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State ex rel. Coffman v. Robert J. Hopp & Associates, LLC

Court of Appeals of Colorado, First Division

May 17, 2018

State of Colorado, ex rel. Cynthia H. Coffman, Attorney General for the State of Colorado; and Julie Ann Meade, Administrator, Uniform Consumer Credit Code, Plaintiffs-Appellees and Cross-Appellants,
v.
Robert J. Hopp & Associates, LLC; The Hopp Law Firm, LLC; National Title, LLC, d/b/a Horizon National Title insurance, LLC; First National Title Residential, LLC; Safehaus Holdings Group, LLC; Lori L. Hopp; and Robert J. Hopp, Defendants-Appellants and Cross-Appellees,

          City and County of Denver District Court No. 14CV34780 Honorable Shelley I. Gilman, Judge

          Cynthia H. Coffman, Attorney General, Jennifer H. Hunt, First Assistant Attorney General, Erik R. Neusch, Senior Assistant Attorney General, Rebecca M. Taylor, Mark L. Boehmer, Assistant Attorneys General, Denver, Colorado, for Plaintiffs-Appellees and Cross-Appellants

          Richards Carrington, LLC, Christopher P. Carrington, Ruth M. Moore, Denver, Colorado, for Defendants-Appellants and Cross-Appellees

          OPINION

          ROTHENBERG JUDGE. [*]

         ¶ 1 Plaintiffs, the State of Colorado, ex rel. Cynthia H. Coffman, Attorney General for the State of Colorado; and Julie Ann Meade, Administrator, Uniform Consumer Credit Code, brought a civil law enforcement action against defendants, foreclosure lawyer Robert J. Hopp; Hopp's wife, Lori L. Hopp; Hopp's law firms, Robert J. Hopp & Associates, LLC and The Hopp Law Firm, LLC (collectively, the law firms); as well as Hopp's affiliated title companies, National Title, LLC, d/b/a Horizon National Title Insurance, LLC, and First National Title Residential, LLC; and Safehaus Holdings Group, LLC, a company owned by Hopp and Lori Hopp, which, through its subsidiary, provided accounting and bookkeeping services for the law firms and title companies. The State alleged that Hopp, the law firms, and their affiliated companies violated the Colorado Consumer Protection Act (CCPA) and the Colorado Fair Debt Collection Practices Act (CFDCPA) by billing its mortgage servicer clients title insurance premium charges for foreclosure commitments when those full costs were not actually incurred, despite knowing that these fraudulent costs would be assessed against Colorado homeowners in foreclosure. The district court agreed with plaintiffs and entered judgment in their favor, except it concluded there was insufficient evidence to find Lori Hopp personally liable for any alleged misconduct.

         ¶ 2 Defendants now appeal the district court's award of plaintiffs' attorney fees and costs. Lori Hopp further appeals the district court's denial of her request for her attorney fees.

         ¶ 3 We affirm the district court's order.

         I. Attorney Fees Orders

         ¶ 4 The trial court awarded plaintiffs most of their reasonable attorney fees and costs incurred in bringing the enforcement action under the CCPA and CFDCPA. See § 5-16-133, C.R.S. 2017; § 6-1- 113(4), C.R.S. 2017. The trial court's order awarding fees cites to the former location of the CFDCPA, section 12-14-135, C.R.S. 2014. The CFDCPA was repealed and replaced in 2017 and section 12-14- 135 was replaced by section 5-16-133, C.R.S. 2017. Plaintiffs requested attorney fees in the amount of $933, 277 and $35, 648 in costs. The trial court made numerous reductions to plaintiffs' requested award:

. The court concluded it was unreasonable to employ more than two attorneys and a paralegal at trial. It declined to award fees for any fees requested for staffing at trial exceeding that level. It subtracted those amounts from the amount requested by plaintiffs, resulting in a lodestar amount of $903, 106.
. Considering the factors set forth in Colo. RPC 1.5, the trial court observed that plaintiffs recovered significantly less than they sought at the outset at trial. The court also noted its concern that plaintiffs did not realize that a substantial portion of penalties imposed under the FDCPA were not available until after trial. Thus, the court reduced the lodestar amount by twenty-five percent and awarded $677, 329.50 for attorney fees.
. Defendants challenged plaintiffs' request for costs for deposing Lori Hopp and Brian Howard. Plaintiffs did not respond to defendants' argument; therefore, the court reduced the costs award to $33, 685.97.

         ¶ 5 Lori Hopp requested her attorney fees and costs, arguing that plaintiffs' action against her was substantially groundless under sections 13-17-101 to -106, C.R.S. 2017. She argued that, alternatively, C.R.C.P. 11(a) required imposing a sanction against plaintiffs by way of awarding her attorney fees. The court denied her motion, concluding that, even though the state did not ultimately prove the CCPA claim against her, it was not groundless, nor were sanctions required against plaintiffs under C.R.C.P. 11(a).

         II. Underlying Judgment

         ¶ 6 Defendants contend that, in the event the underlying judgment against them is reversed on appeal, the award of fees and costs against them should also be reversed because it depends on the validity of the underlying judgment on the merits. Because we affirm the underlying judgment in State v. Hopp, 2018 COA 69, announced today, reversal of the attorney fees award is not required on that basis.

         III. Bankruptcy

         ¶ 7 Hopp contends the trial court erred when it imposed an award of attorney fees and costs against him because it was precluded from doing so by his discharge of debts in bankruptcy. We disagree.

         A. Preservation

         ¶ 8 Hopp filed for bankruptcy on January 25, 2013, and obtained a discharge on February 10, 2014. Plaintiffs' enforcement action was filed ten months later, on December 19, 2014. Plaintiffs contend Hopp failed to preserve the issue of the effect of his bankruptcy discharge in the trial court because he raised this issue "for the first and only time" in his C.R.C.P. 59 motion after trial. Plaintiffs further argue that a C.R.C.P. 59 motion, which contemplates amending a judgment or seeking a new trial, was not the proper procedural avenue for raising a bankruptcy discharge.

         ¶ 9 Hopp argues that he preserved his bankruptcy argument at numerous points in the proceedings. First, Hopp contends that he asserted in his answer to plaintiffs' complaint that his bankruptcy discharge barred, at least in part, some of plaintiffs' claims against him. He did not provide any further details about his bankruptcy in the answer. After trial, in his C.R.C.P. 59 motion to amend the court's findings and conclusions, Hopp argued that his bankruptcy discharge precluded the trial court's award of attorney fees against him because they were awarded to compensate the state for its actual pecuniary loss. The trial court declined to address this argument in the context of Hopp's C.R.C.P. 59 ...


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