specially concurs.
I agree with the ultimate result reached by the majority in this case. I write separately, however, in order to point out what I consider to be a fundamental flaw in the interpretation of 28 U.S.C. § 2415, which has been expressed by certain federal courts and is now. adopted by the majority.
This federal statute, quoted in its entirety in the majority opinion, is, in my view, clear and unequivocal. It is nothing more than a general statute of limitations pertaining to all action jfor. ..damages. sounding in contract brought by “the United States or an agency or officer thereof.” In classic language, used by numerous legislatures in adopting statutes of limitation, it provides that, if such an action is not commenced by such entities or persons within a fixed period of time after the “right” to recover accrues, the action shall thereafter be barred.
I find nothing in the language of this statute that can, even remotely, be construed as evidencing an intent by the Congress either to pre-empt otherwise applicable state statutes of limitation or to supersede state substantive law determining when a particular cause of action accrues. I do not read its clear language as conferring any powers or rights on the United States; rather, I am convinced that its sole function is to limit the time within which those powers may be exercised. To construe the statute otherwise would be to determine that it is a substantive rather than a procedural statute. See 54 C.J.S. Limitation of Actions, supra.
In my view, when the United States becomes the holder, by assignment or otherwise, of a promissory note it can acquire no greater rights than those possessed by its assignor, or predecessor in interest, without an express congressional mandate to the contrary. —A-bsent-such-congressional action, and none has been cited to us, there is no justification for_tr.eating_.the- United States any differently than any, other successor holder of the note.
Thus, if a note is executed in Colorado by a Colorado maker, and is payable in Colorado to a Colorado payee, then the Colorado statute of limitations applicable to an action on the note as well as the substantive law of Colorado governing the action’s accrual, will govern irrespective of where the action is brought. This is because the parties to the note are deemed to have contemplated all applicable statutes and substantive case law as determinative of the scope and extent of their respective rights and liabilities when the note was executed. Any successor in interest to one of the parties must, therefore, take his or her interest subject to those same rights and liabilities.
*1314Therefore, in summary, if this statute is merely a statute of limitations, as its language indicates, the six year bar is only a restriction upon the time within which the United States, or its offices and agents, must file suit if it has a contract claim. Such restriction governs even if there were no state statute of limitations barring the action, but is inapplicable after an appropriate state statute of limitations has run. Likewise, there is nothing in the federal statute to indicate that it could, or was intended to, toll a state statute of limitations. In other words, I would interpret the statute as providing that:
Every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract, express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues, [or, within such time limitation as shall be provided by state law, if the contract is entered into pursuant to the laws of such state, whichever is shorter.]
For the foregoing reasons, I reject the rationale in section IA of the majority opinion, but would hold, as did the majority, that the appropriate statute of limitations, § 13-80-103.5(l)(a), C.R.S. expired during the time the note involved here was held by the United States and, thus, the plaintiffs, as subsequent assignees, acquired no enforceable claim. While that portion of the majority’s holding I have addressed is not crucial to the result here, it may be vital in any future case if the United States attempts to enforce its rights under a note acquired by it after a default by the maker.