(1) (a) No more than twenty calendar days after the recording of the notice of election and demand, the public trustee shall mail a combined notice as described in subsection (4) of this section to the persons set forth in the mailing list.
(b) No more than sixty calendar days nor less than forty-five calendar days prior to the first scheduled date of sale, the public trustee shall mail a combined notice as described in subsection (4) of this section to the persons as set forth in the most recent amended mailing list. If there is no amended mailing list, the public trustee shall mail a combined notice as described in subsection (4) of this section to the persons as set forth in the mailing list.
(c) If a recorded instrument does not specify the address of the party purporting to have an interest in the property under such recorded instrument, the party shall not be entitled to notice and any interest in the property under such instrument shall be extinguished upon the execution and delivery of a deed pursuant to section 38-38-501.
(2) (a) The holder of the evidence of debt or the attorney for the holder shall deliver an amended mailing list to the officer as needed. If an amended mailing list is received after the officer has sent the mailing described in paragraph (b) of subsection (1) of this section, the officer shall continue the sale to no less than sixty-five calendar days after receipt of the amended mailing list. The officer shall send the notice pursuant to subsection (4) of this section to the persons on the amended mailing list no less than forty-five calendar days prior to the actual date of sale.
(b) (Deleted by amendment, L. 2007, p. 1832, � 7, effective January 1, 2008.)
(3) The sheriff shall mail a combined notice as described in subsection (4) of this section to the persons named at the addresses indicated in the mailing list no less than sixteen nor more than thirty calendar days after the holder of the evidence of debt or the attorney for the holder delivers to the sheriff the mailing list and the original or a copy of a decree of foreclosure or a writ of execution directing the sheriff to sell property.
(4) (a) The combined notices required to be mailed pursuant to subsections (1), (2), and (3) of this section must contain the following:
(I) The information required by section 38-38-101 (4);
(II) The statement: A notice of intent to cure filed pursuant to section 38-38-104 shall be filed with the officer at least fifteen calendar days prior to the first scheduled sale date or any date to which the sale is continued;
(II.5) The statement, which must be in bold: If the sale date is continued to a later date, the deadline to file a notice of intent to cure by those parties entitled to cure may also be extended;
(III) The statement: A notice of intent to redeem filed pursuant to section 38-38-302 shall be filed with the officer no later than eight business days after the sale;
(IV) The date to which the sale has been continued pursuant to paragraph (a) of subsection (2) of this section;
(V) The date of sale determined pursuant to section 38-38-108;
(VI) The place of sale determined pursuant to section 38-38-110;
(VII) If the sale is conducted by means of the internet or another electronic medium pursuant to section 38-38-110 (1):
(A) The electronic address;
(B) The location of computer workstations that are available to the public and information about how to obtain instructions on accessing the sale and submitting bids; and
(C) A statement that the bidding rules for the sale will be posted on the internet or other electronic medium used to conduct the sale at least two weeks before the date of sale;
(VIII) The statement as required by section 24-70-109, C.R.S.: The lien being foreclosed may not be a first lien; and
(IX) A statement that, if the borrower believes that a lender or servicer has violated the requirements for a single point of contact in section 38-38-103.1 or the prohibition on dual tracking in section 38-38-103.2, the borrower may file a complaint with the Colorado attorney general, the CFPB, or both, but the filing of a complaint will not stop the foreclosure process. The notice must include contact information for both the Colorado attorney general's office and the CFPB. If the officer maintains a website, the officer shall also post this information on the website for viewing by all borrowers.
(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.
(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 is deemed to require the officer to commence publication of the combined notice, omitting both the statements under subsections (4)(a)(II), (4)(a)(III), and (4)(a)(IX) of this section and the copies of the statutes under subsection (4)(b) 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.
(b) The officer shall review the publication of the combined notice for accuracy.
(c) The fees and costs to be allowed for publication of the combined notice shall be as provided by law for the publication of legal notices or advertising.
(d) Repealed.
Source: L. 90: Entire article R&RE, p. 1656, � 2, effective October 1. L. 91: (1) amended, p. 1921, � 52, effective June 1. L. 2002: (1) amended, p. 1336, � 7, effective July 1. L. 2006: Entire section R&RE, p. 1446, � 9, effective January 1, 2008. L. 2007: IP(1)(a)(II), (2), (4)(a)(III), and (5)(a) amended, p. 1832, � 7, effective January 1, 2008. L. 2009: (5)(d) added, (HB 09-1276), ch. 404, p. 2221, � 4, effective June 2; (1)(a), (1)(b), (2)(a), (3), (4)(a)(IV), (4)(b), (5)(a), and (5)(b) amended, (HB 09-1207), ch. 164, p. 708, � 6, effective January 1, 2010. L. 2012: (4)(a)(II.5) added, (SB 12-030), ch. 96, p. 315, � 5, effective September 1. L. 2014: IP(4)(a), (4)(a)(VI), and (4)(a)(VII) amended and (4)(a)(VIII) added, (HB 14-1295), ch. 157, p. 547, � 3, effective January 1, 2015. L. 2015: (4)(a) amended, (HB 15-1142), ch. 113, p. 338, � 3, effective September 1. L. 2016: (5)(d) repealed, (SB 16-189), ch. 210, p. 792, � 103, effective June 6. L. 2018: (5)(a) amended, (HB 18-1254), ch. 138, p. 903, � 3, effective August 8.
Editor's note: (1) The provisions of this section are similar to provisions of several former sections as they existed prior to 1990. For a detailed comparison, see the comparative tables located in the back of the index.
(2) The effective date for amendments made to this section by chapter 305, Session Laws of Colorado 2006, was changed from July 1, 2007, to January 1, 2008, by section 27 of chapter 404, Session Laws of Colorado 2007. (See L. 2007, p. 1849.)
38-38-103.1. Single point of contact - servicer to designate - duties - exemption. (1) No later than the forty-fifth day of a borrower's delinquency, a servicer shall promptly establish a single point of contact for communications with the borrower. The servicer shall do so within the time periods prescribed in, and subject to the other requirements imposed by, federal law and CFPB rules and orders. Once the single point of contact is established, the servicer shall promptly provide to the borrower, in writing, one or more direct means of communication with the single point of contact.
(2) A single point of contact shall:
(a) Provide the borrower with accurate information about:
(I) Loss mitigation options available to the borrower from the owner or assignee of the borrower's mortgage loan;
(II) Actions the borrower must take to be evaluated for loss mitigation options, including actions the borrower must take to submit a complete loss mitigation application and, if applicable, actions the borrower must take to appeal the servicer's determination to deny a borrower's loss mitigation application for any trial or permanent loan modification program offered by the servicer;
(III) The status of any loss mitigation application that the borrower has submitted to the servicer;
(IV) The circumstances under which the servicer may make a referral to foreclosure; and
(V) Applicable loss mitigation deadlines established by an owner or assignee of the borrower's mortgage loan or by section 38-38-103.2;
(b) Retrieve, in a timely manner:
(I) A complete record of the borrower's payment history; and
(II) All written information the borrower has provided to the servicer and, if available, to prior servicers in connection with a loss mitigation application;
(c) Provide the documents and information identified in paragraph (b) of this subsection (2) to other persons required to evaluate a borrower for loss mitigation options made available by the servicer, if applicable; and
(d) Provide a delinquent borrower with information about the procedures for submitting a notice of error or an information request.
(3) A servicer is exempt from this section if the servicer services five thousand or fewer mortgage loans for all of which the servicer, or an affiliate of the servicer, is the creditor or assignee. In determining whether a servicer services five thousand or fewer mortgages, the servicer is evaluated based on the number of mortgage loans serviced by the servicer and any affiliates as of January 1 for the remainder of the calendar year. A servicer that crosses the threshold has six months after crossing the threshold or until the next January 1, whichever is later, to comply with this section.
(4) A servicer who complies with 12 CFR 1024.40, as promulgated by the CFPB, or is exempt from compliance with that regulation under federal law or CFPB rules, regulations, or orders, is deemed in compliance with this section.
Source: L. 2014: Entire section added, (HB 14-1295), ch. 157, p. 547, � 4, effective January 1, 2015.
38-38-103.2. Dual tracking prohibited - notice to officer - continuation of sale pending inquiry. (1) A servicer is subject to the time limits and other requirements of federal law and CFPB rules in connection with a foreclosure under this article.
(2) The servicer shall:
(a) Notify the borrower in writing when it receives a complete loss mitigation application from the borrower; and
(b) Exercise reasonable diligence in obtaining documents and information to complete a loss mitigation application.
(3) If the borrower has received confirmation from the servicer that the borrower has submitted a complete loss mitigation application or has been offered and has accepted a loss mitigation option and is complying with its provisions, and yet a notice of election and demand pursuant to section 38-38-101 has been filed or action is being taken pursuant to section 38-38-105 or 38-38-106 with regard to the borrower, then, in order to stop the foreclosure sale, no later than fourteen calendar days before the sale date, the borrower must present to the officer the borrower's written notification from the servicer indicating receipt of a complete loss mitigation application dated at least thirty-seven days prior to the sale date or acceptance of a loss mitigation option, and, if the borrower does so:
(a) As soon as possible, but no later than three business days after receipt of the notification, the officer shall contact the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, by telephone, electronic mail, or first-class mail and inquire as to the status of the loss mitigation option. The officer shall document this inquiry. Until the servicer or its attorney responds to the inquiry, the officer shall continue the sale in accordance with section 38-38-109 (1)(a).
(b) If the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, fails to respond within seven calendar days to an inquiry under paragraph (a) of this subsection (3), then, as soon as possible but no later than the fourteenth day after the date of the inquiry, the officer shall send a certified letter to the attorney for the servicer or holder or to the servicer or holder, if not represented by an attorney, as listed on the notice of election and demand, inquiring as to the status of the loss mitigation option. The servicer or holder shall reimburse the officer for the cost of mailing the letter.
(c) If, after being contacted in accordance with paragraph (a) or (b) of this subsection (3), the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, gives the officer a written statement via electronic mail or first-class mail disputing that a loss mitigation option has been offered and accepted or that the borrower is complying with its terms, the officer shall proceed with the sale.
(d) (I) If the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, acknowledges that a loss mitigation option has been offered and accepted and that the borrower is complying with its terms, the officer shall continue the sale in accordance with section 38-38-109 (1)(a), and the holder shall withdraw the notice of election and demand within one hundred eighty calendar days after the date of the acknowledgment if the borrower continues to comply with the terms of the loss mitigation option.
(II) If, within one hundred eighty calendar days after the date of the acknowledgment, the attorney for the servicer or holder or the servicer or holder, if not represented by an attorney, has not withdrawn the notice of election and demand and neither the attorney for the servicer or holder nor the servicer or holder, if not represented by an attorney, has notified the officer that the borrower is not complying with the terms of the loss mitigation option, the officer may administratively withdraw the notice of election and demand.
(III) If, within one hundred eighty calendar days after the date of the acknowledgment, the borrower fails to comply with the terms of the loss mitigation option, the holder or the attorney for the holder may give written notice to the officer that the loss mitigation option has been breached, and, no later than ten business days after receiving the notice, the officer shall mail an amended combined notice containing the date of the rescheduled sale to each person appearing on the most recent mailing list, or on an updated mailing list if provided by the holder or the holder's attorney. The rescheduled sale date must not be fewer than seven calendar days after the date the amended combined notice is mailed. All fees and costs of providing the amended combined notice may be included as part of the foreclosure costs.
(4) If a foreclosure sale is continued as a result of compliance with the requirements of subsection (3) of this section, the periods for which the sale may be continued are in addition to the twelve-month period of continuance provided by section 38-38-109 (1).
(5) A servicer is exempt from this section if the servicer services five thousand or fewer mortgage loans for all of which the servicer, or an affiliate of the servicer, is the creditor or assignee. In determining whether a servicer services five thousand or fewer mortgages, the servicer is evaluated based on the number of mortgage loans serviced by the servicer and any affiliates as of January 1 for the remainder of the calendar year. A servicer that crosses the threshold has six months after crossing the threshold or until the next January 1, whichever is later, to comply with this section.
(6) A servicer who complies with 12 CFR 1024.41, as promulgated by the CFPB, or is exempt from compliance with that regulation under federal law or CFPB rules, regulations, or orders, is deemed in compliance with this section.
Source: L. 2014: Entire section added, (HB 14-1295), ch. 157, p. 547, � 4, effective January 1, 2015.
38-38-104. Right to cure when default is nonpayment - right to cure for certain technical defaults. (1) Unless the order authorizing the sale described in section 38-38-105 contains a determination that there is a reasonable probability that a default in the terms of the evidence of debt, deed of trust, or other lien being foreclosed other than nonpayment of sums due thereunder has occurred, any of the following persons is entitled to cure the default if the person files with the officer, no later than fifteen calendar days prior to the date of sale, a written notice of intent to cure together with evidence of the person's right to cure to the satisfaction of the officer:
(a) (I) The owner of the property as of the date and time of the recording of the notice of election and demand or lis pendens as evidenced in the records;
(II) If the owner of the property is dead or incapacitated on or after the date and time of the recording of the notice of election and demand or lis pendens, the owner's heirs, personal representative, legal guardian, or conservator as of the time of filing of the notice of intent to cure, whether or not such person's interest is shown in the records, or any co-owner of the property if the co-owner's ownership interest is evidenced in the records as of the date and time of the recording of the notice of election and demand or lis pendens;
(III) A transferee of the property as evidenced in the records as of the time of filing of the notice of intent to cure if the transferee was the property owner's spouse as of the date and time of the recording of the notice of election and demand or lis pendens or if the transferee is wholly owned or controlled by the property owner, is wholly owned or controlled by the controlling owner of the property owner, or is the controlling owner of the property owner;
(IV) A transferee or owner of the property by virtue of merger or other similar event or by operation of law occurring after the date and time of the recording of the notice of election and demand or lis pendens; or
(V) The holder of an order or judgment entered by a court of competent jurisdiction as evidenced in the records after the date and time of the recording of the notice of election and demand or lis pendens ordering title to the property to be vested in a person other than the owner;
(b) A person liable under the evidence of debt;
(c) A surety or guarantor of the evidence of debt; or
(d) A holder of an interest junior to the lien being foreclosed by virtue of being a lienor or lessee of, or a holder of an easement or license on, the property or a contract vendee of the property, if the instrument evidencing the interest was recorded in the records prior to the date and time of the recording of the notice of election and demand or lis pendens. If, prior to the date and time of the recording of the notice of election and demand or lis pendens, a lien is recorded in an incorrect county, the holder's rights under this section shall only be valid if the lien is rerecorded in the correct county at least fifteen calendar days prior to the actual date of sale.
(2) (a) (I) 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 attorney for the holder or servicer or, if none, the holder or servicer, shall file the cure statement with the officer, and the cure statement must set forth the amounts necessary to cure. Upon receipt of the statement of the amounts needed to cure, the officer shall transmit in writing to the person filing the notice of intent to cure the default:
(A) The cure statement; and
(B) A statement that the person filing the notice of intent to cure is entitled to receive from the attorney for the holder or servicer or, if not represented, from the holder or servicer, upon written request mailed to the attorney for the holder or servicer or, if not represented, to the holder or servicer at the address stated on the cure statement, copies of receipts or other credible evidence to support the costs claimed on the cure statement. This request may be sent only after payment to the officer of the amount shown on the cure statement and must be sent within ninety days after payment of the cure amount.
(II) If a cure statement is required pursuant to subparagraph (I) of this paragraph (a), the holder of the evidence of debt shall submit a signed and acknowledged cure statement, or the office of the attorney for the holder shall submit a signed cure statement, specifying the following amounts, itemized in substantially the following categories and in substantially the following form:
CURE STATEMENT
To:_______________________________________
Public Trustee (or Sheriff) of the County (or City and County) of__________, State of Colorado (hereinafter the officer).
Foreclosure sale number: __________
Grantor: __________
The date through which the
cure statement is effective: __________
The following is an itemization of all sums necessary to cure the default (any amount that is based on a good faith estimate is indicated with an asterisk):
Payments due under the evidence of debt:
__________ payments of $ __________ each
Accrued late charges __________
Other amounts due under the evidence of debt
(specify)
__________ __________
__________ __________
Property inspections __________
Property, general liability,
and casualty insurance __________
Certificate of taxes due __________
Property taxes paid by the holder __________
Owner association
assessment paid by the holder __________
Permitted amounts paid on
prior liens __________
Less impound/escrow account credit __________
Plus impound/escrow account
deficiency __________
Title costs __________
Rule 120 docket fee __________
Rule 120 posting costs __________
Court costs __________
Postage/delivery costs __________
Service/posting costs __________
Attorney fees __________
Other fees and costs (specify):
__________ __________
__________ __________
Reinstatement total $ __________
(Does not include officer's fees and costs)
Officer's fees and costs $ __________
(To be added by officer)
Total to cure $ __________
(To be added by officer)
IT MAY TAKE SEVERAL DAYS BEFORE THE CURE IS PROCESSED AND ENTERED INTO THE HOLDER'S RECORDS.
The total to cure does not include any future monthly mortgage payments that may be due.
Name of the holder of the evidence of debt
and the attorney for the holder:
Holder: _________________________________
Attorney: _______________________________
Printed name: ____________________________
Signature: ______________________________
Attorney address: ________________________
Attorney business telephone: _____________
(III) The cure statement is a representation of fact, made upon the current information and belief of the person signing it. If the holder or servicer determines that there is an inaccurate amount contained in the cure statement, the holder or servicer, or the attorney for the holder or servicer, shall inform the officer immediately and provide a cure statement with updated figures; except that any additional or increased amounts must be added at least ten calendar days before the effective date of the original cure statement. If an inaccurate amount is reported and a corrected cure statement is not provided within the time specified in this subparagraph (III), the officer may continue the sale for one week in accordance with section 38-38-109 (1). An estimate as allowed under subsection (5) of this section is not an inaccurate amount for purposes of this subparagraph (III).
(IV) Within seven business days after the officer's notification to the holder or servicer, or to the attorney for the holder or servicer, that the officer has received the funds necessary to cure the default as reflected on the initial or updated cure statement, the holder or servicer or the attorney for the holder or servicer shall deliver to the officer a final statement, reconciled for estimated amounts that were not or would not be incurred as of the date the cure proceeds were received by the officer, along with receipts or invoices for all rule 120 docket costs and all statutorily mandated posting costs claimed on the cure statement. All amounts of cure proceeds received by the officer in excess of the amounts reflected on the final statement shall be remitted by the officer to the person who paid the cure amount.
(V) (A) The holder or servicer shall remit to the person who paid the cure amount any portion of the cure amount that represents a fee or cost listed on the cure statement that exceeds the amount actually incurred and that was not remitted by the officer in accordance with subparagraph (I) of paragraph (d) of this subsection (2).
(B) The officer shall remit to the person who paid the cure amount any portion of the cure amount that represents a fee or cost of the officer that exceeds the amount actually incurred by the officer.
(VI) The holder or servicer is responsible for retaining receipts or other credible evidence to support all costs claimed on the cure statement, including rule 120 docket fees and posting costs, and the person who paid the cure amount is entitled to receive copies upon written request mailed to the attorney for the holder or servicer or, if not represented, to the holder or servicer at the address stated on the cure statement. The request may be made at any time after payment to the officer of the amount shown on the cure statement, but must be made within ninety days after payment of the cure amount. The attorney for the holder or servicer or, if not represented, the holder or servicer shall provide copies of all receipts or other credible evidence within thirty days after receiving the request, and may provide the copies electronically.
(b) No later than 12 noon on the day before the sale, the person desiring to cure the default shall pay to the officer all sums that are due and owing under the evidence of debt and deed of trust or other lien being foreclosed and all fees and costs of the holder of the evidence of debt allowable under the evidence of debt, deed of trust, or other lien being foreclosed through the effective date that are set forth in the cure statement; except that any principal that would not have been due in the absence of acceleration shall not be included in such sums due.
(c) If a cure is made, interest for the period of any continuance pursuant to section 38-38-109 (1)(c) shall be allowed only at the regular rate and not at the default rate as may be specified in the evidence of debt, deed of trust, or other lien being foreclosed. If a cure is not made, interest at the default rate, if specified in the evidence of debt, deed of trust, or other lien being foreclosed, for the period of the continuance shall be allowed.
(d) (I) Upon receipt of the cure amount, and conditioned upon the withdrawal or dismissal of the foreclosure from the holder or servicer or the attorney for the holder or servicer, the officer shall:
(A) Deliver the cure amount, less the fees and costs of the officer and any adjustments required under subparagraph (III) of paragraph (a) of this subsection (2), to the attorney for the holder or servicer or, if none, to the holder or servicer; and
(B) Obtain and retain, in the officer's records, the name and mailing address of the person who paid the cure amount.
(II) Following the withdrawal or dismissal, the evidence of debt shall be returned uncancelled to the attorney for the holder or servicer or, if none, to the holder or servicer by the public trustee or to the court by the sheriff.
(3) Where the default in the terms of the evidence of debt, deed of trust, or other lien on which the holder of the evidence of debt claims the right to foreclose is the failure of a party to furnish balance sheets or tax returns, any person entitled to cure pursuant to paragraph (a) of subsection (2) of this section may cure such default in the manner prescribed in this section by providing to the holder or the attorney for the holder the required balance sheets, tax returns, or other adequate evidence of the party's financial condition so long as all sums currently due under the evidence of debt have been paid and all amounts due under paragraph (b) of subsection (2) of this section, where applicable, have been paid.
(4) Any person liable on the debt and the grantor of the deed of trust or other lien being foreclosed shall be deemed to have given the necessary consent to allow the holder of the evidence of debt or the attorney for the holder to provide the information specified in paragraph (a) of subsection (2) of this section to the officer and all other persons who may assert a right to cure pursuant to this section.
(5) A cure statement pursuant to paragraph (a) of subsection (2) of this section shall state the period for which it is effective. The cure statement shall be effective for at least ten calendar days after the date the cure statement is received by the officer or until the last day to cure under paragraph (b) of subsection (2) of this section, whichever occurs first. The cure statement shall be effective for no more than thirty calendar days after the date the cure statement is received by the officer or until the last day to cure under paragraph (b) of subsection (2) of this section, whichever occurs first. The use of good faith estimates in the cure statement with respect to interest and fees and costs is specifically authorized by this article, so long as the cure statement states that it is a good faith estimate effective through the last day to cure as indicated in the cure statement. The use of a good faith estimate in the cure statement shall not change or extend the period or effective date of a cure statement.
(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 a written request to the public trustee for an update of the amount necessary to cure. Upon receipt by the public trustee of such written request for updated cure figures, subsection (2) of this section shall apply.
(7) If the holder of the evidence of debt or the attorney for the holder receives a request for a cure statement under paragraph (a) of subsection (2) of this section and does not file a cure statement with the officer by the earlier of ten business days after receipt of the request or the eighth calendar day before the date of the sale, the officer shall continue the sale for one week. Thereafter and until the cure statement is filed, the officer shall continue the sale an additional week for each week that the holder fails to file the cure statement; except that the sale shall not be continued beyond the period of continuance allowed under section 38-38-109 (1)(a). A cure statement must be received by 12 noon on the day it is due in order to meet a deadline set forth in this subsection (7).
Source: L. 90: Entire article R&RE, p. 1657, � 2, effective October 1. L. 91: (2) amended, p. 1922, � 53, effective June 1. L. 92: (1) amended, p. 2090, � 3, effective July 1. L. 94: (2.5) added, p. 1674, � 1, effective July 1. L. 2002: Entire section amended, p. 1336, � 8, effective July 1. L. 2006: Entire section R&RE amended, p. 1449, � 10, effective January 1, 2008. L. 2007: IP(1) and (5) amended, p. 1833, � 8, effective January 1, 2008. L. 2009: (1)(a)(V), (1)(d), and (2)(a) amended and (6) and (7) added, (HB 09-1207), ch. 164, p. 710, � 7, effective January 1, 2010. L. 2012: (2)(a), (2)(b), (5), and (7) amended, (SB 12-030), ch. 96, p. 315, � 6, effective September 1. L. 2014: (2)(a)(I) and (2)(d) amended and (2)(a)(III), (2)(a)(IV), (2)(a)(V), and (2)(a)(VI) added, (HB 14-1130), ch. 156, p. 542, � 3, effective May 9.
Editor's note: (1) This section is similar to former � 38-39-118, as it existed prior to 1990.
(2) The effective date for amendments made to this section by chapter 305, Session Laws of Colorado 2006, was changed from July 1, 2007, to January 1, 2008, by section 27 of chapter 404, Session Laws of Colorado 2007. (See L. 2007, p. 1849.)
38-38-105. Court order authorizing sale mandatory - notice of hearing for residential properties - definition.
(1) Repealed.
(2) (a) On and after January 1, 2008, whenever a public trustee forecloses upon a deed of trust under this article, the holder of the evidence of debt or the attorney for the holder shall obtain an order authorizing sale from a court of competent jurisdiction to issue the same pursuant to rule 120 or other rule of the Colorado rules of civil procedure. The order shall recite the date the hearing was scheduled if no hearing was held, or the date the hearing was completed if a hearing was held, which date in either case must be no later than the day prior to the last day on which an effective notice of intent to cure may be filed with the public trustee under section 38-38-104. A sale held without an order authorizing sale issued in compliance with this paragraph (a) shall be invalid.
(b) The public trustee shall postpone the sale, unless the holder or the attorney for the holder causes a copy of the order to be provided to the public trustee no later than 12 noon on the second business day prior to the date of sale. A sale held in violation of this paragraph (b) shall not be invalid if an order that complied with the provisions of paragraph (a) of this subsection (2) was entered.
(3) (a) Not less than fourteen days before the date set for the hearing pursuant to rule 120 or other rule of the Colorado rules of civil procedure, the holder or the attorney for the holder seeking an order authorizing sale under this section for a residential property shall cause a notice of hearing as described in rule 120 (b) of the Colorado rules of civil procedure to be posted in a conspicuous place on the property that is the subject of the sale. If possible, the notice shall be posted on the front door of the residence, but if access to the door is not possible or is restricted, the notice shall be posted at an alternative conspicuous location, such as a gate or similar impediment. If a person at the residence is impeding posting at the residence at the time of the attempted posting, the notice may be handed to that person to satisfy this posting requirement. The notice required by this subsection (3) is sufficient if it complies with the requirements of this section without regard to any requirements for service of process in a civil action required by court rule.
(b) For servicers who are not exempt pursuant to section 38-38-103.1 (3) or 38-38-103.2 (4), the notice must contain or be accompanied by a conspicuous statement, substantially as follows, together with contact information for both the Colorado attorney general's office and the CFPB:
If you believe that the lender or servicer of this mortgage has violated the requirements for a single point of contact in section 38-38-103.1, Colorado Revised Statutes, or the prohibition on dual tracking in section 38-38-103.2, Colorado Revised Statutes, you may file a complaint with the Colorado attorney general, the federal Consumer Financial Protection Bureau, or both, at ___________ [insert contact information for both]. The filing of a complaint will not stop the foreclosure process.
(4) As used in this section, residential property means any real property upon which a dwelling, as defined in section 5-1-301 (18), C.R.S., is constructed and occupied.
Source: L. 90: Entire article R&RE, p. 1657, � 2, effective October 1. L. 2006: Entire section amended, p. 1452, � 11, effective July 1. L. 2007: Entire section amended, p. 1834, � 9, effective June 1. L. 2009: (2) amended, (HB 09-1207), ch. 164, p. 711, � 8, effective September 1. L. 2010: (3) added, (HB 10-1240), ch. 200, p. 872, � 2, effective May 5. L. 2012: (3) amended and (4) added, (SB 12-030), ch. 96, p. 318, � 7, effective September 1. L. 2014: (3) amended, (HB 14-1295), ch. 157, p. 550, � 5, effective January 1, 2015.
Editor's note: (1) This section is similar to former � 38-37-140 (1), as it existed prior to 1990.
(2) Subsection (1)(b) provided for the repeal of subsection (1), effective January 1, 2008. (See L. 2007, p. 1834.)
Cross references: For the nature and effect of mortgages, see � 38-35-117.