PURPOSE OF PUBLIC TRUSTEE AND YOUR RIGHTS
1. The setback of losing your home, not to mention through a process that violates your rights, is more serious than you think and will haunt you for years. A foreclosure on your credit will keep you in a category where the only type of loan you can qualify for is a loan that will put you right back where you are now!
You must fight your foreclosure from the beginning to the end regardless of whether you’re behind on your mortgage payments!
START BY KNOWING KEY PARTS OF THE FORECLOSURE PROCESS.......STEP BY STEP
2. In 1894 a statute was passed in Colorado creating the office of the Public Trustee in each county in the state. This provided a method of the foreclosure by “advertisement and sale by the Public Trustee” of instruments use to secure payment to the lender called “deeds of trust”. These deeds of trust are executed to the Public Trustee and provide the time and manner of a Public Trustee foreclosure once you have defaulted on the terms of the promissory note (referred to as the “evidence of debt”). In other words, beginning in 1894, if you took out a loan in Colorado to purchase a home, in order for the Public Trustee, who is presumed to be an “unbiased” public official, is made a party to the deed of trust, along with the lender and the borrower. The other purpose served by a deed of trust is that it secures the money owed on your promissory note, which gives the lender the right to direct the public trustee to take your home and resell it if you can’t make your monthly payments.
3. Simply put, the Public Trustee’s “powers” are derived from specific provisions outlined in the deed of trust. A Public Trustee has no power to sell your home until you have defaulted on the terms of your promissory note. When a default occurs, the Public Trustee then must follow the mandatory foreclosure process, step by step, according to Colorado Revised Statutes (C.R.S.) §38-38-101 et.seq. This power and legal authority, triggered by your breach in the terms of your promissory note, is given to the trustee by provisions in the deed of trust, and no other instrument. The Supreme Court of Colorado made this clear in 1998.
“Foreclosure of a deed of trust by public trustee's sale under the applicable statutes is activated by a power of sale in the deed of trust. See § § 38-38-101 to -701, 10 C.R.S. (1997)” Plymouth Capital Co., Inc. v. Dist. Ct. of Elbert County, 955 P.2d 1014, 1017 (Colo. 1998)(en banc)
4. This foreclosure process requires a default on a valid promissory note, secured by a valid deed of trust and the deed of trust must designate the public trustee of the county where the property is located, as the public trustee.
FIRST THINGS FIRST
5. Sadly, so many people in this Country have been considerably “dumbed down” in recent years. The legal community could not ask for a more ideal situation because the more dumbed down we are, the more the “legal ease” starts to look like “Chinese”. You never know if an attorney is telling the truth about what a particular law states, and trying to decipher a judge’s ruling is next to impossible. This is intentional and is precisely where they want you and they’ll go to great lengths to maintain this status quo. The less you know about the law and how to read and understand it.....the more you remain at the mercy of a legal profession; a profession now infested with corruption and greed.
6. Moreover, the public officials, such as the Public Trustees and/or Deputy Public Trustees and their staff are themselves insufficiently trained and completely reliant upon the interpretations and instructions of attorneys in carrying out their duties. Bottom line, you have ONE alternative.......know and understand the law yourself!!!!
7. Nobody has a monopoly on the law!!
Although First Amendment protects right of all persons to speak freely and to associate together in groups to further their lawful interests, exercise of those rights by public employees is not absolute when it conflicts with their roles as public employees. U.S.C.A. Const.Amend. 1. Johnson v. Houston Independent School Dist. 930 F.Supp. 276 S.D.Tex.,1996.
8. What this case means is simply this. The First Amendment to the United States Constitution protects the rights of all persons to talk about the law, to discuss it with others and most importantly, to assist each other in their understanding of the law and the legal process.....period! No one can deprive you of this right.
9. As we talked about in another section of this site, the public trustee foreclosure under C.R.S. 38-38-101 et seq., which is currently under scrutiny by the Federal Court, is a “non-judicial foreclosure”. Where Colorado is unique though, is its requirement of a quasi-judicial component to the public trustee foreclosure, the Colorado Rules of Civil Procedure (C.R.C.P.) Rule 120, which we will discuss later.
10. C.R.S. §38-38-101 et. seq., prescribes various steps that must be done in succession in a foreclosure by the Public Trustee. These steps involve, verifications of proper documentation, setting the sale date, advertisement of the sale date in certain types of publications, fulfilling notice requirements of various steps in the process, notifying you of certain rights and time frames regarding your right to bring your loan current, so forth and so on.
11. There is a series of steps that must be taken from the time such proceedings are commenced until the very last step, which is the execution and delivery of the Public Trustee’s Deed. The Public Trustee’s Deed is the deed that transfers title to your home over to the lender and can only be legally executed and issued if the process has been followed correctly.. C.R.S. §38-38-504 states very clearly in “black and white”:
C.R.S. §38-38-504 states: “Any deed executed by the public trustee or sheriff, or other official under this article, shall be prima facie evidence of compliance with all statutory requirements for the sale and execution of the deed and evidence of the truth of the recitals contained in such deed.”
12. Notice the operative word “all”. It doesn’t say compliance with “some”, it says “all”. All statutory requirements must be complied with. Additionally, “Prima facie” simply means that the deed will hold up in court or otherwise be considered valid unless you can show that all of the statutory requirements were not complied with by the public trustee. Prima facie does not mean absolute. It will however, become absolute if uncontested.