Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02440-EWN-BNB

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Filed 09/13/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2440-EWN-BNB MATTHEW ARAGON, Plaintiff, v. LIFE QUOTES, INC. Defendant. ______________________________________________________________________________ REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO ENFORCE ATTORNEY'S LIEN ______________________________________________________________________________ The undersigned hereby files the following reply to Plaintiff's response to her motion to enforce her attorney's lien in this case: 1. Colorado statutes allow an attorney to file a lien in a case in which a client owes

the attorney fees for work done in obtaining a judgment. Specifically, the statute states: All attorneys- and counselors-at-law shall have a lien on any money, property, choses in action, or claims and demands in their hands, on any judgment they may have obtained or assisted in obtaining, in whole or in part, and on any and all claims and demands in suit for any fees or balance of fees due or to become due from any client. In the case of demands in suit and in the case of judgments obtained in whole or in part by any attorney, such attorney may file, with the clerk of the court wherein such cause is pending, notice of his claim as lienor, setting forth specifically the agreement of compensation between such attorney and his client, which notice, duly entered of record, shall be notice to all persons and to all parties, including the judgment creditor, to all persons in the case against whom a demand exists, and to all persons claiming by, through, or under any person having a demand in suit or having obtained a judgment that the attorney whose appearance is thus entered has a first lien on such demand

Case 1:03-cv-02440-EWN-BNB

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in suit or on such judgment for the amount of his fees. Such notice of lien shall not be presented in any manner to the jury in the case in which the same is filed. Such lien may be enforced by the proper civil action. 12-5-119, C.R.S. 2. The federal courts have consistently applied the law of the state in determining

whether or not an attorney's lien exists in a given situation. In re Forrest A. Heath Co., 159 F. Supp. 632, 634-5 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958). 3. An attorney may resolve the attorney's lien in the case in which a claim arises,

without having to file a duplicative independent action: Some precedent which was created prior to the merger of law and equity dictated that an independent suit in equity was a proper civil action for the enforcement of an attorney's lien. Fillmore v. Wells, 15 P. 343 (1887). Later cases, however, recognized that an independent civil action could be brought to protect an attorney's charging lien which is a creature of statute. See Donaldson, Hoffman & Goldstein v. Gaudio, 260 F.2d 333 (10th Cir. 1958). To restrict the means of enforcement of an attorney's lien solely to independent civil actions would be a waste of judicial time, as well as contrary to the legislative intent reflected by the statutory language. The trial judge who heard the proceedings which gave rise to the lien is in a position to determine whether the amount asserted as a lien is proper and can determine the means for the enforcement of the lien. ...In our view, the attorney's charging lien may not only be asserted, but may be enforced, in the civil action which gave rise to the lien claim, or, in the alternative, in an independent action. Both are 'proper civil actions' within the meaning of the statute. 2

Case 1:03-cv-02440-EWN-BNB

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Gee v. Crabtree, 192 Colo. 550, 560 P.2d 835, 836 (1977). 4. In addition, an attorney may file a motion to enforce a lien in the case giving rise to

the claim, even if she has withdrawn from representation of a party. Plaintiff's brief attempts to mislead the Court about the law in this area. The one case Plaintiff cites for the proposition that Ms. Bangert has no standing to request that this Court enforce her attorney's lien says just the opposite.1 The case of In re Marriage of Weydert involved a set of facts exactly like the facts here. In re Marriage of Weydert, 703 P.2d 1336 (Colo.App.,1985). In that case, an attorney named Kritzer represented the husband in a divorce proceeding. Id. at 1337. Kritzer withdrew from representation of the husband during the proceeding. Id. The divorce was later finalized, with certain proceeds from the sale of a home going to the husband. Id. Kritzer sought an order giving him priority with regard to those proceeds. Id. The Court determined that: Kritzer's motion requested a determination as to his rights in the proceeds from the sale of the residence. Since an attorney's charging lien may be enforced in the action which gave rise to the lien, Gee v. Crabtree, 192 Colo. 550, 560 P.2d 835 (1977); In re Marriage of Mann, 697 P.2d 778 (Colo.App.1984), it was unnecessary for Kritzer to seek leave to intervene, and he was properly before the trial court. Id. (emphasis added). 5. Further, Mr. Aragon should not be allowed to complain about the filing of an

attorney's lien after settlement discussions when Aragon falsely represented to the Court, during settlement discussions, that Bangert ­ the second of three successive attorneys retained by Mr.

In fact, this is the only case cited by Plaintiff in support of any position he takes in his Response. 3

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Aragon in this case ­ had filed an attorney's lien in the amount of $46,000.2 It may be presumed that the false representation had some effect upon the settlement. It appears that it was only after Defendant acted upon that false representation ­ by making the settlement check out to Mr. Aragon, Mr. Mann and Ms. Bangert ­ that Plaintiff was forced to tell the truth, i.e. that no attorney's lien had been filed at that time. 6. For these reasons, the undersigned requests again that the Court enforce her

motion. In addition, the undersigned requests that the Court order Plaintiff to pay the costs of replying to his response in light of the fact that the response was entirely frivolous and entirely lacking in legal foundation. DATED this 13th day of September, 2005.

Respectfully submitted,

s/Patricia S. Bangert Patricia S. Bangert Attorney at Law 3773 Cherry Creek Drive North, Suite 575 Denver, Colorado 80209 Former Attorney for Plaintiff Matthew Aragon

It is the understanding of the undersigned that Plaintiff's first attorney ­ who filed the complaint in this matter and attempted to do discovery ­ was not paid by Mr. Aragon for his services. 4

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CERTIFICATE OF SERVICE I hereby certify that on September 13, 2005, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Kristen L. Mix, Esq. and Stuart David Mann and e-mailed to the following:

Matthew Aragon 4198 S. Timbervale Drive Evergreen, CO 80439

s/Patricia S. Bangert
_______________________________