Title 38
Foreclosures
38-38-100.3. Definitions.
As used in articles 37 to 39 of this title, unless the context otherwise requires:
(1) “Agricultural property” means property, none of which, on the date of recording of the deed of trust or other lien or at the time of the recording of the notice of election and demand or lis pendens, is:
(a) Platted as a subdivision;
(b) Located within an incorporated town, city, or city and county; or
(c) Valued and assessed as other than agricultural property pursuant to sections 39-1-102 (1.6) (a) and 39-1-103 (5), C.R.S., by the assessor of the county where the property is located.
(1.3) “Alternate lienor” means a person deemed a lienor by section 38-38-305.5(1)(a).
(1.5) “Amended mailing list” means the amended mailing list in accordance with section 38-38-103 (2) containing the names and addresses in the mailing list as defined in section 38-38-100.3 (14) and the names and addresses of the following persons:
(a) The owner of the property, if different that the grantor of the deed of trust, as of the date and time of the recording of the notice of election and demand or lis pendens as shown in the records at the address indicated in such recorded instrument; and
(b) Each person, except the public trustee, who appears to have an interest in the property described in the combined notice by an instrument recorded prior to the date and time of the recording of the notice of election and demand or lis pendens with the clerk and recorder of the county where the property or any portion thereof is located at the address of the person indicated on the instrument, if the person’s interest in the property may be extinguished by the foreclosure.
(2) “Attorney for the holder” means an attorney licensed and in good standing in the state of Colorado to practice law and retained by the holder of an evidence of debt to process a foreclosure under this article.
(2.5) “Borrower” means a person liable under an evidence of debt constituting a residential mortgage loan.
(3) “Certified copy” means, with respect to a recorded document, a copy of the document certified by the clerk and recorder of the county where the document was recorded.
(3.5) “CFPB” means the federal consumer financial protection bureau.
(4) “Combined notice” means the combined notice of sale, right to cure, and right to redeem described in section 38-38-103 (4) (a).
(4.3) “Common interest community” has the meaning set forth in section 38-33.3-103(8).
(4.5) “Complete loss mitigation application” means an application in connection with which a servicer has received all the information that the servicer requires from a borrower in evaluating applications for the loss mitigation options available to the borrower.
(5) “Confirmation deed” means the deed described in section 38-38-501 in the form specified in section 38-38-502 or 38-38-503.
(5.3) “Consensual lien” means a conveyance of an interest in real property, granted by the owner of the property after the recording of a notice of election and demand, that is not an absolute conveyance of fee title to the property. “Consensual lien” includes but is not limited to a deed of trust, mortgage or other assignment, encumbrance, option, lease, easement, contract, including an instrument specified in section 38-38-305, or conveyance as security for the performance of the grantor. “Consensual lien” does not include a lien described in section 38-38-306 or 38-33.3-316.
(5.7) “Corporate surety bond” means a bond issued by a person authorized to issue bonds in the state of Colorado with the public trustee as obligee, conditioned against the delivery of an original evidence of debt to the damage of the public trustee.
(6) “Cure statement” means the statement described in section 38-38-104 (2) (a).
(7) “Deed of trust” means a security instrument containing a grant to a public trustee together with a power of sale.
(8) “Evidence of debt” means a writing that evidences a promise to pay or a right to the payment of a monetary obligation, such as a promissory note, bond, negotiable instrument, a loan, credit, or similar agreement, or a monetary judgment entered by a court of competent jurisdiction.
(9) “Fees and costs” means all fees, charges, expenses, and costs described in section 38-38-107.
(10) “Holder of an evidence of debt” or “holder” means the person in actual possession of or person entitled to enforce an evidence of debt; except that the term does not include a person acting as a nominee solely for the purpose of holding the evidence of debt or deed of trust as an electronic registry without any authority to enforce the evidence of debt or deed of trust. For the purposes of articles 37 to 40 of this title, the following persons are presumed to be the holder of an evidence of debt:
(a) The person who is the obligee of and who is in possession of an original evidence of debt;
(b) The person in possession of an original evidence of debt together with the proper indorsement or assignment thereof to such person in accordance with section 38-38-101 (6);
(c) The person in possession of a negotiable instrument evidencing a debt, which has been duly negotiated to such person or to bearer or indorsed in blank; or
(d) The person in possession of an evidence of debt with authority, which may be granted by the original evidence of debt or deed of trust, to enforce the evidence of debt as agent, nominee, or trustee or in a similar capacity for the obligee of the evidence of debt.
(11) “Junior lien” means a deed of trust or other lien or encumbrance upon the property for which the amount due and owing thereunder is subordinate to the deed of trust or other lien being foreclosed.
(12) “Junior lienor” means a person who is a beneficiary, holder, or grantee of a junior lien.
(12.5) “Lienor” includes without limitation the holder of a certificate of purchase or certificate of redemption for property, issued upon the foreclosure of a deed of trust or other lien on the property.
(13) “Lis pendens” means a lis pendens in accordance with section 38-35-110 that is recorded with the clerk and recorder of the county where the property or any portion thereof is located and that refers to a judicial action in which one of the claims is for foreclosure and sale of the property by an officer or in which a claim or interest in the property is asserted.
(13.3) “Loss mitigation application” means an oral or written request for a loss mitigation option that is accompanied by any information requested by a servicer for evaluation for a loss mitigation option.
(13.7) Loss mitigation option” means an alternative to foreclosure offered by the owner, holder, or assignee of a mortgage loan that is made available through the servicer to the borrower.
(14) “Mailing list” means the mailing list in accordance with section 38-38-101 (1) (e), provided to the officer by the holder of the evidence of debt or the attorney for the holder containing the names and addresses of the following persons:
(a) The original grantor of the deed of trust or obligor under any other lien being foreclosed at the address shown in the recorded deed of trust or other lien being foreclosed and, if different, the last address, if any, shown in the records of the holder of the evidence of debt;
(b) Any person known or believed by the holder of the evidence of debt to be personally liable under the evidence of debt secured by the deed of trust or other lien being foreclosed at the last address, if any, shown in the records of the holder;
(c) The occupant of the property, addressed to “occupant” at the address of the property, and;
(d) With respect to a public trustee sale, a lessee with an unrecorded possessory interest in the property at the address of the premises of the lessee and, if different, the address of the property, to the extent that the holder of the evidence of debt desires to terminate the possessory interest with the foreclosure,
(15) “Maintaining and repairing” means the act of caring for and preserving a property in its current condition or restoring a property to a sound or working condition after damage; except that “maintaining and repairing” shall not include, unless done pursuant to an order entered by a court of competent jurisdiction, any act of advancing a property to a better condition or any act that increases the quality of or adds to the improvements located on a property.
(16) “Notice of election and demand” means a notice of election and demand for sale related to a public trustee foreclosure under this article.
(17) “Officer” means the public trustee or sheriff conducting a foreclosure under this article.
(17.3) “Overbid” means the amount a property is sold for at a foreclosure sale that is in excess of the written or amended bid amount executed by the holder of the evidence of debt secured by the deed of trust or other lien being foreclosed.
(17.5) “Person” means any individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity.
(18) “Property” means the portion of the property encumbered by a deed of trust or other lien that is being foreclosed under this article or the portion of the property being released from a deed of trust or other lien under article 39 of this title.
(19) “Publish”, “publication”, “republish”, or “republication” means the placement by an officer of a legal notice that meets the requirements set forth in section 24-70-103, containing a combined notice that complies with the requirements of section 24-70-109, in a newspaper in the county or counties where the property to be sold is located. The officer shall select the newspaper.
(20) “Qualified holder” means a holder of an evidence of debt, certificate of purchase, certificate of redemption, or confirmation deed that is also one of the following:
(a) A bank as defined in section 11-101-401 (5), C.R.S.;
(b) An industrial bank as defined in section 11-108-101 (1), C.R.S.; (SB13-154)
(c) A federally chartered savings and loan association doing business in Colorado or a savings and loan association chartered under the “Savings and Loan Association Law,” articles 40 to 46 of title 11, C.R.S.;
(d) A supervised lender as defined in section 5-1-301 (46), C.R.S., that is licensed to make supervised loans pursuant to section 5-2-302, C.R.S., and that is either:
(I) A public entity, which is an entity that has issued voting securities that are listed on a national security exchange registered under the federal “Securities Exchange Act of 1934”, as amended; or
(II) An entity in which all of the outstanding voting securities are held, directly or indirectly, by a public entity;
(e) An entity in which all of the outstanding voting securities are held, directly or indirectly, by a public entity that also owns, directly or indirectly, all of the voting securities of a supervised lender as defined in section 5-1-301 (46), C.R.S., that is licensed to make supervised loans pursuant to section 5-2-302, C.R.S.;
(f) A federal housing administration approved mortgagee;
(g) A federally chartered credit union doing business in Colorado or a state-chartered credit union as described in section 11-30-101, C.R.S.;
(h) An agency or department of the federal government;
(i) An entity created or sponsored by the federal or state government that originates, insures, guarantees, or purchases loans or a person acting on behalf of such an entity to enforce an evidence of debt or the deed of trust securing an evidence of debt; or
(j) Any community development financial institution fund that has been certified and maintains such current status from the community development financial institutions fund administered by the United States Department of the Treasury, referred to in this section as the “fund”. In order to be a qualified holder under this article, the community development financial institution must:
(I) Be a legal entity;
(II) Have a primary mission of promoting community development;
(III) Be a financing entity;
(IV) Primarily serve one or more target markets as defined by the fund;
(V) Promote development services in conjunction with its financing activities;
(VI) Maintain accountability to its defined target market; and
(VII) Be a nongovernmental entity and not be under the control of any governmental entity; except that a tribal government is exempt from the requirements of this subparagraph (VII).
(k) Any entity with active certification under the fund that originates, insures, guarantees, or purchases loans or a person acting on behalf of such an entity to enforce an evidence of debt of the deed of trust securing an evidence of debt;
(k.5) A private company that originates, insures, guaranties, or purchases loans on behalf of a holder of evidence of debt that is secured by a deed of trust encumbering a time share estate as defined in section 38-33-110 (5), with a minimum of five million dollars in assets or not less than one thousand active loans; or
(l) Any entity listed in paragraphs (a) to (k) of this subsection (20) acting in the capacity of agent, nominee except as otherwise specified in subsection (10) of this section, or trustee for another person.
(21) “Records” means the records of the county clerk and recorder of the county where the property is located.
(21.3) “Residential mortgage loan” means a loan that is primarily for personal, family, or household use and that is secured by a mortgage, deed of trust, or other equivalent, consensual security interest on a dwelling or residential real estate upon which is constructed or intended to be constructed a single-family dwelling or multiple-family dwelling of four or fewer units that is or will be used by the borrower as the borrower’s primary residence.
21.6) “Residential real estate” means any real property upon which a dwelling is or will be constructed.
(22) “Sale” means a foreclosure sale conducted by an officer under this article.
(23) “Secured indebtedness” means the amount owed pursuant to the evidence of debt without regard to the value of the collateral.
(23.3) (a) “Servicer” or “mortgage servicer” means an entity that directly services a loan or that is responsible for interacting with the borrower; managing the loan account on a daily basis, including collecting and crediting periodic loan payments; managing any escrow account; or enforcing the note and security instrument, either as the current holder of the evidence of debt or as the current holder’s authorized agent.
(b) “Servicer” includes an entity providing such services pursuant to designation as a subservicing agent or by contract with a master servicer.
(c) “Servicer” does not mean a trustee, including the public trustee, or a trustee’s authorized agent acting under a power of sale pursuant to a deed of trust.
(23.6) “Single point of contact” means an individual or team of personnel, each of whom has the ability and authority to perform the responsibilities described in section 38-38-103.1 on behalf of the servicer. The servicer shall ensure that each member of the team is knowledgeable about the borrower’s situation and current status.
(24) “Statement of redemption” means the signed and acknowledged statement of the holder of the evidence of debt or the signed statement of the attorney for the holder as required by section 38-38-302 (3) or the signed and acknowledged statement of the lienor or the signed statement of the attorney for the lienor as required by section 38-38-302 (1) (f).
(25) “Unit” has the meaning set forth in section 38-33.3-103(30).
(26) “Unit association lien” means a lien in a unit in a common interest community that is held by an association, as defined in section 38-33.3-103(3).
38-38-101. Holder of evidence of debt may elect to foreclose.
(1) Documents required. Whenever a holder of an evidence of debt declares a violation of a covenant of a deed of trust and elects to publish all or a portion of the property therein described for sale, the holder or the attorney for the holder shall file the following with the public trustee of the county where the property is located:
(a) A notice of election and demand signed and acknowledged by the holder of the evidence of debt or signed by the attorney for the holder;
(b) The original evidence of debt, including any modifications to the original evidence of debt, together with the original indorsement or assignment thereof, if any, to the holder of the evidence of debt or other proper indorsement or assignment in accordance with subsection (6) of this section or, in lieu of the original evidence of debt, one of the following:
(I) A corporate surety bond in the amount of one and one-half times the face amount of the original evidence of debt; or
(II) A copy of the evidence of debt and a certification signed and properly acknowledged by a holder of an evidence of debt acting for itself or as agent, nominee, or trustee under subsection (2) of this section or a statement signed by the attorney for such holder, citing the paragraph of section 38-38-100.3 (20) under which the holder claims to be a qualified holder and certifying or stating that the copy of the evidence of debt is true and correct and that the use of the copy is subject to the conditions described in paragraph (a) of subsection (2) of this section; or
(III) A certified copy of a monetary judgment entered by a court of competent jurisdiction.
(c) The original recorded deed of trust securing the evidence of debt and any recorded modifications of the deed of trust or any recorded partial releases of the deed of trust, or in lieu thereof, one of the following:
(I) Certified copies of the recorded deed of trust and any recorded modifications of the deed of trust or recorded partial releases of the deed of trust; or
(II) Copies of the recorded deed of trust and any recorded modifications of the deed of trust or recorded partial releases of the deed of trust and a certification signed and properly acknowledged by a holder of an evidence of debt acting for itself or as an agent, nominee, or trustee under subsection (2) of this section or a signed statement by the attorney for such holder, citing the paragraph of section 38-38-100.3 (20) under which the holder claims to be a qualified holder and certifying or stating that the COPIES of the recorded deed of trust and any recorded modifications of the deed of trust or recorded partial releases of the deed of trust is true and correct and that the use of the copies is subject to the conditions described in paragraph (a) of subsection (2) of this section;
(d) A combined notice pursuant to section 38-38-103; except that the combined notice may be omitted with the prior approval of the public trustee;
(e) A mailing list;
(f) Any affidavit recorded pursuant to section 38-35-109 (5) affecting the deed of trust described in paragraph (c) of this subsection (1), which affidavit shall be accepted by the public trustee as modifying the deed of trust for all purposes under this article 38 only if the affidavit is filed with the public trustee at the same time as the other documents required under this subsection (1);
(f.5) If there is a loan servicer of the evidence of debt described in the notice of election and demand and the loan servicer is not the holder, a statement executed by the holder of the evidence of debt of the attorney for such holder, identifying, to the best of such person’s knowledge, the name of the loan servicer;
(g) A statement executed by the holder of the evidence of debt, or the attorney for such holder, identifying, to the best knowledge of the person executing such statement, the name and address of the current owner of the property described in the notice of election and demand; and
(h) A separate document notifying the public trustee that the property referred to in the notice of election and demand is property that requires posting under section 38-38-802. If the document required by this paragraph (g) is not filed at the time the documents required by paragraphs (a) through (e) of this subsection (1) are filed with the public trustee, and the holder determines at a later date that the property requires posting, the holder shall request that the public trustee rerecord the notice of election and demand. Thereafter, all deadlines for the foreclosure action shall be determined according to the date of the rerecording of the notice of election and demand as though the foreclosure was commenced on such date, and the public trustee shall collect a fee of seventy-five dollars from the holder. If the document required by this paragraph (h) is filed in error, the holder may withdraw it by filing with the public trustee an affidavit signed by the holder or the attorney for the holder affirming both that the document required by this paragraph (h) was filed in error and that the property has not been posted pursuant to section 38-38-802. In order to be effective, and thereby notify the public trustee that the property is not eligible for posting, such affidavit shall be filed with the public trustee no later than fifteen calendar days after the date of the determination of the public trustee that the filing is complete in accordance with section 38-38-102(l).
(2) Foreclosure by qualified holder without original evidence of debt, original or certified copy of deed of trust, or proper indorsement.
(a) A qualified holder, whether acting for itself or as agent, nominee, or trustee under section 38-38-100.3 (20) (j), that elects to foreclose without the original evidence of debt pursuant to subparagraph (II) of paragraph (b) of subsection (1) of this section, or without the original recorded deed of trust or a certified copy thereof pursuant to subparagraph (II) of paragraph (c) of subsection (1) of this section, or without the proper indorsement or assignment of an evidence of debt under paragraph (b) of subsection (1) of this section shall, by operation of law, be deemed to have agreed to indemnify and defend any person liable for repayment of any portion of the original evidence of debt in the event that the original evidence of debt is presented for payment to the extent of any amount, other than the amount of a deficiency remaining under the evidence of debt after deducting the amount bid at sale, and any person who sustains a loss due to any title defect that results from reliance upon a sale at which the original evidence of debt was not presented. The indemnity granted by this subsection (2) shall be limited to actual economic loss suffered together with any court costs and reasonable attorney fees and costs incurred in defending a claim brought as a direct and proximate cause of the failure to produce the original evidence of debt, but such indemnity shall not include, and no claimant shall be entitled to, any special, incidental, consequential, reliance, expectation, or punitive damages of any kind. A qualified holder acting as agent, nominee, or trustee shall be liable for the indemnity pursuant to this subsection (2).
(b) In the event that a qualified holder or the attorney for the holder commences a foreclosure without production of the original evidence of debt, proper indorsement or assignment, or the original recorded deed of trust or a certified copy thereof, the qualified holder or the attorney for the holder may submit the original evidence of debt, proper indorsement or assignment, or the original recorded deed of trust or a certified copy thereof to the officer prior to the sale. In such event, the sale shall be conducted and administered as if the original evidence of debt, proper indorsement or assignment, or the original recorded deed of trust or a certified copy thereof had been submitted at the time of commencement of such proceeding, and any indemnities deemed to have been given by the qualified holder under paragraph (a) of this subsection (2) shall be null and void as to the instrument produced under this paragraph (b).
(c) In the event that a foreclosure is conducted where the original evidence of debt, proper indorsement or assignment, or original recorded deed of trust or certified copy thereof has not been produced, the only claims shall be against the indemnitor as provided in paragraph (a) of this subsection (2) and not against the foreclosed property or the attorney for the holder of the evidence of debt. Nothing in this section shall preclude a person liable for repayment of the evidence of debt from pursuing remedies allowed by law.
(3) Foreclosure on a portion of property. A holder of an evidence of debt may elect to foreclose a deed of trust under this article against a portion of the property encumbered by the deed of trust only if such portion is encumbered as a separate and distinct parcel or lot by the original or an amended deed of trust. Any foreclosure conducted by a public trustee against less than all of the property then encumbered by the deed of trust shall not affect the lien or the power of sale contained therein as to the remaining property. The amount bid at a sale of less than all of the property shall be deemed to have satisfied the secured indebtedness to the extent of the amount of the bid.
(4) Notice of election and demand. A notice of election and demand filed with the public trustee pursuant to this section shall contain the following:
(a) The names of the original grantors of the deed of trust being foreclosed and the original beneficiaries or grantees thereof;
(b) The name of the holder of the evidence of debt;
(c) The date of the deed of trust being foreclosed;
(d) The recording date, county, book, and page or reception number of the recording of the deed of trust being foreclosed;
(e) The amount of the original principal balance of the secured indebtedness;
(f) The amount of the outstanding principal balance of the secured indebtedness as of the date of the notice of election and demand;
(g) A legal description of the property to be foreclosed as set forth in the documents to be provided to the public trustee pursuant to paragraph (c) of subsection (1) of this section;
(h) A statement of whether the property described in the notice of election and demand is all or only a portion of the property then encumbered by the deed of trust being foreclosed;
(i) A statement of the violation of the covenant of the evidence of debt or deed of trust being foreclosed upon which the foreclosure is based, which statement shall not constitute a waiver of any right accruing on account of any violation of any covenant of the evidence of debt or deed of trust other than the violation specified in the notice of election and demand;
(j) The name, address, business telephone number, and bar registration number of the attorney for the holder of the evidence of debt, which may be indicated in the signature block of the notice of election and demand; and
(k) A description of any changes to the deed of trust described in the notice of election and demand that are based on an affidavit filed with the public trustee under paragraph (f) of subsection (1) of this section, together with the recording date and reception number or book and page number of the recording of that affidavit in the records.
(5) Error in notice. In the event that the amount of the outstanding principal balance due and owing upon the secured indebtedness is erroneously set forth in the notice of election and demand or the combined notice, the error shall not affect the validity of the notice of election and demand, the combined notice, the publication, the sale, the certificate of purchase described in section 38-38-401, the certificate of redemption described in section 38-38-402, the confirmation deed as defined in section 38-38-100.3 (5), or any other document executed in connection therewith.
(6) Indorsement or assignment.
(a) Proper indorsement or assignment of an evidence of debt shall include the original indorsement or assignment or a certified copy of an indorsement or assignment recorded in the county where the property being foreclosed is located.
(b) Notwithstanding the provisions of paragraph (a) of this subsection (6), the original evidence of debt or a copy thereof without proper indorsement or assignment shall be deemed to be properly indorsed or assigned if a qualified holder presents the original evidence of debt or a copy thereof to the officer together with a statement in the certification of the qualified holder or in the statement of the attorney for the qualified holder pursuant to subparagraph (II) of paragraph (b) of subsection (1) of this section that the party on whose behalf the foreclosure was commenced is the holder of the evidence of debt.
(7) Multiple instruments. If the evidence of debt consists of multiple instruments, such as notes or bonds, the holder of the evidence of debt may elect to foreclose with respect to fewer than all of such instruments or documents by identifying in the notice of election and demand and the combined notice only those to be satisfied in whole or in part, in which case the requirements of this section shall apply only as to those instruments or documents.
(8) Assignment or transfer of debt during foreclosure.
(a) The holder of the evidence of debt may assign or transfer the secured indebtedness at any time during the pendency of a foreclosure action without affecting the validity of the secured indebtedness. Upon receipt of written notice signed by the holder who commenced the foreclosure action or the attorney for the holder stating that the evidence of debt has been assigned and transferred and identifying the assignee or transferee, the public trustee shall complete the foreclosure as directed by the assignee or transferee or the attorney for the assignee or transferee. No holder of an evidence of debt, certificate of purchase, or certificate of redemption shall be liable to any third party for the acts or omissions of any assignee or transferee that occur after the date of the assignment or transfer.
(b) The assignment or transfer of the secured indebtedness during the pendency of a foreclosure shall be deemed made without recourse unless otherwise agreed in a written statement signed by the assignor or transferor. The holder of the evidence of debt, certificate of purchase, or certificate of redemption making the assignment or transfer and the attorney for the holder shall have no duty, obligation, or liability to the assignee or transferee or to any third party for any act or omission with respect to the foreclosure or the loan servicing of the secured indebtedness after the assignment or transfer. If an assignment or transfer is made by a qualified holder that commenced the foreclosure pursuant to subsection (2) of this section, the qualified holder’s indemnity under said subsection (2) shall remain in effect with respect to all parties except to the assignee or transferee, unless otherwise agreed in a writing signed by the assignee or transferee if the assignee or transferee is a qualified holder.
(c) If an assignment or transfer is made to a holder of an evidence of debt other than a qualified holder, the holder must file with the officer the original evidence of debt and the original recorded deed of trust or, in lieu thereof, the documents required in paragraphs (b) and (c) of subsection (1) of this section. An assignee or transferee shall be presumed to not be a qualified holder, and as such, shall be subject to the provisions of this paragraph (c), unless a signed statement by the attorney for such assignee or transferee that cites the paragraph of section 38-38-100.3 (20) under which the assignee or transferee claims to be a qualified holder is filed with the officer.
(9) Partial release from deed of trust. At any time after the recording of the notice of election and demand but prior to the sale, a portion of the property may be released from the deed of trust being foreclosed pursuant to section 38-39-102 or as otherwise provided by order of a court of competent jurisdiction recorded in the county where the property being released is located. Upon recording of the release or court order, the holder of the evidence of debt or the attorney for the holder shall pay the fee described in section 38-37-104 (1) (b) (IX), amend the combined notice, and, in the case of a public trustee foreclosure, amend the notice of election and demand to describe the property that continues to be secured by the deed of trust or other lien being foreclosed as of the effective date of the release or court order; except that the amended combined notice may be omitted with the prior approval of the public trustee. The public trustee shall record the amended notice of election and demand upon receipt. Upon receipt of the amended combined notice, if provided by the holder of the attorney for the holder, the public trustee shall republish and mail the amended combined notice in the manner set forth in section 38-38-109 (1) (b). If the amended combined notice was omitted pursuant to this subsection (9), upon recordation of the amended notice of election and demand, the public trustee shall supply an amended combined notice and shall then republish and mail the amended combined notice in the manner set forth in section 38-38-109(1)(b).
(10) Deposit. (a) The public trustee may require the holder or servicer to make a deposit of up to five hundred dollars plus the amount of the fee permitted pursuant to section 38-37-104 (1) (b) (I), at the time the notice of election and demand is filed, to be applied against the fees and costs of the public trustee.
(b)The public trustee may allow the attorney for the holder or servicer of the holder or servicer, if not represented by an attorney, to establish with the public trustee one or more accounts, from which the public trustee may pay the fees and costs of the public trustee in any foreclosure filed by the holder or the attorney for the holder, and through which the public trustee may transmit refunds or cures, overbids, or redemption proceeds.
38-38-102. Recording notice of election and demand – record of sale.
(1) No later than ten business days following the receipt of the notice of election and demand, the public trustee shall review the documents filed pursuant to section 38-38-101 (1) and, if the filing is complete, cause the notice to be recorded in the office of the county clerk and recorder of the county where the property described in the notice is located.
(2) The public trustee shall retain in the public trustee’s records a printed or electronic copy of the notice of election and demand and the combined notice, as published pursuant to section 38-38-103. Such records shall be available for inspection by the public at the public trustee’s offices during the public trustee’s normal business hours.
38-38-102.5. Notice prior to residential foreclosure – hotline.
(1) As used in this section, “holder” means the holder of an evidence of debt constituting a residential mortgage loan, as defined in section 12-10-702(21), of that holder’s loan servicer or other person acting on the holder’s behalf. “Holder” shall not include a person whose only activity as a holder is as the seller in not more than three credit sales or loans per year.
(2) At least thirty days before filing a notice of election and demand and at least thirty days after default, the holder shall mail a notice addressed to the original grantor of the deed of trust at the address in the recorded deed of trust or other lien being foreclosed and, if different, at the last address shown in the holder’s records, containing
(a) The telephone number of the Colorado Foreclosure Hotline; and
(b) The direct telephone number of the holder’s loss mitigation representative or department; AND
(c) A statement that, under section 6-1-1107, C.R.S., it is illegal for any person acting as a foreclosure consultant to charge an up-front fee or deposit to the borrower for services related to the foreclosure.
(3) (a) This section shall apply only to a default consisting solely of the failure of the original grantor of the deed of trust to make one or more required payments.
(b) With respect to defaults on the same obligation, after the holder has once given the original grantor of the deed of trust a notice as specified in subsection (2) of this section, this section imposes no limitation on the holder’s right to foreclose with respect to any subsequent default that occurs within twelve months after such notice.
38-38-103. Combined notice – publication – providing information.
(1) (a) No more than twenty calendar days after the recording of the notice of election and demand, the public trustee shall mail a combined notice as described in subsection (4) of this section to the persons set forth in the mailing list.
(b) No more than sixty calendar days nor less than forty-five calendar days prior to the first scheduled date of sale, the public trustee shall mail a combined notice as described in subsection (4) of this section to the persons as set forth in the most recent amended mailing list. If there is no amended mailing list, the public trustee shall mail a combined notice as described in subsection (4) of this section to the persons as set forth in the mailing list.
(c) If a recorded instrument does not specify the address of the party purporting to have an interest in the property under such recorded instrument, the party shall not be entitled to notice and any interest in the property under such instrument shall be extinguished upon the execution and delivery of a deed pursuant to section 38-38-501.
(2) (a) The holder of the evidence of debt or the attorney for the holder shall deliver an amended mailing list to the officer as needed. If an amended mailing list is received after the officer has sent the mailing described in paragraph (b) of subsection (1) of this section, the officer shall continue the sale to no less than sixty-five calendar days after receipt of the amended mailing list. The officer shall send the notice pursuant to subsection (4) of this section to the persons on the amended mailing list no less than forty-five calendar days prior to the actual date of sale.
(b) (Deleted by amendment, L. 2007, p. 1832, § 7, effective January 1, 2008.)
(3) The sheriff shall mail a combined notice as described in subsection (4) of this section to the persons named at the addresses indicated in the mailing list no less than sixteen nor more than thirty calendar days after the holder of the evidence of debt or the attorney for the holder delivers to the sheriff the mailing list and the original or a copy of a decree of foreclosure or a writ of execution directing the sheriff to sell property.
(4) (a) The combined notices required to be mailed pursuant to subsections (1), (2), and (3) of this section must contain the following:
(I) The information required by section 38-38-101 (4);
(II) The statement: A notice of intent to cure filed pursuant to section 38-38-104 shall be filed with the officer at least fifteen calendar days prior to the first scheduled sale date or any date to which the sale is continued;
(II.5) The statement, which must be in bold: If the sale date is continued to a later date, the deadline to file a notice of intent to cure by those parties entitled to cure may also be extended;
(III) The statement: A notice of intent to redeem filed pursuant to section 38-38-302 shall be filed with the officer no later than eight business days after the sale;
(IV) The date to which the sale has been continued pursuant to paragraph (a) of subsection (2) of this section;
(V) The date of sale determined pursuant to section 38-38-108;
(VI) The place of sale determined pursuant to section 38-38-110;
(VII) If the sale is conducted by means or the internet or another electronic medium pursuant to 38-38-110 (1):
(A) The electronic address;
(B) The location of computer workstations that are available to the public and information about how to obtain instructions on accessing the sale and submitting bids; and
(C) A statement that the bidding rules for the sale will be posted on the internet or other electronic medium used to conduct the sale at least two weeks before the date of sale;
(VIII) The statement as required by section 24-70-109, C.R.S.: The lien being foreclosed may not be a first lien; and
(IX) A statement that, if the borrower believes that a lender or servicer has violated the requirements for a single point of contact in section 38-38-103.1 or the prohibition on dual tracking in section 38-38-103.2, the borrower may file a complaint with the Colorado attorney general, the CFPB, or both, but the filing of a complaint will not stop the foreclosure process. The notice must include contact information for both the Colorado attorney general’s office and the CFPB. If the officer maintains a web site, the officer shall also post this information on the web site for viewing by all borrowers.
(b) A legible copy of this section and sections 38-37-108, 38-38-104, 38-38-301, 38-38-302, 38-38-304, 38-38-305, and 38-38-306 shall be sent with all notices pursuant to this section.
(5) (a) No more than sixty calendar days nor less than forty-five calendar days prior to the first scheduled date of sale, unless a longer period of publication is specified in the deed of trust or other lien being foreclosed, a deed of trust or other lien being foreclosed is deemed to require the officer to commence publication of the combined notice, omitting both the statements under subsections (4)(a)(II), (4)(a)(III), and (4)(a)(IX) of this section and the copies of the statutes under subsection (4)(b) of this section and adding the first and last publication dates if not already specified in the combined notice, for four weeks, which means publication once each week for five consecutive weeks.
(b) The officer shall review the publication of the combined notice for accuracy.
(c) The fees and costs to be allowed for publication of the combined notice shall be as provided by law for the publication of legal notices or advertising.
(d) Notwithstanding any other provision of law, the officer shall not begin publication or send the mailing required in subparagraph (II) of paragraph (a) of subsection (1) of this section unless the holder has provided the affidavit required by section 38-38-802, if applicable. If the affidavit has not been provided, the following shall occur:
(I) The officer shall notify the holder or the holder’s attorney, in writing, that no affidavit was provided and indicate that the publications required pursuant to this section shall not be made until the holder provides the required affidavit. The officer is not obligated to provide more than one notice to the holder or the holder’s attorney.
(II) After notice is made pursuant to subparagraph (I) of this paragraph (d) that no affidavit was provided and until the required affidavit is provided, the officer shall continue the sale of the property in accordance with section 38-38-109 an additional week for each week that the holder fails to provide the required affidavit.
38-38-103.1. Single point of contact – servicer to designate – duties – exemption.
(1) No later than the forty-fifth day of a borrower’s delinquency, a servicer shall promptly establish a single point of contact for communications with the borrower. The servicer shall do so within the time periods prescribed in, and subject to the other requirements imposed by, federal law and CFPB rules and orders. Once the single point of contact is established, the servicer shall promptly provide to the borrower, in writing, one or more direct means of communication with the single point of contact.
(2) A single point of contact shall:
(a) Provide the borrower with accurate information about:
(I) Loss mitigation options available to the borrower from the owner or assignee of the borrower’s mortgage loan;
(II) Actions the borrower must take to be evaluated for loss mitigation options, including actions the borrower must take to submit a complete loss mitigation application and, if applicable, actions the borrower must take to appeal the servicer’s determination to deny a borrower’s loss mitigation application for any trial or permanent loan modification program offered by the servicer;
(III) The status of any loss mitigation application that the borrower has submitted to the servicer;
(IV) The circumstances under which the servicer may make a referral to foreclosure; and
(V) Applicable loss mitigation deadlines established by an owner or assignee of the borrower’s mortgage loan or by section 38-38-103.2;
(b) Retrieve, in a timely manner:
(I) A complete record of the borrower’s payment history; and
(II) All written information the borrower has provided to the servicer and, if available, to prior servicers in connection with a loss mitigation application;
(c) Provide the documents and information identified in paragraph (b) of this subsection (2) to other persons required to evaluate a borrower for loss mitigation options made available by the servicer, if applicable; and
(d) Provide a delinquent borrower with information about the procedures for submitting a notice of error or an information request.
(3) A servicer is exempt from this section if the servicer services five thousand or fewer mortgage loans for all of which the servicer, or an affiliate of the servicer, is the creditor or assignee. In determining whether a servicer services five thousand or fewer mortgages, the servicer is evaluated based on the number of mortgage loans serviced by the servicer and any affiliates as of January 1 for the remainder of the calendar year. A servicer that crosses the threshold has six months after crossing the threshold or until the next January 1, whichever is later, to comply with this section.
(4) A servicer who complies with 12 CFR 1024.40, as promulgated by the CFPB, or is exempt from compliance with that regulation under federal law or CFPB rules, regulations, or orders, is deemed in compliance with this section.
38-38-103.2. Dual tracking prohibited – notice to officer – continuation of sale pending inquiry.
(1) A servicer is subject to the time limits and other requirements of federal law and CFPB rules in connection with a foreclosure under this article.
(2) The servicer shall:
(a) Notify the borrower in writing when it receives a complete loss mitigation application from the borrower; and
(b) Exercise reasonable diligence in obtaining documents and information to complete a loss mitigation application.
(3) If the borrower has received confirmation from the servicer that the borrower has submitted a complete loss mitigation application or has been offered and has accepted a loss mitigation option and is complying with its provisions, and yet a notice of election and demand pursuant to section 38-38-101 has been filed or action is being taken pursuant to section 38-38-105 or 38-38-106 with regard to the borrower, then, in order to stop the foreclosure sale, no later than fourteen calendar days before the sale date, the borrower must present to the officer the borrower’s written notification from the servicer indicating receipt of a complete loss mitigation application dated at least thirty-seven days prior to the sale date or acceptance of a loss mitigation option, and, if the borrower does so:
(a) As soon as possible, but no later than three business days after receipt of the notification, the officer shall contact the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, by telephone, electronic mail, or first-class mail and inquire as to the status of the loss mitigation option. The officer shall document this inquiry. Until the servicer or its attorney responds to the inquiry, the officer shall continue the sale in accordance with section 38-38-109 (1) (a).
(b) If the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, fails to respond within seven calendar days to an inquiry under paragraph (a) of this subsection (3), then, as soon as possible but no later than the fourteenth day after the date of the inquiry, the officer shall send a certified letter to the attorney for the servicer or holder or to the servicer or holder, if not represented by an attorney, as listed on the notice of election and demand, inquiring as to the status of the loss mitigation option. The servicer or holder shall reimburse the officer for the cost of mailing the letter.
(c) If, after being contacted in accordance with paragraph (a) or (b) of this subsection (3), the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, gives the officer a written statement via electronic mail or first-class mail disputing that a loss mitigation option has been offered and accepted or that the borrower is complying with its terms, the officer shall proceed with the sale.
(d) (I) If the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, acknowledges that a loss mitigation option has been offered and accepted and that the borrower is complying with its terms the officer shall continue the sale in accordance with section 38-38-109 (1) (a), and the holder shall withdraw the notice of election and demand within one hundred eighty calendar days after the date of the acknowledgment if the borrower continues to comply with the terms of the loss mitigation option.
(II) If, within one hundred eighty calendar days after the date of the acknowledgment, the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, has not withdrawn the notice of election and demand and neither the attorney for the servicer or holder nor the servicer or holder, if not represented by an attorney, has notified the officer that the borrower is not complying with the terms of the loss mitigation option, the officer may administratively withdraw the notice of election and demand.
(III) If, within one hundred eighty calendar days after the date of the acknowledgment, the borrower fails to comply with the terms of the loss mitigation option, the holder or the attorney for the holder may give written notice to the officer that the loss mitigation option has been breached, and, no later than ten business days after receiving the notice, the officer shall mail an amended combined notice containing the date of the rescheduled sale to each person appearing on the most recent mailing list, or on an updated mailing list if provided by the holder or the holder’s attorney. The rescheduled sale date must not be fewer than seven calendar days after the date the amended combined notice is mailed. All fees and costs of providing the amended combined notice may be included as part of the foreclosure costs.
(4) If a foreclosure sale is continued as a result of compliance with the requirements of subsection (3) of this section, the periods for which the sale may be continued are in addition to the twelve-month period of continuance provided by section 38-38-109(1).
(5) A servicer is exempt from this section if the servicer services five thousand or fewer mortgage loans for all of which the servicer, or an affiliate of the servicer, is the creditor or assignee. In determining whether a servicer services five thousand or fewer mortgages, the servicer is evaluated based on the number of mortgage loans serviced by the servicer and any affiliates as of January 1 for the remainder of the calendar year. A servicer that crosses the threshold has six months after crossing the threshold or until the next January 1, whichever is later, to comply with this section.
(6) A servicer who complies with 12 CFR 1024.41, as promulgated by the CFPB, or is exempt from compliance with that regulation under federal law or CFPB rules, regulations, or orders, is deemed in compliance with this section.
38-38-104. Right to cure when default is nonpayment – right to cure for certain technical defaults.
(1) Unless the order authorizing the sale described in section 38-38-105 contains a determination that there is a reasonable probability that a default in the terms of the evidence of debt, deed of trust, or other lien being foreclosed other than nonpayment of sums due thereunder has occurred, any of the following persons is entitled to cure the default if the person files with the officer, no later than fifteen calendar days prior to the date of sale, a written notice of intent to cure together with evidence of the person’s right to cure to the satisfaction of the officer:
(a) (I) The owner of the property as of the date and time of the recording of the notice of election and demand or lis pendens as evidenced in the records;
(II) If the owner of the property is dead or incapacitated on or after the date and time of the recording of the notice of election and demand or lis pendens, the owner’s heirs, personal representative, legal guardian, or conservator as of the time of filing of the notice of intent to cure, whether or not such person’s interest is shown in the records, or any co-owner of the property if the co-owner’s ownership interest is evidenced in the records as of the date and time of the recording of the notice of election and demand or lis pendens;
(III) A transferee of the property as evidenced in the records as of the time of filing of the notice of intent to cure if the transferee was the property owner’s spouse as of the date and time of the recording of the notice of election and demand or lis pendens or if the transferee is wholly owned or controlled by the property owner, is wholly owned or controlled by the controlling owner of the property owner, or is the controlling owner of the property owner;
(IV) A transferee or owner of the property by virtue of merger or other similar event or by operation of law occurring after the date and time of the recording of the notice of election and demand or lis pendens; or
(V) The holder of an order or judgment entered by a court of competent jurisdiction as evidenced in the records after the date and time of the recording of the notice of election and demand or lis pendens ordering title to the property to be vested in a person other than the owner;
(b) A person liable under the evidence of debt;
(c) A surety or guarantor of the evidence of debt; or
(d) A holder of an interest junior to the lien being foreclosed by virtue of being a lienor or lessee of, or a holder of an easement or license on, the property or a contract vendee of the property, if the instrument evidencing the interest was recorded in the records prior to the date and time of the recording of the notice of election and demand or lis pendens. If, prior to the date and time of the recording of the notice of election and demand or lis pendens, a lien is recorded in an incorrect county, the holder’s rights under this section shall only be valid if the lien is rerecorded in the correct county at least fifteen calendar days prior to the actual date of sale.
(2) (a) (I) Promptly upon receipt of a notice of intent to cure by the officer, but no less than twelve calendar days prior to the date of sale, the officer shall transmit by mail, facsimile, or electronic means to the person executing the notice of election and demand a request for a statement of all sums necessary to cure the default. The attorney for the holder or servicer or, if none, the holder or servicer, shall file the cure statement with the officer, and the cure statement must set forth the amounts necessary to cure. Upon receipt of the statement of the amounts needed to cure, the officer shall transmit in writing to the person filing the notice of intent to cure the default:
(A) The cure statement; and
(B) A statement that the person filing the notice of intent to cure is entitled to receive from the attorney for the holder or servicer or, if not represented, from the holder or servicer, upon written request mailed to the attorney for the holder, or servicer or, if not represented, to the holder of servicer at the address stated on the cure statement, copies of receipts or other credible evidence to support the costs claimed on the cure statement. This request may be sent only after payment to the officer of the amount shown on the cure statement and must be sent within ninety days after payment of the cure amount.
(II) If a cure statement is required pursuant to subparagraph (I) of this paragraph (a), the holder of the evidence of debt shall submit a signed and acknowledged cure statement, or the office of the attorney for the holder shall submit a signed cure statement, specifying the following amounts, itemized in substantially the following categories and in substantially the following form:
CURE STATEMENT
To: ________
Public Trustee (or Sheriff) of the County (or City and County) of _________. State of Colorado (hereinafter the “officer”)
Foreclosure Sale Number: __________
Grantor: __________
The date through which the cure statement is effective: __________
The following is an itemization of all sums necessary to cure the default (any amount that is based on a good faith estimate is indicated with an asterisk):
Payments under the evidence of debt
______________payments of $ __________each
Accrued late charges __________
Other amounts due under the evidence of debt (specify)
______________ ____________________
______________ ____________________
Property inspections __________
Property, general liability, and casualty insurance __________
Certificate of taxes due __________
Property taxes paid by the holder __________
Owner association assessment paid the by holder__________
Permitted amounts paid on prior liens __________
Less impound/escrow account credit __________
Plus impound/escrow account deficiency __________
Title costs __________
Rule 120 docket fee __________
Rule 120 posting costs __________
Court costs __________
Postage/delivery costs __________
Service/posting costs __________
Attorney fees __________
Other fee and costs (specify):
______________ ____________________
______________ ____________________
Reinstatement Total $__________
(does not include officer’s fees and costs)
Officer’s fees and costs $__________
(to be added by officer)
Total to cure $__________
(to be added by officer)
It may take several days before the cure is processed and entered into the holder’s records.
The total to cure does not include any future monthly mortgage payments that may be due.
Name of the holder of the evidence of debt and the attorney for the holder:
Holder: __________
Attorney: __________
Printed Name: __________
Signature: __________
Attorney address: __________
Attorney business telephone: __________
(III) The cure statement is a representation of fact, made upon the current information and belief of the person signing it. If the holder of servicer determines that there is an inaccurate amount contained in the cure statement, the holder or servicer, or the attorney for the holder or servicer, shall inform the officer immediately and provide a cure statement with updated figures; except that any additional or increased amounts must be added at least ten calendar days before the effective date of the original cure statement. If an inaccurate amount is reported and a corrected cure statement is not provided within the time specified in this subparagraph (III), the officer may continue the sale for one week in accordance with section 38-38-109(1). An estimate as allowed under subsection (5) of this section is not an inaccurate amount for purposes of this subparagraph (III).
(IV) Within seven business days after the officer’s notification to the holder or servicer, or to the attorney for the holder or servicer, that the officer has received the funds necessary to cure the default as reflected on the initial or updated cure statement, the holder or servicer or the attorney for the holder or servicer shall deliver to the officer a final statement, reconciled for estimated amounts that were not or would not be incurred as of the date the cure proceeds were received by the officer, along with receipts or invoices for all rule 120 docket costs and all statutorily mandated posting costs claimed on the cure statement. All amounts of cure proceeds received by the officer in excess of the amounts reflected on the final statement shall be remitted by the officer to the person who paid the cure amount.
(V)(A) The holder or servicer shall remit to the person who paid the cure amount any portion of the cure amount that represents a fee or cost listed on the cure statement that exceeds the amount actually incurred and that was not remitted by the officer in accordance with subparagraph (I) of paragraph (d) of this subsection (2).
(B) The officer shall remit to the person who paid the cure amount any portion of the cure amount that represents a fee or cost of the officer that exceeds the amount actually incurred by the officer.
(VI) The holder or servicer is responsible for retaining receipts or other credible evidence to support all costs claimed on the cure statement, including rule 120 docket fees and posting costs, and the person who paid the cure amount is entitled to receive copies upon written request mailed to the attorney for the holder or servicer or, if not represented, to the holder or servicer at the address stated on the cure statement. The request may be made at any time after payment to the officer of the amount shown on the cure statement, but must be made within ninety days after payment of the cure amount. The attorney for the holder or servicer or, if not represented, the holder or servicer shall provide copies of all receipts or other credible evidence within thirty days after receiving the request, and may provide the copies electronically.
(b) No later than 12 noon on the day before the sale, the person desiring to cure the default shall pay to the officer all sums that are due and owing under the evidence of debt and deed of trust or other lien being foreclosed and all fees and costs of the holder of the evidence of debt allowable under the evidence of debt, deed of trust, or other lien being foreclosed through the effective date set forth in the cure statement; except that any principal that would not have been due in the absence of acceleration shall not be included in such sums due.
(c) If a cure is made, interest for the period of any continuance pursuant to section 38-38-109 (1) (c) shall be allowed only at the regular rate and not at the default rate as may be specified in the evidence of debt, deed of trust, or other lien being foreclosed. If a cure is not made, interest at the default rate, if specified in the evidence of debt, deed of trust, or other lien being foreclosed, for the period of the continuance shall be allowed.
(d) (I) Upon receipt of the cure amount and conditioned upon the withdrawal or dismissal of the foreclosure from the holder or servicer or the attorney for the holder or servicer, the officer shall:
(A) Deliver the cure amount, less the fees and costs of the officer and any adjustments required under subparagraph (III) of paragraph (a) of this subsection (2), to the attorney for the holder or servicer or, if none, to the holder or servicer; and
(B) Obtain and retain, in the officer’s records, the name and mailing address of the person who paid the cure amount.
(II) Following the withdrawal or dismissal, the evidence of debt shall be returned uncancelled to the attorney for the holder OR servicer or, if none, to the holder or servicer by the public trustee or to the court by the sheriff.
(3) Where the default in the terms of the evidence of debt, deed of trust, or other lien on which the holder of the evidence of debt claims the right to foreclose is the failure of a party to furnish balance sheets or tax returns, any person entitled to cure pursuant to paragraph (a) of subsection (2) of this section may cure such default in the manner prescribed in this section by providing to the holder or the attorney for the holder the required balance sheets, tax returns, or other adequate evidence of the party’s financial condition so long as all sums currently due under the evidence of debt have been paid and all amounts due under paragraph (b) of subsection (2) of this section, where applicable, have been paid.
(4) Any person liable on the debt and the grantor of the deed of trust or other lien being foreclosed shall be deemed to have given the necessary consent to allow the holder of the evidence of debt or the attorney for the holder to provide the information specified in paragraph (a) of subsection (2) of this section to the officer and all other persons who may assert a right to cure pursuant to this section.
(5) A cure statement pursuant to paragraph (a) of subsection (2) of this section shall state the period for which it is effective. The cure statement shall be effective for at least ten calendar days after the date the cure statement is received by the officer or until the last day to cure under paragraph (b) of subsection (2) of this section, whichever occurs first. The cure statement shall be effective for no more than thirty calendar days after the date the cure statement is received by the officer or until the last day to cure under paragraph (b) of subsection (2) of this section, whichever occurs first. The use of good faith estimates in the cure statement with respect to interest and fees and costs is specifically authorized by this article, so long as the cure statement states that it is a good faith estimate effective through the last day to cure as indicated in the cure statement. The use of a good faith estimate in the cure statement shall not change or extend the period or effective date of a cure statement.
(6) Following expiration of the period for which the cure statement is effective, but no less than fifteen calendar days prior to the date of sale, the person who originally submitted the notice of intent to cure may make a written request to the public trustee for an update of the amount necessary to cure. Upon receipt by the public trustee of such written request for updated cure figures, subsection (2) of this section shall apply.
(7) If the holder of the evidence of debt or the attorney for the holder receives a request for a cure statement under paragraph (a) of subsection (2) of this section and does not file a cure statement with the officer by the earlier of ten business days after receipt of the request or the eighth calendar day before the date of the sale, the officer shall continue the sale for one week. Thereafter and until the cure statement is filed, the officer shall continue the sale an additional week for each week that the holder fails to file the cure statement; except that the sale shall not by continued beyond the period of continuance allowed under 38-38-109 (1) (a). A cure statement must be received by 12 noon on the day it is due in order to meet a deadline set forth in this subsection (7).
38-38-105. Court order authorizing sale mandatory – repeal.
(1) This subsection (1) is repealed, effective January 1, 2008.
(2) (a) On and after January 1, 2008, whenever a public trustee forecloses upon a deed of trust under this article, the holder of the evidence of debt or the attorney for the holder shall obtain an order authorizing sale from a court of competent jurisdiction to issue the same pursuant to rule 120 or other rule of the Colorado rules of civil procedure. The order shall recite the date the hearing was scheduled if no hearing was held, or the date the hearing was completed if a hearing was held, which date in either case must be no later than the day prior to the last day on which an effective notice of intent to cure may be filed with the public trustee under section 38-38-104. A sale held without an order authorizing sale issued in compliance with this paragraph (a) shall be invalid.
(b) The public trustee shall postpone the sale, unless the holder or the attorney for the holder causes a copy of the order to be provided to the public trustee no later than 12 noon on the second business day prior to the date of sale. A sale held in violation of this paragraph (b) shall not be invalid if an order that complied with the provisions of paragraph (a) of this subsection (2) was entered.
(3) (a) Not less than fourteen days before the date set for the hearing pursuant to rule 120 or other rule of the Colorado rules of civil procedure, the holder or the attorney for the holder seeking an order authorizing sale under this section for a residential property shall cause a notice of hearing as described in rule 120 (b) of the Colorado rules of civil procedure to be posted in a conspicuous place on the property that is the subject of the sale. If possible, the notice shall be posted on the front door of the residence, but if access to the door is not possible or is restricted, the notice shall be posted at an alternative conspicuous location, such as a gate or similar impediment. If a person at the residence is impeding posting at the residence at the time of the attempted posting, the notice may be handed to that person to satisfy this posting requirement. The notice required by this subsection (3) is sufficient if it complies with the requirements of this section without regard to any requirements for service of process in a civil action required by court rule.
(b) For servicers who are not exempt pursuant to section 38-38-103.1 (3) or 38-38-103.2 (4), the notice must contain or be accompanied by a conspicuous statement, substantially as follows, together with contact information for both the Colorado attorney general’s office and the CFPB:
If you believe that the lender or servicer of this mortgage has violated the requirements for a single point of contact in section 38-38-103.1, Colorado revised statutes, or the prohibition on dual tracking in section 38-38-103.2, Colorado revised statutes, you may file a complaint with the Colorado attorney general, the federal consumer financial protection bureau, or both, at [insert contact information for both]. The filing of a complaint will not stop the foreclosure process.
(4) As used in this section, “residential property” means any real property upon which a dwelling, as defined in section 5-1-301(18), C.R.S., is constructed and occupied.
38-38-106. Bid required – form of bid.
(1) (a) The holder of the evidence of debt or the attorney for the holder shall submit a bid setting forth the holder’s initial bid for the property that is received by the officer no later than 12 noon on the second business day prior to the date of sale as provided in this section. In addition, if the sale will be conducted electronically, the holder may also include a maximum bid for the property. The holder or the attorney for the holder need not personally attend the sale. If the sale will be conducted electronically and the holder has elected to include a maximum bid, the bid shall be increased electronically in increments incorporated in the electronic program used by the officer to conduct the electronic sale up to such maximum bid if one or more third parties submit competing bids for the property.
(b) If the bid is not received by the officer by the deadline, the officer shall continue the sale for one week and shall announce or post a notice of the continuance at the time and place designated for the sale.
(2) The holder of the evidence of debt shall submit a signed and acknowledged bid, or the attorney for the holder shall submit a signed bid, which must specify the following amounts, itemized in substantially the following categories and in substantially the following form:
BID
To:
Public Trustee (or Sheriff) of the County (or City and County) of , State of Colorado (hereinafter the “officer”).
Date: , whose mailing address is , bids the sum of $ in your Sale No. to be held on the day of , 20 .
The following is an itemization of all amounts due the holder of the evidence of debt secured by the deed of trust or other lien being foreclosed.
Street address of property being foreclosed, if known: _________________
Regular [ ] / Default [ ] rate of interest as of the date of sale: __________
(Inapplicable items may be omitted):
Amounts due under the evidence of debt:
Principal $ __________
Interest __________
Late charges __________
Allowable prepayment penalties or premiums __________
Other amounts due under the evidence of debt (specify) __________
Category subtotal: _________
Other fees and costs advanced by the holder of evidence of debt:
Property, general liability, and casualty insurance __________
Property inspections __________
Appraisals __________
Taxes and assessments __________
Utility charges owed or incurred __________
Owner association assessment paid __________
Permitted amounts paid on prior liens __________
Permitted lease payments __________
Less impound/escrow account credit __________
Plus impound/escrow account deficiency __________
Other (describe) __________
Category subtotal: $ __________
Attorney fees and advances:
Attorney fees __________
Title commitments and insurances or abstractor charges __________
Court docketing __________
Statutory notice __________
Postage __________
Electronic transmissions __________
Photocopies __________
Telephone __________
Other (describe) __________
Category subtotal: $ __________
Officer fees and costs:
Officer statutory fee __________
Publication charges __________
Certificate of purchase recording fee _________
Confirmation deed fee ____________
Confirmation deed recording fee ___________
Other (describe) __________
Category subtotal: $ __________
Total due holder of the evidence of debt __________
Initial Bid $ __________
Deficiency $ __________
I enclose herewith the following:
1. Order authorizing sale.
2. Check (if applicable) to your order in the sum of $_____ covering the balance of your fees and costs.
3. Other: ________________________ .
Please send us the following:
1. Promissory Note with THE deficiency, IF ANY, noted thereon
2. Refund for overpayment of officer’s fees and costs, if any
3. Other: .
Name of the holder of the evidence of debt
and the attorney for the holder
Holder:_________________
Attorney:______________
By: ______________________
Attorney Registration Number:________
Attorney Address: __________________________
Attorney Business Telephone: ______________
(3) Upon receipt of the initial bid from the holder of the evidence of debt or the attorney for the holder, the officer shall make such information available to the general public.
(4) The officer shall enter the bid by reading the bid amount set forth on the bid and the name of the person that submitted the bid or by posting or providing such bid information at the time and place designated for sale.
(5) Bids submitted pursuant to this section may be amended by the holder of the evidence of debt or the attorney for the holder in writing or electronically, as determined by the officer pursuant to section 38-38-112, no later than 12 noon the day prior to the sale, or orally at the time of sale if the person amending the bid is physically present at the sale or electronically during the sale is the sale is conducted by means of the internet or another electronic medium. A bid submitted pursuant to this section may be modified orally at the time of sale if the person making the modification modifies and reexecutes the bid at the sale.
(6) The holder of the evidence of debt or the attorney for the holder shall bid at least the holder’s good faith estimate of the fair market value of the property being sold, less the amount of unpaid real property taxes and all amounts secured by liens against the property being sold that are senior to the deed of trust or other lien being foreclosed and less the estimated reasonable costs and expenses of holding, marketing, and selling the property, net of income received; except that the holder or the attorney for the holder need not bid more than the total amount due to the holder as specified in the bid pursuant to subsection (2) of this section. The failure of the holder to bid the amount required by this subsection (6) shall not affect the validity of the sale but may be raised as a defense by any person sued on a deficiency.
(7) (a) (I) Other than a bid by the holder of the evidence of debt not exceeding the total amount due shown on the bid pursuant to subsection (2) of this section, the payment of any bid amount at sale must be received by the officer no later than the date and time of the sale, or at an alternative time after the sale and on the day of the sale, as specified in writing by the officer. The payment must be in the form specified in section 38-37-108. If the officer has not received full payment of the bid amount from the highest bidder at the sale pursuant to this subsection (7), the next highest bidder who has timely tendered the full amount of the bid under this subsection (7) is deemed the successful bidder at the sale.
(II) If the holder of the evidence of debt is the highest bidder with a bid that exceeds the total amount due shown on the bid pursuant to subsection (2) of this section, the holder of the evidence of debt is only required to pay the excess of the amount bid over the amount due the holder of the evidence of debt, as shown on the bid submitted pursuant to subsection (2) of this section.
(b) The officer may establish written policies relating to all aspects of the foreclosure sale that are consistent with the provisions of this article. The written policies shall be made available to the general public.
38-38-107. Fees and costs – definitions.
(1) All fees and costs of every kind and nature incurred under the provisions of articles 37 to 39 of this title shall be fees and costs of the sale chargeable as additional amounts owing under the deed of trust or other lien being foreclosed. The amounts shall be deducted from the proceeds of any sale, or, if there are not cash proceeds from a sale adequate to pay such amounts, to the extent of the inadequacy, the amounts shall be paid by the holder of the evidence of debt. The officer may decline to issue the confirmation deed pursuant to section 38-38-501 until all sums due to the officer have been paid.
(2) (Deleted by amendment, L. 2006, p. 1455, § 13; L. 2007, p. 1849, § 27, effective January 1, 2008.)
(3) Fees and costs include but are not limited to the following amounts that have been paid or incurred:
(a) Costs and expenses allowable under the evidence of debt, deed of trust, or other lien being foreclosed; and
(b) Reasonable attorney fees and the costs incurred by the holder or the attorney for the holder in enforcing the evidence of debt, the deed of trust, or other lien being foreclosed or in defending, protecting, and insuring the holder’s interest in the foreclosed property or any improvements on the property, including but not limited to:
(I) All expenses actually incurred by the officer conducting the sale, publication costs, statutory notice costs and postage, and appraisal fees;
(II) Any general or special taxes or ditch or water assessments levied or accruing against the property and any governmental or quasi-governmental lien, fine, penalty, or assessment against the property;
(III) The premiums on any property, casualty, general liability, or title insurance acquired to protect the holder’s interest in the property or improvements on the property;
(IV) Sums due on any prior lien or encumbrance on the property, including the portion of an assessment by a homeowners’ association that constitutes a lien prior to the lien being foreclosed; except that any principal that would not have been due in the absence of acceleration shall not be included in the sum due unless paid after the expiration of the time to cure the indebtedness pursuant to this article;
(V) If the property is subject to a lease, all sums due under the lease;
(VI) The reasonable costs and expenses of defending, protecting, securing, and maintaining and repairing the property and the holder’s interest in the property or the improvements on the property, receiver’s fees and expenses, inspection fees, court costs, attorney fees, and fees and costs of the attorney in the employment of the owner of the evidence of debt;
(VII) Costs and expenses made pursuant to a valid order from a court of competent jurisdiction to bring the property and the improvements on the property into compliance with the federal, state, county, and local laws, ordinances, and regulations affecting the property, the improvements on the property, or the use of the property; and
(VIII) Other costs and expenses that may be permitted by the deed of trust, mortgage, or other lien securing the debt or that may be authorized by a court of competent jurisdiction.
(c) As used in this subsection (3), “holder” means the holder of the certificate of purchase, the holder of the certificate of redemption, or the holder of the evidence of debt.
(4) In the case of a redemption, the fees and costs listed in subsection (3) of this section that the holder of the certificate of purchase or certificate of redemption has paid or incurred as of the time of filing of the statement for redemption are allowable and shall be included in the statement of redemption if such amounts have not been included in a prior bid or statement of redemption.
(5) Notwithstanding the provisions of subsections (1), (3), and (4) of this section, a holder of an evidence of debt, certificate of purchase, or certificate of redemption shall not accept from a provider of services or products related to property inspection, broker’s price opinion, title report, appraisal, insurance, repair, or maintenance or from an agent or affiliate of the provider any payment, benefit, or remuneration of any kind, whether in the form of cash, employee, advertising, computer program or service, bank deposit, or other good or service in connection with a foreclosure in which a property inspection, broker’s price opinion, title report, appraisal, insurance, repair, or maintenance service or product of the provider or an agent or affiliate of the provider was used, unless the total value of all payment, benefit, or remuneration received by the holder from the provider of the service or product is shown and credited against amounts owed to the holder in each bid, cure statement, or redemption statement.
38-38-108. Date of sale.
(1) Whenever property is to be sold following the foreclosure of any deed of trust or other lien by the officer, the initial date of sale shall be:
(a) In the case of a sale of property by the public trustee that is not agricultural property, no less than one hundred ten calendar days nor more than one hundred twenty-five calendar days after the date of recording of the notice of election and demand;
(b) In the case of a sale of property by the sheriff that is not agricultural property, no less than one hundred ten calendar days after the date of the recording of the lis pendens;
(c) In the case of a sale of property by the public trustee, all of which is agricultural property, no less than two hundred fifteen calendar days nor more than two hundred thirty calendar days after the date of recording of the notice of election and demand; or
(d) In the case of a sale of property by the sheriff, all of which is agricultural property, no less than two hundred fifteen calendar days after the date of the recording of the lis pendens.
(2) (a) (I) If it is not evident from the legal description contained in the deed of trust or other lien being foreclosed whether the property described therein is agricultural property, the officer shall make that determination no less than ten calendar days nor more than twenty calendar days after the recording of the notice of election and demand; except that the officer may make the determination at any earlier time upon presentation of acceptable evidence that the property is not agricultural property. The officer shall accept the following as evidence that the property is not agricultural property:
(A) A certified copy of the subdivision plat containing the property or any portion thereof recorded in the office of the clerk and recorder of the county where the property or any portion thereof is located; or
(B) A written statement by the clerk of the city, town, or city and county, dated no more than six months before the date of filing of the notice of election and demand or lis pendens with the officer, that all or a portion of the property was located within the incorporated limits of the city, town, or city and county as of the date of recording of the deed of trust or other lien or as of the date of the statement.
(I.5) The officer shall accept, as evidence that the property is agricultural property, a written statement by the assessor of the county where the property is located, dated no more than six months before the date of filing of the notice of election and demand or lis pendens with the officer, that all of the property was valued and assessed as agricultural property after the date of the recording of the deed of trust or as of the date of the statement.
(II) The officer’s determination of whether the property is agricultural or nonagricultural property shall be binding and may be relied upon by all parties.
(b) The statements described in sub-subparagraph (B) of subparagraph (I) and subparagraph (I.5) of paragraph (a) of this subsection (2) may be obtained and furnished at the expense of the person seeking the determination of whether the property is agricultural or nonagricultural property, which expense may be included as a portion of the fees and costs of the foreclosure.
(3) The provisions of this section shall not apply to sales following an execution and levy.
(4) Notwithstanding the designation of property valued and assessed as other than agricultural property according to the definition of “agricultural property” in section 38-38-100.3 (1) (c), an assessor’s nonintegral classification of two acres or less of land on which a residential improvement is located, as described in section 39-1-102 (1.6) (a) (I) (A), C.R.S., is not determinative of whether the property is agricultural for purposes of paragraphs (c) and (d) of subsection (1) and subparagraph (I.5) of paragraph (a) of subsection (2) of this section.
38-38-109. Continuance of sale – effect of bankruptcy – withdrawal of sale.
(1) Continuance.
(a) For any reason deemed by the officer to be good cause or upon written request by the holder of the evidence of debt or by the attorney for the holder, at any time before commencement of the sale, the officer may continue the sale to a later date by making, at the time and place designated for the sale, an oral announcement of the time and place of such continuance, or by posting or providing a notice of the continuance at the time and place designated for the sale, which shall include the time and place to which the sale is continued. Except as provided in subparagraph (I) of paragraph (b) of subsection (2) of this section, a sale that is not held on the then-scheduled date of sale and is not continued from the then-scheduled date of sale pursuant to this paragraph (a) shall be deemed to have been continued for a period of one week, and from week to week thereafter in like manner, until the sale is held or otherwise continued pursuant to this paragraph (a). No sale shall be continued to a date later than twelve months from the originally designated date in the combined notice, except as provided in subsection (2) of this section.
(b) At the request of the holder of the evidence of debt or the attorney for the holder or upon the officer’s own initiative, the officer shall correct any errors in a published combined notice and shall continue the then-scheduled date of sale to a future date within the period of continuance allowed by paragraph (a) of this subsection (1) to permit a corrected combined notice to be published or the original combined notice to be republished pursuant to section 38-38-103 (5). If the officer failed to publish the combined notice as required by section 38-38-103 (5), the officer shall continue the then-scheduled date of sale to a future date within the period of continuance allowed by paragraph (a) of this subsection (1). The future date of sale to which the sale is continued pursuant to this paragraph (b) shall be no later than thirty calendar days after the fifth publication of the corrected combined notice or republished combined notice. The officer shall mail a copy of the combined notice, or corrected combined notice if the original combined notice was erroneous, to the persons and addresses on the most recent amended mailing list no later than ten calendar days after the first correct publication or republication and no less than forty-five calendar days prior to the actual date of sale in the same manner as set forth in section 38-38-103. If there is no amended mailing list, the officer shall mail a copy of the combined notice, or corrected combined notice if the original combined notice was erroneous, to the persons as set forth in the mailing list.
(c) (I) (A) If a cure statement is not timely filed, the sale will be continued pursuant to section 38-38-104 (7).
(B) (Deleted by amendment, L. 2009, (HB 09-1207))
(C) During a foreclosure deferment pursuant to part 8 of this article, any continuance required by sub-subparagraphs (A) of this subparagraph (I) shall run concurrently with the foreclosure deferment.
(II) (Deleted by amendment, L. 2009, (HB 09-1207))
(III) When the property is to be sold by the sheriff, if the cure statement is not filed with the sheriff by 12 noon on the seventh calendar day before the last date of sale permitted under paragraph (a) of this subsection (1), the foreclosure action shall be deemed dismissed, and the holder of the evidence of debt or the attorney for the holder shall file a motion to dismiss with the court. Upon good cause shown, the holder or the attorney for the holder may file a motion with the court requesting further relief as the court may deem necessary or appropriate in the circumstances. The sheriff shall record the order of dismissal or other order of the court and collect all fees and costs actually incurred by the sheriff.
(2) Effect of bankruptcy proceedings.
(a) If all publications of the combined notice prescribed by section 38-38-103 (5) or 13-56-201 (1), C.R.S., have been completed before a bankruptcy petition has been filed that automatically stays the officer from conducting the sale, the officer shall announce, post, or provide notice of that fact on the then-scheduled date of sale, take no action at the then-scheduled sale, and allow the sale to be automatically continued from week to week in accordance with paragraph (a) of subsection (1) of this section unless otherwise requested in writing prior to any such date of sale by the holder of the evidence of debt or the attorney for the holder.
(b) (I) If the publications of the combined notice prescribed by section 38-38-103 (5) or 13-56-201 (1), C.R.S., have not been started or if all the publications have not been completed before the day a bankruptcy petition has been filed that automatically stays the officer from conducting the sale, the officer shall immediately cancel any remaining publications of the combined notice and, on the date set for the sale, announce, post, or provide a notice that the sale has been enjoined or has been stayed by the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended. The sale shall not be continued under paragraph (a) of subsection (1) of this section.
(II) (A) Upon the termination of any injunction or upon the entry of a bankruptcy court order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, and upon receipt of a request from the holder of the evidence of debt or the attorney for the holder to restart the action, the public trustee shall rerecord the notice of election and demand and proceed with all additional foreclosure procedures provided by this article 38 as though the foreclosure had just been commenced.
(B) If the request is not received by the public trustee within one year from the date of the termination of any injunction or the entry of a bankruptcy court order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay, the foreclosure shall be withdrawn according to subsection (3)(b) of this section.
(III) When the property is to be sold by the sheriff under any statutory or judicial foreclosure or upon execution and levy made pursuant to any court order or decree, upon the notification of termination of any injunction or upon the entry of a bankruptcy court order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, the sheriff shall forthwith establish a new date of sale and republish a new combined notice pursuant to section 13-56-201 (1), C.R.S.
(c) (I) If a sale is held in violation of the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, and an order is subsequently entered by a bankruptcy court of competent jurisdiction dismissing the bankruptcy, abandoning the property being foreclosed, or closing the bankruptcy case, or an order is subsequently entered granting relief from the automatic stay provided by the federal bankruptcy code, then the evidence of debt, deed of trust, or other lien being foreclosed shall immediately be deemed reinstated, and the deed of trust or other lien shall have the same priority as if the sale had not occurred.
(II) If the holder of the evidence of debt, deed of trust, or other lien reinstated pursuant to subsection (2)(c) or the attorney for the holder notifies the officer in writing of the entry of an order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provided by the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, no later than fifty calendar days prior to the last possible sale date pursuant to subsections (1)(a) and (2)(e) of this section, the officer shall set a new date of sale at least twenty-four calendar days but not more than forty-nine calendar days after the date on which the official receives such notice. No later than ten business days after receiving such notice, the officer shall mail an amended combined notice containing the date of the rescheduled sale to each person appearing on the most recent mailing list. No later than twenty calendar days after receiving such notice, but no less than ten calendar days prior to the new date of sale, the officer shall publish the amended combined notice, omitting the copies of the statutes, one time only in a newspaper of general circulation in the county where the property is located.
(III) If the holder of the evidence of debt, deed of trust, or other lien reinstated pursuant [to] this subsection (2)(c) or the attorney for the holder does not notify the officer in writing of the entry of an order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provided by the federal bankruptcy code of 1978, title 11 of the United State Code, as amended, within the time allowed under subsection (2)(c)(II) of this section, the officer shall administratively withdraw the sale pursuant to subsection (3)(b) of this section upon receipt of the order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provided by the federal bankruptcy code of 1978, title 11 of the United State Code, as amended.
(IV) All fees and costs of providing and publishing the amended combined notice and publication shall be part of the foreclosure costs.
(d) If a sale is set aside by court order, unless the court order specifies otherwise, the following procedures apply:
(I) Upon receipt of the court order, the public trustee’s fee specified in section 38-37-104(1)(b)(XI), and the costs of recording the court order as specified in this subsection (2)(d), the public trustee shall attach to the order a copy of the certificate of purchase, any assignments thereof, and, if applicable, the confirmation deed, each marked “null and void”, and record the order together with these documents.
(II) Upon recordation of the court order, the certificate of purchase shall be deemed canceled as if the sale had not occurred, and the evidence and deed of trust are deemed fully reinstated with the same lien priority as if the sale had not occurred.
(III) Within ten calendar days after receipt of all documents, fees, and costs specified in subsection (2)(d) of this section, the public trustee shall mail a copy of the court order to each person entitled to receive the combined notice pursuant to section 38-38-103.
(IV)(A) After the recording of the court order, the holder of the evidence of debt or the holder’s assignee of the attorney for the holder or the attorney for the assignee may notify the public trustee in writing to reschedule the sale within one year of the issuance of the order. The public trustee shall set a new date of sale at least thirty calendar days but not more than forty-five calendar days after the date on which the public trustee received notice to schedule a new date of sale subject to the requirements of subsections (1)(a) and (2)(e) of this section, but not earlier than the scheduled sale date as of the date of the court order.
(B) No later than ten calendar days after receiving notice to schedule a new date of sale, the public trustee shall mail a combined notice setting forth the rescheduled date of sale to each person entitled to receive the combined notice pursuant to section 38-38-103.
(C) No later than twenty calendar days after receiving notice to schedule a new date of sale, but no less than ten calendar days prior to the new date of sale, the public trustee shall publish the sale one time only. Such publication must be in the format specified for publication by section 38-38-103.
(D) All fees and costs of the public trustee for actions performed under this section and the cost of recording the court order and documents incorporated into the court order by attachment are part of the foreclosure costs.
(E) After a sale has been set aside and subsequently rescheduled pursuant to this subsection (2)(d)(IV), the sale may be continued in accordance with subsections (1)(a) and (2)(e) of this section.
(F) If a written request to reschedule the sale is not received by the public trustee within one year of the issuance of the order, the foreclosure must be withdrawn according to subsection (3)(b) of this section.
(V) Nothing in this section prevents the foreclosing lender from seeking a rescission of sale pursuant to section 38-38-113 if the requirements within section 38-38-113(1) are met.
(e) The periods for which a sale may be continued under this subsection (2) shall be in addition to the twelve-month period of continuance provided by subsection (1) of this section.
(3) Withdrawal.
(a) If the holder of the evidence of debt or the attorney for the holder files with the public trustee, prior to sale, a written withdrawal of the notice of election and demand, the foreclosure proceedings shall terminate. The public trustee shall record the withdrawal and collect all fees and costs owed and incurred, including a withdrawal fee in the amount authorized by section 38-37-104 (1) (b) (V).
(b) If there is no sale and if a withdrawal is not filed within forty-five calendar days after the last date of sale permitted by law, the public trustee may transmit by mail or electronic transmission to the attorney for the holder of the evidence of debt, or if no attorney then to the holder, a notice that a withdrawal of the notice of election and demand may be recorded by the public trustee unless a response requesting that such withdrawal be delayed for ninety calendar days is received by the public trustee within thirty calendar days after the date the public trustee’s notice is transmitted. If such response is received by the public trustee and there is no sale nor is a withdrawal filed within the ninety-day delay, the public trustee may record a withdrawal of the notice of election and demand. If no such response is received by the public trustee within thirty calendar days after the notice is transmitted, the public trustee may record a withdrawal of the notice of election and demand at any time after the expiration of such thirty-day notice period. If a withdrawal is recorded during the pendency of an automatic stay imposed on the sale based on any proceeding filed under the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, the withdrawal shall be void and of no force and effect, and the public trustee shall mail to all persons on the mailing list a notice that the withdrawal of the notice of election and demand occurred during the pendency of an injunction or bankruptcy stay and is void and of no force and effect. The public trustee shall cause the notice to be recorded in the office of the county clerk and recorder of the county where the property described in the notice is located. All unpaid fees and costs owed and incurred by the public trustee, as well as a withdrawal fee in the amount authorized by section 38-37-104 (1) (b) (VI), shall be paid by the holder. The amount due shall accrue interest at the rate provided by law. Until all amounts due and owing are paid, the public trustee shall be entitled to hold all documentation in the public trustee’s possession and to withhold all other services requested by the holder or the attorney for the holder with respect to the deed of trust or other lien being foreclosed.
38-38-110. Sales by officer – location – announcement – records.
(1) (a) (I) Notwithstanding the provisions of any deed of trust or other lien being foreclosed, the officer shall conduct the sale at any door or entrance to, or in any room in any building temporarily or permanently used as, a courthouse or at or within any building where the office of the county clerk and recorder or the office of the officer is located, which place shall be specifically designated in the combined notice; except that a sale may be conducted by means of the internet or other electronic medium. The county, the officer, and employees of the county of the officer, acting in their official capacities in preparing, conducting, and executing a sale under this article by means of the internet or another electronic medium, are not liable for the failure of a device that prevents a person from participating in a sale under this article.
(II) As used in this paragraph (a), “device” includes any computer hardware, computer network, computer software application, or web site;
(b) The combined notice shall designate the actual place of sale or, if the sale is conducted by means of the internet or another electronic medium, the information prescribed by section 38-38-103 (4) (a) (VII).
(2) At a sale, the officer shall read only the public trustee’s sale number for a sale by the public trustee or the court case number for a sale by the sheriff, the name of the original grantor, the street address or, if none, the legal description of the property, the name of the holder of the evidence of debt, the date of sale, the first and last publication dates of the combined notice, and, in accordance with section 38-38-106 (4), the amount of the bid and the name of the person that submitted the bid. In lieu of reading the information listed above, the officer may post the information at the location of the sale or provide a written copy of the information to all persons present at the sale, or post the information on the internet or other electronic medium if the sale is conducted by means of the internet or another electronic medium.
(3) Whenever a public trustee sells property described in a deed of trust, the public trustee shall enter in the records of the office of the public trustee the name of the person executing the deed of trust, the book and page or reception number of the recorded deed of trust, a brief description of the property therein described, the date of sale, the publisher of the combined notice, a list of the names and addresses of the persons to whom the combined notice was mailed, the name and last mailing address of the purchaser at the sale, and the amount at which the property was sold in separate parcels, if so sold, or en masse.
38-38-111. Treatment of excess proceeds.
(1) An overbid shall be first applied to any deficiency as indicated in the holder’s bid, and then paid to the officer to be held in escrow until the end of all redemption periods as provided in section 38-38-302.
(2) Upon the expiration of all redemption periods provided in section 38-38-302, any remaining overbid shall be paid in order of recording priority to junior lienors, determined as of the recording date of the notice of election and demand or lis pendens according to the records, who have duly filed a notice of intent to redeem and whose liens have not been redeemed pursuant to section 38-38-302, in each case up to the unpaid amount of each such lienor’s lien plus fees and costs. A lienor holding a lien that is not entitled to redeem by virtue of being recorded after the notice of election and demand, a lienor that has not timely filed a notice of intent to redeem pursuant to section 38-38-302, or a lienor who accepts less than a full redemption pursuant to section 38-38-302 (4) (c) shall not have any claim to any portion of the overbid. After payment to all lienors and the holder entitled to receive a portion of the overbid pursuant to this section, any remaining overbid shall be paid to the borrower.
(2.5)(a) If a public trustee maintains a web site for his or her office, the public trustee shall include the following statement on such web site:
NOTICE TO A BORROWER IN FORECLOSURE: If your property goes to foreclosure auction sale and is purchased for more than the total owed to the lender and to all other lien holders, please contact the public trustee’s office after the sale because you may have funds due to you.
(b) In order to pay the borrower of the property as required pursuant subsection (2) of this section, a public trustee shall send a notice to the borrower. If the amount of remaining overbid is equal to or greater than twenty-five dollars, the public trustee shall make reasonable efforts to identify the borrower’s current address. The public trustee shall mail the borrower a notice regarding the remaining overbid to the best available address no later than thirty days after the expiration of all redemption periods as provided in section 38-38-302.
(c) An agreement to pay compensation to recover or assist in recovering an amount due to the borrower from the Public Trustee under subsection (2) of this section is not enforceable. A person who induces or attempts to induce another person to enter into such an agreement commits a class 2 misdemeanor.
(3)(a) (I) When the property is sold by the sheriff, all of the sale proceeds must be deposited into the registry of the court.
(II) When the property is sold by the public trustee, any unclaimed remaining overbid from a foreclosure sale shall be held by the public trustee in escrow. The remaining overbid shall be held for six months from the date of the sale. The public trustee is answerable for the funds without interest at any time within the six-month period to any person legally entitled to the funds. Any interest earned on the escrowed funds must be paid to the county at least annually. Unclaimed remaining overbids that are less than twenty-five dollars and that are not claimed within six months from the date of sale must be paid to the general fund of the county and such money paid to the general fund of the county becomes the property of the county. Unclaimed remaining overbids that are equal to or greater than twenty-five dollars and that are not claimed within six months from the date of the sale are unclaimed property for purposes of the “Revised Uniform Unclaimed Property Act”, article 13 of this title 38, and must be transferred to the administrator in accordance with article 13. After the unclaimed remaining overbids are transferred to the administrator or to the general fund of the county, the public trustee is discharged from any further liability or responsibility for the money;
(b) If the unclaimed remaining overbids exceed five hundred dollars and have not been claimed by any person entitled thereto within sixty calendar days after the expiration of all redemption periods as provided by section 38-38-302, the public trustee shall, within ninety calendar days after the expiration of all redemption periods, commence publication of a notice for four weeks, which means publication once each week for five successive weeks in a newspaper of general circulation in the county where the subject property is located. The notice must contain the name of the borrower, the borrower’s address as given in the recorded instrument evidencing the borrower’s interest, and the legal description and street address, if any, of the property sold at the sale and must state that an overbid was realized from the sale and that, unless the funds are claimed by the borrower or other person entitled thereto within six months after the date of sale, the funds shall be transferred to the state treasurer for disposition in accordance with the “Revised Uniform Unclaimed Property Act”, article 13 of this title 38. The public trustee shall also mail a copy of the notice to the borrower at the best available address.
(c) The fees and costs of publication and mailing required pursuant to this subsection (3) must be paid from the money escrowed by the public trustee.
(4) A lienor who accepts a redemption amount less than the full amount of a lien or a holder of an evidence of debt who accepts a redemption amount less than the amount bid at a sale prior to the expiration of all applicable redemption periods under this article shall not be entitled to receive a portion of any excess proceeds pursuant to this section.
(5) As used in the section, “borrower” means a person or entity liable under an evidence of debt constituting a mortgage loan or deed of trust.
38-38-112. Use of electronic documents authorized.
(1) Repealed.
(2) Consistent with the provisions of the “Uniform Electronic Transactions Act”, article 71.3 of title 24, C.R.S., any document or record related to a foreclosure may be accepted by the officer in an electronic format or may be made available to the public by the officer in an electronic format. The officer shall establish and uniformly apply written policies for determining whether and the extent to which the officer shall accept documents or records in electronic form; except that the officer shall not require the use of an electronic format for any purpose under this article except as necessary for sales conducted by means of the internet or another electronic medium.
38-38-113. Rescission of public trustee sale.
(1) If the successful bidder at a foreclosure sale is the holder of the evidence of debt foreclosing the deed of trust or other lien, then such successful bidder, the bidder’s attorney, the assignee of the successful bidder pursuant to section 38-38-403, or the assignee’s attorney may rescind the sale without obtaining a court order by filing with the public trustee no later than eight business days after the date of the sale a notice of rescission of sale stating that the sale is being rescinded, the number and date of the sale, the name of the person to whom the certificate of purchase was issued, the name of the assignee, if any, the reception number or book and page number for the recorded certificate of purchase, and the legal description of the property foreclosed. The notice shall be signed and properly acknowledged by the successful bidder or assignee, or signed by the bidder or assignee’s attorney. Upon receipt of the notice of rescission of sale, any assignment of the certificate of purchase, the public trustee’s fee for the rescission specified in section 38-37-104, and the costs of recording the notice of rescission of the sale, the public trustee shall record the notice of rescission of sale in the county records.
(2) Upon recording of the notice of rescission of sale by the public trustee, the certificate of purchase shall be deemed canceled as if the sale had not occurred, and the evidence of debt and deed of trust shall be deemed fully reinstated with the same lien priority as if the sale had not occurred. The public trustee shall confirm the reinstatement by indorsement on the evidence of debt and deed of trust or copy thereof submitted pursuant to section 38-38-101.
(3) Within ten calendar days after receipt of all documents and fees and costs specified in subsection (1) of this section, the public trustee shall mail a copy of the notice of rescission of sale to each person who was entitled to receive the combined notice pursuant to section 38-38-103.
(4) (a) After the recording of the notice of rescission of sale, the holder of the evidence of debt or the holder’s assignee, or the attorney for the holder or the assignee, may notify the public trustee in writing to reschedule the sale. The public trustee shall set a new date of sale at least thirty calendar days but not more than forty-five calendar days after the date on which the public trustee receives notice to schedule a new date of sale, subject to the requirements of section 38-38-109 (2).
(b) No later than ten calendar days after receiving notice to schedule a new date of sale, the public trustee shall mail a combined notice setting forth the rescheduled date of sale to each person who was entitled to receive the combined notice pursuant to section 38-38-103.
(c) No later than twenty calendar days after receiving notice to schedule a new date of sale, but no less than ten calendar days prior to the new date of sale, the public trustee shall publish the sale one time only.
(d) All fees and costs of the public trustee for actions performed under this section and the cost of recording the notice of rescission of sale shall be part of the foreclosure costs.
(e) After a sale has been rescinded and rescheduled pursuant to this subsection (4), the sale may be continued in accordance with section 38-38-109 (1) (a).
(f) If a written request to reschedule the sale is not received by the public trustee within one year of the recording of the notice of rescission, the foreclosure must be withdrawn according to section 38-38-109(3)(b).
(5) Nothing in this section shall prevent any person from seeking a rescission of a sale through a court of competent jurisdiction.
(6) Claims for damages by any person arising out of a rescission of a sale pursuant to this section shall be limited to the reasonable actual expenses of the person and shall not include any speculative or expectation damages, awards, or claims of any kind, whether legal or equitable.
(7) The indorsement of the public trustee pursuant to subsection (2) of this section shall be in substantially the following form:
The undersigned, as Public Trustee for the county of _______________, state of Colorado, by this indorsement, hereby confirms the reinstatement of this (evidence of debt) (deed of trust) (lien) in accordance with the requirements of section 38-38-113, Colorado Revised Statutes.
Date: ____________________
Signature: ____________________
Public Trustee ____________________
For the county of ______________,
State of Colorado.
38-38-114. Unclaimed refunds – disposition under “Unclaimed Property Act”.
Money payable as a refund for overpayment of a cure of default pursuant to section 38-38-104 or for overpayment of a redemption pursuant to part 3 of this article 38 that remains unclaimed by the owner one year after the money became payable is presumed abandoned and shall be reported and paid to the state treasurer in accordance with sections 38-13-401 and 38-13-603.
38-38-201. Foreclosure of installments without acceleration.
(1) Any mortgage or deed of trust securing an evidence of debt payable by installments giving the right to declare the whole indebtedness due and payable on default of the payment of any part thereof may, at the election of the holder of the evidence of debt, be foreclosed as to any one or more past due installments of principal or interest as if the mortgage or deed of trust separately secured each of the past due installments, and, in the event of such election, the officer conducting the foreclosure shall apply the following provisions:
(a) Attorney fees allowed for the attorney for the holder of the evidence of debt shall not exceed ten percent of the amount of principal, interest, and late charges included in the bid prepared in accordance with section 38-38-106.
(b) Fees and costs allowable under section 38-38-107 may be included in the bid.
(c) The amount for which the property is foreclosed shall include past due installments and all sums advanced for fees and costs by the holder of the evidence of debt pursuant to the terms of the mortgage or deed of trust securing the debt.
(d) Not more than one foreclosure proceeding may be commenced pursuant to this section in a period of twelve months.
(e) The notice of election and demand or complaint filed to commence the foreclosure shall contain the following statement: “This is a foreclosure on one or more installments, without acceleration, as authorized by section 38-38-201, Colorado Revised Statutes.”
(f) No deficiency bid shall be made by the holder of the evidence of debt or accepted by the officer conducting the foreclosure sale. Upon the sale and the expiration of all redemption periods, the maker of the secured indebtedness and all parties who may be personally liable thereon shall be released from personal liability on the indebtedness, unless the property is redeemed under section 38-38-302.
(g) The foreclosure shall not affect the continuance of the lien of the mortgage or deed of trust as to any remaining obligation secured by it but not covered by the foreclosure, whether the remaining obligation is due before or after the foreclosure, and the title acquired as a result of the foreclosure shall be subject to the lien securing the remaining obligation.
(2) Nothing in this section shall be construed to prevent the holder of an evidence of debt secured by any mortgage or deed of trust from exercising any option contained therein to declare the whole indebtedness due and payable, nor shall any of the provisions of this section be applicable to a foreclosure in which the whole indebtedness has been declared due and payable.
38-38-301. Holder of certificate of purchase paying charges – redemption.
The holder of a certificate of purchase may pay at any time after the sale and during the redemption period described in section 38-38-302 the fees and costs that the holder may pay pursuant to section 38-38-107 and may include any such amounts as part of the amount to be paid upon redemption.
38-38-302. Redemption by lienor – procedure.
(1) Requirements for redemption. A lienor or assignee of a lien is entitled to redeem if the following requirements are met to the satisfaction of the officer:
(a) The lienor’s lien is a deed of trust or other lien that is created or recognized by state or federal statute or by judgment of a court of competent jurisdiction;
(b) The lien is a junior lien as defined in section 38-38-100.3 (11);
(c) The lienor’s lien appears by instruments that were duly recorded in the office of the clerk and recorder of the county prior to the recording of the notice of election and demand or lis pendens and the lienor is one of the persons who would be entitled to cure pursuant to section 38-38-104 (1), regardless of whether such lienor filed a notice of intent to cure. If, prior to the date and time of the recording of the notice of election and demand or lis pendens, a lien was recorded in an incorrect county, the holder’s rights under this section shall be valid only if the lien is rerecorded in the correct county at least fifteen calendar days prior to the actual date of sale;
(d) The lienor has, within eight business days after the sale, filed a notice with the officer of the lienor’s intent to redeem; except that, if the person is deemed an alternate lienor pursuant to section 38-38-305.5 and the lien being foreclosed is a unit association lien, the alternate lienor has thirty days to file the notice with the officer of the alternate lienor’s intent to redeem. A lienor may file a notice of intent to redeem more than eight business days after sale if:
(I) No lienor junior to the lienor seeking to file the late intent to redeem has redeemed;
(II) The redemption period for the lienor seeking to file the late intent to redeem has not expired;
(III) A redemption period has been created by the timely filing of a notice of intent to redeem; and
(IV) The notice of intent to redeem is accompanied by a written authorization from the attorney for the holder of the certificate of purchase according to the records of the officer conducting the sale, or, if no attorney is shown, then the holder of the certificate of purchase, or, if a redemption has occurred, from the immediately prior redeeming lienor, or the attorney for the immediately prior redeeming lienor, authorizing the officer to accept such notice of intent to redeem;
(e) The lienor has attached to the notice of intent to redeem the original instrument and any assignment of the lien to the person attempting to redeem, or certified copies thereof, or in the case of a qualified holder, a copy of the instrument evidencing the lien and any assignment of the lien to the person attempting to redeem. If the original instrument is delivered to the officer, the officer shall return the instrument to the lienor and retain a copy.
(f) The lienor has attached to the notice of intent to redeem a signed and properly acknowledged statement of the lienor, or a signed statement by the lienor’s attorney, setting forth the amount required to redeem the lienor’s lien, including per diem interest, through the end of the nineteenth business day after the sale with the same specificity and itemization as required in section 38-38-106. If the amount required to redeem the lienor’s lien shown on the statement is zero, the lienor has no right to redeem unless section 38-38-305 applies.
(2) Request for redemption amount. Upon receipt by the officer of the notice of intent to redeem filed by a person entitled to redeem under this section, the officer shall within one business day transmit by mail, facsimile, or other electronic means to the attorney for the holder of the certificate of purchase, or if no attorney, then to the holder, a written request for a written or electronic statement of all sums necessary to redeem the sale. The statement shall include the amounts required to redeem in accordance with this section.
(3) Statement of redemption.
(a) Upon receipt of notice that an intent to redeem was filed, the holder of a certificate of purchase shall submit a signed and acknowledged statement, or the attorney for the holder shall submit a signed statement, to the officer, no later than thirteen business days following the sale, specifying interest calculated through the date of the sale, the amount of per diem interest accruing thereafter, the interest rate on which the amount is based, and all other sums necessary to redeem as of the date of the statement. Interest on the amount for which the property was sold must be charged at the default rate specified in the evidence of debt, deed of trust, or other lien being foreclosed or, if not so specified, at the regular rate specified in the evidence of debt, deed of trust, or other lien being foreclosed. If different interest rates are specified in the evidence of debt, deed of trust, or other lien being foreclosed, the interest rate specified in the evidence of debt prevails. If the evidence of debt does not specify an interest rate, including a default interest rate, the applicable interest rate as specified in the deed of trust or other lien being foreclosed applies. A holder of the certificate of purchase that is not a qualified holder, or the attorney for the holder, shall also submit to the officer receipts, invoices, evidence of electronic account-to-account transfers, or copies of loan servicing computer screens evidencing the fees and costs and verifying that the fees and costs were actually incurred as of the date of sale, along with the per diem amounts that accrue after the date of the statement. The holder or the attorney for the holder may amend the statement from time to time to reflect additional sums advanced as allowed by law, but the statement shall not be amended later than two business days prior to the commencement of the redemption period pursuant to subsection (4)(a) of this section or each subsequent redemption period pursuant to subsection (4)(b) of this section.
(b) If the holder of the certificate of purchase or the attorney for the holder fails to submit the initial written statement to the officer within thirteen business days after the sale, the officer may calculate the amount necessary to redeem by adding to the successful bid the accrued interest from the sale through the redemption date. The accrued interest shall be calculated by multiplying the amount of the bid by the regular rate of annual interest specified in the evidence of debt, deed of trust, or other lien being foreclosed, divided by three hundred sixty-five and then multiplied by the number of days from the date of sale through the redemption date. The officer shall transmit by mail, facsimile, or other electronic means to the party filing the notice of intent to redeem, promptly upon receipt, the statement filed by the holder, or if no such statement is filed, the officer’s estimate of the redemption figure, which shall be transmitted no later than the commencement of the redemption period pursuant to paragraph (a) of subsection (4) of this section or each subsequent redemption period pursuant to paragraph (b) of subsection (4) of this section.
(4) Redemption period.
(a)(I) Except as provided in subsection (4)(a)(II) of this section, no sooner than fifteen business days nor later than nineteen business days after a sale under this article 38, the junior lienor having the most senior recorded lien on the sold property or any portion of the sold property, according to the records, having first complied with the requirements of subsection (1) of this section, may redeem the property sold by paying to the officer, no later than 12 noon on the last day of the lienor’s redemption period, in the form specified in section 38-37-108, the amount for which the property was sold with interest from the date of sale, together with all sums allowed under section 38-38-301. Interest on the amount for which the property was sold is charged at the default rate specified in the evidence of debt, deed of trust, or other lien being foreclosed or, if not so specified, at the regular rate specified in the evidence of debt, deed of trust, or other lien being foreclosed. If different interest rates are specified in the evidence of debt, deed of trust, or other lien being foreclosed, the interest rate specified in the evidence of debt prevails. If the evidence of debt does not specify an interest rate, including a default interest rate, applicable interest rate as specified in the deed of trust or other lien being foreclosed applies.
(II) (a) If the lien being foreclosed is in a unit association lien, an alternate lienor’s redemption period commences upon the expiration of all redemption rights as set by the officer in accordance with subsection (4)(d) of this section and is no sooner than thirty-five days after the sale. This subsection (4)(a)(II) does not otherwise change the requirements of this section for an alternate lienor.
(b) No sooner than thirty-five days and no later than one hundred eighty days after a sale of a unit association lien under this article 38, the alternate lienor that filed the notice with the officer of the alternate lienor’s intent to redeem and that has the highest priority in the sold property may redeem the property by paying, in the form specified in section 38-37-108, to the officer, no later than 12 noon on the last day of the alternate lienor’s redemption period, the amount for which the property was sold with interest from the date of sale, together with all sums allowed under section 38-38-107 and, if applicable, the redemption amount paid by the immediately prior redeeming lienor, with interest at the rate specified in subsection (4)(a) of this section, plus the amount claimed in the statement delivered by the immediately prior redeeming lienor pursuant to subsection (6) of this section, including the per diem amounts through the date when the payment is made, or if no prior lienor has redeemed, the redemption amount determined pursuant subsection (4)(a)(I) of this section.
(c) If the highest priority alternate lienor has not redeemed the property, each subsequent alternate lienor that is entitled to redeem, in succession based on the priority of the alternate lienor, has an additional five business days to redeem the property. the priority of the alternate lienors is set forth in section 38-38-305.5 (1)(a). The alternate lienor must redeem by paying the redemption amount determined pursuant to subsection (4)(a)(II)(b) of this section within the five-day period, or, if no prior lienor has redeemed, the redemption amount determined pursuant to subsection (4)(a)(I) of this section, to the officer on or before 12 noon of the last day of the alternate lienor’s redemption period.
(b) (I) Each subsequent lienor entitled to redeem shall, in succession, have an additional period of five business days to redeem. The right to redeem shall be in priority of such liens according to the records. The redeeming lienor shall redeem by paying to the officer, on or before 12 noon of the last day of the lienor’s redemption period:
(A) The redemption amount paid by the prior redeeming lienor, with interest at the rate specified in paragraph (a) of this subsection (4), plus the amount claimed in the statement delivered by the immediately prior redeeming lienor pursuant to subsection (6) of this section, including the per diem amounts through the date on which the payment is made; or
(B) If no prior lienor has redeemed, the redemption amount determined pursuant to paragraph (a) of this subsection (4).
(II) If the redeeming lienor is the same person as the holder of the certificate of purchase or the prior redeeming lienor as evidenced by the instruments referred to in subsection (1) of this section, regardless of the number of consecutive liens held by the redeeming lienor, the redeeming lienor shall not pay to the officer the redemption amount indicated in the certificate of purchase or certificate of redemption held by such person, but shall only pay to the officer the unpaid fees and costs required by the redemption and provide the statement described in paragraph (f) of subsection (1) of this section.
(c) If the statement described in paragraph (f) of subsection (1) of this section so states, or upon other written authorization from the holder of the certificate of purchase or the then-current holder of the certificate of redemption or the attorney for either such holder, the officer may accept as a full redemption an amount less than the amount specified in paragraph (a) of subsection (3) of this section. Notwithstanding the first sentence of this paragraph (c), the amount bid at sale shall determine the amount and extent of any deficiency remaining on the debt represented by the evidence of debt that is the subject of the foreclosure as stated in the bid pursuant to section 38-38-106 (2). Any redemption under this section shall constitute a full redemption and shall be deemed to be payment of all sums to which the holder of the certificate of purchase is entitled.
(d) On the ninth business day after the date of sale, the officer shall set the dates of the redemption period of each lienor in accordance with this subsection (4). The redemption period of a lienor shall not be shortened or altered by the fact that a prior lienor redeemed before the expiration of his or her redemption period.
(5) Certificate of redemption. Upon receipt of the redemption payment pursuant to subsection (4) of this section, the officer shall execute and record a certificate of redemption pursuant to section 38-38-402. Upon the expiration of each redemption period under this section, the officer shall disburse all redemption proceeds to the persons entitled to receive them.
(6) Certificate of lienor. A redeeming lienor shall pay to the officer the amount required to redeem and shall deliver to the officer a signed and properly acknowledged statement by the lienor or a signed statement by the lienor’s attorney showing the amount owing on such lien, including per diem interest and fees and costs actually incurred that are permitted by subsection (7) of this section and for which the lienor has submitted to the officer receipts, invoices, evidence of electronic account-to-account transfers, or copies of loan servicing computer screens evidencing the fees and costs and verifying that the fees and costs were actually incurred as of the date of the statement of redemption with the per diem amounts that accrue thereafter. At any time before the expiration of a redeeming lienor’s redemption period, the redeeming lienor may submit a revised or corrected certificate, or the attorney for the lienor may submit a revised or corrected statement.
(7) Payment of fees and costs. A redeeming lienor may, during such lienor’s redemption period described in subsection (4) of this section, pay the fees and costs that the holder of the evidence of debt may pay pursuant to section 38-38-107.
(8) Misstatement of redemption amount. If an aggrieved person contests the amount set forth in the statement filed by a redeeming lienor pursuant to paragraph (f) of subsection (1) of this section or by a holder of a certificate of purchase pursuant to paragraph (a) of subsection (3) of this section and a court determines that the redeeming lienor or holder of the certificate of purchase has made a material misstatement on the statement with respect to the amount due and owing to the redeeming lienor or the holder of the certificate of purchase, the court shall, in addition to other relief, award to the aggrieved person the aggrieved person’s court costs and reasonable attorney fees and costs.
(9) No partial redemption. A lienor holding a lien on less than all of, or a partial interest in, the property sold at sale shall redeem the entire property. No partial redemption shall be permitted under this part 3. The priority of liens for purposes of this section shall be determined without consideration of the fact that the lien relates to only a portion of the property or to a partial interest therein.
(10) Federal redemption rights. Any redemption rights granted under federal law are separate and distinct from the redemption rights granted under this part 3. All liens that are junior to the deed of trust or other lien being foreclosed pursuant to this article shall be divested by the sale under this article, subject to the redemption rights provided in this part 3. The officer conducting a foreclosure under this article is not designated to receive redemptions under federal law.
(11) As used in this section, “unit association lien” means a lien in a unit in a common interest community that is held by an association, as defined in section 38-33.3-103(3).
38-38-304. Effect of redemption.
(1) and (2) (Deleted by amendment, L. 2006, p. 1471, § 22; L. 2007, p. 1849, § 27, effective January 1, 2008.)
(3) If redemption is made by a lienor, the certificate of redemption, duly recorded, operates as an assignment to the lienor of the estate and interest acquired by the purchaser at the sale, subject to the rights of omitted parties as defined in section 38-38-506 (1) and persons who may be entitled subsequently to redeem.
38-38-305. Lessee, easement holder, and installment land contract vendor considered as lienors – installment land contract vendee considered as an owner – repeal.
(1) For the purposes of this article, a lessee of, or the holder of an easement encumbering, property shall be considered as a lienor, but without any lien amount, and shall be subject to all requirements in this article with respect to lienors. If a subsequent lienor redeems from the redemption of a lessee or easement holder, such subsequent lienor in acquiring said property takes the same subject to such lease or easement.
(1.5) (a) The notice to the lessee or lessees who have unrecorded possessory interests in the property being foreclosed as provided for by this article and article 37 of this title by virtue of any foreclosure of a mortgage, trust deed, or other lien or by virtue of an execution and levy shall be mailed to the lessee or lessees of a single-family residence or a multiple-unit residential dwelling. Such notice shall be in writing and shall be sent by regular mail. Notice is complete upon mailing to the lessee at the address of the premises or by addressing such notice to “Occupant” followed by the address.
(b) Nothing in this section shall affect any rights under this article of a lessee whose residential lease is recorded.
(2) For the purposes of this article, an installment land contract vendor of property shall be considered as a lienor for the unpaid portion of the purchase price, interest, and other amounts provided under the installment land contract and shall be subject to all requirements in this article with respect to lienors; but such installment land contract vendor shall not be considered as an owner as to any portion of such property.
(3) For the purposes of this article, an installment land contract vendee of property shall be considered as an owner except as to any portion of such property that such vendee may thereafter have transferred, as evidenced by a recorded instrument, and such vendee shall be subject to all requirements in this article with respect to owners.
38-38-305.5. Persons considered as lienors – redemption of property.
(1) (a) For the purpose of this article 38, the following people are deemed alternate lienors without a lien amount:
(I) The unit owner that has an interest appearing by an instrument recorded in the office of the clerk and recorder of the county prior to the recording of the lis pendens is the first priority;
(II) A tenant of the unit, if the tenancy commenced prior to the recording of the lis pendens and if the lease is not recorded, is the second priority;
(III) A nonprofit entity that has a primary purpose to develop or preserve affordable housing is the third priority;
(IV) A community land trust is the fourth priority;
(V) A cooperative housing corporation formed pursuant to article 33.5 of this title 38 is the fifth priority; and
(VI) The state of Colorado or a political subdivision of the state of Colorado is the sixth priority.
(b) An alternate lienor’s ability to redeem the property is subject to:
(I) A lienor that holds evidence of debt secured by the property; or
(II) A person that is deemed a lienor under section 38-38-305.
(c) If an alternate lienor redeems after the redemption of a lessee or easement holder, the alternate lienor, in acquiring the property, takes the property subject to the lease or easement.
(2) This section does not affect the rights under this article 38 of a lessee whose residential lease is recorded.
(3) This section applies to the foreclosure of a lien in a unit in a common interest community by an association, as defined in section 38-33.3-103 (3).
38-38-306. Rights of other lienors to redeem.
(1) A judgment creditor whose judgment has been made a lien of record and who has complied with the other conditions of a lienor required by this article may redeem as a lienor.
(2) A mechanic’s lien claimant or any other person claiming the right to a statutory lien on real property shall have the right to redeem as a lienor despite the fact that the claim has not been reduced to judgment, if the lien or lien claim has been recorded as required or permitted by statute and the holder thereof has complied with the other conditions required of a lienor by this article. If another lienor redeems after such lien claimant, that portion of the redemption amount attributable to the claim of such lien claimant, as evidenced by such claimant’s recorded lien, shall be held in escrow by the officer until a final judgment has been entered in favor of such claimant confirming the claimant’s right to a lien and all periods for appeal have expired, whereupon there shall be paid to such claimant from the escrow the amount of the lien claim as established by the judgment, with any interest earned thereon, and the balance, if any, shall be refunded to the borrower, so long as the last redeeming lienor has otherwise been satisfied. If the claimant releases the lien or fails to establish a right to the lien, the entire escrow shall be paid to the borrower, so long as the last redeeming lienor has otherwise been satisfied. Lien claimants of equal priority, for the purposes of this subsection (2), may act in concert and be deemed to represent one claim in which they share pro rata. The right of the borrower to excess sale proceeds pursuant to a homestead exemption under section 38-41-201 is subordinate to the right of a subsequent deed of trust beneficiary for whose benefit the homestead exemption was waived.
(3) As used in this section, “borrower” has the same meaning as set forth in section 38-38-111(6).
38-38-401. Certificate of purchase – issuance.
(1) No later than five business days after the sale, the officer shall execute and record in each county where the property or a portion thereof is located a certificate of purchase containing:
(a) The names of the original grantors of the deed of trust being foreclosed;
(a.5) The description of the property;
(b) The sum paid for the property;
(c) The name and address of the purchaser;
(d) A statement that the purchaser or assignee of the certificate of purchase shall be entitled to a confirmation deed at the expiration of all redemption periods provided under part 3 of this article unless a redemption is made;
(e) The deficiency under the evidence of debt, if any, as a result of the successful bid at sale;
(f) The public trustee’s sale number or, in the case of a sale by the sheriff, the district court civil action number;
(g) The date of sale;
(h) An attached exhibit containing a copy of the executed order authorizing the sale that bears the public trustee sale number or civil docket number in the case of a judicial foreclosure; and
(i) An attached exhibit containing a copy of the mailing list and all amended mailing lists bearing the public trustee sale number or civil docket number in the case of a judicial foreclosure.
(2) The officer shall retain the recorded certificate of purchase in the officer’s records.
(3) The failure of the officer to comply with the provisions of this section shall not affect the validity of the sale or the vesting of title in the name of the holder of the certificate of purchase or certificate of redemption
38-38-401.5. Certificate – priority of lien.
The lien represented by a certificate of purchase shall have the same priority as the deed of trust or other lien foreclosed.
38-38-402. Certificate of redemption – issuance.
(1) No sooner than fifteen business days following a sale but no later than five business days following an officer’s receipt of redemption money paid under section 38-38-302, the officer shall execute and record in each county where the property or a portion thereof is located a certificate of redemption containing:
(a) The names of the original grantors of the deed of trust being foreclosed;
(a.5) The name and address of the person redeeming;
(b) The redemption amount paid;
(c) The date of sale;
(d) The description of the property redeemed; and
(e) The public trustee’s sale number or, in the case of a sale by the sheriff, the district court civil action number.
(2) The officer shall retain the recorded certificate of redemption in the officer’s records.
(3) The failure of the officer to comply with the provisions of this section shall not affect the validity of the sale or the rights of the grantee of the confirmation deed.
38-38-403. Certificates assignable.
(1) Every certificate of purchase or certificate of redemption that is issued to any person under this part 4 shall be assignable by indorsement thereon or by separate assignment, and the assignee shall be treated for all purposes as the original holder of the certificate of purchase or certificate of redemption. A separate assignment of a certificate of purchase or a certificate of redemption shall contain:
(a) The name and address of the assignee;
(b) The name and address of the assignor;
(c) A description of the property;
(d) The name of the foreclosing holder of the evidence of debt; and
(e) The number of the foreclosure sale held by the public trustee or the case number of the judicial foreclosure.
38-38-405. Certificate as prima facie evidence.
A certificate of purchase, certificate of redemption, confirmation deed, or a certified copy thereof shall be deemed to be prima facie evidence of all statements or recitals contained therein.
38-38-501. Title vests upon expiration of redemption periods – confirmation deed.
(1) Upon the expiration of all redemption periods allowed to all lienors entitled to redeem under part 3 of this article or, if there are no redemption periods, upon the close of the officer’s business day eight business days after the sale, title to the property sold shall vest in the holder of the certificate of purchase or in the holder of the last certificate of redemption in the case of redemption. Subject to the right to cure and the right to redeem provisions of section 38-38-506 and subject to the provisions of section 38-41-212 (2), such title shall be free and clear of all liens and encumbrances junior to the lien foreclosed. No earlier than ten business days nor later than fifteen business days after both the title vests and the officer has received all statutory fees and costs, the officer shall execute and record a confirmation deed pursuant to section 38-38-502 or 38-38-503 to the holder of the certificate of purchase or, in the case of redemption, to the holder of the last certificate of redemption confirming the transfer of title to the property; except that the officer shall execute and record a confirmation deed prior to the tenth business day after title vests, if the officer has received all statutory fees and costs and notice from the appropriate holder that the certificate will not be assigned. But under no circumstances shall the officer be required to issue a confirmation deed unless the office has received an order authorizing the sale that meets the requirements of section 38-38-105 (2) (a). Failure of the officer to execute and record such deed or to record the deed within the time specified shall not affect the validity of the deed or the vesting of title.
(2) Notwithstanding any provision of law to the contrary, an officer may not include an assignee as a grantee in a confirmation deed, unless:
(a) The officer has received a copy of the assignment executed in accordance with section 38-38-403 within ten business days after title vests; and
(b) The assignment was dated, signed, and notarized or recorded prior to the time title vests.
(3) As used in this section, “redemption periods” means the periods of time during which a person may redeem property, as described in section 38-38-302(4); except that the redemption period is thirty days if the property is a unit in a common interest community; the lien being foreclosed is held by an association, as defined in 38-33.3-103(3); and a lienor does not file a notice with the officer of the lienor’s intent to redeem.
38-38-502. Form of confirmation deed for public trustee’s sale.
The confirmation deed executed by the public trustee in a foreclosure sale may be in substantially the following form:
THIS DEED is made , 20 , between as the public trustee of the County of , Colorado, and , grantee, (the holder of the certificate of purchase) (the holder of the certificate of redemption issued to the lienor last redeeming), whose legal address is .
WHEREAS, did, by deed of trust dated , 20 , and recorded in the office of the clerk and recorder of the County of , Colorado, on , 20 , in Book , Page , (Film no. , Reception no. ) convey to the public trustee, in trust, the property hereinafter described to secure the payment of the indebtedness provided in said deed of trust; and
WHEREAS, a violation was made in certain of the terms and covenants of said deed of trust as shown by the notice of election and demand for sale filed with the public trustee; the said property was advertised for public sale at the place and in the manner provided by law and by said deed of trust; combined notice of sale and right to cure and redeem was given as required by law; said property was sold according to said combined notice; and a certificate of purchase thereof was made and recorded in the office of said county clerk and recorder; and
WHEREAS, all periods of redemption have expired.
NOW, THEREFORE, the public trustee, pursuant to the power and authority vested by law and by the said deed of trust, confirms the foreclosure sale and sells and conveys to grantee the following described property located in the County of , State of Colorado, to-wit:
(describe property)
also known by street and number as to have and to hold the same, with all appurtenances, forever.
38-38-503. Form of confirmation deed for sheriff’s sale.
The confirmation deed executed by the sheriff in case of a sale by virtue of an execution and levy or judgment and decree shall state the judgment under which the property described was sold and the execution or decree date and may be in substantially the following form:
THIS DEED is made , 20 , between as sheriff of the County of , Colorado, and , grantee, (the holder of the certificate of purchase) (the holder of the certificate of redemption issued to the lienor last redeeming), whose legal address is .
WHEREAS, did, in the court for and County of , Colorado, (recover a judgment against for the sum of dollars and costs of suit and upon which judgment an execution was issued) (obtain a judgment and decree against ) dated , 20 , directed to the sheriff of the County of , Colorado; and
WHEREAS, by virtue of said (execution) (judgment and decree), the sheriff levied upon the property hereinafter described and, after public notice had been given of the time and place of sale as required by law, said property was offered for sale and sold according to said notice, and a certificate of purchase was made and recorded in the office of the county clerk and recorder; and
WHEREAS, all periods of redemption have expired.
NOW, THEREFORE, I, , sheriff of the County of , Colorado, in consideration of the premises, confirm the sale and sell and convey to grantee the following described property, located in the County of , Colorado:
(describe property)
also known by street and number as .
TO HAVE AND TO HOLD the same, with all appurtenances thereunto, forever.
38-38-504. Deed evidence of compliance.
Any deed executed by an officer or other official under this article shall be prima facie evidence of compliance with all statutory requirements for the sale and execution of the deed and evidence of the truth of the recitals contained in the deed.
38-38-505. Effect of foreclosures as to certain classes of persons.
(1) All deeds of trust executed to a public trustee may be foreclosed by such public trustee in the manner provided by section 38-38-101, notwithstanding the fact that the indebtedness secured may constitute a claim against the estate of a deceased person, a mental incompetent, or an incapacitated person and notwithstanding the death, mental incompetency, or incapacity of one or more of the owners of the property covered by the deed of trust.
(2) Any such foreclosure shall be good against a mental incompetent or incapacitated person and against the heirs-at-law, legatees, devisees, creditors, conservators, guardians, personal representatives, executors, and administrators of any decedent or mental incompetent or incapacitated person and all persons claiming by, through, or under such decedent or mental incompetent or incapacitated person. The public trustee shall give notice of such foreclosure proceedings, as provided by law, to the grantor in the deed of trust foreclosed at the address stated therein, as though living and mentally competent, to all persons having interests then of record, and to the lessee or lessees of the premises as provided in section 38-38-305 (1.5). The public trustee shall not be required to give notice of such foreclosure proceedings to any heir-at-law, legatee, devisee, creditor, conservator, guardian, personal representative, executor, or administrator of any decedent or mental incompetent or incapacitated person or to any person claiming by, through, or under any decedent or mental incompetent or incapacitated person unless the claim or interest of such person then appears of record.
(3) The interest and claim in and to such real estate of all mental incompetents or incapacitated persons and of all persons claiming by, through, or under any mental incompetent, incapacitated person, or decedent, including minors and incapacitated persons, shall be terminated and concluded by such foreclosure unless they redeem from the foreclosure sale within the time prescribed by law.
38-38-506. Omitted parties – definitions.
(1) As used in this section, “omitted party” means any person who:
(a) Prior to the recording of the notice of election and demand or lis pendens, has either acquired a record interest in the property or has obtained a valid possessory interest and is in actual possession of the property, which interest is junior to the deed of trust or other lien being foreclosed and would otherwise be extinguished by the foreclosure; and
(b) Is not included as a party defendant in a judicial foreclosure action or, if included, is not served with process, or is not served with notice of levy or seizure pursuant to section 13-55-102, C.R.S., or is not notified pursuant to section 38-38-103 of a sale, or is not notified in connection with the legal proceedings contemplated by section 38-38-105.
(2) (a) The interest of an omitted party in the property that is the subject of a sale may be terminated if the omitted party, or anyone claiming by, through, or under an omitted party, in a civil action commenced at any time by any interested person as defined in paragraph (c) of this subsection (2), by an omitted party, or by anyone claiming by, through, or under an omitted party, is afforded rights of cure if the omitted party would have been entitled to cure pursuant to section 38-38-104, or is afforded redemption rights if the omitted party would have been entitled to redeem pursuant to section 38-38-302, upon such terms as the court may deem equitable under the circumstances, which terms shall not, however, be more favorable than the person’s statutory rights. The court shall give full consideration to whether the omitted party or anyone claiming by, through, or under an omitted party was given or had actual notice or knowledge of the foreclosure and was given an opportunity to exercise statutory rights to cure or redeem.
(b) For purposes of this section, the lien that is the subject of the sale shall not be extinguished by merger with the title to the property acquired pursuant to section 38-38-501 until the interest of any omitted party has been affirmed pursuant to subsection (3) of this section or has been terminated as provided in paragraph (a) of this subsection (2), or by operation of law. The omitted party, or anyone claiming by, through, or under an omitted party, cannot extinguish the lien that is subject to the sale by enforcement of the lien of the omitted party.
(c) As used in this section, “interested person” means the holder of the evidence of debt being foreclosed, a holder of a certificate of purchase or certificate of redemption issued pursuant to section 38-38-401 or 38-38-402, or an owner of the property pursuant to section 38-38-501 or a person claiming by, through, or under such holder or owner.
(d) An omitted party, or anyone claiming by, through, or under an omitted party, shall not have a remedy to cure or redeem, except as set forth in this subsection (2). An interested party shall not be able to extinguish an omitted party’s interest except as set forth in this subsection (2) or by written waiver or agreement signed by the omitted party or anyone claiming by, through, or under an omitted party.
(3) If an interested person files with the officer at any time a document affirming an omitted party’s interest in the property, subject to the terms, conditions, and provisions of the recorded instrument from which such omitted party’s interest is derived, or in the case of an omitted party that is a lessee, subject to the terms and conditions of the lease, whether written or oral, the interest of such omitted party in the property shall not be affected by the foreclosure, and such omitted party shall have no right to cure or redeem.
38-38-601. Receiver appointed upon application.
(1) When an action or proceeding has been commenced to foreclose a mortgage, trust deed, or other instrument securing an indebtedness, a receiver of the property affected shall be appointed upon application at any time prior to the sale, if it appears that the security is clearly inadequate or that the premises are in danger of being materially injured or reduced in value as security by removal, destruction, deterioration, accumulation of prior liens, or otherwise so as to render the security inadequate.
(2) If the facts would justify the appointment of a receiver under this section but one is not applied for and if the premises are abandoned by the owner thereof, the holder of the lien may take possession until the sale and shall be subject to the same duties and liabilities for the care of the premises and for the application of the rents and profits as would a receiver.
38-38-602. Appointment of receiver to prevent waste.
(1) During the period of redemption, the owner of the premises or the person in possession shall not commit waste, and the purchaser shall have such action or remedy for waste, including injunction, as he would have as owner of the premises. During such period, the owner of the premises shall keep the premises in repair, shall use reasonable diligence to continue to keep the premises yielding an adequate income, and shall pay current taxes before a penalty accrues and interest becomes due on any prior encumbrance, keep the premises insured for the protection of the holder of the certificate of purchase, and, in case of a leasehold, pay the rent and other sums due under the lease, and failure to do so shall constitute waste. In case of waste committed or danger of waste or an actual probability of the security being rendered inadequate, a receiver may be appointed to take possession and preserve the property at any time after the sale under such foreclosure. A receiver appointed before the sale shall continue after sale unless otherwise directed by the court.
(2) If the facts would justify the appointment of a receiver under this section but one is not applied for and if the premises are abandoned by the owner thereof, the purchaser may take possession and shall be subject to the same duties and liabilities for the care of the premises and for the application of the rents and profits as would a receiver.
(3) Nothing in this article shall restrict the power of the court in the appointment of a receiver pursuant to existing law or pursuant to agreement between the parties.
38-38-701. Application – use of term “foreclosure”.
(1) Except as otherwise provided for in subsection (2) of this section, the provisions of this article shall apply:
(1) Except as otherwise provided for in subsection (2) of this section, the provisions of this article shall apply:
(a) To proceedings for the foreclosure of deeds of trust through the public trustee commenced on or after July 1, 2007; and
(b) In the case of proceedings and actions for enforcement or foreclosure of any other types of liens upon real property and in the case of sales by virtue of execution and levy, where the particular proceeding or action under which the sale is performed is commenced on or after July 1, 2007.
(2) On and after October 1, 1990, in all proceedings for the foreclosure of deeds of trust and mortgages executed before July 1, 1965:
(a) The provisions of sections 118-9-2 and 118-9-3, Colorado Revised Statutes 1963, as said sections existed prior to July 1, 1965, shall apply in lieu of section 38-38-302 and section 38-38-303 (1) to (3) as it existed prior to January 1, 2008; and
(b) The provisions of section 118-9-18, Colorado Revised Statutes 1963, as in effect on July 1, 1965, and numbered as sections 38-38-103 and 38-38-104 on and after October 1, 1990, shall not apply.
(3) Wherever the term “foreclosure”, or variations thereof, or the concept of “foreclosure” is used in or referred to in article 37, 38, or 39 of this title, it shall be deemed to include sales of real estate upon execution, unless the context otherwise requires.
(4) If a deed of trust grants a power of sale to the public trustee but contains no provision on the manner in which the power of sale is to be exercised, the deed of trust shall not be void or voidable, and the holder of the evidence of debt may foreclose the deed of trust in accordance with the provisions of this article on the foreclosure of deeds of trust through the office of the public trustee or in the manner of a mortgage through the courts.
38-38-702. Limitation of officer’s liability.
(1) An officer shall not have responsibility or liability for determining:
(a) The amount or reasonableness of a bid at a sale under section 38-38-106, the amount required to cure under section 38-38-104, or the amount required to redeem under section 38-38-302;
(b) The accuracy of the legal description of property in a full or partial release of a deed of trust;
(c) The accuracy or completeness of a mailing list submitted to the officer; or
(d) The legal sufficiency of the description of the property contained in the notice of election and demand.
(2) Nothing in this article shall lessen or otherwise modify the immunities and protections extended by law to an officer or to a governmental entity with which an officer is associated.
(3) An officer shall not have responsibility of liability for unknown damage, debt, or liens when a third party seeks a judicial foreclosure and sale.
38-38-703. No waiver of or agreement to shorten right to cure.
A waiver of or agreement to shorten the time period to exercise the right to cure a default granted by the provisions of this article that is made before the date of the default as to which the waiver is granted under a deed of trust, mortgage, or other instrument evidencing a lien or an evidence of debt secured thereby shall be void as against public policy.
38-38-704. Providing information to homeowner and public – repeal.
(1) Repealed.
(2) (a) Notwithstanding any provision of the deed of trust or other lien being foreclosed or any provision of law to the contrary, an officer may, at his or her discretion, provide to an owner of the property or to any person liable on the secured indebtedness or other lien being foreclosed, or otherwise make available to the general public, any educational or other information or material concerning foreclosures under this article, including available community resources and foreclosure prevention information, that has been approved by the office of the attorney general, by an agency of the state of Colorado or the federal government, or by an attorney currently licensed to practice and in good standing in the state of Colorado and retained by a public trustee for such purpose. The officer may charge the fees and costs of providing such information or materials to the property owner or person liable on the debt as foreclosure fees and costs; except that the amount of such fees and costs charged shall not exceed twenty-five dollars.
(b) This subsection (2) shall take effect July 1, 2007.
38-38-705. Curative provisions.
(1) If the public trustee fails to comply with any of the notice deadlines set forth in this article, unless the foreclosure has already been withdrawn by the holder of the evidence of debt or the holder’s attorney, following written notice to the holder of the evidence of debt or the holder’s attorney, the public trustee may rerecord the notice of election and demand, and the public trustee shall thereafter comply with all such notice deadlines from the last recording date as set forth on the rerecorded notice of election and demand as though such foreclosure had been commenced on such date.
(2) In the event of an error contained in any certificate of purchase, certificate of redemption, public trustee’s deed, or other recorded document prepared by the office of the public trustee, the public trustee may correct such error by executing and recording a scrivener’s error affidavit as set forth in section 38-35-109 (5).