Introduction of Guests. Alex Pankonin of Assured Title Agency and Rich Rodriguez of Duncan, Ostrander & Dingess, P.C. were welcomed as guests.

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1 MINUTES OF ACTION CBA Real Estate Law Section Council Date: August 16, 2011 (Tuesday) (3:00 P.M.) Colorado Bar Association 1900 Grant, 9 th Floor Denver, CO I. Call to Order Chair, Tom DeVine, called the meeting of the Real Estate Section Council to order at 3:03 P.M. II. III. IV. Introduction of Guests. Alex Pankonin of Assured Title Agency and Rich Rodriguez of Duncan, Ostrander & Dingess, P.C. were welcomed as guests. Approval of Minutes of Action of June 21, 2011 meeting. Upon motion made by Dan Sweetser and seconded by Catherine Hance, the Minutes of the June 21, 2011 meeting were approved. Reports of Officers. A. Chair Tom DeVine New Member Orientation. Following introductions of the Section Council members and liaisons, the Chair provided a powerpoint presentation, which presentation is attached to these Minutes, outlining the purpose of the Real Estate Section, introducing the CBA staff, and describing the Section Council s tools of governance, Council committee responsibilities, and the role of the Council officers. Tom DeVine further described the duties and responsibilities of Council members and gave some practical suggestions for service on the Section Council. Appointment of Members to Standing Committees. The Chair made and confirmed the following committee and liaison appointments in accordance with the Bylaws: Interprofessional Candyce Cavanagh and Peter Griffiths Title Standards Committee Julia Waggener Publications Education The Colorado Lawyer Erik Foster and Cynthia Shearer Newsletter Mike Repucci, Dan Sweetser and Nicole Nies Section Website Mike Repucci

2 CLE Deanne Stodden, Jeffrey Bergstrom and Chris Payne Topical Lunches Catherine Hance and Fred Otis Membership and Practice Development Fred Otis and Nicole Nies Colorado Housing Council Catherine Hance and Deanne Stodden Community Service/Charitable Rebecca Givens Privacy Task Force Report. No additional meetings of the Privacy Task Force have occurred since the last RESC meeting. The next meeting is scheduled for September 29. Misappropriation of Title Company Funds Subcommittee Report. Nothing new to report. List Serv. Mike Repucci reported that Professor Collins, a CU law professor, has agreed to serve as a moderator for the RESC list serv site and Mike further reported on various questions raised by Mel Reveles, of the CBA Internet and Technology Department, a copy of such questions are attached to these Minutes. Following discussion by RESC, general consensus was reached on the following points, without any specific action or resolution taken: 1. Access to the list serv should be limited to dues-paying Real Estate Section members. 2. Members posting questions and entries to the list should be required to give their full names, but not necessarily additional identifying information, such as CBA member numbers. 3. Further technical investigation is required before determining whether attachments may be safely transmitted through the list, but such functionality would be helpful in responding to likely user requests for forms, unpublished court decisions, etc. 4. Upon launch, the list serv should automatically subscribe all Section members, including a welcome message and clear instructions on how to unsubscribe (the opt-out approach). 5. Further research is needed to develop general list serv rules. Mike Repucci will continue to work with Mel and other RESC members (including Rebecca Givens and Chris Payne) are encouraged to find samples to share with Mike. Prior to launch to the full Section, RESC members will be able to test the list serv during a trial period. 2

3 Final Report of 2011 Symposium. Tom DeVine reported that, by nearly all accounts and comments, members were very pleased and appreciative of the symposium. Attendance was over 460. Possible Amendment of Mortgage Loan Origination Licensing and Mortgage Company Registration Act. Randy Alt reported on a discussion topic raised at POETS seeking a further exemption from the mortgage originator licensing act for de minimis transactions, such as a relative or friend helping to arrange 1 or 2 mortgages to those in need. No further action was taken on this topic. Stakeholder meeting for 2012 Public Trustees Bill (Concerning Documents Related to Foreclosure Sale). Chris Payne reported on a stakeholder meeting, hosted by the Colorado Public Trustees Association legislative committee, discussing possible amendments to the foreclosure sales act. An outline of the proposed changes is attached to these Minutes. Many of the proposed changes relate to difficulties faced by the Public Trustees in processing cure requests and sale bids. This is not a simple clean-up bill, however. Other changes would shift compliance and potential liability to lawyers representing foreclosing lenders. RESC will continue to monitor this potential legislation and remain an active stakeholder. Report on Proposed Eminent Domain Subsection/Liaison. Rich Rodriguez and Tom DeVine reported on efforts to add an eminent domain subcommittee or liaison to RESC. There is already active interest of approximately 30 real estate section members. The Chair will work directly with Rich Rodriguez on a statement of purpose and governing rules for this subcommittee with a goal of taking formal action in the RESC September meeting. Whiting Oil & Gas Co. v. ARCO. Fred Skillern gave a brief summary of the issues in which the Supreme Court has granted cert; particularly, whether statutory reformation of Rule Against Perpetuities, C.R.S (2), may be struck as unconstitutionally retrospective. The case summary from Fred s symposium materials is attached to these Minutes. A taskforce comprised of Tom DeVine, Fred Skillern, Julie Waggener, David Kirsch was appointed to recommend a formal RESC/CBA position to be supported through an amicus brief in this case. David Kirsch will inquire as to the position of the Trusts & Estates Section. Julie Waggener suggested a reminder of the Temple Buell holding (a malpractice claim can arise, even if a court upholds the enforceability of an agreement, if such agreement was drafted in such a manner as to trigger court review of the rule against perpetuities) be added to the Newsletter. Tomar Dev. Inc. v. Bent Tree, LLC. Mike Repucci gave a brief summary of the Chaffee County District Court s unique adoption of partial subordination in this case involving a private subordination agreement between two lien holders. Erik Foster and George Reeves observed that the Court may have intended to apply 3

4 equitable subrogation to the facts without expressly using such term. No further action was taken on this topic. B. Vice Chair Randy Alt 2012 Real Estate Symposium. Planning has begun for the 2012 symposium. Venues under consideration are currently Vail and Steamboat Springs. RESC Holiday Party. The holiday party is scheduled for December 6, 2011 at the home of Randy Alt. Directions and specific times to follow. C. Secretary Chris Payne Financial Report. The RESC has a balance of $92, on deposit as of July 31, Costs last month included the $10,000 contribution in support of the summer 2011 symposium. Costs were offset by collection of substantial member dues in July. Overview of Upcoming Legislative Session. Michael Valdez warned that, since 2012 will be an election year, we can expect a wild ride. In the addition to the Public Trustees bill, at least three stakeholder meetings are anticipated in advance of the upcoming session: (1) meeting with the Uniform Law Commissioners to discuss Colorado s adoption of various proposed uniform laws, including amendments to UCC Article 9; (2) meetings with a taskforce created by CBA President, David Masters, concerning the Uniform Collaborative Law Act; and (3) meeting with the Colorado Association of Home Builders to discuss possible legislation related to mechanics liens. D. Board of Governors Peter Griffiths No meetings of the Board of Governors have occurred since the last RESC meeting. The next meeting is scheduled for October 29. E. Legislative Policy Committee Jim Benjamin The legislature has adjourned, no further matters to report. V. Reports of Standing Committees. A. Interprofessional Candyce Cavanagh and Peter Griffiths Candyce Cavanagh summarized the actions and discussion items of the July 20, 2011 meeting of the Interprofessional Committee, a copy of her summary is attached to these Minutes. Representatives from CAR reported that: (1) there will likely be another agricultural property tax bill raised next session, and (2) the FTC has issued a statement that it will forbear from enforcing its MARS (Mortgage Assistance Relief Services) rules against real estate brokers and agents who assist financially distressed consumers in obtaining short sales. LTAC reported a 4

5 growing disagreement with County assessors over title companies ability to correct address typos in deeds with scrivener s affidavits. B. Title Standards Committee Julie Waggener Julie Waggener reported that a new standard on equal and unequal joint tenancies will soon be announced. C. Publications 1. The Colorado Lawyer. Erik Foster and Cynthia Shearer reported that two articles are under discussion. 2. Newsletter. It is anticipated that the next Newsletter will be published in early November. 3. Section Website. The website is up to date and functioning properly. D. Education 1. CLE. The fall real estate update has been scheduled for October 14, 2011 to be chaired and moderated by Deanne Stodden. Speakers have been confirmed. 2. Topical Lunches. Dates and venues for topical lunches have been selected through June 2012, including an October topical lunch to be held in Greeley. Randy Alt agreed to speak on the Colorado Private Transfer Fee Act on September 1, Future speakers and specific topics are under selection. E. Membership and Practice Development Fred Otis and Nicole Nies No report. F. Colorado Housing Council Catherine Hance and Deanne Stodden No report. G. Community Service/Charitable Rebecca Givens No report. H. Reports of Liaisons [Let the minutes reflect that, at approximately 5:00pm, the meeting was temporarily interrupted by Copper Conferencing who digitally reported: Hello, there appears to be no activity occurring in this meeting. Whereupon, it was further noted that the new member reception would follow prompt adjournment.] 5

6 1. Forms Committee. Kent Levine reported that several form changes were approved in the August committee meeting with a January effective date. 2. Ethics Committee. Judy McNerny provided a written report, which is attached to these Minutes, on the Supreme Court s recent approval of a change in Rule to conform to Model Rule 8.4. The change limits the types of criminal violations that may be grounds for professional discipline to those criminal acts that reflect adversely on a lawyer s honesty, trustworthiness or fitness as a lawyer. 3. Courts and Civil Rules. Fred Skillern provided materials on the Civil Access Pilot Project, which are attached to these Minutes. Implementation of the 2-year pilot project will start January Trust and Estate Section. David Kirch requested that a group from the Title Standards Committee meet with representatives of the Trust & Estate Section to discuss the Title Standards Committee s proposed revision to CRS dealing with successor trustees. Geoff Anderson will coordinate scheduling for any meetings with the Title Standards Committee. VI. Old Business None. VII. New Business None. VIII. Adjournment. The meeting was adjourned at 5:26 p.m. upon motion made by Randy Alt and seconded by Fred Otis. Respectfully submitted, Christopher W. Payne, Secretary 6

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