2018 COA 69
Colo. Ct. App.2018Background
- Robert J. Hopp and his law firms represented mortgage servicers in Colorado nonjudicial foreclosures and ordered title "foreclosure commitments" from affiliated title companies that he owned or partially owned.
- Fidelity (the underwriter) manual provided a 110% schedule rate for a foreclosure commitment that resulted in issuance of a title policy; if no policy issued, a $300–$750 cancellation fee applied.
- Defendants routinely invoiced servicers (and thus ultimately homeowners seeking to cure) for the full 110% policy premium shortly after filing foreclosures, even though in most cases no policy was ever issued because many foreclosures were withdrawn or cured.
- The State sued under the Colorado Consumer Protection Act (CCPA) and the Colorado Fair Debt Collection Practices Act (CFDCPA), alleging defendants knowingly misrepresented costs and collected amounts not actually incurred; the district court found liability and imposed injunctions and civil penalties (reduced on post-trial motion).
- On appeal the court addressed: (1) timeliness/statute of limitations; (2) whether the filed-rate doctrine or title-rate filings authorized the practice; (3) whether defendants acted knowingly; and (4) evidentiary rulings admitting invoice spreadsheets and related documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether charging/collecting full 110% foreclosure-commitment premiums (when no policy issued) violated the CCPA/CFDCPA | Hopp knowingly misrepresented that full policy premiums were actually incurred and collected unearned charges from servicers/homeowners | Charges complied with Fidelity's filed rates and therefore were lawful (filed-rate doctrine) | Court: Violation. The 110% rate applies only when a policy issues; charging it when only an unissued commitment was ordered was a misrepresentation and unlawful under CCPA/CFDCPA |
| Whether plaintiffs’ enforcement claims were time‑barred | Claims timely under applicable discovery rules and controlling limitation periods (CCPA 3-year; CFDCPA claims timely under catchall with discovery rule) | CFDCPA/statute of limitations for private actions (one year) or general catchall barred claims | Court: Claims timely. CCPA three-year rule controls; CFDCPA enforcement timely under catchall statutes with discovery rule; trial court did not err |
| Whether filed-rate doctrine precludes liability | Filed-rate doctrine inapplicable because defendants charged for services they did not actually provide (unearned premiums) | Filed-rate doctrine and DOI filings authorize charging filed rates for foreclosure commitments | Court: Filed-rate doctrine not a defense here—issue was misrepresentation/charging for an unearned policy premium, not attack on reasonableness of filed rates |
| Admissibility and weight of electronic billing exhibits (Exs. 103, 1093) | Exhibits admissible and supported plaintiffs’ claims about overbilling and lack of cancellations | Exhibits lacked foundation, disclosure, or should have been excluded as surprise; some exhibits inconsistent | Court: No abuse of discretion. Exhibit 103 admissible as business record; Exhibit 1093 admissible as rebuttal/impeachment and properly considered; trial court managed any disclosure issues within discretion |
Key Cases Cited
- Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, 62 P.3d 142 (Colo. 2003) (defines knowing misrepresentation standard under CCPA)
- Crowe v. Tull, 126 P.3d 196 (Colo. 2006) (CCPA requires proof of knowing deceptive trade practice)
- Mortg. Invs. Corp. v. Battle Mountain Corp., 70 P.3d 1176 (Colo. 2003) (specific statute of limitations controls over general catchall)
- Jenkins v. Haymore, 208 P.3d 265 (Colo. App. 2007) (rules for choosing between limitation statutes)