C.R.S. 38-38-101 THE BEGINNING
We will now discuss the steps in the foreclosure process in their lawful order to guide you and help you understand the protections mentioned earlier. Knowing this process will equip you with the necessary knowledge to guard against the omission of your lawful protections and to determine if your foreclosure was handled or is being handled in a manner that will constitute a valid and lawful foreclosure. PLEASE KNOW THAT VERY FEW, I MEAN VERY FEW FORECLOSURES COMPLY WITH THE LAW, SO ARM YOURSELF WITH THIS INFORMATION!!
FORECLOSURE REFERRAL LETTER
1. Article 38 of Title 38 of the Colorado Revised Statutes (C.R.S.) is the section of law that guides the lawful public trustee foreclosure in the state of Colorado. This section of law takes effect after communication and attempts to bring your loan current have already occurred between you and your lender and the decision is made by your lender to start a foreclosure. The lender must submit a “foreclosure referral letter” with documentation and information to the public trustee along with a fee to commence the foreclosure. The “foreclosure referral letter” must be date stamped (this does not mean a date pre-printed in by the attorney) by the public trustee because compliance with the very next step depends on the date when this referral letter is submitted. So if it is not date stamped, it leaves open for retrofitting later if they screwed this one up, which they very often do.
2. Included in the initial documents is a copy of your deed of trust, your promissory note and the “Notice of Election and Demand” which we will discuss in the next step. The purpose of the requirement to furnish a copy of the deed of trust is simple. The public trustee needs to know who the proper lender is to invoke the assistance of the public trustee in the sale of your home. The public trustee cannot simply foreclose and sale your home for just anyone. The public trustee is only legally authorized to act on behalf of the “lender” that is named in the deed of trust. Remember, the public trustee gets his/her powers to act ONLY from the “power of sale provisions” in the deed of trust. Furthermore, a deed of trust is governed under “contractual law” in the state of Colorado. This is important to know as you will see later.
“To resolve the issue presented here, we must interpret the note and deed of trust. The primary goal of contract interpretation is to determine and give effect to the intention of the parties. The intent of the parties to a contract is to be determined primarily from the language of the instrument itself. Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to the plain language. USI Properties East, Inc. v. Simpson, 938 P.2d 168 (Colo.1997). This was iterated by the Colorado Supreme Court in 1983, Kirchner v. Judge John F. Sanchez, 661 P.2d 1161 (1983).
3. The promissory note (referred to as an “evidence of debt” or “credit agreement”) is a contract and the deed of trust (referred to as a “security instrument”) is a contract. The promissory note is a contract between you (the mortgagor or borrower) and the lender (the mortgagee). The deed of trust is a contract between the borrower, the lender and the public trustee. If the lender designated in the deed of trust/contract is Countrywide Home Loans, then the contract specifically allows Countrywide to invoke the help of the public trustee to foreclose on your home; no one else (Later, we’ll talk about what happens when your loan is sold). This is the purpose of submitting a copy of your deed of trust to the public trustee at the beginning. This information should prevent the public trustee from foreclosing on your home for just any ol’ Robby, Bobby or Little Billy that comes in and wants to foreclose on a home!
4. In the present environment where mortgage loans are sold (endorsed, assigned or transferred) from one bank to another, it is imperative that laws be put in effect to assure that when a foreclosure takes place, only one bank is legally qualified or entitled to initiate the foreclosure. C.R.S. 38-38-101(6) which defines who may initiate the foreclosure sets forth in its subsection (a) in order to identify the correct bank:
Proper endorsement or assignment of an evidence of debt shall include the original endorsement or assignment or a certified copy of an endorsement or assignment recorded in the county where the property being foreclosed is located.
(how much simpler can you make it than that??)
5. Remember, the “evidence of debt” is just another name for the “promissory note”. Notice also the mandatory language “shall” set forth in C.R.S. 38-38-101(6)(a). There must be a recorded assignment or endorsement of the promissory note in the public records of the county where the property is located. The public trustee is required to verify that there is a recorded assignment to the lender foreclosing on your home BEFORE the public trustee moves forward with the foreclosure. This was the initial purpose of the “10 business days” time period required in C.R.S. 38-38-102(1) of the process. It would give the public trustee the necessary time window to verify that the lender initiating the foreclosure was in fact the lender legally authorized to do so.
6. Legally speaking, if someone sued you claiming that you defaulted on a loan, the first order of business would be to make sure that the person suing you was in fact the person to whom the money was owed, which is a right inherent in due process of law (the right to question your accuser). In the rare event where more than one bank was claiming you owed them money and were attempting to foreclose, one would simply have to go to the public records where the assignment or endorsement was recorded and the bank first recorded would prevail......just that simple.
CONSTITUTIONAL CHALLENGE
7. The added subsection to C.R.S. 38-38-101(6), subsection (b) is where the Constitutional question arises; more specifically, whether or not a homeowner receives the “due process of law” guaranteed by the 5th and 14th Amendments to the United States Constitution.
“No person shall be deprived of life, liberty or property without due process of law”
8. Subsection (b) reads as follows:
(b) Notwithstanding the provisions of paragraph (a) of this subsection (6), the original evidence of debt or a copy thereof without proper endorsement or assignment shall be deemed to be properly endorsed 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 sub-paragraph (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.
9. In the simplest terms, subsection (b) means that the bank's attorney can go into court and tell the judge that there is no need to make a determination of whether his client (the bank) is the bank legally authorized to foreclose simply because the attorney says so. In other words, “don't worry judge, you got my word that my client is the right bank”. Where on earth and what KANGAROO COURT allows for a lawyer to vouch for the allegations of his client.....unchecked and unproven? This is NOT due process.
NOTICE OF ELECTION AND DEMAND FOR SALE (NED)
11. Next, the Notice of Election and Demand (NED), a copy of which is already prepared by the attorney (or course) for the foreclosing lender, must be filed with the Clerk and Recorder’s Office in the county where the property is located. C.R.S. 38-38-101 allows for the “holder of the evidence of debt” (the note holder, not necessarily the owner or even the rightful bank) to commence the action in the Public Trustee’s office by filing this notice. Allowing the “holder” to commence the foreclosure action in the Public Trustee’s office takes into account that the loan may have been sold or transferred and that someone other than the lender designated on the loan documents is commencing the foreclosure. The problem here, is the lack of official tracking of the sale and/or transfer of your loan to assure that your home is being foreclosed on by the proper bank.
12. The filing of the NED in the public record gives “public notice” that a foreclosure proceeding has begun on your property. This must be done no later than 10 working days from when the Public Trustee receives it (remember ¶ #2 above). This is one of those statutory requirements that must be met for the public trustee’s deed to be valid at the end of the foreclosure. This is not a loophole, whatever that is, it’s a statutory requirement inserted by the legislature. Notice below, §38-38-102(1) uses the word “shall”. This is mandatory language as used in law, distinguishable from discretionary language such as “may”. The Public Trustee shall record the NED no later than 10 working days from receiving it.
C.R.S. §38-38-102(1) seems to be pretty clear: No later than ten business days following the receipt of the notice of election and demand, the public trustee shall cause the notice to be recorded in the office of the county clerk and recorder of the county where the property described in the notice is located.
13. If the trustee fails to meet this requirement, the public trustee’s deed talked about earlier in part 1 ¶ #11, is invalid, void and cannot legally transfer title to your property to the lender. In Colorado, as in any state, a void deed cannot be used to convey legal title. The Colorado Supreme Court made this absolutely clear in 1960. That’s right; the home still belongs to you......this is the law!!
“Void deeds do not convey title, and are wholly ineffective to interrupt one's right to possession of property therein described.” Concord Corporation v. Huff 144 Colo. 72, 355 P.2d 73 (1960).
14. Shortly after the NED is filed, the Public Trustee must set a date to sell your home at public auction. (notice the mandatory language “shall”)
C.R.S. §38-38-108 Date of Sale. (1) Whenever property is to be sold following the foreclosure of any deed of trust or other lien by the officer, the initial date of sale shall be: “ In the case of a sale of property by the public trustee that is not agricultural property, no less than one hundred ten calendar days nor more than one hundred twenty-five calendar days after the date of recording of the notice of election and demand”
ADVERTISING YOUR HOME FOR SALE
15. Your foreclosure file is set up at the Public Trustee’s office and you can view this file at anytime during business hours, with no limitation and no need to explain or justify your reason for viewing the file; simply request to see your foreclosure file or any document in it.
16. Pursuant to C.R.S. §38-38-103(5)(a), the Public Trustee must adhere to a set schedule of advertising your home for sale in a publication of general circulation in the County in which the property is located. The advertising shall be for at least four consecutive weeks or the time period specified in the deed of trust if the period in the deed of trust is longer (remember, it’s the deed of trust that allows this process thru the public trustee).
17. The Public Trustee must mail you a copy of the publication advertising the sale of your home for your records. You can request a copy from your foreclosure file at the Public Trustee’s office. This is the law and if not complied with will void the process from that point forward.
We will now discuss the steps in the foreclosure process in their lawful order to guide you and help you understand the protections mentioned earlier. Knowing this process will equip you with the necessary knowledge to guard against the omission of your lawful protections and to determine if your foreclosure was handled or is being handled in a manner that will constitute a valid and lawful foreclosure. PLEASE KNOW THAT VERY FEW, I MEAN VERY FEW FORECLOSURES COMPLY WITH THE LAW, SO ARM YOURSELF WITH THIS INFORMATION!!
FORECLOSURE REFERRAL LETTER
1. Article 38 of Title 38 of the Colorado Revised Statutes (C.R.S.) is the section of law that guides the lawful public trustee foreclosure in the state of Colorado. This section of law takes effect after communication and attempts to bring your loan current have already occurred between you and your lender and the decision is made by your lender to start a foreclosure. The lender must submit a “foreclosure referral letter” with documentation and information to the public trustee along with a fee to commence the foreclosure. The “foreclosure referral letter” must be date stamped (this does not mean a date pre-printed in by the attorney) by the public trustee because compliance with the very next step depends on the date when this referral letter is submitted. So if it is not date stamped, it leaves open for retrofitting later if they screwed this one up, which they very often do.
2. Included in the initial documents is a copy of your deed of trust, your promissory note and the “Notice of Election and Demand” which we will discuss in the next step. The purpose of the requirement to furnish a copy of the deed of trust is simple. The public trustee needs to know who the proper lender is to invoke the assistance of the public trustee in the sale of your home. The public trustee cannot simply foreclose and sale your home for just anyone. The public trustee is only legally authorized to act on behalf of the “lender” that is named in the deed of trust. Remember, the public trustee gets his/her powers to act ONLY from the “power of sale provisions” in the deed of trust. Furthermore, a deed of trust is governed under “contractual law” in the state of Colorado. This is important to know as you will see later.
“To resolve the issue presented here, we must interpret the note and deed of trust. The primary goal of contract interpretation is to determine and give effect to the intention of the parties. The intent of the parties to a contract is to be determined primarily from the language of the instrument itself. Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to the plain language. USI Properties East, Inc. v. Simpson, 938 P.2d 168 (Colo.1997). This was iterated by the Colorado Supreme Court in 1983, Kirchner v. Judge John F. Sanchez, 661 P.2d 1161 (1983).
3. The promissory note (referred to as an “evidence of debt” or “credit agreement”) is a contract and the deed of trust (referred to as a “security instrument”) is a contract. The promissory note is a contract between you (the mortgagor or borrower) and the lender (the mortgagee). The deed of trust is a contract between the borrower, the lender and the public trustee. If the lender designated in the deed of trust/contract is Countrywide Home Loans, then the contract specifically allows Countrywide to invoke the help of the public trustee to foreclose on your home; no one else (Later, we’ll talk about what happens when your loan is sold). This is the purpose of submitting a copy of your deed of trust to the public trustee at the beginning. This information should prevent the public trustee from foreclosing on your home for just any ol’ Robby, Bobby or Little Billy that comes in and wants to foreclose on a home!
4. In the present environment where mortgage loans are sold (endorsed, assigned or transferred) from one bank to another, it is imperative that laws be put in effect to assure that when a foreclosure takes place, only one bank is legally qualified or entitled to initiate the foreclosure. C.R.S. 38-38-101(6) which defines who may initiate the foreclosure sets forth in its subsection (a) in order to identify the correct bank:
Proper endorsement or assignment of an evidence of debt shall include the original endorsement or assignment or a certified copy of an endorsement or assignment recorded in the county where the property being foreclosed is located.
(how much simpler can you make it than that??)
5. Remember, the “evidence of debt” is just another name for the “promissory note”. Notice also the mandatory language “shall” set forth in C.R.S. 38-38-101(6)(a). There must be a recorded assignment or endorsement of the promissory note in the public records of the county where the property is located. The public trustee is required to verify that there is a recorded assignment to the lender foreclosing on your home BEFORE the public trustee moves forward with the foreclosure. This was the initial purpose of the “10 business days” time period required in C.R.S. 38-38-102(1) of the process. It would give the public trustee the necessary time window to verify that the lender initiating the foreclosure was in fact the lender legally authorized to do so.
6. Legally speaking, if someone sued you claiming that you defaulted on a loan, the first order of business would be to make sure that the person suing you was in fact the person to whom the money was owed, which is a right inherent in due process of law (the right to question your accuser). In the rare event where more than one bank was claiming you owed them money and were attempting to foreclose, one would simply have to go to the public records where the assignment or endorsement was recorded and the bank first recorded would prevail......just that simple.
CONSTITUTIONAL CHALLENGE
7. The added subsection to C.R.S. 38-38-101(6), subsection (b) is where the Constitutional question arises; more specifically, whether or not a homeowner receives the “due process of law” guaranteed by the 5th and 14th Amendments to the United States Constitution.
“No person shall be deprived of life, liberty or property without due process of law”
8. Subsection (b) reads as follows:
(b) Notwithstanding the provisions of paragraph (a) of this subsection (6), the original evidence of debt or a copy thereof without proper endorsement or assignment shall be deemed to be properly endorsed 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 sub-paragraph (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.
9. In the simplest terms, subsection (b) means that the bank's attorney can go into court and tell the judge that there is no need to make a determination of whether his client (the bank) is the bank legally authorized to foreclose simply because the attorney says so. In other words, “don't worry judge, you got my word that my client is the right bank”. Where on earth and what KANGAROO COURT allows for a lawyer to vouch for the allegations of his client.....unchecked and unproven? This is NOT due process.
NOTICE OF ELECTION AND DEMAND FOR SALE (NED)
11. Next, the Notice of Election and Demand (NED), a copy of which is already prepared by the attorney (or course) for the foreclosing lender, must be filed with the Clerk and Recorder’s Office in the county where the property is located. C.R.S. 38-38-101 allows for the “holder of the evidence of debt” (the note holder, not necessarily the owner or even the rightful bank) to commence the action in the Public Trustee’s office by filing this notice. Allowing the “holder” to commence the foreclosure action in the Public Trustee’s office takes into account that the loan may have been sold or transferred and that someone other than the lender designated on the loan documents is commencing the foreclosure. The problem here, is the lack of official tracking of the sale and/or transfer of your loan to assure that your home is being foreclosed on by the proper bank.
12. The filing of the NED in the public record gives “public notice” that a foreclosure proceeding has begun on your property. This must be done no later than 10 working days from when the Public Trustee receives it (remember ¶ #2 above). This is one of those statutory requirements that must be met for the public trustee’s deed to be valid at the end of the foreclosure. This is not a loophole, whatever that is, it’s a statutory requirement inserted by the legislature. Notice below, §38-38-102(1) uses the word “shall”. This is mandatory language as used in law, distinguishable from discretionary language such as “may”. The Public Trustee shall record the NED no later than 10 working days from receiving it.
C.R.S. §38-38-102(1) seems to be pretty clear: No later than ten business days following the receipt of the notice of election and demand, the public trustee shall cause the notice to be recorded in the office of the county clerk and recorder of the county where the property described in the notice is located.
13. If the trustee fails to meet this requirement, the public trustee’s deed talked about earlier in part 1 ¶ #11, is invalid, void and cannot legally transfer title to your property to the lender. In Colorado, as in any state, a void deed cannot be used to convey legal title. The Colorado Supreme Court made this absolutely clear in 1960. That’s right; the home still belongs to you......this is the law!!
“Void deeds do not convey title, and are wholly ineffective to interrupt one's right to possession of property therein described.” Concord Corporation v. Huff 144 Colo. 72, 355 P.2d 73 (1960).
14. Shortly after the NED is filed, the Public Trustee must set a date to sell your home at public auction. (notice the mandatory language “shall”)
C.R.S. §38-38-108 Date of Sale. (1) Whenever property is to be sold following the foreclosure of any deed of trust or other lien by the officer, the initial date of sale shall be: “ In the case of a sale of property by the public trustee that is not agricultural property, no less than one hundred ten calendar days nor more than one hundred twenty-five calendar days after the date of recording of the notice of election and demand”
ADVERTISING YOUR HOME FOR SALE
15. Your foreclosure file is set up at the Public Trustee’s office and you can view this file at anytime during business hours, with no limitation and no need to explain or justify your reason for viewing the file; simply request to see your foreclosure file or any document in it.
16. Pursuant to C.R.S. §38-38-103(5)(a), the Public Trustee must adhere to a set schedule of advertising your home for sale in a publication of general circulation in the County in which the property is located. The advertising shall be for at least four consecutive weeks or the time period specified in the deed of trust if the period in the deed of trust is longer (remember, it’s the deed of trust that allows this process thru the public trustee).
17. The Public Trustee must mail you a copy of the publication advertising the sale of your home for your records. You can request a copy from your foreclosure file at the Public Trustee’s office. This is the law and if not complied with will void the process from that point forward.