Kеn Evans, Plaintiff-Appellant, v. Delinda Evans, Defendant-Appellee, and Jennifer Holt, Attorney-Appellee.
Court of Appeals No. 18CA2085
COLORADO COURT OF APPEALS
December 5, 2019
2019COA179
Opinion by JUDGE LIPINSKY; Webb and Davidson*, JJ., concur
Douglas County District Court No. 18CV30747; Honorable David J. Stevens, Judge
SUMMARY
December 5, 2019
2019COA179
No. 18CA2085, Evans v. Evans — Real Property — Spurious Liens and Documents
A division of the court of appeals considers two issues involving invalidation of an encumbrance as a spurious lien or spurious document under
Division III
Opinion by JUDGE LIPINSKY
Webb and Davidson*, JJ., concur
Announced December 5, 2019
Richards Carrington LLC, Christopher P. Carrington, Ruth M. Moore, Denver, Colorado, for Plaintiff-Appellant
Griffiths Law PC, Duncan Griffiths, Christopher J. Griffiths, Lone Tree, Colorado, for Defendant-Appellee and Attorney-Appellee
*Sitting by assignment of the Chief Justice under provisions of
¶ 2 In the trial court, plaintiff, Ken Evans (husband), contended that appellees, Delinda Evans (wife) and her attorney, Jennifer Holt, wrongfully encumbered his real property in Douglas County by recording Holt‘s self-styled “Abstract” summarizing the magistrate‘s order. He argued that the Abstract must be removed from the Douglas County real property records under the procedure set forth in
¶ 3 We answer both questions “yes” and hold that appellees did not create a “spurious lien” or “spurious document” within the meaning of
¶ 4 Four years after the district court entered a decree dissоlving the Evanses’ marriage, wife petitioned the court to modify the decree. She alleged that husband had violated his disclosure obligations in the dissolution of marriage proceeding by failing to inform her of his interest in certain business assets, as required under
¶ 5 Ruling without the parties’ consent, which was not required under
[T]he net marital value that must be divided is $2,337,278.00, of which [wife] shall receive $1,168,639.00. [Husband] shall pay [wife]‘s sum at a minimum of $50,000.00 per month. Interest shall accrue at the statutory rate of 8% per annum, compounded annually, until paid in full. [Husband]‘s payments toward this obligation must commence not later than 45 days from the date of this order, and [this order] shall create a lien against all [husband]‘s rights, titlе and interest in [the subject assets] and any other assets in his name.
¶ 6 Less than one week after husband filed the petition, Holt recorded a summary of the magistrate‘s order, entitled “Abstract of Court Order,” with the Douglas County Clerk and Recorder. The Abstract said:
[Husband] was . . . required by [the magistrate‘s] order to pay said $1,168,639.00 amount with interest at the rate of 8% per annum comрounded annually until paid in full at the rate of not less than $50,000.00 per month commencing not later than 45 days after the date of the order and further provided that [wife] was granted a lien against all [husband‘s] rights, title and interest in [the subject assets], and any other assets in his name.
(Emphasis added.)
¶ 7 Husband did not learn about the Abstract until months later, when he attempted to close a transaction secured by real property he owned in Douglas County. The Abstract appeаred in the County‘s real property records as an encumbrance against his property. He argued that the transaction fell through because the Abstract clouded title to his property.
¶ 9 Although husband attacks the Abstract under several legal theories, we consider only whether it falls within the statutory definitions of “spurious lien” or “spurious document.” This case is not an appeal of any ruling in the Evanses’ dissolution of marriage case. Simply put, we must affirm the trial court‘s order unless we determine that the Abstract ran afoul of
II. Standard of Review
¶ 10 We review de novo whether a recorded document is a spurious lien or spurious document, as defined in
III. The “Spurious Lien” and “Spurious Document” Statute
¶ 11 For purposes of this case, a “spurious lien” is “a purported lien or claim of lien that: . . . [i]s not imposed by order, judgment, or decree of a state court . . . .”
¶ 12
¶ 13 Following the show cause hearing, if the district court “determines that the lien or document is a spurious lien or spurious document, [it] shall make findings of fact and enter an order and decree deсlaring the spurious lien or spurious document . . . invalid [and] releasing the recorded or filed spurious lien or spurious document.”
¶ 14 The General Assembly established this mechanism, which takes less time and involves fewer procedural steps than quiet title actions and most other types of civil cases, “to protect individuals from those who use groundless claims to cloud title to real property as a form of protest or harassment.” Westar Holdings P‘ship v. Reece, 991 P.2d 328, 331 (Colo. App. 1999).
A. The Abstract Does Not Meet the Statutory Definition of “Spurious Lien”
¶ 15 Husband contends that the Abstract is a spurious lien because, while it purports to encumber his property, the underlying magistrate‘s order is not an “order” and, therefore, the Abstract is not a valid “lien” within the meaning of
¶ 16 First, husband asserts that, in non-consent cаses, a magistrate‘s order is merely an unenforceable recommendation and not a court order. Second, he contends that a magistrate‘s order is not an order “of a state court” because magistrates’ orders are not orders of a district court. Third, he argues that because the Abstract did not satisfy the requirements for a judgment lien, it was not a “lien . . . imposed by order . . . of a state court” under the statute. Id. We consider and reject each of these assertions.
¶ 17 In contending that the magistrate‘s order was not an “order” when wife‘s attorney recorded the Abstract, husband attacks the authority of magistrates in non-consent cases. He argues that, until a district court reviews a magistrate‘s order or the time for such review has passed, a magistrate‘s order is merely a recommendation. Husband, however, rests this argument on casе law analyzing the actions of state court referees at a time when they possessed less authority than do present-day magistrates.
¶ 18 For example, husband cites to In re Marriage of Petroff, 666 P.2d 1131, 1132 (Colo. App. 1983), which held that, under a local rule of the Twentieth Judicial District, a referee‘s decision was merely a recommendation, and not an order or judgment, absent further district court action. (All district court local rules were repealed five years after Petroff.
¶ 19 But the law governing referees changed twо years later. “The decision of the referee shall remain in full force and effect while a reconsideration is pending unless stayed by the judge for good cause shown.”
¶ 20 Under the authority of
¶ 21 Husband‘s attack on the power of magistrates to enter orders in non-consent cases cannot be squared with the unambiguous language of
2. The Magistrate‘s Order Is an Order of a State Court
¶ 22 Husband contends that, even if the magistrate‘s order was an enforceable “order” under
¶ 23 The spurious lien statute defines “state court” as a court “established pursuant to title 13, C.R.S.”
¶ 24 Husband‘s argument, however, ignores the authority vested in magistrates to act as officers of district courts. See In re R.G.B., 98 P.3d 958, 960 (Colo. App. 2004) (holding that magistrates are
¶ 25 Magistrates are authorized to act as officers of the district court in certain matters. See
¶ 26 Husband fails to explain in whose name district court magistrates enter their orders, if not the name of the district court to which they are assigned and for which they work.
¶ 27 For these reasons, the magistrate was authorized to act on behalf of the district court when she entered the order at issue. Thus, the magistrate‘s order is an order of the district court.
¶ 28 Husband relies on inapposite authority in arguing that magistrates’ orders are not district court orders. He cites to the rule specifying the process for appealing magistrates’ orders.
3. A Lien Imposed by a Court Order Need Not Be a Judgment Lien
¶ 30 Husband further contends that only a judgment lien created by recording a court-issued transcript of judgment can be a lien “imposed by order, judgment, or decree of a state court . . . .”
¶ 31 To create a judgment lien, a party must record a transcript of the judgment certified by the clerk of court. See
¶ 32 Wife, however, did not need a judgment lien to encumber husband‘s property. Unlike a typical money judgment, the magistrate‘s order by its terms created an equitable lien to secure husband‘s payment obligation to wife. It еxpressly said that the judgment entered against husband would be secured by “a lien against all [husband]‘s rights, title and interest in [the subject assets] and any other assets in his name.”
¶ 33 In light of the lien language in the magistrate‘s order, wife did not require a transcript of judgment or other separate document to create a lien against husband‘s property. See Willis v. Neilson, 32 Colo. App. 129, 132, 507 P.2d 1106, 1108 (1973) (holding that language in stipulation incorporated into divorce decree providing that husband‘s real estate was security for payment of sum owed to wife created lien against husband‘s real property). But she needed to record documentation of the lien to perfect her interest in husband‘s real property. See
¶ 34 Contrary to husband‘s position, Colorado law does not limit the documents that can be recorded to enforce a judicially created lien to “certified cop[ies] of an enforcement order.” See
¶ 35
¶ 36 This interpretation is consistent with the purpose of the spurious lien statute, which is to provide a process for removing groundless claims against title. Westar Holdings, 991 P.2d at 331. The Abstract is not groundless, as it accurately summarizes the language of an enforceable court order.
¶ 37 Therefore, wе disagree with husband‘s argument that a judgment lien was the only means by which wife could have encumbered his property for purposes of enforcing the magistrate‘s order. (Although we hold that the Abstract does not run afoul of the spurious lien statute, we neither address its validity in other contexts nor condone the practice of recording attorney-drafted summaries of court orders.)
¶ 38 Husband alternatively contends that the Abstract was a “spurious dоcument” because it did not accurately reflect the terms of the lien described in the magistrate‘s order and, therefore, was materially misleading within the meaning of
¶ 39 Husband contends that the lien described in the magistrate‘s order would become effective only if he failed to make one of the required monthly pаyments and that the lien did not secure his entire $1,168,639 indebtedness to wife. As husband accurately notes, the magistrate‘s order explained that “[husband]‘s payments toward this obligation [$1,168,639] must commence not later than 45 days from the date of this order, and [the order] shall create a lien against all [husband]‘s rights, title and interest in [the subject assets] and any other assets in his name.” But we do not need to determine the scope of the lien, because the languagе of the Abstract is so similar to that of the magistrate‘s order. Given the similarity between the magistrate‘s order and the Abstract, the latter accurately characterized the former and was not misleading.
¶ 41 A division of this court explained that a spurious document is one “for which a proponent can advance no rational argument based on evidence or the law to support the claim.” Westar Holdings, 991 P.2d at 330. The “no rational argument” test is
¶ 42 For example, in Egelhoff v. Taylor, the disрuted encumbrance reflected a judge‘s purported $500 million indebtedness to an offender whom the judge had sentenced, which the judge allegedly created by failing to contest the alleged debt under a “Commercial Affidavit Process” not recognized under Colorado law. 2013 COA 137, ¶¶ 17-19, 312 P.3d 270, 273-74. The Egelhoff court rejected the offender‘s baseless arguments and affirmed the trial court‘s finding that the alleged lien was spurious. Id. at ¶ 21, 312 P.3d at 274.
¶ 43 In contrast, wife has advanced a rational argument that the Abstract reflects an enforceable order. Even if the Abstract were invalid, it is not the type of patently invalid document that
¶ 44
[i]f, following the hearing on the order to show cause, the court determines that the lien or document is not a spurious lien or document, the court shall issue an order so finding and enter a monetary judgment against the petitioner and in favor of the respondent in the amount of the respondent‘s cоsts, including reasonable attorney fees.
¶ 45 In light of our disposition of this appeal, we deny husband‘s request for attorney fees, grant the request of wife and wife‘s attorney for recovery of their costs, including reasonable attorney fees, and remand for findings of the amount of such costs awardable to wife and wife‘s attorney.
VI. Conclusion
¶ 46 The district court‘s order is affirmed. We remand to the district court for findings on the amount of reasonable attorney fees and other costs awardable to wife and wife‘s attorney under
JUDGE WEBB and JUDGE DAVIDSON concur.