a temporary order - Colorado Attorney General

GRANTEDIN PARTMovant shall serve copies of this ORDER onany pro se parties, pursuant to CRCP 5, andfile a certificate of service with the Courtwithin 10 days.DISTRICT COURT, CITY Dated: AND Jul COUNTY 01, 2010 OFDENVER, COLORADO1437 Bannock StreetDenver, CO 80202STATE OF COLORADO ex rel. JOHN W.SUTHERS, ATTORNEY GENERAL FOR THE STATEOF COLORADO, and LAURA E. UDIS,ADMINISTRATOR, COLORADO FAIR DEBTCOLLECTION PRACTICES ACT,William W. Hood IIIDistrict Court JudgeDATE OF ORDER INDICATED ON ATTACHMENTPlaintiffs,v.DAVID FAITH CORPORATION, d/b/a DAVIDFAITH & ASSOCIATES, and CHAD T. LEE,Defendants.t COURT USE ONLY tCase No. 2010CV5276Courtroom 7TEMPORARY RESTRAINING ORDERTHIS MATTER comes before the Court upon Plaintiffs’ ExParte Motion for Temporary Restraining Order and PreliminaryInjunction, dated July 1, 2010 (Motion). The Court, having readand considered the Motion and affidavit submitted therewith, andplaintiffs’ Verified Complaint, dated June 30, 2010, and beingotherwise advised in the premises,DOES HEREBY FIND, CONCLUDE, and ORDER, as follows:1. This Court has jurisdiction over this matter and theparties pursuant to § 12-14-135 of the Colorado Fair DebtCollection Practices Act, §§ 12-14-101, et seq., C.R.S. 2009(Act).2. Plaintiffs, through the Verified Complaint andaffidavit submitted with the Motion, have satisfactorily shown:(a) defendants have been and are regularly engaged, directly orindirectly, in consumer debt collection and otherwise acting asa collection agency; and (b) defendants do not hold a validColorado collection agency license.

3. Plaintiffs have also shown that, unless defendants areenjoined from doing so by this Court, they will continue withtheir unlicensed debt collection activity. For example,defendants continued collecting debts despite theAdministrator’s: (a) November 2009 cease and desist advisory;and (b) May 2010 license application denial.4. Act § 12-14-135 authorizes the Administrator to applyfor, and this Court to issue, an injunction “or otherappropriate order restraining any person from any violation ofthe” Act. Collecting debts and acting as a collection agencywithout a license violates the Act.5. The Act is a comprehensive regulatory licensingstatute. Because the Motion seeks injunctive relief under theAct, neither the requirements of Rathke v. MacFarlane, 648 P.2d648 (Colo. 1982), nor C.R.C.P. 65 apply. See, e.g., Kourlis v.District Court, 930 P.2d 1329 (Colo. 1997); State ex rel.Salazar v. Cash Now Store, Inc., 31 P.3d 161 (Colo. 2001).6. Nevertheless, plaintiffs have shown that:a. Defendants’ practices of collecting debts withouta license cause immediate and irreparable injury to thepublic.b. Plaintiffs have no adequate remedy at law and theremedy of a temporary restraining order is appropriateunder the circumstances.c. Defendants will not suffer any hardship by reasonof a temporary restraining order, as they are not entitledto engage in their debt collection activity without alicense.d. The public’s interest and the equities weigh infavor of enforcing the Act and restraining defendants’unlawful activities.IT IS THEREFORE ORDERED that defendants, and theirofficers, directors, agents, servants, employees, attorneys,heirs, successors, and assigns, together with all persons inactive concert or participation with them who receive actualnotice of this order, are hereby IMMEDIATELY ENJOINED ANDRESTRAINED from engaging, directly or indirectly, in consumerdebt collection or otherwise acting as a collection agencywithout a validly issued Colorado collection agency license orotherwise violating the Act. This includes, without limitation:2

• PROHIBITING all such persons from collecting or receivingany monies from any consumers, whether by withdrawing ordebiting any consumer’s bank, credit card, debit card, orother accounts or otherwise;• REQUIRING defendants to provide to the State, withinseven days of the date hereof, a complete list of allconsumers from whom defendants collected or attempted tocollect, directly or indirectly, debts the consumersallegedly owed, showing, as to each such consumer, theconsumer’s name, address, and amounts of any moniescollected; and• PROHIBITING all such persons from withdrawing,transferring, spending, encumbering, giving away, or inany way disposing of any monies in any bank accounts intowhich they may have deposited any monies collected fromconsumers, and all such bank accounts are hereby frozen.IT IS FURTHER ORDERED that the Court will hear the Motion’srequest for a preliminary injunction on _____________, 2010, at________ o’clock a.m./p.m., in Courtroom __, Denver DistrictCourt, 1437 Bannock Street, Denver, Colorado 80202.ENTERED this ___ day of ______, 2010, at ______ o’clock.This order shall remain in effect until further order of theCourt.BY THE COURT:District Court JudgeAG ALPHA:AG File:LW CB HZGQB\\S_DOL_2\DATA\UC\UCCHESPZ\CAB\DAVID FAITH CORP\ORDER (TRO - PROPOSED).DOCX3

Court: CO Denver County District Court 2nd JDJudge: William W HoodFile & ServeTransaction ID: 31932097Current Date: Jul 01, 2010Case Number: 2010CV5276Case Name: ST OF COLO et al vs. DAVID FAITH CORP et alCourt Authorizer: William W Hood IIICourt AuthorizerComments:The Court adopts the proposed order in its entirety with the following exception: Chad T. Lee is not required, inhis individual capacity, to provide a list of consumers from whom defendants collected or attempted to collect anydebts. David Faith Corporation, d/b/a David Faith & Associates, however, is required to provide the listreferenced in the proposed order. The Court makes this distinction because of concerns about production of thelist implicating Mr. Lee's right to avoid compelled self-incrimination. The allegations in the verified complaintcould give rise to criminal prosecution under C.R.S. 12-14-115(1)(a). Any person who violates the foregoingstatute commits a class 1 misdemeanor. C.R.S. 12-14-128(1) and 12-14-129. Artificial entities, such ascorporations, may not invoke the privilege against self-incrimination. Doe v. U.S., 487 U.S. 201, 206 (1988). Aperson, however, may, even in a civil proceeding. Steiner v. Minn. Life Ins. Co., 85 P.3d 135, 139-40(Colo.2004). The Court may not compel him to create a list that could subsequently furnish a link in the chain ofcriminal prosecution. See Hoffman v. U.S., 341 U.S. 479, 486 (1951). Even if such a list already exists, anindividual may resist a request for documents on the ground that the act of production will itself be incriminating.Compare Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976) (act of producingevidence in response to a subpoena has communicative aspects wholly aside from the contents of the papersproduced) with People ex rel. Public Utilities Com'n v. Entrup, 143 P.3d 1120, 1122 (Colo. App. 2006) (anindividual who acts as an agent for a corporation or other collective entity may not claim a Fifth Amendmentprivilege with respect to production)./s/ Judge William W Hood III