Any such actions by the Real Estate Section Council (“RESC”) require the approval of the Legislative Policy Committee of the Colorado Bar Association (“CBA”) and, in some instances, of either the Board of Governors of the CBA or the Executive Council of the CBA.  For more information on the policies and procedures of the Legislative Policy Committee visit the CBA website: http://www.cobar.org/index.cfm/ID/456/dpadm/Department-of-Legislative-Relations/

James G. Benjamin, Benjamin, Bain & Howard, LLC (jgbenjamin@bbhlegal.com), currently serves as the Real Estate Section Liaison to the Legislative Policy Committee.

 

Title Standards Committee

The Title Standards Committee of the Real Estate Law Section of the CBA is appointed by the RESC and the RESC is represented by a liaison to the Committee.  “The charge of the committee is to consider current title problems and draft and propose title standards or legislation for their solution.”  Real Estate Title Standards (revised and effective July 1, 2008).  The resulting Colorado Real Estate Title Standards address, “the impact of certain specified title issues on the marketability of title” and provide instructions, “as to the duties of an examining attorney and scope of a title search.”  Id.  The 2010 Colorado Real Estate Title Standards are available on the CBA website at http://www.cobar.org/repository/Real%20Estate/2010_TitleStandards.pdf.  Julia Waggener, Waggener & Foster, LLP (jwaggener@waggenerfoster.com), currently serves as the Real Estate Law Section Liaison to the Title Standards Committee. 

The Committee is currently working on two draft title standards.  One proposed standard considers whether a corporate seal (or facsimile seal) is required in connection with the execution by a corporation of a document affecting title to real property.  The second proposed standard will address the operation of C.R.S. §38-31-101(6)(c) and the status of title held by three or more joint tenants, in unequal shares, following the death of one of the joint tenants.

The Committee recently drafted proposed legislation to facilitate transactions involving interests in real property held in the name of a trustee.   The proposed statute allows for the use of a document, similar to a statement of authority, to evidence the power of a successor trustee to convey or encumber real property held in the name of a prior trustee.   Under C.R.S. §38-30-172, a statement of authority may be used to show the authority of a successor trustee to affect title to real property held in the name of a trust.   It is less clear whether a statement of authority is effective to show the authority of a successor trustee when record title is in the name of a prior trustee.  The proposed statute is intended to address this question.  A draft of the statute is currently under review by the Real Estate Law Section and the Trusts & Estates Section.

Suggestions for title problems for consideration by the Committee should be sent to Diane Davies (ddavies@faegre.com).

[Thanks to Diane B. Davies, Faegre & Benson, LLP, for this update.] 

 

Trusts and Estates Section.

The Trusts and Estates Section, through its various standing committees, continues to work on a number of different projects of possible interest to real estate attorneys. David W. Kirch, David W. Kirch, P.C. (dkirch@dwkpc.net), currently serves as the Trusts and Estates Section Liaison to the Real Estate Law Section Council. 

 

Real Estate Commission Forms Committee.

The RESC is represented by a liaison to the Real Estate Commission Forms Committee which recommends changes to the forms adopted by the Real Estate Commission in response to new laws, changes in practice and consideration of public protection.  Input of the Council is frequently sought for revisions to forms before they are finalized and approved by the Real Estate Commission.  Kent Jay Levine, Kent Jay Levine, P.C. (Kent@Kent-law.com), currently serves as the Liaison to the Forms Committee.

The Colorado Real Estate Commission is scheduled to hold a Rule Making Hearing and it is anticipated will adopt new and revised forms on August 2, 2011.  The draft changes are primarily clean up and fix up due to form changes from the last two years.

13 revised and 3 new forms are to be considered.  Changes are proposed in all 5 of the contract forms, as well as the ancillary forms.

More significant changes to the contract forms include:

1. Title - removal of “unmerchantability of title” and continuation with the right of a Buyer to object or terminate if title is “unsatisfactory” to Buyer.

2. Consolidation and clarification of “Survey” into a dedicated Section of the Contract (to avoid confusion on which Section of the Contract applies).

3. Treats “objection to title” similar to an Inspection Objection of the condition of the Property.  If the parties fail to enter into a written “Title Resolution” on or before the specified Title Resolution Deadline the Contract terminates.

4. Revision of the form to have the type of appraisal (FHA, VA, Conventional) “float” or track with the loan type Buyer is to obtain (as this likely will change following contracting).

5. Removal of the Closing Documents Deadline.  Accordingly, counsel, if they would like to review the Closing Documents prior to Closing, should expressly provide for the same (and remind the Title Company to supply them by the specified date).

            Other changes are proposed to the Contract and ancillary documents.

The 3 new forms proposed are the (1) Estoppe l Statement to implement Section 11 of the Commercial contract form (CBS2, 3 and 4); (2) Post Closing Occupancy Agreement, and (3) split the Short Sale Addendum into 2 separate Addenda, especially the SSA to the Seller Listing Contract to be compliant with FTC’s new MERS rule.

The Forms Committee welcomes any suggestions, the earlier the better. Please send any recommendations to Kent Levine at Kent@Kent-law.com .

[Thanks to Kent Jay Levine, Kent Jay Levine, P.C., for this update.] 

 

Interprofessional Committee.

The RESC is represented by liaisons to the Interprofessional Committee, whose purpose is to promote a better understanding among real estate professionals and whose members also (besides the CBA, represented by the Real Estate Section) include the Colorado Division of Real Estate, Colorado Association of REALTORS, the Land Title Association of Colorado and the Colorado Division of Insurance.   The current liaisons are Candyce D. Cavanagh, Orten Cavanagh Richmond & Holmes (ccavanagh@ocrhlaw.com), and Peter J. Griffiths, Land Title Guarantee Co. (pgriffiths@ltgc.com).

On June 22, 2011, a diverse coalition of 44 consumer organizations, civil rights groups, lenders, real estate professionals and insurers joined with Members of Congress urging regulators to make important changes to proposed mortgage lending regulations requiring borrowers to have at least a 20 percent down payment or equity to qualify the loan as a “Qualified Residential Mortgage” exempt from the new risk retention regulations required by the Dodd-Frank Act, which Congress enacted last year.  Congress considered and rejected a down payment requirement in the Dodd-Frank legislation because it determined that the cost of excluding responsible middle-class families would exceed the modest improvement in default rates.  The coalition opposing the new proposed minimum equity requirement believes that imposition of a minimum down payment could hurt, rather than help, the housing recovery.
 
The Dodd-Frank Act instructed the Consumer Financial Protection Bureau to replace the Truth in Lending form and the Good Faith Estimate with a single integrated mortgage disclosure. According to the CFPB, “[i]nstead of two forms that are long and complicated and contain overlapping information, our aim is to design a single form that is easier to explain and understand.”  Further information is available at www.consumerfinance.gov.

[Thanks to Candyce D. Cavanagh, Orten Cavanagh Richmond & Holmes, for this update.] 

 

Colorado Housing Council.

The RESC is represented by liaisons to the Colorado Housing Council, whose purpose is to see to it that the public is better served in its housing needs through the advancement of communication among industry members, delivery of programs and information to the public, cooperation with legislative and regulatory bodies, and coordination with major employers and federal, state and local agencies.  The current liaisons from the RESC are Catherine A. Hance, Davis, Graham & Stubbs, LLP (catherine.hance@dgslaw.com), and Deanne Stodden, Castle Meinhold & Stawiarski LLC (dstodden@cmsatty.com ).

Recent Colorado Housing Council programs have included presentations by Natalie Mullis, Chief Economist for the Colorado General Assembly’s Legislative Council Staff regarding revenue forecasting and state budgeting, Reeves Brown, Executive Director of the State of Colorado’s Department of Local Affairs regarding the Hickenlooper administration’s priorities for the department and Gene Myers, CEO of New Town Builders, regarding residential construction and financing trends.  Each meeting also includes a presentation by Ryan McMaken, Community Relations Director for the State of Colorado’s Division of Housing regarding current Colorado foreclosure statistics.  The Colorado Housing Council also has regular discussions regarding industry related state and federal legislation. 

The Colorado Division of Housing’s current Housing News Digest can be found at http://www.divisionofhousing.com  and foreclosure reports can be found at http://dola.colorado.gov/cdh/researchers/index.htm#Snapshots.    The Division’s most recent foreclosure report, for May 2011, reflects that both foreclosure filings and sales are trending downward in comparison to the 2010 numbers, with May 2011 filings down 24% compared to May 2010.  Sales were down 20% for the same period.  Year to date, filings were down 31% and sales down 18%.   May 2011 was the sixth month in a row in which both sales and filings had declined compared to the same month in the prior year.

The Colorado Division of Housing’s current Housing Snapshot report can be found at http://divisionofhousing.blogspot.com/2010/06/june-2010-housing-snapshot-now.html.

[Thanks to Catherine A. Hance, Davis, Graham & Stubbs, LLP, for this update.]

 

Membership Committee.

Thanks to all who participated in the 2011 Real Estate Section Questionnaire this Spring.  The results will be used by the Section Council to evaluate performance and guide future planning.  We learned, for example, that of the Section Members who responded to the Survey either frequently or somewhat frequently:  utilize the Section articles in the Colorado Lawyer (87%), utilize the Quarterly Newsletter (67%), utilize Section member discounts for CLE Real Estate programs (66%) attend the Annual Real Estate Symposium (62%) and utilize the Real Estate Title Standards (58%).   We also received some great suggestions for future CLE programs and articles that will be utilized in our future planning of events.

[Thanks to Fred L. Otis, Otis Coan & Peters LLC, for this update.] 

 

Community Service Committee.

The Community Service Committee continues to support and promote the Lawline 9 events for KUSA in Denver.  Let us know if you would like to volunteer for this wonderful community service event.  If you have not volunteered for Lawline 9 before, please do as you will be certain to enjoy your time on the phone bank.

 

Ethics Committee.

The Ethics Committee is continuing to review previously-issued formal opinions to determine if revisions are needed in light of the changes to the Colorado Rules of Professional Conduct. In many cases, the answer is yes, so this project will continue for several more years.  A new opinion, Candor to the Tribunal and Remedial Measures in Civil Proceedings, was approved at the June meeting of the Ethics Committee and will be published in The Colorado Lawyer soon. The analysis in this opinion should be helpful not only to litigators but also to transactional lawyers faced with a client who has lied, or intends to lie, to another party in the transaction about a material fact.  Section members facing an ethics issue will find research assistance on the CBA website. On the CBA home page, under “Quick Links,” click on “Ethics.” This will lead you to the Ethics Committee’s website with more links—to the Rules, formal ethics opinions, and other sources of information.
  
[Thanks to Judy McNerny, Carpenter & Klatskin PC, for this update.] 

 

Courts & Civil Rules Committee.

The Colorado Supreme Court has adopted the Civil Access Pilot Project, effective January 1, 2012. This will be a two-year project, and will incorporate a new, "super-set" of rules involving a designated class of cases involving business litigation, including cases involving commercial real property (except collection cases) and commercial insurance coverage (presumably, including title insurance). These require, in cases covered by the project, more direct, candid pleadings; more immediate, comprehensive disclosures; and modified rules for expert witnesses.  The Pilot Project rules will apply in the 1st (Jefferson and Gilpin Counties), 2nd (Denver County), 17th (Adams County), 18th (Arapahoe and Douglas Counties), and 20th (Boulder County) judicial districts.

The Courts & Civil Rules Committee has also drafted proposed revisions to C.R.C.P. 45 (Subpoenas), to be submitted to the Supreme Court for consideration.
  
[Thanks to Frederick B. Skillern, Montgomery Little Soran & Murray, PC, for this update.] 

 

Additional Information.  For additional information regarding the activities and responsibilities of the members of the Real Estate Law Section Council, see the article on the Real Estate Law Section page of the Colorado Bar Association Website entitled “What Does the Real Estate Law Section Do for Me?”.

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LEGAL WRITING OPPORTUNITIES

Article Opportunities and Accolades – The Colorado Lawyer.  The Real Estate Law Section encourages all aspiring authors to contribute articles (or even just ideas for articles) for publication in the real estate column of The Colorado Lawyer.  Articles submitted need to provide a balanced discussion of new, developing or interesting areas relating to the practice of real estate law in Colorado or nationally.  To encourage your creative energy, the Real Estate Law Section will honor the best real estate article published in The Colorado Lawyer during 2011/2012 with a stipend of $500 to the contributing author or firm.  Articles should be submitted to Joseph Lubinski at Ballard Spahr (lubinskij@ballardspahr.com) or to Rebecca G. Givens (rgivens@realcapitalsolutions.com) for consideration.

Articles, Practice Pointers and Other Contributions Needed for Real Estate Law Section Newsletter.  All members of the Real Estate Law Section are invited to contribute to the Newsletter.  Please submit articles, practice pointers and other contributions to Catherine A. Hance, Davis, Graham & Stubbs, LLP (catherine.hance@dgslaw.com), George E. Reeves (geltonreeves@yahoo.com), Michael J. Repucci, Johnson & Repucci LLP (mjrepucci@j-rlaw.com), or Daniel A. Sweetser, The Sweetser Law Firm PC (dsweetser@sweetserlaw.com).

Request for Input on Real Estate Section Web Page.  We are working to improve the Real Estate Law Section page of the Colorado Bar Association website and need your input and suggestions.  Are there links or other information you have expected to find on the page only to have your hopes dashed?  Have your discovered aspects of the site that you feel could be more user-friendly or informative?  Please e-mail your comments to Dana Collier Smith at dcolliersmith@cobar.org or to Michael J. Repucci (mjrepucci@j-rlaw.com ).  We welcome your suggestions and we will carefully review all of them.

 

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Council Officers
Chairman:
Thomas L. Devine
Faegre & Benson, LLP
1700 Lincoln Street, Suite 3200
Denver, CO  80202
(303) 607-3765
(303) 607-3600  Fax
tdevine@faegre.com
Vice Chairman:
Randall G. Alt
Ryley Carlock & Applewhite
1999 Broadway, Suite 1800
Denver, CO  80202
(303) 813-6727
ralt@rcalaw.com

 

Secretary:
Christopher W. Payne         
Ballard Spahr LLP
1225 – 17th St., #2300
Denver, CO 80202
(303) 292-2400
payne@ballardspahr.com
CBA Board of Governors Representative:
Peter J. Griffiths
Land Title Guarantee Company
3033 E. 1st Ave., #600
Denver, CO 80206
(303)331-6323
pgriffiths@ltgc.com
Liasons and Ex Officio Members
Legislative Policy Committee:
James G. Benjamin
Benjamin, Bain, & Howard LLC
7315 E. Orchard Rd., Suite E400
Greenwood Village, CO 80111
(303)290-6600
jgbenjamin@bbhlegal.com

 

Forms Committee:
Kent Jay Levine
Kent Jay Levine, P.C.

3780 S. Broadway
Englewood, CO 80113
(303)783-0222
kent@kjlpc.com
Ethics Committee
Julie McNerny
Carpenter & Klatskin PC
518 17th St., Suite 1500
Denver, CO 80202
(303)534-6315
jmcnerny@ckdenver.com
Trust and Estates Section
David W. Kirch
David W. Kirch PC
3131 S. Vaughn Wy., #200
Aurora, CO 80014
(303)671-7726
dkirch@dwkpc.com
Real Estate Title Standards
Julia T. Waggener
Waggener & Foster LLP
600 S. Cherry Street, Suite 217
Denver, CO 80246
(303) 336-2135
jwaggener@
waggenerfoster.com

 

 

Immediate Past Chairperson
Geoffrey P. Anderson
Sweetbaum, Levin and Sands, PC
1125 17th Street., Suite 2100
Denver, CO  80202
(303) 296-3377
(303) 296-7343 – FAX
ganderson@
sweetbaumlevinsands.com

 

 
Council Members:
Candyce D. Cavanagh
Orten Cavanagh Richmond & Holmes
1301 Washington Ave., Suite 350
Golden, CO 80401
(303)221-9780
ccavanagh@ocrhlaw.com
Catherine A. Hance
Davis Graham & Stubbs, LLP
1550 17th St., #500
Denver, CO 80202
(303)892-9400
catherine.hance@dgslaw.com
George E. Reeves
1050 Sherman St., #201
Denver, CO 80203
(303)832-7114
geltonreeves@yahoo.com
Michael J. Repucci
Johnson & Repucci LLP
2521 Broadway St., Ste. A
Boulder, CO 80304
(303)442-1900
mjrepucci@j-rlaw.com
Rebecca B. Givens
Real Capital Solutions
1450 Infinite Drive, Suite E2
Louisville, CO  80027
(303) 533-1650
rgivens@
realcapitalsolutions.com
Fred L. Otis
Otis Coan & Peters LLC
1812 56th Avenue
Greeley, CO  80634
(970) 330-6700
flotis@nocolegal.com
Deanne R. Stodden
Castle Meinhold & Stawiarski LLC
999 18th Street, Suite 2201
Denver, CO  80202
(303) 865-1400
dstodden@cmsatty.com
Daniel A. Sweetser
The Sweetser Law Firm PC 
1741 High Street
Denver, CO  80218
(303) 321-3575
dsweetser@sweetserlaw.com
Erik K. Foster
Moye White, LLP
1400 16th Street, 6th Floor
Denver, CO  80202
(303) 292-2900
erik.foster@moyewhite.com
Jeffrey R. Bergstrom
Grimshaw & Harring PC
1700 Lincoln St., Suite 3800
Denver, CO  80203
(303) 839-3852
jbergstrom@grimshawharring.com
Cynthia H. Shearer
M.D.C. Holdings, Inc
4350 S. Monaco St., Suite 500
Denver, CO 80237
(303) 804-7726
chshearer@mdch.com
Nicole R. Nies
Rothgerber Johnson & Lyons, LLP
1200 17th Street, Suite 3000
Denver, CO  80202
(303) 623-9000
nnies@rothgerber.com

Community Service and Charitable Committees

Open

Colorado Housing Council Committee
Catherine A. Hance
Davis Graham & Stubbs, LLP
1550 17th St., #500
Denver, CO 80202
(303)892-9400
catherine.hance@dgslaw.com
Deanne R. Stodden
Castle Meinhold & Stawiarski LLC 
999 18th Street, Suite 2201
Denver, CO  80202
(303) 865-1400
dstodden@cmsatty.com

 

Interprofessional Committee

Candyce D. Cavanagh
Orten Cavanagh Richmond & Holmes
1301 Washington Ave., Suite 350
Golden, CO 80401
(303)221-9780
ccavanagh@orchlaw.com

Peter J. Griffiths
Land Title Guarantee Company
3033 E. 1st Ave., #600
Denver, CO 80206
(303)331-6323
pgriffiths@ltgc.com

 

 

Education Committee --

CLE

Deanne R. Stodden
Castle Meinhold & Stawiarski LLC 
999 18th Street, Suite 2201
Denver, CO  80202
(303) 865-1400
dstodden@cmsatty.com

 

Topical Lunch

Open

 

Publications Committee

The Colorado Lawyer

Rebecca B. Givens
Real Capital Solutions
1450 Infinite Drive, Suite E2
Louisville, CO  80027
(303) 533-1650
rgivens@
realcapitalsolutions.com

Section Newsletter

Catherine A. Hance
Davis Graham & Stubbs, LLP
1550 17th St., #500
Denver, CO 80202
(303)892-9400
catherine.hance@dgslaw.com

George E. Reeves
1050 Sherman St., #201
Denver, CO 80203
(303)832-7114
geltonreeves@yahoo.com

Michael J. Repucci
Johnson & Repucci LLP
2521 Broadway St., Ste. A
Boulder, CO 80304
(303)442-1900
mjrepucci@j-rlaw.com

Daniel A. Sweetser
The Sweetser Law Firm PC 
1741 High Street
Denver, CO  80218
(303) 321-3575
dsweetser@sweetserlaw.com

Website

Michael J. Repucci
Johnson & Repucci LLP
2521 Broadway St., Ste. A
Boulder, CO 80304
(303)442-1900
mjrepucci@j-rlaw.com

CBA Staff

Dana Collier Smith
1900 Grant St., Ste. 900
Denver, CO 80203-4309
(303)860-1115
(303)894-0821 - fax
dcolliersmith@cobar.org

Michael Valdez
1900 Grant St., Ste. 900
Denver, CO 80203-4309
(303)860-1115
(303)894-0821 - fax
mavaldez@cobar.org

 

CBA CLE

Gary Abrams
1900 Grant St., Ste. 300
Denver, CO 80203-4309
(303)860-0608
(303)894-0624 - fax
gabrams@cobar.org

Heidi A. Ray
1900 Grant St., Ste. 300
Denver, CO 80203-4309
(303)824-5392
(303)894-0624 - fax
hray@cobar.org

 

Membership & Practice Development Committee

Fred L. Otis
Otis Coan & Peters LLC
1812 56th Avenue
Greeley, CO  80634
(970) 330-6700
flotis@nocolegal.com

 

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