CO Code § 5-1-301 (2021)
2021 Colorado Code|Title 5 - Consumer Credit Code|Article 1 - General Provisions and Definitions|Part 3 - Definitions|§ 5-1-301. General Definitions

 In addition to definitions appearing in subsequent articles, as used in this code, unless the context otherwise requires:    “Actuarial method” means the method, defined by rules promulgated by the administrator in accordance with article 4 of title 24, C.R.S., of allocating payments made on a debt between the amount financed and finance charge pursuant to which a payment is applied first to the accumulated finance charge and the balance subtracted from, or any deficiency is added to, the unpaid balance of the amount financed.    “Administrator” means the administrator designated in section 5-6-103.    “Agreement” means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance.    “Agricultural purpose” means a purpose related to the production, harvest, exhibition, marketing, transportation, processing, or manufacture of agricultural products by a natural person who cultivates, plants, propagates, or nurtures the agricultural products. “Agricultural products” includes agricultural, horticultural, viticultural, and dairy products, livestock, wildlife, poultry, bees, forest products, fish and shellfish, and any products thereof, including processed and manufactured products, and any and all products raised or produced on farms and any processed or manufactured products thereof.    “Amount financed” means the total of the following items to the extent that payment is deferred:   In the case of a sale:   The cash price of the goods, services, or interest in land, less the amount of any down payment whether made in cash or in property traded in; and    The amount actually paid or to be paid by the seller pursuant to an agreement with the buyer to discharge a security interest in or a lien on property traded in;       In the case of a loan:   The net amount paid to, receivable by, or paid or payable for the account of the debtor; and    The amount of any discount excluded from the finance charge described in paragraph (c) of subsection (20) of this section; and       In the case of a sale or loan, to the extent that payment is deferred and the amount is not otherwise included in the cash price:   Any applicable sales, use, excise, or documentary stamp taxes;    Amounts actually paid or to be paid by the creditor for registration, certificate of title, or license fees; and    Additional charges permitted by this code described in section 5-2-202.          “Business day” means any calendar day except Sunday, New Year's day, the third Monday in January observed as the birthday of Dr. Martin Luther King, Jr., Washington-Lincoln day, Memorial day, Independence day, Labor day, Frances Xavier Cabrini day, Veterans' day, Thanksgiving day, and Christmas day.      “Cash price” means, except as the administrator may otherwise prescribe by rule promulgated in accordance with article 4 of title 24, C.R.S., the price at which goods, services, or an interest in land is offered for sale by the seller to cash buyers in the ordinary course of business and may include the cash price of accessories or related services such as delivery, installation, servicing, repairs, alterations, modifications, and improvements and, if individually itemized, may also include:   Applicable sales, use, and excise and documentary stamp taxes; and    Amounts actually paid or to be paid by the seller for registration, certificate of title, or license fees.       The cash price stated by the seller to the buyer pursuant to the provisions on disclosure contained in section 5-3-101 is presumed to be the cash price.       “Closing costs” with respect to a debt secured by an interest in land includes:   Fees or premiums for title examination, title insurance, or similar purposes including surveys;    Fees for preparation of a deed, settlement statement, or other documents;    Escrows for future payments of taxes and insurance;    Fees for notarizing deeds and other documents;    Appraisal fees; and    Credit reports.       “Conspicuous” means a term or clause that is so written that a reasonable person against whom it is to operate ought to have noticed it. Whether a term or clause is conspicuous or not is for decision by the court. A printed heading in capitals (as: WARRANTY) is conspicuous, and language in the body of the form is conspicuous if it is in larger or other contrasting type or color. In a telegram, any stated term is conspicuous.    “Consumer” means a person other than an organization who is the buyer, lessee, or debtor to whom credit is granted in a consumer credit transaction.      “Consumer credit sale” means, except as provided in paragraph (b) of this subsection (11), a sale of goods, services, a mobile home, or an interest in land in which:   Credit is granted or arranged by a person who regularly engages as a seller in credit transactions of the same kind or pursuant to a seller credit card;    The buyer is a person other than an organization;    The goods, services, mobile home, or interest in land are purchased primarily for a personal, family, or household purpose;    Either the debt is by written agreement payable in installments or a finance charge is made; and    With respect to a sale of goods or services, the amount financed does not exceed seventy-five thousand dollars.       Unless the sale is made subject to this code by section 5-2-501, “consumer credit sale” does not include:   A sale in which the seller allows the buyer to purchase goods or services pursuant to a lender credit card or similar arrangement;    (A) Except as required by the federal “Truth in Lending Act” or the federal “Consumer Leasing Act” with respect to disclosure contained in section 5-3-101 and consumers' remedies for transactions secured by interests in land as contained in section 5-5-204, a sale of a mobile home or a sale of an interest in land if the finance charge does not exceed twelve percent per year calculated according to the actuarial method on the unpaid balances of the amount financed on the assumption that the debt will be paid according to the agreed terms and will not be paid before the end of the agreed term or, notwithstanding the rate of the finance charge with respect to the sale of an interest in land, the sale is secured by a first mortgage or deed of trust lien against a dwelling to finance the acquisition of that dwelling.    A sale for a business, investment, or commercial purpose; or    A sale primarily for an agricultural purpose.          “Consumer credit transaction” means a consumer credit sale or consumer loan, or a refinancing or consolidation thereof, or a consumer lease.    “Consumer insurance premium loan” means a consumer loan that:   Is made for the sole purpose of financing the payment by or on behalf of an insured of the premium on one or more policies or contracts issued by or on behalf of an insurer;    Is secured by an assignment by the insured to the lender of the unearned premium on the policy or contract; and    Contains an authorization to cancel the policy or contract so financed.         “Consumer lease” means a lease of goods and includes any insurance incidental to the lease and any other services merely incidental to upkeep or repair of the goods:   That a lessor regularly engaged in the business of leasing makes to a person, other than an organization, who takes under the lease primarily for a personal, family, or household purpose;    In which the amount payable under the lease does not exceed seventy-five thousand dollars; and    That is for a term exceeding four months.       “Consumer lease” does not include a lease made pursuant to a lender credit card or similar arrangement.         Except as provided in paragraph (b) of this subsection (15) and except with respect to a “loan primarily secured by an interest in land” as defined in subsection (26) of this section, “consumer loan” means a loan made or arranged by a person regularly engaged in the business of making loans in which:   The consumer is a person other than an organization;    The debt is incurred primarily for a personal, family, or household purpose;    Either the debt is by written agreement payable in installments or a finance charge is made; and    Either the principal does not exceed seventy-five thousand dollars or the debt is secured by an interest in land.       Unless the loan is made subject to this code by an agreement described in section 5-2-501, “consumer loan” does not include:   A loan for a business, investment, or commercial purpose;    A loan primarily for an agricultural purpose; or    A reverse mortgage as defined in section 11-38-102, C.R.S.       Unless the loan is made subject to this code by an agreement described in section 5-2-501 and except as provided with respect to the disclosure described in section 5-3-101, consumers' remedies for transactions secured by interests in land as described in section 5-5-204, and powers and functions of the administrator under part 1 of article 6 of this title, “consumer loan” does not include a “loan primarily secured by an interest in land” as defined in subsection (26) of this section.       “Credit” means the right granted by a creditor to a consumer to defer payment of debt or to incur debt and defer its payment. (16.5) “Credit card” means a lender credit card or a seller credit card, except as otherwise provided in this code.    “Creditor” means the seller, lessor, lender, or person who makes or arranges a consumer credit transaction and to whom the transaction is initially payable, or the assignee of a creditor's right to payment, but use of the term does not in itself impose on an assignee any obligation of his or her assignor. In case of credit granted pursuant to a credit card, “creditor” means the card issuer and not another person honoring the credit card.    “Dwelling” means a residential structure or mobile home that contains one to four family housing units or individual units of condominiums or cooperatives.    “Earnings” means compensation paid or payable to an individual or for the individual's account for personal services rendered or to be rendered by the individual, whether denominated as wages, salary, fees, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension, retirement, or disability program.    “Finance charge” means:   The sum of all charges payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or as a condition of the extension of credit, whether paid or payable by the consumer, the creditor, or any other person on behalf of the consumer to the creditor or to a third party, including any of the following types of charges that are applicable:   Interest or any amount payable under a point, discount, or other system of charges, however denominated;    Time-price differential, credit service, service, carrying, or other charge, however denominated;    Premium, or other charge for any guarantee or insurance protecting the creditor against the consumer's default or other credit loss; and    Charges incurred for investigating the collateral or credit-worthiness of the consumer or for commissions or brokerage for obtaining the credit.       The term does not include charges as a result of default described in section 5-3-302, additional charges described in section 5-2-202, delinquency charges described in section 5-2-203, or deferral charges described in section 5-2-204.    If a creditor makes a loan to a consumer by purchasing or satisfying obligations of the consumer pursuant to a credit card or similar arrangement and the purchase or satisfaction is made at less than the face amount of the obligation, the discount is not part of the finance charge.       “Goods” includes goods not in existence at the time the transaction is entered into and merchandise certificates but excludes money, chattel paper, documents of title, and instruments.    “Investment purpose” means that the primary purpose of the credit sale or loan is for future financial gain rather than for a present personal, family, or household use.    “Lender” includes an assignee of the lender's right to payment, unless otherwise provided in this code, but use of the term does not in itself impose on an assignee any obligation of the lender with respect to events occurring before the assignment.    “Lender credit card or similar arrangement” means an arrangement or loan agreement, other than a seller credit card, pursuant to which a lender gives a consumer the privilege of using a credit card, letter of credit, or other credit confirmation or identification in transactions out of which debt arises:   By the lender's honoring a draft or similar order for the payment of money drawn or accepted by the consumer;    By the lender's payment or agreement to pay the consumer's obligations; or    By the lender's purchase from the obligee of the consumer's obligations.       “Loan” includes:   Except as otherwise provided in paragraph (b) of this subsection (25):   The creation of debt by the lender's payment of or agreement to pay money to the consumer or to a third party for the account of the consumer;    The creation of debt by a credit to an account with the lender upon which the consumer is entitled to draw immediately;    The creation of debt pursuant to a lender credit card in any manner, including a cash advance or the card issuer's honoring a draft or similar order for the payment of money drawn or accepted by the consumer, paying or agreeing to pay the consumer's obligation, or purchasing or otherwise acquiring the consumer's obligation from the obligee or his or her assignees;    The forbearance of debt arising from a loan; and    The creation of debt by a cash advance to a consumer pursuant to a seller credit card.       “Loan” does not include:   A card issuer's payment or agreement to pay money to a third person for the account of a consumer if the debt of the consumer arises from a sale or lease and results from use of a seller credit card; or    The forbearance of debt arising from a sale or lease.            “Loan primarily secured by an interest in land” means a consumer loan secured by a mobile home or primarily secured by an interest in land if, at the time the loan is made the value of the collateral is substantial in relation to the amount of the loan, and:   The rate of the finance charge does not exceed twelve percent per year calculated according to the actuarial method on the unpaid balances of the principal on the assumption that the debt will be paid according to the agreed terms and will not be paid before the end of the agreed term; or    Notwithstanding the rate of the finance charge, and other than a precomputed loan as defined in subsection (35) of this section, the loan is secured by a first mortgage or deed of trust lien against a dwelling to:   Finance the acquisition of that dwelling; or    To refinance, by amendment, payoff, or otherwise, an existing loan made to finance the acquisition of that dwelling, including a refinance loan providing additional sums for any purpose whether or not related to acquisition or construction.          As to any refinance loan in the form of a revolving loan account that is in whole or in part for purposes other than acquisition or construction, section 5-3-103 shall apply.    With respect to loans secured by a first mortgage or deed of trust lien against a dwelling to refinance an existing loan to finance the acquisition of the dwelling and providing additional sums for any other purpose that are not subject to this code pursuant to paragraph (a) of this subsection (26), the lender shall disclose to the consumer that the refinance loan creates a lien against the dwelling or property and that the limits set forth in section 5-5-112 on the amount of attorney fees that a lender may charge the consumer are not applicable.    For purposes of this subsection (26):   A “loan secured by a first mortgage or deed of trust lien against a dwelling to finance the acquisition of the dwelling” includes a loan secured by a first mortgage or deed of trust lien against a dwelling to finance the original construction of such dwelling or to refinance any such construction loan;    “Dwelling” means any improved real property, or portion thereof, that is used or intended to be used as a residence and contains not more than four dwelling units; and    “First mortgage or deed of trust” means a mortgage or deed of trust having priority as a lien over the lien of any other mortgage or deed of trust on the same dwelling and subject to the lien of taxes levied on that dwelling.          “Material disclosures” means the disclosure, as required by this code, of the annual percentage rate, the method of determining the finance charge and the balance upon which a finance charge will be imposed, the amount of the finance charge, the amount to be financed, the total of payments, the number and amount of payments, and the due dates or periods of payments scheduled to repay the indebtedness.    “Merchandise certificate” means a writing not redeemable in cash and usable in its face amount in lieu of cash in exchange for goods or services.    “Mobile home” means a dwelling that is built on a chassis designed for long-term residential occupancy, that is capable of being installed in a permanent or semi-permanent location, with or without a permanent foundation, and with major appliances and plumbing, gas, and electrical systems installed but needing the appropriate connections to make them operable, and that may be occasionally drawn over the public highways, by special permit, as a unit or in sections to its permanent or semi-permanent location.    “Official fees” means:   Fees and charges prescribed by law that actually are or will be paid to public officials for determining the existence of or for perfecting, releasing, or satisfying a security interest related to a consumer credit transaction; or    Premiums payable for insurance in lieu of perfecting a security interest otherwise required by the creditor in connection with the consumer credit transaction if the premium does not exceed the fees and charges described in paragraph (a) of this subsection (30) that would otherwise be payable.       “Organization” means a corporation, limited liability company, government or governmental subdivision or agency, trust, estate, partnership, limited liability partnership, cooperative, or association.    “Payable in installments” means that payment is required or permitted by agreement to be made in more than four periodic payments, excluding a down payment. If any periodic payment other than the down payment under an agreement requiring or permitting two or more periodic payments is more than twice the amount of any other periodic payment, excluding the down payment, the consumer credit transaction is “payable in installments”.    “Person” includes a natural person or an individual and an organization.      “Person related to” means, with respect to an individual, the spouse of the individual; a brother, brother-in-law, sister, or sister-in-law of the individual; an ancestor or lineal descendant of the individual or the individual's spouse; and any other relative, by blood or marriage, of the individual or the individual's spouse who shares the same home with the individual.    “Person related to” means, with respect to an organization, a person directly or indirectly controlling, controlled by, or under common control with the organization; an officer or director of the organization or a person performing similar functions with respect to the organization or to a person related to the organization; the spouse of a person related to the organization; and a relative by blood or marriage of a person related to the organization who shares the same home with such person.       “Precomputed” means a consumer credit sale or consumer loan in which the debt is expressed as a sum comprising the amount financed and the amount of the finance charge computed in advance or in which any portion of the finance charge is prepaid and the amount of that portion of the finance charge either computed in advance or prepaid constitutes more than one-half of the total finance charge applicable to the consumer credit sale or consumer loan.    “Presumed” or “presumption” means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced that would support a finding of its nonexistence.    “Regularly” has the same meaning as stated in the federal “Truth in Lending Act” and the federal “Consumer Leasing Act”.    “Revolving credit” means an arrangement pursuant to which:   A creditor may permit a consumer, from time to time, to purchase or lease on credit from the creditor or to obtain loans from the creditor;    The amounts financed and the finance and other appropriate charges are debited to an account;    The finance charge, if made, is computed on the account periodically; and    Either the consumer has the privilege of paying in full or in installments or the creditor periodically imposes charges computed on the account for delaying payment and permits the consumer to continue to purchase or lease on credit.       “Sale of goods” includes any agreement in the form of a bailment or lease of goods if the bailee or lessee agrees to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the goods involved and it is agreed that the bailee or lessee will become, or for no other or a nominal consideration has the option to become, the owner of the goods upon full compliance with his or her obligations under the agreement.    “Sale of an interest in land” includes a lease in which the lessee has an option to purchase the interest and all or a substantial part of the rental or other payments previously made by him are applied to the purchase price.    “Sale of services” means furnishing or agreeing to furnish services and includes making arrangements to have services furnished by another.    “Seller”, except as otherwise provided, includes an assignee of the seller's right to payment, but use of the term does not in itself impose on an assignee any obligation of the seller with respect to events occurring before the assignment.    “Seller credit card” means an arrangement pursuant to which a person gives to a buyer or lessee the privilege of using a credit card, letter of credit, or other credit confirmation or identification primarily for the purpose of purchasing or leasing goods or services from that person or from that person and any other person.    “Services” includes:   Work, labor, and other personal services;    Privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals, cemetery accommodations, and the like; and    Insurance provided by a person other than the insurer.       “Supervised financial organization” means a person, other than an insurance company or other organization primarily engaged in an insurance business:   Organized, chartered, or holding an authorization certificate under the laws of any state or of the United States that authorize the person to make loans and to receive deposits, including a savings, share, certificate, or deposit account; and    Subject to supervision by an official or agency of any state or of the United States.       “Supervised lender” means a person authorized to make or take assignments of supervised loans under a license issued by the administrator or as a supervised financial organization.    “Supervised loan” means a consumer loan, including a loan made pursuant to a revolving credit account, in which the rate of the finance charge exceeds twelve percent per year as determined according to the provisions on finance charges contained in section 5-2-201.    “Written” or “in writing” means any record conveying information and that is in a form the consumer may retain, or is capable of being displayed in visual text in a form the consumer may retain, including paper, electronic, digital, magnetic, optical, and electromagnetic.     History. Source: L. 2000: Entire article R&RE, p. 1183, § 1, effective July 1; (17) amended, p. 443, § 2, effective July 1. L. 2001: (1), (5)(b)(II), (15)(a)(III), and (26)(c) amended, p. 27, § 1, effective March 9. L. 2003: (16.5) added, p. 1892, § 1, effective July 1. L. 2004: (11)(b)(II)(A) and (15)(c) amended, p. 1187, § 6, effective August 4. L. 2020: (6) amended,(HB 20-1031), ch. 43, p. 143, § 3, effective September 14.    Editor's note:    This section is similar to former § 5-1-301, as it existed prior to 2000.    Subsection (17) was amended in Senate Bill 00-144. Those amendments were duplicated in § 5-1-301 (45)(a) as contained in the repeal and reenactment of article 1 of title 5 by House Bill 00-1185.     Cross references:    For additional definitions of the days under subsection (6) of this section, see § 24-11-101.    For the definitions and federal statutory cites of the “Truth in Lending Act” and the “Consumer Leasing Act”, see § 5-1-302.    For the legislative declaration in HB 20-1031, see section 1 of chapter 43, Session Laws of Colorado 2020.     ANNOTATION   Law reviews. For article, “State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint”, see 48 Den. L.J. 239 (1971). For article, “Colorado Usury”, see 11 Colo. Law. 2557 (1982). For article, “Colorado Usury: The Sequel - Parts I and II”, see 23 Colo. Law. 565 and 829 (1994). For article, “The Colorado Equity Protection Act: A Response to Predatory Lending Practices”, see 32 Colo. Law. 79 (April 2003).   Subdivision of property and sale of lots held to be “credit transactions of the same kind” and therefore “consumer credit sales” under subsection (1)(a). Varady v. White, 661 P.2d 284 (Colo. App. 1982) (decided prior to 2000 repeal and reenactment).   Advance to tort plaintiffs in exchange for future litigation proceeds is a “loan”, even if the plaintiff has no obligation to repay a deficiency if the litigation proceeds are less than the amount due. This transaction creates a debt, or an obligation to repay, that grows with the passage of time. Oasis Legal Fin. Grp. v. Coffman, 2015 CO 63, 361 P.3d 400.   The sale and assignment of a taxpayer's right to receive an income tax refund from the internal revenue service constitutes a loan subject to the Uniform Consumer Credit Code. State ex rel. Salazar v. The Cash Now Store, Inc., 31 P.3d 161 (Colo. 2001) (decided under former § 5-3-104 as it existed prior to the 2000 repeal and reenactment).   Where the loan was for taxes and business expenses incurred by an auto repair garage, it was frivolous to argue that the loan was personal because it preserved the business for plaintiff's son. Nienke v. Naiman Group, Ltd., 857 P.2d 446 (Colo. App. 1992) (decided prior to 2000 repeal and reenactment).   Transactions were consumer credit sales, not consumer loans, where transactions involved the purchase of vehicles from a used car dealership, the arrangement of financing by the dealership, the financing of the purchases by a third party lender, and the assignment of the dealer's right to payment from the purchasers to the third party lender, and where the purchasers never directly received money from the lender. De La Rosa v. Western Funding, Inc., 24 P.3d 637 (Colo. App. 2001).   Applied in Empire Sav., Bldg. & Loan Ass'n v. Otero Sav. & Loan Ass'n, 640 P.2d 1151 (Colo. 1982) (decided prior to 2000 repeal and reenactment).