Chapter 24 - § 24.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 24.1 • INTRODUCTION

§ 24.1.1—In General

In many respects the statutory procedures governing sheriff's sales upon judicial foreclosure, sheriff's execution sales, and public trustee foreclosure sales are identical.¹ In other respects, procedures may differ among the three kinds of sales. The materials in this chapter are intended to recognize the differences in situations where they exist without undue repetition in situations where there are no such differences.

§ 24.1.2—Foreclosures

The holder of a note secured by a mortgage or deed of trust may, upon default, commence an action for a money judgment on the note itself or for foreclosure of the property given as security in the mortgage or deed of trust, or may bring an action for foreclosure and for a deficiency judgment.² The right to a personal judgment on the note is not lost by the fact that in the same suit a foreclosure of the mortgage or deed of trust is sought;³ the court need not wait until sale of the property before entering a money judgment.⁴ When a plaintiff obtains a money judgment on a note, the note is merged in the judgment and the mortgage or deed of trust becomes security for the judgment.⁵ The creditor may foreclose or execute on the property,⁶ or he or she may execute on other property and then foreclose the mortgage or deed of trust for the unpaid balance of the judgment.⁷

Where both real and personal property are security for a debt, the creditor may proceed against both types of collateral simultaneously in separate proceedings.⁸ If a security agreement covers both real and personal property, the secured party may proceed as to both the real and personal property in accordance with the rights and remedies in respect of the real property.⁹

Formerly, one holding a mortgage or deed of trust on property in a decedent's estate could not foreclose until one year from the death of the decedent and in no event until the claim was first proved and allowed by the county court.¹⁰ Now, however, a mortgage or lien upon real property in a decedent's estate may be foreclosed in an appropriate proceeding.¹¹

§ 24.1.3—Foreclosure Consultants

For the definition of "foreclosure consultant," see C.R.S. § 6-1-1103(4). For the regulation of foreclosure consultants, see C.R.S. §§ 6-1-1104 to 6-1-1110.

§ 24.1.4—Acceleration and Waiver

The deed of trust forms approved by the Colorado Real Estate Commission provide for acceleration upon the borrower's default.¹² Where the default is nonpayment, the creditor may waive the default.¹³ The default (and hence the right of acceleration) may be waived by the acceptance of payment after notice of an intention to accelerate, or by mere inaction.¹⁴ But where the default is other than nonpayment, continued acceptance of payments does not waive the default.¹⁵ When no definite time is specified, the creditor has a reasonable time after the default or event which gives rise to the...