Chapter 24 - § 24.10 • CONFIRMATION DEEDS AND TITLES THEREUNDER

• Jurisdiction: Colorado

§ 24.10 • CONFIRMATION DEEDS AND TITLES THEREUNDER

§ 24.10.1—Vesting of Title

Upon the expiration of all redemption periods allowed to all lienors entitled to redeem or, if there are no redemption periods, upon the close of the officer's business day eight business days after the sale, title to the property sold vests in the holder of the certificate of purchase, or in the holder of the last certificate of redemption in the case of redemption.⁴⁸⁶ The purchaser is entitled to rents accruing after the redemption period.⁴⁸⁷ The sale does not transfer to the purchaser the implied warranty of habitability, which is personal to first purchasers.⁴⁸⁸ Prior to the 1987 amendment of the foreclosure statute,⁴⁸⁹ the holder of a certificate of purchase was required to make application for a deed, and if he or she did not do so within nine months after the expiration of the last period of redemption, all rights under the certificate of purchase terminated.⁴⁹⁰ Under this procedure, title remained in the mortgagor until the issuance of a public trustee's deed.⁴⁹¹

Subject to the right to cure and right to redeem provisions of C.R.S. § 38-38-506⁴⁹² and subject to the provisions of C.R.S. § 38-41-212(2),⁴⁹³ and except liens created after but recorded before the lien being foreclosed, where actual or imputed notice of them is established,⁴⁹⁴ the title is free and clear of all liens and encumbrances recorded or filed subsequent to the recording or filing of the lien for which the sale was based,⁴⁹⁵ but only as to such liens and encumbrances on the interest sold.⁴⁹⁶ The statutory language "liens or encumbrances recorded or filed subsequent" means liens or encumbrances junior in fact to the lien on which the sale is based. Thus, if a mechanics' lien is filed later in time than a deed of trust but, by virtue of C.R.S. § 38-22-103(2), is superior to the deed of trust, the title acquired pursuant to the public trustee's sale and deed is subject to the superior lien.⁴⁹⁷ C.R.S. § 38-38-501 does not govern or affect the priority of liens established by a subordination agreement.⁴⁹⁸

The foreclosure is final and all of the owner's right, title, and interest in and to the land is extinguished⁴⁹⁹ as is that of lienholders who have a right to redeem.⁵⁰⁰ The owner cannot thereafter question the validity of the subsequent redemptions.⁵⁰¹

Except for liens for taxes withheld by an employer,⁵⁰² a lien for taxes due the State of Colorado may be divested by a foreclosure in the same manner as other lienors with liens upon the property being foreclosed. The State of Colorado has the same redemption rights as other lienors in such a foreclosure. A person foreclosing a deed of trust or other lien with priority over a lien for taxes due the State of Colorado in a foreclosure is not required to make a written request or to commence an action under C.R.S. § 39-20-103(1).⁵⁰³

No earlier than ten business days nor later than 15 business days after both the title vests and the officer has received a written request for issuance of the confirmation deed and receipt of all statutory fees and costs, the officer must execute and record a confirmation deed to the holder of the certificate of purchase or, in the case of redemption, to the holder of the last certificate of redemption, confirming the transfer of title to the property; except that the officer must execute and record a confirmation deed prior to the tenth business day after title vests, if the officer has received all statutory fees and costs and notice from the appropriate holder that the certificate will not be assigned. But under no circumstances is the officer required to issue a confirmation deed unless the officer has received an order authorizing the sale.⁵⁰⁴ An officer may not include an assignee as a grantee in a confirmation deed unless (1) the officer has received a copy of the assignment executed in accordance with C.R.S. § 38-38-403⁵⁰⁵ within ten business days after title vests, and (2) the assignment was dated, signed, and notarized⁵⁰⁶ or recorded⁵⁰⁷ prior to the time title vests.⁵⁰⁸ Failure of the officer to execute and record such deed or to record the deed within the time specified does not affect the validity of the deed or the vesting of title.⁵⁰⁹ (Formerly, after expiration of the time allowed for redemption, the holder of the certificate of purchase had nine months within which to obtain a sheriff's deed. Failing to do so, the holder had 15 months from the date he or she first became entitled to a deed to initiate an action to foreclose the lien created by his or her certificate of purchase. If the holder failed to pursue that alternative, it was conclusively presumed that the lien had been paid and discharged.⁵¹⁰ ) One who is not entitled to redeem cannot attack the validity of a sheriff's deed issued before the expiration of all redemption periods.⁵¹¹

Prior to the 1987 amendment of the foreclosure statute, the issuance of a sheriff's deed or public trustee's deed was stayed by the automatic stay under 11 U.S.C. § 362(a)(4).⁵¹² But under the present foreclosure statute, vesting of title is automatic⁵¹³ and the issuance of a sheriff's or public trustee's deed is not a violation of the automatic stay.⁵¹⁴

The foreclosure of a deed of trust terminates any rights of a successor of the grantor of the deed of trust to recover on warranties of title, even though such successor may have acquired the interest sold at the public trustee's sale.⁵¹⁵

§ 24.10.2—Forms of Confirmation Deed

Form of Confirmation Deed for Sheriff's Sale

The confirmation deed executed by the sheriff in case of a sale by virtue of an execution and levy or judgment and decree must state the judgment under which the property described was sold and the execution or decree date and may be in substantially the following form:

THIS DEED is made __________, 20___, between __________ as sheriff of the __________ County of __________, Colorado, and __________, grantee, (the holder of the certificate of purchase) (the holder of the certificate of redemption issued to the lienor last redeeming), whose legal address is __________.

WHEREAS, __________ did, in the __________ court for __________ and County of __________, Colorado, (recover a judgment against __________ for the sum of __________dollars and costs of suit and upon which judgment an execution was issued (obtained a judgment and decree against __________) dated __________, 20___, directed to the sheriff of the __________ County of __________, Colorado; and

WHEREAS, by virtue of said (execution) (judgment and decree), the sheriff levied upon the property hereinafter described and, after public notice had been given of the time and place of sale as required by law, said property was offered for sale and sold according to said notice, and a certificate of purchase was made and recorded in the office of the county clerk and recorder; and

WHEREAS, all periods of redemption have expired.

NOW, THEREFORE, I, __________, sheriff of the __________ County of __________, Colorado, in consideration of the premises, confirm the sale and convey to grantee the following described

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