     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          December 26, 2019

                               2019COA186

No. 18CA2261, Gunderson v. Weidner Holdings, LLC — Uniform
Commercial Code — Negotiable Instruments — Statute of
Limitations

     A division of the court of appeals considers the applicable

statute of limitations for two payable-on-demand promissory notes.

The division concludes that because the promissory notes are

negotiable instruments, the more specific statute of limitations

under Colorado’s Uniform Commercial Code (UCC) applies, not the

general six-year statute of limitation applied by the trial court. And

because the promissory notes are demand notes on which no

principal or interest has been paid and because suit was filed

within ten years of execution of the notes and within six years of

demand being made, the action is not time-barred.
    Accordingly, the division reverses the trial court’s summary

judgment.
COLORADO COURT OF APPEALS                                         2019COA186


Court of Appeals No. 18CA2261
Mesa County District Court No. 17CV30328
Honorable Brian J. Flynn, Judge


Jerry Gunderson,

Plaintiff-Appellee,

v.

Weidner Holdings, LLC and William Weidner,

Defendants-Appellants.


                      JUDGMENT REVERSED AND CASE
                       REMANDED WITH DIRECTIONS

                                  Division VI
                         Opinion by JUDGE WELLING
                       Berger and Martinez*, JJ., concur

                         Announced December 26, 2019


Joseph Coleman & Associates, LLC, Joseph Coleman, Isaiah Quigley, Grand
Junction, Colorado, for Plaintiff-Appellee

Dackonish & Blake, P.C., Thomas W. Blake, Grand Junction, Colorado, for
Defendants-Appellants


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    This case centers on which statute of limitations applies to two

 payable-on-demand promissory notes, one of which is secured by a

 deed of trust on real property. Citing Mortgage Investments Corp. v.

 Battle Mountain Corp., 70 P.3d 1176 (Colo. 2003), the district court

 applied the general six-year statute of limitations, not the one

 applicable to negotiable instruments under the Uniform

 Commercial Code (UCC). Based on this, and its conclusion that a

 claim to enforce a payable-on-demand promissory note accrues

 when the note is executed, the district court granted summary

 judgment in favor of plaintiff, Jerry Gunderson. Defendants,

 William Weidner and Weidner Holdings, LLC, appeal the district

 court’s order for summary judgment. Because we conclude that the

 UCC applies and that under the UCC’s limitations period Weidner

 Holdings’ claim to enforce the promissory notes is not time barred,

 we reverse the district court’s judgment.

                           I.   Background

¶2    Jerry Gunderson and his wife, Kimberly Gunderson, asked

 Kimberly’s father, William Weidner, to provide them with money to

 purchase a home. Through his limited liability company, Weidner

 Holdings, Mr. Weidner disbursed two lump sums to the couple in


                                   1
 order to fund the real estate purchase. On June 19, 2009, the

 Gundersons executed two promissory notes in the amounts of

 $739,000 and $150,000, respectively. The promissory notes were

 explicitly payable on demand and bore a nominal annual interest

 rate of 0.75 percent. The $739,000 note was secured by a deed of

 trust; the $150,000 note was unsecured. The promissory notes did

 not require any periodic payments of interest or principal. And the

 Gundersons made none.

¶3    Later, the Gundersons asked Mr. Weidner to forgive the notes

 so that they could sell the property encumbered by the larger note

 and purchase property in Montana. Mr. Weidner declined the

 request. But he did agree to release the deed of trust on the

 property the Gundersons were selling and take a subordinated

 security interest in the Montana property. The Gundersons then

 moved to Montana. Soon after, the Gundersons separated and

 began dissolution of marriage proceedings.

¶4    After the Gundersons filed for divorce in Montana, Mr.

 Weidner, on behalf of his limited liability company, called the two




                                   2
 notes due against Mr. Gunderson.1 Mr. Weidner demanded

 payment on March 9, 2017, almost eight years after the notes were

 executed. After Mr. Weidner demanded repayment, Mr. Gunderson

 sued in Colorado district court, seeking a declaratory judgment that

 the money was a gift, never to be repaid. Mr. Gunderson also

 contended that the statute of limitations barred Mr. Weidner’s and

 his limited liability company’s efforts to enforce the notes.

¶5    On July 19, 2017, Weidner Holdings asserted counterclaims,

 seeking a declaratory judgment that the disbursed funds were loans

 and not gifts and that its enforcement action was not time barred.

 Weidner Holdings also sought to enforce the promissory notes

 against Mr. Gunderson. Mr. Gunderson then moved for summary

 judgment, seeking application of the statute of limitations to

 preclude enforcement of the notes and to extinguish the deed of

 trust.

¶6    Mr. Gunderson contends the general statute of limitations,

 section 13-80-103.5, C.R.S. 2019, applies to the notes, while the

 Weidner defendants contend that the statute of limitations under


 1Weidner Holdings seeks to enforce the notes against Jerry
 Gunderson, but not Mr. Weidner’s daughter, Kimberly Gunderson.

                                    3
 Colorado’s UCC, section 4-3-118, C.R.S. 2019, applies to the

 notes.2

¶7      The district court granted Mr. Gunderson’s motion for

 summary judgment, concluding that Colorado’s general six-year

 statute of limitations applied to the notes, that any claim on the

 notes accrued when they were executed, and therefore that Weidner

 Holdings’ claim for enforcement of the notes is time barred. Mr.

 Weidner and his limited liability company appeal.

                  II.   Applicable Statute of Limitations

                           A.   Legal Principles

¶8      We review an order granting a motion for summary judgment

 de novo. Salas v. Grancare, Inc., 22 P.3d 568, 571 (Colo. App.

 2001). Summary judgment is only appropriate when there is no

 genuine issue of material fact. C.R.C.P. 56(e). In reviewing a

 motion for summary judgment, “the nonmoving party is entitled to

 any favorable inferences that may reasonably be drawn from the

 facts, and all doubts must be resolved against the moving party.”




 2   Neither party disputes that Colorado law applies.

                                     4
  Clementi v. Nationwide Mut. Fire Ins. Co., 16 P.3d 223, 225-26 (Colo.

  2001).

¶9     Which statute of limitations applies is a question of law that

  we review de novo. Castle Rock Bank v. Team Transit, LLC, 2012

  COA 125, ¶ 16. A statute of limitations prescribes the time during

  which an action must be brought. The purposes of statutes of

  limitation are to promote justice, discourage unnecessary delay,

  and preclude the prosecution of stale claims. Sulca v. Allstate Ins.

  Co., 77 P.3d 897, 899 (Colo. App. 2003). The statute of limitations

  is an affirmative defense, C.R.C.P. 8(c), that must be pleaded and

  proved by the defendant. Zertuche v. Montgomery Ward & Co., 706

  P.2d 424, 426 (Colo. App. 1985); cf. Drake v. Tyner, 914 P.2d 519,

  523 (Colo. App. 1996) (concluding that the defense adequately

  raised a statute of limitations defense in its summary judgment

  motion).

                              B.   Analysis

¶ 10   So, which statute of limitations controls a cause of action to

  enforce the promissory notes? Mr. Gunderson contends (and the

  district court agreed) that section 13-80-103.5(1)(a), the general




                                    5
  statute of limitations applicable to liquidated debts, applies. That

  section provides:

              (1) The following actions shall be commenced
              within six years after the cause of action
              accrues and not thereafter:

              (a) All actions to recover a liquidated debt or
              an unliquidated, determinable amount of
              money due to the person bringing the action,
              [and] all actions for the enforcement of rights
              set forth in any instrument securing the
              payment of or evidencing any debt . . . .

  § 13-80-103.5.

¶ 11   The Weidner defendants, on the other hand, contend that the

  two promissory notes are negotiable instruments, and that as

  payable-on-demand negotiable instruments, an action to enforce

  them is subject to the limitations period in section 4-3-118, which

  provides:

              [I]f demand for payment is made to the maker
              of a note payable on demand, an action to
              enforce the obligation of a party to pay the
              note must be commenced within six years after
              the demand. If no demand for payment is
              made to the maker, an action to enforce the
              note is barred if neither principal nor interest
              on the note has been paid for a continuous
              period of ten years.

  § 4-3-118(b).



                                      6
¶ 12   The key, undisputed facts affecting the statute of limitations

  analysis are:

          • The promissory notes were executed on June 19, 2009.

          • The promissory notes are payable on demand and

            payments of principal and interest have never been

            made.

          • Demand for payment wasn’t made until March 9, 2017

            (just shy of six years and nine months after the

            promissory notes were executed).

          • Suit to enforce the promissory notes was initiated on July

            19, 2017 (eight years and one month after the promissory

            notes were executed).

¶ 13   Based on the undisputed facts, it is uncontested that if section

  13-80-103.5(1)(a) applies (and assuming that a claim on a payable-

  on-demand promissory note accrues when it is executed), then

  Weidner Holdings’ action to enforce the promissory notes is time

  barred. This is so because demand for payment was not made until

  more than six years after the promissory notes were executed. See

  § 13-80-103.5(1)(a). It is also uncontested that if section 4-3-118(b)

  applies instead, then the Weidner Holdings’ action to enforce the

                                    7
  promissory notes is not time barred. This is so because demand for

  payment was made within ten years of the notes being executed

  and because suit was filed within six years after demand was made.

  See § 4-3-118(b). Simply put, whether the district court properly

  granted summary judgment turns on which statute of limitations

  applies.

¶ 14   To resolve this question, we must first address whether the

  promissory notes are negotiable instruments. If they are, we must

  next determine whether securing them with a deed of trust defeats

  negotiability. Answering both of these questions in favor of

  negotiability, we then consider whether the supreme court case on

  which the district court relied — Mortgage Investments Corp. v.

  Battle Mountain Corp., 70 P.3d 1176 (Colo. 2003) — controls; we

  conclude that it does not control the disposition of this case. Based

  on this analysis, we finally conclude that the UCC’s statute of

  limitations, section 4-3-118(b), governs and that the district court’s

  application of the general statute of limitations, section 13-80-

  103.5, was erroneous.




                                    8
         1.    The Promissory Notes Are Negotiable Instruments

¶ 15   Article 3 of the UCC governs the issuance, transfer,

  enforcement, and discharge of negotiable instruments. Liberty

  Mortg. Corp. v. Fiscus, 2016 CO 31, ¶ 13. Whether a promissory

  note is a negotiable instrument is a question of law that we review

  de novo. Cf. Reid v. Pyle, 51 P.3d 1064, 1067 (Colo. App. 2002)

  (appearing to treat the question of whether a promissory note is a

  negotiable instrument as a question of law); DBA Enters., Inc. v.

  Findlay, 923 P.2d 298, 303 (Colo. App. 1996) (same).

¶ 16   Under the UCC, a negotiable instrument is an “unconditional

  promise or order to pay a fixed amount of money, with or without

  interest or other charges described in the promise or order” if it:

              (1) Is payable to bearer or to order at the time
              it is issued or first comes into possession of a
              holder;

              (2) Is payable on demand or at a definite time;
              and

              (3) Does not state any other undertaking or
              instruction by the person promising or
              ordering payment to do any act in addition to
              the payment of money [with exceptions that
              are not applicable here].

  § 4-3-104(a), C.R.S. 2019.



                                      9
¶ 17   We conclude that the two promissory notes here meet the

  definition of a negotiable instrument under the UCC. First, the

  notes contain plain language describing an unconditional promise

  to pay a fixed amount of money with interest. Cf. Bank of Kimball v.

  Rostek, 161 Colo. 584, 586, 423 P.2d 579, 580 (1967) (“In order for

  a promissory note to be negotiable . . . it must contain both an

  unconditional promise to pay and a fixed or determinable date of

  payment.”). Specifically, both notes contain the following language:

  “In return for the loan that I have received, I promise to pay [the

  principal amount] . . . plus interest, to the order of the Lender.”

  Second, the notes were payable to order at the time they were

  issued; the language of both notes specifically makes payment due

  to an identified legal entity — namely, Weidner Holdings (which

  continues to be the holder of the notes). Third, the notes are

  payable on demand and due at the lender’s call, providing: “I will

  pay principal and interest by making a payment upon demand.”

  Fourth, the notes do not state any additional undertakings,

  conditions, or promises.

¶ 18   Because the promissory notes satisfy the conditions set forth

  in section 4-3-104(a), they are negotiable instruments. See Haberl


                                    10
  v. Bigelow, 855 P.2d 1368, 1372-73 (Colo. 1993). Still, Mr.

  Gunderson contends that the promissory notes are not negotiable

  instruments because they are secured by a deed of trust.3 We turn

  to that contention next.

       2.     Securing a Promissory Note With a Deed of Trust Does Not
                   Defeat the Negotiability of the Promissory Note

¶ 19        As noted earlier, the larger of the two promissory notes is

  secured by a deed of trust in real property. Mr. Gunderson argues

  that the conditions of the deed of trust constitute “further

  undertakings,” rendering the promissory note non-negotiable. We

  agree that if a written agreement makes an obligation to pay subject

  to an express condition, the instrument is not payable on demand,

  but is payable only upon the happening of the express condition.

  See Roa v. Miller, 784 P.2d 826, 829 (Colo. App. 1989) (holding that

  defendant’s promise to pay was not unconditional because it was

  expressly conditioned upon her “transfer of title,” and therefore, the




  3 In his briefing, Mr. Gunderson appears to contend that both
  promissory notes are secured by a deed of trust. But the record
  reflects that only the larger of the two notes is secured. Because we
  conclude that whether a note is secured does not have a bearing on
  negotiability, see Part II.B.2, infra, we don’t need to resolve this
  discrepancy.

                                        11
  document could not be a negotiable instrument). But here, any

  additional conditions are solely required by the deed of trust and

  are not incorporated into the promissory notes. And Mr.

  Gunderson does not cite any case law, and we know of none, that

  holds that a promissory note secured by a deed of trust cannot be a

  negotiable instrument under the UCC.

¶ 20   Instead, the promissory notes here are similar to the

  promissory note that the supreme court found to be a negotiable

  instrument in Haberl. In that case, the supreme court held that the

  promissory note at issue, despite being secured by a deed of trust,

  was still a negotiable instrument because it contained “both an

  unconditional promise to pay and a fixed date of payment.” Haberl,

  855 P.2d at 1372. Here too, the promissory notes satisfy the

  conditions of a negotiable instrument, and the fact that one is

  secured by a deed of trust does not defeat its negotiability. See id.

  at 1372-73 (collecting cases from other jurisdictions that stand for

  the proposition that a promissory note is not stripped of its

  character as a negotiable instrument simply because it is secured

  by a deed of trust or mortgage). Accordingly, we conclude that both




                                    12
  promissory notes are negotiable instruments, notwithstanding the

  fact that one is secured by a deed of trust.

   3.   The Colorado Supreme Court’s Decision in Battle Mountain Is
                              Inapposite

¶ 21    The district court relied on Battle Mountain to conclude that

  the general six-year statute of limitations applies to a payable-on-

  demand promissory note secured by a deed of trust. Mr.

  Gunderson urges us to do the same. We, however, are not

  persuaded that Battle Mountain controls this case. To understand

  why, a close examination of Battle Mountain is warranted.

¶ 22    The underlying claim in Battle Mountain was a foreclosure on a

  deed of trust. 70 P.3d at 1179. Eight years before filing the

  foreclosure action giving rise to Battle Mountain, the lender sued the

  borrower for default on a promissory note, and instead of

  immediately foreclosing on the property, simply obtained a

  judgment. Id. at 1179-80. In an effort to collect on the judgment,

  the lender filed the Battle Mountain litigation, seeking to foreclose

  on the deed of trust that originally secured the promissory note

  (and, at the time of filing, secured the judgment). Id. at 1180.

  Because eight years had passed between the lender obtaining its



                                    13
  judgment and initiating the foreclosure action, the borrower

  contended that the lender’s foreclosure action was barred by the

  six-year statute of limitations contained in section 13-80-103.5. Id.

  A division of our court agreed, and the lender sought certiorari

  review. Id. at 1181.

¶ 23   The supreme court granted certiorari to determine whether the

  six-year statute of limitations barred foreclosure on a lien of a deed

  of trust.4 Id. at 1178. The supreme court reversed a decision of the

  court of appeals, holding that an action to foreclose on a deed of

  trust is governed by the fifteen-year limitations period applicable to

  deeds of trust, so long as the action to reduce the promissory note

  to judgment was timely pursued. Id. at 1179, 1183. In so holding,

  the supreme court stated as follows:

            We conclude that the six-year statute of
            limitations, section 13–80–103.5, 5 C.R.S.
            (2002), is a general statute of limitations on
            the enforcement of debts, including those
            evidenced by a promissory note secured by a
            deed of trust. When, as here, a party brings an

  4The court also granted certiorari to address whether certain
  defendants had standing to assert a statute of limitations defense in
  a foreclosure action. See Mortg. Invs. Corp. v. Battle Mountain Corp.,
  70 P.3d 1176, 1179 n.1 (Colo. 2003). This second issue has no
  bearing on the issues presented in this case. And neither party
  contends otherwise.

                                    14
             action for default on a promissory note within
             the six-year limitations period and thereafter
             reduces the note to judgment, the more
             specific six and fifteen-year limitations periods
             apply to the resulting judgment lien and the
             deed of trust respectively. The action before us
             is for foreclosure on a deed of trust, not
             execution upon a judgment lien, and the
             fifteen-year statute of limitations of section 38–
             39–205, 10 C.R.S. (2002), applies.

  Id. at 1183 (emphasis added).

¶ 24   It is the italicized language that the district court seized upon

  to conclude that regardless of whether a promissory note is a

  negotiable instrument, the general statute of limitations in section

  13-80-103.5 controls.5 We are not persuaded, however, that this

  language supports that conclusion, for two reasons.


  5 In addition to determining that the applicable statute of
  limitations is the six-year general statute of limitations, the district
  court also relied on Wasinger v. Reid, 705 P.2d 533, 534 (Colo. App.
  1985), to conclude that Mr. Weidner’s claim accrued when the
  promissory notes were executed. Id. (“When a promissory note is
  payable on demand, the statute of limitations begins to run on the
  date the note is executed.” (citing Kirby v. Bourg, 165 Colo. 500, 440
  P.2d 151 (1968))). When Wasinger was decided, however, the
  Colorado UCC specified that a cause of action on a demand note
  accrues on the date of issuance. See § 4-3-122(1)(b), C.R.S. 1985
  (“A cause of action against a maker or an acceptor accrues . . . [i]n
  the case of a demand instrument upon its date or, if no date is
  stated, on the date of issue.”). But in 1994, portions of the
  Colorado UCC — including article 3 — were repealed and reenacted;
  in this process, section 4-3-122(1)(b) was eliminated and section 4-

                                    15
¶ 25   First, the court in Battle Mountain was not presented with the

  issue of what statute of limitations applied to the claim to enforce

  the promissory note. The case reducing the defaulted promissory

  note to judgment had been resolved eight years earlier without any

  apparent issue regarding the applicable statute of limitations being

  raised. Id. at 1179-81. Indeed, even if the action to reduce the

  promissory note to judgment had been subject to a valid statute of

  limitations defense, the proper time to raise and resolve the issue

  was in the earlier case, not in the foreclosure case. This is so

  because an alleged violation of a statute of limitations is a waivable

  affirmative defense, not a jurisdictional defect subject to collateral

  attack. Put differently, even if the court in the promissory note case

  misapplied the statute of limitations, Battle Mountain — the

  foreclosure case — was not the proper setting to remedy it. Thus,




  3-118 was enacted, dramatically changing the accrual of a cause of
  action on a demand note. See Ch. 159, sec. 1, 1994 Colo. Sess.
  Laws 839-50. Because of the statutory change and our
  determination that the promissory notes are negotiable
  instruments, Wasinger has no bearing on this case. But because
  we do not reach the issue of when a non-negotiable payment-on-
  demand promissory note would accrue, we offer no opinion on
  whether Wasinger has continuing viability under such
  circumstances.

                                     16
  the applicable statute of limitations that applied to enforcement of

  the promissory note was not at issue in Battle Mountain. So any

  discussion of the statute of limitations applicable to the

  enforcement of the promissory note was outside of the scope of the

  grant of certiorari in Battle Mountain. See id. at 1179 n.1 (listing

  the issues that the court granted certiorari to review).

¶ 26   Second, the question of whether the promissory note at issue

  was a negotiable instrument was not raised, much less resolved in

  Battle Mountain. In other words, we are confronted with a question

  that was not before the court in Battle Mountain — whether a

  payable-on-demand promissory note that is a negotiable instrument

  is subject to the UCC’s statute of limitations.6

¶ 27   In summary, two things that were necessary to the court’s

  holding in Battle Mountain regarding the promissory note was the

  fact that the promissory note had been reduced to judgment and


  6 Mr. Weidner also points out an additional distinction: that the
  promissory note at issue in Battle Mountain was not a payment-on-
  demand note. While this is true, this strikes us as a distinction
  without a difference when it comes to evaluating whether Battle
  Mountain sheds any light on the applicable statute of limitations. If
  this distinction were to have any relevance to our analysis it would
  be with respect to the issue of accrual under the general statute of
  limitations, an issue that we do not reach. See supra note 5.

                                    17
  when that occurred. And the Battle Mountain court’s discussion of

  the statute of limitations applicable to the action to enforce the

  promissory note was not necessary to its holding. Accordingly, we

  conclude that Battle Mountain does not shed any light on — much

  less control — what statute of limitations applies to a suit to enforce

  the promissory notes at issue in this case.

   4.    The UCC’s Statute of Limitations Applies and the Claims Are
                              Not Time Barred

¶ 28    Having resolved the threshold issues of whether the

  promissory notes are negotiable instruments and whether Battle

  Mountain controls, we now turn to the question of which statute of

  limitations applies to Weidner Holdings’ claim to enforce promissory

  notes against Mr. Gunderson.

¶ 29    Section 13-80-103.5 is a general statute of limitations on the

  enforcement of debts, while section 4-3-118(b) is a more specific

  statute of limitations, reserved for negotiable instruments. Battle

  Mountain, 70 P.3d at 1184 (observing that section 13-80-103.5 is a

  “general limitations provision that is broad in scope and includes

  many types of instruments that secure a debt”). Where there is a

  conflict over the applicable statute of limitations, courts should



                                    18
  apply the more specific statute of limitations over a more general

  statute of limitations. See Persichini v. Brad Ragan, Inc., 735 P.2d

  168, 172-73 (Colo. 1987) (holding that in the absence of a clear

  legislative intent to the contrary, a statute of limitations specifically

  addressing a particular class of cases will control over a more

  general or catch-all statute of limitations); see also Battle Mountain,

  70 P.3d at 1183. This leads us to the conclusion that section 4-3-

  118(b) — the UCC’s statute of limitations for payable-on-demand

  negotiable instruments — applies, and not the general statute of

  limitations applied by the district court.

¶ 30   In case any doubt lingers over whether the legislature

  intended the UCC’s statute of limitations to apply to circumstances

  like those presented here, official comment 2 to section 4-3-118

  confirms our conclusion. See West v. Roberts, 143 P.3d 1037, 1041

  (Colo. 2006) (“Comments to a statute are relevant in its

  interpretation.”). That official comment provides as follows:

             The second sentence of subsection (b) bars an
             action to enforce a demand note if no demand
             has been made on the note and no payment of
             interest or principal has been made for a
             continuous period of 10 years. This covers the
             case of a note that does not bear interest or a
             case in which interest due on the note has not


                                     19
             been paid. This kind of case is likely to be a
             family transaction in which a failure to
             demand payment may indicate that the holder
             did not intend to enforce the obligation but
             neglected to destroy the note.

  § 4-3-118 cmt. 2.

¶ 31   For these reasons, we conclude that section 4-3-118(b) — and

  not section 13-80-103.5 — applies to Weidner Holdings’ effort to

  collect on the promissory notes executed by the Gundersons. And

  because it is undisputed that the promissory notes are demand

  notes on which no principal or interest has been paid and because

  suit was filed within ten years of execution of the notes and within

  six years of demand being made, the action is not time barred.

  Accordingly, we reverse the summary judgment.

¶ 32   There’s one more issue that we need to address. Having

  concluded that Weidner Holdings’ claim to enforce the promissory

  notes are time barred, the district court also concluded that its

  claim to enforce the deed of trust is similarly time barred. The

  district court was certainly correct in its legal analysis that if a

  claim on a promissory note is time barred, so too is a claim to

  foreclose on the collateral securing the note. See § 38-39-207,

  C.R.S. 2019 (“The lien created by any instrument shall be


                                     20
  extinguished, regardless of any other provision in this article to the

  contrary, at the same time that the right to commence a suit to

  enforce payment of the indebtedness or performance of the

  obligation secured by the lien is barred by any statute of limitation

  of this state.”). But because we reverse the district court’s statute

  of limitations ruling on the promissory notes, we also reverse its

  ruling dismissing the foreclosure claim, as it is wholly derivative of

  the reversed ruling.

                             III.   Conclusion

¶ 33   For the foregoing reasons, the district court’s order granting

  summary judgment in favor of Mr. Gunderson is reversed, and the

  case is remanded for further proceedings. Nothing in this opinion,

  however, should be construed as addressing the merits of any other

  defense to the enforcement of the notes or deed of trust, including

  that they were a gift; such issues were not before us and should be

  addressed by the district court on remand.

¶ 34   JUDGE BERGER and JUSTICE MARTINEZ concur.




                                     21
