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Ybarra v. Greenberg & Sada, P.C.

Supreme Court of Colorado, En Banc

October 15, 2018

Francis Ybarra, Petitioner
v.
Greenberg & Sada, P.C., a Colorado corporation. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA485

          Attorneys for Petitioner: Vedra Law LLC Daniel Vedra Katherine Russell Denver, Colorado

          Attorneys for Respondent: Greenberg & Sada, P.C. Alan Greenberg Englewood, Colorado

          Attorney for Amicus Curiae Administrator of the Uniform Consumer Credit Code: Cynthia H. Coffman, Attorney General Frederick R. Yarger, Solicitor General Nikolai N. Frant, Senior Assistant Attorney General Denver, Colorado

          Attorneys for Amicus Curiae Colorado Creditor Bar Association: Murr Siler & Accomazzo, P.C. Jamie G. Siler James Eckels Kimberly L. Martinez Denver, Colorado

          Attorney for Amicus Curiae Colorado Legal Services: Colorado Legal Services Paul Chessin Denver, Colorado

          Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Keating Wagner Polidori Free, P.C. Ross W. Pulkrabek Denver, Colorado

          Attorney for Amicus Curiae National Association of Subrogation Professionals: Poynter Law LLC Jennifer A. Poynter Englewood, Colorado Borenstein Associates LLC Irvin Borenstein Englewood, Colorado

          OPINION

          COATS, CHIEF JUSTICE.

          ¶1 Ybarra petitioned for review of the court of appeals' judgment affirming the dismissal of her Colorado Fair Debt Collection Practices Act action against Greenberg & Sada. See Ybarra v. Greenberg & Sada, P.C., 2016 COA 116, ___ P.3d ___. The district court dismissed for failure to state a claim, finding that damages arising from a subrogated tort claim do not qualify as a debt within the contemplation of the Act. The court of appeals agreed, reasoning that the undefined term "transaction," which it considered integral to the Act's definition of "Debt," can only be understood to require some kind of business dealing, as distinguished from the commission of a tort; and to the extent an insurance contract providing for the subrogation of the rights of an insured constitutes a transaction in and of itself, that transaction is not one obligating the debtor to pay money, as required by the Act.

         ¶2 Because a tort, as distinguished from a judgment awarding damages for its commission, does not obligate the tortfeasor to pay damages, it cannot be a transaction giving rise to an obligation to pay money, as required in order to constitute a debt within the contemplation of the Act; and because an insurance contract providing for the subrogation of the rights of a damaged insured is not a transaction giving rise to an obligation of the tortfeasor to pay money, but merely changes the person to whom the tortfeasor's obligation to pay is owed, it also cannot constitute a transaction creating debt within the contemplation of the Act. The judgment of the court of appeals is therefore affirmed.

         I.

         ¶3 Francis Ybarra filed suit in the Denver District Court against the law firm of Greenberg & Sada, alleging that it violated the Colorado Fair Debt Collection Practices Act by obtaining a judgment against her in the Denver County Court on behalf of State Farm Auto Insurance Company. While represented by Greenberg & Sada, State Farm, as the subrogee of an insured to whom it had paid a claim for damages caused by Ybarra, had taken a default judgment against Ybarra. In her complaint, Ybarra alleged particularly that in doing so Greenberg & Sada violated the Act in a number of ways, including by filing State Farm's negligence action in Denver rather than Jefferson County, where Ybarra is a resident; by using a false representation or deceptive means in attempting to collect a debt by filing for damages in tort; by providing an address for Ybarra's residence, where it knew or should have known she did not reside; by making false representations of the character, amount, or legal status of the "debt" by alleging that she owned the car she was driving, which she denied; and by failing to comply with the Act in various other ways.

         ¶4 Greenberg & Sada moved to dismiss pursuant to C.R.C.P. 12(b)(5) for failure to state a claim upon which relief could be granted. The district court granted the motion, ruling that the subrogated tort claim upon which State Farm took a default judgment against Ybarra was not a debt as defined by the Act, and therefore the ...


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