- EVICTION ACTION
- TIME TO MOVE? NOT QUITE! After the sale and after the redemption periods of the junior lien holders has expired, the lender or bank that foreclosed must file an eviction action. The eviction, filed under the Forcible Entry and Detainer statute, C.R.S. 13-40-104 et seq., is triggered by the filing a complaint in the county court in the county where the property is located. The complaint, along with a summons informing you of the date, time and where to appear and file your answer, must be personally served upon you if the party attempting to evict seeks a money judgment in addition to possession. The summons and complaint must be mailed to you and posted on your door if possession is all that is sought.
- However, before an eviction can be started, the landlord/owner must give the occupant/homeowner notice of what is required. Three-Day Notice is a condition precedent and a jurisdiction of the court requires that notice must be given prior to the filing or the complaint. If an occupant/homeowner is not given the required notice first, the court has no jurisdiction to hear and rule on the complaint.....simple as that.
- The eviction action is customarily filed in the county court. The eviction action the lender files in county court is based upon the public trustee’s deed or a deed from a sheriff's sale that they can now say gives them title and ownership to your home, and therefore a right to kick you out.
- C.R.S. 13-40-104, subsections f and g are the two subsections that relate directly to a non-judicial public trustee foreclosure (f), and the judicial foreclosure using the sheriff (g).
(f) When the property has been duly sold under any power of sale, contained in any mortgage or trust deed that was executed by such person, or any person under whom such person claims by title subsequent to date of the recording of such mortgage or trust deed, and the title under such sale has been duly perfected and the purchaser at such sale, or his or her assigns, has duly demanded the possession thereof;
(g) When the property has been duly sold under the judgment or decree of any court of competent jurisdiction and the party or privies to such judgment or decree, after the expiration of the time of redemption when redemption is allowed by law, refuses or neglects to surrender possession thereof after demand therefor has been duly made by the purchaser at such sale, or his or her assigns;
- Going back to the Rule 120 hearing that we talked about earlier, there’s a provision in that section of law, specifically, Rule 120(d) that states: “The granting of any such motion shall be without prejudice to the right of any person aggrieved to seek injunctive or other relief in any court of competent jurisdiction…” What this clause means is, if the judge in the Rule 120 hearing grants the “Order Authorizing Sale”, lawful or otherwise, you can still file for an injunction or file any other appropriate action regarding the issues of why your foreclosure was unlawful in any courtroom of “competent jurisdiction”; meaning, any court that has the jurisdiction (or legal authority) to hear the claims associated with the lawsuit you file (other relief you seek). Normally, a court of competent jurisdiction could even include the court that issued the order to sell your home. For example, the District Court for the City and County of Denver issues orders authorizing sale in Rule 120 proceedings. The District Court for the City and County of Denver could also be one of the courts a homeowner could use to sue the bank regarding the improprieties of the foreclosure after the order authorizing sale was issued.
- Ok, so here we are. The foreclosure is supposedly complete (even though we know it was illegal because of several omissions and improprieties the lender committed in the process or it may have been a predatory/illegal loan to begin with), now the lender has filed for eviction. You must respond to the summons to appear in court on the eviction action and pay your response fee. This is your opportunity to fight your foreclosure again in another court of competent jurisdiction, as we spoke of in the preceding paragraph. KEEP IN MIND, YOU STILL HAVE EVERY RIGHT TO REMAIN IN YOUR HOME UNTIL THE EVICTION PROCEEDING IS COMPLETE. They can’t just put you out or turn the utilities off or any other conduct similar.
- The reason the eviction is commenced in the county court is because the county court is limited in the subject matter that can be resolved there. This is expressly set forth in C.R.S. 13-6-104, C.R.S. 13-6-105 and Colo. Const. Art. VI, Sec 17.
- C.R.S. 13-6-104 confers concurrent jurisdiction of the county court with the district court except when such cases involve the boundary or title to real property.
- C.R.S. 13-6-105 further states that when issues, that are within the jurisdiction of this court, are connected to a matter that isn’t within the jurisdiction of this court, the matter in its entirety must be transferred to the district court; this, in addition to §105’s explicit iteration that matters affecting boundaries or title to real property cannot be heard in a county court.
- See also Colo. Const. Art. VI, Sec 17 in relevant part: County courts shall have such civil, criminal, and appellate jurisdiction as may be provided by law, provided such courts shall not have jurisdiction of felonies or in civil cases where the boundaries or title to real property shall be in question…
- Ok......so what we have here are 3 very concise and definitive sections of law that state that a title dispute of any kind cannot be heard in a county court. A county court judge has no power, authority, jurisdiction or otherwise to decide a case where the ownership of a property is unresolve or “in question”.
“In Colorado, forcible entry and unlawful detainer action in county court is limited to the question of possession, and title to the land involved is not a matter for resolution there.” Aasgaard v. Spar Consol Min. & Devel. Co. 185 Colo. 157, 522 P.2d 726 (1974).
- Why is this important? This is extremely important because you are contesting the validity and legality of your foreclosure and if a foreclosure is illegal in some way, for whatever reason, then the instrument used to transfer the title (public trustee's deed of sheriff's deed) is void!!!!! A VOID DEED CANNOT CONVEY TITLE. That's correct.....you still own your home and because the bank's complaint is claiming ownership to your home and your counterclaim is that you still own your home, the county court cannot resolve the eviction complaint. The case in its entirety has to be taken out of the county court and transferred to the district court.
"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)
- Colorado County Court Rule 313(b)(2) explains the procedure for letting the county court judge know of your right and intent to have the case transferred out of his/her court to the district court.
- In other words, 313(b)(2) requires that 2 things be done. First, when you answer the complaint you must include your counterclaim of why you still own your home and request in the answer that the case be transferred to the district court. Secondly, you must pay the district court filing fee for a complaint instead of the county court response fee for the complaint filed by the bank in the county court. Once you do these 2 things, the law mandates that any proceedings in the county court stop.......and that the case be re-assigned to a judge in the district court!!!
- 313(b)(2)'s express purpose was to usurp the imminent scenario whereby county court judges would attempt to make the determination, in their court, whether or not an actual title question was at issue.....a determination which would inevitably be made in favor of the bank; the consequent result of which a homeowner would be evicted before the opportunity to be heard on the issue of ownership.
- Collusion exists with the state court judges and the attorneys representing the banks......this is a fact.
- As C.R.S. 13-6-105 explains, that when issues, that are within the jurisdiction of the county court, are connected to a matter that isn’t within the jurisdiction of the county court, the matter in its entirety must be transferred to the district court. If a judge suspects that you are not familiar with or do not understand this C.R.S. 13-6-105, as a further attempt to subvert the law and assist the attorney in expediting the eviction, the attorney and/or the judge will suggest that the case be “bifurcated”.
- To bifurcate a case is to split it up and hear the issues separately. The issues here are: 1) title and ownership of your home and; 2) possession. Since the county court cannot decide the title issue, the judge and/or the attorney will recommend that the title issue be sent to the district court and that the possession issue remain in the county court. This way, the judge in the county court can kick you out before you have any opportunity to litigate your illegal foreclosure/ownership issue in the district court. EVERY COUNTY COURT WILL ATTEMPT THIS IF THEY CAN GET AWAY WITH IT.....DO NOT UNDERESTIMATE THE CORRUPTION IN THE STATE COURTS!
- Not only is this further illegal because the language of C.R.S. 13-6-105 cannot be clearer, the legal and logical progression of deciding those two issues requires the ownership issue be heard and decided first.
(b) If at the time the action is commenced the defendant possesses a counterclaim against the plaintiff that is not within the jurisdiction of the county court, exclusive of interest and costs, the defendant may:
(2) File the counterclaim together with the answer in the pending county court action and request in the answer that the action be transferred to the district court. Upon filing the answer and counterclaim, the defendant shall tender the district court filing fee for a complaint. Upon compliance by the defendant with the requirements of this section, all county court proceedings shall be discontinued and the clerk of the county court shall certify all records in the case and forward the docket fee to the district court. In the event the counterclaim which caused the removal is subsequently dismissed, the case may be remanded to the county court for further proceedings.
- A determination of possession cannot precede a determination of title. Schuler v. Oldervik, 143 P.3d 1197 (2006).