SUMMARY 

December 13, 2018 

2018COA174

No. 17CA0156, Bank of New York v. Peterson — Creditors and 

Debtors — Foreclosures — Forcible Entry and Detainer; 

Limitation of Actions — When a Cause of Action Accrues 

Defendants-Appellants assert that the 2015 foreclosure and 

the resulting judgment of possession cannot be legally enforced 

because the six-year statute of limitations (for an action for default 

on a promissory note) had already expired. In particular, they claim 

that Bank of New York Mellon, formerly known as Bank of New York 

(the Bank), triggered the statute of limitations in 2008 when it 

accelerated the obligation on the note. 

The Bank admits that it accelerated the note in 2008 by 

initiating foreclosure proceedings but argues that it abandoned the 

acceleration in 2010 by withdrawing the foreclosure and providing 

defendants-appellants another opportunity to cure the default. The 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
Bank asserts that the abandonment restored the note’s original 

maturity date for purposes of accrual. A division of the court of 

appeals agrees and therefore affirms. 

 
COLORADO COURT OF APPEALS 2018COA174

Court of Appeals No. 17CA0156 

Archuleta County District Court No. 15CV10 

Honorable Gregory G. Lyman, Judge 

Bank of New York Mellon, f/k/a Bank of New York, as Trustee, on behalf of the 

Holders of the Alternative Loan Trust 2007-16CB Mortgage Pass Through 

Certificates, Series 2007-16-CB, its Successors and Assigns, 

Plaintiff-Appellee, 

v. 

Timothy Peterson and Dyan Frances Parker, 

Defendants-Appellants. 

JUDGMENT AFFIRMED 

Division V 

Opinion by JUDGE LICHTENSTEIN 

Román and Furman, JJ., concur 

Announced December 13, 2018 

Akerman, LLP, Justin D. Balser, Taylor T. Haywood, Denver, Colorado, for 

Plaintiff-Appellee 

Blair K. Drazic, Loma, Colorado, for Defendants-Appellants 
1 

¶ 1 Plaintiff-Appellee, Bank of New York Mellon, formerly known 

as Bank of New York (the Bank), filed an unlawful detainer action 

after acquiring title to a house through foreclosure. DefendantsAppellants, Timothy Peterson and Dyan Frances Parker, appeal the 

district court’s judgment granting the Bank possession. 

¶ 2 Peterson and Parker assert that the 2015 foreclosure and the 

resulting judgment of possession cannot be legally enforced because 

the six-year statute of limitations (for an action for default on a 

promissory note) had already expired.1 In particular, they claim 

that the Bank triggered the statute of limitations in 2008 when it 

accelerated the obligation on the note. 

¶ 3 The Bank admits that it accelerated the note in 2008 by 

initiating foreclosure proceedings, but it argues that it abandoned 

the acceleration in 2010 by withdrawing the foreclosure and 

providing Peterson’s son (the borrower) another opportunity to cure 

the default. The Bank asserts that the abandonment restored the 

note’s original maturity date for purposes of accrual. We agree with 

the Bank and, therefore, we affirm. 

 

1 We do not address the propriety of challenging an underlying 

foreclosure in a subsequent forcible entry and detainer action. 
2 

I. Background 

¶ 4 On May 14, 2007, the borrower obtained a $261,000 loan 

evidenced by a promissory note for a house in Archuleta County, 

Colorado. The promissory note required monthly payments through 

June 1, 2037, and contained an optional acceleration clause. The 

borrower secured the loan with a deed of trust on the property, and 

the Bank was the holder of the note and deed of trust. Peterson is 

the borrower’s attorney-in-fact. 

¶ 5 The borrower soon thereafter stopped making payments. On 

October 17, 2007, he received a letter from the Bank titled “NOTICE 

OF DEFAULT AND ACCELERATION.”2 The letter provided that the 

borrower had the “right to cure the default,” but that if he did not 

cure by November 16, 2007, 

the mortgage payments will be accelerated

with the full amount remaining accelerated 

and becoming due and payable in full, and 

foreclosure proceedings will be initiated at that 

time. 

(Emphasis in original.) 

 

2 The letter was sent by mortgage servicer, Countrywide Home 

Loans, on behalf of the Bank (the holder of the promissory note). 
3 

¶ 6 The borrower received another letter, this time demanding that 

he cure the default by December 16, 2007. The borrower did not 

respond to either letter. 

¶ 7 The Bank did not take any action on the default until October 

2008. Meanwhile, the borrower and his father, Peterson, executed 

an “Option to Purchase” agreement stating that Peterson would 

make the monthly payments due on the note. The agreement 

purported to grant Peterson “full power of attorney,” including 

“negotiating refinancing, payment plans, financial, and all legal 

issues” for the property. 

¶ 8 After executing the agreement, Peterson and Parker began 

occupying the property. 

¶ 9 Then, in October 2008, the Bank initiated foreclosure 

proceedings (the 2008 foreclosure). On December 5, 2008, the 

Bank moved for a court order authorizing the sale of the property 

pursuant to C.R.C.P. 120. But later that month, the Bank 

approved the borrower’s request for a loan modification, whereby 

the borrower would owe a $2017.97 monthly payment. That same 

month, Peterson remitted a $2017.97 check on the borrower’s 
4 

behalf. But neither Peterson nor the borrower made any more 

payments. 

¶ 10 Even so, on March 26, 2010, the Bank withdrew the 2008 

foreclosure. It subsequently sent the borrower a new acceleration 

warning letter providing him another opportunity to cure the 

default. 

¶ 11 Nearly five years later, in January 2015, the Bank initiated 

and pursued foreclosure proceedings (the January 2015 

foreclosure) and the district court authorized the property’s sale.3 

The Bank purchased the property in the foreclosure sale. 

¶ 12 Two months later, the Bank commenced the present action to 

acquire possession and evict Peterson and Parker from the 

property. 

¶ 13 Peterson and Parker filed an answer and affirmative defense 

and counterclaims. They asserted that they had superior title to 

the property, contending that the statute of limitations expired 

 

3 On appeal, the Bank filed a motion requesting this court to take 

judicial notice of a 2008 notice of election and demand for sale, the 

2010 withdrawal of this notice, and a 2015 notice of election and 

demand for sale—all of which were recorded with the Archuleta 

County Clerk and Recorder. We take judicial notice of the fact that 

these documents were recorded. See Doyle v. People, 2015 CO 10, ¶ 

8. 
5 

before the January 2015 foreclosure. They argued that the Bank 

accelerated the loan in 2008, which triggered the six-year statute of 

limitations, and, thus, the January 2015 foreclosure was void. They 

moved to preliminarily enjoin the Bank from expelling them. 

¶ 14 The Bank moved to dismiss the counterclaims pursuant to 

C.R.C.P. 12(b)(5). The Bank argued that it did not accelerate the 

loan in 2008.4 But even if it did, it argued its withdrawal of the 

foreclosure in 2010 abandoned any prior acceleration. Either way, 

it contended that the six-year limitations period had not expired by 

the time of the January 2015 foreclosure. 

¶ 15 The district court agreed with the Bank and concluded as 

follows: 

 The Bank “ma[de] a persuasive argument” that the 

documents it filed and sent to the borrower did not 

accelerate the loan. 

 Even if the loan was accelerated prior to January 8, 

2009, the acceleration was abandoned when the Bank 

withdrew the 2008 foreclosure. 

 

4 On appeal, the Bank now admits that it accelerated the loan in 

2008. 
6 

¶ 16 The court concluded that the foreclosure was conducted 

lawfully and the Bank had the “superior right to possession of the 

Property.” It ordered Peterson and Parker to vacate, but stayed the 

order conditioned on monthly payments of $1000 into the court 

registry. The court subsequently entered judgment for the Bank on 

its claim and on the defendants’ counterclaims. It awarded the 

Bank $45,624.40 in attorney fees and costs. 

¶ 17 Peterson and Parker now appeal the judgment and the 

attorney fee and cost award. 

II. Standing 

¶ 18 Because Peterson and Parker assert a possessory interest in 

the property that secured the note, we conclude they have standing 

in the current action. 

¶ 19 Traditional standing principles do not apply to defendants who 

raise an affirmative defense in response to a complaint as there is 

little concern that defendants will advance claims in which they 

have no stake. Mortg. Invs. Corp. v. Battle Mountain Corp., 70 P.3d 

1176, 1182, 1182 n.7 (Colo. 2003). Indeed, “a defendant may 

assert an affirmative defense in response to a complaint, which 

asserts that the defendant has an interest in the action.” Id.
7 

(emphasis added); see also Sandstrom v. Solen, 2016 COA 29, ¶¶ 

14-20 (if a party’s claim to a parcel of land injures a defendant’s 

claim to that same property, the defendant has established an 

injury-in-fact to a legally protected interest). 

III. Statute of Limitations and the January 2015 Foreclosure 

¶ 20 Peterson and Parker argue that the 2015 foreclosure was 

barred by the six-year statute of limitations. They contend that the 

statute was triggered in 2008 when the Bank accelerated the loan. 

¶ 21 The Bank now admits that it accelerated the loan in 2008,5

but argues that it abandoned the acceleration in 2010, thereby 

restoring the note’s original maturity date for purposes of accrual. 

We agree with the Bank, and therefore conclude its 2015 

foreclosure was timely. 

A. Standard of Review 

¶ 22 “Whether a statute of limitations bars a particular claim is a 

question of fact.” Trigg v. State Farm Mut. Auto. Ins., 129 P.3d 

 

5 The Bank concedes it accelerated the loan in October 2008 when 

it initiated foreclosure proceedings by “deliver[ing] its first notice of 

election and demand to the public trustee.” See Hassler v. Account 

Brokers of Larimer Cty., Inc., 2012 CO 24, ¶ 22 (holding that 

acceleration requires a clear, unequivocal act evincing an intent to 

invoke the creditor’s contractual option to accelerate). 
8 

1099, 1101 (Colo. App. 2005). “However, if undisputed facts 

demonstrate that the plaintiff had the requisite information as of a 

particular date, then the issue of whether the statute of limitations 

bars a particular claim may be decided as a matter of law.” Id.

B. Relevant Law 

¶ 23 There is a six-year statute of limitations for the recovery of a 

debt under a security agreement. §§ 13-80-103.5(1)(a), -108(4), 

C.R.S. 2018; Hassler v. Account Brokers of Larimer Cty., Inc., 2012 

CO 24, ¶¶ 13-15. The statute is triggered whenever the debt 

“becomes due” by the terms of the agreement. See Hassler, ¶ 22. 

¶ 24 As pertinent here, the statute is triggered on the day after the 

date of maturity of a promissory note. Rossi v. Osage Highland 

Dev., LLC, 219 P.3d 319, 321 (Colo. App. 2009) (citing Nagy v. 

Landau, 807 P.2d 1227, 1228-29 (Colo. App. 1990)). 

¶ 25 However, 

if an obligation that is to be repaid in 

installments is accelerated either automatically 

by the terms of the agreement or by the 

election of the creditor pursuant to an optional 

acceleration clause — the entire remaining 

balance of the loan becomes due immediately 

and the statute of limitations is triggered for all 

installments that had not previously become 

due. 
9 

Hassler, ¶ 22 (emphasis added); see also § 4-3-118(a), C.R.S. 2018 

(If a due date is accelerated, an action must be brought “within six 

years after the accelerated due date.”).

¶ 26 Once the statute of limitations has expired, any lien created by 

the instrument is extinguished. § 38-39-207, C.R.S. 2018; see 

Rossi, 219 P.3d at 322 (“By its plain terms, this statute does not 

merely affect a creditor’s ability to enforce a lien. It destroys the 

lien.”). 

C. Abandonment 

¶ 27 Several jurisdictions recognize that a lender may abandon the 

acceleration of a note, which has the effect of restoring the note’s 

original maturity date for purposes of accrual. See, e.g., Boren v. 

U.S. Nat’l Bank Ass’n, 807 F.3d 99, 1104 (5th Cir. 2015). 

¶ 28 Peterson and Parker argue that Colorado law does not 

recognize “abandonment” of an acceleration. They rely on language 

in Hassler that states that “the creditor’s course of conduct 

following acceleration is irrelevant.” ¶ 36. But this language is 

taken out of context. 

¶ 29 The issue in Hassler was whether a creditor bank sufficiently 

manifested its intent to invoke an acceleration of a car loan, given 
10 

that a “clear, unequivocal act is necessary to invoke an optional 

acceleration clause.” Id. at ¶ 25. 

¶ 30 There, the creditor bank repossessed a car and sent the debtor 

a letter demanding that he repay the entirety of his debt. Id. at ¶ 5. 

But it was still sending the debtor monthly billing statements for 

the loan. Hassler held that because there was “some act of the 

creditor [that] amounted to a clear manifestation of its intent to 

accelerate,” this “conduct following acceleration is irrelevant,” 

because: 

[F]ollowing repossession and receipt of the 

repossession letter, [the debtor] was on notice 

that he could only retake possession by 

repaying the entire amount owed on the loan. 

Any contradictory action that [the creditor 

bank] may have later taken was insufficient to 

un-ring this bell. 

Id. at ¶ 36. 

¶ 31 Thus, the language cited by Peterson and Parker was limited 

by its context; it applied only to the determination whether a 

creditor bank’s invocation of an acceleration clause was 

unequivocal.

¶ 32 In fact, no Colorado case has directly addressed whether a 

creditor may subsequently abandon its acceleration of a loan. 
11 

Because Colorado has not yet had the opportunity to address the 

issue of abandonment, we will do so here. 

¶ 33 Other jurisdictions have recognized that lenders may abandon 

the right to accelerate a note after it has already exercised its option 

to accelerate. See Boren, 807 F.3d at 1104; Paggen v. Bank of Am., 

N.A., No. 17-CV-012410RBJ, 2018 WL 4075881, at *5 (D. Colo. 

Aug. 27, 2018) (citing cases); Mitchell v. Fed. Land Bank, 174 

S.W.2d 671, 676 (Ark. 1943). 

¶ 34 The concept of abandonment is based on the principle of 

waiver. Boren, 807 F.3d at 1105. Waiver is the intentional 

relinquishment of a known right or privilege. Dep’t of Health v. 

Donahue, 690 P.2d 243, 247 (Colo. 1984). Thus, to abandon (or 

waive) an acceleration, a lender must manifest its intent to abandon 

acceleration by a clear affirmative act. See, e.g., Boren, 807 F.3d at 

104-06. 

¶ 35 The acceleration of a note can be abandoned “by agreement or 

other action of the parties.” Id. (holding that a lender abandoned 

acceleration by sending notice to the borrower that the lender is no 

longer seeking to collect the full balance of the loan and will permit 

the borrower to cure its default); Bartram v. U.S. Bank Nat’l Ass'n, 
12 

211 So. 3d 1009, 1021 (Fla. 2016) (stating that “the dismissal of the 

foreclosure action had the effect of revoking the acceleration”);

Andra R Miller Designs v. US Bank NA, 418 P.3d 1038 (Ariz. Ct. App. 

2018) (holding that a creditor’s recorded cancellation of the 

trustee’s sale was an affirmative act sufficient to revoke an 

acceleration); see also Paggen, 2018 WL 4075881, at *5 (citing 

cases); Deutsche Bank Nat’l Tr. Co. Ams. v. Bernal, 59 N.Y.S.3d 267, 

273 (N.Y. Sup. Ct. 2017). 

¶ 36 The great weight of authority recognizes this right of 

abandonment. And because our supreme court already recognizes 

that the doctrine of waiver applies to acceleration, see, e.g.,

Goodwin v. Dist. Court, 779 P.2d 837, 843-44 (Colo. 1989), we 

conclude that, in Colorado, a lender may abandon the acceleration 

of a note. 

¶ 37 Here, the Bank abandoned its previous acceleration of a loan 

by not only withdrawing the foreclosure but also by communicating 

its abandonment to the borrower. Indeed, the borrower and the 

Bank negotiated a loan modification after the Bank sent the 

borrower a new acceleration warning letter providing him another 

opportunity to cure the default. 
13 

¶ 38 On this record, we conclude that the district court correctly 

determined that acceleration was abandoned. 

¶ 39 As pertinent here, abandonment restores the note’s original 

maturity date for purposes of accrual of the statute of limitations. 

See Boren, 807 F.3d at 104; Mitchell, 174 S.W.2d at 676-77 (holding 

that the bank had the right, by its unilateral act, to waive its 

acceleration and restore all the terms of the mortgages as originally 

executed). 

¶ 40 Thus, when the Bank abandoned its acceleration of the loan 

prior to the January 2015 foreclosure, the loan was restored to its 

original nature as an installment loan with a maturity date of June 

1, 2037. Accordingly, we conclude the limitations period had not 

expired when the Bank foreclosed on the property. 

¶ 41 Because of our resolution above, we need not address the 

Bank’s alternative arguments in support of the timeliness of the 

January 2015 foreclosure. 

IV. Attorney Fees and Costs 

¶ 42 After granting the Bank possession of the property, the district 

court awarded attorney fees to the Bank pursuant to section 13-40-

123, C.R.S. 2018. The statute provides for an award of attorney 
14 

fees and costs to the prevailing party in a forcible entry and 

detainer action. Because the Bank was the prevailing party, we 

decline to disturb the award. 

V. Conclusion 

¶ 43 We affirm the judgment and the award of attorney fees. 

JUDGE ROMÁN and JUDGE FURMAN concur.