United States Bankruptcy Court,
D. Colorado.
In re Charles S. GAGLIARDI, Gloria M. Gagliardi, Debtors.
No. 02-17985 EEB.
March 18, 2003.
Chapter 7 debtors sought to recover damages for creditors' allegedly willful violations of automatic stay. The Bankruptcy Court, Elizabeth E. Brown, J., held that: (1) deed of trust holder, loan servicer and their attorneys violated stay in effect in deed of trust debtors' Chapter 7 case by their conduct, while stay was in effect and while debtors still retained redemptive and other rights in property, in posting notice to quit, commencing state court eviction action, and actually evicting debtors from property; (2) stay violation was willful; (3) legal expenses that debtors incurred as result of creditors' willful violations of stay were themselves type of actual damage that bankruptcy court had to award, even in absence of evidence of other kind of damage; and (4) creditors' conduct warranted punitive damages award.
So ordered.
[1] Bankruptcy 
2392
Scope of
automatic stay is undeniably broad.
Bankr.Code, 11
U.S.C.A. § 362(a).
[2] Bankruptcy 
2392
[2] Bankruptcy
2534
State law
determines whether the debtor had legal or equitable interest in property on
date bankruptcy petition was filed, such that property is included in
bankruptcy estate and is protected by automatic stay. Bankr.Code, 11
U.S.C.A. § § 362(a), 541(a).
[3] Bankruptcy 
2461
Determination as to whether automatic stay
applies to any given activity or property is to be made in first instance by
bankruptcy court, and not by creditor or its attorney. Bankr.Code, 11
U.S.C.A. § 362(a).
[4] Bankruptcy 
2462
Actions
taken in violation of automatic stay are void and of no force or effect, even
when the party taking such action has no actual notice of existence of
stay. Bankr.Code, 11
U.S.C.A. § 362(a).
[5] Bankruptcy 
2397(2)
[5] Bankruptcy
2397(3)
Even after
completion of deed of trust foreclosure sale and issuance of certificate of
purchase to successful bidder at sale, debtors retained interest in property of
kind protected by automatic stay on their Chapter 7 filing, given that debtors still retained legal title,
right of redemption, and legal right of possession. Bankr.Code, 11
U.S.C.A. § § 362(a), 541(a).
[6] Bankruptcy 
2397(1)
Even if
debtors had not filed for Chapter 7 relief until after expiration of their
state law right to redeem property sold at deed of trust foreclosure sale,
debtors' possessory interest in property would itself have been legal or
equitable interest in property, of kind protected by automatic stay.
Bankr.Code, 11
U.S.C.A. § 362(a).
[7] Bankruptcy 
2397(3)
Deed of
trust holder, loan servicer, and their attorneys violated stay in effect in
deed of trust debtors' Chapter 7 case by their conduct, while stay was in
effect and while debtors still retained redemptive and other rights in
property, in posting notice to quit, commencing state court eviction action,
and actually evicting debtors from property, while changing locks on property
and depriving debtors of personal property located therein, without first obtaining relief from stay. Bankr.Code, 11
U.S.C.A. § 362(a).
[8] Bankruptcy 
2392
[8] Bankruptcy
3131
Filing of
"No Asset Report" by Chapter 7 trustee did not have effect of
abandoning any remaining interest that debtors possessed in deed of trust property,
so as to remove property from Chapter 7 estate and protections of automatic
stay. Bankr.Code, 11
U.S.C.A. § § 362(c)(1), 554.
[9] Bankruptcy 
2531
Property
which becomes part of bankruptcy estate remains property of the estate until it
is abandoned. Bankr.Code, 11
U.S.C.A. § 554.
[10] Bankruptcy 
3131
Property of the estate is deemed abandoned
only after: (1) an abandonment order enters, following motion to abandon that
is properly served on creditors and other interested parties; or (2) if asset
is listed in debtor's schedules, but is not otherwise administered by trustee,
in which case it is deemed abandoned at time case is closed. Bankr.Code, 11
U.S.C.A. § 554.
[11] Bankruptcy 
2391
Creditor
and its agents act at their own peril when they usurp bankruptcy court's role
in determining scope of automatic stay, without binding authority that is
clearly applicable to facts at hand.
Bankr.Code, 11
U.S.C.A. § 362.
[12] Bankruptcy 
2467
Creditor
need not have specific intent to violate stay in order for its stay violation
to be "willful," so as to require entry of damages award against it;
it is enough that creditor knew of stay and that it intended to take the
actions found to violate stay.
Bankr.Code, 11
U.S.C.A. § 362(h).
[13] Bankruptcy 
2467
Party's
good faith belief that it had right to engage in act found to violate automatic
stay is not relevant to determination of whether the act was
"willful," or whether damages must be awarded to debtor. Bankr.Code, 11
U.S.C.A. § 362(h).
[14] Bankruptcy 
2461
Even an
innocent stay violation, one committed without knowledge of automatic stay,
becomes "willful," if creditor fails to remedy the violation after
receiving notice of stay. Bankr.Code, 11
U.S.C.A. § 362(h).
[15] Bankruptcy 
2467
Once court
finds a violation of automatic stay to be willful, award of damages for
debtor's injuries is mandatory.
Bankr.Code, 11
U.S.C.A. § 362(h).
[16] Bankruptcy 
2467
Stay
violations were "willful" and warranted award of actual damages against
deed of trust holder, loan servicer and their attorneys, where parties had
notice of debtors' Chapter 7 filing from various sources prior to commencing
eviction proceedings and took no steps to reverse their actions and restore
status quo even when, at such proceedings, the subject of debtors' bankruptcy
was again brought up, but continued with eviction, changed locks to property,
and deprived debtors of personal property which was located therein.
Bankr.Code, 11
U.S.C.A. § 362(h).
[17] Bankruptcy 
2467
Debtors
seeking to recover damages for creditor's willful violation of automatic stay
bear burden of proving their actual damages with reasonable certainty. Bankr.Code, 11
U.S.C.A. § 362(h).
[18] Bankruptcy 
2467
Chapter 7
debtor's testimony that, as result of creditors' willful stay violations, he
suffered apprehension and fear and lost weight and sleep was insufficient,
absent any medical proof or other evidence quantifying debtor's losses, to
support award of actual damages in his favor.
Bankr.Code, 11
U.S.C.A. § 362(h).
[19] Bankruptcy 
2467
Fleeting
and unsubstantiated emotional distress that debtor allegedly suffers as result
of creditor's stay violations is not compensable element of damages.
Bankr.Code, 11
U.S.C.A. § 362(h).
[20] Bankruptcy 
2467
Legal
expenses that Chapter 7 debtors incurred as result of creditors' willful
violations of automatic stay, in enforcing their rights thereunder, were
themselves type of actual damage that bankruptcy court had to award, even in absence of evidence of any other kind of
damage. Bankr.Code, 11
U.S.C.A. § 362(h).
[21] Bankruptcy 
2467
Attorney
fees claimed by Chapter 7 debtors, as actual damages that they incurred to
enforce stay against third parties in violation thereof, would be reduced, to
allow only one half of amount billed by counsel for travel time and to disallow
two hours of research resulting in counsel's citation of superceded case law. Bankr.Code, 11
U.S.C.A. § 362(h).
[22] Bankruptcy 
2468
For a
creditor's willful stay violation to support an award of punitive damages
against it, creditor must have acted with actual knowledge that it was
violating federally protected right or with reckless disregard for whether it
was doing so. Bankr.Code, 11
U.S.C.A. § 362(h).
[23] Bankruptcy 
2468
Primary
purposes for award of punitive damages against creditor violating stay are
punishment and deterrence. Bankr.Code, 11
U.S.C.A. § 362(h).
[24] Bankruptcy 
2468
Five
primary factors considered by court in deciding whether to award punitive
damages for creditor's willful stay violation are: nature of creditor's
conduct, creditor's ability to pay damages, creditor's level of sophistication,
creditor's motives, and any provocation upon part of debtor. Bankr.Code, 11
U.S.C.A. § 362(h).
[25] Bankruptcy 
2468
Conduct on
part of deed of trust holder, loan servicer, and their attorneys when, with
actual knowledge that debtors had filed for Chapter 7 relief and while debtors
still retained redemptive and other rights in deed of trust property, they
posted notice to quit, brought state court eviction action, and actually evicted debtors from property, while
changing locks on property and
depriving
debtors of personal property located therein, warranted award of punitive
damages in amount of $5,000 against deed of trust holder and an additional
$5,000, jointly and severally, against servicing agent and attorneys. Bankr.Code, 11
U.S.C.A. § 362(h).
[26] Bankruptcy 
2468
In
determining appropriate amount of punitive damages award for creditor's stay
violation, court must consider nature of creditor's conduct, its ability to
pay, and amount of actual damages awarded.
Bankr.Code, 11
U.S.C.A. § 362(h).
[27] Bankruptcy 
2468
Amount of
punitive damages awarded for creditor's stay violation should be sufficient to
deter creditor, and other similarly situated parties in future, from
unilaterally determining scope and effect of automatic stay. Bankr.Code, 11
U.S.C.A. § 362(h).
*811
Luis A. Lopez, Virginia H. Louden, Trinidad, CO,
for debtors.
James H. Downey, Dan
E. Miller, Englewood, CO, William
G. Horlbeck, Denver, CO, for creditor.
ORDER IMPOSING SANCTIONS FOR VIOLATION OF THE AUTOMATIC STAY
ELIZABETH
E. BROWN, Bankruptcy Judge.
THIS MATTER came before the Court on the
Debtor Charles S. Gagliardi's September 26, 2002 letter, alleging violations of
the automatic stay by his mortgage holder, LaSalle Bank National Association
("LaSalle"), the loan servicer, EMC Mortgage Corporation
("EMC"), and their attorneys, Dan E. Miller
("Miller") and Downey, Miller & Hopp, LLC ("Downey
Firm") (collectively, the "Respondents"). Following an evidentiary hearing on this
matter, the Court finds that the Respondents' action in proceeding with an
eviction, despite knowledge of the Debtors' bankruptcy, violated the automatic
stay. The Respondents' conduct warrants
the imposition of sanctions in the form of an award of attorney's fees
and costs, as well as punitive damages.
I. FACTUAL BACKGROUND
LaSalle was the beneficiary of two deeds of
trust made by the Debtor, secured by adjacent homes, located at 515 and 517 *812
Clark St., Trinidad, Colorado. LaSalle
foreclosed its deed of trust on the 517 Clark St. property (the "Property") on April 24,
2002. As the successful bidder, LaSalle
received a Public Trustee's Certificate of Purchase. In the absence of a bankruptcy filing, the Debtors' statutory
redemption period of 75 days was due to expire on July 8, 2002. Prior to its expiration, on May 28, 2002,
the Debtors filed a Chapter 7 petition.
Pursuant to Section 108(b), [FN1] the bankruptcy filing extended the end of Debtor's
redemption period sixty days after the entry of the order for relief, to July
29, 2002.
FN1. All references
to "Section" shall refer to Title 11, United States Code, unless
expressly stated otherwise.
The Clerk of the Court served a Notice of
Chapter 7 Bankruptcy Case, Meeting of Creditors, & Deadlines on all
creditors of the Debtors on May 30, 2002.
The record indicates that LaSalle was served through both EMC and James
H. Downey, of the Downey Firm. Although these Respondents claim that they did
not receive the Clerk's Notice, they have confirmed that the addresses used by
the Clerk were accurate.
Carnis Jones, a bankruptcy paralegal from
EMC, the loan servicer, testified that bankruptcy notices are typically
received by EMC in one of three ways: either the debtor's attorney calls and
the call is logged in the file, EMC receives notice directly from the court, or
it receives notice from BANCO, an outside
company with whom EMC contracts to search for bankruptcy filings. Once a bankruptcy filing is noted in a loan
file, the loan shifts to the bankruptcy system and the file is referred to an
outside attorney in the relevant state. Ms. Jones further testified that EMC
utilizes a completely electronic system to track and maintain loan files and
does not maintain paper files. BANCO
performs daily bankruptcy filing searches and notes bankruptcy filings in EMC's
electronic system. BANCO performs its
daily bankruptcy searches and updates by social security number, but EMC's
electronic system is set up according to property addresses. Ms. Jones' research revealed that a
bankruptcy notice was received from BANCO in mid-June, 2002, and placed in the
electronic file for the other home, 515 Clark St. The bankruptcy filing was
only noted by EMC in its file for 515 Clark St. property. It was never listed in the electronic file
for the subject Property.
Ms. Jones testified that EMC does not
normally perform any manual cross-checks of its electronic files when a
bankruptcy filing is loaded into the system, but that such is unnecessary
because EMC customarily places flags or codes to indicate when there is more
than one loan file for a particular debtor.
In this instance, the flags or codes were not in place. She explained that EMC had acquired a
servicing contract for over 70,000 loans in May 2002, which included these two
loans of the Debtor, and EMC had simply not performed all of the standard
safeguards due to this large influx of loans.
If the flags had been created, they
would have stopped all activity on both files until relief from stay had been
obtained.
Miller and Mr. Downey both testified that it
is their practice to track redemption periods and any bankruptcy filing by
placing a notation on the cover of their file, when they receive notice of a
bankruptcy filing. Since the Property's
file listed only the original redemption expiration date of July 8, 2002 and
did not contain any bankruptcy notation, they assert that they *813
could not have received notice of the filing.
In addition, the Downey Firm obtained an update of the foreclosure
certificate from the title company, following the expiration of the original
redemption period. This update,
however, did not apprise them of the bankruptcy filing. This was the extent of the attorneys' due
diligence. Apparently, neither attorney
routinely conducts an electronic search for a bankruptcy filing on PACER before
proceeding, despite its easy access, low cost and widespread use by
practitioners in this district.
When EMC requested that the Downey Firm bring
an eviction action on the Property, Miller contacted Mr. Winter, a real estate
broker in Trinidad, Colorado, to find out whether the Property was occupied.
Mr. Winter testified that, when he inspected the Property on July 10, 2002, the
front door was open, but no one answered the door. As he turned to leave, the Debtor approached him from the 515
Clark St. property. The Debtor informed
him that the Property was occupied by his
mentally handicapped nephew and that he had not yet been able to find other
living accommodations for him. Although
the broker disputes this, the Debtor testified that he told Mr. Winter about
his bankruptcy filing during this initial meeting. The Court found the Debtor to be more credible on this issue. Having come from his creditors' meeting that
same day, the bankruptcy filing was clearly on the Debtor's mind.
After being informed that the Property was
occupied, Miller prepared a Notice to Quit on July 11, 2002, which the Sheriff
posted on the Property on July 18, 2002.
LaSalle received its Public Trustee's Deed on July 22, 2002, which it
recorded on July 23, 2002. On August 8,
2002, having been notified by Mr. Winter that the Property was still occupied,
Miller filed a Summons and Complaint in Unlawful Detainer.
In their Response to the Order to Show Cause,
the Respondents claimed that Miller had no notice of the bankruptcy until after
the eviction had been completed. In
fact, Miller stated that there was no mention of a bankruptcy filing at the
eviction hearing itself. The transcript
of the eviction hearing, however, contains the following exchange:
THE COURT: As I
understand it, Mr. Gagliardi, you're not going to file an answer; is that right?
MR. GAGLIARDI: To
the extent I filed bankruptcy on July 10, and primarily pretty much what I have
right now.
MR. MILLER: I
misunderstood what he said.
THE COURT: He said
he filed bankruptcy on July 10.
MR. MILLER: Was the
redemption period over at the time he filed bankruptcy?
THE COURT: I have
no idea.
MR. MILLER: Because
the redemption period was up on July 8. There's no extension of the redemption
period under Section
108 of the bankruptcy code.
THE COURT: None of
that is before me. This is an FED.
At the evidentiary hearing before this
Court, after having received a copy of this transcript, Miller apologized to
the Court for his faulty memory.
Despite his direct knowledge of a bankruptcy
filing, obtained at least by the time of the eviction hearing, Miller continued
to request a default judgment for possession at the eviction hearing. Having obtained a judgment, Miller then
caused the eviction of the Debtor's nephew from the Property and changed the
locks on September 24, 2002. Furthermore,
it is undisputed that personal property belonging to both the Debtors and their
nephew remained locked *814 in the home at least until the time of the
hearing on this matter.
II. VIOLATIONS OF THE AUTOMATIC STAY
[1] The scope of the automatic stay is "undeniably
broad." [FN2] It stays the
"commencement or continuation ... or other action or proceeding against
the debtor that was or could have been commenced before the [filing of the
bankruptcy]," as well as the enforcement of a pre-petition judgment
against the debtor or property of the
estate.
[FN3] The
stay as to actions against a debtor continues until the case is closed,
dismissed, or a discharge is granted or denied. [FN4]
FN2. Cuffee v.
Atlantic Bus. & Cmty. Corp. (In
re Atlantic Bus. & Cmty. Corp.),
901 F.2d 325, 327 (3d Cir.1990).
[2] It also stays actions to "obtain possession of
property of the estate or of property from the estate or to exercise control
over property of the estate." [FN5] The stay remains
in effect until such property is no longer property of the estate. [FN6] "Property of
the estate" is also very broadly defined to include all of the debtor's
legal and equitable interests in property as of the commencement of the case,
wherever located and by whomever held. [FN7] Whether a debtor has a legal or equitable
interest in property is determined by state law. [FN8]
FN8. See Butner
v. United States,
440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); In
re Stoltz,
197 F.3d 625, 630-31 (2d Cir.1999); In
re Stephens,
221 B.R. 290 (Bankr.D.Me.1998).
[3][4] The determination of whether the automatic stay applies to
any given activity or property is to be made in the first instance by the
bankruptcy court, not by a creditor or its attorney. [FN9] Actions taken in
violation of the automatic stay are void and of no force or effect, even when
there is no actual notice of the existence of the stay. [FN10] In addition, an
"individual injured by any willful violation of a stay provided by this
section shall recover actual damages, including costs and attorneys'
fees, and, in appropriate circumstances, may recover punitive damages." [FN11]
FN9. In
re Diviney,
225 B.R. 762, 768 (10th Cir. BAP 1998).
FN10. In
re Calder,
907 F.2d 953, 956 (10th Cir.1990); Goichman
v. Bloom (In re Bloom),
875 F.2d 224, 225 n. 3 (9th Cir.1989); 48th
St. Steakhouse, Inc. v. Rockefeller Group, Inc. (In re 48th St. Steakhouse, Inc.),
835 F.2d 427, 431 (2d Cir.1987), cert. denied,
485
U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988).
FN11. Section
362(h) (emphasis added).
[5] In determining whether the Respondents violated the stay
by proceeding with the eviction against the Debtors, the Court considers first
whether the Debtors had any remaining interest in the Property on the date of
their bankruptcy filing. Since the
Property is located in Colorado, Colorado law governs this determination. Under Colorado law, title to real property
on which a foreclosure sale has been conducted remains in the property owner
until the expiration of the redemption period, at which time title
automatically vests in the holder of the certificate of purchase. [FN12] *815 The
owner has a right to redeem the foreclosed property within 75 days of the date
of the foreclosure sale. [FN13] Following the expiration of the redemption
period, the former owner retains a possessory interest, which is subject to
defeasance. A former owner of property
(or anyone claiming under him) is considered to be in unlawful detention of the
property after a foreclosure action, only if he retains possession after title
has vested and the new owner has duly
demanded possession thereof. [FN14] The demand for possession is required
to: (a) be in writing, (b) specify the
grounds for the demand for possession and the time when possession must be
delivered, (c) be signed by the person claiming possession, his agent or attorney, [FN15] and (d) be served by delivering a copy to the person
occupying the property or by posting. [FN16] The service or posting of a demand for possession or
notice to quit is a prerequisite to the filing of an eviction action.
FN12. C.R.S.
§ 38-38-501
states in relevant part:
Upon the expiration of the period of redemption allowed to
the owner ... title to the property sold shall vest in the holder of the
certificate of purchase .... Within ten working days after the latest to occur
of the expiration of all periods of redemption, the delivery of the certificate
of purchase ... by the holder to the public trustee ..., and the receipt of all
statutory fees, the public trustee ... shall execute and delivery a deed to the
holder of the certificate of purchase ... confirming the transfer of title to
the property. Failure of the trustee
... to execute and deliver such deed, or to deliver the deed within the time
specified, shall not affect the validity of such deed or the vesting of title.
Under the terms of this statute, title to real property
sold at a public trustee sale does not vest in the holder of the certificate of
purchase or certificate of redemption until
the expiration of the owner's and junior lien holder's redemption periods, at
which time it vests automatically. In
re Thomas,
87 B.R. 654, 656 (Bankr.D.Colo.1988). Prior to that time, title remains in the
mortgagor and the certificate holder acquires only the alternative right to
receive the redemption money or a deed after the time for redemption has
expired. Davis
Mfg. & Supply Co. v. Coonskin Properties, Inc.,
646 P.2d 940 (Colo.App.1982). Accord, In
re Case,
91 B.R. 102 (Bankr.D.Colo.1988).
[6] At the time of the May 28, 2002 bankruptcy filing, the
Debtors had three remaining property interests in the Property: (1) legal title; (2) a right of redemption;
and (3) a legal right of possession.
Even if the Debtors had not filed bankruptcy until July 10, 2002, as Mr.
Gagliardi had mistakenly represented to
Miller, he would nevertheless have retained his possessory interest, which by
itself is an interest protected by the automatic stay. [FN17] As a result, the automatic stay prevented
any commencement or continuation of an act against either the Debtors or the
Property.
FN17. In
re 48th St. Steakhouse, Inc.,
835 F.2d at 430.
[7] In this case, the following actions of the Respondents
constituted violations of the stay: (1)
the posting of the Notice to Quit; (2)
commencement of the eviction action;
and (3) the actual eviction of the Debtors. In addition, changing the locks on the Property, locking inside
the Debtors' personal property (which is also property of the estate), without
first obtaining relief from stay, was an act to exercise control over property
of the estate in violation of Section
362(a)(3).
This particular stay violation was a continuing violation, at least
until the Respondents received an Order granting stay relief on January 21,
2003.
On the other hand, Respondents' request to
the Public Trustee to issue a deed was not an additional violation of the
automatic stay. [FN18] Pursuant to *816C.R.S.
§ 38-38- 501, the vesting of title at the end of the redemption period is automatic
and is not affected by the issuance (or lack of issuance) of a Public Trustee's
Deed, which is merely a ministerial function confirming
the vesting of title. [FN19] At the time the Public Trustee's Deed was
issued and recorded in this case, however, the Debtors' extended redemption
period had not expired and title to the Property had not yet vested in LaSalle. As a result, the July 22, 2002 deed is
invalid.
FN18. See, e.g., In
re Canney,
284 F.3d 362, 375 (2d Cir.2002); Fed.
Land Bank v. Heiserman (In re Heiserman),
78 B.R. 899, 902 (Bankr.C.D.Ill.1987).
FN19. In
re Thomas,
87 B.R. at 656.
Respondents contend that, if the filing date
had been July 10, 2002, as Debtor represented, then their actions would not
have violated the stay because the Debtors no longer held any property interest
protected by the stay, relying on In re St. Clair. [FN20] In St. Clair, the debtors filed their
bankruptcy after both the purchaser at the foreclosure sale had obtained its
deed, and the debtors had been served with a writ of possession. Under New Jersey law, once a writ of
possession issues following a foreclosure sale, the former owner has no further
right of possession. Under these facts,
the St. Clair court held that the automatic stay did not protect the
debtors' possessory interest.
FN20. In
re St. Clair,
251 B.R. 660 (D.N.J.2000), aff'd, 281
F.3d 224 (3d Cir.2001).
The Respondents' reliance on St. Clair
was ill advised for four reasons.
First, the instant case is factually distinguishable from St. Clair. Given the actual filing date of May 28,
2002, the Debtors' right of redemption had not yet ended and, thus, the
purchaser's deed should not have been issued, nor was there a right to
terminate the Debtors' possessory interest.
Even if the filing date had been July 10, 2002, as the Debtor mistakenly
represented, the Debtors would have held a right of possession on this later
date. Since Colorado law requires a proper written demand to be either served
or posted before the former owner's right to possession terminates, and that
had not occurred in this case until July 18, 2002, the right of possession had
not been lawfully terminated before the supposed July 10, 2002 bankruptcy
filing date. In contrast, a state court had already terminated the St. Clair
debtors' possessory interest, prior to their bankruptcy filing.
Second, the St. Clair court found
that, under New Jersey law, a foreclosure action or the enforcement of a
foreclosure judgment was a quasi-in-rem action, affording relief only against
the secured property. Accordingly, it
reasoned that an action to enforce a writ of possession would be an act to
enforce a judgment only against the
property, not the debtor, and, therefore, it would not violate Section
362(a)(1) or (2)'s prohibition against actions
against the debtor. In Colorado, we
have no statutory or case law authority declaring eviction proceedings to be
"in rem" only. In other
Colorado statutes, the legislature has expressly described the relief provided
for in the statute as "in rem." [FN21] Colorado's
eviction statute does not contain this characterization.
FN21. See, e.g.,
C.R.S.
§ 38-22-113(3) ("Proceedings to foreclose and enforce mechanics'
liens under this article are actions in rem ...."); C.R.S.
§ 31-25-1104 ("[T]he taxing authority may institute a proceeding in the nature
of an action in rem ....").