CO Code § 38-38-109 (2021)
2021 Colorado Code|Title 38 - Property - Real and Personal|Article 38 - Foreclosure Sales|Part 1 - Foreclosure Sale|§ 38-38-109. Continuance of Sale - Effect of Bankruptcy - Withdrawal of Sale

  Continuance.   For any reason deemed by the officer to be good cause or upon written request by the holder of the evidence of debt or by the attorney for the holder, at any time before commencement of the sale, the officer may continue the sale to a later date by making, at the time and place designated for the sale, an oral announcement of the time and place of such continuance, or by posting or providing a notice of the continuance at the time and place designated for the sale, which shall include the time and place to which the sale is continued. Except as provided in subparagraph (I) of paragraph (b) of subsection (2) of this section, a sale that is not held on the then-scheduled date of sale and is not continued from the then-scheduled date of sale pursuant to this paragraph (a) shall be deemed to have been continued for a period of one week, and from week to week thereafter in like manner, until the sale is held or otherwise continued pursuant to this paragraph (a). No sale shall be continued to a date later than twelve months from the originally designated date in the combined notice, except as provided in subsection (2) of this section.    At the request of the holder of the evidence of debt or the attorney for the holder or upon the officer's own initiative, the officer shall correct any errors in a published combined notice and shall continue the then-scheduled date of sale to a future date within the period of continuance allowed by paragraph (a) of this subsection (1) to permit a corrected combined notice to be published or the original combined notice to be republished pursuant to section (5). If the officer failed to publish the combined notice as required by section (5), the officer shall continue the then-scheduled date of sale to a future date within the period of continuance allowed by paragraph (a) of this subsection (1). The future date of sale to which the sale is continued pursuant to this paragraph (b) shall be no later than thirty calendar days after the fifth publication of the corrected combined notice or republished combined notice. The officer shall mail a copy of the combined notice, or corrected combined notice if the original combined notice was erroneous, to the persons and addresses on the most recent amended mailing list no later than ten calendar days after the first correct publication or republication and no less than forty-five calendar days prior to the actual date of sale in the same manner as set forth in section 38-38-103. If there is no amended mailing list, the officer shall mail a copy of the combined notice, or corrected combined notice if the original combined notice was erroneous, to the persons as set forth in the mailing list.        If a cure statement is not timely filed, the sale will be continued pursuant to section 38-38-104 (7). (c) (I) (A) If a cure statement is not timely filed, the sale will be continued pursuant to section 38-38-104 (7).    (Deleted by amendment, L. 2009, (HB 09-1207), ch. 164, p. 715, § 11, effective January 1, 2010.)    Repealed.       (Deleted by amendment, L. 2009, (HB 09-1207), ch. 164, p. 715, § 11, effective January 1, 2010.)    When the property is to be sold by the sheriff, if the cure statement is not filed with the sheriff by 12 noon on the seventh calendar day before the last date of sale permitted under paragraph (a) of this subsection (1), the foreclosure action shall be deemed dismissed, and the holder of the evidence of debt or the attorney for the holder shall file a motion to dismiss with the court. Upon good cause shown, the holder or the attorney for the holder may file a motion with the court requesting further relief as the court may deem necessary or appropriate in the circumstances. The sheriff shall record the order of dismissal or other order of the court and collect all fees and costs actually incurred by the sheriff.          Effect of bankruptcy proceedings.   If all publications of the combined notice prescribed by section 38-38-103 (5) or 13-56-201 (1), C.R.S., have been completed before a bankruptcy petition has been filed that automatically stays the officer from conducting the sale, the officer shall announce, post, or provide notice of that fact on the then-scheduled date of sale, take no action at the then-scheduled sale, and allow the sale to be automatically continued from week to week in accordance with paragraph (a) of subsection (1) of this section unless otherwise requested in writing prior to any such date of sale by the holder of the evidence of debt or the attorney for the holder.      If the publications of the combined notice prescribed by section 38-38-103 (5) or 13-56-201 (1), C.R.S., have not been started or if all the publications have not been completed before the day a bankruptcy petition has been filed that automatically stays the officer from conducting the sale, the officer shall immediately cancel any remaining publications of the combined notice and, on the date set for the sale, announce, post, or provide a notice that the sale has been enjoined or has been stayed by the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended. The sale shall not be continued under paragraph (a) of subsection (1) of this section. (b) (I) If the publications of the combined notice prescribed by section 38-38-103 (5) or 13-56-201 (1), C.R.S., have not been started or if all the publications have not been completed before the day a bankruptcy petition has been filed that automatically stays the officer from conducting the sale, the officer shall immediately cancel any remaining publications of the combined notice and, on the date set for the sale, announce, post, or provide a notice that the sale has been enjoined or has been stayed by the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended. The sale shall not be continued under paragraph (a) of subsection (1) of this section.    (A) Upon the termination of any injunction or upon the entry of a bankruptcy court order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, and upon receipt of a request from the holder of the evidence of debt or the attorney for the holder to restart the action, the public trustee shall rerecord the notice of election and demand and proceed with all additional foreclosure procedures provided by this article 38 as though the foreclosure had just been commenced.    When the property is to be sold by the sheriff under any statutory or judicial foreclosure or upon execution and levy made pursuant to any court order or decree, upon the notification of termination of any injunction or upon the entry of a bankruptcy court order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, the sheriff shall forthwith establish a new date of sale and republish a new combined notice pursuant to section 13-56-201 (1), C.R.S.         If a sale is held in violation of the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, and an order is subsequently entered by a bankruptcy court of competent jurisdiction dismissing the bankruptcy, abandoning the property being foreclosed, or closing the bankruptcy case, or an order is subsequently entered granting relief from the automatic stay provided by the federal bankruptcy code, then the evidence of debt, deed of trust, or other lien being foreclosed shall immediately be deemed reinstated, and the deed of trust or other lien shall have the same priority as if the sale had not occurred. Immediately upon reinstatement, the power of sale provided therein, if any, shall be deemed revived. (c) (I) If a sale is held in violation of the automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, and an order is subsequently entered by a bankruptcy court of competent jurisdiction dismissing the bankruptcy, abandoning the property being foreclosed, or closing the bankruptcy case, or an order is subsequently entered granting relief from the automatic stay provided by the federal bankruptcy code, then the evidence of debt, deed of trust, or other lien being foreclosed shall immediately be deemed reinstated, and the deed of trust or other lien shall have the same priority as if the sale had not occurred. Immediately upon reinstatement, the power of sale provided therein, if any, shall be deemed revived.    If the holder of the evidence of debt, deed of trust, or other lien reinstated pursuant to this subsection (2)(c) or the attorney for the holder notifies the officer in writing of the entry of an order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provided by the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, no later than fifty calendar days prior to the last possible sale date pursuant to subsections (1)(a) and (2)(e) of this section, the officer shall set a new date of sale at least twenty-four calendar days but not more than forty-nine calendar days after the date on which the official receives such notice. No later than ten business days after receiving such notice, the officer shall mail an amended combined notice containing the date of the rescheduled sale to each person appearing on the most recent mailing list. No later than twenty calendar days after receiving such notice, but no less than ten calendar days prior to the new date of sale, the officer shall publish the amended combined notice, omitting the copies of the statutes, one time only in a newspaper of general circulation in the county where the property is located.    If the holder of the evidence of debt, deed of trust, or other lien reinstated pursuant this subsection (2)(c) or the attorney for the holder does not notify the officer in writing of the entry of an order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provided by the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, within the time allowed under subsection (2)(c)(II) of this section, the officer shall administratively withdraw the sale pursuant to subsection (3)(b) of this section upon receipt of the order dismissing the bankruptcy case, abandoning the property being foreclosed, closing the bankruptcy case, or granting relief from the automatic stay provided by the federal bankruptcy code of 1978, title 11 of the United States Code, as amended.    All fees and costs of providing and publishing the amended combined notice and publication shall be part of the foreclosure costs.       If a sale is set aside by court order, unless the court order specifies otherwise, the following procedures apply:   Upon receipt of the court order, the public trustee's fee specified in section 38-37-104 (1)(b)(XI), and the costs of recording the court order as specified in this subsection (2)(d), the public trustee shall attach to the order a copy of the certificate of purchase, any assignments thereof, and, if applicable, the confirmation deed, each marked “null and void”, and record the order together with these documents.    Upon recordation of the court order, the certificate of purchase shall be deemed canceled as if the sale had not occurred, and the evidence of debt and deed of trust are deemed fully reinstated with the same lien priority as if the sale had not occurred.    Within ten calendar days after receipt of all documents, fees, and costs specified in this subsection (2)(d), the public trustee shall mail a copy of the court order to each person entitled to receive the combined notice pursuant to section 38-38-103.    (A) After the recording of the court order, the holder of the evidence of debt or the holder's assignee or the attorney for the holder or the attorney for the assignee may notify the public trustee in writing to reschedule the sale within one year of the issuance of the order. The public trustee shall set a new date of sale at least thirty calendar days but not more than forty-five calendar days after the date on which the public trustee receives notice to schedule a new date of sale subject to the requirements of subsections (1)(a) and (2)(e) of this section, but not earlier than the scheduled sale date as of the date of the court order.    Nothing in this section prevents the foreclosing lender from seeking a rescission of sale pursuant to section 38-38-113 if the requirements within section (1) are met.       The periods for which a sale may be continued under this subsection (2) shall be in addition to the twelve-month period of continuance provided by subsection (1) of this section.       Withdrawal.   If the holder of the evidence of debt or the attorney for the holder files with the public trustee, prior to sale, a written withdrawal of the notice of election and demand, the foreclosure proceedings shall terminate. The public trustee shall record the withdrawal and collect all fees and costs owed and incurred, including a withdrawal fee in the amount authorized by section 38-37-104 (1)(b)(V).    If there is no sale and if a withdrawal is not filed within forty-five calendar days after the last date of sale permitted by law, the public trustee may transmit by mail or electronic transmission to the attorney for the holder of the evidence of debt, or if no attorney then to the holder, a notice that a withdrawal of the notice of election and demand may be recorded by the public trustee unless a response requesting that such withdrawal be delayed for ninety calendar days is received by the public trustee within thirty calendar days after the date the public trustee's notice is transmitted. If such response is received by the public trustee and there is no sale nor is a withdrawal filed within the ninety-day delay, the public trustee may record a withdrawal of the notice of election and demand. If no such response is received by the public trustee within thirty calendar days after the notice is transmitted, the public trustee may record a withdrawal of the notice of election and demand at any time after the expiration of such thirty-day notice period. If a withdrawal is recorded during the pendency of an automatic stay imposed on the sale based on any proceeding filed under the federal bankruptcy code of 1978, title 11 of the United States Code, as amended, the withdrawal shall be void and of no force and effect, and the public trustee shall mail to all persons on the mailing list a notice that the withdrawal of the notice of election and demand occurred during the pendency of an injunction or bankruptcy stay and is void and of no force and effect. 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. All unpaid fees and costs owed and incurred by the public trustee, as well as a withdrawal fee in the amount authorized by section 38-37-104 (1)(b)(VI), shall be paid by the holder. The amount due shall accrue interest at the rate provided by law. Until all amounts due and owing are paid, the public trustee shall be entitled to hold all documentation in the public trustee's possession and to withhold all other services requested by the holder or the attorney for the holder with respect to the deed of trust or other lien being foreclosed.        History. Source: L. 90: Entire article R&RE, p. 1660, § 2, effective October 1. L. 92: (2) and (4) amended and (5) added, p. 2091, § 4, effective July 1. L. 95: (1) amended, p. 1108, § 53, effective May 31. L. 2002: (4)(a) and IP(4)(b)(I) amended, p. 1341, § 10, effective July 1. L. 2004: (3)(b) and (3)(c) amended, p. 1206, § 84, effective August 4. L. 2005: (1), (2), and (3)(a) amended, p. 398, § 5, effective August 8. L. 2006: Entire section amended, p. 1458, § 15, effective January 1, 2008. L. 2007: (1)(a), (1)(b), (1)(c)(I)(B), and (2) amended, p. 1835, § 12, effective January 1, 2008. L. 2009: (1)(c)(I)(C) added,(HB 09-1276), ch. 404, p. 2221, § 3, effective June 2; (1)(b), (1)(c), (2)(b)(I), (2)(d), and (3)(b) amended,(HB 09-1207), ch. 164, p. 715, § 11, effective January 1, 2010; (1)(c)(I)(C) amended,(SB 09-292), ch. 369, p. 1986, § 132, effective January 1, 2010. L. 2012: (2)(b) amended,(SB 12-030), ch. 96, p. 321, § 9, effective September 1. L. 2016: (1)(c)(I)(C) repealed,(SB 16-189), ch. 210, p. 792, § 104, effective June 6. L. 2018: (2)(b)(II), (2)(c), and (2)(d) amended,(HB 18-1254), ch. 138, p. 906, § 5, effective August 8.    Editor's note:    This section is similar to former § 38-39-115, as it existed prior to 1990.    The effective date for amendments made to 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. (SeeL. 2007, p. 1849.)    Amendments to subsection (1)(c) by House Bill 09-1207, House Bill 09-1276, and Senate Bill 09-292 were harmonized.    The third sentence in subsection (3)(b) was inadvertently omitted from section 11 of House Bill 09-1207; however, it has been restored in the statutes in order to reflect the intent of the general assembly.     ANNOTATION   Law reviews. For article, “Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado”, see 14 Dicta 5 (1936). For article, “Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado”, see 28 Dicta 437 (1951). For article, “Statutory Redemption in Colorado”, see 30 Dicta 79 (1953). For comment, “The Effect of Certified Realty on Mortgage Foreclosure in Colorado”, see 52 U. Colo. L. Rev. 301 (1981). For comment, “The Effect of Certified Realty Corp. v. Smith on Mortgage Foreclosure in Colorado”, see 52 U. Colo. L. Rev. 301 (1981). For article, “Public Trustee's Deeds and Redemption Under Section 362 of the Bankruptcy Code”, see 12 Colo. Law. 229 (1983).   The automatic continuance of a foreclosure sale date under subsection (2)(a) of this section, by itself, serves only to maintain the status quo and does not fit within the definition of a “continuation” of a legal proceeding in violation of 11 U.S.C. § 362(a)(1) of the federal bankruptcy code, nor is it an act to collect a debt in violation of § 362(a)(6). In re Henson, 477 B.R. 786 (Bankr. D. Colo. 2012 ).