CO Code § 38-38-106 (2021)
2021 Colorado Code|Title 38 - Property - Real and Personal|Article 38 - Foreclosure Sales|Part 1 - Foreclosure Sale|§ 38-38-106. Bid Required - Form of Bid

     The holder of the evidence of debt or the attorney for the holder shall submit a bid setting forth the holder's initial bid for the property that is received by the officer no later than 12 noon on the second business day prior to the date of sale as provided in this section. In addition, if the sale will be conducted electronically, the holder may also include a maximum bid for the property. The holder or the attorney for the holder need not personally attend the sale. If the sale will be conducted electronically and the holder has elected to include a maximum bid, the bid shall be increased electronically in increments incorporated in the electronic program used by the officer to conduct the electronic sale up to such maximum bid if one or more third parties submit competing bids for the property.    If the bid is not received by the officer by the deadline, the officer shall continue the sale for one week and shall announce or post a notice of the continuance at the time and place designated for the sale.       The holder of the evidence of debt shall submit a signed and acknowledged bid, or the attorney for the holder shall submit a signed bid, which must specify the following amounts, itemized in substantially the following categories and in substantially the following form:    Upon receipt of the initial bid from the holder of the evidence of debt or the attorney for the holder, the officer shall make such information available to the general public.    The officer shall enter the bid by reading the bid amount set forth on the bid and the name of the person that submitted the bid or by posting or providing such bid information at the time and place designated for sale.    Bids submitted pursuant to this section may be amended by the holder of the evidence of debt or the attorney for the holder in writing or electronically, as determined by the officer pursuant to section 38-38-112, no later than 12 noon the day prior to the sale, or orally at the time of sale if the person amending the bid is physically present at the sale or electronically during the sale if the sale is conducted by means of the internet or another electronic medium. A bid submitted pursuant to this section may be modified orally at the time of sale if the person making the modification modifies and reexecutes the bid at the sale.    The holder of the evidence of debt or the attorney for the holder shall bid at least the holder's good faith estimate of the fair market value of the property being sold, less the amount of unpaid real property taxes and all amounts secured by liens against the property being sold that are senior to the deed of trust or other lien being foreclosed and less the estimated reasonable costs and expenses of holding, marketing, and selling the property, net of income received; except that the holder or the attorney for the holder need not bid more than the total amount due to the holder as specified in the bid pursuant to subsection (2) of this section. The failure of the holder to bid the amount required by this subsection (6) shall not affect the validity of the sale but may be raised as a defense by any person sued on a deficiency.        Other than a bid by the holder of the evidence of debt not exceeding the total amount due shown on the bid pursuant to subsection (2) of this section, the payment of any bid amount at sale must be received by the officer no later than the date and time of the sale, or at an alternative time after the sale and on the day of the sale, as specified in writing by the officer. The payment must be in the form specified in section 38-37-108. If the officer has not received full payment of the bid amount from the highest bidder at the sale pursuant to this subsection (7), the next highest bidder who has timely tendered the full amount of the bid under this subsection (7) is deemed the successful bidder at the sale. (a) (I)Other than a bid by the holder of the evidence of debt not exceeding the total amount due shown on the bid pursuant to subsection (2) of this section, the payment of any bid amount at sale must be received by the officer no later than the date and time of the sale, or at an alternative time after the sale and on the day of the sale, as specified in writing by the officer. The payment must be in the form specified in section 38-37-108. If the officer has not received full payment of the bid amount from the highest bidder at the sale pursuant to this subsection (7), the next highest bidder who has timely tendered the full amount of the bid under this subsection (7) is deemed the successful bidder at the sale.    If the holder of the evidence of debt is the highest bidder with a bid that exceeds the total amount due shown on the bid pursuant to subsection (2) of this section, the holder of the evidence of debt is only required to pay the excess of the amount bid over the amount due the holder of the evidence of debt, as shown on the bid submitted pursuant to subsection (2) of this section.       The officer may establish written policies relating to all aspects of the foreclosure sale that are consistent with the provisions of this article. The written policies shall be made available to the general public.         BID   To: =rf   Public Trustee (or Sheriff) of the County (or City and County) of =hr3  , State of Colorado (hereinafter the “officer”).   Date: =hr8 =hr8  , whose mailing address is =hr8  , bids the sum of $ =hr2   in your Sale No. =hr2   to be held on the =hr3   day of =hr3  , 20=hr2  . The following is an itemization of all amounts due the holder of the evidence of debt secured by the deed of trust or other lien being foreclosed. Street address of property being foreclosed, if known: ______________________________ Regular [ ] / default [ ] rate of interest as of the date of sale: __________ (Inapplicable items may be omitted): Amounts due under the evidence of debt: Principal :u2160 $ :u2240 __________ Interest :u2240 __________ Late charges :u2240 __________ Allowable prepayment penalties or premiums :u2240 __________ Other amounts due under the evidence of debt (specify) :u2240 __________ =sr __________ :u2240 __________ =sr __________ Category subtotal: =sr $ __________ Other fees and costs advanced by the holder of evidence of debt: Property, general liability, and casualty insurance :u2240 __________ Property inspections :u2240 __________ Appraisals :u2240 __________ Taxes and assessments :u2240 __________ Utility charges owed or incurred :u2240 __________ Owner association assessment paid :u2240 __________ Permitted amounts paid on prior liens :u2240 __________ Permitted lease payments :u2240 __________ Less impound/escrow account credit :u2240 __________ Plus impound/escrow account deficiency :u2240 __________ Other (describe) :u2240 __________ Category subtotal: =sr $ __________ Attorney fees and advances: Attorney fees :u2240 __________ Title commitments and insurances or abstractor charges :u2240 __________ Court docketing :u2240 __________ Statutory notice :u2240 __________ Postage :u2240 __________ Electronic transmissions :u2240 __________ Photocopies :u2240 __________ Telephone :u2240 __________ Other (describe) :u2240 __________ Category subtotal: :u3080 $ __________ Officer fees and costs: Officer statutory fee :u2240 __________ Publication charges :u2240 __________ Certificate of purchase recording fee :u2240 __________ Confirmation deed fee :u2240 __________ Confirmation deed recording fee :u2240 __________ Other (describe) :u2240 __________ Category subtotal: =sr $ __________ Total due holder of the evidence of debt :u2240 __________ :u1440 Initial Bid :u2160 $ :u2240 __________ :u1440 Deficiency :u2160 $ :u2240 __________ I enclose herewith the following: 1. Order authorizing sale. 2. Check (if applicable) to your order in the sum of $ _______________ covering the balance of your fees and costs. 3. Other: _______________ . Please send us the following: 1. Promissory note with the deficiency, if any, noted thereon 2. Refund for overpayment of officer's fees and costs, if any 3. Other: _______________ . :u1880 Name of the holder of the evidence of debt :u1880 and the attorney for the holder: :u1880 Holder: =rf :u1880 Attorney: =rf :u1880 By: =rf :u1880 Attorney registration number: =rf :u1880 Attorney address: =rf :u1880 Attorney business telephone: =rf   History. Source: L. 90: Entire article R&RE, p. 1658, § 2, effective October 1. L. 91: (1) and (2) amended, p. 1922, § 54, effective June 1. L. 2002: (2) amended, p. 1339, § 9, effective July 1. L. 2006: Entire section R&RE, p. 1452, § 12, effective January 1, 2008. L. 2007: (5) amended, p. 1834, § 10, effective January 1, 2008. L. 2009: (2) and (7) amended,(HB 09-1207), ch. 164, p. 712, § 9, effective September 1. L. 2012: (1) and (2) amended,(SB 12-030), ch. 96, p. 318, § 8, effective September 1. L. 2015: (1), (2), and (5) amended,(HB 15-1142), ch. 113, p. 339, § 4, effective September 1. L. 2018: (2) and (7)(a) amended,(HB 18-1254), ch. 138, p. 903, § 4, effective August 8.    Editor's note:    This section is similar to former § 38-37-142, 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.)     ANNOTATION   Law reviews. For article, “Recent Statutory Amendments to the Public Trustee and Sheriff Foreclosure Process”, see 15 Colo. Law. 794 (1986). For article, “1987 Statutory Amendments Concerning Foreclosures of Deeds of Trust and Mortgages”, see 16 Colo. Law. 1386 (1987). For article, “An Analysis of the Effect of S.B. 123 on Foreclosures”, see 17 Colo. Law. 845 (1988). For article, “Recent Developments in Foreclosure Law”, see 23 Colo. Law. 599 (1994). For article, “Strategic Options for Overly Encumbered Real Property (Friendly Foreclosures)”, see 46 Colo. Law. 31 (July 2017).   Annotator's note. The following annotations include cases decided under this section as it existed prior to its 2006 repeal and reenactment.   A deficiency bid that is not a good faith estimate of the fair market value of the property does not invalidate the foreclosure sale; instead, the debtor's deficiency liability is adjusted to reflect what the deficiency should have been had a good faith bid been made at the time of the sale. First Nat. Bank v. Blanding, 885 P.2d 324 (Colo. App. 1994).   Inadequate foreclosure bid, or bid not in “good faith”, does not bar recovery of a deficiency judgment rather inadequacy should be considered only to adjust amount of deficiency claim. Bank of Am. v. Kosovich, 878 P.2d 65 (Colo. App. 1994).   The plain meaning of subsection (6) is to provide debtors with a defense that they may assert but that they may also waive. The general assembly could have included an express prohibition against waiver of subsection (6) as it has done in other statutes, but presumably it chose not to. In addition, the ability to waive the provisions of subsection (6) does not violate public policy. Armed Forces Bank v. Hicks, 2014 COA 74 , 365 P.3d 378.   Trial court properly concluded that no formal notice of acceleration was required under the terms of the note, and commencement of a foreclosure action was sufficient to accelerate the obligation secured by the deed of trust. Kirk v. Kitchens, 49 P.3d 1189 (Colo. App. 2002).   Trial court erred in allowing defendants to include in their foreclosure bids as “amounts due” future interest amounts. Upon defendants' acceleration of the entire loan obligation, defendants had waived or were no longer entitled to recover the contested amounts, which would constitute an impermissible prepayment penalty not authorized by the note and deed of trust in the event of foreclosure. Kirk v. Kitchens, 49 P.3d 1189 (Colo. App. 2002).