Colorado Public Trustees’ Association

Foreclosure Statutes
Effective January 1, 2008

Commencing a Foreclosure

DOCUMENTS REQUIRED {38-38-101 (1)}

  1. One (1) Notice of Election and Demand (NED) signed by attorney or holder (notarized)
  2. Original Evidence of Debt (EOD) with all assignments and indorsements, or
    1. Corporate Surety Bond in one and one-half (1½) times face value, or {38-38-101 (2)}
    2. Copy and Certification citing 38-38-100.3 (20) signed by attorney or holder (notarized) {38-38-101 (2) & (6)}
  3. Original Deed of Trust (DOT), or
    1. Certified copy, or
    2. Copy and certification citing 38-38-100.3 (20) signed by attorney or holder (notarized)
  4. Initial mailing list - Supplemental mailing list no less than 60 days prior to 1st sale date
  5. Combined Notice
  6. Deposit up to $500, an ACH agreement or an account with the officer {38-38-101 (10)}

NED REQUIREMENTS {38-38-101 (4)}

  1. Names of Original Grantors & Grantees
  2. Name of Holder of Evidence of Debt
  3. Date & recording information of DOT
  4. Original & outstanding principal balance
  5. Property description
  6. Statement whether it’s all or a portion of the property
  7. Statement of what the violation is
  8. Attorney’s name, address & Bar Reg #

SETTING THE SALE DATE {38-38-108}

  1. Public Trustee – after recording NED
    1. Non-Agricultural – 110 to 125 calendar days
    2. Agricultural – 215 to 230 calendar days
  2. Sheriff – after recording Lis Pendens
    1. Non-Agricultural – no less than 110 calendar days
    2. Agricultural – no less than 215 calendar days

DETERMINING AGRICULTURAL SALES {38-38-108}

  1. If necessary, the Officer shall make determination 10 to 20 calendar days after the recording of the NED
  2. Officer shall accept as evidence:
    1. Certified copy of recorded subdivision plat
    2. Written statement from city clerk
    3. Written statement from Assessor
    4. Statements must be dated no more than 6 months before NED filed
  3. Determination of Officer is binding

ITEMS TO REMEMBER

  1. Most documents signed by the Holder of the EOD must be notarized.
  2. If assignments or indorsements are not submitted initially, a statement must be included with the certifications.
  3. Holders that are eligible to file copies and certifications are listed in the Definitions.
  4. The Affidavit of Outstanding Principal and the Certificate of Current Owner and Address are no longer required.
  5. Statements used in determining agricultural status no longer need to be recorded.
  6. A Holder may file a foreclosure on a portion of multiple EOD’s as long as they are identified in the NED and the Combined Notice.
  7. Upon written notice from the Holder or their attorney, the indebtedness may be assigned or transferred during the foreclosure
  8. If a partial release is executed, the Holder or their attorney shall amend the NED and the Combined Notice and pay a $100.00 fee
    1. The Public Trustee will re-record the NED and mail and re-publish the amended Combined Notice

PRE-SALE REQUIREMENTS {38-38-102}

  1. Record NED within 10 business days
  2. Keep a copy of the NED and Combined Notice in the PT’s Records (not book) that are to be available during office hours
  3. Mail Combined Notice to persons on initial mailing list within 20 calendar days of recording NED {38-38-103 (1)}
    1. Sheriff deadline is 16 – 30 days after delivery of mailing list & decree or writ {38-38-103 (3)}
  4. Mail Combined Notice to persons on supplemental or amended mailing list 45 to 60 calendar days prior to first scheduled sale date {38-38-103 (1)}
    1. Amended mailing list may be submitted no less than 65 calendar days prior to actual sale date {38-38-103 (2)}

                                                              i.      Officer shall send Combined Notice no less than 45 calendar days prior to actual sale date to persons on amended mailing list

  1. Publish Combined Notice 45 to 60 calendar days prior to first scheduled sale date (omit the copy of the Statutes) {38-38-103 (5)}
    1. Officer shall review all publications for accuracy
    2. If the sale is continued due to republication, the corrected Combined Notice shall be mailed to persons on the amended or supplemental list no later than 10 calendar days after the 1st correct publication and no less than 45 calendar days prior to the actual sale date {38-38-109 (1) (b)}

COMBINED NOTICE REQUIREMENTS {38-38-103 (4)}

  1. The information required for the NED
  2. Statement that Intent to Cure be filed at least 15 calendar days prior to sale
  3. Statement that Intent to Redeem be filed within 8 business days after sale
  4. The date and place of sale
  5. Name & address of each attorney
  6. Statement in bold type“… may not be a first lien”
  7. Copy of Statutes

CONTINUANCES {38-38-109}

  1. If a sale is not held or continued properly, it is deemed to have been continued week to week
  2. No sale shall be continued more than 12 months from the original sale date
  3. If all publications are not finished when bankruptcy is filed, the Officer shall announce, post, or provide notice of the stay, but the sale will not be continued

Cures & Withdrawals

CURE OF DEFAULT {38-38-104}

  1. Intent with evidence of right to cure must be filed 15 calendar days prior to date of sale by:
    1. Property owner, or if dead or disabled: heirs, personal representative, legal guardian, conservator, or co-owner
    2. Certain transferees of the property some holders of judgments or court orders
    3. Any surety, guarantor, or person liable under the EOD
    4. Junior lienors, holders of easements and some contract vendees
  2. Request a cure statement from the Holder or their attorney by mail, fax, or electronically promptly but no less than 12 calendar days before the sale
  3. Cure statement due dates:  {38-38-109 (1) (c)}
    1. If Intent is filed 30 calendar days or less before the sale, by noon 7 calendar days before the sale
    2. If Intent is filed more than 30 calendar days before the sale, within 10 business days after receipt of request
    3. For Sheriff sales, by noon 7 calendar days before sale
  4. Cure statement shall include:  {38-38-104}
    1. The same detail as required for a bid
    2. The period for which it is effective
    3. At least 10 but not more than 30 calendar days after date of statement or until last day to cure
    4. All sums due and owing under the DOT and EOD
    5. Interest shall be at the default rate
    6. All allowable fees & costs of the Holder
    7. Good faith estimates are authorized
  5. Penalties for late filing of statement  {38-38-109 (1) (c)}
    1. Public trustee: weekly continuance

                                                               i.      After continuance reaches statutory limit, the sale is deemed withdrawn 

    1. Sheriff: foreclosure action dismissed

                                                              i.      Holder or their attorney shall file a motion to dismiss

  1. Cure payment due by noon the day before the sale  {38-38-104}
    1. Any waiver or agreement to shorten the cure period is against public policy
  2. Upon receipt of cure payment and a withdrawal or dismissal from the Holder or their attorney, deliver the cure amount, DOT, and EOD to attorney for Holder
  3. Grantor or any person liable on the debt is deemed to have given consent for disclosure of pertinent information to the Officer and all other persons with the right to cure

WITHDRAWAL OF NED  {38-38-109}

  1. The fee for a standard withdrawal requested by the Holder or their attorney is $35.00
    {38-37-104}
  2. The fee for an administrative withdrawal initiated by the Public Trustee is $50.00 {38-37-104}
    1. Until outstanding fees and costs are paid, the Public Trustee can retain sale documents and refuse to perform any other services for that Holder or attorney on that sale {38-38-109}
    2. Outstanding balance shall accrue interest at the rate provided by law {38-38-109}

ADMINISTRATIVE WITHDRAWAL  {38-38-109}

  1. At least 45 days after a sale can no longer be held, the public trustee may notify the attorney that a withdrawal may be recorded unless a response is received within 30 calendar days
  2. After the 30 days, the public trustee may record a withdrawal
    1. If recorded while under Automatic Stay, withdrawal is void
    2. Public Trustee shall mail notice to all persons on mailing list

Sales

SALE DOCUMENTS REQUIRED

  1. Order Authorizing the Sale (OAS)  {38-38-105}
    1. Shall recite date hearing was completed or date scheduled, if no hearing was held
    2. Date must be 16 days prior to sale date
    3. Holder or their attorney must provide a copy of the OAS to the Public Trustee no later than noon, 2 business days prior to the sale
    4. A sale held without an OAS is invalid
  2. Bid  {38-38-106}
    1. Must arrive no later than noon, 2 business days prior to the sale
    2. Must be signed by Holder or their attorney
    3. Upon receipt, the Officer shall make the bid available to the general public
    4. If not submitted timely, the Officer shall continue the sale 1 week
    5. Must be at least fair market value
    6. Bid may be amended in writing or electronically by noon the day before the sale or orally at the sale if person making the amendment is physically present at the sale

                                                              i.      The person making the oral modification must modify and
re-execute the bid at the sale

CONDUCTING THE SALE

  1. The Officer shall read, post, or provide the bid information  {38-38-110 (2)}
  2. Payment of bid amount must be received by the Officer no later than the time of the sale, unless a different time is specified by the Officer in writing {38-38-106 (7)}
  3. If payment is not timely received from the highest bidder, the next highest bidder who has timely paid will be the successful bidder  {38-38-106 (7)}
  4. Sale shall be conducted at the courthouse, or the building where the Clerk or Officer are housed  {38-38-110}
    1. Must be designated in Combined Notice
  5. Officer will read, post or provide the following information:  {38-38-110}
    1. Sale number or Court case number
    2. Original Grantor’s name
    3. Street address or legal description
    4. Name of the Holder
    5. Date of sale and first and last publications
    6. Amount of bid and person submitting bid
  6. After the sale, the Public Trustee shall enter the following in their records:  {38-38-110}
    1. Name of the person executing the DOT
    2. Book & Page or Reception # of DOT
    3. Brief description of the property
    4. Date of sale
    5. Publisher of the Combined Notice
    6. Mailing list
    7. Purchaser name and address
    8. Amount for which property sold
  7. Within 5 business days of the sale, the Officer shall record the Certificate of Purchase (COP) containing:  {38-38-401}
    1. Property description
    2. Sum paid for the property
    3. Purchaser name and address
    4. Statement that property will be eligible for a deed after all redemption periods expire
    5. Any deficiency from the sale
    6. Sale number or Court case number
    7. Date of sale
    8. Copy of the OAS and all mailing lists
  8. The provision for a lost COP was repealed because there is only one COP that will be recorded and retained by the Officer
  9. Failure of Officer to comply with 38-38-401 (COP) shall not affect the validity of the sale or the vesting of the title
  10. The lien represented by the COP has the same priority as the DOT {38-38-401.5}
  11. COP is assignable by indorsement or separate assignment  {38-38-403}
  12. Separate assignment shall contain:
    1. Name and address of assignee
    2. Name and address of assignor
    3. Property description
    4. Name of foreclosing Holder
    5. Sale number or Court case number
  13. A COP or a certified copy are prima facie evidence of all statements and recitals contained therein  {38-38-405}

EXCESS PROCEEDS  {38-38-111}

  1. Upon expiration of all redemption periods, any excess will be paid in order of recording priority up to the unpaid amount of the liens
    1. First to the Holder to the extent of any deficiency bid
    2. Next to junior lienors whose lien was of record when the NED was recorded, who filed a Notice of Intent to Redeem, and whose lien has not yet been redeemed
    3. Finally to the property owner as of the recording of the NED
  2. A Holder or Lienor who accepts a “short” redemption prior to the end of all applicable redemption periods shall not be entitled to any excess proceeds
  3. Within 90 calendar days of the expiration of all redemption periods, unclaimed excess proceeds are paid to the County Treasurer to be held in escrow for 5 years

Rescissions

RESCISSION OF SALE  {38-38-113}

  1. If the Holder is the successful bidder, they, their attorney, or assignee may rescind the sale without a court order by filing a signed Notice of Rescission with the Public Trustee within 8 business days of the sale
  2. Notice of Rescission must include:
    1. Name of person to whom CP was issued
    2. Name of assignee, if any
    3. Reception # or Book & Page of recorded CP
    4. Legal description of the property     
  3. Upon receipt of the Notice of Rescission, the original CP and any assignments, the $100.00 rescission fee, stamped and addressed envelopes, and the costs of recording, the PT shall record the Notice of Rescission
  4. The CP shall be cancelled and the DOT and EOD shall be reinstated by the PT
  5. The Public Trustee shall mail a copy of the Notice of Rescission to all parties on the mailing lists within 10 calendar days of receiving the documents.
  6. After recording the Notice of Rescission, the Holder or their attorney may request in writing that the Public Trustee reschedule the sale
    1. Rescheduled sale date shall be between 30 and 45 calendar days after receipt of request for rescheduling
    2. Public Trustee shall mail a Combined Notice of the rescheduled sale within 10 calendar days of receiving request
    3. Public Trustee shall publish 1 time only no later than 20 calendar days after receiving request but not less that 10 calendar days prior to the new sale date
  7. All fees and costs of rescheduling the sale shall be part of the foreclosure costs, including a $50.00 fee
  8. Rescheduled sale may be continued up to the statutory limit
  9. Rescission of sales may still be handled through the courts
  10. Claims for damages arising out of a rescission of sale shall be limited to reasonable actual expenses

REDEMPTIONS

REDEMPTION REQUIREMENTS  {38-38-302}

  1. The lien is created or recognized by state or federal statute or by a court judgment
  2. The lien is a junior lien as defined in 38-38-100.3 (11)
  3. The lien is duly recorded in Clerk’s records
  4. Notice of intent to redeem must be filed within 8 business days after the sale
  5. A notice of intent to redeem may be filed late, if:
    1. No lienor junior to their lien has redeemed,
    2. Their redemption period has not expired,
    3. All redemption periods have not expired, and
    4. The intent is accompanied by written authorization from the attorney or CP holder authorizing the Officer to accept the late notice
  6. The original or a certified copy of the lien and any assignments must be attached to the notice
    1. A qualified Holder may file a copy
    2. If originals are filed, the Officer will make copies and return the originals
  7. A statement must be attached to the notice showing the amount due on their lien signed by the Holder (notarized) or their attorney, including per diem interest through the end of the lienor’s redemption period

REDEMPTION STATEMENT

  1. Within 1 business day of receipt of the notice of intent to redeem, the Officer shall request a statement from the holder of the CP or their attorney
  2. The signed redemption statement must be submitted to the Officer within 13 business days after the sale
    1. If not timely filed, the Officer may calculate the redemption using only the bid or the redemption amount plus accrued interest
  3. After the sale, the holder of the CP is allowed to pay and recover through redemption the fees and costs described in 38-38-107  {38-38-301}
  4. The statement shall specify all sums needed to redeem including the amount of per diem interest and the interest rate
  5. The statement may be amended up until 2 business days before the start of the next applicable redemption period
  6. The Officer shall transmit the statement to the party who filed the notice of intent to redeem promptly upon receipt but no later than the start of their redemption period
  7. If there are different interest rates on the EOD and the DOT or other lien, the rate on the EOD shall prevail
  8. If no interest rate is shown on the EOD, the rate on the DOT or other lien shall apply

REDEMPTION PERIOD

  1. There is no longer an owner redemption period
  2. The most senior lien may redeem 15 to 19 business days after the sale but no later than noon of the final day
  3. Each subsequent redeemer is allowed an additional 5 business days but must redeem by noon of the final day
  4. Redemption shall include the amount paid by the purchaser or last redeemer, interest, the amount due on the prior redeemer’s lien or amounts paid by the purchaser and the per diem amount
  5. If the redeemer is the same person as the prior redeemer or CP holder, they only need to pay the Officer’s fees and costs in order to redeem
  6. The Officer may accept a “short” redemption with written authorization
    1. Does not alter any deficiency bid
    2. Constitutes a full redemption
  7. Officer shall set the redemption dates on the 9th business day after the sale
  8. The redemption periods shall not change if someone redeems early

REDEMPTION

  1. Upon receipt of a redemption payment, the Officer shall execute and record a Certificate of Redemption
  2. Upon expiration of each redemption period, the Officer shall disburse the applicable redemption proceeds
  3. Along with the redemption payment, the lienor or their attorney shall file a statement of the amount due on their lien, per diem interest, and allowable fees and costs
  4. Evidence of the fees and costs must be provided to the Officer
  5. The redeemer may file a corrected statement any time before the end of their redemption period
  6. A redeeming lienor is allowed to pay and recover through redemption the fees and costs described in 38-38-107
  7. If a court rules there is a mistake in the statement, the court shall award court costs and reasonable attorney fees and costs, in addition to any other relief
  8. There are no partial redemptions
    1. Even if the redeemer’s lien covers less than what was sold, they must redeem in full
  9. Federal redemptive rights are separate and distinct from Colorado rights
    1. The Officer is not designated to receive redemptions under Federal law
  10. The redemption certificate acts as an assignment from the purchaser subject to rights of omitted parties and persons who may subsequently be entitled to redeem  {38-38-304}
  11. A judgment creditor whose lien is of record may redeem  {38-38-306}
  12. A mechanic’s lien claimant may redeem if the lien is recorded  {38-38-306}
    1. If a redemption occurs thereafter, the amount of the mechanic’s lien will be placed in escrow until final judgment has been entered and then it is paid to the claimant to the extent of the lien and then to the property owner as of the date of sale
    2. If the lien is released or not properly established, the entire escrow is paid
      to the property owner as of the date of sale
  13. The right of the owner to excess sale proceeds pursuant to a homestead exemption is subordinate to the right of a subsequent deed of trust beneficiary for whose benefit the owner waived the homestead exemption {38-38-306}

REDEMPTION CERTIFICATE  {38-38-402}

  1. No sooner than 15 business days after the sale but not later than 5 business days after a redemption payment, the Officer shall execute and record a Redemption Certificate containing:
    1. Redeemer’s name and address
    2. Redemption amount paid
    3. The date of the sale
    4. The property description
    5. The PT sale number or court case number
  2. The Officer shall retain the recorded Redemption Certificate in their records
  3. Failure of the Officer to comply with the statutory provisions shall not affect the validity of the sale or the rights of the grantee of the confirmation deed
  4. The Redemption Certificate is assignable by indorsement or by separate assignment {38-38-403}
  5. A separate of assignment of a Certificate of Purchase or a Certificate of Redemption shall contain:  {38-38-403}
    1. Name and address of assignee
    2. Name and address of assignor
    3. Property description
    4. Name of foreclosing Holder
    5. The PT sale number or court case number
  6. A Certificate of Purchase, Certificate of Redemption, or Confirmation Deed or a certified copy shall be prima facie evidence of all statements therein  {38-38-405}

CONFIRMATION DEEDS

CONFIRMATION DEED  {38-38-501}

  1. The Officer may decline to issue the Confirmation Deed until all outstanding sums have been paid to the Officer  {38-38-107}
  2. At the close of business on the 8th business day after the sale, or upon expiration of all redemption periods, title shall vest in the holder of the COP or the last COR
  3. No less than 15 business days after the sale or, if later, the end of all redemption periods and upon receipt of all fees and costs, the Officer shall execute and record a Confirmation Deed
  4. Failure of the Officer to execute and record the Deed within the time period specified shall not affect the validity of the deed or the vesting of title
  5. Form of Confirmation Deed  {38-38-502 & 503}
    1. Reference to duplicate NED is removed
    2. Notice references are for Combined Notice

FEES & ACCOUNTING

NEW PUBLIC TRUSTEE FEES  {38-37-104 (1)}

  1. $35.00 for processing a withdrawal
  2. $50.00 for processing an administrative withdrawal
  3. $100.00 for recommencing a sale after a partial release has recorded on the DOT
  4. $100.00 for processing a rescission
  5. $50.00 for rescheduling a sale after a rescission
  6. The sum of all payments by the PT to a third party in connection with a sale, including electronic transmission fees

FEES AND COSTS

  1. All fees and costs shall be chargeable under the foreclosure and payable by the Holder 
    {38-38-107}
    1. The Officer may decline to issue the Confirmation Deed until paid
  2. Redemption fees and costs {38-38-301 & 302}
    1. Must have been paid or incurred 
    2. Are allowable if paid or incurred at the time of filing the statement

ACCOUNTING 

  1. Notary fees are no longer named separately from other fees
  2. Expenses of clerk hire are now expenses for staff wages and any benefits provided pursuant to County Personnel Policy  {38-37-104 (3)}
  3. Funds due the Holder may be sent electronically to the Holder’s attorney
    {38-37-113}
    1. An MOU is needed
    2. Electronic fees and costs are part of the sale
  4. Any unclaimed refund of an overpayment of a cure or redemption after one (1) year shall be reported and paid to the State Treasurer pursuant to the “Unclaimed Property Act”
         {38-38-114}

ACCOUNTS  {38-37-113}

  1. PT is authorized to establish and manage the following accounts: 
    1. ACH
    2. Checking
    3. Escrow
    4. Custodial
  2. PT may use the following institutions
    1. Bank
    2. Savings and Loan
    3. Local Government Investment Pool

DEFINITIONS

DEFINITION CHANGES & ADDITIONS  {38-38-100.5}

Definitions were consolidated into one section with some new additions

  1. Agricultural Property – none of which at the time of recording of the DOT or NED is platted as a subdivision, is located in an incorporated town, city, or city and county, or is valued and assessed as other than agricultural property by the Assessor
  2. Attorney for the Holder – an attorney licensed and in good standing in Colorado & retained by the Holder
  3. Certified Copy – a copy of a recorded document certified by the County Clerk
  4. Combined Notice – combined notice of sale and right to cure and redeem
  5. Confirmation Deed – Deed following a foreclosure in the prescribed form
  6. Cure Statement – the cure statement described in statute
  7. Deed of Trust – a security instrument containing a grant to the Public Trustee with a power of sale
  8. Evidence of Debt – a writing that evidences a promise to pay or a right to the payment of a monetary obligation
  9. Fees and Costs – all fees, charges, expenses, and costs described in statute
  10. Holder of an Evidence of Debt – the person in possession of or entitled to enforce an evidence of debt
    1. Does not include entities like MERS
  11. Junior Lien – a DOT or other lien that is subordinate to the lien being foreclosed
  12. Junior Lienor – a person who is a beneficiary, holder, or grantee or a Junior Lien
  13. Lienor – the holder of the CP or the Certificate of Redemption
  14. Lis Pendens – a lis pendens recorded with the County Clerk that refers to a judicial foreclosure
  15. Mailing List – the initial, supplemental, & amended list
  16. Maintaining and Repairing – caring for and preserving a property in its current condition or restoring it to a sound and working condition after damage
  17. Notice of Election and Demand – the NED
  18. Officer – Public Trustee or Sheriff
  19. Property – the portion of property being foreclosed or released
  20. Publish, Publication, Republish, or Republication – placement of an ad containing the Combined Notice in a newspaper of general circulation by or on behalf of the Officer
    1. Unless otherwise specified by the Attorney for the Holder, the Officer shall select the newspaper
  21. Qualified Holder – a holder of an EOD, CP, Cert of Redemption, or Confirmation Deed that is one of the listed entities
  22. Records – County Clerk’s records
  23. Sale – a foreclosure sale
  24. Secured Indebtedness – amount owed on EOD
  25. Statement of Redemption – signed statement of the Holder or Lienor or their attorneys

OTHER CHANGES

  1. All acts of a Deputy Public Trustee shall have the same effect as though performed by the PT  {38-37-103}
  2. An Officer shall not have responsibility or liability for determining:  {38-38-702}
    1. Amount or reasonableness of a bid or the amount required to cure or redeem
    2. Accuracy of legal description in full or partial release of Deed of Trust
    3. Accuracy or completeness of mailing list
    4. Legal sufficiency of property description in NED
  3. An omitted Party is anyone who, prior to the recording of the NED, acquired a record interest in the property or has a valid possessory interest and is in possession of the property, and was not served or notified of the foreclosure  {38-38-506}
    1. The interest must be junior to the DOT being foreclosed and would be extinguished by the sale
  4. If a DOT grants a power of sale but has no provision for how it is to be exercised, the DOT is not void or voidable, and the Holder may foreclose as provided in statute  {38-38-701}
  5. Other than priority liens, State of Colorado tax liens are treated like any other lien and the State has the same redemptive rights as any other junior lienor  {39-20-103}
  6. If the Public Trustee misses any notice deadlines and the sale has not been withdrawn, upon written notice to the Holder or their attorney the Public Trustee may re-record the NED and basically restart the sale  {38-38-705}
  7. A Public Trustee may correct an error in a COP, a COR, a PT Deed, or other recorded document prepared by the PT’s office by executing and recording a Scrivener’s Error Affidavit  {38-38-705}

RELEASES

RELEASES OF DOT’s  {38-39-102}

  1. An indemnification agreement with a certified copy of a resolution by the board of directors is no longer acceptable
  2. A corporate surety bond must now be 1½ times the original principal amount
  3. Definitions for qualified holders were moved to 38-38-100.3