FANNIE MAE AND FREDDIE MAC ARE NOT YOUR FRIENDS, THEY ONLY CARE FOR THEMSELVES AND THE BANKS. THEY WILL NOT HELP YOU, ONLY HURT YOU!!!
Don't believe me? Ask my good friend in Colorado Springs, CO. She is 83 years old, and good ole Freddie Mac is throwing her out this next week. We are hoping that the Colorado Supreme Court will see that
1) there was no default in payments;
2) The entity that foreclosed lacked standing to foreclose
3) the foreclosure mill lawfirm that had the foreclosure and sale under power go forward, have a very shaded history (they cheat the victims they foreclose upon by adding a ton of extra fees to the foreclosing costs, and guess who pays those fees? Guess who came up with many of the current foreclosure laws?
I have included some of the better articles from Colorado newspapers, and other sources, which are noted with each article. Check it out:
AG: Lawyer e-mails indicate collusion to control foreclosure billing
By David Migoya
The Denver Post
POSTED: 08/10/2013 12:01:00 AM MDT
UPDATED: 08/12/2013 07:53:41 AM MDT
Colorado bill would end bogus foreclosure charges, refund homeowners
Colorado's two biggest foreclosure law firms, Castle Law Group and Aronowitz & Mecklenburg, appear to have manipulated and influenced the foreclosure process — in practice and at the Capitol — in a way that guaranteed themselves millions of dollars in profits at the expense of homeowners and taxpayers, according to state investigators.
In a stunning court filing made public Thursday, Attorney General John Suthers' office lays out a theory of conspiracy and price-fixing that investigators say the two firms allegedly engaged in to corner a lucrative piece of the state's foreclosure market.
An attorney for Aronowitz denied Friday the firm colluded with Castle or influenced the legislative process. Attorneys for Castle would not comment.
Because the firms for years controlled the bulk of the foreclosure work in Colorado, they could profit handsomely and easily on a state law requiring legal notices to be posted on homeowners' properties by steering that work to companies they owned or had a heavy interest in.
Starting in 2009, Aronowitz and Castle created or bought into process-service companies that would handle their workload just as the legislature was to pass a law requiring the first of what would be a pair of legal-notice postings in a foreclosure.
The law firms allegedly leveraged their stranglehold on the foreclosure market — estimates are that they control about 90 percent of the cases filed in Colorado — and conspired to fix the price to post those notices at $125, an amount five times more than what other companies charged for the same service, investigators said in court papers that included e-mail exchanges between the two firms.
Then, when their plan proved so successful — one of the posting companies made more than $2 million in the first year — at least one of the law firms worked tirelessly to persuade legislators to change state laws in a way that doubled their profits overnight by requiring a second notice, investigators said documents indicate.
The legislation requiring the postings, investigators say, was offered under the guise that consumers were getting better disclosure. But it was the law firms' principals who ultimately profited, earning nearly $20 million in revenues in the next four years just for having the notices posted.
Castle relies on Absolute Posting & Process, which Suthers' office says is 40 percent owned by principals at the law firm. The partners at Aronowitz — Robert Aronowitz, his daughter Stacey and his son-in-law Joel Mecklenburg — own Xceleron, which does all of Aronowitz's posting.
"The firm unequivocally denies that it 'set the minimum posting price' as the AG alleges," Aronowitz's attorney, Jason Dunn of Brownstein Hyatt Farber Schreck, said in an e-mail Friday, "and believes that the AG's reliance on the e-mails in support of its allegation is misplaced and out of context."
Dunn also said Aronowitz "had no direct involvement" in legislation that required the postings, nor did it push for the law's passage directly or through a lobbyist.
The investigation is ongoing, and no charges or lawsuits alleging wrongdoing have been filed against any law firm.
The two postings tell homeowners of their rights in the foreclosure process. The first tells them of the opportunity to seek a 90-day deferral in their foreclosure. The second tells them about a court hearing known as a Rule 120 that they can attend.
The deferment posting was required in 2009, and the legislation that created it was clarified in 2010. When the legislature took that up, the Rule 120 posting requirement was added as an amendment, according to the legislative histories of each bill.
E-mails provided by investigators in court records indicate the state legislators who pressed for the laws — current House Speaker Mark Ferrandino, D-Denver, and Sen. Morgan Carroll, D-Aurora — were unwitting accomplices who believed they were aiding consumers.
The e-mails were exchanges between Castle's lobbyist, Thomas Hill, and the law firm. Hill worked for Ackerman Information, a lobbying firm that also represented the state's public trustees.
"Sen. Carroll really liked the amendment requiring posting of the notice of Rule 120 hearing," Hill wrote in an e-mail to the principals at Castle, including owner Larry Castle and his wife, Caren. "(Carroll) happily sold it to the committee as coming from 'the coalition' of parties who had worked so hard on the bill."
He added: "I never mentioned to her or anyone else connected with this bill — except the (public trustees) — where the idea for the second posting came from."
Ferrandino said Friday that Suthers' revelations were "shocking."
"The intent of the bill was to help consumers and neighborhoods," he said from his home while celebrating his 36th birthday. "That there are always ways for someone to take advantage is unfortunate."
Carroll said she was troubled that a law with good intent might have had another purpose.
"Using consumer protection laws to further injure consumers is pretty appalling to me," she said in an e-mail Friday.
A principal constructor of the legislation, Zachary Urban, said he feels "duped" after the revelations.
The conspiracy-and-price-fixing theory is part of a request by Suthers' office for a judge to force Castle's firm — once widely known as Castle Meinhold Stawiarski and then just Castle Stawiarski before it became Castle Law Group — to comply with an investigative subpoena seeking records about its foreclosure work.
Suthers is investigating alleged bill-padding by law firms that specialize in foreclosures, specifically the costs they charge for the posting of the legal notices.
Several law firms, Aronowitz and Castle among them, have refused to disclose certain documents they say are protected by attorney-client privilege. Each has asked a judge to review the documents privately to determine whether they are protected.
It was in the documents that Castle provided to investigators where details of the alleged collusion emerged.
The investigation into bill-padding centers on the posting of legal notices on a homeowner's property during the foreclosure process. The requirement for the first notice followed legislation intended to help homeowners find some relief.
Under House Bill 1276, the legislature required that homeowners be told about the opportunity to seek a 90-day delay in a foreclosure by calling a hotline number and speaking with counselors.
"Many borrowers just needed some time to get help," said Urban, who was director of operations at the Colorado Division of Real Estate at the time he helped create the deferment program.
Posting a notice on a homeowner's property to advise them of the program was a key idea that, Urban said, came from Larry Castle.
"The two firms then embarked to set the minimum price for the posting for which they could be reimbursed as a 'cost,' " Suthers said in a court brief. The attorneys directed the work of posting notices to their companies, "disguising excessive law firm profits as a cost item from a third-party vendor."
"I just wanted our offices to try and get on the same page on what we are charging for all of this," Stacey Aronowitz e-mailed Caren Castle in March 2009.
David Migoya: 303-954-1506, dmigoya@denverpost.com or twitter.com/davidmigoya
Oct 11, 2013, 4:00am MDT
AG Suthers investigates prices charged for foreclosure posts
Heather Draper
Reporter-
Denver Business Journal
Five local law firms that specialize in foreclosures are at the center of an investigation by Colorado Attorney General John Suthers for allegedly inflating the prices they charge on foreclosure postings that are required by state law.
Since April, Suthers has filed individual subpoena enforcement actions against the firms — Aronowitz & Mecklenburg LLP, Vaden Law Firm, Dale and Decker LLC, Hopp Law Firm LLC and The Castle Law Group LLC — investigating potential violations of the Colorado Consumer Protection Act.
In the subpoenas, Suthers is seeking information and documents related to state-mandated foreclosure postings on homeowners’ doors about deferments and Rule 120 court hearings. The law firms posted those notices on behalf of their mortgage servicer clients. Mortgage servicers process mortgage loan payments and perform other mortgage services, but they often sell the loan itself to investors such as Fannie Mae or Freddie Mac.
Suthers also seeks information the law firms provided to the government-sponsored enterprises (Fannie Mae and Freddie Mac) that reimburse mortgage servicers for amounts paid to law firms. Suthers argues that taxpayers ultimately pay the inflated costs because the mortgages in default are backed by taxpayers via Fannie Mae and Freddie Mac.
The law firms under investigation have not had a chance to respond in court to Suthers’ allegations because an actual claim has not yet been filed.
In an Aug. 7 motion to get his subpoena against Castle Law Group enforced, Suthers alleges that Castle, the largest foreclosure law firm in Colorado, and Aronowitz & Mecklenburg, the second-largest foreclosure law firm in the state, worked together “to set the price … of the deferment posting as an artificially inflated rate to obtain millions, and then persuaded the legislature the following year to require a second posting to obtain even more at the expense of homeowners, investors and taxpayers.”
Suthers further claims in the motion that Castle directed “tens of thousands” of state-required postings to a firm called Absolute, which is owned by Kathleen Benton and Castle Law Group’s accountant. By charging $125 each for two required postings, when most server companies charge about $25 per posting, “Absolute has obtained more than $10 million in revenue from these postings referred to it by Castle Law Group. While Absolute charges $125 for postings, it pays process servers $10 per posting in most cases.”
Likewise, “Aronowitz & Mecklenburg directed all its posting to its wholly owned posting company and could charge a similarly inflated cost,” Suthers said in the motion.
“Given the recent foreclosure crisis that has resulted in tens of thousands of foreclosures filed in Colorado since 2009, the Attorney General has an interest to ensure that the costs Castle Law Group and other foreclosure law firms represent to — and that are paid by — the public are not deceptive,” Suthers said in the motion.
A spokeswoman for Suthers said he wouldn’t comment on an ongoing investigation.
Robert Hopp, who is representing himself in the case, didn’t respond to email requests for comment. The Hopp Law Firm LLC closed as of June 30, according to its website.
Attorneys for Dale and Decker, Vaden, Aronowitz & Mecklenburg and Castle Law Group declined comment because of the ongoing investigation.
Heather Draper covers banking, finance, law and sports business for the Denver Business Journal and writes for the "Finance Etc." blog. Phone: 303-803-9230
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Lifespan of a Public Trustee Foreclosure Action in Colorado
http://coloradocreditorattorneys.com/
Posted on April 29, 2014 by bedwards
BEVERLY L. EDWARDS, ESQ.
THE ROCKY MOUNTAIN LAW GROUP, LLC
Colorado’s Public Trustee foreclosure system is unique. Other states must foreclose through the courts, which is more time consuming and costly than Colorado’s system. Colorado’s non-judicial foreclosure process provides for administration of the foreclosure process through the county public trustee, with minimal court involvement. Colorado’s foreclosure process allows the borrower an opportunity to reinstate the loan or challenge the default on the loan, provided the borrower follows the rules under Colorado law. The Colorado system is beneficial to the lender because it provides a straightforward method for realizing on its collateral.
The public trustee foreclosure process is driven by the deadlines under Colorado law. The deadlines provide lenders with a greater level of certainty in the conduct of the proceedings. The official document that commences the foreclosure action is the “Notice of Election and Demand”. In the Notice of Election and Demand, the lender is giving “notice” of the default in the loan documents, “electing” to accelerate the entire balance due on the loan and “demanding” that the public trustee give notice of the sale, advertise for sale, and sell the property secured under the deed of trust. The Notice of Election and Demand is part of the initial filing with the public trustee and is recorded with the county clerk and recorder.
After the initial filing with the public trustee, the public trustee must set the foreclosure sale within 4-4-1/2 months after the Notice of Election and Demand is recorded. The public trustee then issues a confirmation deed approximately 30 days after the sale. The entire process (from the initial filing with the public trustee to issuance of the deed) takes approximately 5 to 5-1/2 months.
For agricultural property, the process is longer. Agricultural property is property that is 1) not platted as a subdivision 2) not located within an incorporated town or city or 3) valued or assessed as a type of property that is not agricultural property. The law requires that the foreclosure sale be held 7 to 7-1/2 months after the Notice of Election and Demand is recorded. As with non-agricultural property, the public trustee issues a confirmation deed approximately 30 days after the sale. From the initial filing with the public trustee, to the issuance of the deed, the entire process for agricultural property takes approximately 9 to 9-1/2 months.
The foreclosure process in Colorado is quicker and more efficient than the judicial system utilized in other states. However, our expedited system demands that deadlines and rules are strictly followed.
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The Economic Loss Rule
Posted on February 15, 2014 by dwight
THE ECONOMIC LOSS RULE
E. Dwight Taylor, The Rocky Mountain Law Group, LLC.
Borrowers who have complaints against banks often attempt to expand their contract disputes to include claims based upon torts such as fraud, breach of fiduciary duty, intentional interference with contract, negligent misrepresentation and a host of other horrible-sounding claims.
In order to prevent the escalation of a contract dispute into claims that would bear the potential for exemplary damages and attorney fees, thereby changing the relationship between the parties after a dispute has arisen, the Colorado Supreme Court has fashioned the “Economic Loss Rule”. The Economic Loss Rule draws a bright line between tort law and contract law. The Court has held that when parties have had the opportunity to allocate risks between themselves through a bargaining process, they must be held to their negotiated contractual remedies when conflicts arise. Of course most credit agreements do not spell out all of the remedies, but the Uniform Commercial Code will provide those remedies to the extent they are not provided for in the credit agreement. The Court has said that a party suffering only economic loss from the breach of an express or implied* contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law. The Colorado courts have held that an action to recover damages for the loss of a bargain is the exclusive province of contract law. The Economic Loss Rule prohibits a negligence claim when the breach of duty is contractual and the harm incurred is the result of failure of the purpose of contract. If the duty of care owed was memorialized in a contract and there is no duty independent of the contract, the Economic Loss Rule bars the tort claim and holds the parties to the contract’s terms. (*Credit agreements cannot be implied.)
Thus, the Economic Loss Rule will bar a tort claim where: 1) the source of duty is contractual; 2) the damages are purely economic; and 3) and no independent duty of care exists.
Of course, that leaves the complaining party the opportunity to assert that there is an independent duty owed by the bank to the borrower arising from the general law. That is where the bank is also protected by the Credit Statute of Frauds, discussed in an earlier article. In almost every conceivable case a bank will not have a relationship with any other entity with respect to a loan that is not based upon a “credit agreement”. In such instances, the Colorado courts have held that the plain language of the Credit Statute of Frauds applies to bar any action or claim “relating to” a credit agreement and expressly precludes exceptions by implication or construction. Any tort claim relating to an oral credit agreement involving a principal amount in exceeding $25,000 is barred**. The Colorado courts have also held that the Credit Statute of Frauds is not limited to actions attempting to enforce an agreement’s terms. Rather, the statute bars suit where there is no written credit agreement any time an action relates to a purported oral agreement. (**Keep this limitation in mind…small loans can bear risks that larger ones do not. This limitation may, however, help some bank customers with their trade credit.)
This dual effect of law made both by the Colorado legislature and the Colorado courts makes it difficult for a borrower to assert a claim that is not based upon the “four corners” of the credit agreement. These laws make tort claims difficult but not impossible because borrower’s counsel can be imaginative. However, the parade of horribles can be avoided by well-considered and well-written credit agreements and by sound banking practices. Good bank counsel can help, too.
Dwight Taylor can be reached at The Rocky Mountain Law Group, LLC, 10800 E. Bethany Dr., Ste. 550, Aurora, CO 80014, phone: 303.597.0202, fax: 303.597.0235, email: dtaylor@rmlawgrp.com ■
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Credit Statute of Frauds
Posted on January 21, 2014 by dwight
CREDIT STATUTE OF FRAUDS
E. Dwight Taylor, The Rocky Mountain Law Group, LLC.
Colorado law has long required certain types of contracts to be in writing to be enforceable. The well known ones are contracts for interests in land, contracts that cannot be performed within one year, and contracts to answer for the obligations of another. There are, of course, other requirements for written agreements scattered about the statutes, but this brief is concerned with the law that relates to credit agreements and is of interest to lenders and borrowers.
C.R.S. § 38-10-124 provides that no debtor or creditor may file or maintain an action or a claim relating to a credit agreement involving a principal amount in excess of twenty-five thousand dollars unless the credit agreement is in writing and is signed by the party against whom enforcement is sought. This law is generally referred to as the Credit Statute of Frauds.
A credit agreement is any contract, promise, undertaking, offer or commitment to lend, borrow, repay or forbear repayment of money, to otherwise extend or receive credit, or to make any other financial accommodation. That includes any amendment, cancellation, waiver or substitution of a credit agreement, and any representation, warranty or omission made in connection with a credit agreement. A creditor is a financial institution which offers to extend, is asked to extend, or extends credit under a credit agreement with a debtor, and a financial institution is a bank, saving and loan, savings bank, industrial bank, credit union or mortgage or finance company. A debtor is a person or entity that obtains credit or seeks a credit agreement with a creditor or who owes money to a creditor. Credit agreements may not be implied under any circumstance, including from the relationship of the parties or from performance or partial performance by the parties, or by promissory estoppel.
The Colorado Legislature intended that the Credit Statute of Frauds put an end to litigation between banks and their borrowers based upon claims of oral agreements, and to require that the parties to credit agreements reduce their agreements to writing as a condition to enforcement. The Colorado Courts have been diligent in enforcing the Credit Statute of Frauds. The Courts have not allowed claims based upon reliance upon oral agreements, or tort claims based upon oral credit agreements, or claims or defenses based upon unjust enrichment or fraudulent inducement seeking rescission.
If a court finds that a claimed oral agreement, representation or other statement relates to a credit agreement, it is likely that the challenge to a written credit agreement will not succeed. A court will allow oral testimony to explain the intended meaning of an ambiguous credit agreement, and will allow email messages to satisfy the requirement for the credit agreement, or any amendment to a credit agreement, to be in writing. Courts also will not necessarily find that any transaction with a bank is a credit agreement; the transaction must entail the extension of credit or the grant of some form of financial accommodation to have the benefit of the Credit Statute of Frauds. A transaction must also be between a financial institution and a debtor for the Credit Statute of Frauds to apply. It would not apply to an individual making a loan or to an organization that does not engage in the business of extending credit to debtors in its regular course of business.
So, if you are going to ignore your granny’s admonition to “neither a borrower nor a lender be”, don’t forget to follow the law’s requirement to “put it in writing”.
Dwight Taylor can be reached at The Rocky Mountain Law Group, LLC, 10800 E. Bethany Dr., Ste. 550, Aurora, CO 80014, phone: 303.597.0202, fax: 303.597.0235, email: dtaylor@rmlawgrp.com
DON'T TAKE LIGHTLY THE RULE 120 HEARING, EVEN IF OPPOSING COUNSEL LIES AND TELLS YOU IT IS A DONE DEAL, OR THAT YOU WON'T GET TO SPEAK, SO THERE IS NO NEED TO GO! GO AND FIGHT LIKE HELL TO STOP THAT SALE!!!
West’s Colorado Revised Statutes Annotated
West’s Colorado Court Rules Annotated
Colorado Rules of Civil Procedure
Chapter 17. Court Proceedings: Sales Under Powers
C.R.C.P. Rule 120
RULE 120. ORDERS AUTHORIZING SALES UNDER POWERS
(a) Motion; Contents. Whenever an order of court is desired authorizing a sale under a power of sale contained in an instrument, any interested person or someone on such person’s behalf may file a verified motion in a district court seeking such order. The motion shall be accompanied by a copy of the instrument containing the power of sale, shall describe the property to be sold, and shall specify the default or other facts claimed by the moving party to justify invocation of the power of sale. When the property to be sold is personal property, the motion shall state the names and last known addresses, as shown by the records of the moving party, of all persons known or believed by the moving party to have an interest in such property which may be materially affected by such sale. When the property to be sold is real property and the power of sale is contained in a deed of trust to a public trustee, the motion shall state the name and last known address, as shown by the records of the moving party, of the grantor of such deed of trust, of the current record owner of the property to be sold, and of any person known or believed by the moving party to be personally liable upon the indebtedness secured by the deed of trust, as well as the names and addresses of those persons who appear to have acquired a record interest in such real property, subsequent to the recording of such deed of trust and prior to the recording of the notice of election and demand for sale, whether by deed, mortgage, judgment or any other instrument of record. In giving notice to persons who appear to have acquired a record interest in real property, the address of each such person shall be the address which is given in the recorded instrument evidencing such person’s interest, except that if such recorded instrument does not give an address or if only the county and state are given as the address of such person, no address need be stated for such person in the motion. The clerk shall fix a time not less than 21 nor more than 35 days after the filing of the motion and a place for the hearing of such motion.
(b) Notice; Contents; Service. The moving party shall issue a notice describing the instrument containing the power of sale, the property sought to be sold thereunder, and the default or other facts upon which the power of sale is invoked. The notice shall also state the time and place set for the hearing and shall refer to the right to file and serve responses as provided in section (c), including a reference to the last day for filing such responses and the addresses at which such responses must be filed and served. The notice shall contain the following advisement: “If this case is not filed in the county where your property is located, you have the right to ask the court to move the case to that county. Your request may be made as a part of your response or any paper you file with the court at least 7 days before the hearing.” The notice shall contain the return address of the moving party. Such notice shall be served by the moving party not less than 14 days prior to the date set for the hearing, by: (1) mailing a true copy thereof to each person named in the motion (other than persons for whom no address is stated) at the address or addresses stated in the motion; (2) and by filing a copy with the clerk and by delivering a second copy to the clerk for posting by the clerk; and (3) if a residential property as defined by statute, by posting a true copy in a conspicuous place on the subject property as required by statute. Such mailing and delivery to the clerk for posting, and property posting shall be evidenced by the certificate of the moving party or moving party’s agent. For the purpose of this section, posting may be electronic on the court’s public website so long as the electronic address for the posting is displayed conspicuously at the courthouse.
(c) Response; Contents; Filing and Service. Any interested person who disputes, on grounds within the scope of the hearing provided for in section (d), the moving party’s entitlement to an order authorizing sale may file and serve a response to the motion, verified by the oath of such person, setting forth the facts upon which he relies and attaching copies of all documents which support his position. The response shall be filed and served not less than 7 days prior to the date set for the hearing, said interval including intermediate Saturdays, Sundays, and legal holidays, C.R.C.P. 6(a) notwithstanding, unless the last day of the period so computed is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next succeeding day which is not a Saturday, Sunday or a legal holiday. Service of such response upon the moving party shall be made in accordance with C.R.C.P. 5(b). C.R.C.P. 6(e) shall not apply to computation of time periods under this section (c).
(d) Hearing; Scope of Issues; Order; Effect. At the time and place set for the hearing or to which the hearing may have been continued, the court shall examine the motion and the responses, if any. The scope of inquiry at such hearing shall not extend beyond the existence of a default or other circumstances authorizing, under the terms of the instrument described in the motion, exercise of a power of sale contained therein, and such other issues required by the Service Member Civil Relief Act (SCRA), 50 U.S.C. § 520, as amended. The court shall determine whether there is a reasonable probability that such default or other circumstance has occurred, and whether an order authorizing sale is otherwise proper under said Service Member Civil Relief Act, and shall summarily grant or deny the motion in accordance with such determination. Neither the granting nor the denial of a motion under this Rule shall constitute an appealable order or judgment. The granting of any such motion shall be without prejudice to the right of any person aggrieved to seek injunctive or other relief in any court of competent jurisdiction, and the denial of any such motion shall be without prejudice to any right or remedy of the moving party. The court shall not require the appointment of an attorney to represent any interested person as a condition of granting such motion, unless it appears from the motion or other papers filed with the court that there is a reasonable probability that the interested person is in the military service.
(e) Hearing Dispensed with if no Response Filed. If no response has been filed within the time permitted by section (c), the court shall examine the motion and, if satisfied that venue is proper and the moving party is entitled to an order authorizing sale upon the facts stated therein, the court shall dispense with the hearing and forthwith enter an order authorizing sale.
(f) Venue. For the purposes of this section, a consumer obligation is any obligation (i) as to which the obligor is a natural person, and (ii) is incurred primarily for a personal, family, or household purpose. Any proceeding under this Rule involving a consumer obligation shall be brought in and heard in the county in which such consumer signed the obligation or in which the property or a substantial part thereof is located. Any proceeding under this Rule which does not involve a consumer obligation or an instrument securing a consumer obligation may be brought and heard in any county. However, in any proceeding under this Rule, if a response is filed, and if in the response or in any other writing filed with the court, the responding party requests a change of venue to the county in which the encumbered property or a substantial part thereof is situated, the court shall order transfer of the proceeding to such county.
(g) Return of Sale. The court shall require a return of such sale to be made to the court, and if it appears therefrom that such sale was conducted in conformity with the order authorizing the sale, the court shall thereupon enter an order approving the sale.
(h) Docket Fee. A docket fee in the amount specified by law shall be paid by the person filing such motion. Unless the court shall otherwise order, any person filing a response to the motion shall pay, at the time of the filing of such response, a docket fee in the amount specified by law for a defendant or respondent in a civil action under section 13-32-101(1)(d), C.R.S.
Credits
Amended eff. July 1, 1984; Jan. 1, 1987; Jan. 1, 1989; June 1, 1991; April 1, 1993; Nov. 16, 1995; June 28, 2007. Corrected eff. Nov. 5, 2007. Amended eff. Jan. 7, 2010; Oct. 14, 2010; Jan. 1, 2012.
Editors’ Notes
The 1989 amendment to C.R.C.P. 120 (Sales Under Powers) is a composite of changes necessary to update the Rule and make it more workable. The amendment was developed by a special committee made up of practitioners and judges having expertise in that area of practice, with both creditor and debtor interests represented.
The changes are in three categories. There are changes that permit court clerks to perform many of the tasks that were previously required to be accomplished by the Court and thus save valuable Court time. There are changes to venue provisions of the Rule for compliance with the Federal Fair Debt Collection Practices Act. There are also a number of editorial changes to improve the language of the Rule.
There was considerable debate concerning whether the Federal “Fair Debt Collection Practices Act” is applicable to a C.R.C.P. 120 proceeding. Rather than attempting to mandate compliance with that federal statute by specific rule provision, the Committee recommends that a person acting as a debt collector in a matter covered by the provisions of the Federal “Fair Debt Collection Practices Act” be aware of the potential applicability of the Act and comply with it, notwithstanding any provision of this Rule
Rules Civ. Proc., Rule 120, CO ST RCP Rule 120
Current with amendments received through 3/15/2014
End of Document
© 2014 Thomson Reuters. No claim to original U.S. Government Works.
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Legislature passes foreclosure fixes, bills head to governor's desk
By David Migoya
The Denver Post
POSTED: 04/17/2014 05:16:45 PM MDT| UPDATED: ABOUT A MONTH AGO
Colorado legislators on Thursday passed a pair of bills designed to minimize the harm homeowners can face during a foreclosure.
The two bills — House Bills 1295 and 1130 — ensure homeowners aren't needlessly overpaying to save their home and have a chance to work out terms with their lenders.
Both bills were sponsored mainly by Rep. Beth McCann, D-Denver, a longtime advocate of foreclosure reform, and Sen. Jessie Ulibarri, D-Westminster. The House unanimously concurred with changes approved by the Senate.
Both are headed to Gov. John Hickenlooper's desk.
McCann worked longest on HB 1295, which had failed to pass the state General Assembly in prior sessions. It ensures a foreclosure is stopped while a homeowner is in the process of working through a loan modification with their lender.
"It goes to show you that persistence pays off," Mc-Cann said.
Known as dual-tracking, lenders and the lawyers hired to foreclose on their behalf often did not consult with each other, leaving homeowners fighting a two-front attack to save their house. While the bill mirrors federal protections by establishing a single point of contact for a homeowner, it exceeds them by also giving county public trustees who oversee foreclosures the authority to stop the process pending the modification.
"By giving the county trustees the power to stop a foreclosure when an individual is undergoing a loan modification, Colorado will put into law a system that keeps families in their homes and creates greater stability for our housing market," said Corrine Fowler, a housing advocate formerly with the Colorado Progressive Coalition, who pressed for the bill's passage.
The other bill, HB 1130, takes on a number of problems, including those identified in stories by The Denver Post last year that showed homeowners unknowingly overpaid to stop a foreclosure against them. Called a cure, the amounts were inflated by hundreds of dollars when lawyers charged homeowners for foreclosure lawsuits, known as a Rule 120, that did not exist.
A Rule 120 is a hearing in which a judge ultimately signs an order to auction a foreclosed property. Lawyers representing lenders pass on the expenses of those Rule 120 lawsuits to the homeowner, who must pay them in order to stop the foreclosure process.
The Post found dozens of examples where homeowners were assessed the costs of a Rule 120 case that was never filed at the county district court as required. The discrepancies were not uncovered because public trustees are not allowed to question a lawyer's bill for a homeowner to cure the amount they owe.
Overpayments were simply passed on to the lawyers and the lenders.
The new law requires lawyers to file a final bill, called a cure statement, with the public trustee, certifying all the charges are real and accurate before the homeowner's payment is given to the law firm on behalf of the lender. Any overage is to be returned to the homeowner.
That would include the costs of posting notices of pending court hearings, a matter under investigation by the Colorado attorney general.
David Migoya: 303-954-1506, dmigoya@denverpost.com or twitter.com/davidmigoya
Thanks for taking the time to read this, it is extremely important to make citizens aware of Foreclosure Hell!!!
Come back and see what we add next...