CO · rules

C.R.C.P. 105.1

Spurious Lien or Document

activein force · 2012-07-01 – presentact-effective-date

(a) Petition; Contents, Order to Show Cause. Any person whose real or personal

property is affected by a spurious lien or spurious document, as defined by law, may file a

petition in the district court in the county in which the lien or document was recorded or

filed, or in the district court for the county in which affected real property is located, for an

order to show cause why the lien or document should not be declared invalid. The petition,

which may also be brought as a counterclaim or a cross-claim in a pending action, shall set

forth a concise statement of the facts upon which the petition is based, shall be supported

by the affidavit of the petitioner or the petitioner’s attorney, and shall be accompanied by

a copy of the lien or document as recorded or filed in the public records. The order to show

cause may be granted ex parte and shall:

(1) Direct any lien claimant and any person who recorded or filed the lien or document

to appear as respondent before the court at a time and place certain not less than 14 days

nor more than 21 days after service of the order to show cause why the lien or document

should not be declared invalid and why such other relief provided for by statute should not

be granted;

(2) State that if the respondent fails to appear at the time and place specified, the lien

or document, if found by the court to be spurious, will be declared invalid and released;

and

(3) State that the court shall award costs, including reasonable attorney fees, to the

prevailing party.

(b) Notice; Service. The petitioner shall issue a notice to respondent setting forth the

time and place for the hearing on the show cause order, which hearing shall be set not less

than 14 days nor more than 21 days from service of the show cause order, and shall advise

respondent of the right to file and serve a response as provided in section (c), including a

reference to the last day for filing a response and the addresses at which such response

must be filed and served. The notice shall contain the return address of the petitioner or the

petitioner’s attorney. The notice and a copy of the petition and order to show cause shall be

served by the petitioner on the respondent not less than 14 days prior to the date set for the

hearing, by (1) mailing a true copy thereof by first class mail to each respondent at the

address or addresses stated in the lien or document and (2) filing a copy with the clerk of

the district court and delivering a second copy to the clerk of the district court for posting

in the clerk’s office, which shall be evidenced by the certificate of the petitioner or

petitioner’s agent or attorney. Alternatively, the petitioner may serve the petition, notice,

and show cause order upon each respondent in accordance with Rule 4, or, in the event the

claim is brought as a counterclaim or cross-claim in a pending action in which the parties

have appeared, in accordance with Rule 5.

for the hearing, the respondent shall file and serve a verified response to the petition,

setting forth the facts supporting the validity of the lien or document and attaching copies

of all documents which support the validity of the lien or document. Service of such

response shall be made in accordance with Rule 5(b).

(d) Hearing; Decree; Hearing Dispensed With If No Response Filed. If, following

a hearing on the order to show cause, the court determines that the lien or document is a

spurious lien or a spurious document, the court shall make findings of fact and enter an

order and decree declaring the spurious lien or document and any related notices of lis

pendens invalid, releasing the recorded or filed spurious lien or spurious document, and

entering a monetary judgment in the amount of the petitioner’s costs, including reasonable

attorney fees, against the respondent and in favor of the petitioner. If, following the hearing

on the order to show cause, the court determines that the lien or document is not a spurious

lien or document, the court shall issue an order so finding and enter a monetary judgment

against the petitioner and in favor of the respondent in the amount of the respondent’s

costs, including reasonable attorney fees. If necessary, the court may in its discretion

continue the hearing on the show cause order for further proceedings and trial. If no

response is filed and served by the respondent within the time permitted by section (c), the

court shall examine the petition and, if satisfied that venue is proper and that the lien or

document is spurious, the court shall dispense with the hearing and forthwith enter the

order, which shall be a final judgment for purposes of appeal. If the petition has been

personally served upon the respondent in accordance with Rule 4(e) or (g), the court shall

enter judgment in favor of petitioner and against the respondent for the petitioner’s costs,

including reasonable attorney fees.

(e) Docket Fee. A docket fee in the amount specified by law shall be paid by the

petitioner. The respondent shall pay, at the time of the filing of the response, a docket fee

in the amount specified by law for a defendant or respondent in a civil action under section

13-32-101(1)(d), C.R.S.

History

Source: Entire rule added and adopted December 18, 1997, effective January 1, 1998; (b) and (d) corrected December 30, 1997, effective January 1, 1998; (b) amended and effective June 28, 2007; (a)(1), (b), and (c) amended and adopted December 14, 2011, effective July 1, 2012. ANNOTATION Because a lis pendens can be a spurious document, trial court may award attorney fees and costs for a spurious lis pendens. Shyanne Props., LLC v. Torp, 210 P.3d 490 (Colo. App. 2009). Defendants’ petition for removal of a lis pendens as a spurious document constituted a counterclaim, even though it was not de- nominated as such, because defendants filed the petition in a pending action and not in a sepa- rate proceeding. Therefore, defendants were not required to pay a docket fee and properly served their petition under C.R.C.P. 5 using an elec- tronic filing system. Shyanne Props., LLC v. Torp, 210 P.3d 490 (Colo. App. 2009). Trial court had jurisdiction to award at- torney fees and costs to defendants for a spurious lis pendens. Because plaintiff did not refute that the lis pendens was spurious at the show cause hearing, trial court had jurisdiction to enter judgment in favor of defendants and against plaintiff for defendants’ costs and attor- ney fees. Shyanne Props., LLC v. Torp, 210 P.3d 490 (Colo. App. 2009). Trial court abused its discretion in award- ing attorney fees without holding an evidentiary hearing on the reasonableness and necessity of the attorney fees requested by de- fendants. If a party requests a hearing concern- ing an award of fees, the trial court must hold a hearing. Shyanne Props., LLC v. Torp, 210 P.3d 490 (Colo. App. 2009). Rule creates an exception to the priority rule, which requires the second of two actions with the same parties and subject matter to be stayed until the first action is finally determined. Under the express language of the rule, a party challenging the validity of a recorded document may file the petition as a counterclaim or cross- claim, or the party may institute a separate pro- ceeding. Battle N., LLC v. Sensible Hous. Co., 2015 COA 83, 370 P.3d 238. This rule and § 38-35-204, both governing spurious lien proceedings, conflict with, and thus control over, the more general rules of pleading. Therefore, the trial court did not err when it concluded that banks could not raise their counterclaims and third-party claim in the spurious lien action and dismissed them without prejudice. Fiscus v. Liberty Mort. Corp., 2014 COA 79, 373 P.3d 644, aff’d on other grounds, 2016 CO 31, 379 P.3d 278.

Provenance

Source: content.leg.colorado.gov
Retrieved: 2026-09-15
Edition: 2026-09-15
Content hash: 6d801c4d662569ad0679424204b34f54f4d9594c11914bc436da6f2300963d54

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