CHAPTER 8 - § 8.7 • COMMENCING THE SHERIFF'S SALE
| Jurisdiction | Colorado |
CAUTION: The statutes referred to in this section sometimes refer to the "officer" conducting the sale (i.e., a sheriff or a public trustee), or refer just to the "public trustee," and yet other times refer just to the "sheriff." However, sometimes a statute does not make sense in its entirety unless those references to the "public trustee" also apply to the sheriff. Read all the statutes and make your own determinations!
Immediately upon conclusion of the trial and entry of judgment and decree, if you are the creditor's attorney, you should arrange for the sheriff to follow the instructions in the decree and sell the property subject to the lien. For execution and levy following entry of a monetary judgment, see § 8.8. Be aware of the homestead exemption in C.R.S. §§ 38-41-201, et seq. See § 8.9.8. You will be responsible for delivery of a copy of the decree to the sheriff, together with the documents described below (unless the sheriff's office tells you not to prepare them — in which case you are still responsible to make sure they are properly drafted). Check with the sheriff to see if he or she requires a deposit (the statute does not specify a deposit, as it does for the public trustee).
§ 8.7.1—Combined Notice of Sale and Right to Cure and Redeem — Mail
The Combined Notice (Form 8-14) must be mailed by the sheriff (1) no less than 16 nor more than 30 calendar days after the holder of the evidence of debt delivers to the sheriff the mailing list and the original or a copy of a decree of foreclosure or a writ of execution directing the sheriff to sell the property (C.R.S. § 38-38-103(3)); and (2) should an amended mailing list be necessary, again, no less than 45 days before the actual sale date (C.R.S. § 38-38-103(2)), depending on how you interpret the statute for a sheriff's sale. The mailing goes to the parties listed in C.R.S. § 38-38-100.3(1.5). The definitions of a Mailing List and an Amended Mailing List do not work well for a sheriff's sale, but this author suggests it is easier to proceed with those definitions, for signature by the sheriff, in exactly the same way one would conduct a public trustee foreclosure. Prepare the lists for the sheriff and deliver them with an appropriate letter with instructions. Thoroughness will be appreciated!
§ 8.7.2—Combined Notice of Sale and Right to Cure and Redeem — Publish
Publication of the Combined Notice must be commenced by the sheriff no more than 60 calendar days nor less than 45 calendar days prior to the first scheduled date of sale, unless a longer period of publication is specified in the deed of trust or other lien being foreclosed. The sheriff shall select the newspaper in the county or counties where the property to be sold is located (C.R.S. § 38-38-100.3(19)) for publication for four weeks, which means publication once each week for five consecutive weeks. The copies of statutes that are required to be mailed with the Combined Notice are not included in the published version, nor are the statements concerning the timing of filing of the notices of intent to cure and redeem and concerning the violation of single point of contact and dual tracking provisions (identified on Form 8-14), but the dates of first and last publication should be added if they were not already in the Combined Notice (C.R.S. § 38-38-103(5)).
Although the statute requires the sheriff to "review" the publication for accuracy, you should obtain a copy of the published notice and proof it for accuracy as well. If there are errors, have them corrected and start publishing again. C.R.S. § 38-38-109(1)(b) contains specific provisions for correcting errors in the published notice, extending the publication dates, and continuing the sale as necessary to complete the publications.
Compare these procedures to the statutory requirements for a sheriff's sale upon execution and levy set forth in C.R.S. § 13-56-201. Except as to length of publication, compliance with this statute is advisable.
After January 1, 2015, the newspaper must, without additional cost, place the notice on the statewide website established for that purpose. C.R.S. § 24-70-103. It would be prudent on your part to verify that the newspaper has complied with this statutory direction and posted the notice on the state website.
§ 8.7.3—Mailing List
C.R.S. § 38-38-101(1)(e) requires the foreclosing party to provide the public trustee with a mailing list, authorizes the foreclosing party to amend it when necessary, and relieves the officer of any liability for errors or omissions in the mailing list (C.R.S. § 38-38-702(1)(c)). Since the sheriff must perform the mailings, by implication the mailing list requirement must apply to the sheriff as well.
The mailing...
To continue reading
Request your trial