County District Court No. 07CV226. Honorable Edward C. Moss,
Janeway Law Firm P.C., Lynn M. Janeway, Elizabeth S. Marcus,
David R. Doughty, Alison L. Berry, Denver, Colorado, for
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.
[¶ 1] In this dispute over the efforts of plaintiff,
Franklin Credit Management Corporation, 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.
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) 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,"
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.
[¶ 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 ...