2023 Colorado Revised Statutes › Title 7 - CORPORATIONS AND ASSOCIATIONS (§§ 7-1-101 — 7-137-301) › CORPORATIONS AND ASSOCIATIONS (§§ 7-90-101 — 7-90-1005) › Article 90 - COLORADO CORPORATIONS AND ASSOCIATIONS ACT (§§ 7-90-101 — 7-90-1005) › Part 3 - FILING DOCUMENTS (§§ 7-90-301 — 7-90-315) › Section 7-90-314 - [Effective Until 8/7/2024] Fraudulent filings - complaint - review - referral to attorney general - referral to administrative law judge - marking filing as fraudulent - deceptive trade practice

(1)
Fraudulent filings.
The following actions are prohibited:
(a)
Including the name of a person on a document filed in the secretary of state's office under this part 3 without the named person's written consent if the person is included in the filing as:
(I)
The registered agent;
(II)
The individual causing the document to be delivered to the secretary of state's office for filing;
(III)
The person incorporating, forming, or organizing an entity; or
(IV)
Any other person required under this title 7 to be identified in a document filed in the secretary of state's office;
(b)
Including an address in a document filed in the secretary of state's office under this part 3 without the consent of the owner of or occupant of the included address; and
(c)
Delivering a document regarding an entity to the secretary of state's office if the individual who makes the delivery lacks the necessary written consent or authority to do so.
(2)
Complaint.
A person that is named in or otherwise affected by the filing of a document under this part 3 may submit a complaint to the secretary of state, on a form prescribed by the secretary of state, alleging that the filing was made in violation of subsection (1) of this section. The complaint must include at least the following information:
(a)
A description of the alleged violation;
(b)
The name; street address; telephone number; e-mail address, if available; and any additional contact information of the person making the complaint;
(c)
The name; street address; telephone number; e-mail address, if available; and any additional contact information of any third party authorized to submit the complaint by and on behalf of the person that is named in or affected by the filing;
(d)
The unique identification number assigned by the secretary of state to each filed document that is alleged to have been filed in violation of subsection (1) of this section;
(e)
The unique identification number assigned by the secretary of state to each entity associated with both the complaint and the filing;
(f)
Information, if known to the person making the complaint, identifying each person involved in the filing, including names, street addresses, telephone numbers, websites, and e-mail addresses;
(g)
Information, if known, identifying the nature of any business or personal relationship between the person submitting the complaint and each person involved in the alleged violation;
(h)
A statement by the person submitting the complaint, under penalty of perjury pursuant to section
7-90-301.5
, that the person believes in good faith that the facts stated in the complaint are true and that the complaint complies with the requirements of this part 3, the constituent documents, and the organic statutes; and
(i)
Any additional information that the person believes may assist in an investigation of the complaint.
(3)
Review - secretary of state.
(a)
Upon receipt of a complaint submitted pursuant to subsection (2) of this section, the secretary of state shall review the complaint and evaluate whether the complaint indicates a violation of subsection (1) of this section and satisfies the requirements of subsection (2) of this section. If so, the secretary of state, using electronic means, shall refer the complaint to the attorney general for review and investigation under the "Colorado Consumer Protection Act", article
1
of title
6
.
(b)
If the secretary of state determines that the information provided in a complaint does not indicate a violation of subsection (1) of this section or does not satisfy the requirements of subsection (2) of this section, the secretary of state shall notify the person that submitted the complaint of the fact and provide an explanation of any deficiencies in the complaint.
(c)
The secretary of state may ask a person who submits a complaint to submit additional information concerning:
(I)
The alleged violation of subsection (1) of this section; or
(II)
The person's failure to submit the information required by subsection (2) of this section.
(d)
The secretary of state shall notify the person who submitted a complaint of the outcome of the secretary of state's review of the complaint.
(e)
If the secretary of state rejects a complaint for failure to comply with subsection (1) or (2) of this section, the complaint may be resubmitted.
(4)
Review - attorney general - hearing and findings - administrative law judge.
(a)
Upon receipt of a complaint referred by the secretary of state in accordance with subsection (3)(a) of this section, the attorney general shall review the complaint and determine whether the complaint should be investigated. If the attorney general determines that the complaint should be investigated, the attorney general:
(I)
Shall mail a written notice and demand to the street address or mailing address, if different from the street address, as well as to the e-mail address, if available, of the registered agent of record listed in the secretary of state's online filing system for the entity at issue, and, if a telephone number is available, the attorney general shall contact the registered agent by telephone; and
(II)
May provide written or verbal notice and demand to any other point of contact that the attorney general determines through investigation to be a means by which to reach the entity at issue.
(b)
The attorney general's notice and demand must notify the entity at issue of the allegations in the complaint and demand that the entity respond to the complaint by a date certain, which response must include the information described in subsection (4)(c) of this section.
(c)
A person to whom the attorney general sends a notice and demand, or the person's agent, shall respond to the notice and demand within twenty-one days after the written notice and demand is mailed. The response must include the following information:
(I)
The name; street address; telephone number; e-mail address, if available; and any additional contact information of the person responding to the notice and demand and, if the responding person is an agent of the person to whom the notice and demand is sent, any supporting documents, including any registered agent information, that establish the agent's authority to act on the person's behalf;
(II)
The name of the entity at issue;
(III)
Information, if known, identifying each person involved in the alleged violation of subsection (1) of this section, including names, street addresses, telephone numbers, websites, and e-mail addresses;
(IV)
Information identifying the nature of any business or personal relationship between the person that submitted the complaint and each person involved in the alleged violation of subsection (1) of this section; except that this subsection (4)(c)(IV) does not require the disclosure of privileged information;
(V)
A statement by the entity at issue responding to the notice and demand that affirms or denies having knowledge of or information about the alleged violation of subsection (1) of this section;
(VI)
Material evidence of written consent to use the name or address in the filing at issue;
(VII)
A statement by the person responding to the notice and demand, under penalty of perjury pursuant to section
7-90-301.5
, that the person believes in good faith that the facts stated in the response are true and that the response complies with the requirements of this part 3, the constituent documents, and the organic statutes; and
(VIII)
Any additional information that the person responding to the notice and demand believes may be useful in an investigation of the complaint.
(d)
All information received by the attorney general under this section is governed by section
6-1-111 (2)
.
(e)
If, within twenty-one days after mailing a notice and demand, the attorney general does not receive a response in writing or otherwise, the attorney general shall send a second notice and demand, consistent with the requirements of this subsection (4), and allow twenty-one days for a response, which must comply with subsection (4)(c) of this section.
(f)
If the attorney general does not receive a response within twenty-one days after mailing a second notice and demand as described in subsection (4)(e) of this section, each allegation in the notice and demand is deemed conceded by the person that did not respond, and the attorney general may certify that fact to the secretary of state. Upon receiving the certification, the secretary of state shall take the appropriate remedial action under subsections (4)(g)(V) and (4)(g)(VI) of this section based on the facts conceded to in the notice and demand.
(g)
(I)
A request is timely if receipt of a response and a request for a hearing on any issue raised by the notice and demand is made within twenty-one days after the notice and demand is mailed. If a person timely requests a hearing, the attorney general may refer the complaint to an administrative law judge.
(II)
If the attorney general refers the complaint to an administrative law judge, the attorney general shall prosecute the matter before the administrative law judge. If the attorney general does not refer the complaint to an administrative law judge within one hundred eighty days after the attorney general receives the response to the notice and demand, the attorney general is deemed to have determined to not proceed with prosecuting the complaint.
(III)
The administrative law judge shall hold a hearing within sixty days after the attorney general refers a complaint and shall render a decision within fifteen days after the hearing. The administrative law judge may grant the attorney general or the person requesting a hearing an extension of up to thirty days upon a motion. The administrative law judge may grant the attorney general or the person requesting a hearing an extension of longer than thirty days upon a showing of good cause.
(IV)
If the administrative law judge finds that subsection (1) of this section has been violated, the administrative law judge shall make an additional finding as to whether:
(A)
An entity was created without authorization or for fraudulent purposes; or
(B)
An unauthorized filing was made.
(V)
If the administrative law judge finds that, or if a conceded notice and demand sets forth that, an entity was created without authorization or for fraudulent purposes, the attorney general shall notify the secretary of state, who shall:
(A)
Mark the business record with a notice that the entity is unauthorized or fraudulent;
(B)
Redact each address and name that was used without authorization from the entity's filing and from any other relevant filings; and
(C)
Disable additional filing functionality on the entity's records.
(VI)
If the administrative law judge finds that, or if a conceded notice and demand sets forth that, an unauthorized filing was made for a legitimate entity, the attorney general shall notify the secretary of state, who shall:
(A)
Mark each unauthorized filing for the entity to notify the public that the filing is unauthorized;
(B)
Redact each address and name that was used without authorization from the entity's filing and from the relevant filings; and
(C)
Mark the business record to notify the public that the entity has been the victim of fraudulent or unauthorized acts.
(VII)
The decision of the administrative law judge is final and subject to review by the court of appeals under section
24-4-106 (11)
. The secretary of state and the administrative law judge are not necessary parties to the review.
(h)
The attorney general shall communicate the finding made by the administrative law judge in accordance with subsection (4)(g)(IV) of this section to:
(I)
The person who submitted the complaint, using the e-mail address provided on the complaint form or, if an e-mail address was not provided, using the mailing address provided on the complaint form; and
(II)
Each entity at issue, using registered mail addressed to the street address or mailing address, if different, of the registered agent of record for the entity listed in the secretary of state's online filing system and to the e-mail address listed, if provided; and
(III)
The secretary of state.
(5)
A violation of subsection (1) of this section is a deceptive trade practice under section
6-1-105 (1)(ppp)
and is subject to enforcement by the department of law in addition to the enforcement described in this section. A determination by the administrative law judge as provided by subsection (4)(g)(IV) of this section or a failure to timely respond to a notice and demand as provided by subsection (4)(f) of this section constitutes a prima facie showing that subsection (1) of this section was violated.
Added by 2022 Ch. 326, § 1, eff. 2/1/2023.
2022 Ch. 326, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
This section is set out more than once due to postponed, multiple, or conflicting amendments.