Chapter 6 - § 6.9 • SALE BY LEVY

• Jurisdiction: Colorado

§ 6.9 • SALE BY LEVY

As an alternative to the mortgage process, a successful mechanics' lien claimant may also proceed by sheriff's sale upon execution and levy. The foreclosing lien claimant proceeds under C.R.S. §§ 13-56-201, et seq. as a judgment creditor on a money judgment. Although the mortgage process and execution by levy process for sheriff's sales are extremely similar, there are differences that make using the execution and levy process very uncommon.

The process is started by the claimant obtaining a writ of execution from the court where the judgment was entered. In a mechanics' lien case this will be the same county where the real property is located. The writ of execution is issued to the sheriff. The sheriff in turn records a certificate of levy with the clerk and recorder.³⁰ The lien claimant's attorney drafts the certificate of levy and states the location and description of the real property.³¹

The certificate of levy is served on the judgment debtor under the provisions in C.R.S. § 13-55-102. The combined notice provisions outlined in C.R.S. § 38-38-103(3) regarding advertisement should be followed since they specifically apply to sales of property upon writ of execution. After mailing and publication of the combined notices of the right to cure and redeem, the sale process tracks that of a judicial foreclosure, except that the execution statute has a particular requirement as to the time of sale (between 9 a.m. and sunset).

Unlike most execution and levy matters, a lis pendens will already have been recorded due to the underlying foreclosure lawsuit. A lis pendens is not required in these matters, but makes the process easier since the recording date of the lis pendens is a date-triggering mechanism throughout the foreclosure statutes and therefore will be helpful in determining rights and deadlines.

One huge hurdle in proceeding by execution against homestead property is that the lien claimant will need to prepare an affidavit regarding homestead pursuant to C.R.S. § 38-41-206, which reads:

(1) Before any creditor of the owner of the homesteaded property may proceed against said property, such creditor shall file with the county clerk and recorder of the proper county and the sheriff or other proper officer authorized to levy on said property:

(a) His affidavit showing:

(I) A description of the homesteaded property and the name of the claimant of the homestead exemption;
(II) The fair market value of said property;
(III) That the

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