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Franklin Credit Management Corporation v. Galvan

Court of Appeals of Colorado, Seventh Division

July 11, 2019

Franklin Credit Management Corporation, Plaintiff-Appellant,
v.
Raul Galvan, Defendant-Appellee.

         

          Adams County District Court No. 07CV226. Honorable Edward C. Moss, Judge.

         COUNSEL:

          Janeway Law Firm P.C., Lynn M. Janeway, Elizabeth S. Marcus, David R. Doughty, Alison L. Berry, Denver, Colorado, for Plaintiff-Appellant.

          Sweetbaum Sands Anderson PC, Geoffrey P. Anderson, Reagan Larkin, Denver, Colorado; Navaro & Associates LLC, Steven Navaro, Castle Rock, Colorado, for Defendant-Appellee.

          Judges: Opinion by JUDGE DUNN. Navarro and Berger, JJ., concur.

         OPINION

          DUNN, Judge

Page 750

          [¶ 1] In this dispute over the efforts of plaintiff, Franklin Credit Management Corporation,[1] to execute on its judgment against defendant, Raul Galvan, we are asked to consider whether a valid judgment lien is a prerequisite to obtaining a writ of execution. Because we conclude it is not, we reverse the district court's order setting aside Franklin Credit's writ of execution as well as the related order awarding attorney fees and costs to Mr. Galvan, and we remand for further proceedings.

          I. Background and Procedural History

          [¶ 2] The undisputed facts, as alleged in the pleadings, show that Franklin Credit obtained a $43,037 default judgment against Mr. Galvan in 2007. Franklin Credit then recorded a transcript of the default judgment with the Adams County Clerk and Recorder, creating a judgment lien on Mr. Galvan's nonexempt real property in Adams County. Franklin Credit, however, didn't execute on the judgment, and the judgment lien expired in 2013. All agree that Franklin Credit did not continue (or revive)[2] the judgment lien.

          [¶ 3] In 2016, Franklin Credit re-recorded the transcript of judgment with the Adams County Clerk and Recorder but did not revive its judgment. Two years after that, Franklin Credit obtained a writ of execution and delivered it to the Adams County Sheriff. As required, the sheriff recorded a certificate of levy with the Adams County Clerk and Recorder and then personally served Mr. Galvan with the notice of levy and the writ of execution.

          [¶ 4] Mr. Galvan moved to set aside the writ of execution, arguing that because the judgment lien had expired in 2013 and had not been revived, Franklin Credit's writ of execution was " improper." Franklin Credit responded that, even though the judgment lien had expired, the judgment was " still valid,"

Page 751

and it had the right to execute on the judgment by certificate of levy.

          [¶ 5] The district court granted Mr. Galvan's motion and entered an order setting aside the writ of execution. In doing so, it agreed that Franklin Credit's judgment lien had expired and had not been revived. The court did not consider, however, Franklin Credit's argument that a judgment lien was not required and that it could execute on its judgment by writ of execution and certificate of levy.[3]

          [¶ 6] Mr. Galvan then requested his attorney fees and costs, arguing Franklin Credit's position was substantially frivolous and groundless. The district court agreed and granted Mr. Galvan's request, finding frivolous Franklin Credit's ...


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