Lackner v. King, 96CA1340
| Citation | 972 P.2d 690 |
| Decision Date | 11 June 1998 |
| Docket Number | No. 96CA1340,96CA1340 |
| Parties | 98 CJ C.A.R. 3037 Edward J. LACKNER, individually; Doris K. Lackner, individually; and Richard I. Kornfeld, individually, Plaintiffs-Appellants, v. Paul W. KING, Defendant, and concerning Ina M. Lagae, Intervenor-Appellee. . II |
| Court | Colorado Court of Appeals |
Elrod, Katz, Preeo, Look, Moison & Silverman, P.C., Jersey M. Green, Denver, for Plaintiffs-Appellants.
No Appearance for Defendant.
Banta, Hoyt, Everall & Farrington, Richard J. Banta, Englewood, for Intervenor-Appellee.
Opinion by Judge JONES.
Plaintiffs, Edward J. Lackner, Doris K. Lackner, and Richard I. Kornfeld, appeal from a judgment entered on an objection to and traverse of notices of levy or seizure. We vacate the judgment and remand with directions.
The primary issue to be determined here is whether a personal representative's deed conveyed to defendant, Paul W. King, an ownership interest in property which is subject to execution by plaintiffs as King's judgment creditors.
The levy or seizure on the property in question arises from plaintiffs' attempts to satisfy two default judgments against King. In July 1995, default judgments were entered in favor of plaintiffs, Edward J. and Doris K. Lackner and against King in the amounts of $136,134.85 and $161,720.60, respectively, plus fees and costs. One month later, in August 1995, default judgment was entered in favor of plaintiff Richard I. Kornfeld and against King in the amount of $27,135, plus fees and costs. In total, the judgments against King and in favor of plaintiffs equal $324,990, exclusive of attorney fees, interest, and costs.
In December 1995, plaintiffs attempted to satisfy their judgments by serving King with a notice of levy or seizure on three parcels of real property located in Douglas County. These parcels of land had been conveyed to King and another in December 1993 via a personal representative's deed executed by intervenor, Ina May Lagae. The deed, which was recorded on January 5, 1995, conveyed the property to King as co-trustee of the "J.Y. Lagae Revocable Trust." King, along with the other trustee, executed a trust registration statement on January 26, 1995, pursuant to § 15-16-101, C.R.S.1997.
An affidavit of trust was also recorded on March 6, 1995, pursuant to § 38-30-166, C.R.S.1997. However, the affidavit does not include a description of the property, and it fails to make reference to the deed.
In response to plaintiffs' notices of levy or seizure, King filed an objection and a claim of exemption, arguing that his only interest in the property was as co-trustee in a fiduciary capacity. In addition, after receiving permission to intervene, Lagae filed a motion to quash and to set aside the notices of levy or seizure, claiming that the property is owned by the "J.Y. Lagae Revocable Trust," of which she is the sole beneficiary during her lifetime.
After a hearing on the matter, the trial court granted the motion, concluding that the property was conveyed to King in his fiduciary capacity for the benefit of the trust. Accordingly, it quashed and set aside the notices of levy or seizure.
On review, we must determine whether King has an interest in the property which is subject to execution by his creditors.
The basis for the trial court's conclusion that King did not possess an ownership interest in the property was that the affidavit of trust provided notice of King's fiduciary capacity, thereby satisfying the requirements of § 38-30-108, C.R.S.1997. We disagree with this conclusion.
Section 38-30-108 sets forth the guidelines a grantor must follow in order to provide notice that the grantee is being conveyed real estate, or an interest therein, in a representative capacity. This statute provides:
[In] all instruments conveying real estate, or interests therein, in which the grantee is described as trustee, agent, conservator, executor, administrator, or attorney-in-fact, or in any other representative capacity, said instruments shall also name the beneficiary so represented and define the trust and other agreement under which the grantee is acting, or refer, by proper description to book, page, document number, or file[,] to an instrument, order, decree, or other writing which is of public record in the county...
To continue reading
Request your trial
-
Pandy v. Indep. Bank
...in any other manner permitted by law.¶ 25 Section 38–30–108.5 was enacted in response to the division's decision in Lackner v. King , 972 P.2d 690 (Colo. App. 1998), rev'd sub nom. Lagae v. Lackner , 996 P.2d 1281 (Colo. 2000). See R. Sterling Ambler, Title to Colorado Real Property Held in......
-
Lagae v. Lackner
...Justice HOBBS delivered the Opinion of the Court. We granted certiorari to review the court of appeals opinion in Lackner v. King, 972 P.2d 690 (Colo.App.1998).1 This appeal arises out of the attempted seizure of trust property to satisfy a co-trustee's individual debts. Judgment creditors ......
- Joshua G. v. Heather E G..G.