1972, March, Pg. 9. Limitation of Creditors' Remedies.

• Author: by Gerald H. Kopel

1 Colo.Law. 9

Colorado Lawyer

1972.

1972, March, Pg. 9.

Limitation of Creditors' Remedies

91972, March, Pg. 9Limitation of Creditors' Remediesby Gerald H. KopelGerald H. Kopel, Denver, is a partner in the firm of Kopel and Kopel. He is a member of the House of Representatives of the Colorado General Assembly and is a long-time champion of consumers' rights.The Uniform Consumer Credit Code took effect at 12:01 a.m. on October 1, 1971. Should attorneys therefore consult the Code only as to credit sales and credit loans entered into after the effective date? If you do, you are committing a grievious error.Article 9 of the Code states as follows:

73-9-101 (3) Transactions entered into before this code takes effect and the rights, duties, and interests flowing from them thereafter may be terminated, completed, consummated, or enforced as required or permitted by any statute, rule of law, or other law amended, repealed, or modified by this code as though the repeal, amendment, or modification had not occurred, but this code applies to:

(c) All credit transactions made before this code takes effect insofar as the article on remedies and penalties (article 5) limits the remedies of creditors.

Some of these limitations do not change present law. As an example, 73-5-105 (Limitation on Garnishment) is copied almost verbatim from the Federal Consumer Credit Protection Act (truth-in-lending), which limited the amount of disposable earnings subject to garnishment to 25 percent of the disposable earnings for that week or the amount by which the disposable earnings for that week exceed thirty times the federal minimum hourly wage prescribed by the Fair Labor Standards Act of 1938. (The original bill provided for forty times the federal minimum hourly wage, but this was amended in the state senate to the figure of thirty.)

Section 73-5-104 contains two limitations. The first states that "prior to entry

10of judgment in an action against the debtor for debt arising from a consumer credit sale, a consumer lease, or a consumer loan, the creditor may not... attach unpaid earnings of the debtor by garnishment or like proceedings." This has been basically the law in Colorado under Section 77-1-9 since 1965, and it was reinforced by a United States Supreme Court decision in 1969.

ReplevinSection 73-5-104 also provides that "prior to entry of judgment in an action against the debtor for debt arising from a consumer credit sale, a consumer lease, or a consumer loan, the creditor may not replevin goods, except motor vehicles, of the debtor with the use of force from a dwelling upon an ex parte order of court...."

Basically, this changes the law of replevin in Colorado and is a limitation on a creditor's remedy, at least as to "goods, except motor vehicles, ... from a dwelling." Under Rule 104 the procedure in the past, at least in Denver, has been, in seeking replevin, to have a writ issued requiring the sheriff to take...