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URL:  http://boards.fool.com/dufusgonesplat-first-let-me-say-im-no-lawyer-29863080.aspx

Subject:  Re: Anyone ever fought a debt lawsuit? Date:  2/22/2012  12:33 AM
Author:  joelcorley Number:  304529 of 308683

DufusGoneSplat,

First, let me say I'm no lawyer. I've had a few dealings with the law over the years; but I'm certainly no expert - especially on law in a state outside my home state of Texas.

You wrote, I believe it's a small claims county court.

Very interesting. I've never looked at Colorado law or Colorado small claims court procedures. Very interesting. Colorado small claims courts seem to have procedures that mimic larger courts. That would explain why you have Motions and pretrial hearings as an option.

In my home state, you file a petition, swear and affidavit, pay a fee, set a date and show up. The defendant can optionally file an Answer for the judge to read, possibly petition for a new trial date and show up (or not). The judge usually drives the process at trial. He asks questions of both parties until he's satisfied that he understand the relevant facts of the case. Then he may render a verdict then or at a later date. The down-side to our process is that any appeal of a small claims case to a county court must be automatically accepted by that court if it has appropriate jurisdiction.

Also, As I mentioned, the judge denied the Plaintiff's Motion based on our Response.

The judge probably felt they had to deny the Motion. Your Response probably refuted some basic issue of fact - like the actual responsibility for the debt. Once there is an issue of fact (material to the claim) in dispute, the court isn't suppose to grant a motion for summary judgement. A summary judgement presumes all facts are uncontested and the only issues to be decided are matters of law.

Don't confuse this with winning though.

And, He hasn't yet denied our Motion despite the Plaintiff's complaint that we are not following procedure. I see this as a positive.

You may be right. But it's also possible the judge simply hasn't reviewed your motion to dismiss. Or any of a number of other possible factors.

Finally, I see our case as so good, I'm wondering what I did wrong. You know what I mean?

I wouldn't jump the gun here. Your step daughter seems to be treading on some thin ice here - at least under Colorado law.

A plain reading of Colorado Revised Statue 14-6-110 Family Expenses would seem to indicate that the collector's attorney is correct. That statute says, The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.

Via Google, I found some related case law referenced here: http://www.michie.com/colorado/lpExt.dll/cocode/1/23df9/2404...

Some of the rulings do appear to imply that the attorney may be correct. This can be the case under Texas law too; but I believe Texas law is much more narrow about what can be treated as common obligations. However, the Colorado statute appears to be very broad and appears to cover any reasonable expense incurred for the benefit of the family.

For instance, A wife can be compelled to pay an indebtedness for something of which the family, or some one or more of its members, has had the actual benefit since it was incurred for family expenses. Straight v. McKay, 15 Colo. App. 60, 60 P. 1106 (1900).

Also, Food and clothing are family expenses, and so are luxuries purchased for the use of the family, because such expenses are not confined to necessaries, but to be family expenses they must be for things received by the family, or some member of the family. Straight v. McKay, 15 Colo. App. 60, 60 P. 1106 (1900). Likely this precedent would be extended by the courts to cover medical expenses.

One possible exception appears to occur when the couple separates: Where the parties were not living together as a family in fact, at the time the goods were sold, it is conceded that this section, relative to family expenses has no application. Denver Dry Goods Co. v. Jester, 60 Colo. 290, 152 P. 903 (1915). If you could establish that the daughter in law was actually living apart from her husband at the time the obligation was incurred, this precedent would seem to argue in her favor.

Also, Applicability of family expense doctrine. Under the family expense doctrine, furniture which is used by and purchased for the family would be an obligation of the husband of the debtor even though he was not the contracting party, while personal property to be used by the debtor alone does not seem to be a family expense. In re Stanton-Rieger, 25 Bankr. 650 (Bankr. D. Colo. 1982). I could see trying to stretch this argument to say that the medical expenses were solely for the benefit of the ex-husband. However, if the procedure(s) were medically necessary, I wouldn't bet on prevailing. And the term medically necessary can often cover a lot of sins.

One last question: Where is your daughter-in-law's health insurer in all of this?

Anyway, wish I had something more encouraging to say. And let us know how it goes.

Regards,
- Joel
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