CO Code § 5-5-109 (2021)
2021 Colorado Code|Title 5 - Consumer Credit Code|Article 5 - Remedies and Penalties|Part 1 - Limitations on Creditors' Remedies|§ 5-5-109. Unconscionability - Inducement by Unconscionable Conduct - Unconscionable Debt Collection

  With respect to a transaction that is, gives rise to, or leads the consumer to believe will give rise to a consumer credit transaction, if the court as a matter of law finds:   The agreement or transaction to have been unconscionable at the time it was made, or to have been induced by unconscionable conduct, the court may refuse to enforce the agreement; or    Any term or part of the agreement or transaction to have been unconscionable at the time it was made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable term or part, or so limit the application of any unconscionable term or part as to avoid any unconscionable result.       With respect to a consumer credit transaction, if the court as a matter of law finds that a person has engaged in, is engaging in, or is likely to engage in unconscionable conduct in collecting a debt arising from that transaction, the court may grant an injunction and award the consumer any actual damages the consumer has sustained.    If it is claimed or appears to the court that the agreement or transaction or any term or part thereof may be unconscionable or that a person has engaged in, is engaging in, or is likely to engage in unconscionable conduct in collecting a debt, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose, and effect of the agreement or transaction or term or part thereof or of the conduct to aid the court in making the determination.    In applying subsection (2) of this section, consideration shall be given to each of the following factors, among others, as applicable:   Using or threatening to use force or violence against the consumer or members of the consumer's family;    Communicating with the consumer or a member of the consumer's family at frequent intervals or at unusual hours or under other circumstances so that it is a reasonable inference that the primary purpose of the communication was to harass the consumer;    Using fraudulent, deceptive, or misleading representations such as a communication that simulates legal process or that gives the appearance of being authorized, issued, or approved by a government, governmental agency, or attorney at law when it is not or threatening or attempting to enforce a right with knowledge or reason to know that the right does not exist;    Causing or threatening to cause injury to the consumer's reputation or economic status by:   Disclosing information affecting the consumer's reputation for credit worthiness with knowledge or reason to know that the information is false;    Communicating with the consumer's employer before obtaining a final judgment against the debtor, except, as permitted by statute, to verify the consumer's employment, to ascertain the consumer's whereabouts, or to request that the consumer contact the creditor;    Disclosing to a person, with knowledge or reason to know that the person does not have a legitimate business need for the information, or in any way prohibited by statute, information affecting the consumer's credit or other reputation; or    Disclosing information concerning the existence of a debt known to be disputed by the consumer without disclosing that fact;       Engaging in conduct with knowledge that like conduct has been restrained or enjoined by a court in a civil action by the administrator against any person pursuant to the provisions on injunctions against fraudulent or unconscionable agreements or conduct contained in section 5-6-112.       If, in an action in which unconscionability is claimed, the court finds unconscionability pursuant to subsection (1) or (2) of this section, the court may award reasonable fees to the attorney for the consumer. If the court does not find unconscionability and the consumer claiming unconscionability has brought or maintained an action the consumer knew to be groundless, the court may award reasonable fees to the attorney for the party against whom the claim is made. In determining attorney fees, the amount of the recovery on behalf of the consumer is not controlling.    The remedies of this section are in addition to remedies otherwise available for the same conduct under laws other than this code, but double recovery of actual damages may not be had.    For the purpose of this section, a charge or practice expressly permitted by this code is not in itself unconscionable.     History. Source: L. 2000: Entire article R&RE, p. 1236, § 1, effective July 1.    Editor's note:   This section is similar to former § 5-5-108 , as it existed prior to 2000.   Cross references:   For the “Colorado Fair Debt Collection Practices Act”, see article 16 of title 5.   ANNOTATION   Law reviews. For article, “Secured Transactions -- Part II: Default, Foreclosure and Bankruptcy”, see 12 Colo. Law. 13 (1983). For article, “Default Judgments Against Consumers: Has the System Failed?”, see 67 Den. U. L. Rev. 357 (1990).   Annotator's note. Since § 5-5-109 is similar to § 5-5-108 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.   Section 1681h(e) of the Fair Credit Reporting Act does not furnish defendant immunity from a statutory claim under this section since nothing in this section is inconsistent with the regulatory provisions of the Act and since an action under this section is to enforce a statutory right, and is not an action in the nature of defamation or invasion of privacy. Conley v. Greenwood Trust Co., 923 P.2d 307 (Colo. App. 1996), aff'd in part and rev'd in part on other grounds, 938 P.2d 1141 (Colo. 1997).   Claim that bank failed to report mortgagee's debt to credit reporting agencies as disputed is preempted by the federal Fair Credit Reporting Act, 15 U.S.C. § 1681t(b)(a)(F). Collins v. BAC Home Loans Servicing LP, 912 F. Supp. 2d 997 (D. Colo. 2012 ).   Liability under this section is not dependent upon proof demonstrating that the plaintiff was legally indebted to defendant. Once the purported creditor treats another party as a debtor, that party will be recognized as such for purposes of this section. Conley v. Greenwood Trust Co., 923 P.2d 307 (Colo. App. 1996).   This section applies to consumer credit, lease, or loan transactions and does not apply to a loan made by a person who was not in the business of making loans; therefore, even though 50% interest rate on note was usurious, realtor who made loan was entitled to maximum legal rate of 45% interest on note. Brown v. Fenner, 757 P.2d 184 (Colo. App. 1988).