Orignal Draft presented to Legislative Committee on 7/28/08
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      b If supplemental list is filed late, the sale must be withdrawn & the process is cumbersome Change initial to just a mailing list and allow for filing of supplemental and amended lists at least 60 days prior to sale 38-38-101(1)(e) An initial A mailing list containing the names and 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 calendar days prior to the first scheduled ACTUAL sale date , a supplemental mailing list 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, TELEPHONE NUMBER and  bar registration number of the 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;+G10
      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.  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.
      f Deposit of $500.00 is insufficient Increase to $800.00 38-38-101(10) Deposit. The public trustee may require a deposit of up to five EIGHT hundred 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 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 initial mailing list as follows:
      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, supplemental MAILING LIST, or 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 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)
      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 38-38-103(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.
      h Officer should not have to review ALL publications Change "all such" to "the"  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 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. and THE OFFICER shall accept the following as evidence 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) (A) If the holder of the evidence of debt or the attorney for the holder receives a request for a cure statement under section 38-38-104 (2) (a) thirty calendar days or less before the date of sale and does not file a cure statement 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).              (B) If the holder of the evidence of debt or the attorney for the 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 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.
      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), 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 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, 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.
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 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   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 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.
      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?