Colorado Belle
Junior Member
Judge granted summary judgment even tho i disputed the debt and it was time barred
What is the name of your state (only U.S. law)? Colorado
Colorado SOL for open contracts and also contracts for services is 3 years.
There is an exception listed to the statute that says that for liquidated debt the SOL is 6 years. I recently made a motion to dismiss on an alleged debt from 2004 on an admitted open account letter of engagement based on SOL.
The debt collector answered with the exception and said that this was a liquidated debt. The judge agreed and denied my motion plus granted summary judgement to the debt collector. I'm getting ready to file a motion for reconsideration of my motion to dismiss, but it is hard to find case law in Colorado re just what a liquidated debt is, and I wonder if someone here can help. (A person named Chien who was a senior poster in 2005 addressed this issue in depth to a poster back then with a similar problem, but there was no resolution, just questions posed)
1. The letter of engagement was an open account and a written contract for services of 'consulting and business valuation'. Contract signed in Feb 2003 and I paid in full for the services which I thought terminated in Oct, 2003.
2. I hired an attorney for my divorce in 2004 who wanted to have his own business valuation performed but I told him I'd already done it. We agreed that if he 'consulted' with the consultant in (1) that he'd arrange to pay for whatever he needed and then bill X in the divorce.
3. At no time did I receive any billings for any money due after Oct 2003.
4. In July, 2008 I received a notice of lawsuit from a debt collecter re a bill from 2004. I 'answered' on the form provided at the County court (small claims) that I thought the bill was for services provided to my attorney and not to me and that these bills were supposedly paid by the attorney and then submitted to the court for reimbursement from X. I never saw the actual bills until we were sent to mediation and nothing was ever sent to me in 2004 nor in 2005 when the 'debt' was sold to the collector until he filed suit in 2008. i'd requested a jury trial.
5. Mediation didn't go anywhere, and there was a hearing to set trial at which debt collector asked for summary judgment. I was upset and stated that I wanted a jury trial, but was told that we'd submit briefs and the judge would decide.
6. I did a lot of research and had what I thought was a great case twofold: the SOL invited a motion to dismiss and I used a good argument for denying summary judgement .
7. Collector argued that the open account fell under 'liquidated' debt because the bill was for a fixed amount. HUH? If that were true then anyone could beat a shorter SOL by saying simply "she owes me $40000000 so that means it's liquidated. The trouble is that Colorado case law doesn't really address when a debt becomes liquidated. Other states dok, and in them the fixed amount is by agreement: so it's either in the letter of engagement, or stated in the letter as damages for breach or by acknowledgement that the debt is fact by the debtor. I believe the exception referes to a contract where the parties agree that a service of say, carpet laying at $6 a yd for 200 yds . This is a fixed amount and therefore subject to 6 years SOL even should the debtor argue that the layers didn't lay 200 yds or did a crappy job. The exception also refers to hourly or unit performance type contracts and says 'if it can easily be calculated.' Colorado annotations specify that an example would be: in the event of breach, damages will be $600 plus 2% interst plus 15 % attorney fees.
8. There was neither in my case and an open account by virtue of being open is not fixed. There was a charge per hour listed, but the hours depended on the time I'd consult or time used in preparing the report, so variable and not known. When Chien was advising the 2005 poster re this subject he also said that the exception applied to the original contract parties....so I'm assuming he thought that if there was now a debt collecter that the exception wouldn't apply.
So...can a debt be considered 'liquidated' only if the creditor says taht it sent a bill in 2004..a bill that was never received by me. And if I contend that I didn't owe any money for services that weren't covered by the letter of engagement (provided to a third party without my authorization) shouldn't there at least be a trial as to material questions of fact?
Order granted Feb 2 so I have maybe 18 days for motion to reconsider.
thanks!
What is the name of your state (only U.S. law)? Colorado
Colorado SOL for open contracts and also contracts for services is 3 years.
There is an exception listed to the statute that says that for liquidated debt the SOL is 6 years. I recently made a motion to dismiss on an alleged debt from 2004 on an admitted open account letter of engagement based on SOL.
The debt collector answered with the exception and said that this was a liquidated debt. The judge agreed and denied my motion plus granted summary judgement to the debt collector. I'm getting ready to file a motion for reconsideration of my motion to dismiss, but it is hard to find case law in Colorado re just what a liquidated debt is, and I wonder if someone here can help. (A person named Chien who was a senior poster in 2005 addressed this issue in depth to a poster back then with a similar problem, but there was no resolution, just questions posed)
1. The letter of engagement was an open account and a written contract for services of 'consulting and business valuation'. Contract signed in Feb 2003 and I paid in full for the services which I thought terminated in Oct, 2003.
2. I hired an attorney for my divorce in 2004 who wanted to have his own business valuation performed but I told him I'd already done it. We agreed that if he 'consulted' with the consultant in (1) that he'd arrange to pay for whatever he needed and then bill X in the divorce.
3. At no time did I receive any billings for any money due after Oct 2003.
4. In July, 2008 I received a notice of lawsuit from a debt collecter re a bill from 2004. I 'answered' on the form provided at the County court (small claims) that I thought the bill was for services provided to my attorney and not to me and that these bills were supposedly paid by the attorney and then submitted to the court for reimbursement from X. I never saw the actual bills until we were sent to mediation and nothing was ever sent to me in 2004 nor in 2005 when the 'debt' was sold to the collector until he filed suit in 2008. i'd requested a jury trial.
5. Mediation didn't go anywhere, and there was a hearing to set trial at which debt collector asked for summary judgment. I was upset and stated that I wanted a jury trial, but was told that we'd submit briefs and the judge would decide.
6. I did a lot of research and had what I thought was a great case twofold: the SOL invited a motion to dismiss and I used a good argument for denying summary judgement .
7. Collector argued that the open account fell under 'liquidated' debt because the bill was for a fixed amount. HUH? If that were true then anyone could beat a shorter SOL by saying simply "she owes me $40000000 so that means it's liquidated. The trouble is that Colorado case law doesn't really address when a debt becomes liquidated. Other states dok, and in them the fixed amount is by agreement: so it's either in the letter of engagement, or stated in the letter as damages for breach or by acknowledgement that the debt is fact by the debtor. I believe the exception referes to a contract where the parties agree that a service of say, carpet laying at $6 a yd for 200 yds . This is a fixed amount and therefore subject to 6 years SOL even should the debtor argue that the layers didn't lay 200 yds or did a crappy job. The exception also refers to hourly or unit performance type contracts and says 'if it can easily be calculated.' Colorado annotations specify that an example would be: in the event of breach, damages will be $600 plus 2% interst plus 15 % attorney fees.
8. There was neither in my case and an open account by virtue of being open is not fixed. There was a charge per hour listed, but the hours depended on the time I'd consult or time used in preparing the report, so variable and not known. When Chien was advising the 2005 poster re this subject he also said that the exception applied to the original contract parties....so I'm assuming he thought that if there was now a debt collecter that the exception wouldn't apply.
So...can a debt be considered 'liquidated' only if the creditor says taht it sent a bill in 2004..a bill that was never received by me. And if I contend that I didn't owe any money for services that weren't covered by the letter of engagement (provided to a third party without my authorization) shouldn't there at least be a trial as to material questions of fact?
Order granted Feb 2 so I have maybe 18 days for motion to reconsider.
thanks!
Last edited: