1	Colorado Public Trustees’ Association Foreclosure Statutes Effective January 1, 2008
2	Commencing a Foreclosure
3	DOCUMENTS REQUIRED One (1) Notice of Election and Demand (NED) signed by attorney or holder (notarized) Original Evidence of Debt (EOD) with all assignments and indorsements, or Corporate Surety Bond in one and one-half (1½) times face value, or Copy and Certification citing 38-38-100.3 (20) signed by attorney or holder (notarized)
4	"Original Deed of Trust (..." Original Deed of Trust (DOT), or Certified copy, or Copy and certification citing 38-38-100.3 (20) signed by attorney or holder (notarized) Initial mailing list - Supplemental mailing list no less than sixty (60) days prior to 1^st sale date Combined Notice Deposit up to $500, an ACH agreement or an account with the officer
5	NED REQUIREMENTS Names of Original Grantors & Grantees Name of Holder of Evidence of Debt Date & recording information of DOT Original & outstanding principal balance Property description Statement whether it’s all or a portion of the property Statement of what the violation is Attorney’s name, address & Bar Reg #
6	SETTING THE SALE DATE Public Trustee – after recording NED Non-Agricultural – 110 to 125 calendar days Agricultural – 215 to 230 calendar days Sheriff – after recording Lis Pendens Non-Agricultural – no less than 110 calendar days Agricultural – no less than 215 calendar days
7	DETERMINING AGRICULTURAL SALES If necessary, the Officer shall make determination ten (10) to twenty (20) calendar days after the recording of the NED Officer shall accept as evidence: Certified copy of recorded subdivision plat Written statement from city clerk Written statement from Assessor Statements must be dated no more than six (6) months before NED filed Determination of Officer is binding
8	ITEMS TO REMEMBER Most documents signed by the Holder of the EOD must be notarized. If assignments or indorsements are not submitted initially, a statement must be included with the certifications. Holders that are eligible to file copies and certifications are listed in the Definitions.
9	"The Affidavit of Outstanding Principal..." The Affidavit of Outstanding Principal and the Certificate of Current Owner and Address are no longer required. Statements used in determining agricultural status no longer need to be recorded. 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.
10	"Upon written notice from the..." Upon written notice from the Holder or their attorney, the indebtedness may be assigned or transferred during the foreclosure 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 The Public Trustee will re-record the NED and mail and re-publish the amended Combined Notice
11	PRE-SALE REQUIREMENTS Record NED within ten (10) business days Keep a copy of the NED and Combined Notice in the PT’s Records (not book) that are to be available during office hours Mail Combined Notice to persons on initial mailing list within twenty (20) calendar days of recording NED Sheriff deadline is 16 – 30 days after delivery of mailing list & decree or writ
12	"Mail Combined Notice to persons..." Mail Combined Notice to persons on supplemental or amended mailing list forty-five (45) to sixty (60) calendar days prior to first scheduled sale date Amended mailing list may be submitted no less than sixty-five (65) calendar days prior to actual sale date Officer shall send Combined Notice no less than forty-five (45) calendar days prior to actual sale date to persons on amended mailing list
13	"Publish Combined Notice forty-five (..." Publish Combined Notice forty-five (45) to sixty (60) calendar days prior to first scheduled sale date (omit the copy of the Statutes) Officer shall review publication for accuracy 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 ten (10) calendar days after the 1^st correct publication and no less than forty-five (45) calendar days prior to the actual sale date
14	COMBINED NOTICE REQUIREMENTS The information required for the NED Statement that Intent to Cure be filed at least fifteen (15) calendar days prior to sale Statement that Intent to Redeem be filed within eight (8) business days after sale The date and place of sale Name & address of each attorney Statement in bold type“… may not be a first lien” Copy of Statutes
15	CONTINUANCES If a sale is not held or continued properly, it is deemed to have been continued week to week No sale shall be continued more than twelve (12) months from the original sale date 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
16	Cures & Withdrawals
17	CURE OF DEFAULT Intent with evidence of right to cure must be filed fifteen (15) calendar days prior to date of sale by: Property owner, or if dead or disabled: heirs, personal representative, legal guardian, conservator, or co-owner Certain transferees of the property some holders of judgments or court orders Any surety, guarantor, or person liable under the EOD Junior lienors, holders of easements and some contract vendees
18	"Promptly request a cure statement..." Promptly request a cure statement from the Holder or their attorney by mail, fax, or electronically no less than twelve (12) calendar days before the sale Cure statement due dates: If filed thirty (30) calendar days or less before the sale If filed more than thirty (30) calendar days before the sale, within ten (10) business days after receipt of request For Sheriff sales, by noon seven (7) calendar days before sale
19	"Cure statement shall include" Cure statement shall include: The same detail as required for a bid The period for which it is effective At least ten (10) but not more than thirty (30) calendar days after date of statement or until last day to cure All sums due and owing under the DOT and EOD Interest shall be at the default rate All allowable fees & costs of the Holder Good faith estimates are authorized
20	"Penalties for late filing of..." Penalties for late filing of statement Public trustee: weekly continuance After continuance reaches statutory limit, the sale is deemed withdrawn Sheriff: foreclosure action dismissed Holder or their attorney shall file a motion to dismiss Cure payment due by noon the day before the sale Any waiver or agreement to shorten the cure period is against public policy
21	"Upon receipt of cure payment..." 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 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
22	WITHDRAWAL OF NED The fee for a standard withdrawal requested by the Holder or their attorney is $35.00 The fee for an administrative withdrawal initiated by the Public Trustee is $50.00 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 Outstanding balance shall accrue interest at the rate provided by law
23	ADMINISTRATIVE WITHDRAWAL At least forty-five (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 thirty (30) calendar days After the thirty (30) days, the public trustee may record a withdrawal If recorded while under Automatic Stay, withdrawal is void Public Trustee shall mail notice to all persons on mailing list
24	Sales
25	SALE DOCUMENTS REQUIRED Order Authorizing the Sale (OAS) Shall recite date hearing was completed or date scheduled, if no hearing was held Date must be sixteen (16) days prior to sale date Holder or their attorney must provide a copy of the OAS to the Public Trustee no later than noon, two (2) business days prior to the sale A sale held without an OAS is invalid
26	"Bid" Bid Must arrive no later than noon, two (2) business days prior to the sale Must be signed by Holder or their attorney Upon receipt, the Officer shall make the bid available to the general public If not submitted timely, the Officer shall continue the sale one (1) week Must be at least fair market value
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28	CONDUCTING THE SALE The Officer shall read, post, or provide the bid information 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 If payment is not timely received from the highest bidder, the next highest bidder who has timely paid will be the successful bidder
29	"Sale shall be conducted at..." Sale shall be conducted at the courthouse, or the building where the Clerk or Officer are housed Must be designated in Combined Notice Officer will read, post or provide the following information: Sale number or Court case number Original Grantor’s name Street address or legal description Name of the Holder Date of sale and first and last publications Amount of bid and person submitting bid
30	"After the sale" After the sale, the Public Trustee shall enter the following in their records: Name of the person executing the DOT Book & Page or Reception # of DOT Brief description of the property Date of sale Publisher of the Combined Notice Mailing list Purchaser name and address Amount for which property sold
31	"Within five (5) business..." Within five (5) business days of the sale, the Officer shall record the Certificate of Purchase (COP) containing: Property description Sum paid for the property Purchaser name and address Statement that property will be eligible for a deed after all redemption periods expire Any deficiency from the sale Sale number or Court case number Date of sale Copy of the OAS and all mailing lists
32	"The provision for a lost..." The provision for a lost COP was repealed because there is only one COP that will be recorded and retained by the Officer Failure of Officer to comply with 38-38-401 (COP) shall not affect the validity of the sale or the vesting of the title The lien represented by the COP has the same priority as the DOT COP is assignable by indorsement or separate assignment
33	"Separate assignment shall contain" Separate assignment shall contain: Name and address of assignee Name and address of assignor Property description Name of foreclosing Holder Sale number or Court case number A COP or a certified copy are prima facie evidence of all statements and recitals contained therein
34	EXCESS PROCEEDS Upon expiration of all redemption periods, any excess will be paid in order of recording priority up to the unpaid amount of the liens First to the Holder to the extent of any deficiency bid 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 Finally to the property owner as of the recording of the NED
35	"A Holder or Lienor who..." 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 Within ninety (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 five (5) years
36	Rescissions
37	RESCISSION OF SALE 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 eight (8) business days of the sale Notice of Rescission must include: Name of person to whom CP was issued Name of assignee, if any Reception # or Book & Page of recorded CP Legal description of the property
38	"Upon receipt of the Notice..." 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 The CP shall be cancelled and the DOT and EOD shall be reinstated by the PT The Public Trustee shall mail a copy of the Notice of Rescission to all parties on the mailing lists within ten (10) calendar days of receiving the documents.
39	"After recording the Notice of..." After recording the Notice of Rescission, the Holder or their attorney may request in writing that the Public Trustee reschedule the sale Rescheduled sale date shall be between thirty (30) and forty-five (45) calendar days after receipt of request for rescheduling Public Trustee shall mail a Combined Notice of the rescheduled sale within ten (10) calendar days of receiving request Public Trustee shall publish one (1) time only no later than twenty (20) calendar days after receiving request but not less that ten (10) calendar days prior to the new sale date
40	"All fees and costs of..." All fees and costs of rescheduling the sale shall be part of the foreclosure costs, including a $50.00 fee Rescheduled sale may be continued up to the statutory limit Rescission of sales may still be handled through the courts Claims for damages arising out of a rescission of sale shall be limited to reasonable actual expenses
41	REDEMPTIONS
42	REDEMPTION REQUIREMENTS The lien is created or recognized by state or federal statute or by a court judgment The lien is a junior lien as defined in 38-38-100.3 (11) The lien is duly recorded in Clerk’s records Notice of intent to redeem must be filed within eight (8) business days after the sale
43	"A notice of intent to..." A notice of intent to redeem may be filed late, if: No lienor junior to their lien has redeemed, Their redemption period has not expired, All redemption periods have not expired, and The intent is accompanied by written authorization from the attorney or CP holder authorizing the Officer to accept the late notice
44	"The original or a certified..." The original or a certified copy of the lien and any assignments must be attached to the notice A qualified Holder may file a copy If originals are filed, the Officer will make copies and return the originals 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
45	REDEMPTION STATEMENT Within one (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 The signed redemption statement must be submitted to the Officer within thirteen (13) business days after the sale If not timely filed, the Officer may calculate the redemption using only the bid or the redemption amount plus accrued interest
46	"After the sale" 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 The statement shall specify all sums needed to redeem including the amount of per diem interest and the interest rate The statement may be amended up until two (2) business days before the start of the next applicable redemption period
47	"The Officer shall transmit the..." 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 If there are different interest rates on the EOD and the DOT or other lien, the rate on the EOD shall prevail If no interest rate is shown on the EOD, the rate on the DOT or other lien shall apply
48	REDEMPTION PERIOD There is no longer an owner redemption period The most senior lien may redeem fifteen (15) to nineteen (19) business days after the sale but no later than noon of the final day Each subsequent redeemer is allowed an additional five (5) business days but must redeem by noon of the final day 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
49	"If the redeemer is the..." 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 The Officer may accept a “short” redemption with written authorization Does not alter any deficiency bid Constitutes a full redemption Officer shall set the redemption dates on the 9^th business day after the sale The redemption periods shall not change if someone redeems early
50	REDEMPTION Upon receipt of a redemption payment, the Officer shall execute and record a Certificate of Redemption Upon expiration of each redemption period, the Officer shall disburse the applicable redemption proceeds 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
51	"Evidence of the fees and..." Evidence of the fees and costs must be provided to the Officer The redeemer may file a corrected statement any time before the end of their redemption period A redeeming lienor is allowed to pay and recover through redemption the fees and costs described in 38-38-107 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
52	"There are no partial redemptions" There are no partial redemptions Even if the redeemer’s lien covers less than what was sold, they must redeem in full Federal redemptive rights are separate and distinct from Colorado rights The Officer is not designated to receive redemptions under Federal law 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
53	"A judgment creditor whose lien..." A judgment creditor whose lien is of record may redeem A mechanic’s lien claimant may redeem if the lien is recorded 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 If the lien is released or not properly established, the entire escrow is paid to the property owner as of the date of sale
54	"The right of the owner..." 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
55	REDEMPTION CERTIFICATE No sooner than fifteen (15) business days after the sale but not later than five (5) business days after a redemption payment, the Officer shall execute and record a Redemption Certificate containing: Redeemer’s name and address Redemption amount paid The date of the sale The property description The PT sale number or court case number
56	"The Officer shall retain the..." The Officer shall retain the recorded Redemption Certificate in their records 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 The Redemption Certificate is assignable by indorsement or by separate assignment
57	"A separate of assignment of..." A separate of assignment of a Certificate of Purchase or a Certificate of Redemption shall contain: Name and address of assignee Name and address of assignor Property description Name of foreclosing Holder The PT sale number or court case number A Certificate of Purchase, Certificate of Redemption, or Confirmation Deed or a certified copy shall be prima facie evidence of all statements therein
58	CONFIRMATION DEEDS
59	CONFIRMATION DEED The Officer may decline to issue the Confirmation Deed until all outstanding sums have been paid to the Officer At the close of business on the eighth 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
60	"No less than fifteen (..." No less than fifteen (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 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 Form of Confirmation Deed Reference to duplicate NED is removed Notice references are for Combined Notice
61	FEES & ACCOUNTING
62	NEW PUBLIC TRUSTEE FEES $35.00 for processing a withdrawal $50.00 for processing an administrative withdrawal $100.00 for recommencing a sale after a partial release has recorded on the DOT $100.00 for processing a rescission $50.00 for rescheduling a sale after a rescission The sum of all payments by the PT to a third party in connection with a sale, including electronic transmission fees
63	FEES AND COSTS
64	ACCOUNTING Notary fees are no longer named separately from other fees Expenses of clerk hire are now expenses for staff wages and any benefits provided pursuant to County Personnel Policy Funds due the Holder may be sent electronically to the Holder’s attorney An MOU is needed Electronic fees and costs are part of the sale
65	"Any unclaimed refund of an..." 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”
66	ACCOUNTS PT is authorized to establish and manage the following accounts: ACH Checking Escrow Custodial PT may use the following institutions Bank Savings and Loan Local Government Investment Pool
67	DEFINITIONS
68	DEFINITION CHANGES & ADDITIONS Definitions were consolidated into one section with some new additions 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
69	"Attorney for the Holder –..." Attorney for the Holder – an attorney licensed and in good standing in Colorado & retained by the Holder Certified Copy – a copy of a recorded document certified by the County Clerk Combined Notice – combined notice of sale and right to cure and redeem Confirmation Deed – Deed following a foreclosure in the prescribed form
70	"Cure Statement – the cure..." Cure Statement – the cure statement described in statute Deed of Trust – a security instrument containing a grant to the Public Trustee with a power of sale Evidence of Debt – a writing that evidences a promise to pay or a right to the payment of a monetary obligation
71	"Fees and Costs – all..." Fees and Costs – all fees, charges, expenses, and costs described in statute Holder of an Evidence of Debt – the person in possession of or entitled to enforce an evidence of debt Does not include entities like MERS Junior Lien – a DOT or other lien that is subordinate to the lien being foreclosed
72	"Junior Lienor – a person..." Junior Lienor – a person who is a beneficiary, holder, or grantee or a Junior Lien Lienor – the holder of the CP or the Certificate of Redemption Lis Pendens – a lis pendens recorded with the County Clerk that refers to a judicial foreclosure Mailing List – the initial, supplemental, & amended list
73	"Maintaining and Repairing – caring..." Maintaining and Repairing – caring for and preserving a property in its current condition or restoring it to a sound and working condition after damage Notice of Election and Demand – the NED Officer – Public Trustee or Sheriff Property – the portion of property being foreclosed or released
74	"Publish" 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 Unless otherwise specified by the Attorney for the Holder, the Officer shall select the newspaper
75	"Qualified Holder – a holder..." Qualified Holder – a holder of an EOD, CP, Cert of Redemption, or Confirmation Deed that is one of the listed entities Records – County Clerk’s records Sale – a foreclosure sale Secured Indebtedness – amount owed on EOD Statement of Redemption – signed statement of the Holder or Lienor or their attorneys
76	OTHER CHANGES
77	"All acts of a Deputy..." All acts of a Deputy Public Trustee shall have the same effect as though performed by the PT An Officer shall not have responsibility or liability for determining: Amount or reasonableness of a bid or the amount required to cure or redeem Accuracy of legal description in full or partial release of Deed of Trust Accuracy or completeness of mailing list Legal sufficiency of property description in NED
78	"An omitted Party is anyone..." 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 The interest must be junior to the DOT being foreclosed and would be extinguished by the sale
79	"If a DOT grants a..." 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 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
80	RELEASES
81	RELEASES OF DOT’s An indemnification agreement with a certified copy of a resolution by the board of directors is no longer acceptable A corporate surety bond must now be one and one-half (1½) times the original principal amount Definitions for qualified holders were moved to 38-38-100.3
82	Questions?