To Whom it May Concern - CO Courts€¦ · To Whom it May Concern: I strongly support the purposed changes to C.R.C.P. 120. The rule as currently draft is confusing, misleading, and

To Whom it May Concern:

I strongly support the purposed changes to C.R.C.P. 120. The rule as currently draft is confusing, misleading, and is not functional given the current state of foreclosures. The purposed changes of the rule update the rule in plain language and makes it accessible and understandable to practitioners and Pro Se homeowners. Colorado law must be written in a way that citizens understand how to comply with the law. Given that most foreclosure actions are defended by Pro Se parties the law as written must be amended.

The current rule is confusing, unfair and often results in widely different interpretations by judges on a county-by-county basis. There are three major deficiencies in the current version of the rule: First, the current rule is wholly lopsided in favor of the movants. The current rule allows a movant to file a motion without providing any documentation or support demonstrating the grounds upon which the default is claimed. This often leaves respondents in the dark and provides them little or no information in which to base any defense to the motion. However, the current version of the rule requires any respondent to verify his response under oath and requires the respondent to provide all documents in support of the response. Such requirements in the current rule are wholly lopsided, and much different than how plaintiff’s are treated in other areas of law (i.e. with the burden on their shoulders). Second, the notice and hearing requirements are very confusing to homeowners. The notice of hearing provides for a hearing date that is simply non-existent and does not actually occur at all - which leads to a substantial amount of confusion for practitioners and homeowners. Third, the scope of the hearing does not align with current case law and statutory requirements. The rule as currently written fails to account for current laws and well-settled case law. As such, the courts decisions as to the current scope of the C.R.C.P 120 vary from county to county. The rule should be uniform to promote a standard of conformity throughout Colorado.

The proposed revision is the group effort proposed by the foreclosure industry to streamline and clarify the current rule. It is strongly supported within the industry. The proposed rule changes are in plain language and seek to modernize the rule to make it more approachable to individuals and attorneys alike. The new rule levels the documentary standard for both parties in which the movant must provide clear documentation in support of the motion. Second, the confusing “Notice of Hearing” and the initial hearing is wholly removed and replaced with a clear and concise process that provides the respondent with a clear date to submit a written response objecting to the motion. Third, the scope of the C.R.C.P. 120 hearing has been amended to align the rule with current practice standards and case law.

These changes are extremely important to improve judicial access and clarity to each and every Colorado homeowner who are subject to the C.R.C.P. 120 process and as such, I strongly support this changes.

Sincerely,

/s Michelle McCarthy, #44525

1760 GAYLORD STREET, DENVER COLORADO 80206 TELEPHONE: 303-618-2122

KEITH GANTENBEIN

MATTHEW S. COOMBS

TYLER C. MURRAY

MATTHEW J. DALL

MICHELLE MCCARTHY

JENNIFER HALL

PO BOX 777 ● WHEAT RIDGE CO 80034 ● P: 303-618-2122 EMAIL: [email protected]

April 5, 2016

VIA ELECTRONIC MAIL ONLY

Mr. Christopher Ryan

Clerk of the CO Supreme Court

2 East 14th Ave.

Denver, CO 80203

[email protected]

To Whom It May Concern:

I support the purposed changes to C.R.C.P. 120, as it will improve the current version of

the rules. The purposed changes must be adopted in order to clarify what are very confusing and

outdated rules. Any changes in the rules will greatly improve a Pro Se homeowner’s

understanding of the rules.

There is confusion amongst respondents regarding the hearing process. Such hearing

process needs to be rectified and is in need of revision to align itself with current case law. The

rules fail to account for current laws and well-settled case law. As the rules currently rest, the

courts’ decisions as to the current scope of C.R.C.P 120 consistently vary wildly from county to

county. Therefore, the rules must be uniform to promote conformity and uniform understanding

throughout the Colorado court system.

The proposed rule changes are in plain language and seek to modernize the rules to make

them more approachable to individuals and attorneys alike. The rules have been rewritten to be

clear and concise. I strongly support these changes for the benefit of Colorado homeowners and

the judicial system.

GANTENBEIN LAW FIRM

/s/ Matthew J. Dall

MATTHEW J. DALL, ESQ.

MJD

Enc:

cc:

mailto:[email protected]

To Whom it May Concern,

I support the proposed changes to CRCP 120. I take this position based on the fact that the current rule does little to provide homeowners with sufficient due process before a foreclosure sale can occur and is confusing and misleading, especially for unrepresented parties.

The current scope of the rule is so narrow that it does not provide any latitude for judges to consider the wide range of situations that distressed homeowners experience while they navigate the foreclosure process. As it is currently written, the bench can consider little more than whether or not the homeowner is in the military and whether or not there is a reasonable probability of default. The simple fact is that oftentimes the default has been caused by malfeasance of the lender or servicer, yet only the existence of the default is determinative of the outcome of the matter. Disallowing homeowners from presenting evidence of extenuating circumstances that sometimes have developed over an significant period of time bars the respondents to motions for order authorizing sale a meaningful hearing and reduces the process to little more than a rubber stamping process. The new proposed rule will expand the ability of the judiciary to thoughtfully consider the specific circumstances of each matter.

Additionally, the rule is misleading and needs to be clarified. The notice of hearing that the rule currently requires notifies the homeowner of a hearing that is not a hearing at all. In fact, if the homeowner attends the “hearing” to assert their defenses, the deadline for them to file any sort of response has actually already lapsed. The new rule replaces this nonsensical approach with a more easily understandable and informative process that will allow homeowners the opportunity to present their defenses.

The new rule should be adopted in order to level the playing field for homeowners in this part of the foreclosure process. Individuals that find themselves in the CRCP 120 court are already in distressed situations, having them unnecessarily confused and discouraged by the system itself does little to further due process. The proposed changes move the system in the right direction.

Matthew S. Coombs

The Gantenbein Law Firm

April 6, 2016 VIA ELECTRONIC MAIL Mr. Christopher Ryan Clerk of the Colorado Supreme Court 2 E. 14th Avenue Denver, CO 80203 Email Address: [email protected]

Re: Proposed changes to Rule 120 of the Colorado Rules of Civil Procedure

Dear Mr. Ryan:

On behalf of the Colorado Mortgage Lenders Association (“CMLA”), the Independent Bankers of Colorado (“IBC”), the Colorado Bankers Association (“CBA”), the Colorado Association of Realtors (“CAR”), and the Land Title Association of Colorado (“LTAC”), we would like to thank the Colorado Supreme Court for the opportunity to comment upon the proposed changes to Rule 120 of the Colorado Rules of Civil Procedure. All of our organizations are non-profit trade associations designed to represent the interests of each organization’s members. CMLA, IBC and CBA are comprised of mortgage lenders, mortgage brokers, credit unions and large and small, independent and affiliated banks located across the State. The members of these three organizations originate and service residential and commercial loans across Colorado. CAR is made up of real estate brokers who work with both residential and commercial real estate. LTAC is a trade association comprised of title professionals who are involved in insuring lenders in their commercial and residential lending transactions and oftentimes insure the title to properties through the foreclosure process. CMLA, IBC, CBA CAR, and LTAC will be collectively referred to herein as “Our Organizations.”

Historically, C.R.C.P. 120 has offered an effective, efficient mechanism to provide notice and an opportunity to be heard in conjunction with Colorado’s non-judicial foreclosure system. Our Organizations are concerned the proposed changes will adversely impact the efficiency and expedited nature of that process without enhancing protections for borrowers and other affected parties. These concerns are explained below.

I. The Legislature Has Refused to Adopt Similar Revisions to C.R.C.P. 120.

As background, we note that some of the proposed changes to C.R.C.P. 120 have been considered and rejected by the state legislature. For example, HB13-1249, Section 5 as introduced (attached hereto) attempted to rewrite and transform the scope of the C.R.C.P 120

proceeding by amending the language of C.R.S. §38-38-105. To a lesser extent, HB12-1156, Section 2, as introduced (attached hereto) was similarly aimed at altering the scope of the C.R.C.P. 120 process. These bills were defeated in the legislature after extensive hearings. Thus, the legislature, after due deliberation, determined not to alter the current system. Further, proponents of two ballot initiatives seeking to accomplish the same objectives as the failed legislation were unable to garner the requisite number of valid signatures to be placed on the ballot.

II. There Are Strong Public Policy Reasons In Favor Of An Efficient Public Trustee Foreclosure Process.

A recent study has established that an efficient foreclosure process is an important factor in enhancing homeowner equity. As reported by the Washington Post through its columnist Kenneth Harney, “…Real Estate markets rebound much faster in areas where state law permits foreclosures to proceed quickly, moving homes with defaulted loans into new owners’ hands expeditiously, rather than allowing them to sit and deteriorate, tied up in court procedures for years.”1 The study compared the recoveries of real estate markets in states that required a more time-consuming judicial foreclosure process with states that had faster, non-judicial foreclosures. The conclusion that a more efficient foreclosure process is beneficial for homeowners as a whole seems borne out in Colorado. According to the Mortgage Bankers Association’s National Delinquency Survey 4th Quarter 2015 (attached), Colorado had the lowest percentage of loans in foreclosure in the United States of any state in the nation. The proposed changes risk slowing the foreclosure process to such an extent that lenders will choose judicial foreclosures as the more expeditious process, in effect converting Colorado into a judicial foreclosure state. The Mortgage Bankers Association National Survey 4th Quarter 2015 (attached) also demonstrates that states that mandate judicial foreclosures have consistently had a higher percentage of loans in foreclosure as compared to non-judicial states.

III. The Current Version of Rule 120 Should Be Retained.

Our Organizations respectfully submit that the current version of C.R.C.P. 120 be retained, as is. Alternatively, we offer the following comments and suggested revisions to address specific provisions that create ambiguities or are duplicative.

1. “(a) Motion …and shall be verified by a person with direct knowledge who is competent to testify regarding the facts stated in the motion.” Currently, the C.R.C.P. 120 motion must be verified by counsel for the moving party. In signing the motion, counsel is bound not only under the penalty of perjury, but also under C.R.C.P. 11. Counsel must review the business records of the moving party and verify the allegations of the motion. Lawyers are subject to sanctions by the lower courts and discipline by this court if these standards are violated, so there is already in place effective safeguards against wrongful filings. This new requirement is therefore duplicative and does not remedy a particular defect or problem with the current procedure.

1 https://www.washingtonpost.com/realestate/prompt-foreclosures-may-spur-recovery-of-housing-prices-overall--appraisal-firm-finds/2013/11/26/0ebce15a-55f5-11e3-835d-e7173847c7cc_story.html

In addition, the term “direct” knowledge is ambiguous. It is necessary to rely on business records in the Rule 120 motion and a hearing on the motion and it is unclear whether the requirement of “direct” knowledge somehow limits the longstanding use of such business records for this purpose. In other words, is “direct” knowledge different than “personal” knowledge, as required by evidentiary rules?

2. “(a)(1)(B)…the motion shall state the name and last known address, as shown by the real property records of the clerk and recorder…” Under the current version of C.R.C.P. 120 as written, there is not a limitation on the scope of the real property records the moving party must search. There are instances where documents are recorded in the incorrect county, in various counties such as a transcript of judgment or where a property is situated in more than one county. Our organizations request that this provision be modified to provide: “…the motion shall state the name and last known address, as shown by the real property records of the clerk and recorder of the county where the property or any portion thereof is located…” to provide clarification and coincide with the notice provisions of C.R.S. §38-38-100.3 (1.5)(b).

3. “(a)(1)(B)(iv)…or is otherwise subordinate to the lien of the deed of trust” creates uncertainty because it calls upon the moving party to reach a legal conclusion as to liens that may achieve priority, even though they may be recorded after the deed of trust under the Colorado recording statute, C.R.S. §38-35-109, or by virtue of a recorded subordination agreement. Mechanic’s liens, homeowner’s association liens, liens subordinate by operation of the purchase money security interest theory or doctrine of equitable subrogation are some of the interests which may achieve priority over a recorded interest, even if recorded later. Currently, the language of C.R.C.P. 120 requires the motion to state the names and addresses of those persons who appear to have acquired a record interest in the real property recorded within a specific window of time; “subsequent to the recording of such deed of trust and prior to the recording of the notice of election and demand for sale, whether by deed, mortgage judgment or other interest of record.” Our Organizations believe the language “or is otherwise subordinate to the lien of the deed of trust” should be omitted.

4. “(b)(4)…If the moving party or authorized servicer, if different, is not authorized to modify the evidence of debt, the notice shall state in addition the name, mailing address, and telephone number of the person authorized to modify the evidence of debt.” As a practical matter, large institutional lenders and servicers have loss mitigation departments established to address loan modification requests. However, due to loan servicing guidelines imposed by governmental agencies, Government Sponsored Enterprises (“GSE”s), and private investors, the authorization to modify the evidence of debt often does not fall to one entity and certainly not to one person. For many non-governmental, non-GSE loans outside the purview of the Home Affordable Modification Program (“HAMP”), there is not an absolute right to be considered for or receive a loan modification. Providing the name and mailing address of the moving party and any authorized servicer, if different, provides an adequate point of contact for a borrower for purposes of inquiring into loss mitigation options. The proposed language above should be deleted.

5. “(d)(1)(D) whether the status of any request for a loan modification agreement bars a foreclosure sale as a matter of law” is inconsistent with the Consumer Financial Protection Bureau (“CFPB”) regulations and C.R.S. §38-38-103.2. The CFPB regulations and Colorado statute refer to submission of a “complete loss mitigation application” (see C.R.S. § 38-38-

103.2(3)), rather than a “request for a loan modification agreement.” The language should be changed to comport with the federal regulation and Colorado statute by substituting the following language: “(d)(1)(D) whether the borrower has received confirmation that a complete loss mitigation application has been submitted at least thirty-seven days prior to the sale date or a loss mitigation option has been offered and accepted and the borrower is complying with its provisions.”

6. “(g) . . . This order shall not have preclusive effect on the parties in any action for a deficiency judgment or in a civil action challenging the right of the moving party to foreclosure or seeking to set aside the foreclosure sale.” This addition contains wording that implies a foreclosure sale is not final. Under Colorado law, a foreclosure is final notwithstanding the Return of Sale/Order Approving Sale, and courts may set aside the foreclosure sale only under very limited circumstances. Hence, this addition to the subsection should be deleted or contain the same language as set forth in (d)(4) providing that the order is without prejudice to the right of any person to seek separate relief in any court of competent jurisdiction.

7. There is ambiguity with regard to “(D)(2) – If no response has been filed by the

deadline and if the “court is satisfied that venue is proper and the moving party is entitled to an order authorizing sale the court shall forthwith enter an order authorizing sale” when read with other sections of C.R.C.P. 120. The proposed changes create a question as to what the moving party must state in its verified motion to satisfy the court that it is entitled to an order authorizing sale. The proposed (a)(1), defines the contents of the motion. The proposed (d)(1) outlines the scope of the hearing if a response is filed. Must the moving party provide proof in its motion that it is the real party in interest when that is not a requirement of (a)(1) and does not become an issue unless raised in a response? We submit that such proof should not be required if not raised in a response. CMLA, IBC, CBA, LTAC and CAR appreciate the consideration of their comments by the Colorado Supreme Court. If any of us can offer any additional information or documentation to assist, please do not hesitate to contact any of us directly.

Sincerely,

/s/ Terry K. Jones /s/ Barbara M A Walker Terry K. Jones, CMB, CML Barbara M A Walker Co-Chair, Legislative and Regulatory Affairs Committee Executive Director Colorado Mortgage Lenders Association Independent Bankers of Colorado 4380 S. Syracuse Street, #315 1900 Grant St., #1120 Denver, CO 80237 Denver, CO 80203

/s/ Jenifer Waller /s/ Meghan N. Pfanstiel Jenifer Waller Meghan N. Pfanstiel, AICP Senior Vice President Executive Director Colorado Bankers Association Land Title Association of Colorado 140 E. 19th Ave., #400 P.O. Box 102618 Denver, CO 80203 Denver, CO 80250 /s/ Alan Lovitt Alan Lovitt 2016 Chairman Colorado Association of Realtors 309 Inverness Way S. Englewood, CO 80112

Second Regular SessionSixty-eighth General Assembly

STATE OF COLORADOINTRODUCED

LLS NO. 12-0186.01 Duane Gall x4335 HOUSE BILL 12-1156

House Committees Senate CommitteesEconomic and Business Development

A BILL FOR AN ACT

CONCERNING MEASURES TO IMPROVE THE RELIABILITY OF101

INFORMATION PROVIDED IN CONNECTION WITH REAL ESTATE102

FORECLOSURES.103

Bill Summary

(Note: This summary applies to this bill as introduced and doesnot reflect any amendments that may be subsequently adopted. If this billpasses third reading in the house of introduction, a bill summary thatapplies to the reengrossed version of this bill will be available athttp://www.leg.state.co.us/billsummaries.)

Current law allows a "holder of an evidence of debt" (holder),generally, a bank or other financial institution, to foreclose on realproperty under a deed of trust even if the holder's interest is based on anassignment from the original lender and the assignment or other

HOUSE SPONSORSHIPMcCann, Duran, Fields, Kefalas, Lee, Vigil

SENATE SPONSORSHIPJohnston,

Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.Capital letters indicate new material to be added to existing statute.Dashes through the words indicate deletions from existing statute.

intermediate documents are not produced, simply by providing astatement from the holder's attorney that the holder's interest in theproperty is valid. Sections 1 and 3 of the bill remove this provision andotherwise tighten the rules for documentation of the holder's interest thatmust be filed with the public trustee before a foreclosure sale isauthorized.

Section 2 amends provisions governing the court order authorizingsale by a public trustee (rule 120 order, referring to C.R.C.P. 120) to placethe burden of proof on the holder in all cases to demonstrate that theholder does in fact have a valid assignment or other basis for its assertionthat it is entitled to foreclose on the property. Section 2 also explicitlystates that the rule 120 order is not a final judgment adjudicating allclaims of rights and interests in the property, as a judgment under rule105 (a "quiet title judgment") would be.

Section 4 suspends any eviction proceeding if the rule 120 orderhas been challenged, until the challenge is resolved.

Be it enacted by the General Assembly of the State of Colorado:1

SECTION 1. In Colorado Revised Statutes, 38-38-101, amend2

(1) introductory portion, (1) (b) introductory portion, (1) (b) (II), (1) (c)3

introductory portion, (1) (c) (II), (1) (g), (2) (a), and (8); repeal (6) (b);4

and add (1) (i) and (1) (j) as follows:5

38-38-101. Holder of evidence of debt may elect to foreclose.6

(1) Documents required. Whenever a holder of an evidence of debt7

declares a violation of a covenant of a deed of trust and elects to publish8

all or a portion of the property therein described IN THE DEED OF TRUST9

for sale, the holder or the attorney for the holder shall file the following10

with the public trustee of the county where the property is located:11

(b) The original evidence of debt, including any modifications to12

the original evidence of debt, together with AND the original indorsement13

or assignment thereof OF THE EVIDENCE OF DEBT, if any, to the holder of14

the evidence of debt or other proper indorsement or assignment in15

accordance with subsection (6) of this section or, in lieu of the original16

HB12-1156-2-

evidence of debt, one of the following:1

(II) A copy of the evidence of debt and a certification AN2

AFFIDAVIT signed and properly acknowledged by a THE holder of an THE3

evidence of debt, acting for itself or as agent, nominee, or trustee under4

subsection (2) of this section, or a statement signed by the attorney for5

such holder citing the paragraph of section 38-38-100.3 (20) under which6

the holder claims to be a qualified holder and certifying or stating that the7

copy of the evidence of debt is true and correct and that the use of the8

copy is subject to the conditions described in paragraph (a) of subsection9

(2) of this section; or10

(c) The original recorded deed of trust securing the evidence of11

debt and any original recorded modifications of the deed of trust or any12

recorded partial releases of the deed of trust, or in lieu thereof OF THE13

ORIGINAL RECORDED DEED OF TRUST, MODIFICATIONS, OR PARTIAL14

RELEASES, one of the following:15

(II) Copies of the recorded deed of trust and any recorded16

modifications of the deed of trust or recorded partial releases of the deed17

of trust and a certification AN AFFIDAVIT signed and properly18

acknowledged by a THE holder of an THE evidence of debt, acting for19

itself or as an agent, nominee, or trustee under subsection (2) of this20

section, or a signed statement by the attorney for such holder citing the21

paragraph of section 38-38-100.3 (20) under which the holder claims to22

be a qualified holder and certifying or stating that the copies of the23

recorded deed of trust and any recorded modifications of the deed of trust24

or recorded partial releases of the deed of trust are true and correct and25

that the use of the copies is subject to the conditions described in26

paragraph (a) of subsection (2) of this section;27

HB12-1156-3-

(g) A statement, executed by the holder of an THE evidence of1

debt, or the attorney for such holder, identifying, to the best knowledge2

of the person executing such THE statement, the name and address of the3

current owner of the property described in the notice of election and4

demand; and5

(i) COPIES OF ALL DOCUMENTS NOT OTHERWISE LISTED IN6

PARAGRAPHS (a) TO (h) OF THIS SUBSECTION (1) SHOWING AN UNBROKEN7

SERIES OF INTERVENING INDORSEMENTS OR ASSIGNMENTS BETWEEN THE8

ORIGINAL EVIDENCE OF DEBT SECURED BY THE DEED OF TRUST AND THE9

HOLDER FILING THE NOTICE OF ELECTION AND DEMAND; AND10

(j) IF THE PERSON COMMENCING THE FORECLOSURE IS ACTING AS11

AN AGENT, NOMINEE, OR TRUSTEE FOR ANOTHER PERSON, DOCUMENTS12

DEMONSTRATING THE PERSON'S AUTHORIZATION TO ENFORCE THE13

EVIDENCE OF DEBT.14

(2) Foreclosure by qualified holder without original evidence15

of debt, original or certified copy of deed of trust, or proper16

indorsement. (a) (I) A qualified holder, whether acting for itself or as17

agent, nominee, or trustee under section 38-38-100.3 (20) (j), that elects18

to foreclose without the original evidence of debt pursuant to19

subparagraph (II) of paragraph (b) of subsection (1) of this section, or20

without the original recorded deed of trust or a certified copy thereof OF21

THE ORIGINAL RECORDED DEED OF TRUST pursuant to subparagraph (II) of22

paragraph (c) of subsection (1) of this section, or without the proper23

indorsement or assignment of an evidence of debt under paragraph (b) of24

subsection (1) of this section, shall, by operation of law, be deemed to25

have agreed AGREES to indemnify and defend:26

(A) Any person liable for repayment of any portion of the original27

HB12-1156-4-

evidence of debt in the event that the original evidence of debt is1

presented for payment to the extent of any amount, other than the amount2

of a deficiency remaining under the evidence of debt after deducting the3

amount bid at sale; and4

(B) Any person who sustains a loss due to any title defect that5

results from reliance upon a sale at which the original evidence of debt6

was not presented. The indemnity granted by this subsection (2) shall be7

limited to actual economic loss suffered together with any court costs and8

reasonable attorney fees and costs incurred in defending a claim brought9

as a direct and proximate cause of the failure to produce the original10

evidence of debt, but such indemnity shall not include, and no claimant11

shall be entitled to, any special, incidental, consequential, reliance,12

expectation, or punitive damages of any kind.13

(II) A qualified holder acting as agent, nominee, or trustee shall14

be IS liable for the indemnity pursuant to this subsection (2).15

(6) Indorsement or assignment. (b) Notwithstanding the16

provisions of paragraph (a) of this subsection (6), the original evidence17

of debt or a copy thereof without proper indorsement or assignment shall18

be deemed to be properly indorsed or assigned if a qualified holder19

presents the original evidence of debt or a copy thereof to the officer20

together with a statement in the certification of the qualified holder or in21

the statement of the attorney for the qualified holder pursuant to22

subparagraph (II) of paragraph (b) of subsection (1) of this section that23

the party on whose behalf the foreclosure was commenced is the holder24

of the evidence of debt.25

(8) Assignment or transfer of debt during foreclosure.26

(a) (I) The holder of the evidence of debt may assign or transfer the27

HB12-1156-5-

secured indebtedness at any time during the pendency of a foreclosure1

action without affecting the validity of the secured indebtedness. Upon2

receipt of written notice signed by the holder who commenced the3

foreclosure action or the attorney for the holder stating that the evidence4

of debt has been assigned and transferred and identifying the assignee or5

transferee, the public trustee shall complete the foreclosure as directed by6

the assignee or transferee or the attorney for the assignee or transferee.7

(II) EACH ASSIGNEE OR TRANSFEREE DESCRIBED IN8

SUBPARAGRAPH (I) OF THIS PARAGRAPH (a) SHALL COMPLY WITH THE9

DOCUMENTATION REQUIREMENTS OF PARAGRAPHS (i) AND (j) OF10

SUBSECTION (1) OF THIS SECTION AND SHALL SUPPLEMENT THE RECORD11

ACCORDINGLY.12

(III) No A holder of an evidence of debt, certificate of purchase,13

or certificate of redemption shall be IS NOT liable to any third party for the14

acts or omissions of any assignee or transferee that occur after the date of15

the assignment or transfer.16

(b) The assignment or transfer of the secured indebtedness during17

the pendency of a foreclosure shall be deemed IS made without recourse18

unless otherwise agreed in a written statement signed by the assignor or19

transferor. The holder of the evidence of debt, certificate of purchase, or20

certificate of redemption making the assignment or transfer and the21

attorney for the holder shall have no duty, obligation, or liability to the22

assignee or transferee or to any third party for any act or omission with23

respect to the foreclosure or the loan servicing of the secured24

indebtedness after the assignment or transfer. If an assignment or transfer25

is made by a qualified holder that commenced the foreclosure pursuant to26

subsection (2) of this section, the qualified holder's indemnity under said27

HB12-1156-6-

subsection (2) shall remain in effect with respect to all parties except to1

the assignee or transferee, unless otherwise agreed in a writing signed by2

the assignee or transferee if the assignee or transferee is a qualified3

holder.4

(c) If an assignment or transfer is made to a holder of an evidence5

of debt other than a qualified holder, the holder must SHALL file with the6

officer the original evidence of debt and the original recorded deed of7

trust or, in lieu thereof OF THE ORIGINAL DOCUMENTS, the documents8

required in paragraphs (b) and (c) of subsection (1) of this section. An9

assignee or transferee shall be presumed to not be a qualified holder, and10

as such, shall be subject to the provisions of this paragraph (c), unless a11

signed statement by the attorney for such assignee or transferee that cites12

the paragraph of section 38-38-100.3 (20) under which the assignee or13

transferee claims to be a qualified holder is filed with the officer.14


(2) (a) as follows:16

38-38-105. Court order authorizing sale mandatory - notice of17

hearing for residential properties. (2) (a) (I) On and after January 1,18

2008, Whenever a public trustee forecloses upon a deed of trust under this19

article, the holder of the evidence of debt or the attorney for the holder20

shall obtain an order authorizing sale from a court of competent21

jurisdiction to issue the same pursuant to rule 120 or other rule of the22

Colorado rules of civil procedure. The order shall MUST recite the date the23

hearing was scheduled if no hearing was held, or the date the hearing was24

completed if a hearing was held, which date in either case must be no25

later than the day prior to the last day on which an effective notice of26

intent to cure may be filed with the public trustee under section27

HB12-1156-7-

38-38-104.1

(II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND2

REGARDLESS OF WHETHER A HEARING IS HELD, THE COURT SHALL REVIEW3

THE APPLICATION AND SUPPORTING DOCUMENTS FILED BY THE APPLICANT4

FOR THE ORDER AUTHORIZING SALE AND SHALL MAKE SPECIFIC FINDINGS5

ON THE FOLLOWING ISSUES:6

(A) WHETHER THE APPLICANT IS THE HOLDER OF THE EVIDENCE OF7

DEBT;8

(B) WHETHER THE APPLICANT IS THE REAL PARTY IN INTEREST TO9

FORECLOSE THE DEBT;10

(C) WHETHER THE APPLICANT HAS LEGAL STANDING TO11

FORECLOSE THE DEBT; AND12

(D) WHETHER THE DOCUMENTS PROVIDED BY THE APPLICANT ARE13

AUTHENTIC AND SUFFICIENT TO RESOLVE THE ISSUES IDENTIFIED IN14

SUB-SUBPARAGRAPHS (A) TO (C) OF THIS SUBPARAGRAPH (II).15

(III) THE COURT SHALL SET FORTH ALL FINDINGS ON THE ISSUES16

IDENTIFIED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH (a) IN THE COURT'S17

ORDER THAT EITHER GRANTS OR DENIES THE APPLICATION FOR AN ORDER18

AUTHORIZING SALE. THE BURDEN OF PROOF IS ON THE APPLICANT TO19

DEMONSTRATE COMPLIANCE WITH ALL DOCUMENTATION REQUIREMENTS20

SET FORTH IN THIS ARTICLE AS PART OF ITS APPLICATION FOR AN ORDER21

AUTHORIZING SALE.22

(IV) A sale held without an order authorizing sale issued in23

compliance with this paragraph (a) shall be IS invalid.24

(V) AN ORDER AUTHORIZING SALE THAT IS ISSUED PURSUANT TO25

THIS SECTION IS NOT A FINAL JUDGMENT AND IS ENTERED WITHOUT26

PREJUDICE TO ANY PARTY SEEKING INJUNCTIVE OR OTHER RELIEF,27

HB12-1156-8-

INCLUDING A COMPLETE ADJUDICATION OF ALL CLAIMS OF RIGHTS AND1

INTERESTS IN THE SUBJECT PROPERTY UNDER C.R.C.P. 105 IN A COURT OF2

COMPETENT JURISDICTION.3

SECTION 3. In Colorado Revised Statutes, 38-38-100.3, amend4

(10) (d) as follows:5

38-38-100.3. Definitions. As used in articles 37 to 39 of this title,6

unless the context otherwise requires:7

(10) "Holder of an evidence of debt" means the person in actual8

possession of or person entitled to enforce an evidence of debt; except9

that "holder of an evidence of debt" does not include a person acting as10

a nominee solely for the purpose of holding the evidence of debt or deed11

of trust as an electronic registry without any authority to enforce the12

evidence of debt or deed of trust. For the purposes of articles 37 to 40 of13

this title, the following persons are presumed to be the holder of an14

evidence of debt:15

(d) The person in possession of an evidence of debt with16

EVIDENCE THAT PROVES THE PERSON'S authority, which may be granted17

by the original evidence of debt or deed of trust, to enforce the evidence18

of debt as agent, nominee, or trustee or in a similar capacity for the19

obligee of the evidence of debt.20


(1) introductory portion and (1) (f) as follows:22

13-40-104. Unlawful detention defined. (1) Any A person is23

guilty of an unlawful detention of real property in the following cases:24

(f) (I) EXCEPT AS PROVIDED IN SUBPARAGRAPH (II) OF THIS25

PARAGRAPH (f), when:26

(A) The property has been duly sold under any power of sale,27

HB12-1156-9-

contained in any mortgage or trust deed that was executed by such THE1

person, or any person under whom such THE person claims by title2

subsequent to THE date of the recording of such THE mortgage or trust3

deed; and4

(B) The title under such THE sale has been duly perfected; and5

(C) The purchaser at such THE sale, or his or her assigns, has duly6

demanded the possession thereof OF THE PROPERTY.7

(II) IF AN ACTION FOR INJUNCTIVE OR OTHER RELIEF THAT8

CHALLENGES THE SALE OF THE PROPERTY UNDER A POWER OF SALE UNDER9

C.R.C.P. 120 (d) HAS BEEN FILED IN A COURT OF COMPETENT10

JURISDICTION, THE COURT SHALL STAY OR DISMISS WITHOUT PREJUDICE AN11

ACTION FOR POSSESSION UNDER THIS PARAGRAPH (f) UNTIL THE ACTION12

FOR INJUNCTIVE OR OTHER RELIEF HAS BEEN DETERMINED BY JUDGMENT13

ON THE MERITS IN THAT COURT;14

SECTION 5. Applicability. The provisions of this act apply to15

foreclosure proceedings in which the notice of election and demand is16

filed on or after the effective date of this act.17

SECTION 6. Safety clause. The general assembly hereby finds,18

determines, and declares that this act is necessary for the immediate19

preservation of the public peace, health, and safety.20

HB12-1156-10-

First Regular SessionSixty-ninth General AssemblySTATE OF COLORADO

INTRODUCED

LLS NO. 13-0056.01 Duane Gall x4335 HOUSE BILL 13-1249

House Committees Senate CommitteesBusiness, Labor, Economic, & Workforce Development

A BILL FOR AN ACT

CONCERNING RESIDENTIAL FORECLOSURES, AND, IN CONNECTION101

THEREWITH, REQUIRING THAT FORECLOSURES BE INITIATED102

ONLY BY PERSONS WITH A SECURITY INTEREST IN THE PROPERTY103

AND REQUIRING GOOD-FAITH DEALING IN LOAN MODIFICATION104

NEGOTIATIONS.105

Bill Summary

(Note: This summary applies to this bill as introduced and doesnot reflect any amendments that may be subsequently adopted. If this billpasses third reading in the house of introduction, a bill summary thatapplies to the reengrossed version of this bill will be available athttp://www.leg.state.co.us/billsummaries.)

Current law allows a "holder of an evidence of debt" (holder),

HOUSE SPONSORSHIPMcCann, Duran, Lebsock, Salazar, Fields, Fischer, Melton, Peniston, Schafer, Young

SENATE SPONSORSHIPGiron,

Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.Capital letters indicate new material to be added to existing statute.Dashes through the words indicate deletions from existing statute.

generally a bank or other financial institution, to foreclose on realproperty under a deed of trust even if the holder's interest is based on anassignment from the original lender and the assignment or otherintermediate documents are not produced, simply by providing astatement from the holder's attorney that the holder's interest in theproperty is valid. Section 2 of the bill removes this provision andotherwise tightens the rules for documentation of the holder's interest thatmust be filed with the public trustee and with a court before a foreclosuresale is authorized. Section 2 also removes an existing limitation on theliability of a holder that forecloses without having possession of theoriginal documents, to all parties damaged by the foreclosure.

Section 1 adds and amends definitions used throughout the bill.Section 3 requires the notice that a residential borrower receives when aholder seeks an order authorizing sale (OAS) under rule 120, C.R.C.P.,to include new disclosures specifying that:

! A statement or opinion offered by the holder or itsattorneys or agents is not advice to the borrower, and thatthose persons' sole loyalty is to the party that claims to bethe holder;

! In response to the motion for an OAS, the borrower maychallenge the sale on specified grounds, including whetherthe applicant has a right to enforce a recorded securityinterest in the real property affected by the foreclosure; and

! It is illegal for a foreclosure consultant to charge anup-front fee.

Section 4 addresses "dual tracking", in which a lendersimultaneously negotiates with the borrower for a loan modification andpursues foreclosure through the public trustee. This section requires theservicer of the loan to establish a single point of contact by which theborrower may stay apprised of the status of his or her application for aloan modification. Section 4 also prohibits the lender from starting orcontinuing with the foreclosure process if the borrower is complying withthe terms of a trial payment plan or other foreclosure preventionalternative.

Section 5 explicitly authorizes any party to an OAS proceeding toraise, and requires the court to consider, the issue of whether the movingparty has an enforceable legal interest in the property. Section 5 alsorequires that the notice posted on the property in advance of the OASproceeding contain a prominent disclosure that the borrower mustrespond in writing by a specific date or lose the right to object to a sale ofthe property.

Be it enacted by the General Assembly of the State of Colorado:1

HB13-1249-2-


(10) introductory portion and (10) (d); and add (2.5), (9.5), (21.3), (21.6),2

and (23.5) as follows:3

38-38-100.3. Definitions. As used in articles 37 to 39 of this title,4

unless the context otherwise requires:5

(2.5) "BORROWER" MEANS A PERSON LIABLE UNDER AN EVIDENCE6

OF DEBT CONSTITUTING A RESIDENTIAL MORTGAGE LOAN.7

(9.5) "FORECLOSURE PREVENTION ALTERNATIVE" MEANS A LOAN8

MODIFICATION OR OTHER AVAILABLE LOSS MITIGATION OPTION,9

INCLUDING A SHORT SALE, LOAN MODIFICATION, OR DEED IN LIEU OF10

FORECLOSURE, WITH RESPECT TO A RESIDENTIAL MORTGAGE LOAN.11

(10) "HOLDER" OR "holder of an evidence of debt" means the12

person in actual possession of or person entitled to enforce an evidence13

of debt; except that "holder of an evidence of debt" THE TERM does not14

include a person acting as a nominee solely for the purpose of holding the15

evidence of debt or deed of trust as an electronic registry without any16

authority to enforce the evidence of debt or deed of trust. For the purposes17

of articles 37 to 40 of this title, the following persons are presumed to be18

the holder of an evidence of debt:19

(d) The person in possession of an evidence of debt with20

EVIDENCE THAT PROVES THE PERSON'S authority which may be granted by21

the original evidence of debt or deed of trust, to enforce the evidence of22

debt as agent, nominee, or trustee or in a similar capacity for the obligee23


(21.3) "RESIDENTIAL MORTGAGE LOAN" MEANS A LOAN THAT IS25

PRIMARILY FOR PERSONAL, FAMILY, OR HOUSEHOLD USE AND THAT IS26

SECURED BY A MORTGAGE, DEED OF TRUST, OR OTHER EQUIVALENT,27

HB13-1249-3-

CONSENSUAL SECURITY INTEREST ON A DWELLING OR RESIDENTIAL REAL1

ESTATE UPON WHICH IS CONSTRUCTED OR INTENDED TO BE CONSTRUCTED2

A SINGLE-FAMILY DWELLING OR MULTIPLE-FAMILY DWELLING OF FOUR OR3

FEWER UNITS THAT IS OR WILL BE USED BY THE BORROWER AS THE4

BORROWER'S PRIMARY RESIDENCE.5

(21.6) "RESIDENTIAL REAL ESTATE" MEANS ANY REAL PROPERTY6

UPON WHICH A DWELLING IS OR WILL BE CONSTRUCTED.7

(23.5) (a) "SERVICER" OR "MORTGAGE SERVICER" MEANS AN8

ENTITY THAT DIRECTLY SERVICES A LOAN, OR THAT IS RESPONSIBLE FOR9

INTERACTING WITH THE BORROWER, MANAGING THE LOAN ACCOUNT ON10

A DAILY BASIS, INCLUDING COLLECTING AND CREDITING PERIODIC LOAN11

PAYMENTS, MANAGING ANY ESCROW ACCOUNT, OR ENFORCING THE NOTE12

AND SECURITY INSTRUMENT, EITHER AS THE CURRENT HOLDER OF THE13

EVIDENCE OF DEBT OR AS THE CURRENT HOLDER'S AUTHORIZED AGENT.14

(b) "SERVICER" INCLUDES AN ENTITY PROVIDING SUCH SERVICES15

PURSUANT TO DESIGNATION AS A SUBSERVICING AGENT OR BY CONTRACT16

WITH A MASTER SERVICER.17

(c) "SERVICER" DOES NOT INCLUDE A TRUSTEE OR A TRUSTEE'S18

AUTHORIZED AGENT ACTING UNDER A POWER OF SALE PURSUANT TO A19

DEED OF TRUST.20


(1) introductory portion, (1) (b) introductory portion, (1) (b) (II), (1) (c)22

introductory portion, (1) (c) (II), (1) (g), (2) (a), and (8); and repeal (6)23

(b) as follows:24

38-38-101. Holder of evidence of debt may elect to foreclose.25

(1) Documents required. Whenever a holder of an evidence of debt26

declares a violation of a covenant of a deed of trust and elects to publish27

HB13-1249-4-

all or a portion of the property therein described IN THE DEED OF TRUST1

for sale, the holder or the attorney for the holder shall file the following2

with the public trustee of the county where the property is located:3

(b) The original evidence of debt, including COPIES OF any4

modifications to the original evidence of debt, together with AND the5

original indorsement or assignment thereof OF THE EVIDENCE OF DEBT, if6

any, to the holder of the evidence of debt or other proper indorsement or7

assignment in accordance with subsection (6) of this section or, in lieu of8

the original evidence of debt AND AN ORIGINAL INDORSEMENT OR9

ASSIGNMENT, one of the following:10

(II) A copy of the evidence of debt and ANY MODIFICATION OR11

INDORSEMENT TOGETHER WITH a certification signed and properly12

acknowledged by a THE holder of an THE evidence of debt, acting for13

itself or as agent, nominee, or trustee under subsection (2) of this section,14

or a statement signed by the attorney for such holder citing the paragraph15

of section 38-38-100.3 (20) under which the holder claims to be a16

qualified holder and certifying or stating UNDER PENALTY OF PERJURY that17

the copy of the evidence of debt is true and correct and that the use of the18

copy is subject to the conditions described in paragraph (a) of subsection19

(2) of this section; or20

(c) The original recorded deed of trust securing the evidence of21

debt and any original recorded modifications of the deed of trust or any22

recorded partial releases of the deed of trust, or in lieu thereof OF THE23

ORIGINAL RECORDED DEED OF TRUST, MODIFICATIONS, OR PARTIAL24

RELEASES, one of the following:25

(II) Copies of the recorded deed of trust and any recorded26

modifications of the deed of trust or recorded partial releases of the deed27

HB13-1249-5-

of trust and a certification signed and properly acknowledged by a THE1

holder of an THE evidence of debt, acting for itself or as an agent,2

nominee, or trustee under subsection (2) of this section, or a signed3

statement by the attorney for such holder citing the paragraph of section4

38-38-100.3 (20) under which the holder claims to be a qualified holder5

and certifying or stating UNDER PENALTY OF PERJURY that the copies of6

the recorded deed of trust and any recorded modifications of the deed of7

trust or recorded partial releases of the deed of trust are true and correct8

and that the use of the copies is subject to the conditions described in9

paragraph (a) of subsection (2) of this section;10

(g) A statement, executed by the holder of an THE evidence of11

debt, or the attorney for such holder, identifying, to the best knowledge12

of the person executing such THE statement, the name and address of the13

current owner of the property described in the notice of election and14

demand; and15

(2) Foreclosure by qualified holder without original evidence16

of debt, original or certified copy of deed of trust, or proper17

indorsement. (a) (I) A qualified holder, whether acting for itself or as18

agent, nominee, or trustee under section 38-38-100.3 (20) (j), that elects19

to foreclose without the original evidence of debt pursuant to20

subparagraph (II) of paragraph (b) of subsection (1) of this section, or21

without the original recorded deed of trust or a certified copy thereof OF22

THE ORIGINAL RECORDED DEED OF TRUST pursuant to subparagraph (II) of23

paragraph (c) of subsection (1) of this section, or without the proper24

indorsement or assignment of an evidence of debt under paragraph (b) of25

subsection (1) of this section, shall, by operation of law, be deemed to26

have agreed AGREES to indemnify, and defend, AND PAY DAMAGES AND27

HB13-1249-6-

REASONABLE ATTORNEY FEES TO:1

(A) Any person liable for repayment of any portion of the original2

evidence of debt in the event that the original evidence of debt is3

presented for payment to the extent of any amount, other than the amount4

of a deficiency remaining under the evidence of debt after deducting the5

amount bid at sale; and6

(B) Any person who sustains a loss due to any title defect that7

results from reliance upon a sale at which the original evidence of debt8

was not presented. The indemnity granted by this subsection (2) shall be9

IS limited to actual economic loss suffered together with PLUS any court10

costs and reasonable attorney fees and costs incurred in defending a claim11

brought as a direct and proximate cause of the failure to produce the12

original evidence of debt. but such THE indemnity shall DOES not include,13

and no claimant shall be IS entitled to, any special, incidental,14

consequential, reliance, expectation, NONECONOMIC or punitive damages15

of any kind.16

(II) A qualified holder acting as agent, nominee, or trustee shall17

be IS liable for the indemnity pursuant to this subsection (2).18

(6) Indorsement or assignment. (b) Notwithstanding the19

provisions of paragraph (a) of this subsection (6), the original evidence20

of debt or a copy thereof without proper indorsement or assignment shall21

be deemed to be properly indorsed or assigned if a qualified holder22

presents the original evidence of debt or a copy thereof to the officer23

together with a statement in the certification of the qualified holder or in24

the statement of the attorney for the qualified holder pursuant to25

subparagraph (II) of paragraph (b) of subsection (1) of this section that26

the party on whose behalf the foreclosure was commenced is the holder27

HB13-1249-7-


(8) Assignment or transfer of debt during foreclosure. (a) The2

holder of the evidence of debt may assign or transfer the secured3

indebtedness EVIDENCE OF DEBT at any time during the pendency of a4

foreclosure action. without affecting the validity of the secured5

indebtedness. Upon receipt of written notice signed by the holder who6

commenced the foreclosure action or the attorney for the holder stating7

that the evidence of debt has been assigned and transferred and8

identifying the assignee or transferee, AND UPON RECEIPT OF THE9

DOCUMENTS REQUIRED BY PARAGRAPHS (b) AND (c) OF SUBSECTION (1)10

OF THIS SECTION, the public trustee shall complete the foreclosure as11

directed by the assignee or transferee or the attorney for the assignee or12

transferee. No A holder of an evidence of debt, certificate of purchase, or13

certificate of redemption shall be IS NOT liable to any third party for the14

acts or omissions of any assignee or transferee that occur after the date of15

the assignment or transfer.16

(b) The assignment or transfer of the secured indebtedness during17

the pendency of a foreclosure shall be deemed made without recourse18

unless otherwise agreed in a written statement signed by the assignor or19

transferor. The holder of the evidence of debt, certificate of purchase, or20

certificate of redemption making the assignment or transfer and the21

attorney for the holder shall have no duty, obligation, or liability to the22

assignee or transferee or to any third party for any act or omission with23

respect to the foreclosure or the loan servicing of the secured24

indebtedness after the assignment or transfer. If an assignment or transfer25

is made by a qualified holder that commenced the foreclosure pursuant to26

subsection (2) of this section, the qualified holder's indemnity under said27

HB13-1249-8-

subsection (2) shall remain in effect with respect to all parties except to1

the assignee or transferee, unless otherwise agreed in a writing signed by2

the assignee or transferee if the assignee or transferee is a qualified3

holder.4

(c) If an assignment or transfer is made to a NEW holder of an5

evidence of debt other than THAT IS NOT a qualified holder, the NEW6

holder must SHALL file with the officer the original evidence of debt and7

the original recorded deed of trust or, in lieu thereof OF THE ORIGINAL8

DOCUMENTS, the documents required in paragraphs (b) and (c) of9

subsection (1) of this section. An assignee or transferee shall be presumed10

to not be a qualified holder, and as such, shall be subject to the provisions11

of this paragraph (c), unless a signed statement by the attorney for such12

assignee or transferee that cites the paragraph of section 38-38-100.3 (20)13

under which the assignee or transferee claims to be a qualified holder is14

filed with the officer.15


(2) as follows:17

38-38-102.5. Notice prior to residential foreclosure - hotline.18

(2) At least thirty days before filing a notice of election and demand and19

at least thirty days after default, the holder shall mail a notice addressed20

to the original grantor of the deed of trust at the address in the recorded21

deed of trust or other lien being foreclosed and, if different, at the last22

address shown in the holder's records, containing:23

(a) The telephone number of the Colorado foreclosure hotline and24

the direct telephone number of the holder's loss mitigation representative25

or department;26

(b) A DISCLOSURE THAT, IN ANY DISCUSSION WITH THE HOLDER OR27

HB13-1249-9-

ANY AGENT OR REPRESENTATIVE OF THE HOLDER, INCLUDING THE1

HOLDER'S ATTORNEY, A STATEMENT OR OPINION OF THE AGENT,2

REPRESENTATIVE, OR ATTORNEY IS NOT ADVICE TO OR FOR THE3

BORROWER, AND THAT THE AGENT, REPRESENTATIVE, OR ATTORNEY OWES4

LOYALTY ONLY TO THE PARTY THAT CLAIMS TO BE THE HOLDER;5

(c) A STATEMENT THAT, IN RESPONSE TO A MOTION FOR AN ORDER6

AUTHORIZING SALE UNDER SECTION 38-38-105, A BORROWER OR ANY7

INTERESTED PARTY MAY OBJECT TO THE SALE AND REQUEST A HEARING8

CONCERNING WHETHER THE PERSON SEEKING THE ORDER HAS THE LEGAL9

RIGHT TO FORECLOSE, WHETHER A DEFAULT HAS OCCURRED, WHETHER10

THE BORROWER IS IN MILITARY SERVICE, AND WHETHER THERE ARE11

ONGOING NEGOTIATIONS FOR A RESIDENTIAL MORTGAGE LOAN12

MODIFICATION OR OTHER FORECLOSURE PREVENTION ALTERNATIVE; AND13

(d) A STATEMENT THAT, UNDER SECTION 6-1-1107, C.R.S., IT IS14

ILLEGAL FOR ANY PERSON ACTING AS A FORECLOSURE CONSULTANT TO15

CHARGE AN UP-FRONT FEE OR DEPOSIT TO THE BORROWER FOR SERVICES16

RELATED TO THE FORECLOSURE.17

SECTION 4. In Colorado Revised Statutes, add 38-38-103.4 and18

38-38-103.6 as follows:19

38-38-103.4. Single point of contact. (1) IF A BORROWER20

REQUESTS A FORECLOSURE PREVENTION ALTERNATIVE, A SERVICER SHALL21

PROMPTLY ESTABLISH A SINGLE POINT OF CONTACT AND PROVIDE TO THE22

BORROWER ONE OR MORE DIRECT MEANS OF COMMUNICATION WITH THE23

SINGLE POINT OF CONTACT.24

(2) A SINGLE POINT OF CONTACT IS RESPONSIBLE FOR:25

(a) COMMUNICATING THE PROCESS BY WHICH A BORROWER MAY26

APPLY FOR AN AVAILABLE FORECLOSURE PREVENTION ALTERNATIVE AND27

HB13-1249-10-

THE DEADLINE FOR ANY REQUIRED SUBMISSIONS TO BE CONSIDERED FOR1

THESE OPTIONS;2

(b) COORDINATING RECEIPT OF ALL DOCUMENTS ASSOCIATED WITH3

AVAILABLE FORECLOSURE PREVENTION ALTERNATIVES AND NOTIFYING4

THE BORROWER OF ANY MISSING DOCUMENTS NECESSARY TO COMPLETE5

THE APPLICATION;6

(c) HAVING ACCESS TO CURRENT INFORMATION AND PERSONNEL7

SUFFICIENT TO TIMELY, ACCURATELY, AND ADEQUATELY INFORM THE8

BORROWER OF THE CURRENT STATUS OF THE FORECLOSURE PREVENTION9

ALTERNATIVE;10

(d) ENSURING THAT A BORROWER IS CONSIDERED FOR ALL11

FORECLOSURE PREVENTION ALTERNATIVES OFFERED BY OR THROUGH THE12

MORTGAGE SERVICER AND FOR WHICH THE BORROWER IS OR MAY BE13

ELIGIBLE; AND14

(e) HAVING ACCESS TO INDIVIDUALS WITH THE ABILITY AND15

AUTHORITY TO STOP FORECLOSURE PROCEEDINGS WHEN NECESSARY.16

(3) A SINGLE POINT OF CONTACT SHALL REMAIN ASSIGNED TO THE17

BORROWER'S ACCOUNT UNTIL THE SERVICER DETERMINES THAT ALL18

FORECLOSURE PREVENTION ALTERNATIVES OFFERED BY OR THROUGH THE19

SERVICER AND FOR WHICH THE BORROWER IS OR MAY BE ELIGIBLE HAVE20

BEEN EXHAUSTED OR THE BORROWER'S ACCOUNT BECOMES CURRENT.21

(4) THE SERVICER SHALL ENSURE THAT A SINGLE POINT OF22

CONTACT REFERS AND TRANSFERS A BORROWER TO AN APPROPRIATE23

SUPERVISOR UPON REQUEST OF THE BORROWER, IF THE SINGLE POINT OF24

CONTACT HAS A SUPERVISOR.25

(5) AS USED IN THIS SECTION, "SINGLE POINT OF CONTACT" MEANS26

AN INDIVIDUAL OR TEAM OF PERSONNEL, EACH OF WHOM HAS THE ABILITY27

HB13-1249-11-

AND AUTHORITY TO PERFORM THE RESPONSIBILITIES DESCRIBED IN THIS1

SECTION. THE SERVICER SHALL ENSURE THAT EACH MEMBER OF THE TEAM2

IS KNOWLEDGEABLE ABOUT THE BORROWER'S SITUATION AND CURRENT3

STATUS.4

(6) THIS SECTION DOES NOT APPLY TO A SERVICER OR HOLDER5

THAT HAS FILED FEWER THAN ONE HUNDRED NOTICES OF ELECTION AND6

DEMAND PERTAINING TO RESIDENTIAL MORTGAGE LOANS DURING THE7

IMMEDIATELY PRECEDING CALENDAR YEAR.8

38-38-103.6. Dual tracking prohibited - penalties. (1) IF A9

BORROWER SUBMITS A COMPLETE APPLICATION FOR A FIRST LIEN LOAN10

MODIFICATION OR OTHER FORECLOSURE PREVENTION ALTERNATIVE11

OFFERED BY OR THROUGH THE BORROWER'S MORTGAGE SERVICER OR BY12

OR THROUGH THE HOLDER OF THE DEBT, THEN, WHILE THE APPLICATION IS13

PENDING, A MORTGAGE SERVICER, MORTGAGEE, TRUSTEE, BENEFICIARY,14

HOLDER, OR AUTHORIZED AGENT SHALL:15

(a) NOT FILE A NOTICE OF ELECTION AND DEMAND UNDER SECTION16

38-38-101; OR17

(b) RECALL THE NOTICE OF ELECTION AND DEMAND FROM THE18

PUBLIC TRUSTEE, IF A NOTICE OF ELECTION AND DEMAND HAS ALREADY19

BEEN FILED BUT IS NOT YET RECORDED; OR20

(c) NOT TAKE ANY FURTHER ACTION UNDER SECTION 38-38-105 OR21

38-38-106, IF A NOTICE OF ELECTION AND DEMAND HAS BEEN FILED AND22

RECORDED, UNTIL ONE OF THE FOLLOWING OCCURS:23

(I) THE SERVICER OR HOLDER OF THE EVIDENCE OF DEBT MAKES A24

WRITTEN DETERMINATION THAT THE BORROWER IS NOT ELIGIBLE FOR A25

FIRST LIEN LOAN MODIFICATION OR OTHER FORECLOSURE PREVENTION26

ALTERNATIVE, AND ANY APPEAL PERIOD HAS EXPIRED;27

HB13-1249-12-

(II) THE BORROWER DOES NOT ACCEPT AN OFFERED FIRST LIEN1

LOAN MODIFICATION OR OTHER FORECLOSURE PREVENTION ALTERNATIVE2

WITHIN FOURTEEN DAYS AFTER THE DATE OF THE OFFER; OR3

(III) THE BORROWER ACCEPTS A WRITTEN MODIFICATION OR4

OTHER FORECLOSURE ALTERNATIVE BUT DEFAULTS ON, OR OTHERWISE5

BREACHES THE BORROWER'S OBLIGATIONS UNDER, THE MODIFICATION.6

(2) (a) WHEN A BORROWER ACCEPTS AN OFFERED FORECLOSURE7

PREVENTION ALTERNATIVE, THE HOLDER OR SERVICER SHALL PROVIDE THE8

BORROWER WITH A COPY OF THE COMPLETE AGREEMENT EVIDENCING THE9

FORECLOSURE PREVENTION ALTERNATIVE, SIGNED BY THE HOLDER OR AN10

AUTHORIZED REPRESENTATIVE OF THE HOLDER.11

(b) THE HOLDER OR SERVICER SHALL FILE A NOTICE OF12

WITHDRAWAL OF A NOTICE OF ELECTION AND DEMAND AND CANCEL ANY13

PENDING FORECLOSURE SALE IF THE BORROWER ACCEPTS A PERMANENT14

FORECLOSURE PREVENTION ALTERNATIVE.15

(c) IF THE HOLDER OR SERVICER DENIES THE BORROWER'S16

APPLICATION FOR A FORECLOSURE PREVENTION ALTERNATIVE, THE17

HOLDER OR SERVICER SHALL PROVIDE THE BORROWER WITH A WRITTEN18

STATEMENT OF:19

(I) THE REASONS FOR THE DENIAL;20

(II) THE AMOUNT OF TIME THE BORROWER HAS TO REQUEST AN21

APPEAL OF THE DENIAL, WHICH MUST BE NO LESS THAN THIRTY DAYS; AND22

(III) INSTRUCTIONS REGARDING HOW TO APPEAL, INCLUDING HOW23

TO PROVIDE EVIDENCE THAT THE HOLDER'S OR MORTGAGE SERVICER'S24

DETERMINATION WAS ERRONEOUS.25

(3) IF THE BORROWER APPLIES FOR A FIRST LIEN LOAN26

MODIFICATION OR OTHER FORECLOSURE PREVENTION ALTERNATIVE AND27

HB13-1249-13-

THE APPLICATION IS DENIED, THE HOLDER OF THE EVIDENCE OF DEBT AND1

ANY SERVICER, MORTGAGEE, TRUSTEE, BENEFICIARY, OR AUTHORIZED2

AGENT SHALL NOT FILE OR RECORD A NOTICE OF ELECTION AND DEMAND3

OR TAKE FURTHER ACTION ON A PREVIOUSLY RECORDED NOTICE OF4

ELECTION AND DEMAND UNTIL THE LAST TO OCCUR OF ANY OF THE5

FOLLOWING:6

(a) THIRTY-ONE DAYS AFTER THE DATE OF THE WRITTEN7

STATEMENT OF REASONS FOR THE DENIAL, AS REQUIRED BY PARAGRAPH8

(c) OF SUBSECTION (2) OF THIS SECTION;9

(b) IF THE BORROWER APPEALS THE DENIAL:10

(I) FIFTEEN DAYS AFTER THE DENIAL OF THE APPEAL; OR11

(II) IF THE APPEAL IS SUCCESSFUL, FOURTEEN DAYS AFTER A12

FORECLOSURE PREVENTION ALTERNATIVE IS OFFERED BUT DECLINED BY13

THE BORROWER; OR14

(III) IF THE APPEAL IS SUCCESSFUL AND A FORECLOSURE15

PREVENTION ALTERNATIVE IS OFFERED AND ACCEPTED, THE DATE ON16

WHICH THE BORROWER FAILS TO TIMELY SUBMIT THE FIRST PAYMENT OR17

OTHERWISE BREACHES THE TERMS OF THE OFFER.18

(4) THE HOLDER OR SERVICER SHALL NOT CHARGE OR COLLECT19

ANY:20

(a) APPLICATION, PROCESSING, OR OTHER FEE FOR A FORECLOSURE21

PREVENTION ALTERNATIVE; OR22

(b) LATE FEES FOR PERIODS DURING WHICH A FORECLOSURE23

PREVENTION ALTERNATIVE IS UNDER CONSIDERATION OR A DENIAL IS24

BEING APPEALED; THE BORROWER IS MAKING TIMELY MODIFICATION25

PAYMENTS; OR A FORECLOSURE PREVENTION ALTERNATIVE IS BEING26

EVALUATED OR EXERCISED.27

HB13-1249-14-

(5) IN ORDER TO MINIMIZE THE RISK OF BORROWERS SUBMITTING1

MULTIPLE APPLICATIONS FOR FORECLOSURE PREVENTION ALTERNATIVES,2

THE HOLDER OR SERVICER IS NOT OBLIGATED TO EVALUATE AN3

APPLICATION FROM A BORROWER WHO HAS PREVIOUSLY BEEN EVALUATED4

OR AFFORDED A FAIR OPPORTUNITY TO BE EVALUATED UNLESS:5

(a) THERE HAS BEEN A MATERIAL CHANGE IN THE BORROWER'S6

FINANCIAL CIRCUMSTANCES SINCE THE DATE OF THE BORROWER'S7

PREVIOUS APPLICATION; AND8

(b) THAT CHANGE IS DOCUMENTED AND SUPPLIED TO THE HOLDER9

OR SERVICER.10

(6) A HOLDER OR SERVICER THAT VIOLATES THIS SECTION TWO OR11

MORE TIMES IN ANY THREE-MONTH PERIOD IS LIABLE FOR A CIVIL PENALTY12

OF UP TO SEVEN THOUSAND FIVE HUNDRED DOLLARS PER MORTGAGE OR13

DEED OF TRUST IN AN ACTION BROUGHT BY THE ATTORNEY GENERAL AND,14

IN ADDITION TO ANY OTHER CIVIL OR CRIMINAL PENALTY, DISCIPLINARY15

ACTION, OR OTHER REMEDY AVAILABLE UNDER THE LAW, THE SERVICER16

IS PRESUMED TO HAVE ENGAGED IN A DECEPTIVE TRADE PRACTICE AND TO17

HAVE HAD A PUBLIC IMPACT FOR PURPOSES OF APPLICATION OF THE18

"COLORADO CONSUMER PROTECTION ACT", ARTICLE 1 OF TITLE 6, C.R.S.19

(7) THIS SECTION DOES NOT APPLY TO A HOLDER OR SERVICER20

THAT HAS FILED FEWER THAN ONE HUNDRED NOTICES OF ELECTION AND21

DEMAND PERTAINING TO RESIDENTIAL MORTGAGE LOANS DURING THE22

IMMEDIATELY PRECEDING CALENDAR YEAR.23


(2) (a) and (3) as follows:25

38-38-105. Court order authorizing sale mandatory - notice of26

hearing for residential properties. (2) (a) (I) On and after January 1,27

HB13-1249-15-

2008, Whenever a public trustee forecloses upon a deed of trust under this1

article, the holder of the evidence of debt or the attorney for the holder2

shall obtain MOVE FOR THE ISSUANCE OF an order authorizing sale from3

a court of competent jurisdiction to issue the same pursuant to rule 1204

or other rule of the Colorado rules of civil procedure. THE COURT MAY5

GRANT OR DENY THE MOTION. The order shall AUTHORIZING SALE, IF6

ISSUED, MUST recite the date the hearing was scheduled if no hearing was7

held, or the date the hearing was completed if a hearing was held, which8

date in either case must be NO SOONER THAN THE SIXTY-FIFTH DAY AFTER9

THE FILING OF THE NOTICE OF ELECTION AND DEMAND AND no later than10

the day prior to the last day on which an effective notice of intent to cure11

may be filed with the public trustee under section 38-38-104.12

(II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A13

BORROWER OR OTHER INTERESTED PARTY THAT FILES A WRITTEN14

RESPONSE TO THE MOTION SEEKING AN ORDER AUTHORIZING SALE MAY,15

EITHER IN THE RESPONSE OR AT THE HEARING, CHALLENGE THE STANDING16

OR LEGAL INTEREST OF THE MOVING PARTY, IN WHICH CASE THE COURT17

SHALL SET AND HOLD A HEARING PURSUANT TO RULE 120 TO REVIEW THE18

APPLICATION AND SUPPORTING DOCUMENTS FILED BY THE APPLICANT,19

PROVIDE THE BORROWER A MEANINGFUL OPPORTUNITY TO BE HEARD, AND20

MAKE SPECIFIC FINDINGS ON WHETHER:21

(A) THE MOVING PARTY IS THE HOLDER OF THE EVIDENCE OF DEBT;22

(B) THE MOVING PARTY IS THE REAL PARTY IN INTEREST TO23

FORECLOSE THE DEBT;24

(C) THE MOVING PARTY HAS LEGAL STANDING TO FORECLOSE THE25

DEBT;26

(D) THE FORECLOSURE SHOULD BE DEFERRED PENDING THE27

HB13-1249-16-

OUTCOME OF ANY ONGOING NEGOTIATIONS REGARDING LOAN1

MODIFICATION EFFORTS OR OTHER FORECLOSURE PREVENTION2

ALTERNATIVES IN WHICH THE BORROWER IS PARTICIPATING IN GOOD3

FAITH; AND4

(E) THE DOCUMENTS PROVIDED BY THE MOVING PARTY ARE5

AUTHENTIC AND SUFFICIENT TO RESOLVE THE ISSUES IDENTIFIED IN6

SUB-SUBPARAGRAPHS (A) TO (C) OF THIS SUBPARAGRAPH (II). IF THE7

DOCUMENTS PROVIDED BY THE MOVING PARTY INCLUDE A COPY OF THE8

EVIDENCE OF DEBT WITH A CERTIFICATION AS SPECIFIED IN SECTION9

38-38-101 (1) (b) (II) OR A COPY OF THE RECORDED DEED OF TRUST,10

MODIFICATION, OR PARTIAL RELEASE WITH A CERTIFICATION AS SPECIFIED11

IN SECTION 38-38-101 (1) (c) (II), THE CERTIFICATION ALONE IS NOT12

SUFFICIENT TO AUTHENTICATE THE COPY.13

(III) THE COURT SHALL SET FORTH ALL FINDINGS ON THE ISSUES14

IDENTIFIED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH (a) IN THE COURT'S15

ORDER, WHICH MUST EITHER GRANT OR DENY THE MOTION FOR AN ORDER16

AUTHORIZING SALE. IF THE STANDING OR LEGAL INTEREST OF THE MOVING17

PARTY IS CHALLENGED BY ANY PARTY'S RESPONSE, THE BURDEN OF PROOF18

IS ON THE MOVING PARTY TO DEMONSTRATE COMPLIANCE WITH ALL19

DOCUMENTATION REQUIREMENTS SET FORTH IN THIS ARTICLE AS PART OF20

ITS MOTION FOR AN ORDER AUTHORIZING SALE.21

(IV) A sale held without an order authorizing sale issued in22

compliance with this paragraph (a) shall be IS invalid.23

(V) (A) AN ORDER AUTHORIZING SALE THAT IS ISSUED PURSUANT24

TO THIS SECTION DOES NOT CONSTITUTE A FINAL, APPEALABLE ORDER OR25

JUDGMENT AND IS ENTERED WITHOUT PREJUDICE TO ANY PARTY SEEKING26

INJUNCTIVE OR OTHER RELIEF, INCLUDING A COMPLETE ADJUDICATION OF27

HB13-1249-17-

ALL CLAIMS OF RIGHTS AND INTERESTS IN THE SUBJECT PROPERTY UNDER1

C.R.C.P. 105 IN A COURT OF COMPETENT JURISDICTION. AN ADJUDICATION2

UNDER C.R.C.P. 105 AS CONTEMPLATED BY THIS SUB-SUBPARAGRAPH (A)3

IS NOT A COLLATERAL ATTACK ON A FINAL JUDGMENT, WHETHER FILED4

BEFORE OR AFTER A SALE OCCURS.5

(B) IF THE COURT DENIES A MOTION FOR AN ORDER AUTHORIZING6

SALE FOR REASONS SPECIFIED IN SUB-SUBPARAGRAPH (A), (B), (C), OR (E)7

OF SUBPARAGRAPH (II) OF THIS PARAGRAPH (a), AND IF THE APPLICANT8

FILES AN ACTION FOR JUDICIAL FORECLOSURE UNDER C.R.C.P. 105, THEN,9

NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THE DEED OF10

TRUST, THE EVIDENCE OF DEBT, OR ANY OTHER LAW, THE APPLICANT11

SHALL PAY THE ATTORNEY FEES AND COSTS INCURRED BY THE APPLICANT12

IN THAT ACTION AND SHALL NOT BE CHARGED TO THE BORROWER.13

(C) IF THE COURT GRANTS A MOTION FOR ORDER AUTHORIZING14

SALE, AND IF THE BORROWER OR OTHER INTERESTED PARTY FILES AN15

ACTION FOR INJUNCTIVE OR OTHER RELIEF PURSUANT TO C.R.C.P. 105,16

THE COURT SHALL AWARD ATTORNEY FEES AND COSTS INCURRED IN THAT17

ACTION TO THE PREVAILING PARTY.18

(D) A BORROWER MAY BRING AN ACTION PURSUANT TO C.R.C.P.19

105 FOR INJUNCTIVE RELIEF TO ENJOIN A VIOLATION OF SECTION20

38-38-103.4 OR 38-38-103.6 AND TO ENJOIN THE MOVING PARTY FROM21

PROCEEDING WITH FORECLOSURE. ANY INJUNCTION THUS OBTAINED22

REMAINS IN PLACE, AND ANY FORECLOSURE SALE SHALL BE ENJOINED,23

UNTIL THE COURT DETERMINES THAT THE MOVING PARTY HAS CORRECTED24

AND REMEDIED THE VIOLATION OR VIOLATIONS GIVING RISE TO THE25

ACTION FOR INJUNCTIVE RELIEF. AN ENJOINED ENTITY MAY MOVE TO26

DISSOLVE AN INJUNCTION BASED ON A SHOWING THAT THE VIOLATION HAS27

HB13-1249-18-

BEEN CORRECTED AND REMEDIED.1

(VI) A PARTY THAT SEEKS AN ORDER AUTHORIZING SALE AND IS2

DENIED RELIEF, AND ANY SUCCESSOR IN INTEREST OF THAT PARTY, IS3

PRECLUDED FROM FILING A NEW MOTION FOR AN ORDER AUTHORIZING4

SALE OF THE SAME PROPERTY UNLESS THE MOVING PARTY ADDUCES5

SIGNIFICANT NEW OR DIFFERENT EVIDENCE IN SUPPORT OF THE NEW6

MOTION AND AT LEAST SIX MONTHS HAVE PASSED SINCE THE FILING OF THE7

PRIOR MOTION.8

(3) (a) Not less than fourteen days before the date set for the9

hearing pursuant to rule 120 or other rule of the Colorado rules of civil10

procedure, AND NOT LESS THAN FOURTEEN DAYS BEFORE ANY11

SUBSEQUENT DATE IF THE HEARING IS POSTPONED OR CONTINUED FOR ANY12

REASON, the holder or the attorney for the holder seeking an order13

authorizing sale under this section for a residential property shall cause14

a notice of hearing as described in rule 120 (b) of the Colorado rules of15

civil procedure to be posted in a conspicuous place on the property that16

is the subject of the sale. If possible, the notice shall MUST be posted on17

the front door of the residence, but if access to the door is not possible or18

is restricted, the notice shall MUST be posted at an alternative conspicuous19

location, such as a gate or similar impediment. If a person at the residence20

is impeding posting at the residence at the time of the attempted posting,21

the notice may be handed to that person to satisfy this posting22

requirement.23

(b) THE FOLLOWING STATEMENT MUST APPEAR ON THE FIRST PAGE24

OF THE NOTICE, IN AT LEAST FOURTEEN-POINT, BOLD-FACED TYPE:25

YOU MUST RESPOND TO THIS NOTICE IN26

WRITING BY ____ [A SPECIFIED DATE, SEVEN DAYS27

HB13-1249-19-

BEFORE THE HEARING] OR YOU MAY LOSE YOUR1

RIGHT TO OBJECT TO THE SALE OF THIS2

PROPERTY.3

(c) IN ADDITION TO THE NOTICE REQUIRED BY PARAGRAPH (b) OF4

THIS SUBSECTION (3), THE FOLLOWING NOTICE MUST APPEAR IN AT LEAST5

TEN-POINT TYPE:6

THE ISSUES THAT MAY BE RAISED IN OBJECTION TO7

THE SALE INCLUDE: WHETHER A DEFAULT IN PAYMENT8

HAS OCCURRED; WHETHER THE PERSON RESPONSIBLE9

FOR MAKING PAYMENTS IS IN MILITARY SERVICE;10

WHETHER THE PARTY SEEKING FORECLOSURE HAS THE11

RIGHT TO ENFORCE A RECORDED SECURITY INTEREST IN12

THE PROPERTY ENTITLING THAT PARTY TO FORECLOSE;13

AND WHETHER FORECLOSURE SHOULD BE DEFERRED14

PENDING THE OUTCOME OF ANY ONGOING NEGOTIATION15

OF A MODIFIED LOAN OR OTHER FORECLOSURE16

PREVENTION ALTERNATIVE. 17

IF YOU OBJECT, YOUR PROPERTY CANNOT BE SOLD18

UNTIL A HEARING IS HELD.19

IF THE HEARING DATE IS POSTPONED, YOU MAY20

FILE AN OBJECTION SEVEN DAYS BEFORE THE NEXT21

HEARING DATE, AND THE PROPERTY CANNOT BE SOLD22

UNTIL A SCHEDULED HEARING IS HELD.23

(d) The notice required by this subsection (3) is sufficient if it24

complies with the requirements of this section without regard to any25

requirements for service of process in a civil action required by court rule.26

(e) IF AN OBJECTION IS FILED, THE PARTIES ARE REQUIRED TO27

HB13-1249-20-

EXCHANGE COPIES OF ANY DOCUMENTARY EVIDENCE THEY INTEND TO1

RELY ON AT THE HEARING AT LEAST FIVE DAYS BEFORE THE HEARING.2

SECTION 6. Effective date - applicability. This act takes effect3

July 1, 2013, and applies to foreclosure proceedings in which the notice4

of election and demand is filed on or after said date.5

SECTION 7. Safety clause. The general assembly hereby finds,6

determines, and declares that this act is necessary for the immediate7

preservation of the public peace, health, and safety.8

HB13-1249-21-

1760 GAYLORD ST., DENVER, COLORADO 80206 TELEPHONE: 303-618-2122

KEITH A. GANTENBEIN MATTHEW S. COOMBS TYLER C. MURRAY MATTJ.DALLMICHELLEMCCARTHYJENNIFERHALL

POBOX777●WHEATRIDGECO80034●P:7204325619EMAIL:[email protected]

April 5, 2016

VIA ELECTRONIC MAIL ONLY Christopher Ryan Clerk of the CO Supreme Court 2 East 14th Ave. Denver, CO 80203 [email protected] Re: Support of Proposed Rule Changes for C.R.C.P. Rule 120. Dear Christopher Ryan,

I am writing you to show my strong support the purposed changes to C.R.C.P. 120, as they greatly improve and update the current version of the rule. The purposed changes must be adopted in order to clarify and strengthen a rule, in its present form, that is confusing, misleading and outdated. The purposed changes of the rule update the rule in plain language and makes it accessible and understandable to practitioners and Pro Se homeowners. The Supreme Court must adopt these changes in order to modernize a rule that has not been changed since 1989. The current rule is confusing, unfair and often results in widely different interpretations by judges on a county-by-county basis. There are three major deficiencies in the current version of the rule: First, the current rule is wholly lopsided. The current rule allows a lender to file a motion without providing any documentation or support demonstrating the grounds upon which the default is claimed. This often leaves respondents in the dark and provides them little or no information in which to base any defense to the motion. However, the current version of the rule requires any respondent to verify his response under oath and requires the respondent to provide all documents in support of the response. Such requirements in the current rule are wholly lopsided. Second, the notice and hearing requirements are very misleading and often lead to homeowners missing the response deadline. The notice of hearing provides for a hearing date that is simply non-existent and does not actually occur at all - which leads to a substantial

POBOX777●WHEATRIDGECO80034●P:7204325619EMAIL:[email protected]

2

amount of confusion for practitioners and homeowners. I frequently receive calls from homeowners who believe that they have a hearing date, when no such hearing will actually take place. There is current no other rule in the United States that provides for a confusing and fake hearing. Third, the scope of the hearing is outdated and in need of revision to align itself with current case law and statutory requirements. Currently, the rule fails to account for current laws and well-settled case law. As such, the courts decisions as to the current scope of the C.R.C.P 120 vary wildly from county to county. The rule should be uniform to promote a standard of conformity throughout Colorado. It is unfair to homeowners that they may receive relief in some jurisdictions, but other jurisdictions will not entertain their defenses.

The revisions are the result of the work of a committee that was formed by expert practitioners from both the creditor and debtor sides within the foreclosure industry. Very few attorneys practice in this area of law. The proposed revision is the group effort proposed by the foreclosure industry to streamline and clarify the current rule. It is strongly supported within the industry. The proposed rule changes are in plain language and seek to modernize the rule to make it more approachable to individuals and attorneys alike: First, the rule levels the documentary standard for both parties in which the movant must provide clear documentation in support of the motion. Second, the confusing “Notice of Hearing” and the initial hearing is wholly removed and replaced with a clear and concise streamlined process that provides the respondent with a clear date to submit a written response objecting to the motion. Third, the scope of the C.R.C.P. 120 hearing has been clarified and modernized to align the rule with current practice standards and case law. Finally, the entire rule has been rewritten to be clear and concise.

These changes are extremely important to improve judicial access and clarity to each and

every Colorado homeowner who are subject to the C.R.C.P. 120 process and as such, I strongly support these changes. Sincerely, GANTENBEIN LAW FIRM, LLC /s/ Tyler C. Murray KEITH A GANTENBEIN, ESQ. MATTHEW S. COOMBS, ESQ. TYLER C. MURRAY, ESQ. MATTHEW J. DALL, ESQ. MICHELLE MCCARTHY, ESQ. TCM/KAG Enc: cc:

1760 GAYLORD ST., DENVER, COLORADO 80206 TELEPHONE: 303-618-2122

KEITH A. GANTENBEIN

MATTHEW S. COOMBS

TYLER C. MURRAY MATT J. DALL MICHELLE MCCARTHY JENNIFER HALL


April 7, 2016

FOR PUBLIC COMMENT

Re: Proposed CRCP 120 Changes

To Whom it May Concern,

I strongly support the purposed changes to C.R.C.P. 120, as they greatly improve and

update the current version of the rule. The purposed changes must be adopted in order to clarify

and strengthen a rule, in its present form, that is confusing, misleading and outdated. The

purposed changes of the rule update the rule in plain language and makes it accessible and

understandable to practitioners and Pro Se homeowners. The Supreme Court must adopt these

changes in order to modernize a rule that has not been changed since 1989.

The current rule is confusing, unfair and often results in widely different interpretations

by judges on a county-by-county basis. There are three major deficiencies in the current version

of the rule: First, the current rule is wholly lopsided. The current rule allows a movant to file a

motion without providing any documentation or support demonstrating the grounds upon which

the default is claimed. This often leaves respondents in the dark and provides them little or no

information in which to base any defense to the motion. However, the current version of the rule

requires any respondent to verify his response under oath and requires the respondent to provide

all documents in support of the response. Such requirements in the current rule are wholly

lopsided. Second, the notice and hearing requirements are very misleading and often lead to

homeowners missing the response deadline. The notice of hearing provides for a hearing date

that is simply non-existent and does not actually occur at all - which leads to a substantial

amount of confusion for practitioners and homeowners. There is currently no other rule in the

United States that provides for a confusing and fake hearing. Third, the scope of the hearing is

outdated and in need of revision to align itself with current case law and statutory requirements.

Currently, the rule fails to account for current laws and well-settled case law. As such, the courts


2

decisions as to the current scope of the C.R.C.P 120 vary wildly from county to county. The rule

should be uniform to promote a standard of conformity throughout Colorado.

The revisions are the result of the work of a committee that was formed by expert

practitioners from both the creditor and debtor sides within the foreclosure industry. Very few

attorneys practice in this area of law. The proposed revision is the group effort proposed by the

foreclosure industry to streamline and clarify the current rule. It is strongly supported within the

industry. The proposed rule changes are in plain language and seek to modernize the rule to

make it more approachable to individuals and attorneys alike: First, the rule levels the

documentary standard for both parties in which the movant must provide clear documentation in

support of the motion. Second, the confusing “Notice of Hearing” and the initial hearing is

wholly removed and replaced with a clear and concise streamlined process that provides the

respondent with a clear date to submit a written response objecting to the motion. Third, the

scope of the C.R.C.P. 120 hearing has been clarified and modernized to align the rule with

current practice standards and case law. Finally, the entire rule has been rewritten to be clear and

concise.

These changes are extremely important to improve judicial access and clarity to each and

every Colorado homeowner who are subject to the C.R.C.P. 120 process and as such, I strongly

support this changes.

Sincerely,

GANTENBEIN LAW FIRM, LLC

/s/ Keith A. Gantenbein

KEITH A GANTENBEIN, ESQ.

MATTHEW S. COOMBS, ESQ.

TYLER C. MURRAY, ESQ.

MATTHEW J. DALL, ESQ.

MICHELLE MCCARTHY, ESQ.

KAG

To Whom It May Concern,

I am in great support of the proposed changes to C.R.C.P 120. The changes are necessary in order to provide more clarity to and strengthen the rule. The changes are much more cohesive and in plain language which will make them easier to understand to both practitioners as well as pro se homeowners. The Supreme Court must adopt these changes in order to modernize a rule that has not been changed since 1989.

There are major deficiencies in the current version of the rule: First, the current rule is written in a way that favors the movant. The current rule allows a movant to file a motion without providing any documentation or support demonstrating the grounds upon which the default is claimed. Additionally the current version of the rule requires any respondent to verify his response under oath and requires the respondent to provide all documents in support of the response. Such requirements in the current rule are wholly lopsided.

The notice and hearing requirements are very misleading and often lead to homeowners missing the response deadline. The notice of hearing provides for a hearing date that is simply non-existent and does not actually occur at all - which leads to a substantial amount of confusion for practitioners and homeowners. There is currently no other rule in the United States that provides for a confusing and oft nonexistent hearing.

The scope of the hearing is outdated and in need of revision to align itself with current case law and statutory requirements. Currently, the rule fails to account for current laws and well-settled case law. As such, the courts decisions as to the current scope of the C.R.C.P 120 vary wildly from county to county. The rule should be uniform to promote a standard of conformity throughout Colorado.

These changes are extremely important to improve judicial access, fairness, and clarity to Colorado homeowners. I strongly support the changes.