Case 1:15-cv-00690-MEH Document 4 Filed 04/02/15 USDC Colorado Page 1 of 6 EL PASO COUNTY DISTRICT COURT 270 South Tejon Street Colorado Springs, CO 80903 DATE FILED: March 30, 2015 3:24 PM FILING ID: FCD79F5C40347 CASE NUMBER: 2014CV34548 Plaintiffs: DARIN ZARUBA; and Z, INC., d/b/a ZINC HOMES, v. Defendants: THE BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF EL PASO COUNTY; ROBERT C. BALINK, in his capacity as the former EL PASO COUNTY TREASURER; MARK LOWDERMAN, in his capacity as the EL PASO COUNTY TREASURER; GINA TRIVELLI, in her capacity as the El Paso County Tax Compliance Administrator. M. James Zendejas STINAR & ZENDEJAS, LLC Attorneys for Plaintiffs 121 East Vermijo Avenue, Suite 200 Colorado Springs, CO 80903 Telephone: (719) 635-4200 Fax: (719) 635-2493 Email: Jim@coloradolawgroup.com Attorney Reg. # 23460 COURT USE ONLY Case No. 14 CV 34548 Division No. Courtroom: AMENDED COMPLAINT Plaintiffs, by and through counsel, Stinar, Zendejas & Gaithe, LLC, and hereby submit this Amended Complaint as follows: I. PARTIES, VENUE AND JURISDICTION 1. Darin Zaruba is an individual residing in El Paso County, Colorado. 2. Z, INC., is a Colorado corporation doing business as Zinc Homes. 3. Defendant Board of County Commissioners ( BOCC ) is a statutory governmental entity for El Paso County ( EPC ) within the state of Colorado. It is a person within the meaning of 42 U.S.C. 1983. -1- Exhibit A
Case 1:15-cv-00690-MEH Document 4 Filed 04/02/15 USDC Colorado Page 2 of 6 4. Defendant Robert C. Balink, was the EPC Treasurer and was charged with the operation and management of the EPC Treasurer's office. He is sued in his official capacity. 5. Defendant Mark Lowderman, is the current EPC Treasurer and is charged with the operation and management of the EPC Treasurer's office. He is sued in his official capacity. 6. Defendant Gina Trivelli is the current EPC Tax Compliance Administrator and is sued in her official capacity. 7. Venue and jurisdiction are proper as the acts complained of occurred in El Paso County, Colorado. II. OPERATIVE FACTS 8. On November 15, 2013, Darin Zaruba purchased thirty-five (35) mobile home tax liens at a tax lien auction totaling $6,573.42. From that point on, Mr. Zaruba received payments on the tax liens. 9. On August 6, 2014, the El Paso County Treasurer sent out a Notification of Expiration of Redemption Period letter to the remaining homeowners with liens, stating in pertinent part: [T]he redemption period will expire on November 14, 2014 if the tax lien is not paid prior to November 14, 2014, a certificate of ownership will to the tax lien purchaser. The certificate of ownership will transfer ownership of your manufactured home to the tax lien purchaser. 10. On October 9, 2014, the El Paso County Treasurer sent out a Final Notification letter to the remaining homeowners stating in pertinent part delinquent taxes must be paid on or before 4:30 p.m. November 20, 2014. 11. On October 20, 2014, Mr. Zaruba sent in applications for certificates of ownership for sixteen (16) liens that remained unpaid. Mr. Zaruba paid the accrued taxes and fees outstanding for a total of $1,637.47. 12. During the timeframe of November 10 through November 14, 2014, a Ms. Ashton Hennessy, 541AE Schedule #... 93100-10-361 went to the EPC Treasurer in an attempt to make payment arrangements. She was denied that opportunity by a manager who advised that the deadline for payment was November 14, and if the payment was not -2-
Case 1:15-cv-00690-MEH Document 4 Filed 04/02/15 USDC Colorado Page 3 of 6 made, Ms. Hennessy would lose her home. On November 14, Ms. Hennessy paid off the lien, and the lien was released. By statute, the redemption period ended at close of business on November 14, 2014. 13. During the timeframe of November 15 through November 20, 2014, the County allowed six (6) additional tax liens to be paid off as follows: 11/17/2014 Schedule Number 93000-08-612 11/17/2014 Schedule Number 93100-09-675 11/18/2014 Schedule Number 93100-08-946 11/19/2014 Schedule Number 93100-09-758 11/20/2014 Schedule Number 93100-00-845 11/20/2014 Schedule Number 93100-10-333 14. On November 19, 2014, Mr. Zaruba arrived for the 2014 tax lien sale and inquired which Certificates of Ownership ( Certificates ) he could pick up from last year s remaining Certificates. Mr. Zaruba was advised that he had four Certificates (4) which were not redeemed, but he could not pick them up as the Treasurer s office was still working on them. Mr. Zaruba responded that he didn t understand this position, as the redemption period had expired. He was informed, in effect, as follows: (a) we are making calls to them [various people] and doing everything we can to get them in here to pay; (b) we have reached a few of the people, not sure how many are still going to actually come in; (c) I will let you know on Monday where we are at with them; (d) mobile home redemptions are kind of a gray area; and (e) we try to help people as much as possible, and we don t like to kick people out of their homes you understand. 15. Immediately following the 2014 auction, Mr. Zaruba requested a meeting with the El Paso County Treasurer. During said meeting, Mr. Balink stated that he didn t know what the exact process was, but that he would look into it and respond to Mr. Zaruba that day with an answer. 16. On November 21, 2014, Mr. Zaruba received an email from Mr. Balink stating in pertinent part: -3-
Case 1:15-cv-00690-MEH Document 4 Filed 04/02/15 USDC Colorado Page 4 of 6 August through November Diligent effort to ensure the owner of record and lien holder have received notice that a Certificate of Ownership will be issued if the taxes are not paid by the redemption expiration date. 17. After receipt of Mr. Balink s email, Mr. Zaruba requested a meeting with Mr. Balink and Gina Trivelli, the Tax Compliance Administrator in charge of the process. Mr. Zaruba inquired about the number of Certificates he was owed and was informed that he only had one left: Schedule number 9310008352, which was ultimately mailed to him. 18. On December 4, 2014, Mr. Zaruba met with Ms. Trivelli who informed him that she had met with the staff to review the statutes, admitting that the Treasurer s office obviously had issues with the dates and timelines. Ms. Trivelli advised that the office would subsequently be changing their internal policy and would provide Mr. Zaruba a copy. III. FIRST CLAIM FOR RELIEF (42 U.S.C. 1983 AND EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION) (DAMAGES AGAINST ALL DEFENDANTS) 19. Plaintiffs incorporate by reference paragraphs 1 through 18 above as if fully set forth herein. 20. The acts identified above were acts committed by BOCC as an official custom, practice or policy of the BOCC and EPC. 21. The official custom, practice or policy of the BOCC and EPC in regard to allowing persons without an economic or equitable interest to redeem tax liens was the cause infact of Plaintiffs deprivation of rights guaranteed to him pursuant to the 14th Amendment. Violation of those rights by the BOCC and EPC is actionable pursuant to 42 U.S.C. 1983. 22. Defendants BOCC, EPC, Balink, Lowderman and Trivelli were state actors who acted under color of state law in causing Plaintiffs deprivation of constitutional rights. 23. As the direct and proximate result of the acts of Defendants BOCC, EPC, Balink, Lowederman and Trivelli, Plaintiffs have suffered and will continue to suffer damages. -4-
Case 1:15-cv-00690-MEH Document 4 Filed 04/02/15 USDC Colorado Page 5 of 6 V. THIRD CLAIM FOR RELIEF (INJUNCTIVE RELIEF) (AGAINST BOCC, EPC, LOWEDERMAN AND TRIVELLI) 24. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 23 above as if fully restated and realleged herein. 25. The policies, customs, practices and acts of all of the defendants alleged above violated Plaintiffs rights under the Fourteenth Amendment. Violation of those rights is actionable pursuant to U.S.C. 1983. 26. As a result of the policies, customs, practices and acts of the Defendants, the Plaintiffs have suffered violations of his rights under the Fourteenth Amendment, and, therefore under 42 U.S.C. 1983. 27. Unless immediately, preliminarily and permanently enjoined from continuing to allow persons without an economic or equitable interest to redeem tax liens, the Defendants will continue to engage in conduct which will violate the Plaintiffs constitutional rights which will constitute irreparable injury for which the Plaintiffs have no adequate remedy at law. VI. FOURTH CLAIM FOR RELIEF (DECLARATORY RIGHT ACTION AS TO VALIDITY OF NON-ISSUANCE OF CERTIFICATES OF OWNERSHIP) (AGAINST BOCC, EPC, LOWDERMAN AND TRIVELLI) 28. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 27 above as if fully restated and realleged herein. 29. C.R.C.P. Rule 57 and C.R.S. 13-51-101 provide for declaratory relief. 30. Plaintiffs seek a declaration that Defendants violated the tax lien redemption period by Defendants failure to issue certificates of ownership to Plaintiffs upon proper application by Plaintiffs. 31. Unless immediately, preliminarily and permanently enjoined from continuing to allow persons without an economic or equitable interest to redeem tax liens, the Defendants will continue to engage in conduct which will violate the Plaintiffs constitutional rights which will constitute irreparable injury for which the Plaintiffs have no adequate remedy at law. -5-
Case 1:15-cv-00690-MEH Document 4 Filed 04/02/15 USDC Colorado Page 6 of 6 VII. REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in its favor and against Defendants, and an award it all relief as allowed by law, including, but not limited to: a. Declaratory relief and injunctive relief as may be appropriate; b. Actual economic damages established at and after trial; c. Compensatory damages, including, but not limited to, those for future pecuniary and non-pecuniary losses, and other non-pecuniary losses; d. Equitable relief in the form of the issuance of a writ requiring Defendants to issue all tax deeds for which Plaintiffs paid and applied for; e. Pre-judgment and post-judgment interest at the highest lawful rate; f. Attorney fees and costs pursuant to 42 U.S.C. 1988; and g. Any other relief the Court deems just and appropriate under the circumstances. PLAINTIFFS DEMAND A JURY TRIAL ON ALL ISSUES TRIABLE TO A JURY DATED this 30 th day of March, 2015. STINAR, ZENDEJAS & GAITHE, LLC Duly signed original on file s/ M. James Zendejas M. James Zendejas #23460 Plaintiff s Address: 1465 Kelly Johnson Blvd., Suite 200-Z Colorado Springs, CO 80920-6-