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PUBLIC
STAFF SUMMARY OF MEETING
JOINT COMMITTEE COMMITTEE ON COLORADO COMMISSION ON UNIFORM STATE LAWS
| Date |
12/08/2023 |
| Attendance |
| Gardner |
X |
| Yelana Love |
X |
| Donald Mielke |
X |
| Charley Pike |
E |
| Snyder |
X |
| Kerry Tipper |
E |
| Joseph Whitfield |
X |
| Claire Levy |
X |
| Anne McGihon |
X |
|
| Time |
09:08:15 AM to 11:12:18 AM |
| Place |
HCR 0112 |
| This Meeting was called to order by |
Anne McGihon |
| This Report was prepared by |
Patti Dahlberg |
|
| Hearing Items |
Action Taken |
| hConsumer Debt Default Judgments Act |
Public testimony & commission discussion |
| hSpecial Deposits Act |
Public testimony & commission discussion |
| hUnlawful Restrictions in Land Records Act |
Public testimony & commission discussion |
| hGuardianship, Conservatorship, & Other Protective Arrangements Act (2017) |
Public testimony & commission discussion |
| hElectronic Estate Planning Documents Act (2022) |
Public testimony & commission discussion |
| hModel Public Health Emergency Authority Act |
Will not proceed forward this year |
| hOther business or public comment regarding items not on the agenda |
Commission discussion only |
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Consumer Debt Default Judgments Act - Public testimony & commission discussion
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09:10:36 AM |
David Reid,
General Counsel to the Receivables Management Association International,
a nonprofit trade association with members in all 50 states including Colorado,
representing banks, credit unions, collection agencies, debt buying companies,
and collection law firms. His organization is a strong supporter of this
act and believe in uniformity in laws across all 50 states. His association
did serve in an advisory capacity to the drafting committee and is testifying
today in support of Colorado adopting this act.
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09:13:09 AM |
Jeremiah Barry,
Office of Legislative Legal Services (OLLS), asked drafting questions
regarding specifying local consumer debt agency references in the bill.
After commission discussion it was decided to approve the form in statute
without specific agency references but to include language that the Attorney
General's office would be responsible for identifying and naming the agencies
or individuals that should be included in the form, including stopfraudcolorado.gov.
In answer to other drafting questions, commission consensus was to include
a 90-day referendum/petition clause and to specify September 1, 2024 as
the effective date.
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Special Deposits Act - Public testimony & commission discussion
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09:23:50 AM |
Alison Morgan,
Colorado Bankers Association, her association, as well as the American
Bankers Association, have supported this act as it has been passed in other
states. It would like to see two minor adjustments in the act, first to
clarify the language in section 11-111-104 regarding third party beneficiaries
who aren't a party to the account, having a say in the account agreement
as to whether or not the parties could amend it. Then on page 11, line
21 to remove the word "cost" and change to "amounts incurred
by the bank or indemnity connected to the bank under the account agreement".
This language change models bank agreements across all of their member
banks and correlates with current best practices. Ms. Morgan assured the
commission similar changes have been made in other states.
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09:35:08 AM |
Commission consensus was to have Ms. Morgan work with the drafter regarding her suggestions, have CBA look at the language drafted, and check with the Uniform Law Commission to be certain any changes are still considered uniform.
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Unlawful Restrictions in Land Records Act - Public testimony & commission discussion
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09:40:16 AM |
Cyndi Stoveall,
Colorado Bar Association (CBA) Real Estate Section, reported that the
section had met with a number of groups, including land title associations,
and clarified that the redline draft shared with the commission with proposed
changes was an unofficial draft based on those conversations. The majority
of changes are meant to dovetail the act's language to Colorado statutes.
Suggested changes are regarding clerks and recorders, recording of scrivener
affidavits, and provisions of the Colorado Common Interest Ownership Act
for an association to record an amendment to the declaration. Substantive
changes include to require the form of amendment recorded to be in substantially
the form set forth in section 106, the act offers the form as an alternate.
Second, would be to include in the act a second form to be used when an
association is recording the amendment. A third change is to section 103
to allow an individual owner of a lot or a unit within a larger common
interest community to, if the association is not willing to record an amendment,
record an amendment consistent with the form in section 106 with respect
to the individual's lot only. Commissioner Snyder agreed that there is
issue when an association does not want to act but individuals want to
proceed with amendments for their properties and would like to find a means
to address this for Colorado while keeping the act uniform. Commissioner
Gardner concurred.
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09:49:37 AM |
Barry Hawkins,
chair of the Uniform Law Commission drafting committee on the act,
only speaking for himself, said that he alone cannot state whether a state's
variation of the act is substantially uniform or would be considered substantially
uniform. In general, most state variations to conform to state laws or
situations are fine, and in most cases can be done on a negotiated basis
so that they do not interfere with substantial uniformity. For example,
making the form mandatory rather than optional is something that the drafting
committee debated and decided not to, but should not be a problem if a
state chooses to do so. A mandatory form might be helpful to individual
property owners acting without legal counsel. But a mandatory form or even
an optional form would not necessarily be helpful or appropriate for common
interest communities as they have more unique and complicated situations
and will probably need legal assistance. There are no one size fits all
for governing situations. Allowing an individual homeowner in a common
interest community to record a form on their home will have no effect in
law and may be problematic to create this expectation. If the community
does not want to remove the unlawful restriction from its records the homeowner
may have to try to change the board membership or possibly sue it. In addition,
there is also a problem with the definition of owner as having a full-fee
interest to comport with Colorado law in that it would imply that everyone
who has an ownership interest in the property must be in agreement in filing
the amendment. The purpose of the act is remedial and designed to try to
weed out unlawful and unenforceable restrictions in a more convenient way
and make it possible for any owner to file the document on the land records
to remove the offending language. This puts the burden of the owner who
wants to keep the restrictions on the property to go to court to undo the
filing.
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09:56:09 AM |
Commissioner Snyder
clarified that the intent was to let any one of the parties, no matter
the type of tenancy, to effect this change through the filing. Commissioner
Mielke asked if it might be appropriate to add a provision regarding the
payment of attorney fees by the offending party should an individual need
to take a community or individuals to court. Commissioner Hawkins replied
that this was considered but it was decided that it was not necessary in
that it is much easier, when brought to its attention, for the community
to remove the illegal and unenforceable restrictions rather than get in
a dispute regarding the clean-up of the language. Commissioner Snyder added
that the board may be liable under federal law if the restrictions are
republished.
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10:03:42 AM |
Commissioner Hawkins
stated a specific concern within the proposed mandatory form is that it
requires a description of the unlawful restriction, which may then require
the Department of Justice to take action against those restating and republishing
the unlawful restrictions. The form should require a bare bones reference
to the restriction by volume and page, or documentation of the date of
the restriction being removed but not a description of the offending language.
There is also a concern with the proposed new language in section 107 (b),
line 14 regarding protection for recorders. Recorders do not want to read
these documents and want them to be processed similar to quick claim deeds
in order to eliminate any liability. Ms. Stoveall, answered that the intent
of section of 107 was to broaden the protection of recorders. Regarding
the mandatory form requiring a description of the offending language, she
stated that it is meant to simply state that the document contains an unlawful
description and that the unlawful description is removed without restating
it.
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10:10:21 AM |
Commissioner Snyder asked how one knows what needs to be removed and who will physically remove it. Commissioner Gardner concurred, wondering how individuals would know which words, starting and ending at what lines, should not be repeated going forward if there is no sort of reference included on the form. Commissioner Hawkins answered that no one is actually going to physically remove any historic language, but the document is going to act as a release, stating that the document is amended by the filing of this amendment to remove from further use and repetition any unlawful restrictions and the filed document can only apply to unlawful restrictions under Colorado and federal law. It would be permissible to reference the restrictions by the line and page number.
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10:20:35 AM |
Ms. Stoveall
clarified that proposed changes to the form incorporates by reference the
document where the unlawful restriction is located by date and reception
number in the clerk and recorder office, and also indexes it under the
owner's name or the name of the common interest community. This identifies
the document but not the actual language. Colorado already has two statutes
that authorize the removal of record of documents in the chain of title
that contain unlawful restrictions, in section 169 regarding single owners
and in section 170 regarding common interest communities. These existing
statutes set a very high bar by requiring a ruling by a high court to do
so. The uniform act allows a more proactive manner to allow current owners
to record amendments. The common interest form was meant to make it clear
that all the unlawful restrictions are removed and to prevent tinkering
with any other provisions within the documents referenced. Commissioner
Snyder questioned if there were a way to physically remove the offending
language from all pertinent documents. Ms. Stoveall clarified that the
uniform law only applies to title documents. Commissioner Hawkins added
that the act has the practical effect of allowing title companies to remove
the language from other documents that it sends out.
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10:29:01 AM |
Commissioner McGihon
noted that it appears that the common goal is to make this act work for
Colorado and suggested that Commissioners Gardner and Snyder and the CBA
form a working committee to continue to work on concerns. Commissioner
Snyder added that the restrictions have been unenforceable since the 1950s
and would like to make the removal of unconscionable language more enforceable.
And to possibly make a stronger statement up front as to why this is being
done and to have Colorado also meet a moral standard to remove this language.
The commission thanked the witnesses for their testimony and time on the
review of the act.
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Guardianship, Conservatorship, & Other Protective Arrangements Act (2017) - Public testimony & commission discussion
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10:29:41 AM |
Andrew Rogers,
Colorado Bar Association (CBA) Elder Law Section, reported that the
subcommittee reviewing the act, including participants and observers from
a number of various stakeholders, has been meeting every Friday reviewing
the act line by line and will continue to review it. Overall, the act has
been well-received but it is a complete overhaul from how these cases are
currently handled and will be a big change on many levels, have many interested
stakeholders, and there is a significant amount of work to be done for
the act to be implemented successfully. Some issues have already been identified
that will need to be addressed, and he noted that it appears that the Colorado
draft has attempted to address some of those issues. One issue that needs
to be addressed is that the act does away with the term "incapacitated
person" which is used in numerous other statutes and case law. There
is a lot more work to be done and the goal is for it to be done early in
the new year and expressed appreciation for everyone participating in the
subcommittee.
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10:36:42 AM |
Letty Maxfield,
CBA Elder Law Section, shared some additional possible key areas of
concern for the Colorado bar. A practical concern is funding, the act shifts
the cost burden of gathering evidence, presenting medical information,
monitoring and redacting confidential information, and providing notice
from the litigants to the trial court judges and their staff. It will require
significant judicial resources to accommodate the additional tasks that
will be placed on the judiciary if this act moves forward. Time for education
and training will be needed throughout the state, forms will need to be
rewritten, and changes made to the Colorado court e-filing system for increased
transparency while protecting the personal information included in the
proceedings. The act will require the current court visitor system contract
professionals to have more skills and professional experience. They will
now need to be able to talk with medical professionals, review financial
records, and to offer the court insights into the specific disability a
respondent is suffering from. The current court visitor system is not robust
enough to handle these new demands and conversation is needed as the act
moves forward as to whether the judicial branch is the best branch of government
to continue to house the court visitor system to fulfill these new demands.
Finally, the section believes it is critical that the comments are published
with the act to guide the courts and pro se parties in how this act is
meant to work. The subcommittee is trying to make as few Colorado specific
changes as possible to avoid confusion with the published comments. There
will be an increased need for a third-party to respect these orders, which
is already a problem, and would like to include an option for a court,
in its discretion, to access attorney fees should court action be needed
for enforcement. The bar is eager to hear from all stakeholders in this
process, in particular from stakeholders in more rural areas where the
resources available to comply with the additional protections in this act
are scarce or more difficult to find.
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10:43:55 AM |
Cathie Giovannini,
representing Denver Human Services and Denver Adult Protective Services,
added that this thorough review of the act has been useful for all stakeholders
to participate in. She added that her group view the act through the lens
of adult protective services and shared that they would like to see most
of the act enacted. There are, however, some are concerns with some possible
unintended consequences in portions of the act that might harm the people
the act is trying to help. Would like to see protective guardianships provided
free if not otherwise available and would be happy to answer any questions
on any of their specific concerns.
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10:49:59 AM |
Commissioner
McGihon noted that although the bill would need to be introduced in a timely
fashion, work with stakeholders and necessary amendments would continue
throughout the legislative process. Commissioner Gardner concurred that
the stakeholder process would continue and the commission encouraged stakeholders
to share concerns with the subcommittee. Commissioner Levy added that a
Boulder assistant county attorney also has concerns with the act that may
need to be addressed. Commissioner Gardner added that Colorado Counties,
Inc. would also like to be engaged in the stakeholder process moving forward
and concurred that there is still a lot of work needed on this bill. Ms.
Maxfield added that anyone interested in the line by line review of the
section's working group is welcome to participate virtually or in person,
and anticipates there will be a second more in-depth stakeholder process
where policy and final results will be discussed. The commission thanked
all for their testimony and diligent effort on the bill and also all of
the stakeholders participating in the review of the bill and in the process.
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Electronic Estate Planning Documents Act (2022) - Public testimony & commission discussion
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10:55:27 AM |
Letty Maxfield,
CBA Trusts and Estates Section, stated that she was present and available
to answer any questions from the commission. She noted that in the Colorado
bill draft, the act is being added to Title 15, with a new Article 24,
and the CBA was going to propose that it be added to Title 15, Article
15, and in a new Part 5, but she does not think the placement indicated
in the draft will be objectionable to the section. She will take the draft
and placement to the bar and share any comments or concerns with the bill's
sponsors and drafter.
The commission thanked the CBA for its work on the act and Ms.
Maxfield for her testimony.
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Model Public Health Emergency Authority Act - Will not proceed forward this year
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10:57:38 AM |
There was no
public testimony on this agenda item. Commissioner Levy asked if there
is current law regarding governor authority and if anything would need
to be repealed because of the act, or, if there is no clear authority in
statute then should the commission proceed forward with the act to fill
this gap. Jennifer Berman, OLLS, answered that there is existing
authority for the governor to declare an emergency disaster under section
24-33.5-704 where it lists various circumstances that qualify. And in section
24-33.5-703.3 definitions of disaster include declaring an emergency epidemic.
Strikethrough language was not included in the draft because it was not
clear if the model act would necessarily override existing authority or
was intended to work with it. Also, the model act required the creation
of a new part and not just a section within current law and the new section
could not be placed close to current law. She suggested that the commission
should also consider the Department of Public Health and Environment's
existing authority with regards to public health emergency statewide responses
for controlling epidemics found in section 25-1.5-101 and 102. Commissioner
Levy thanked Ms. Berman and noted that the act states that it creates the
exclusive emergency authority for the Governor which would seem to override
any other statutory authority.
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11:07:51 AM |
Commission consensus
was to not pursue introducing this act this year.
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Other business or public comment regarding items not on the agenda - Commission discussion only
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11:11:31 AM |
There was no
other business or public comment on this agenda item.
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| 11:12:18 AM |
The committee adjourned. |
