Chapter 4 - § 4.7 PROCEEDING

• Jurisdiction: Colorado

§ 4.7 PROCEEDING

§ 4.7.1—Rules of Civil Procedure

Unless inconsistent or in conflict with the statutory provisions of the mechanics' lien statute, the Colorado Rules of Civil Procedure apply to foreclosure actions.³⁷

§ 4.7.2—Venue and Jurisdiction

Because they affect real property, mechanics' lien foreclosure actions should be filed in the county in which the real estate is located.³⁸ In fact, C.R.C.P. 98(a) uses the word "shall." The county courts do not have jurisdiction in matters affecting title to real estate.³⁹ Therefore, a mechanics' lien foreclosure action must be filed in district court.

Venue is subservient to jurisdiction and cannot divest the court of jurisdiction.⁴⁰ So it is conceivable that a foreclosure action could be filed in a county other than the county where the property is located. But if a motion to change venue is timely filed and the rules mandate a change of place of trial, then the trial court loses jurisdiction to proceed further, and may only order a transfer to the proper county.⁴¹ Additionally, the court is going to be asked to issue an order directing the foreclosure and sale of property. As such, it makes sense to file the mechanics' lien foreclosure action in the county where the property is located.

§ 4.7.3—No Right to Jury

Foreclosure actions are considered equitable actions. And "[t]here is no right to a jury trial in actions which historically were brought before courts of equity."⁴² As such, there is no right to a jury trial in a case where the thrust of the initial complaint is for the foreclosure of a mechanics' lien. This is true despite what counterclaims, crossclaims, or defenses may be raised, and despite the fact that the initial complaint may also include other claims. "It is the character of the complaint, rather than that of any counterclaims or defenses subsequently asserted, that fixes the nature of the suit and determines whether it should be tried in equity or at law."⁴³ And in instances where the plaintiff files an amended complaint, it is the amended complaint that controls in determining whether there is a right to a jury. ⁴⁴

"[E]ven though a plaintiff seeks the recovery of money damages, it is not entitled to a jury trial if the essence of the action is equitable in nature."⁴⁵ And courts in Colorado have held that cases where the complaint seeks to foreclose a lien are equitable in nature, and cannot be tried to a jury.

[I]f both legal and equitable claims are joined in a plaintiff s complaint, the trial court must determine whether the basic thrust of the action is legal or equitable in nature. . . .

Actions seeking judicial foreclosure of liens have traditionally been considered equitable proceedings. . . .Although such actions typically involve determinations of the existence and amount of indebtedness, and although any ensuing foreclosure decree typically includes a personal monetary award against the debtor founded in contract, the basic thrust of foreclosure proceedings has nevertheless been held to be equitable.⁴⁶

To illustrate this point, consider the...