SEMINAR
FORT COLLINS
MARRIOTT
OCTOBER 16, 2008
President Sandy Berry called the meeting to order at 9:00 a.m.
She thanked GTS for the breakfast.
Sandy
gave the invocation and Jim Covington led us in the pledge of allegiance.
Patty Bartlett took the roll call and then presented for approval minutes
from the June 26, 2008 meeting.
Tina Whitmer moved and Jamie Crockett seconded approval of the minutes with the
following corrections: In Forms
paragraph change committed to committee; change continuning to Continuing
Education in the paragraph title; in Manual paragraph change or to our; in
Legislative change 1095 to 1195; and in New Business paragraph change an to a.
Motion passed.
Michelle Miller presented the Treasurer’s Report – the report shows a
beginning balance of $68,031.86, income of $9,032.48, expenses of $7011.24 for a
current balance of $70,053.10. The
report was filed for audit.
Michelle Miller reported that the Continuing Education Form was available
and should be completed and turned in prior to leaving the meeting and that the
Public Trustee’s Deputies and staff will receive a Certificate of Participation
in the mail.
Sandy asked for any other
items. The legislative report was
given by Peg Ackerman and Carol Snyder.
Peg asked Carol to discuss the details of the cleanup bill.
Carol noted that Peg has delivered the initial information to the
drafting office and that the bill will be carried by Representative Cory Gardner
and Senator Jennifer Vega. Carol
referred to a summary and matrix that Bob Sagel has done.
The draft of the bill will be reviewed by the legislative committee.
We are attempting not to do a huge rewrite but only address glitches or
what is not working real well. The
following topics are being addressed:
Commencing a foreclosure – a foreclosure does not have to be filed by an
attorney but could also be filed by a private lender.
Description – clarify that this means a legal description.
Deposit - increase up to $650.
Current Owner – statement by holder who the current owner is.
Transfer or Assignment of Debt - while in foreclosure a transfer or
assignment would require the original documents be filed with the officer if the
transfer is to a nonqualified holder or if it is to a qualified holder, then we
would need to get a new certification.
Supplemental mailing list – one of the bigger changes that is proposed is
that an initial mailing list would be required to be filed and an amended
mailing list, if necessary, could be filed – no supplemental.
This would eliminate the strict deadline for receipt of a supplemental
mailing list and if it is missed that we must withdraw the foreclosure.
Combined Notice – the attorney does not have to provide a Combined Notice
if we have foreclosure systems that provide that document to us.
Also, the Combined Notice does not need to show all attorneys
representing them if it is a large firm.
Mailing List – the Public Trustee does not have to be included on the
mailing list but may still include at discretion of Public Trustee.
Amended Mailing List – an amended mailing list would be required to be
filed 65 days before actual sale date therefore a continuance of the sale would
satisfy the filing requirement if necessary. Sale Date – the new sale
date must be shown on a new Amended Combined Notice.
Combined Notice - 38-38-302 lienor redemption rights added to required
statutes attached to mailing.
Publication - publish only the notice of sale and exclude rights portion and
that we are required to review the publication not all publications.
Cures – make it clear that if an intent to cure is filed and if they
don’t cure within time stated, it is the duty of the party filing the intent to
ask for updated figures. Ownership
changes - new owner would have right to cure.
Bids – require interest rate on note and street address on the bid.
Public Trustee may establish written sale policies.
Bids received did not comply with the 2008 bid format set forth in
statute 38-38-106 old and new bid format.
New bid has categories and subtotals. We
propose to rearrange items and subtotals so someone can see what is due under
the loan, attorney fees and costs, other kinds of advances and then what is due
Public Trustee. Remove request for
Certificate of Purchase and Confirmation Deed from attorney on bid format.
Attorney needs to request Confirmation Deed and pay for it.
Sale dates – have to wait under current law 10
days to make determination whether it is agriculture property or not if it is
not clear from the legal description.
We should be able to make this determination sooner if we know.
Continuances – cure statement late filing moved from 38-38-109 to
38-38-104 to be in the right part of statutes.
There will be a reference in 109 only.
Eliminate 30 day deadlines then continue one week.
If bankruptcy is filed and publications have not been started or
completed, then we do not continue the sale.
Administrative withdrawals – silent when notice is sent and don’t get
response. Holder of Evidence of
Debt or attorney can ask for 90 day delay if they think they can proceed.
Excess proceeds – it is not clear in law but common practice if you have
total debt due of $200,000, bid for $125,000 and deficiency of $75,000 and you
get an overbidder that pays $130,000, the extra $5000 from overbid should go to
reduce deficiency but this is not clear.
Redemptions – allow last redeemer to accept or get permission for late
intent to redeem from Certificate of Purchase holder. A late intent can be
granted but not to the last redeemer.
Lien amount is zero on redemptions filed but this would be disallowed.
Liens filed in wrong county but must qualify and have recorded in correct
county at least 15 days ahead of sale.
Apply also to right to cure.
The right to redeem is required to the satisfaction of Public Trustee.
On the Certificate of Purchase and Certificate of Redemption, add names
of original grantors. Releases
38-39-108 clean up title company section because it is not clear on the form
that title companies can do an affidavit.
Suggest that we put the language on the form itself so they do not have
to provide separate document.
Require the Deed of Trust or a copy for release request.
Carol feels that it would be difficult to work under three
sets of law so do not want to make major changes.
Bill Wallace is concerned that 38-38-302 3(b) rewards for late filing of
redemption because you get interest on bid amount and not on their principal
only. Carol said that they don’t
get interest at default rate but at regular rate in Note so this is their
penalty but Bill wants them to get interest on principal only.
Larry Castle said that the extra is covered under the Deed of Trust as an
advance and the lender is entitled to interest on those advances and residential
mortgages don’t have a default rate.
Tom Mowle likes penalizing if they don’t do what they are required but
this would make a lot more work for our offices.
Bob Slade feels that the penalty for the lender is that they cannot add
additional advances and will not get it if the Public Trustee does the figuring.
Carol said that we would continue this discussion at round table.
Bill Wallace wanted to know why when a junior lienor must
file within eight days that we can’t issue a deed on day nine.
Larry Castle said that it was set up this way for an administrative set
aside. Larry said that in 38-38-302(4)
redemption is paid 15 days after sale.
We can put in an exception that if no intent to redeem has been filed, we
can issue the deed sooner. Carol
Snyder reminded us that a recission must be filed within 8 business days same as
an intent and that we can discuss further this afternoon at the round table.
Carol wanted everyone to know that our changes would be
proposed and may be changed up to six times in the legislative process.
The title must be drafted carefully and that we should not put in the
title that it is foreclosure related.
Tom Hill said that next month we will have a stakeholders meeting so
other industry organizations will have a chance to give input and review.
Carol said that the bill will be run in the 2009 session.
We plan to do a draft and then the bill will be introduced early in the
session but we still must determine when this will be effective perhaps earliest
in September or October, 2009. Bill
Wallace would like to make it effective for foreclosures currently being done
since it is clean up only. Carol
said that the Constitution states that no legislation can be done retroactively.
Rich Krohn said that it would be a real problem if you do this on ongoing
foreclosures so there should be an effective date.
Carol said that if anyone would like a copy of the
spreadsheet, they could ask Bob for a copy and let us know if they have any
concerns. We want to do changes now
rather than on the floor which could be dangerous.
Carol would also like to know what time the computer companies need to
change their foreclosure software.
Sandy Berry said that the Executive Committee discussed
whether the Suggested Guidelines are open records.
Rich Krohn had presented us with an opinion that they are not open record
unless you cite it for a basis for a decision that you make.
Rich says that if we do not say that the suggested guidelines is the
basis for your decision even if it is then it is not an open record but if we
do, then it is an open record.
Carol tells them that it is my decision and this is what other Public Trustees
do or my attorney says I can do this but do not cite manual as basis for
decision. Carol asked if she does
cite the suggested guidelines and it becomes an open record, does that decision
have ramifications for other counties.
Rich would hope not. Carol
says that if you get into court, you must use it as an exhibit.
Rich says the risk is there but one does not make it an open record for
everybody. Larry Castle inquired
what is the harm because it makes it easier for him to comply if he knows what
the public trustees expect of him. Sandy said that Rich will be rewriting the
warning and she will send it out when it is available.
Rich did a question and answer session. We then broke for
lunch.
Sandy
says there has been some further discussion on the sale of the suggested
guidelines. Rich wants to do what
the association wants and we have to decide - do we want to make it available or
not. He does not believe that it is
subject to open records as long as we do what we have talked about.
Carol said that e-mails on how we can handle matters and if we follow
those, it suggests those are public record and subject to CORA.
Rich believes that we would make a stronger organization if we make the
suggested guidelines available.
Patty read from the minutes of our October 25, 2007 meeting wherein it was
determined that the Suggested Guidelines be given out under a Colorado Open
Records Act request at 25 cents per page.
Carol uses the statute for the most part but believes the guidelines are
according to statute but there may be some Public Trustees who do not follow
them. Carol still has her own
office policy that her attorney will defend her on.
Bill Wallace would like to be able to sell at 25 cents per copy.
Dee Ann said that as Public Trustees we must be consistent with the
statutes and suggested guidelines help where you should go to find answer.
Voted to continue to sell 25 cents per page under open records.
At this time Carol and Patty led the group in a roundtable
discussion. At 3:30 Sandy adjourned the meeting.
Respectfully submitted,
Patty Bartlett, Secretary