CO Code § 38-39-102 (2021)
2021 Colorado Code|Title 38 - Property - Real and Personal|Article 39 - Mortgages, Deeds of Trust, and Other Liens|Part 1 - General Provisions|§ 38-39-102. When Deed of Trust Shall Be Released - Definitions

     of subsection (3) of this section, a deed of trust to the public trustee, upon compliance with the provisions of the deed of trust, shall be released by the public trustee upon the:   Receipt of a written request from the holder of the evidence of debt secured by the deed of trust, the holder's agent or attorney, or a title insurance company providing an indemnification agreement and affidavit described in paragraph (c) of subsection (3) of this section, which request shall be duly executed and acknowledged;    Production of the original canceled evidence of debt such as a note or bond as evidence that the indebtedness secured by such deed of trust has been paid; except that such production may be omitted in the circumstances contemplated in subsection (3) of this section;    Receipt by the public trustee of the fee prescribed by section 38-37-104 (1)(a) and the fee for recording the release;    Receipt by the public trustee of a current address for the original grantor, assuming party, or current owner or either a notation on the request for release of the deed of trust or a written statement from the holder of the evidence of debt secured by the deed of trust, the title insurance company licensed and qualified in Colorado, or the holder of the original evidence of debt that is a qualified holder, as defined in section 38-38-100.3 (20), that they have no record of a current address that is different from the address of the property encumbered by the deed of trust being released; except that it shall be within the public trustee's discretion to release a deed of trust, upon compliance with the provisions of the deed of trust, if the public trustee has not received the information required pursuant to this subparagraph (IV); and    Production of the original recorded deed of trust securing the evidence of debt or a legible copy thereof.    A holder of the original evidence of debt that is a qualified holder, as defined in section 38-38-100.3 (20), shall provide the public trustee with a current address for the original grantor, assuming party, or current owner when requesting a release of a deed of trust pursuant to this paragraph (a).       Immediately upon execution of the release of the deed of trust by the public trustee, the public trustee shall cause the release to be recorded in the records of the county clerk and recorder.       If the purpose of the deed of trust has been fully or partially satisfied and the indebtedness secured by such deed of trust has not been paid, the public trustee shall release the deed of trust as to all or portions of the property encumbered by the deed of trust pursuant to the provisions of subsection (1) of this section if the request to release certifies that the purpose of the deed of trust has been fully or partially satisfied and if either the original evidence of debt is exhibited or the holder of the evidence of debt is a qualified holder.      is limited to actual economic loss suffered and any court costs and reasonable attorney fees and costs incurred in defending a claim brought as a direct and proximate result of the failure to produce the original evidence of debt, but the indemnity does not include and no claimant is entitled to any special, incidental, consequential, reliance, expectation, or punitive damages. No separate indemnification agreement shall be necessary for the agreement to indemnify to be effective.      Subject to the provisions of subparagraph (II) of this paragraph (b), with respect to either subsection (1) or (2) of this section, the holder of the evidence of debt may request the release of a deed of trust without producing or exhibiting the original evidence of debt. A holder that requests the release of a deed of trust pursuant to this paragraph (b) shall deliver to the public trustee a corporate surety bond in an amount equal to one and one-half times the original principal amount recited in the deed of trust, which corporate surety bond shall remain in full force and effect for the period described in subsection (7) of this section. (b) (I) Subject to the provisions of subparagraph (II) of this paragraph (b), with respect to either subsection (1) or (2) of this section, the holder of the evidence of debt may request the release of a deed of trust without producing or exhibiting the original evidence of debt. A holder that requests the release of a deed of trust pursuant to this paragraph (b) shall deliver to the public trustee a corporate surety bond in an amount equal to one and one-half times the original principal amount recited in the deed of trust, which corporate surety bond shall remain in full force and effect for the period described in subsection (7) of this section.    A holder of the evidence of debt shall provide the public trustee with a current address for the original grantor, assuming party, or current owner when requesting a release of a deed of trust pursuant to this paragraph (b).         Subject to the provisions of subparagraph (II) of this paragraph (c), with respect to either subsection (1) or (2) of this section, a title insurance company licensed and qualified in Colorado may request the release of a deed of trust without producing or exhibiting the original evidence of debt. A company that requests the release of a deed of trust pursuant to this paragraph (c) shall be deemed to have agreed to indemnify and defend the public trustee against any claim made within the period described in subsection (7) of this section for damages resulting from the action taken by the public trustee in accordance with the request. The indemnity granted by this paragraph (c) is limited to actual economic loss suffered and any court costs and reasonable attorney fees and costs incurred in defending a claim brought as a direct and proximate result of the failure to produce the original evidence of debt, but the indemnity does not include and no claimant is entitled to any special, incidental, consequential, reliance, expectation, or punitive damages. No separate indemnification agreement shall be necessary for the agreement to indemnify to be effective; however, the company shall provide to the public trustee an affidavit executed by an officer of the company stating that the company has caused the indebtedness secured by the deed of trust to be satisfied in full or, in the case of a partial release, to the extent required by the holder of the indebtedness. (c) (I) Subject to the provisions of subparagraph (II) of this paragraph (c), with respect to either subsection (1) or (2) of this section, a title insurance company licensed and qualified in Colorado may request the release of a deed of trust without producing or exhibiting the original evidence of debt. A company that requests the release of a deed of trust pursuant to this paragraph (c) shall be deemed to have agreed to indemnify and defend the public trustee against any claim made within the period described in subsection (7) of this section for damages resulting from the action taken by the public trustee in accordance with the request. The indemnity granted by this paragraph (c) is limited to actual economic loss suffered and any court costs and reasonable attorney fees and costs incurred in defending a claim brought as a direct and proximate result of the failure to produce the original evidence of debt, but the indemnity does not include and no claimant is entitled to any special, incidental, consequential, reliance, expectation, or punitive damages. No separate indemnification agreement shall be necessary for the agreement to indemnify to be effective; however, the company shall provide to the public trustee an affidavit executed by an officer of the company stating that the company has caused the indebtedness secured by the deed of trust to be satisfied in full or, in the case of a partial release, to the extent required by the holder of the indebtedness.    A title insurance company licensed and qualified in Colorado shall provide the public trustee with a current address for the original grantor, assuming party, or current owner when requesting a release of a deed of trust pursuant to this paragraph (c). (3.5) Venue for any action based upon the indemnification agreement specified in paragraph   of subsection (3) of this section shall be proper only in the county in which the public trustee receiving the certification is located.             A public trustee shall have no duty to retain the original canceled evidence of debt or deed of trust upon a release granted pursuant to this section.    The lien represented by a deed of trust to the public trustee that secures an obligation other than an evidence of debt shall be released by the public trustee pursuant to the provisions of subsection (1) of this section as to all or portions of the property encumbered by the deed of trust upon the:   Receipt of a written request of the beneficiary or assignee of such deed of trust, which request shall be duly executed and acknowledged;    Presentation to the public trustee of an affidavit of such beneficiary or assignee stating that the purpose of the deed of trust has been fully or partially satisfied; and    Receipt by the public trustee of the fee prescribed by section 38-37-104 (1)(a) and the fee for recording the release.       The public trustee shall have no liability to any person, and no action may be commenced against the public trustee, as a result of issuing a release or partial release of a deed of trust under subsection (3) of this section, unless such action is commenced within six years from the date of the recording of such release or partial release or within the period of time prescribed by any statute of limitation of this state in which a suit to enforce payment of the indebtedness or performance of the obligation secured by said deed of trust may be commenced, whichever is less. Nothing in this article shall be construed to waive immunity of a public trustee that is provided in sections 24-10-101 to 24-10-120, C.R.S.    The indemnification agreements or the corporate surety bond described in this section shall, in each case, remain effective for the time period described in subsection (6) of this section or until such time as any claim made against the public trustee within such time period has been finally resolved, whichever is longer.    If the written request to release the lien of any deed of trust is a fraudulent request, the release by the public trustee based upon such request shall be void. (8.5) If a deed of trust is improperly recorded in the office of the clerk and recorder of a county other than the county in which the real property is located, the deed of trust must be recorded in the correct county before the public trustee may release the deed of trust. The public trustee of a county other than the county wherein the real property is located shall not release the deed of trust.    For purposes of this section, unless the context otherwise requires:   “Assuming party” means a person other than the original grantor who paid off the indebtedness on behalf of the original grantor.    “Current address” means the most recent address reflected in the records of a holder of the evidence of debt, a title insurance company licensed and qualified in Colorado, or a holder of the original evidence of debt that is a qualified holder, as defined in section 38-38-100.3 (20). If a holder of the evidence of debt, a title insurance company licensed and qualified in Colorado, or a holder of the original evidence of debt that is a qualified holder, as defined in section 38-38-100.3 (20), has no record of a current address, any requirement that a current address be provided shall be deemed satisfied by indicating that fact.    “Current owner” means a person other than the original grantor who currently owns the property and has either paid off or taken over the indebtedness on behalf of the original grantor.        History. Source: L. 90: Entire article R&RE, p. 1675, § 3, effective October 1. L. 92: (1) to (3) and (5) amended and (6) to (8) added, p. 2093, § 5, effective July 1. L. 93: (1)(a)(I) amended, p. 254, § 1, effective July 1. L. 97: (1)(a), (2), (6), and (7) amended and (3.5) added, p. 1420, § 1, effective September 1. L. 2000: IP(3.5)(b)(IV) and (3.5)(b)(V) amended, p. 1874, § 113, effective August 2. L. 2002: (3)(c) amended, p. 1348, § 16, effective July 1. L. 2003: (3)(a), (3.5)(b)(I), and (3.5)(b)(II) amended, p. 1212, § 26, effective July 1. L. 2007: (1), (2), (3), (3.5), and IP(5) amended, p. 1845, § 25, effective January 1, 2008. L. 2008: (1)(a), (2), and (3) amended and (9) added, p. 566, § 1, effective April 21. L. 2009: (1)(a)(III) and (1)(a)(IV) amended and (1)(a)(V) added,(HB 09-1207), ch. 164, p. 721, § 21, effective September 1. L. 2012: (8.5) added,(SB 12-030), ch. 96, p. 325, § 13, effective September 1.    Editor's note:   This section is similar to former § 38-37-123 , as it existed prior to 1990.   ANNOTATION   Law reviews. For article, “Discharge of Security Transactions”, see 26 Rocky Mt. L. Rev. 115 (1954).   Annotator's note. Since § 38-39-102 is similar to § 38-37-123 as it existed prior to the 1990 repeal and reenactment of article 37 and this article, relevant cases construing that provision have been included in the annotations to this section.   Compliance with this section is necessary to effect a release or partial release of a deed of trust. Himes v. Schiro, 711 P.2d 1281 (Colo. App. 1985).   And thus the attempt by a manager of a title company to amend the legal description in a recorded deed of trust to exclude a particular parcel of land by adding a statement that the trust deed was being re-recorded “to correct” the legal description did not remove encumbrance created by deed nor effect a partial release of such land. Himes v. Schiro, 711 P.2d 1281 (Colo. App. 1985); In re Hampden Ctr., Ltd., 123 B.R. 892 (Bankr. D. Colo. 1991 ).   Subsection (8) creates a narrow exception that voids a public trustee's deed of trust only if a preponderance of the evidence demonstrates proof of actual fraud. Shaw v. 17 W. Mill St., LLC, 2013 CO 37, 307 P.3d 1046.   Unauthorized release deed ineffectual to discharge encumbrance. A release deed made by a trustee in a deed of trust without authority from the holder of the notes secured thereby is ineffectual to discharge the encumbrance. Harker v. Scudder, 15 Colo. App. 69, 61 P. 197 (1900).   When trustee may reconvey title discharged of encumbrance. It is only after the trust is carried out and the power to sell is extinguished by payment that it is possible for a trustee in a deed of trust to reconvey the title discharged of the encumbrance. Harker v. Scudder, 15 Colo. App. 69, 61 P. 197 (1900).   Subsequent encumbrancer has duty to inquire of the holder of the notes secured whether the release made by the trustee is authorized. Harker v. Scudder, 15 Colo. App. 69, 61 P. 197 (1900).   Parties to a note secured by a mortgage may substitute a new note for the original without impairing the security, although the terms of the two notes are not identical, so long as the original secured debt remains unpaid and there is no increase in the debt. A lien established by a mortgage secures an indebtedness, and a mere change in the form of the evidence of indebtedness as in the mode or time of payment does not in itself operate to discharge the mortgage. United Bank of Lakewood v. Jefferson Ind. Bk., 791 P.2d 1250 (Colo. App. 1990).   The lien on the deed of trust was extended to secure the same obligation by an amended promissory note, which is distinguishable from situation where a promissory note secured by a deed of trust was fully satisfied and discharged, thus extinguishing the lien on the property. United Bk. of Lakewood v. Jefferson Ind. Bk., 791 P.2d 1250 (Colo. App. 1990).