Otis, Bedingfield & Peters, LLC attorney Shannan de Jesús appointed to the Greeley Philharmonic Orchestra Board of Directors

1Otis, Bedingfield & Peters, LLC is proud to announce that attorney Shannan de Jesús has been appointed to The Greeley Philharmonic Orchestra Board of Directors.

The Greeley Philharmonic Orchestra is a not-for-profit organization, in its 105th season. It is the oldest orchestra in the West. As a board member, Shannan will help plan for upcoming seasons and help grow support for the orchestra. Shannan will also participate on the promotional subcommittee.
The Greeley Philharmonic Orchestra provides captivating and uplifting programs for a great evening out. The longevity of the orchestra is a result of their commitment to providing wonderful performances.

“I am excited about joining the Greeley Philharmonic Orchestra’s Board of Directors and working with others who are passionate about giving back to the community, promoting the arts, and sharing their love of classical music,” said Shannan de Jesús.

Ms. De Jesús’ practice with Otis, Bedingfield & Peters, LLC focuses on trademark and related intellectual property litigation, and business and probate litigation.

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Otis, Bedingfield & Peters, LLC provides a range of legal services throughout Northern Colorado. OBP has 14 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Shannan de Jesús at sdejesus@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or call 970-330-6700 or visit www.nocoattorneys.com.

Otis, Bedingfield & Peters, LLC attorney Christian J. Schulte appointed to the Greeley Chamber of Commerce Board of Directors

christian-120x180 2Otis, Bedingfield & Peters, LLC is proud to announce that attorney Christian J. Schulte has been accepted to The Greeley Chamber of Commerce Board of Directors.

The Greeley Chamber of Commerce is an investment organization that is driven to meet the needs of the businesses in our community. The chamber is a great source of information for assisting and promoting businesses.

The Greeley Chamber of Commerce Board of Directors develops and oversees the implementation of the Chamber’s Strategic Plan. They identify policies and initiatives for the benefit of all Chamber investors.

“I am truly pleased to be involved with the Greeley Chamber, because it does so much to help our city thrive. It’s a great group of people to work with, and I’m looking forward to doing my part,” said Christian J. Schulte.

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Otis, Bedingfield & Peters, LLC provides real estate law and business law services throughout Northern Colorado. OBP has 13 attorneys spread across its two offices in Greeley and Loveland.  For more information, contact Christian J. Schulte at cschulte@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or 970-330-6700 or visit www.nocoattorneys.com.

 

Fred L. Otis Honored for Excellence in Real Estate Law

Mr. Otis saw law as a way to serve people in his community

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GREELEY, CO, January 20, 2016, Fred L. Otis, Attorney of Otis Bedingfield & Peters, LLC, has been recognized by Martindale-Hubbell for showing dedication, leadership and excellence in real estate law and for holding an AV Preeminent Rating for more than 15 years.

“Fred has long been the go-to real estate lawyer in Northern Colorado,” said his partner Jennifer Lynn Peters. “It is nice to see him getting recognized on a national level for his long-standing commitment to excellence in real estate law.”

Mr. Otis is currently a managing member of the law firm of Otis, Bedingfield & Peters, LLC, where he routinely represents clients in all types of real estate transactions. He also works closely with the firm’s 12 other attorneys and is a champion of numerous community projects throughout Greeley and Weld County.

As an attorney, Mr. Otis is particularly skilled in the field of real estate law, and he is regularly responsible for handling commercial real estate and business transactions. He is admitted to practice in Colorado and before the United States District Court for the District of Colorado, the 10th Circuit Court of Appeals, and the U.S. Supreme Court.

During his over 40 years of practice as a real estate lawyer in Greeley, Colorado, Mr. Otis also served as a municipal court judge for the City of Greeley from 1979-1985, and as a director of the Northern Colorado Legislative Alliance from 1992-1997. He was a member of the Commission on Judicial Performance for the 19th Judicial District from 2000-2007, and he served on the Weld County Planning Commission from 1978-1983, and as chairman of the commission in 1982. Mr. Otis also taught real estate law at Aims Community College from 1977-1979. Prior to entering private practice, Mr. Otis served as a special agent for the Federal Bureau of Investigation from 1971-1976.

Looking back, Mr. Otis became involved in his profession because he enjoys serving people and wanted to serve more; he saw the law as a way to accomplish this, and he earned a JD from the University of Arkansas in 1972 to achieve his goal. He was recently inducted into Worldwide Registry and also maintains affiliation with the Weld County Bar Association and the Colorado Bar Association. As a testament to his sterling reputation, Mr. Otis maintains an AV-Preeminent Rating with Martindale-Hubbell, which he has held since 2001. Mr. Otis is looking forward to continuing to serve his clients throughout Northern Colorado.

For more information about Mr. Otis or Otis Bedingfield & Peters, LLC, visit http://nocoattorneys.com.

Business Attorney Corey W. Moore joins Otis, Bedingfield & Peters, LLC

Corey Moore 120X150Corey W. Moore joins OBP as an associate attorney in our Loveland office. Born in Broomfield, Colorado, Corey most recently worked as a law clerk at Donahoe & Young, LLP in Valencia, California, where he handled bankruptcy, business, and real estate matters.

A former middle and high school history teacher, Corey holds a BA in History from the University of California, Berkeley and earned his J.D. from Pepperdine University School of Law, where he focused on estate and tax planning. During his tenure at Pepperdine University, Corey gained valuable experience working in-house at a global fixed-income investment firm in London, a litigation and transactional firm in Denver, and with the Los Angeles County District Attorney’s Office Hardcore Gang Division. He also served as a fellow for Pepperdine’s Geoffrey H. Palmer Center for Entrepreneurship and the Law, where he counseled community members in developing and implementing business plans.

“We are happy to welcome Corey back to Colorado,” says managing member Tim Brynteson. “Our firm’s estate planning and business succession practice is growing and we are excited to have Corey add his knowledge and personality to the team.”

Corey is admitted to practice law in Colorado and is a member of the Colorado and American Bar Associations. His practice at OBP will focus on business and real estate transactions and estate planning.

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Otis, Bedingfield & Peters, LLC provides real estate law and business law services throughout Northern Colorado. OBP has 13 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Corey Moore at cmoore@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or 970-330-6700 or visit www.nocoattorneys.com.

Good for You: Windsor resident named to BizWest 40 Under Forty

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Look who made Windsor Now news! Congratulations Lee Morehead! Check out the article at the following link:

http://www.mywindsornow.com/news/18736485-113/good-for-you-windsor-resident-named-to-bizwest

Ruling on Endangered Species Act listing has wide implications

Kolanz-John[1]By: John Kolanz on September 18, 2015

Oil and gas and agricultural interests in Colorado and four nearby states celebrated a Texas federal judge’s ruling last week vacating Endangered Species Act protections for the lesser prairie chicken. Environmental interests were less enthused. While the ruling may ease the regulatory burden for certain entities in the region, its real significance could reach much further.

The judge found that the U.S. Fish and Wildlife Service misapplied the factors that it must consider to determine whether a species qualifies for ESA protection (i.e., “listing”). The Act requires FWS to consider, among other things, the adequacy of existing regulatory protections.  If non-ESA mechanisms sufficiently protect a species, it should not qualify for listing.

The ESA is widely considered the strictest of all environmental laws. Once its protections attach to a species, the Act can severely limit activities that may harm the species or its habitat. In the case of the prairie chicken, this had implications for routine oil and gas and agricultural operations within the species’ range.

In an effort to avert a listing, Colorado, Texas, New Mexico, Oklahoma and Kansas teamed with private interests to create a comprehensive rangewide conservation plan for the prairie chicken.  When implemented, the plan would raise funds through enrollment and mitigation fees, and use these funds to develop conservation measures. Landowners would dedicate “offset land” consisting of prairie chicken habitat to be enhanced and preserved to counter unavoidable impacts to habitat elsewhere in the range. Landowners would receive payment and other economic incentives to provide offset land to the program.

Despite these efforts, FWS listed the bird as threatened in April 2014. At the time of the listing decision, the plan had not yet been implemented.  Therefore, the service determined that participation in the plan, as well as its implementation and funding, were too uncertain to guarantee protection to the bird. FWS further concluded that not listing the bird would discourage participation in the plan. The judge rejected this analysis an improper application of the service’s own policy on evaluating forthcoming conservation efforts during listing decisions.

The judge held that for FWS to give weight to such emerging plans in its listing analysis, it need only find that the plans are likely to be implemented and effective. In assessing the likelihood of implementation, FWS should consider prior industry and landowner participation in similar conservation efforts, and whether the plan creates a “good deal” for landowners in which they will want to participate. The judge held that the Service’s application of a stricter standard rendered the lesser prairie chicken’s listing invalid.

The direct effect of the ruling will take some time to sort out. For instance, it is somewhat unclear whether it vacates the lesser prairie chicken’s listing only in Texas, or in all five states where the bird is present.

However, its larger impact will go beyond the present case.  For starters, the ruling could influence the upcoming listing decision for the greater sage grouse, due this month, as well as the pending appeal of the recent decision to list the Gunnison sage grouse. Both have significant implications for Colorado.

Moreover, FWS is scheduled to make many more listing decisions for species across the country.  Comprehensive mitigation plans have become a popular mechanism to help avoid listings, but have had varying success. The ruling should reinforce the importance of state, local, and private entity cooperation in developing comprehensive plans to protect vulnerable species.  Properly crafted and implemented, these plans can provide numerous benefits.

They can create markets for property owners, who often bear a disproportionate burden under the Act, to get paid for the ecosystem benefits their lands provide. Moreover, these plans offer far more certainty to the regulated community in terms of the cost and timing of activities and projects that would otherwise require ESA review.

The plans also can help local and state governments minimize economic disruptions for their citizens and businesses. They can further help ensure that FWS allocates its limited resources to those species truly needing ESA protection. Finally, at-risk species can benefit from early conservation efforts that could be implemented more quickly than those produced through individual ESA review.

While opportunities presented by each species will vary, in many cases, the potential benefit of encouraging such plans is widespread and substantial. What some may consider a defeat for the lesser prairie chicken actually could be a win for all.

John Kolanz is a partner with Otis, Bedingfield & Peters LLC in Loveland. He can be reached at 970-663-7300 or via email at JKolanz@nocoattorneys.com.

Otis, Bedingfield & Peters, LLC welcomes attorney Nathaniel Wallshein

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Nathaniel Wallshein joins the firm as a litigation associate. Before joining Otis, Bedingfield & Peters, Nate worked as a judicial fellow for the Honorable Norman D. Haglund. He most recently served as law clerk for the Honorable R. Michael Mullins of the Denver District Court.

“We are excited to bring a talented young lawyer like Nate to Northern Colorado and our firm,” says managing member Jennifer Lynn Peters. “Nate’s energy and passion for the law is infectious, and in the short time he has been with us he has already made a big contribution to our ongoing complex cases.”

Nate was born and raised in Northern Virginia. He received his undergraduate degree from the University of Connecticut and he earned his J.D. from the University of Colorado Law School. During law school, he worked as a law clerk for the Office of the Solicitor at the U.S. Department of the Interior, and as a law clerk for the Office of Chief Counsel at the U.S. Department of Energy.  Nate also worked as a student attorney for the Natural Resources Law Clinic. There he represented a variety of organizations in litigation concerning Forest Service approval of two coal leases within the Thunder Basin National Grassland.

Nate is admitted to practice in Colorado and is a member of the Colorado Bar Association. His practice at the firm will focus on complex commercial litigation, probate litigation and appeals.

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Otis, Bedingfield & Peters, LLC provides real estate law and business law services throughout Northern Colorado. OBP has 12 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Nathaniel Wallshein at nwallshein@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or 970-330-6700 or visit www.nocoattorneys.com.

New federal water rule taps reservoir of angst

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By: John Kolanz

It is largely about perspective. Some say the new federal rule defining the reach of the Clean Water Act will pave “the road to a regulatory and economic hell.” Others see it as a rollback of current protections that fails to close loopholes that have made the nation’s waters vulnerable to destruction by developers, corporate agriculture and general industry. Like most politically charged issues, however, the truth is somewhere in between.

Once effective later this summer, the new rule will provide the framework by which the federal government decides what waters receive CWA protection. This fundamental aspect of the Act remains confusing and contentious 40 years after its passage.

CWA regulation often brings to mind images of a sewage-treatment plant or large industrial facility discharging effluent into a river. While the Act certainly covers such activities, its application is much more extensive. For example, the Act also can apply to discharges of rainwater and snowmelt or placement of materials such as dirt, sand or gravel (“fill”) into protected waters.

This latter component of the Act, often called “dredge-and-fill” or “wetlands” permitting, is the component likely to be most affected by the new rule. This permitting program often covers routine activities related to oil and gas production and distribution, road building, agriculture, and all aspects of development, including construction of the family home. Therefore, changes in the Act’s coverage can impact many routine business activities, particularly in a region of dynamic growth, such as Northern Colorado.

The stakes can be high. Activities impacting protected waters require permits that can be difficult and expensive to obtain. Some projects may be denied permits. Even when issued, a permit creates binding obligations with potentially severe penalties for noncompliance.

The new rule is an attempt to clarify the reach of the Act because of uncertainty created largely by two U.S. Supreme Court opinions and subsequent government guidance on how to implement the Act in the wake of those opinions. The uncertainty led to many case-by-case determinations of coverage, creating permitting delays and inconsistent application of the Act.

To achieve clarity and certainty, the new rule draws bright lines to automatically protect certain waters. In some cases, these lines are based on distance to other protected waters, as opposed to scientific evaluation. However, despite the goal of certainty, the new rule also creates a potentially complicated test for extending the Act’s protections to a “catch-all” category that will include many waters not now typically captured.

On the other hand, the new rule specifically excludes some waters that the Act would otherwise cover. Perhaps most significantly in Colorado, the new rule excludes certain irrigation ditches, artificially irrigated areas that would revert to dry land in the absence of irrigation, and water-filled excavations created incidental to construction or mining. Moreover, the new rule leaves in place existing permitting exclusions, including rather extensive exclusions related to agriculture.

Some industry groups have condemned the new rule as an inappropriate (and illegal) extension of the Act, and have threatened to file suit to challenge the rule. Environmental groups who think the new rule does not go far enough may pursue similar challenges. Legislation to limit or prohibit implementation of the new rule also is a possibility.

Often missing from hyperbolic exchanges regarding the new rule is acknowledgment of the expansive reach of the existing rule. While the Act currently protects “more-obvious” waters such as the South Platte River, it also extends to “less-obvious” waters such as many irrigation ditches and even meadows that appear dry for much of the year.

Because of its different approach to identifying covered waters, the new rule will change the playing field for the regulated community. Just how much is difficult to know until the new rule is applied. Some waters currently covered by the Act no longer will be included, while some waters not currently covered will be. How any given project will be impacted will depend on its own unique circumstances.

John Kolanz is a partner with Otis, Bedingfield & Peters LLC in Loveland. He can be reached at 970-663-7300 or via email at JKolanz@nocoattorneys.com.

The Million Dollar Comma

Brandy 120X180The Million Dollar Comma

By: Brandy E. Natalzia

With the advent of legal service websites like Legal Zoom, Rocket Lawyer, nolo.com, etc., almost anyone can draft a will, a durable power of attorney, or a real estate contract.  People can even set up a limited liability company and draft their own divorce documents.  The advent of “cost effective” online legal services should be signaling the demise of the brick and mortar, flesh and blood attorney, right?

We’ve all heard the old adages:  “Pay now or pay later” and “Just enough information to be dangerous.”  That has never been more applicable than with the proliferation of self-help legal websites.  These websites offer form banks for standard documents and general legal and/or statutory guidelines.  But there are times when that may not be enough.  Have you ever heard of the “Million Dollar Comma”?  Often touted as rumor or some sort of urban legend, it is anything but.

One part of the U.S. Tariff Act of June 6, 1872 contained a sentence that intended to exempt the importation of semi-tropical and tropical fruit plants from tariffs. The sentence was meant to read “Fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation.” One comma, however, was mysteriously moved one word to the left during the copying process, thereby rendering the sentence as: “Fruit, plants tropical and semi-tropical for the purpose of propagation or cultivation.”

Importers of oranges and lemons and the like were quick to seize upon the misplacement and use it to their advantage. They contended that under the wording of the act, all tropical and semi-tropical fruit were exempt and thus could be brought into the U.S. without payment of the tariffs.

The Treasury initially ruled against this interpretation, but then later reversed itself and sided with the fruit importers. Most of the monies collected as duty on the import of tropical and semi-tropical fruit while the errant comma was in effect were refunded to those who had paid the fee.  That memorable punctuation error deprived the U.S. government of an estimated $1 million in revenues.

Of course, most of us aren’t dealing with something on the scale of the above example and that really isn’t a case of not having adequate legal representation; however, similar consequences are well within the realm of possibility for anyone.  Imagine, for example, that you have a modest estate and you love all three of your children equally.  Your spouse predeceased you and you would like to update your will to reflect your current situation.  So, you go online with the best intentions to draft a simple will that divides your estate equally among your three children.  You draft your will to leave your entire estate “to Child A, Child B and Child C, in equal shares.”  Despite your intentions, what you have now done constructively is to give Child A half of your estate while Child B and Child C will be left to divide the other half.  The proper drafting to achieve your desired result would have been to leave your entire estate “to Child A, Child B, and Child C, in equal shares.”  Thus, each child would thereby receive 33 1/3% of your estate. While this simple punctuation mistake may be overlooked by many, this missing comma could provide an heir with the legal grounds to contest the will.  What was intended to be a simple will could potentially result in a contentious and costly court battle.

Legal websites will tell you that drafting basic legal documents rarely involves complicated legal rules and most people do not need a lawyer’s help to draft those types of documents.  While that may be true, it’s not always the “complicated legal rules” that you need to look out for.  Sometimes it just may be worth it to pay a professional for that added peace of mind.

 

Trust – Probate

By: Timothy P. Brynteson

 

Estate planning attorneys are frequently asked by clients to explain the difference between a “will” and a “trust.”  This is normally in the context of planning for the disposition of assets upon the client’s death – so we surmise that clients are looking for information regarding the differences between and the benefits of both Wills and Living Trusts as testamentary instruments.   Many times, our clients will have the general impression that Living Trusts are “better” than Wills and have a notion that they may save taxes, may protect assets in some way, insure privacy and avoid probate, but they aren’t sure and want to understand how they work; and frequently, what we think of them.

Let me state at the outset that my bias is, more often than not, to guide our clients towards a Will as the basic testamentary instrument.   While Living Trusts certainly have their place, we don’t favor them as the default testamentary vehicle for reasons we will explain below.   However, we have drafted many Living Trusts and believe they are the most appropriate instrument in certain circumstances.  Of course, if a client really wants to work with a Living Trust as their preferred document, we will be happy to work with them.  After all, there isn’t a “right” or “wrong” way to make these plans.   Either document can help a client achieve most common estate planning objectives.  The rest of this article will briefly describe probate and wills, and some of the benefits of Living Trusts, along with some of the perils – as opposed to Wills.  Second, it will describe the situations in which Living Trusts may be preferable to a Will.

Probate and Wills

Before we discuss Revocable Living Trusts, it will be important to understand the probate process in our legal system and its role in property transfers.  When a person dies owning property, particularly “real property” (real estate) or titled property (automobiles, trailers, bank and investment accounts) – and the property is intended to be given to heirs or other devisees – how can this be done if the owner is dead?  The answer is through the probate process in most states.  “Probate” comes from the latin verb “probare” which means to “prove, try, test or examine.”   It is basically the process of submitting a will to the court for “testing” and distributing the assets as provided in the will of the deceased.  In Colorado, Personal Representative, named in the Will, is appointed as the responsible party by the Court.  This appointment grants the Personal Representative the authority to pay bills, settle accounts and distribute any property.  The process in Colorado (and most states) is fairly simple, inexpensive and un-intrusive.  Unless there are conflicts, the Court is not involved and the Personal Representative can handle most of the work, paying bills and distributing property according to the plan detailed in the Will.  However, for various reasons, some people would still like to avoid the probate process.  One way to do avoid the probate process is by establishing, and importantly, fully funding, a Living Trust.

Revocable Living Trusts

Essentially, a Revocable Living Trust is an entity into which one places all, or most, of one’s assets.  As the name implies, the trust can be amended or fully revoked at any time as long as you are alive.  The trust document, or “agreement” will normally give the grantor full control over all the assets and income in the trust.  In other words, your control over the assets doesn’t change, they are simply “owned” by the trust rather than you as an individual.  Ownership by the trust rather than the individual is what gives rise to both the benefits and potential problems of a Living Trust.

Because your assets are owned by the Trust rather than by you as an individual, the Trust doesn’t “die” when you do.  Therefore, when you pass away, your successor trustee (named in the Trust Agreement) simply takes over managing your assets and/or distributing them as you direct in the Trust Agreement.  In this way, the Living Trust avoid probate – there is no Will to “prove” and follow.   A related benefit is that even if you don’t die, but if you either cannot, or will not, manage your financial affairs, your successor trustee (hopefully someone you trust) can step in and manage your affairs i.e. pay bills, manage property and investments and otherwise contract on your behalf.

These benefits are only available if all of your assets are actually in the name of the trust.  This is the area where, in our experience, people may lose the potential benefits of a Living Trust.  Over  time, it is difficult to remember to have all your assets place in the name of the trust.  Bank accounts, real estate, investment accounts, life insurance, retirement accounts . . . all need to be owned by the Trust.  Sometimes, this just isn’t done at the beginning, or even if it is, over time, assets are bought and sold and habit takes over . . . people tend to forget to put them in the name of the trust.  If there are assets titled outside the Trust, at death, it may be necessary to open probate to handle those assets, thus defeating some of the benefits of a Trust.  In addition to requiring a bit more effort manage, Living Trusts typically cost more at the outset to set up than a Will which accomplish the same goals for the client.

Benefits of a Trust

Despite some of the burdens of preparing and administering a trust, there are two significant benefits to a Living Trust.  The first is for people who own real property titled in a different state.  Owning that property in a Living Trust rather than individually will allow that property to be distributed or managed after death without requiring opening a probate case in that state.  As stated earlier, the Trust does not “die” and so whomever is successor trustee may simply sell or otherwise manage the property without Court approval through the probate process in that state.

The second benefit is for individuals who are concerned about the management of their assets when they either lose capacity or interest.  While a Durable Power of Attorney can provide a trusted individual the necessary authority to manage one’s financial affairs, a Successor Trustee taking over under a trust agreement can be a simpler and smoother process.

Conclusion

Both Wills and Living Trusts can be effective documents for passing assets to heirs and devisees and both may be used to avoid or minimize estate taxes if properly drafted.  Living Trusts may provide the benefit of simpler management of assets by a third party (a successor trustee) during your incapacity than is sometimes available under only a Power of Attorney; and Living Trusts can help you avoid probate in a different state if you own property there.  Living Trusts will typically cost more to draft at the beginning and transfer your assets into the trust and can be more cumbersome to manage during your life.   Both documents (along with a power of attorney) are effective tools for clients and attorneys in planning for a client’s death and/or disability – it will be up to you and your counsel to decide on the right approach for your circumstances.