Chapter 4 - § 4.3 PARTIES TO THE FORECLOSURE ACTION

• Jurisdiction: Colorado

§ 4.3 PARTIES TO THE FORECLOSURE ACTION

There are three classes of parties to name in a mechanics' lien foreclosure lawsuit: (1) those whose interests in the property the lien claimant wants to be subject to the lien, (2) other mechanics' lien claimants, and (3) those who are personally liable for the debt. "The owner of the property to which such lien has attached, and all other parties claiming of record any right, title, interest, or equity therein, whose title or interests are to be charged with or affected by such lien, shall be made parties to the action."¹³ This includes mortgagees over whom the lien claimant claims priority. A mortgagee with an interest junior to the lien claimant is a necessary party, since such mortgagee "is vitally interested in scrutinizing and objecting to invalid claims or liens, the allowance of which may tend to reduce the value of its own security, or even perhaps destroy it."¹⁴

The requirement to name as defendants "all other parties claiming of record any right, title, interest, or equity" in the property and "all other parties claiming of record any right, title, interest, or equity therein, whose title or interests are to be charged with or affected by such lien" can be a daunting task and can raise additional conflict issues. One way to determine who needs to be named as a defendant is to purchase a litigation guarantee policy from a title company. The policy will identify every person or entity with an interest in the property, which will be useful in determining who needs to be named. Additionally, the policy provides insurance in the event the title company misses a party that should be named. Additionally, when the policy arrives, it is important for the attorney to determine whether the list raises any new conflicts of interest. It can be disheartening to assist a client throughout this process only to learn days before the filing deadline that one of the necessary parties to the foreclosure lawsuit is also a client. This is another reason to start the process early.

Also, all parties who have recorded liens in accordance with the mechanics' lien statute are to be made parties to the foreclosure action.¹⁵ Any lien claimant not named as a party in the foreclosure action may intervene.¹⁶ If a party who should have been named in a mechanics' lien foreclosure action is not included, his or her interest might not be impacted by the foreclosure action.

Finally, in addition to parties with an interest in the property...