CO Code § 38-38-100.3 (2021)
2021 Colorado Code|Title 38 - Property - Real and Personal|Article 38 - Foreclosure Sales|Part 1 - Foreclosure Sale|§ 38-38-100.3. Definitions

 As used in articles 37 to 39 of this title 38, unless the context otherwise requires:    “Agricultural property” means property, none of which, on the date of recording of the deed of trust or other lien or at the time of the recording of the notice of election and demand or lis pendens, is:   Platted as a subdivision;    Located within an incorporated town, city, or city and county; or    Valued and assessed as other than agricultural property pursuant to sections 39-1-102 (1.6)(a) and 39-1-103 (5), C.R.S., by the assessor of the county where the property is located. (1.5) “Amended mailing list” means the amended mailing list in accordance with section 38-38-103 (2) containing the names and addresses in the mailing list as defined in subsection (14) of this section and the names and addresses of the following persons:   The owner of the property, if different than the grantor of the deed of trust, as of the date and time of the recording of the notice of election and demand or lis pendens as shown in the records at the address indicated in such recorded instrument; and    Each person, except the public trustee, who appears to have an interest in the property described in the combined notice by an instrument recorded prior to the date and time of the recording of the notice of election and demand or lis pendens with the clerk and recorder of the county where the property or any portion thereof is located at the address of the person indicated on the instrument, if the person's interest in the property may be extinguished by the foreclosure.          “Attorney for the holder” means an attorney licensed and in good standing in the state of Colorado to practice law and retained by the holder of an evidence of debt to process a foreclosure under this article. (2.5) “Borrower” means a person liable under an evidence of debt constituting a residential mortgage loan.    “Certified copy” means, with respect to a recorded document, a copy of the document certified by the clerk and recorder of the county where the document was recorded. (3.5) “CFPB” means the federal consumer financial protection bureau.    “Combined notice” means the combined notice of sale, right to cure, and right to redeem described in section 38-38-103 (4)(a). (4.5) “Complete loss mitigation application” means an application in connection with which a servicer has received all the information that the servicer requires from a borrower in evaluating applications for the loss mitigation options available to the borrower.    “Confirmation deed” means the deed described in section 38-38-501 in the form specified in section 38-38-502 or 38-38-503. (5.3) “Consensual lien” means a conveyance of an interest in real property, granted by the owner of the property after the recording of a notice of election and demand, that is not an absolute conveyance of fee title to the property. “Consensual lien” includes but is not limited to a deed of trust, mortgage or other assignment, encumbrance, option, lease, easement, contract, including an instrument specified in section 38-38-305 , or conveyance as security for the performance of the grantor. “Consensual lien” does not include a lien described in section 38-38-306 or 38-33.3-316 . (5.7) “Corporate surety bond” means a bond issued by a person authorized to issue bonds in the state of Colorado with the public trustee as obligee, conditioned against the delivery of an original evidence of debt to the damage of the public trustee.    “Cure statement” means the statement described in section 38-38-104 (2)(a).    “Deed of trust” means a security instrument containing a grant to a public trustee together with a power of sale.    “Evidence of debt” means a writing that evidences a promise to pay or a right to the payment of a monetary obligation, such as a promissory note, bond, negotiable instrument, a loan, credit, or similar agreement, or a monetary judgment entered by a court of competent jurisdiction.    “Fees and costs” means all fees, charges, expenses, and costs described in section 38-38-107.    “Holder of an evidence of debt” or “holder” means the person in actual possession of or person entitled to enforce an evidence of debt; except that the term does not include a person acting as a nominee solely for the purpose of holding the evidence of debt or deed of trust as an electronic registry without any authority to enforce the evidence of debt or deed of trust. For the purposes of articles 37 to 40 of this title, the following persons are presumed to be the holder of an evidence of debt:   The person who is the obligee of and who is in possession of an original evidence of debt;    The person in possession of an original evidence of debt together with the proper indorsement or assignment thereof to such person in accordance with section 38-38-101 (6);    The person in possession of a negotiable instrument evidencing a debt, which has been duly negotiated to such person or to bearer or indorsed in blank; or    The person in possession of an evidence of debt with authority, which may be granted by the original evidence of debt or deed of trust, to enforce the evidence of debt as agent, nominee, or trustee or in a similar capacity for the obligee of the evidence of debt.       “Junior lien” means a deed of trust or other lien or encumbrance upon the property for which the amount due and owing thereunder is subordinate to the deed of trust or other lien being foreclosed.    “Junior lienor” means a person who is a beneficiary, holder, or grantee of a junior lien. (12.5) “Lienor” includes without limitation the holder of a certificate of purchase or certificate of redemption for property, issued upon the foreclosure of a deed of trust or other lien on the property.    “Lis pendens” means a lis pendens in accordance with section 38-35-110 that is recorded with the clerk and recorder of the county where the property or any portion thereof is located and that refers to a judicial action in which one of the claims is for foreclosure and sale of the property by an officer or in which a claim or interest in the property is asserted.  (13.3) “Loss mitigation application” means an oral or written request for a loss mitigation option that is accompanied by any information requested by a servicer for evaluation for a loss mitigation option.  (13.7) “Loss mitigation option” means an alternative to foreclosure offered by the owner, holder, or assignee of a mortgage loan that is made available through the servicer to the borrower.    “Mailing list” means the mailing list in accordance with section 38-38-101 (1)(e) provided to the officer by the holder of the evidence of debt or the attorney for the holder containing the names and addresses of the following persons:   The original grantor of the deed of trust or obligor under any other lien being foreclosed at the address shown in the recorded deed of trust or other lien being foreclosed and, if different, the last address, if any, shown in the records of the holder of the evidence of debt;    Any person known or believed by the holder of the evidence of debt to be personally liable under the evidence of debt secured by the deed of trust or other lien being foreclosed at the last address, if any, shown in the records of the holder;    The occupant of the property, addressed to “occupant” at the address of the property; and    With respect to a public trustee sale, a lessee with an unrecorded possessory interest in the property at the address of the premises of the lessee and, if different, the address of the property, to the extent that the holder of the evidence of debt desires to terminate the possessory interest with the foreclosure.       “Maintaining and repairing” means the act of caring for and preserving a property in its current condition or restoring a property to a sound or working condition after damage; except that “maintaining and repairing” shall not include, unless done pursuant to an order entered by a court of competent jurisdiction, any act of advancing a property to a better condition or any act that increases the quality of or adds to the improvements located on a property.    “Notice of election and demand” means a notice of election and demand for sale related to a public trustee foreclosure under this article.    “Officer” means the public trustee or sheriff conducting a foreclosure under this article.  (17.3) “Overbid” means the amount a property is sold for at a foreclosure sale that is in excess of the written or amended bid amount executed by the holder of the evidence of debt secured by the deed of trust or other lien being foreclosed.  (17.5) “Person” means any individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity.    “Property” means the portion of the property encumbered by a deed of trust or other lien that is being foreclosed under this article or the portion of the property being released from a deed of trust or other lien under article 39 of this title.    “Publish”, “publication”, “republish”, or “republication” means the placement by an officer of a legal notice that meets the requirements set forth in section 24-70-103 containing a combined notice that complies with the requirements of section 24-70-109 in a newspaper in the county or counties where the property to be sold is located. The officer shall select the newspaper.    “Qualified holder” means a holder of an evidence of debt, certificate of purchase, certificate of redemption, or confirmation deed that is also one of the following:   A bank as defined in section 11-101-401 (5), C.R.S.;    Repealed.    A federally chartered savings and loan association doing business in Colorado or a savings and loan association chartered under the “Savings and Loan Association Law,” articles 40 to 46 of title 11, C.R.S.;    A supervised lender as defined in section 5-1-301 (46), C.R.S., that is licensed to make supervised loans pursuant to section 5-2-302, C.R.S., and that is either:   A public entity, which is an entity that has issued voting securities that are listed on a national security exchange registered under the federal “Securities Exchange Act of 1934”, as amended; or    An entity in which all of the outstanding voting securities are held, directly or indirectly, by a public entity;       An entity in which all of the outstanding voting securities are held, directly or indirectly, by a public entity that also owns, directly or indirectly, all of the voting securities of a supervised lender as defined in section 5-1-301 (46), C.R.S., that is licensed to make supervised loans pursuant to section 5-2-302, C.R.S.;    A federal housing administration approved mortgagee;    A federally chartered credit union doing business in Colorado or a state-chartered credit union as described in section 11-30-101, C.R.S.;    An agency or department of the federal government;    An entity created or sponsored by the federal or state government that originates, insures, guarantees, or purchases loans or a person acting on behalf of such an entity to enforce an evidence of debt or the deed of trust securing an evidence of debt;    Any community development financial institution that has been certified and maintains such current status from the community development financial institutions fund administered by the United States department of the treasury, referred to in this section as the “fund”. In order to be a qualified holder under this article, the community development financial institution must:   Be a legal entity;    Have a primary mission of promoting community development;    Be a financing entity;    Primarily serve one or more target markets as defined by the fund;    Promote development services in conjunction with its financing activities;    Maintain accountability to its defined target market; and    Be a nongovernmental entity and not be under the control of any governmental entity; except that a tribal government is exempt from the requirements of this subparagraph (VII).       Any entity with active certification under the fund that originates, insures, guarantees, or purchases loans or a person acting on behalf of such an entity to enforce an evidence of debt or the deed of trust securing an evidence of debt;  (k.5) A private company that originates, insures, guaranties, or purchases loans on behalf of a holder of evidence of debt that is secured by a deed of trust encumbering a time share estate as defined in section 38-33-110 (5) , with a minimum of five million dollars in assets or not less than one thousand active loans; or     Any entity listed in paragraphs (a) to (k) of this subsection (20) acting in the capacity of agent, nominee except as otherwise specified in subsection (10) of this section, or trustee for another person.       “Records” means the records of the county clerk and recorder of the county where the property is located.  (21.3) “Residential mortgage loan” means a loan that is primarily for personal, family, or household use and that is secured by a mortgage, deed of trust, or other equivalent, consensual security interest on a dwelling or residential real estate upon which is constructed or intended to be constructed a single-family dwelling or multiple-family dwelling of four or fewer units that is or will be used by the borrower as the borrower's primary residence.  (21.6) “Residential real estate” means any real property upon which a dwelling is or will be constructed.    “Sale” means a foreclosure sale conducted by an officer under this article.    “Secured indebtedness” means the amount owed pursuant to the evidence of debt without regard to the value of the collateral. (23.3)   “Servicer” or “mortgage servicer” means an entity that directly services a loan or that is responsible for interacting with the borrower; managing the loan account on a daily basis, including collecting and crediting periodic loan payments; managing any escrow account; or enforcing the note and security instrument, either as the current holder of the evidence of debt or as the current holder's authorized agent.    “Servicer” includes an entity providing such services pursuant to designation as a subservicing agent or by contract with a master servicer.    “Servicer” does not mean a trustee, including the public trustee, or a trustee's authorized agent acting under a power of sale pursuant to a deed of trust. (23.6) “Single point of contact” means an individual or team of personnel, each of whom has the ability and authority to perform the responsibilities described in section 38-38-103.1 on behalf of the servicer. The servicer shall ensure that each member of the team is knowledgeable about the borrower's situation and current status.       “Statement of redemption” means the signed and acknowledged statement of the holder of the evidence of debt or the signed statement of the attorney for the holder as required by section 38-38-302 (3) or the signed and acknowledged statement of the lienor or the signed statement of the attorney for the lienor as required by section 38-38-302 (1)(f).      History. Source: L. 2006: Entire section added, p. 1438, § 6, effective January 1, 2008. L. 2007: IP, IP(10), (18), and (19) amended and (5.3), (5.7), and (12.5) added, p. 1831, § 5, effective January 1, 2008. L. 2009: (1.5) and (17.5) added and IP(10), (11), (14), and (19) amended,(HB 09-1207), ch. 164, p. 703, § 1, effective January 1, 2010. L. 2012: (17.3) added,(SB 12-030), ch. 96, p. 315, § 3, effective September 1. L. 2013: (20)(b) repealed,(SB 13-154), ch. 282, p. 1489, § 73, effective July 1. L. 2014: IP(10) amended,(HB 14-1130), ch. 156, p. 541, § 1, effective May 9; (20)(i) and (20)(j) amended and (20)(k) and (20)(l) added,(SB 14-022), ch. 101, p. 374, § 1, effective August 6; (2.5), (3.5), (4.5), (13.3), (13.7), (21.3), (21.6), (23.3), and (23.6) added,(HB 14-1295), ch. 157, p. 545, § 1, effective January 1, 2015. L. 2018: IP and (19) amended,(HB 18-1254), ch. 138, p. 902, § 1, effective August 8. L. 2021: (20)(k) amended and (20)(k.5) added,(HB 21-1224), ch. 199, p. 1057, § 1, effective May 28.    Editor's note:   The effective date for the enactment of 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 .)   Cross references:   For the federal “Securities Exchange Act of 1934”, see 15 U.S.C. 78a et seq.   ANNOTATION   “A holder of an evidence of debt” need not be a holder in due course. A person entitled to enforce an instrument may be a holder, and need not be an owner, of the instrument. McDonald v. OneWest Bank, F.S.B., 680 F.3d 1264 (10th Cir. 2012).   Applied in In re Miller, 666 F.3d 1255 (10th Cir. 2012).