Chapter 24 - § 24.6 • EXECUTION AND FORECLOSURE SALES

• Jurisdiction: Colorado

§ 24.6 • EXECUTION AND FORECLOSURE SALES

§ 24.6.1—Execution Sales

The sheriff is authorized by statute to execute, according to law, all orders directed to him or her issued or made by lawful authority.¹⁷⁶

No lands or tenements may be sold by virtue of an execution unless the sale is at a public venue and between the hours of nine in the morning and the setting of the sun on the same day, nor unless the time and place of holding the sale has been previously advertised for the space of 20 days, by publishing notices of the time and place of the sale in some daily or weekly newspaper printed and published in the county where the lands and tenements are situated or, if there is no such newspaper printed in the county, by posting such notices, printed or written, or partly printed and partly written, in three of the most public places in the county where the lands may be situated specifying the names of the plaintiff and defendant in the execution.¹⁷⁷ The notice is sufficient where the sale is held on the 20th day after the publication of the notice.¹⁷⁸ In all such notices, the lands or tenements to be sold must be described with reasonable certainty by setting forth their number or by some other appropriate description.¹⁷⁹ The notice must contain a statement, printed in bold-faced type, that the lien foreclosed may not be a first lien.¹⁸⁰ The statute does not require that the notice be served on the debtor.¹⁸¹ A sale made on a day other than the day stated in the notice of the sale is void.¹⁸²

If the sheriff sells lands or tenements by virtue of an execution otherwise than in the manner set out above, or without previous notice, the sheriff must forfeit and pay $50 for every offense, to be recovered with costs by the person whose lands were advertised and sold. No such offense nor any irregularity on the part of the sheriff having the execution affects the validity of any sale made under it, unless it appears that the purchaser had notice of the irregularity.¹⁸³

Satisfaction in whole or in part of a money judgment may be entered upon the return of the execution.¹⁸⁴ Levy and sale under an execution constitutes satisfaction only to the extent of the proceeds of the sale.¹⁸⁵ A sheriff cannot require the creditor to make a cash bid; it would be a useless thing to require the creditor to hand the money to the sheriff and then to have the sheriff hand it back to him or her, where the expenses and costs of sale have been paid.¹⁸⁶

§ 24.6.2—Foreclosure Sales

A district court may, in exercise of its equity powers, designate the sheriff or any other person to make a sale, and where a deed of trust is foreclosed as a mortgage, it may order a sale by the public trustee.¹⁸⁷

Public Trustee Foreclosures Against Certain Classes of Persons

A deed of trust executed to a public trustee may be foreclosed by sale notwithstanding the fact that the indebtedness secured may constitute a claim against the estate of a deceased person, a mental incompetent, or an incapacitated person, and notwithstanding the death, mental incompetency, or incapacity of one or more of the owners of the property covered by the deed of trust.¹⁸⁸ Any such foreclosure is good against a mental incompetent or incapacitated person and against the heirs-at-law, legatees, devisees, creditors, conservators, guardians, personal representatives, executors, and administrators of any decedent or mental incompetent or incapacitated person and all persons claiming by, through, or under such decedent or mental incompetent or incapacitated person.¹⁸⁹

The public trustee must give notice of such foreclosure proceedings, as provided by law, to the grantor in the deed of trust foreclosed at the address stated therein, as though living and mentally competent, to all persons having interests then of record, and to the lessee or lessees of the premises.¹⁹⁰ The public trustee is not required to give notice of the foreclosure proceedings to any heir-at-law, legatee, devisee, creditor, conservator, guardian, personal representative, executor, or administrator of any decedent or mental incompetent or incapacitated person or to any person claiming by, through, or under any decedent or mental incompetent or incapacitated person unless the claim or interest of such person then appears of record.¹⁹¹ Failure to give the required notice to one person does not render the foreclosure void as to those who are given notice.¹⁹²

The interest and claim in and to the real estate of all mental incompetent or incapacitated persons and of all persons claiming by through, or under any mental incompetent, incapacitated person, or decedent, including minors and incapacitated persons, is terminated and concluded by such foreclosure unless they redeem from the foreclosure sale within the time prescribed by law.¹⁹³

Date of Sale

When property is to be sold following foreclosure of a deed of trust or other lien by the officer,¹⁹⁴ the initial date of sale will be:¹⁹⁵

• In the case of a sale or property by the public trustee that is not agricultural property, no less than 110 calendar days nor more than 125 calendar days after the date of recording of the notice of election and demand;
• In the case of a sale of property by the sheriff that is not agricultural property, no less than 110 calendar days after the date of the recording of the lis pendens;
• In the case of a sale or property by the public trustee, all of which is agricultural property, no less than 215 calendar days nor more than 230 calendar days after the date of recording of the notice of election and demand; or
• In the case of a sale of property by the sheriff, all of which is agricultural property, no less than 215 calendar days after the date of the recording of the lis pendens.

The term "agricultural property" means property, none of which, on the date of recording of the deed of trust or other lien or at the time of the recording of the notice of election and demand or lis pendens, is:¹⁹⁶

• Platted as a subdivision;
• Located within an incorporated town, city, or city and county; or
• Valued and assessed as other than agricultural property pursuant to C.R.S. §§ 39-1-102(1.6)(a) and 39-1-103(5) by the assessor of the county where the property is located.

If it is not evident from the legal description contained in the deed of trust or other lien being foreclosed whether the property described therein is agricultural property, the officer must make that determination no less than ten calendar days nor more than 20 calendar days after the recording of the notice of election and demand, except that the officer may make the determination at any earlier time upon presentation of acceptable evidence that the property is not agricultural property. The officer must accept the following as evidence that the property is not agricultural property:¹⁹⁷

• A certified copy of the subdivision plat containing the property or any portion thereof recorded in the office of the clerk and recorder of the county where the property or any portion thereof is located;
• A written statement by the clerk of the city, town, or city and county, dated no more than six months prior to the date of filing of the notice of election and demand or lis pendens with the officer, that all or a portion of the property was located within the incorporated limits of the city, town, or city and county as of the date of recording of the deed of trust or other lien or as of the date of the statement;
• A written statement by the assessor of the county where the property is located, dated no more than six months prior to the date of filing of the notice of election and demand or lis pendens with the officer, that any portion of the property was valued and assessed as other than agricultural property after the date of the recording of the deed of trust or as of the date of the statement.

The officer's determination of whether the property is agricultural or nonagricultural is binding and may be relied upon by all parties.¹⁹⁸

The statements mentioned above may be obtained and furnished at the expense of the person seeking the determination of whether the property is agricultural or nonagricultural property, which expense may be included as a portion of the fees and costs of the foreclosure.¹⁹⁹

Notice of Sale

The 2006 amendment includes the notice of sale in a combined notice of sale, right to cure, and right to redeem.²⁰⁰

Notice to the United States: If the United States claims a tax lien on the property to be sold which is recorded more than 30 days before the date of the public trustee's sale, notice of the sale must be given to the Secretary of the Treasury not less than 25 days before the sale by registered or certified mail or by personal service.²⁰¹ The method of notice is mandatory. But failure to give notice does not result in the loss of the lien being foreclosed, but merely fails to extinguish the junior federal tax lien; the lien being foreclosed retains its priority.²⁰²

Persons Who May Purchase

The beneficiary of a deed of trust may purchase at the trustee's sale,²⁰³ even though the beneficiary may be related to the trustee making the sale.²⁰⁴ Where the beneficiary is a decedent's estate, the personal representative may purchase in his or her individual capacity.²⁰⁵ But the trustee himself or herself cannot purchase at the sale,²⁰⁶ regardless of for whose benefit the purchase is made.²⁰⁷

Sale Procedure

Place of sale: Notwithstanding the provisions of a deed of trust or other lien being foreclosed, the officer may conduct the sale at any door or entrance to, or in any room in any building where the office of the county clerk and recorder or the office of the officer is located, which place must be specifically designated in the combined notice. The combined notice must designate the actual place of sale.²⁰⁸

Time of sale: A sale is not invalid where it is advertised for ten o'clock but the bid was accepted and the property sold at half past ten, where there is...