| Process | Statute | Problems/Requests | Possible Solutions | Suggested Language | ||
| 1 | Commence Foreclosure |
38-38-101 | a | Remove
requirement for submitter to send a CN when not needed |
Remove
requirement for submitter to send a CN when not needed |
38-38-101(1)(d)
A combined notice pursuant to section 38-38-103;(I) THE COMBINED NOTICE MAY BE OMITTED WITH THE APPROVAL OF THE OFFICER; |
| b | If
supplemental list is filed late, the sale must be withdrawn & the process is cumbersome |
Change
initial to just a mailing list and allow for filing of amended lists at least 65 days prior to sale |
38-38-101(1)(e) addresses of the persons listed in section 38-38-103 (1) (a) (I); (f) IF ADDITIONAL PERSONS ARE IDENTIFIED PURSUANT TO SECTION 38-38-103 (1) (a) (II), AN AMENDED MAILING LIST CONTAINING THE NAMES AND ADDRESSES OF THOSE PERSONS SHALL BE SUBMITTED NO less than sixty-FIVE calendar days prior to the containing the names and addresses of the persons listed in section 38-38-103 (1) (a) (II). |
|||
| c | Allow
a Holder to file a foreclosure without an attorney. Also we do not need to show ALL attorneys. |
Remove
redundant references to Attorneys. |
38-38-101(4)(j) The name, address, AND TELEPHONE NUMBER OF THE LAW FIRM, and THE bar registration number of AN attorney for the holder of the evidence of debt, IF ANY, which may be indicated in the signature block of the notice of election and demand. |
|||
| d | "Description
of property" may not mean legal desc |
Change to "legal description" | 38-38-101(4)(g) A LEGAL
description of the property AS SET FORTH IN THE DEED OF TRUST; |
|||
| e | Indorsement
section is poorly worded. |
Reword the section. | 38-38-101(6) Indorsement or assignment. 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. 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. shall also include, in addition to the original indorsement or assignment, a certified copy of an indorsement or assignment recorded in the county where the property being foreclosed is located. |
|||
| f | Deposit
of $500.00 is insufficient |
Increase to $650.00 | 38-38-101(10)
Deposit. The public trustee
may require a deposit of up to notice of election and demand is filed, to be applied against the fees and costs of the public trustee. |
|||
| 2 | Combined
Notice |
38-38-103 | a | Do
not always need both an initial and a supplemental mailing list |
Change
"initial" mailing list to just the mailing list |
38-38-103(1)
(a) The public trustee shall mail a combined notice as
described in subsection (4) of this section to the following persons as set forth in the |
| b | An
amended mailing list should be mailed 45 - 60 days prior to the actual sale |
Change
reference to the mailing list and the amended list. |
38-38-103(1)(a)(II)
No more than sixty calendar days nor less than forty-five calendar days prior to the first scheduled date of sale, to the following persons as set forth in the MAILING LIST, amended mailing list: |
|||
| c | Omit mailing to PT | Add
language that officer need not be included in mailing lists |
38-38-103(1)(d)
THERE IS NO REQUIREMENT FOR THE COMBINED NOTICE TO BE MAILED TO THE OFFICER. |
|||
| d | The
information required for CN refers to information required for NED and may be in conflict. |
Remove redundancy | each attorney, if any, representing the holder of the evidence of debt; |
|||
| e | If
supplemental list is filed late or when an amended mailing list is submitted, the CN is not required to show the continued date |
Add
language to include both the first scheduled and continued sale dates on amended or updated CN's |
38-38-103(4)(a)(VIII)
THE DATE TO WHICH THE SALE HAS BEEN CONTINUED PURSUANT TO SECTION 38-38-101(f) OR SECTION 8-38-103(2)(a). |
|||
| f | Copies
of Statutes do not include 302 for Redemptions |
Add 302 to the list | 38-38-103(4)(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. |
|||
| g | Alter
CN for publication to be only a Notice of Sale |
Add
language to 38-38-103(5)(a) to also omit the information required by 38-38-103(4)(a)(II) & (III) [(IV) may be removed - see above] |
38-38-103(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 shall be deemed to require the officer to publish the combined notice, omitting THE STATEMENTS UNDER SUBPARAGRAPHS (II) AND (III) OF PARAGRAPH (a) OF SUBSECTION (4) OF THIS SECTION, OMITTING the copies of the statutes under paragraph (b) of subsection (4) 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. |
|||
| TABLED - Does Atty do pubs? | h | Officer
should not have to review ALL publications |
Change "all such" to "the" | 38-38-103(5)(b) The officer shall review PUBLICATION of the combined notice for accuracy. |
||
| 3 | Cure of Default | 38-38-104 | a | Some
lenders will only submit figures good for the 10 day minimum requirement |
Lengthen
to 15 or 20 calendar days? |
|
| 3 | Cure of Default | 38-38-104 | b | Add time
frame for PT to supply cure figures to submitter |
Add
language that the PT shall supply the Statement promptly and in writing to the filer |
38-38-104(2)
(a) 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 statement shall be filed with the officer by the attorney for the holder or, if none, by the holder of the evidence of debt and shall set forth the amounts necessary to cure as identified in paragraph (b) of this subsection (2), with the same detail as required for a bid pursuant to section 38-38-106. UPON RECEIPT OF THE STATEMENT BY THE OFFICER OF THE AMOUNTS NEEDED TO CURE, THE OFFICER SHALL TRANSMIT THE STATEMENT IN WRITING TO THE PERSON FILING THE NOTICE OF INTENT TO CURE THE DEFAULT. |
| c | Clarify
that the filer is the one who requests updated figures |
Add
statutory language or simply keep as a Policy |
38-38-104
(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 WRITTEN REQUEST TO THE PUBLIC TRUSTEE FOR UPDATED CURE FIGURES. UPON RECEIPT BY THE PUBLIC TRUSTEE OF THE WRITTEN REQUEST FOR UPDATED CURE FIGURES, THE PROVISIONS OF SUBSECTION (2) OF THIS SECTION SHALL APPLY. |
|||
| d | Allow
for a late filing of an intent to cure |
Add
a new subsection 38-38-103(1)(e) stating that the Holder must be willing to accept the late filing |
38-38-104(7)
ANY PERSON ELIGIBLE TO FILE AN INTENT TO CURE DEFAULT UNDER SUBSECTION (1) OF THIS SECTION MAY FILE AN INTENT TO CURE DEFAULT LATER THAN FIFTEEN CALENDAR DAYS PRIOR TO THE SALE IF THE HOLDER, OR THE ATTORNEY FOR THE HOLDER. UPON ACCEPTANCE OF THE LATE NOTICE OF INTENT TO CURE DEFAULT, THE OFFICER SHALL CONTINUE THE DATE OF THE SALE AT LEAST 15 CALENDAR DAYS TO THE NEXT POSSIBLE SALE DATE. |
|||
| 4 | Bid | 38-38-106 | a | The
PT doesn't always have the interest rate for redemption calculations |
Add
the interest rate to the bid form |
38-38-106(2) . . . RATE OF INTEREST AS OF THE DATE OF SALE |
| b | There
can be some unfair bidding practices |
Allow
PT to set maximum and minimum increments |
38-38-106(7)(a) THE OFFICER MAY ESTABLISH WRITTEN POLICIES REQUIRING MINIMUM AND MAXIMUM INCREMENTAL AMOUNTS FOR BIDS EXCEEDING THE TOTAL AMOUNT DUE SHOWN ON THE BID PURSUANT TO SUBSECTION (2) OF THIS SECTION. |
|||
| 5 | Set Sale Date | 38-38-108 | a | Ag
Determination, have to wait 10 business days |
Remove
the waiting period once proof has been filed |
38-38-108(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 UPON PRESENTATION OF ACCEPTABLE EVIDENCE THAT THE PROPERTY IS NOT AGRICULTURAL PROPERTY OR no less than ten calendar days nor more than twenty calendar days after the recording of the notice of election and demand. that the property is not agricultural property: |
| 6 | Continuance | 38-38-109 | a | Penalties
for late filing are confusing |
Make
all statements due within 10 business days or by noon 7 calendar days before the sale |
38-38-109(1)(c)
(I) the attorney for the holder receives a request for a cure statement under section 38-38-104 (2) (a) or less before the date of sale with the public trustee WITHIN TEN BUSINESS DAYS BUT NO LATER THAN by 12 noon on the seventh calendar day before the date of sale, the officer shall continue the sale week to week until the statement is filed but not beyond the period of continuance allowed by paragraph (a) of this subsection (1). holder receives a request for a cure statement under section 38-38-104 (2) (a) more than thirty calendar days before the date of sale and does not file a cure statement with the public trustee within ten business days after receipt of the request, the public trustee shall continue the sale week to week until the statement is filed as required by this paragraph (c) but not beyond the period of continuance allowed by paragraph (a) of this subsection (1). |
| b | With
later publications, a bankruptcy can be filed and cleared in time to maintain the original publication scheduled |
Clarify
that the publications must be stopped and the sale restarted upon relief, etc. |
38-38-109(2)(b)
(I) If 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 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. |
|||
| c | Court
injunctions should be treated like bankruptcies |
Add
the violation portion to this statute |
38-38-109(2)(d) If a sale is enjoined by court order, the same procedures as set forth in paragraphs (a), subsection (2) shall apply unless the court order specifies otherwise. |
|||
| 7 | Excess
Proceeds |
38-38-111 | a | Prior
practice was to lower the deficiency by the amount of the overbid - now it is paid after the end of all redemption periods |
Change? | |
| 8 | Recission
of Sale |
38-38-113 | a | Refers
to submission of the original COP |
Remove that wording | 38-38-113(1) . . .Upon receipt of the notice of rescission of sale, original certificate of purchase 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. |
| 9 | Redemption | 38-38-302 | a | Clarify
that an assignment of a qualified lien may be recorded after the NED recording |
Add
language to cover recording the assignment |
38-38-302(1)(c) The lienor's lien appears by instruments that were duly recorded in the office of the clerk and recorder of the county where all or a portion of the property is located prior to the recording of the notice of election and demand or lis pendens and the lienor would be entitled to cure pursuant to section 38-38-104 (1); (I) ANY ASSIGNMENT OF THE LIENOR'S LIEN MUST BE RECORDED IN THE OFFICE OF THE CLERK AND RECORDER OF THE COUNTY WHERE ALL OR A PORTION OF THE PROPERTY IS LOCATED PRIOR TO REDEEMING. |
| b | Holder
of Certificate of Redemption has no authority to allow for a late filing of an intent, only the holder of the Certificate of Purchase |
Add
the holder of the Certificate of Redemption or their attorney |
38-38-302(1)(d)(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 THE ATTORNEY FOR THE IMMEDIATELY PRIOR REDEEMING LIENOR IF A REDEMPTION HAS OCCURRED,, or, if no attorney is shown, then the holder of the certificate of purchase OR THE IMMEDIATELY PRIOR REDEEMING LIENOR IF A REDEMPTION HAS OCCURRED, authorizing the officer to accept such notice of intent to redeem; |
|||
| c | Clarify
what fees & costs are allowable for a junior lienor - 38-38-302 (6) & (7) |
Harmonize the two sections | ||||
| d | Post
NED non-consensual liens do not have the right to redeem |
Grant them the right to redeem? | ||||
| 10 | Release
with Production of EOD form |
38-39-107 | a | Contains
references to Owner of Indebtedness rather than Holder of the Evidence of Debt |
Change wording | Various places |
| 11 | Release
without Production of EOD form |
38-39-108 | a | Contains
references to Owner of Indebtedness rather than Holder of the Evidence of Debt |
Change wording | Various places |
| b | Language
for Title Company Releases is not right |
Change
to read like 38-39-102(3)(c) |
38-39-108
c. [ ] A title insurance company licensed and qualified in Colorado, as specified in § 38-39-102 (3) (c), Colorado Revised Statutes, that agrees that it is obligated to indemnify the Public Trustee liabilities, and reasonable attorney fees incurred TO STATUTE as a result of the action of the Public Trustee taken in accordance with this Request for Release. |
|||
| 12 | Other Items | a | "Good" funds | When
should funds be distributed to ensure that they are "good" funds? |
||
| b | Waiver
of cure rights should not affect future defaults |
Add
language that waiver of cure rights is for that one time only and does not affect future defaults |
38-38-703. 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. |
|||
| c | Some
references to Public Trustee's Deed still exist |
Change to Confirmation Deed | 38-37-112. The public trustee of
each county is declared to be the proper public trustee to issue CONFIRMATION deeds, certificates of purchase, certificates of redemption, releases of deeds of trust, and all other documents required of a public trustee for all property located in that public trustee's county at the time of execution of such documents by the public trustee or at the time the deed of trust was recorded in that county. |
|||
| d | We
are not able to correct typos found in legal description on DOT |
Alter
Rule 120 hearing or allow PT to accept scrivener's affidavits |
||||
| e | Priority
and status of HOA liens & assignments |
Do we address this? | ||||
| f | Attorneys
have changed during a sale |
Should
we allow for a change of attorneys during a sale? |