HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 177 - REPLY IN SUPPORT OF MOTION TO ISSUE WRIT OF EXECUTIONDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
ERIC SUTHERLAND, pro se
v.
Defendants:
THE CITY OF FORT COLLINS, a home rule municipality
in the State of Colorado; STEVE MILLER, in his capacity as
the Larimer County Assessor and all successors in this office;
IRENE JOSEY, in her capacity as the Larimer County
Treasurer and all successors to this office; THE TIMNATH
DEVELOPMENT AUTHORITY, an Urban Renewal
Authority; and COMPASS MORTGAGE CORPORATION,
an Alabama company doing business in Colorado.
Counsel for Defendants/Judgment Creditors: The Timnath
Development Authority and Compass Mortgage Corporation
Eric R. Burris, admitted pro hac vice
BROWNSTEIN HYATT FARBER SCHRECK, LLP
201 Third Street NW, Suite 1800
Albuquerque, NM 87102
Telephone: 505.244.0770
Email: eburris@bhfs.com
Chloe Mickel, #50437
Jesse D. Sutz, #52395
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
Phone: 303.223.1100
Emails: cmickel@bhfs.com; jsutz@bhfs.com
Case Number: 18CV149
Division: 5B
REPLY IN SUPPORT OF MOTION TO ISSUE WRIT OF EXECUTION
Defendants The Timnath Development Authority (“TDA”) and Compass Mortgage
Corporation (“Compass”), by and through counsel, submit the following Reply in Support of
Their Motion to Issue Writ of Execution (the “Motion”).
DATE FILED: February 3, 2020 12:54 PM
FILING ID: 2E6F8EB34E578
CASE NUMBER: 2018CV149
2
ARGUMENT
I. The Motion Should be Granted Because TDA and Compass Possess a Substantive
Right to Enforce Their Judgment and Sutherland Provides No Cognizable Legal
Reason for Abrogating this Right.
Sutherland’s Response to TDA’s and Compass’ Motion to Issue Writ of Execution (the
“Response”) does not provide a cognizable legal basis for denying the Motion. This Court
entered judgment on September 10, 2018, in favor of TDA and Compass for its costs and fees
associated with defending this action, which this Court found to be vexatious. The process of
enforcing a judgment is procedural and not subject to judicial discretion. See, e.g., Sweeney v.
Cregan, 299 P. 1058, 1059 (Colo. 1931) (describing actions to collect on a judgment “ancillary
and auxiliary to the original action[.]”). Pursuant to C.R.C.P. 69(a), a writ of execution is the
proper method to collect a judgment, and the Colorado Supreme Court held that a “district court
[is] without power to limit the substantive right granted by the legislature to a judgment creditor
to collect the judgment by execution against property of the judgment debtor.” First Nat’l Bank
v. Dist. Ct. of Denver, 652 P.2d 613, 618 (Colo. 1982) (citing Jones v. Dist. Ct. of Denver, 312
P.2d 503, 504–05 (Colo. 1957)) (emphasis added).
Here, Sutherland’s Response altogether fails to address C.R.C.P. 69(a). Rather, the
Response provides arguments as to why Sutherland believes, inter alia, that he is entitled to
relief under C.R.C.P. 60(b).
1
These arguments are irrelevant as to whether TDA and Compass
are entitled to collect their judgment against Sutherland. Colorado law is clear that TDA and
Compass, as Sutherland’s judgment creditors, possess a substantive right to collect their
judgment through execution against Sutherland’s property. First Nat’l Bank, 652 P.2d 618.
1
TDA and Compass deny that Sutherland is entitled to any relief under Rule 60(b) and will
oppose that motion, if filed.
3
Sutherland provides no pertinent argument as to why TDA and Compass should not be entitled
to collect their judgment, and there is no legal basis to deny them of their right to do so.
CONCLUSION
WHEREFORE, TDA and Compass respectfully request that this Court grant the Motion
and issue a writ of execution allowing TDA and Compass to enforce their judgment against
Sutherland.
DATED this 3
rd
day of February, 2020.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
By: s/Jesse D. Sutz
Eric R. Burris, admitted pro hac vice
Chloe Mickel, #50437
Jesse D. Sutz, #52395
Attorneys for Defendants/Judgment Creditors The Timnath
Development Authority and Compass Mortgage Corporation
4
CERTIFICATE OF SERVICE
I hereby certify that on this 3
rd
day of February, 2020, a true and correct copy of the
foregoing REPLY IN SUPPORT OF MOTION TO ISSUE WRIT OF EXECUTION was
filed with the Court and served via Colorado Courts E-Filing System on all counsel of record and
pro se party as follows:
By Email and Regular Mail
Eric Sutherland
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Phone: 970.224.4509
Email: sutherix@yahoo.com
s/Kate M. Meade
Kate M. Meade, Paralegal
20263940