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Approved Concepts from 7/28/08
meeting |
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Process |
Statute |
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Problems/Requests |
Suggested Language |
| 1 |
Commence
Foreclosure |
38-38-101 |
a |
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; |
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c |
Allow
a Holder to file a foreclosure without an attorney. Also we do not need to show ALL attorneys. |
38-38-101(4)(j) The name, address, AND TELEPHONE
NUMBER OF THE LAW FIRM,
and THE bar registration number of the 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. |
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d |
"Description
of property" may not mean legal desc |
38-38-101(4)(g) A LEGAL
description of the property AS SET FORTH IN THE
DEED OF TRUST; |
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e |
Indorsement
section is poorly worded. |
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. Proper indorsement or assignment of an 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. |
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f |
Deposit
of $500.00 is insufficient |
38-38-101(10)
Deposit. The public trustee
may require a deposit of up to five SIX hundred
AND FIFTY dollars at
the time the 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 |
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 initial mailing list as follows: |
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c |
Omit mailing to PT |
38-38-103(1)(a)(I)(B)
Any person, EXCEPT THE
PUBLIC TRUSTEE NAMED IN THE DEED OF TRUST, 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;
and 38-38-103(1)(a)(II)(C) Any person, EXCEPT THE PUBLIC TRUSTEE NAMED IN THE DEED OF TRUST, 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; |
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d |
The
information required for CN refers to information required for NED and may be
in conflict. |
38-38-103(4)(a)(IV) The name, address, and telephone number of each attorney,
if any, representing the holder of the evidence of debt; (Telephone number
will be added to the NED requirements) |
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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 |
38-38-103(4)(a)(VIII)
THE DATE TO WHICH THE SALE HAS BEEN CONTINUED PURSUANT TO SECTION
38-38-101(f) OR SECTION 38-38-103(2)(a). |
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f |
Copies
of Statutes do not include 302 for Redemptions |
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. |
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g |
Alter
CN for publication to be only a Notice of Sale |
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), (III), AND (VIII) 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. |
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h |
Officer
should not have to review ALL publications |
38-38-103(5)(b) The officer shall review all
such publications THE
PUBLICATION of the combined notice for accuracy. |
| 3 |
Cure
of Default |
38-38-104 |
b |
Add time
frame for PT to supply cure figures to submitter |
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. |
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c |
Clarify
that the filer is the one who requests updated figures |
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. |
| 4 |
Bid |
38-38-106 |
a |
The
PT doesn't always have the interest rate for redemption calculations |
38-38-106(2)
. . . RATE OF INTEREST AS OF THE DATE OF SALE |
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b |
There
can be some unfair bidding practices - may need to address min & max bids |
38-38-106(7)(a) THE OFFICER MAY ESTABLISH WRITTEN POLICIES
RELATING TO ALL ASPECTS OF THE FORECLOSURE SALE. |
| 5 |
Set
Sale Date |
38-38-108 |
a |
Ag
Determination, have to wait 10 business days |
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. and THE OFFICER shall accept the
following as evidence that the property is not agricultural property: |
| 6 |
Continuance |
38-38-109 |
b |
With
later publications, a bankruptcy can be filed and cleared in time to maintain
the original publication scheduled |
38-38-109(2)(b)
(I) If all 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 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. |
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c |
Court
injunctions should be treated like bankruptcies |
38-38-109(2)(d) If a sale is enjoined by court order, the same procedures as
set forth in paragraphs (a), and (b), AND (c) of this 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 |
38-38-111
(1) If, at a sale, the property is sold for an amount in
excess of the sum of the fees and costs pursuant to section 38-37-104, the
fees and costs of sale, and moneys due the holder of the evidence of debt
secured by the deed of trust or other lien being foreclosed, such excess
proceeds 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. |
| 8 |
Recission
of Sale |
38-38-113 |
a |
Refers
to submission of the original COP |
38-38-113(1) . . .Upon receipt of the notice of rescission of sale, the original certificate of purchase, 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. |
| 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 |
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 |
Various
places |
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b |
Language
for Title Company Releases is not right |
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 for any and all damages, costs, liabilities, and reasonable
attorney fees incurred PURSUANT TO STATUTE as a result of
the action of the Public Trustee taken in accordance with this Request for
Release. |
| 12 |
Other
Items |
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b |
Waiver
of cure rights should 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. |
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c |
Some
references to Public Trustee's Deed still exist |
38-37-112. The public trustee of
each county is declared to be the proper public trustee to issue public trustee's 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. |
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