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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Re: You still have the right to redeem your title! Posted by Ward-CA- on January 07, 2002 at 7:14 PM In Reply to: deep into loss and ignorant, can you advise? posted by Alan on January 07, 2002 at 1:12 PM : I and delinquent on a mortage in colorado because I lost my job, the house is somewhere in the foreclosure process and I have been notified that it sold at aan auction for 49K less than I owe on it. Somebody from Colorado called me and wants to buy the property as an investment and want me to sign a quick claim deed so he can try and get the house. He even sent me a check for 500 dollars? the question is should I sign the quick claim deed for him? =•=•=•=•=•=•=•=•=•=•= Alan, the reason that people, like the first fellow you mentioned and now JD, are ready to pay you $500 to $1,000 now, after the foreclosure auction took place is because in CO you have a Right of Redemption to recover the title to your foreclosed property for 75 days following the trustee’s sale. For your convenience I have appended to this reply post all the pertinent code sections found in the current Colorado Revised Statutes regarding your Right of Redemption. I appologize for the length of the following codes, but I didn’t want to censor anything. Good luck to you. Colorado Revised Statutes: 38-38-103 Previous Statute: 38-38-102.5 Next Statute: 38-38-104 38-38-103 - Combined notice of right to cure and right to redeem. (1) Within ten days after the recording of the notice of election and demand for sale by the public trustee pursuant to section 38-38-101, or not less than sixteen nor more than twenty-five days after the entry of a decree of foreclosure or the issuance of a writ of execution directing the sheriff to sell real property, the public trustee or sheriff shall mail a notice to the grantors of the deed of trust or mortgage being foreclosed, to any subsequent owners of the property being foreclosed, to the current owner of the property being sold, and to any other person having a right to cure a default under section 38-38-104 or a right to redeem the property subject to foreclosure under section 38-38-302, 38-38-303, 38-38-305, or 38-38-306. Such notice shall state the names of the grantors of the deed of trust or mortgage and the original beneficiaries or grantees thereof, the name of the current owner of an evidence of debt secured by the deed of trust or mortgage being foreclosed or the owner of the lien being foreclosed, and the names, addresses, and telephone numbers of the attorneys, if any, representing the foreclosing lienor. A legible copy of this section and sections 38-37-108, 38-38-104, and 38-38-301 to 38-38-306 shall be sent with such notice. ===================================================================== 38-38-302 Previous Statute: 38-38-301 Next Statute: 38-38-303 38-38-302 - Redemption within specified period - procedure. (1) Except as provided in this section with respect to agricultural real estate, within seventy-five days after the date of the sale of the property by virtue of any foreclosure of a mortgage, deed of trust, or other lien or by virtue of an execution and levy, the owner of the property, or any other person liable after the foreclosure sale for the deficiency, may redeem the property sold by paying to the public trustee or sheriff the sum for which the property was sold with interest from the date of sale, together with any taxes paid or other proper charges as now provided by law, with interest from the date such expense was paid. Such interest shall be charged at the default rate if specified in the original instrument or, if not so specified, at the regular rate specified in the original instrument. For the purposes of this section, "other proper charges" includes those costs and expenses paid by the holder of a certificate of purchase as permitted by section 38-38-301 (1) for which said holder has filed with the public trustee or sheriff conducting the sale receipts evidencing such payments. (2) The public trustee or sheriff shall execute and deliver a certificate of redemption to the person redeeming and shall record a duplicate certificate in the county clerk and recorder's office of the county where the property is located. The public trustee or sheriff shall retain the recorded copy of the certificate of redemption. The public trustee or sheriff shall forthwith pay said money to the holder of the certificate of purchase. If the owner of the property fails to redeem under this section, any other person who redeems under this section shall be issued a certificate of redemption only after the expiration of the proper redemption period. (3) In the case of any mortgage or deed of trust upon one or more parcels of real estate, all of which were agricultural real estate both upon the date of recording of such mortgage or deed of trust and on the date of the foreclosure sale, the redemption period described in subsection (1) of this section is six months. (4) (a) The term "agricultural real estate" means, for the purpose of this section, any parcel of real estate, none of which, on the date of recording of the mortgage or deed of trust or at the time of the foreclosure sale under such mortgage or deed of trust, is either platted as a subdivision, located within an incorporated town, city, or city and county, or is not valued and assessed as agricultural land pursuant to sections 39-1-102 (1.6) (a) and 39-1-103 (5), C.R.S., by the assessor of the county in which the land is located. (b) (I) If it is not evident from the legal description contained in the mortgage or deed of trust that the real estate described therein is or is not agricultural real estate, the public trustee or sheriff shall accept as evidence that the parcel is not agricultural real estate either: (A) A certified copy of the subdivision plat containing all or a part of the parcel of real estate; or (B) A certificate of the clerk of the city, town, or city and county certifying that all or a part of the parcel is located within the incorporated limits of the city, town, or city and county on the date of recording of the mortgage or deed of trust or at the time of the foreclosure sale; or (C) A certificate from the assessor of the county in which the property is located certifying that all or a part of the parcel is not valued and assessed as agricultural land. (II) A title insurance company issuing a policy may rely upon any of the forms of evidence set forth under this paragraph (b). (c) Such plat or certificates shall be obtained and furnished and the certificates recorded, all of which shall be paid for by the person seeking the determination that the property is not agricultural real estate. (d) If at the time of recording of the mortgage or deed of trust, or at the time of the foreclosure sale, the property is, in whole or in part, either platted as a subdivision or is both located within the incorporated limits of a town, city, or city and county and is not valued and assessed as agricultural land, it shall be deemed for all purposes under this section, and against all persons, that such parcel is not agricultural real estate. (5) If the last day of the seventy-five-day redemption period, the six-month redemption period provided for in this section, or the lienor redemption periods provided for in section 38-38-303 (1) is a Saturday, Sunday, or legal holiday or a day the county courthouse is closed, the period is extended to include the next business day. Source: L. 90: Entire article R&RE, p. 1664, § 2, effective October 1. L. 98: (4) amended, p. 221, § 1, effective August 5. I. General Consideration. II. Right of Redemption. A. In General. B. Rights and Liabilities of Parties. III. Agricultural Real Estate. I. GENERAL CONSIDERATION. Am. Jur.2d. See 55 Am. Jur.2d, Mortgages, § 902. C.J.S. See 59A C.J.S., Mortgages, § § 1034, 1035. Law reviews. For article, "Revising Redemptions", see 6 Dicta 16 (1929). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). For article, "Forms Committee Presents Standard Pleading Samples to Be Used in Foreclosures Through Public Trustee", see 28 Dicta 461 (1951). For article, "Forms Committee Presents Additional Standard Pleading Samples for Use in Foreclosures Through Public Trustee", see 29 Dicta 1 (1952). For article, "Enforcement of Security Interests in Colorado", see 25 Rocky Mt. L. Rev. 1 (1952). For article, "Statutory Redemption in Colorado", see 30 Dicta 79 (1953). For note, "Statutory Redemption in Colorado: 1965 Amendments", see 39 U. Colo. L. Rev. 127 (1966). For comment, "The Effect of Certified Realty on Mortgage Foreclosure in Colorado", see 52 U. Colo. L. Rev. 301 (1981). For comment, "The Effect of Certified Realty Corp. v. Smith, 198 Colo. 222, 597 P.2d 1043 (1979), on Mortgage Foreclosure in Colorado", see 52 U. Colo. L. Rev. 301 (1981). For article, "Public Trustee's Deeds and Redemption Under Section 362 of the Bankruptcy Code", see 12 Colo. Law. 229 (1983). For article, "A Review of Agricultural Law: Hard Times and Hard Choices", see 15 Colo. Law. 629 (1986). For article, "Recent Statutory Amendments to the Public Trustee and Sheriff Foreclosure Process", see 15 Colo. Law. 794 (1986). For article, "The Colorado Farm Homestead Protection Act", see 15 Colo. Law. 1642 (1986). For article, "1987 Statutory Amendments Concerning Foreclosures of Deeds of Trust and Mortgages", see 16 Colo. Law. 1386 (1987). For article, "Real Estate Foreclosures and Federal Tax Liens", see 17 Colo. Law. 35 (1988). For article, "Recent Developments in Foreclosure Law", see 23 Colo. Law. 599 (1994). For article, "Artificial Redemption Rights: A Tool of Foreclosure Investing", see 28 Colo. Law. 99 (October 1999). Annotator's note. Since § 38-38-302 is similar to § 38-39-102 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. Section encompasses foreclosure of any lien. This section encompasses foreclosure by deed of trust or of any other lien. Frank v. First Nat'l Bank, 653 P.2d 748 (Colo. App. 1982). In determining whether foreclosure sale and issuance of certificate of purchase was an avoidable transfer under 11 U.S.C. § 548, full amount of junior liens must be subtracted from fair market value of property sold before determining whether reasonably equivalent value was paid for certificate of purchase. In re Garrison, 56 Bankr. 528 (Bankr. D. Colo. 1986). Applied in Ryan v. Staples, 76 F. 721 (8th Cir. 1896); Blitz v. Moran, 17 Colo. App. 253, 67 P. 1020 (1902); Roose v. Gove, 32 Colo. 522, 77 P. 246 (1904); McKee v. Elwell, 69 Colo. 316, 194 P. 616 (1920); Stryker v. Dunn, 72 Colo. 45, 209 P. 644 (1922); Bailey v. Merritt, 90 Colo. 338, 9 P.2d 485 (1932); Maxwell v. District Court, 641 P.2d 931 (Colo. 1982). Jenkins v. Peet, 19 Bankr. 105 (Bankr. D. Colo. 1982); Moreland v. Marwich, Ltd., 665 P.2d 613 (Colo. 1983); Flett v. Turgeon, 699 P.2d 10 (Colo. App. 1984); Cole v. Farner, 749 P.2d 970 (Colo. App. 1987). II. RIGHT OF REDEMPTION. A. In General. Right to redeem from execution sale is statutory. The right to redeem from an execution sale is a purely statutory one. Paddack v. Staley, 13 Colo. App. 363, 58 P. 363 (1899); Davis Mfg. & Supply Co. v. Coonskin Properties, Inc., 646 P.2d 940 (Colo. App. 1982). Without the statutes of redemption, neither judgment debtors nor judgment creditors, nor grantees of the judgment debtor, taking his title, could redeem from an execution sale. Jenkins v. Gold Dollar Mining & Milling Co., 27 Colo. App. 247, 149 P. 269 (1915); Paddack v. Staley, 13 Colo. App. 363, 58 P. 363 (1899). Redemption period tolled by federal statute. The automatic stay provision of 11 U.S.C. § 362(a) tolls the redemption period provided for in this section. Eaton Land & Cattle Co. v. Rocky Mt. Invs., 28 Bankr. 890 (Bankr. D. Colo. 1983). Redemption period not tolled by federal statute. 11 U.S.C. § 362 does not "toll" or "suspend" the running of the redemption period in Colorado as provided for in this section. In re Murphy, 22 Bankr. 663 (Bankr. D. Colo. 1982). Or sale set aside. A court is not justified in invoking its equity powers to set aside a sale or extend the redemption period unless there have been circumstances such as fraud, deceit, or collusion by the purchaser, or unless a holder of a right of redemption has been misled by erroneous information as to the applicable redemption period. Davis Mfg. & Supply Co. v. Coonskin Properties, Inc., 646 P.2d 940 (Colo. App. 1982). Extension of redemption period. Where, on the date the redemption period expires, the debtor files a chapter 11 bankruptcy petition, pursuant to 11 U.S.C. § 108(b), the period of redemption is extended only for an additional 60 days, the federal automatic stay provision being inapplicable. Westergaard v. Cucumber Creek Dev., Inc., 33 Bankr. 820 (Bankr. D. Colo. 1983). Debtor's right to redeem generally provides adequate remedy to safeguard him against an inadequate sale price. Gale v. Rice, 636 P.2d 1280 (Colo. App. 1981). Redemption annuls sale. White v. Crow, 110 U.S. 183, 4 S. Ct. 71, 28 L. Ed. 113 (1884). Upon a redemption from a sale of real estate under execution, the certificate of sale becomes void, and a sheriff's deed issued thereon is a nullity. Floyd v. Sellers, 7 Colo. App. 491, 44 P. 371 (1896). The payment of the money by defendant, with the purpose of redemption, to the sheriff who sold the land on execution, and its receipt by the latter without objection, nullifies and abrogates the sale as between defendant and the purchaser, though the sheriff has not formally canceled the certificate of purchase, nor directed the execution of a certificate of redemption and though he has subsequently executed a deed of the land to the purchaser. Colorado Mfg. Co. v. McDonald, 15 Colo. 516, 25 P. 712 (1890). General rule as to payment. The general rule is that redemption requires payment of the full purchase price received at the foreclosure sale together with incidental expenses. Rowe v. Tucker, 38 Colo. App. 532, 560 P.2d 843 (1977). Test of right of redemption. Actual ownership was not intended to be the test of the right of redemption. Floyd v. Sellers, 7 Colo. App. 491, 44 P. 371 (1896). Character of property material factor in ascertaining redemption period. The character of the property rather than its use is the material factor in ascertaining the period for redemption. Rowe v. Tucker, 38 Colo. App. 532, 560 P.2d 843 (1977). Period of redemption begins to run from the date a judgment of foreclosure is entered. Oman v. Morris, 28 Colo. App. 124, 471 P.2d 430 (1970). Where equitable extension of redemption period appropriate. Where holders of right of redemption relied on the public trustee's mistake as to whether the six-month period of redemption for agricultural property or the 75-day period for nonagricultural property applied and where there was an inadequate sales price at foreclosure sale, equitable extension of the period of redemption was an appropriate remedy. Arnold v. Gebhardt, 43 Colo. App. 387, 604 P.2d 1192 (1979); Johnson v. Smith, 651 P.2d 422 (Colo. App. 1982). Redemption period may not be extended, absent wrongdoing. The bankruptcy court cannot exercise its equity power to extend the redemption period established by subsection (2), absent guilt of wrongdoing by the party seeking the foreclosure, which adversely affects the debtor's right of redemption. In re Headley, 13 B.R. 295 (D. Colo. 1981). And inadequacy of sale price not enough to set aside sale. Inadequacy of sales price at foreclosure sale, standing alone, does not warrant setting aside the sale but it may be considered as one of the factors which requires the court to employ an equitable remedy for the holders of the right of redemption. Arnold v. Gebhardt, 43 Colo. App. 387, 604 P.2d 1192 (1979). A disparity between the market value and the price paid at sale is not controlling and, standing alone, is not sufficient cause for setting aside a sale or extending a redemption period. Davis Mfg. & Supply Co. v. Coonskin Properties, Inc., 646 P.2d 940 (Colo. App. 1982). Effect of sheriff's deed executed after six months. As to a judgment debtor or his grantee, a sheriff's deed was valid if executed and delivered after six months and before nine months from the date of sale, providing there had been no redemption. McLaughlin v. Wilson, 23 Colo. App. 59, 127 P. 242 (1912). See also Finch v. Turner, 21 Colo. 287, 40 P. 565 (1895). "Months". There is no dispute that the word "months", in the context of subsection (2), means calendar months, rather than some arbitrarily established number of days. Rowe v. Tucker, 38 Colo. App. 532, 560 P.2d 843 (1977). B. Rights and Liabilities of Parties. Owner of premises and lienholders of record may redeem. The owner of the premises and the lienholders of record have a right to redeem from the sale on foreclosure by the sheriff. Baber v. Baber, 28 Colo. App. 530, 474 P.2d 630 (1970); Jenkins v. Peet, 13 B.R. 721 (D. Colo. 1981). See also Lane v. Morris, 77 Colo. 343, 237 P. 154 (1925). A redemption may be made by a judgment debtor where the judgment was against him and another, and the land sold under an execution issued thereon as the land of both defendants, notwithstanding that he may have had no interest in the property at the time of the levy or sale. Floyd v. Sellers, 7 Colo. App. 491, 44 P. 371 (1896). And owner has possessory rights until expiration of redemption period. On sale under foreclosure of a trust deed, the owner thereafter has merely the statutory right to redeem and the right to possession of the premises until the expiration of the redemption period. Lane v. Morris, 77 Colo. 343, 237 P. 154 (1925); Bankers Bldg. & Loan Ass'n v. Fleming Bros. Lumber Co., 83 Colo. 335, 264 P. 1087 (1928); Union Mut. Protective Ass'n v. San Luis State Bank, 86 Colo. 293, 281 P. 366 (1929). Owner retain equitable title after giving trust deed on property. When the owner of property gives a trust deed thereon, his legal title is vested in the trustee and the equitable title or equity of redemption remains in the owner. Bankers Bldg. & Loan Ass'n v. Fleming Bros. Lumber Co., 83 Colo. 335, 264 P. 1087 (1928). Redemption of interest of one joint tenant. A judgment creditor with a lien against the property interest of one joint tenant may redeem that interest without redeeming the interest of the other joint tenant. First Nat'l Bank v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980). Right to rents and reversion of leased premises. Where premises are leased, the landlord is entitled to both the rents and the reversion, and when the reversion of the landlord is transferred, the rights to rents accruing after the transfer of the reversion pass to the transferee; therefore, when the landlord's interest in the demised premises are transferred to a purchaser on a sheriff's sale on foreclosure, the rights to the rents reserved in the lease pass to the purchaser and, after the sheriff's sale and the failure to redeem by either the owner or the mortgagee, the purchasers acquired the rights to the rents, profits accruing after the right of redemption expired. Baber v. Baber, 28 Colo. App. 530, 474 P.2d 630 (1970). When owner's right of redemption expires, all of his right, title, and interest in and to the land is extinguished; this same rule applies to the interest of lienholders who have a right to redeem. Baber v. Baber, 28 Colo. App. 530, 474 P.2d 630 (1970); Jenkins v. Peet, 13 B.R. 721 (D. Colo. 1981). See also Lane v. Morris, 77 Colo. 343, 237 P. 154 (1925). Plaintiff liable on note for entire indebtedness. Where plaintiff purchased property consisting of three parcels, secured by deed of trust, assuming to pay note secured by deed of trust, and where he then sold two of the parcels, but there was no evidence that the purchasers agreed to pay any part of the indebtedness, and where plaintiff thereafter defaulted making payments leading to loss of all the parcels by foreclosure and public trustee's sale, plaintiff is still liable on the note for the entire indebtedness. Ellickson v. Dull, 34 Colo. App. 25, 521 P.2d 1282 (1974). Proper parties to maintain action to set aside foreclosure. Where the grantor in a deed of trust conveyed his equity of redemption before foreclosure and, at the foreclosure sale, the property did not sell for enough to pay off his note, both he and his grantee of the equity of redemption have sufficient interest and are proper parties to maintain an action to set aside the foreclosure sale on the ground that it was illegal and void. Brewer v. Harrision, 27 Colo. 349, 62 P. 224 (1900). Right to redemption notice. To be entitled to notice that a deed of trust is being foreclosed, party who has right to redeem and who claims the right to a redemption notice must make his interest in the property known by recording that interest after the deed of trust has been recorded. S.L.K. Testamentary Trust v. Davids, 692 P.2d 1147 (Colo. App. 1984), aff'd, 728 P.2d 1259 (Colo. 1987). Right of redemption is based on surety's potential liability for a deficiency. Therefore, if an inchoate right of redemption is extinguished by a foreclosure sale resulting in the satisfaction of the deficiency, surety is no longer potentially liable and has no right to notice. S.L.K. Testamentary Trust v. Davids, 728 P.2d 1259 (Colo. 1987). Junior lien creditor may redeem from a public trustee's sale without complying with the homestead exemption statute. Howell v. Farrish, 725 P.2d 9 (Colo. App. 1986). Right to redeem of junior lienor with partial interest in property. A junior lienor, who is the beneficiary of a deed of trust upon only part of the property that has been foreclosed upon by a senior lienor, may not redeem only that part of the property that is subject to his deed of trust. Pheney v. Western Nat. Bank, 762 P.2d 693 (Colo. App. 1988); Independent Trust v. Stan Miller, Inc., 796 P.2d 483 (Colo. 1990). A right of redemption may not be severed from the property interest it serves. Backhart v. HTS Properties, LLC, 981 P.2d 208 (Colo. App. 1998). ==================================================================== 38-38-303 Previous Statute: 38-38-302 Next Statute: 38-38-304 38-38-303 - Time of redemption by lienor. (1) If no redemption is made within the redemption period provided for in section 38-38-302, the lienor having the senior lien, according to the records of the county clerk and recorder's office of the county where the property is located, on the sold property or some part thereof subsequent to the lien upon which such sale was held may redeem within ten days after the expiration of the redemption period provided for in section 38-38-302 by paying to the public trustee or sheriff the redemption amount required by section 38-38-302, and each subsequent lienor in succession shall have and be allowed a five-day period to redeem, according to the priority of his lien, and may redeem within the five-day period allotted to him by paying to the public trustee or sheriff the redemption amount paid by the next prior redeeming lienor, with interest, plus the amount claimed in the affidavit of the prior redeeming lienor as provided for in subsection (4) of this section, including the per diem amount through the date payment is made or, if no lienor prior to himself has redeemed, by paying to the public trustee or sheriff the redemption amount required by section 38-38-302. (2) No lienor is entitled to redeem unless his lien appears by instruments duly recorded or filed as permitted by law and unless, within the redemption period provided for in section 38-38-302, he files a notice with the public trustee or sheriff making the sale attaching a true and correct copy of such recorded instruments evidencing his lien with evidence of recording affixed by the county clerk and recorder's office and advising of his intention to redeem. No lienor shall be entitled to redeem under this section unless his lien appears by an instrument so recorded or filed prior to the expiration of the period of redemption provided for in section 38-38-302. (3) The calendar dates of the period of redemption allowed the respective lienors shall be considered as being fixed at the time of the expiration of the period of redemption provided for in section 38-38-302, and such periods shall not be advanced according to the calendar by the fact that any prior lienor redeemed before his full period of redemption expired. (4) A lienor redeeming shall pay to the public trustee or sheriff the amount required to redeem and shall deliver to such official an affidavit of himself or his agent showing the amount owing on such lien as of the last day of the owner's redemption period with the per diem amount that shall accrue thereafter. Source: L. 90: Entire article R&RE, p. 1666, § 2, effective October 1. Am. Jur.2d. See 55 Am. Jur.2d, Mortgages, § 902. C.J.S. See 59A C.J.S., Mortgages, § § 1034, 1035. Law reviews. For article, "Revising Redemptions", see 6 Dicta 16 (Feb. 1929). For article, "Foreclosures by the Public Trustee", see 9 Dicta 6 (1931). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). For article, "Forms Committee Presents Standard Pleading Samples to Be Used in Foreclosures Through Public Trustee", see 28 Dicta 461 (1951). For article, "Forms Committee Presents Additional Standard Pleading Samples for Use in Foreclosures Through Public Trustee", see 29 Dicta 1 (1952). For article, "Statutory Redemption in Colorado", see 30 Dicta 79 (1953). For article, "Deeds in Lieu of Foreclosure", see 15 Colo. Law. 394 (1986). For article, "Recent Statutory Amendments to the Public Trustee and Sheriff Foreclosure Process", see 15 Colo. Law. 794 (1986). For article, "Real Estate Foreclosures and Federal Tax Liens", see 17 Colo. Law. 35 (1988). For article, "Artificial Redemption Rights: A Tool of Foreclosure Investing", see 28 Colo. Law. 99 (October 1999). Annotator's note. Since § 38-38-303 is similar to § 38-39-103 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. Senior lienor. A lien claimant, who had obtained a personal judgment, transcript of which was filed with the clerk and recorder of the proper county after the sale, is a senior lienor. Twogood v. Ocsay, 97 Colo. 300, 49 P.2d 437 (1935). Judgment lienor is entitled to redeem property from a public trustee sale. First Nat'l Bank v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980). Defaulting party entitled to excess over trust deed indebtedness. Plaintiff, who defaulted on a deed of trust which she had agreed to pay, was entitled to excess over trust deed indebtedness on the sale of the property by the public trustee since she had caused a homestead exemption to be entered of record on the property prior to being specifically subjected to the judgment lien by levy, and notwithstanding that she did not redeem within the statutory period and on the expiration of the period, the assignee of the judgment redeemed the property. Patterson v. Serafini, 187 Colo. 209, 532 P.2d 965 (1974). Bankruptcy of debtor. The filing of a notice of intent to redeem by a junior lienor is not stayed when a debtor files a bankruptcy petition. Columbine P & S Fund, Inc. v. Hellenschmidt, 5 B.R. 758 (D.Colo. 1980). Joint tenants. The real property interest of two joint tenants cannot be used to satisfy the judgment creditor of one joint tenant. First Nat'l Bank v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980). Right to redeem from an execution sale is purely statutory. Davis Mfg. & Supply Co. v. Coonskin Properties, Inc., 646 P.2d 940 (Colo. App. 1982); United Bk. of Lakewood v. Jefferson Ind. Bk., 791 P.2d 1250 (Colo. App. 1990). Municipal lien entitled to redemption rights. Lien created by city municipal code for unpaid utility services had rights of redemption under this section. Sant v. Stephens, 753 P.2d 752 (Colo. 1988); Sant v. Stephens, 848 F.2d 1119 (10th Cir. 1988). This section limits rights of redemption provided in § 38-39-114 (now § 38-38-306). Redemption can only occur if a party has properly recorded and filed a lien. Where parties' equitable lien was incapable of being recorded or filed prior to being reduced to judgment, trial court did not err in dismissing action in nature of mandamus to compel public trustee to allow parties to redeem real property. Thomas v. Oken, 699 P.2d 7 (Colo. App. 1984). Lienor's noncompliance unexcused by trustee's incorrect information. Lienor's noncompliance with this section was not excused by incorrect information given out by the public trustee where the lienor's decision not to redeem was not affected by the erroneous information. Johnson v. Smith, 675 P.2d 307 (Colo. 1984). Equitable extension of redemption period appropriate. Where land is nonagricultural, a 75-day redemption period should be applied, but where the public trustee advises all the parties involved that a 6-month statutory redemption period applies and they act in reliance on that information, the court, through its equity power, could invoke a 6-month redemption period. Johnson v. Smith, 651 P.2d 422 (Colo. App. 1982). A court may under appropriate circumstances exercise its equitable jurisdiction to extend the statutory period of redemption. A court is not justified in extending a redemption period, however, unless there have been circumstances of fraud, deceit, or collusion by the purchaser or unless a holder of a right of redemption has been misled by the public trustee's erroneous information. United Bk. of Lakewood v. Jefferson Ind. Bk. 791 P.2d 1250 (Colo. App. 1990). Equitable right of redemption subject to 75-day limitation. Although extension of an equitable right of redemption is a permissible remedy in cases where an installment land contract purchaser has acquired an equitable interest in the property, the purchaser must comply with the subsection (2) requirement of filing a notice of intent to redeem with the public trustee during the 75-day period following the foreclosure sale. A court may invoke its equity power to extend a redemption period only if a holder of the right has been misled by the public trustee's erroneous information and has acted in reliance thereon. Flett v. Turgeon, 699 P.2d 10 (Colo. App. 1984). Redemption statutes in effect at time of contract become part of contract by operation of law, and thus right of redemption by lienor is presumed to have been contemplated by the parties. Arnove v. First Federal Sav. & Loan, 713 P.2d 1329 (Colo. App. 1985). Junior lien creditor may redeem from a public trustee's sale without complying with the homestead exemption statute. Howell v. Farrish, 725 P.2d 9 (Colo. App. 1986). Failure of junior lienholders to exercise redemptive rights at public sale of one-half interest in property did not extinguish their redemptive rights in subsequent foreclosure sales of entire property. Sant v. Stephens, 753 P.2d 752 (Colo. 1988); Sant v. Stephens, 848 F.2d 1119 (10th Cir. 1988). Right to redeem of junior lienor with partial interest in property. A junior lienor, who is the beneficiary of a deed of trust upon only part of the property that has been foreclosed upon by a senior lienor, may not redeem only that part of the property that is subject to his deed of trust. Pheney v. Western Nat. Bank, 762 P.2d 693 (Colo. App. 1988). If sale is by execution and levy, the redemption period begins to run after the expiration of the fifteen-day automatic stay of proceedings to enforce a judgment as provided in C.R.C.P. 62(a). Security Services v. Equity Management, 851 P.2d 921 (Colo. App. 1993). Addition of word "trustee" in a deed of trust is not sufficient to preclude the assertion of a valid claim to a right of redemption. Bolen v. Ferry Trust, 949 P.2d 82 (Colo. App. 1997). Trustee not required to immediately issue certificate of redemption upon tender of redemption amount. Craft v. Storey, 942 P.2d 1211 (Colo. App. 1996). Applied in Stryker v. Dunn, 72 Colo. 45, 209 P. 644, (1922); Bailey v. Merritt, 90 Colo. 338, 9 P.2d 485 (1932); Baber v. Baber, 28 Colo. App. 530, 474 P.2d 630 (1970); Dolan v. Flett, 41 Colo. App. 40, 582 P.2d 694 (1978); Moreland v. Marwich, Ltd., 665 P.2d 613 (Colo. 1983); FHT, Inc. v. Baldon, 728 P.2d 317 (Colo. App. 1986). Previous Statute: 38-38-302 Next Statute: 38-38-304 ==================================================================== 38-38-304 Previous Statute: 38-38-303 Next Statute: 38-38-305 38-38-304 - Effect of redemption. (1) If redemption is made by the owner of the property, it shall annul the sale and leave the property subject to all liens which would have existed if no sale had been made, except the lien foreclosed which shall be discharged by the sale. (2) If the owner fails to redeem and redemption is made by any other person liable after the foreclosure sale for a deficiency, it shall annul the sale, the property shall remain subject to all liens which would have existed if no sale had been made, and the certificate of redemption issued to the person so redeeming shall, when recorded, operate as an assignment to him of the lien so redeemed from, to the full extent thereof, including all extra costs and expenses paid by such redemptioner, who shall nevertheless still be liable for such deficiency. (3) If redemption is made by a lienor, his certificate of redemption, duly recorded, operates as an assignment to him of the estate and interest acquired by the purchaser at the sale, subject, however, to the rights of persons who may be entitled subsequently to redeem. Source: L. 90: Entire article R&RE, p. 1666, § 2, effective October 1. Law reviews. For note on the act original which inserted this section, see 28 Dicta 176 (1951). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). For article, "Forms Committee Presents Additional Standard Pleading Samples for Use in Foreclosures Through Public Trustee", see 29 Dicta 1 (1952). For article, "Statutory Redemption in Colorado", see 30 Dicta 79 (1953). Annotator's note. Since § 38-38-304 is similar to § 38-39-105 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. Applied in Norman, Inc. v. Holman, 105 Colo. 294, 97 P.2d 739 (1939); Home Owners' Loan Corp. v. Meyer, 110 Colo. 501, 136 P.2d 282 (1943). Previous Statute: 38-38-303 Next Statute: 38-38-305 ================================================================== 38-38-305 Previous Statute: 38-38-304 Next Statute: 38-38-306 38-38-305 - Lessee, easement holder, and installment land contract vendor considered as lienors - installment land contract vendee considered as an owner. (1) For the purposes of this article, a lessee of, or the holder of an easement encumbering, property shall be considered as a lienor, but without any lien amount, and shall be subject to all requirements in this article with respect to lienors. If a subsequent lienor redeems from the redemption of a lessee or easement holder, such subsequent lienor in acquiring said property takes the same subject to such lease or easement. (1.5) (a) The notice to the lessee or lessees who have unrecorded possessory interests in the property being foreclosed as provided for by this article and article 37 of this title by virtue of any foreclosure of a mortgage, trust deed, or other lien or by virtue of an execution and levy shall be mailed to the lessee or lessees of a single-family residence or a multiple-unit residential dwelling. Such notice shall be in writing and shall be sent by regular mail. Notice is complete upon mailing to the lessee at the address of the premises or by addressing such notice to "Occupant" followed by the address. (b) Nothing in this section shall affect any rights under this article of a lessee whose residential lease is recorded. (2) For the purposes of this article, an installment land contract vendor of property shall be considered as a lienor for the unpaid portion of the purchase price, interest, and other amounts provided under the installment land contract and shall be subject to all requirements in this article with respect to lienors; but such installment land contract vendor shall not be considered as an owner as to any portion of such property. (3) For the purposes of this article, an installment land contract vendee of property shall be considered as an owner except as to any portion of such property that such vendee may thereafter have transferred, as evidenced by a recorded instrument, and such vendee shall be subject to all requirements in this article with respect to owners. (4) The term "lienor", as used in this article, shall include the holder of a certificate of purchase for the property issued upon the foreclosure of a lien thereon, and the priority of the lien represented by such certificate of purchase shall be the same as the priority of the lien foreclosed by such certificate of purchase holder. Source: L. 90: Entire article R&RE, p. 1667, § 2, effective October 1; (1.5) added, p. 1684, § 4, effective October 1. Law reviews. For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). For article, "Forms Committee Presents Additional Standard Pleading Samples for Use in Foreclosure Through Public Trustee", see 29 Dicta 1 (1952). Annotator's note. Since § 38-38-305 is similar to § 38-39-106 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. An implied lease based on the terms of an earlier pre-foreclosure lease was created since the property owner/landlord accepted monthly payments from the tenant and did not renounce the prior agreement. Tanktech, Inc. v. First Interstate Bank, 851 P.2d 174 (Colo. App. 1992). Because a property lessee is considered a lienor under this section, upon foreclosure of a senior security interest, any subordinate leases, liens, or encumbrances are extinguished once the applicable redemption period has expired. First Interstate Bank v. Tanktech, Inc., 864 P.2d 116 (Colo. 1993). A right of redemption may not be severed from the property interest it serves. Backhart v. HTS Properties, LLC, 981 P.2d 208 (Colo. App. 1998). This section does not require an installment land contract vendor to foreclose upon default as a matter of law. Instead, the section describes when certain redemption rights and rights to cure a default exist. The section simply codifies previously existing equitable rights of redemption that were recognized by courts of equity. Paraguay Place-View Trust v. Gray, 981 P.2d 681 (Colo. App. 1999). However, this does not mean that the provisions of this section have no application when there is a default in an installment land contract. When a default occurs in such a contract and the vendor seeks to obtain possession, the vendor may initiate a forcible entry and detainer (FED) action. Thereafter, a court may determine whether the vendor can proceed by way of FED action or, instead, must proceed by way of foreclosure. If the court requires foreclosure, the vendor must foreclose under the terms of article 38 and, under this section, the vendee has a right to cure and a right of redemption. Paraguay Place-View Trust v. Gray, 981 P.2d 681 (Colo. App. 1999). Previous Statute: 38-38-304 Next Statute: 38-38-306 ===================================================================== 38-38-306 Previous Statute: 38-38-305 Next Statute: 38-38-401 38-38-306 - Rights of other lienors to redeem. (1) A judgment creditor whose judgment has been made a lien of record and who has complied with the other conditions of a lienor required by this article may redeem as a lienor. (2) A mechanic's lien claimant or any other person claiming the right to a statutory lien on real property shall have the right to redeem as a lienor despite the fact that such claim has not been reduced to judgment, if such lien or lien claim has been recorded as required or permitted by statute and the holder thereof has complied with the other conditions required of a lienor by this article. If another lienor redeems after such lien claimant, that portion of the redemption amount attributable to the claim of such lien claimant, as evidenced by such claimant's recorded lien, shall be held in escrow by the public trustee or sheriff until a final judgment has been entered in favor of such claimant confirming his right to a lien and all periods for appeal have expired, whereupon there shall be paid to such claimant from the escrow the amount of his lien claim as established by such judgment, with any interest earned thereon, and the balance, if any, shall be refunded to the last redeeming lienor. If such claimant releases his lien or fails to establish his right to such lien, the entire escrow shall be paid to the last redeeming lienor. Lien claimants of equal priority, for the purposes of this subsection (2), may act in concert and be deemed to represent one claim in which they share pro rata. Source: L. 90: Entire article R&RE, p. 1667, § 2, effective October 1. Law reviews. For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). Annotator's note. Since § 38-38-306 is similar to § 38-39-114 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. Redemption is purely statutory remedy for lienholders, which orders rights separate and apart from those already obtained by judgment creditors. Chatfield Bank v. Energy Fuels Corp., 42 Colo. App. 233, 599 P.2d 923 (1979), rev'd on other grounds, 200 Colo. 540, 618 P.2d 1115 (1980). The right to redeem from an execution sale is purely statutory and is not to be enlarged by judicial interpretation. Walker v. Wallace, 79 Colo. 380, 246 P. 553 (1926); Marty v. Paul, 75 Colo. 446, 226 P. 150 (1924); Thomas v. Oken, 699 P.2d 7 (Colo. App. 1984). Right to redeem is liberally construed to the end that all the property of the debtor may pay as many debts as possible. Walker v. Wallace, 79 Colo. 380, 246 P. 553 (1926). "Judgment creditor" defined. The term "judgment creditor" means the judgment creditor or creditors of the person or persons whose lands shall be sold under execution. Leach v. Torbert, 71 Colo. 85, 204 P. 334 (1922). Applied in Maloney v. Grimes, 1 Colo. 111 (1868); Paddack v. Staley, 13 Colo. App. 363, 58 P. 363 (1899); Levitt v. Continental Trust Co., 71 Colo. 3, 203 P. 666 (1922). Previous Statute: 38-38-305 Next Statute: 38-38-401 ============ Follow Ups: hoodia Harry Juna 5:42 PM, 02/03/05 (0) Post a Followup: Name : E-Mail : Subject : Comments: : : I and delinquent on a mortage in colorado because I lost my job, the house is somewhere in the foreclosure process and I have been notified that it sold at aan auction for 49K less than I owe on it. Somebody from Colorado called me and wants to buy the property as an investment and want me to sign a quick claim deed so he can try and get the house. He even sent me a check for 500 dollars? the question is should I sign the quick claim deed for him? : =•=•=•=•=•=•=•=•=•=•= : Alan, the reason that people, like the first fellow you mentioned and now JD, are ready to pay you $500 to $1,000 now, after the foreclosure auction took place is because in CO you have a Right of Redemption to recover the title to your foreclosed property for 75 days following the trustee’s sale. : For your convenience I have appended to this reply post all the pertinent code sections found in the current Colorado Revised Statutes regarding your Right of Redemption. : I appologize for the length of the following codes, but I didn’t want to censor anything. : : Good luck to you. : : Colorado Revised Statutes: : 38-38-103 : : Previous Statute: 38-38-102.5 Next Statute: 38-38-104 : <http://64.78.178.125/stat00/coloflag.gif> 38-38-103 - Combined notice of right to cure and right to redeem. <http://64.78.178.125/stat00/coloflag.gif> : (1) Within ten days after the recording of the notice of election and demand for sale by the public trustee pursuant to section 38-38-101, or not less than sixteen nor more than twenty-five days after the entry of a decree of foreclosure or the issuance of a writ of execution directing the sheriff to sell real property, the public trustee or sheriff shall mail a notice to the grantors of the deed of trust or mortgage being foreclosed, to any subsequent owners of the property being foreclosed, to the current owner of the property being sold, and to any other person having a right to cure a default under section 38-38-104 or a right to redeem the property subject to foreclosure under section 38-38-302, 38-38-303, 38-38-305, or 38-38-306. Such notice shall state the names of the grantors of the deed of trust or mortgage and the original beneficiaries or grantees thereof, the name of the current owner of an evidence of debt secured by the deed of trust or mortgage being foreclosed or the owner of the lien being foreclosed, and the names, addresses, and telephone numbers of the attorneys, if any, representing the foreclosing lienor. A legible copy of this section and sections 38-37-108, 38-38-104, and 38-38-301 to 38-38-306 shall be sent with such notice. : ===================================================================== : : 38-38-302 : : Previous Statute: 38-38-301 Next Statute: 38-38-303 : <http://64.78.178.125/stat00/coloflag.gif> 38-38-302 - Redemption within specified period - procedure. <http://64.78.178.125/stat00/coloflag.gif> : (1) Except as provided in this section with respect to agricultural real estate, within seventy-five days after the date of the sale of the property by virtue of any foreclosure of a mortgage, deed of trust, or other lien or by virtue of an execution and levy, the owner of the property, or any other person liable after the foreclosure sale for the deficiency, may redeem the property sold by paying to the public trustee or sheriff the sum for which the property was sold with interest from the date of sale, together with any taxes paid or other proper charges as now provided by law, with interest from the date such expense was paid. Such interest shall be charged at the default rate if specified in the original instrument or, if not so specified, at the regular rate specified in the original instrument. For the purposes of this section, "other proper charges" includes those costs and expenses paid by the holder of a certificate of purchase as permitted by section 38-38-301 (1) for which said holder has filed with the public trustee or sheriff conducting the sale receipts evidencing such payments. : (2) The public trustee or sheriff shall execute and deliver a certificate of redemption to the person redeeming and shall record a duplicate certificate in the county clerk and recorder's office of the county where the property is located. The public trustee or sheriff shall retain the recorded copy of the certificate of redemption. The public trustee or sheriff shall forthwith pay said money to the holder of the certificate of purchase. If the owner of the property fails to redeem under this section, any other person who redeems under this section shall be issued a certificate of redemption only after the expiration of the proper redemption period. : (3) In the case of any mortgage or deed of trust upon one or more parcels of real estate, all of which were agricultural real estate both upon the date of recording of such mortgage or deed of trust and on the date of the foreclosure sale, the redemption period described in subsection (1) of this section is six months. : (4) (a) The term "agricultural real estate" means, for the purpose of this section, any parcel of real estate, none of which, on the date of recording of the mortgage or deed of trust or at the time of the foreclosure sale under such mortgage or deed of trust, is either platted as a subdivision, located within an incorporated town, city, or city and county, or is not valued and assessed as agricultural land pursuant to sections 39-1-102 (1.6) (a) and 39-1-103 (5), C.R.S., by the assessor of the county in which the land is located. : (b) (I) If it is not evident from the legal description contained in the mortgage or deed of trust that the real estate described therein is or is not agricultural real estate, the public trustee or sheriff shall accept as evidence that the parcel is not agricultural real estate either: : (A) A certified copy of the subdivision plat containing all or a part of the parcel of real estate; or : (B) A certificate of the clerk of the city, town, or city and county certifying that all or a part of the parcel is located within the incorporated limits of the city, town, or city and county on the date of recording of the mortgage or deed of trust or at the time of the foreclosure sale; or : (C) A certificate from the assessor of the county in which the property is located certifying that all or a part of the parcel is not valued and assessed as agricultural land. : (II) A title insurance company issuing a policy may rely upon any of the forms of evidence set forth under this paragraph (b). : (c) Such plat or certificates shall be obtained and furnished and the certificates recorded, all of which shall be paid for by the person seeking the determination that the property is not agricultural real estate. : (d) If at the time of recording of the mortgage or deed of trust, or at the time of the foreclosure sale, the property is, in whole or in part, either platted as a subdivision or is both located within the incorporated limits of a town, city, or city and county and is not valued and assessed as agricultural land, it shall be deemed for all purposes under this section, and against all persons, that such parcel is not agricultural real estate. : (5) If the last day of the seventy-five-day redemption period, the six-month redemption period provided for in this section, or the lienor redemption periods provided for in section 38-38-303 (1) is a Saturday, Sunday, or legal holiday or a day the county courthouse is closed, the period is extended to include the next business day. : Source: L. 90: Entire article R&RE, p. 1664, § 2, effective October 1. L. 98: (4) amended, p. 221, § 1, effective August 5. : I. General Consideration. : II. Right of Redemption. : A. In General. : B. Rights and Liabilities of Parties. : III. Agricultural Real Estate. : I. GENERAL CONSIDERATION. : Am. Jur.2d. See 55 Am. Jur.2d, Mortgages, § 902. : C.J.S. See 59A C.J.S., Mortgages, § § 1034, 1035. : Law reviews. For article, "Revising Redemptions", see 6 Dicta 16 (1929). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). For article, "Forms Committee Presents Standard Pleading Samples to Be Used in Foreclosures Through Public Trustee", see 28 Dicta 461 (1951). For article, "Forms Committee Presents Additional Standard Pleading Samples for Use in Foreclosures Through Public Trustee", see 29 Dicta 1 (1952). For article, "Enforcement of Security Interests in Colorado", see 25 Rocky Mt. L. Rev. 1 (1952). For article, "Statutory Redemption in Colorado", see 30 Dicta 79 (1953). For note, "Statutory Redemption in Colorado: 1965 Amendments", see 39 U. Colo. L. Rev. 127 (1966). For comment, "The Effect of Certified Realty on Mortgage Foreclosure in Colorado", see 52 U. Colo. L. Rev. 301 (1981). For comment, "The Effect of Certified Realty Corp. v. Smith, 198 Colo. 222, 597 P.2d 1043 (1979), on Mortgage Foreclosure in Colorado", see 52 U. Colo. L. Rev. 301 (1981). For article, "Public Trustee's Deeds and Redemption Under Section 362 of the Bankruptcy Code", see 12 Colo. Law. 229 (1983). For article, "A Review of Agricultural Law: Hard Times and Hard Choices", see 15 Colo. Law. 629 (1986). For article, "Recent Statutory Amendments to the Public Trustee and Sheriff Foreclosure Process", see 15 Colo. Law. 794 (1986). For article, "The Colorado Farm Homestead Protection Act", see 15 Colo. Law. 1642 (1986). For article, "1987 Statutory Amendments Concerning Foreclosures of Deeds of Trust and Mortgages", see 16 Colo. Law. 1386 (1987). For article, "Real Estate Foreclosures and Federal Tax Liens", see 17 Colo. Law. 35 (1988). For article, "Recent Developments in Foreclosure Law", see 23 Colo. Law. 599 (1994). For article, "Artificial Redemption Rights: A Tool of Foreclosure Investing", see 28 Colo. Law. 99 (October 1999). : Annotator's note. Since § 38-38-302 is similar to § 38-39-102 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. : Section encompasses foreclosure of any lien. This section encompasses foreclosure by deed of trust or of any other lien. Frank v. First Nat'l Bank, 653 P.2d 748 (Colo. App. 1982). : In determining whether foreclosure sale and issuance of certificate of purchase was an avoidable transfer under 11 U.S.C. § 548, full amount of junior liens must be subtracted from fair market value of property sold before determining whether reasonably equivalent value was paid for certificate of purchase. In re Garrison, 56 Bankr. 528 (Bankr. D. Colo. 1986). : Applied in Ryan v. Staples, 76 F. 721 (8th Cir. 1896); Blitz v. Moran, 17 Colo. App. 253, 67 P. 1020 (1902); Roose v. Gove, 32 Colo. 522, 77 P. 246 (1904); McKee v. Elwell, 69 Colo. 316, 194 P. 616 (1920); Stryker v. Dunn, 72 Colo. 45, 209 P. 644 (1922); Bailey v. Merritt, 90 Colo. 338, 9 P.2d 485 (1932); Maxwell v. District Court, 641 P.2d 931 (Colo. 1982). Jenkins v. Peet, 19 Bankr. 105 (Bankr. D. Colo. 1982); Moreland v. Marwich, Ltd., 665 P.2d 613 (Colo. 1983); Flett v. Turgeon, 699 P.2d 10 (Colo. App. 1984); Cole v. Farner, 749 P.2d 970 (Colo. App. 1987). : II. RIGHT OF REDEMPTION. : A. In General. : Right to redeem from execution sale is statutory. The right to redeem from an execution sale is a purely statutory one. Paddack v. Staley, 13 Colo. App. 363, 58 P. 363 (1899); Davis Mfg. & Supply Co. v. Coonskin Properties, Inc., 646 P.2d 940 (Colo. App. 1982). : Without the statutes of redemption, neither judgment debtors nor judgment creditors, nor grantees of the judgment debtor, taking his title, could redeem from an execution sale. Jenkins v. Gold Dollar Mining & Milling Co., 27 Colo. App. 247, 149 P. 269 (1915); Paddack v. Staley, 13 Colo. App. 363, 58 P. 363 (1899). : Redemption period tolled by federal statute. The automatic stay provision of 11 U.S.C. § 362(a) tolls the redemption period provided for in this section. Eaton Land & Cattle Co. v. Rocky Mt. Invs., 28 Bankr. 890 (Bankr. D. Colo. 1983). : Redemption period not tolled by federal statute. 11 U.S.C. § 362 does not "toll" or "suspend" the running of the redemption period in Colorado as provided for in this section. In re Murphy, 22 Bankr. 663 (Bankr. D. Colo. 1982). : Or sale set aside. A court is not justified in invoking its equity powers to set aside a sale or extend the redemption period unless there have been circumstances such as fraud, deceit, or collusion by the purchaser, or unless a holder of a right of redemption has been misled by erroneous information as to the applicable redemption period. Davis Mfg. & Supply Co. v. Coonskin Properties, Inc., 646 P.2d 940 (Colo. App. 1982). : Extension of redemption period. Where, on the date the redemption period expires, the debtor files a chapter 11 bankruptcy petition, pursuant to 11 U.S.C. § 108(b), the period of redemption is extended only for an additional 60 days, the federal automatic stay provision being inapplicable. Westergaard v. Cucumber Creek Dev., Inc., 33 Bankr. 820 (Bankr. D. Colo. 1983). : Debtor's right to redeem generally provides adequate remedy to safeguard him against an inadequate sale price. Gale v. Rice, 636 P.2d 1280 (Colo. App. 1981). : Redemption annuls sale. White v. Crow, 110 U.S. 183, 4 S. Ct. 71, 28 L. Ed. 113 (1884). : Upon a redemption from a sale of real estate under execution, the certificate of sale becomes void, and a sheriff's deed issued thereon is a nullity. Floyd v. Sellers, 7 Colo. App. 491, 44 P. 371 (1896). : The payment of the money by defendant, with the purpose of redemption, to the sheriff who sold the land on execution, and its receipt by the latter without objection, nullifies and abrogates the sale as between defendant and the purchaser, though the sheriff has not formally canceled the certificate of purchase, nor directed the execution of a certificate of redemption and though he has subsequently executed a deed of the land to the purchaser. Colorado Mfg. Co. v. McDonald, 15 Colo. 516, 25 P. 712 (1890). : General rule as to payment. The general rule is that redemption requires payment of the full purchase price received at the foreclosure sale together with incidental expenses. Rowe v. Tucker, 38 Colo. App. 532, 560 P.2d 843 (1977). : Test of right of redemption. Actual ownership was not intended to be the test of the right of redemption. Floyd v. Sellers, 7 Colo. App. 491, 44 P. 371 (1896). : Character of property material factor in ascertaining redemption period. The character of the property rather than its use is the material factor in ascertaining the period for redemption. Rowe v. Tucker, 38 Colo. App. 532, 560 P.2d 843 (1977). : Period of redemption begins to run from the date a judgment of foreclosure is entered. Oman v. Morris, 28 Colo. App. 124, 471 P.2d 430 (1970). : Where equitable extension of redemption period appropriate. Where holders of right of redemption relied on the public trustee's mistake as to whether the six-month period of redemption for agricultural property or the 75-day period for nonagricultural property applied and where there was an inadequate sales price at foreclosure sale, equitable extension of the period of redemption was an appropriate remedy. Arnold v. Gebhardt, 43 Colo. App. 387, 604 P.2d 1192 (1979); Johnson v. Smith, 651 P.2d 422 (Colo. App. 1982). : Redemption period may not be extended, absent wrongdoing. The bankruptcy court cannot exercise its equity power to extend the redemption period established by subsection (2), absent guilt of wrongdoing by the party seeking the foreclosure, which adversely affects the debtor's right of redemption. In re Headley, 13 B.R. 295 (D. Colo. 1981). : And inadequacy of sale price not enough to set aside sale. Inadequacy of sales price at foreclosure sale, standing alone, does not warrant setting aside the sale but it may be considered as one of the factors which requires the court to employ an equitable remedy for the holders of the right of redemption. Arnold v. Gebhardt, 43 Colo. App. 387, 604 P.2d 1192 (1979). : A disparity between the market value and the price paid at sale is not controlling and, standing alone, is not sufficient cause for setting aside a sale or extending a redemption period. Davis Mfg. & Supply Co. v. Coonskin Properties, Inc., 646 P.2d 940 (Colo. App. 1982). : Effect of sheriff's deed executed after six months. As to a judgment debtor or his grantee, a sheriff's deed was valid if executed and delivered after six months and before nine months from the date of sale, providing there had been no redemption. McLaughlin v. Wilson, 23 Colo. App. 59, 127 P. 242 (1912). See also Finch v. Turner, 21 Colo. 287, 40 P. 565 (1895). : "Months". There is no dispute that the word "months", in the context of subsection (2), means calendar months, rather than some arbitrarily established number of days. Rowe v. Tucker, 38 Colo. App. 532, 560 P.2d 843 (1977). : B. Rights and Liabilities of Parties. : Owner of premises and lienholders of record may redeem. The owner of the premises and the lienholders of record have a right to redeem from the sale on foreclosure by the sheriff. Baber v. Baber, 28 Colo. App. 530, 474 P.2d 630 (1970); Jenkins v. Peet, 13 B.R. 721 (D. Colo. 1981). See also Lane v. Morris, 77 Colo. 343, 237 P. 154 (1925). : A redemption may be made by a judgment debtor where the judgment was against him and another, and the land sold under an execution issued thereon as the land of both defendants, notwithstanding that he may have had no interest in the property at the time of the levy or sale. Floyd v. Sellers, 7 Colo. App. 491, 44 P. 371 (1896). : And owner has possessory rights until expiration of redemption period. On sale under foreclosure of a trust deed, the owner thereafter has merely the statutory right to redeem and the right to possession of the premises until the expiration of the redemption period. Lane v. Morris, 77 Colo. 343, 237 P. 154 (1925); Bankers Bldg. & Loan Ass'n v. Fleming Bros. Lumber Co., 83 Colo. 335, 264 P. 1087 (1928); Union Mut. Protective Ass'n v. San Luis State Bank, 86 Colo. 293, 281 P. 366 (1929). : Owner retain equitable title after giving trust deed on property. When the owner of property gives a trust deed thereon, his legal title is vested in the trustee and the equitable title or equity of redemption remains in the owner. Bankers Bldg. & Loan Ass'n v. Fleming Bros. Lumber Co., 83 Colo. 335, 264 P. 1087 (1928). : Redemption of interest of one joint tenant. A judgment creditor with a lien against the property interest of one joint tenant may redeem that interest without redeeming the interest of the other joint tenant. First Nat'l Bank v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980). : Right to rents and reversion of leased premises. Where premises are leased, the landlord is entitled to both the rents and the reversion, and when the reversion of the landlord is transferred, the rights to rents accruing after the transfer of the reversion pass to the transferee; therefore, when the landlord's interest in the demised premises are transferred to a purchaser on a sheriff's sale on foreclosure, the rights to the rents reserved in the lease pass to the purchaser and, after the sheriff's sale and the failure to redeem by either the owner or the mortgagee, the purchasers acquired the rights to the rents, profits accruing after the right of redemption expired. Baber v. Baber, 28 Colo. App. 530, 474 P.2d 630 (1970). : When owner's right of redemption expires, all of his right, title, and interest in and to the land is extinguished; this same rule applies to the interest of lienholders who have a right to redeem. Baber v. Baber, 28 Colo. App. 530, 474 P.2d 630 (1970); Jenkins v. Peet, 13 B.R. 721 (D. Colo. 1981). See also Lane v. Morris, 77 Colo. 343, 237 P. 154 (1925). : Plaintiff liable on note for entire indebtedness. Where plaintiff purchased property consisting of three parcels, secured by deed of trust, assuming to pay note secured by deed of trust, and where he then sold two of the parcels, but there was no evidence that the purchasers agreed to pay any part of the indebtedness, and where plaintiff thereafter defaulted making payments leading to loss of all the parcels by foreclosure and public trustee's sale, plaintiff is still liable on the note for the entire indebtedness. Ellickson v. Dull, 34 Colo. App. 25, 521 P.2d 1282 (1974). : Proper parties to maintain action to set aside foreclosure. Where the grantor in a deed of trust conveyed his equity of redemption before foreclosure and, at the foreclosure sale, the property did not sell for enough to pay off his note, both he and his grantee of the equity of redemption have sufficient interest and are proper parties to maintain an action to set aside the foreclosure sale on the ground that it was illegal and void. Brewer v. Harrision, 27 Colo. 349, 62 P. 224 (1900). : Right to redemption notice. To be entitled to notice that a deed of trust is being foreclosed, party who has right to redeem and who claims the right to a redemption notice must make his interest in the property known by recording that interest after the deed of trust has been recorded. S.L.K. Testamentary Trust v. Davids, 692 P.2d 1147 (Colo. App. 1984), aff'd, 728 P.2d 1259 (Colo. 1987). : Right of redemption is based on surety's potential liability for a deficiency. Therefore, if an inchoate right of redemption is extinguished by a foreclosure sale resulting in the satisfaction of the deficiency, surety is no longer potentially liable and has no right to notice. S.L.K. Testamentary Trust v. Davids, 728 P.2d 1259 (Colo. 1987). : Junior lien creditor may redeem from a public trustee's sale without complying with the homestead exemption statute. Howell v. Farrish, 725 P.2d 9 (Colo. App. 1986). : Right to redeem of junior lienor with partial interest in property. A junior lienor, who is the beneficiary of a deed of trust upon only part of the property that has been foreclosed upon by a senior lienor, may not redeem only that part of the property that is subject to his deed of trust. Pheney v. Western Nat. Bank, 762 P.2d 693 (Colo. App. 1988); Independent Trust v. Stan Miller, Inc., 796 P.2d 483 (Colo. 1990). : A right of redemption may not be severed from the property interest it serves. Backhart v. HTS Properties, LLC, 981 P.2d 208 (Colo. App. 1998). : ==================================================================== : : 38-38-303 : : Previous Statute: 38-38-302 Next Statute: 38-38-304 : <http://64.78.178.125/stat00/coloflag.gif> 38-38-303 - Time of redemption by lienor. <http://64.78.178.125/stat00/coloflag.gif> : (1) If no redemption is made within the redemption period provided for in section 38-38-302, the lienor having the senior lien, according to the records of the county clerk and recorder's office of the county where the property is located, on the sold property or some part thereof subsequent to the lien upon which such sale was held may redeem within ten days after the expiration of the redemption period provided for in section 38-38-302 by paying to the public trustee or sheriff the redemption amount required by section 38-38-302, and each subsequent lienor in succession shall have and be allowed a five-day period to redeem, according to the priority of his lien, and may redeem within the five-day period allotted to him by paying to the public trustee or sheriff the redemption amount paid by the next prior redeeming lienor, with interest, plus the amount claimed in the affidavit of the prior redeeming lienor as provided for in subsection (4) of this section, including the per diem amount through the date payment is made or, if no lienor prior to himself has redeemed, by paying to the public trustee or sheriff the redemption amount required by section 38-38-302. : (2) No lienor is entitled to redeem unless his lien appears by instruments duly recorded or filed as permitted by law and unless, within the redemption period provided for in section 38-38-302, he files a notice with the public trustee or sheriff making the sale attaching a true and correct copy of such recorded instruments evidencing his lien with evidence of recording affixed by the county clerk and recorder's office and advising of his intention to redeem. No lienor shall be entitled to redeem under this section unless his lien appears by an instrument so recorded or filed prior to the expiration of the period of redemption provided for in section 38-38-302. : (3) The calendar dates of the period of redemption allowed the respective lienors shall be considered as being fixed at the time of the expiration of the period of redemption provided for in section 38-38-302, and such periods shall not be advanced according to the calendar by the fact that any prior lienor redeemed before his full period of redemption expired. : (4) A lienor redeeming shall pay to the public trustee or sheriff the amount required to redeem and shall deliver to such official an affidavit of himself or his agent showing the amount owing on such lien as of the last day of the owner's redemption period with the per diem amount that shall accrue thereafter. : Source: L. 90: Entire article R&RE, p. 1666, § 2, effective October 1. : Am. Jur.2d. See 55 Am. Jur.2d, Mortgages, § 902. : C.J.S. See 59A C.J.S., Mortgages, § § 1034, 1035. : Law reviews. For article, "Revising Redemptions", see 6 Dicta 16 (Feb. 1929). For article, "Foreclosures by the Public Trustee", see 9 Dicta 6 (1931). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). For article, "Forms Committee Presents Standard Pleading Samples to Be Used in Foreclosures Through Public Trustee", see 28 Dicta 461 (1951). For article, "Forms Committee Presents Additional Standard Pleading Samples for Use in Foreclosures Through Public Trustee", see 29 Dicta 1 (1952). For article, "Statutory Redemption in Colorado", see 30 Dicta 79 (1953). For article, "Deeds in Lieu of Foreclosure", see 15 Colo. Law. 394 (1986). For article, "Recent Statutory Amendments to the Public Trustee and Sheriff Foreclosure Process", see 15 Colo. Law. 794 (1986). For article, "Real Estate Foreclosures and Federal Tax Liens", see 17 Colo. Law. 35 (1988). For article, "Artificial Redemption Rights: A Tool of Foreclosure Investing", see 28 Colo. Law. 99 (October 1999). : Annotator's note. Since § 38-38-303 is similar to § 38-39-103 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. : Senior lienor. A lien claimant, who had obtained a personal judgment, transcript of which was filed with the clerk and recorder of the proper county after the sale, is a senior lienor. Twogood v. Ocsay, 97 Colo. 300, 49 P.2d 437 (1935). : Judgment lienor is entitled to redeem property from a public trustee sale. First Nat'l Bank v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980). : Defaulting party entitled to excess over trust deed indebtedness. Plaintiff, who defaulted on a deed of trust which she had agreed to pay, was entitled to excess over trust deed indebtedness on the sale of the property by the public trustee since she had caused a homestead exemption to be entered of record on the property prior to being specifically subjected to the judgment lien by levy, and notwithstanding that she did not redeem within the statutory period and on the expiration of the period, the assignee of the judgment redeemed the property. Patterson v. Serafini, 187 Colo. 209, 532 P.2d 965 (1974). : Bankruptcy of debtor. The filing of a notice of intent to redeem by a junior lienor is not stayed when a debtor files a bankruptcy petition. Columbine P & S Fund, Inc. v. Hellenschmidt, 5 B.R. 758 (D.Colo. 1980). : Joint tenants. The real property interest of two joint tenants cannot be used to satisfy the judgment creditor of one joint tenant. First Nat'l Bank v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980). : Right to redeem from an execution sale is purely statutory. Davis Mfg. & Supply Co. v. Coonskin Properties, Inc., 646 P.2d 940 (Colo. App. 1982); United Bk. of Lakewood v. Jefferson Ind. Bk., 791 P.2d 1250 (Colo. App. 1990). : Municipal lien entitled to redemption rights. Lien created by city municipal code for unpaid utility services had rights of redemption under this section. Sant v. Stephens, 753 P.2d 752 (Colo. 1988); Sant v. Stephens, 848 F.2d 1119 (10th Cir. 1988). : This section limits rights of redemption provided in § 38-39-114 (now § 38-38-306). Redemption can only occur if a party has properly recorded and filed a lien. Where parties' equitable lien was incapable of being recorded or filed prior to being reduced to judgment, trial court did not err in dismissing action in nature of mandamus to compel public trustee to allow parties to redeem real property. Thomas v. Oken, 699 P.2d 7 (Colo. App. 1984). : Lienor's noncompliance unexcused by trustee's incorrect information. Lienor's noncompliance with this section was not excused by incorrect information given out by the public trustee where the lienor's decision not to redeem was not affected by the erroneous information. Johnson v. Smith, 675 P.2d 307 (Colo. 1984). : Equitable extension of redemption period appropriate. Where land is nonagricultural, a 75-day redemption period should be applied, but where the public trustee advises all the parties involved that a 6-month statutory redemption period applies and they act in reliance on that information, the court, through its equity power, could invoke a 6-month redemption period. Johnson v. Smith, 651 P.2d 422 (Colo. App. 1982). : A court may under appropriate circumstances exercise its equitable jurisdiction to extend the statutory period of redemption. A court is not justified in extending a redemption period, however, unless there have been circumstances of fraud, deceit, or collusion by the purchaser or unless a holder of a right of redemption has been misled by the public trustee's erroneous information. United Bk. of Lakewood v. Jefferson Ind. Bk. 791 P.2d 1250 (Colo. App. 1990). : Equitable right of redemption subject to 75-day limitation. Although extension of an equitable right of redemption is a permissible remedy in cases where an installment land contract purchaser has acquired an equitable interest in the property, the purchaser must comply with the subsection (2) requirement of filing a notice of intent to redeem with the public trustee during the 75-day period following the foreclosure sale. A court may invoke its equity power to extend a redemption period only if a holder of the right has been misled by the public trustee's erroneous information and has acted in reliance thereon. Flett v. Turgeon, 699 P.2d 10 (Colo. App. 1984). : Redemption statutes in effect at time of contract become part of contract by operation of law, and thus right of redemption by lienor is presumed to have been contemplated by the parties. Arnove v. First Federal Sav. & Loan, 713 P.2d 1329 (Colo. App. 1985). : Junior lien creditor may redeem from a public trustee's sale without complying with the homestead exemption statute. Howell v. Farrish, 725 P.2d 9 (Colo. App. 1986). : Failure of junior lienholders to exercise redemptive rights at public sale of one-half interest in property did not extinguish their redemptive rights in subsequent foreclosure sales of entire property. Sant v. Stephens, 753 P.2d 752 (Colo. 1988); Sant v. Stephens, 848 F.2d 1119 (10th Cir. 1988). : Right to redeem of junior lienor with partial interest in property. A junior lienor, who is the beneficiary of a deed of trust upon only part of the property that has been foreclosed upon by a senior lienor, may not redeem only that part of the property that is subject to his deed of trust. Pheney v. Western Nat. Bank, 762 P.2d 693 (Colo. App. 1988). : If sale is by execution and levy, the redemption period begins to run after the expiration of the fifteen-day automatic stay of proceedings to enforce a judgment as provided in C.R.C.P. 62(a). Security Services v. Equity Management, 851 P.2d 921 (Colo. App. 1993). : Addition of word "trustee" in a deed of trust is not sufficient to preclude the assertion of a valid claim to a right of redemption. Bolen v. Ferry Trust, 949 P.2d 82 (Colo. App. 1997). : Trustee not required to immediately issue certificate of redemption upon tender of redemption amount. Craft v. Storey, 942 P.2d 1211 (Colo. App. 1996). : Applied in Stryker v. Dunn, 72 Colo. 45, 209 P. 644, (1922); Bailey v. Merritt, 90 Colo. 338, 9 P.2d 485 (1932); Baber v. Baber, 28 Colo. App. 530, 474 P.2d 630 (1970); Dolan v. Flett, 41 Colo. App. 40, 582 P.2d 694 (1978); Moreland v. Marwich, Ltd., 665 P.2d 613 (Colo. 1983); FHT, Inc. v. Baldon, 728 P.2d 317 (Colo. App. 1986). : Previous Statute: 38-38-302 Next Statute: 38-38-304 : ==================================================================== : : 38-38-304 : : Previous Statute: 38-38-303 Next Statute: 38-38-305 : <http://64.78.178.125/stat00/coloflag.gif> 38-38-304 - Effect of redemption. <http://64.78.178.125/stat00/coloflag.gif> : (1) If redemption is made by the owner of the property, it shall annul the sale and leave the property subject to all liens which would have existed if no sale had been made, except the lien foreclosed which shall be discharged by the sale. : (2) If the owner fails to redeem and redemption is made by any other person liable after the foreclosure sale for a deficiency, it shall annul the sale, the property shall remain subject to all liens which would have existed if no sale had been made, and the certificate of redemption issued to the person so redeeming shall, when recorded, operate as an assignment to him of the lien so redeemed from, to the full extent thereof, including all extra costs and expenses paid by such redemptioner, who shall nevertheless still be liable for such deficiency. : (3) If redemption is made by a lienor, his certificate of redemption, duly recorded, operates as an assignment to him of the estate and interest acquired by the purchaser at the sale, subject, however, to the rights of persons who may be entitled subsequently to redeem. : Source: L. 90: Entire article R&RE, p. 1666, § 2, effective October 1. : Law reviews. For note on the act original which inserted this section, see 28 Dicta 176 (1951). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). For article, "Forms Committee Presents Additional Standard Pleading Samples for Use in Foreclosures Through Public Trustee", see 29 Dicta 1 (1952). For article, "Statutory Redemption in Colorado", see 30 Dicta 79 (1953). : Annotator's note. Since § 38-38-304 is similar to § 38-39-105 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. : Applied in Norman, Inc. v. Holman, 105 Colo. 294, 97 P.2d 739 (1939); Home Owners' Loan Corp. v. Meyer, 110 Colo. 501, 136 P.2d 282 (1943). : Previous Statute: 38-38-303 Next Statute: 38-38-305 : ================================================================== : 38-38-305 : : Previous Statute: 38-38-304 Next Statute: 38-38-306 : <http://64.78.178.125/stat00/coloflag.gif> 38-38-305 - Lessee, easement holder, and installment land contract vendor considered as lienors - installment land contract vendee considered as an owner. <http://64.78.178.125/stat00/coloflag.gif> : (1) For the purposes of this article, a lessee of, or the holder of an easement encumbering, property shall be considered as a lienor, but without any lien amount, and shall be subject to all requirements in this article with respect to lienors. If a subsequent lienor redeems from the redemption of a lessee or easement holder, such subsequent lienor in acquiring said property takes the same subject to such lease or easement. : (1.5) (a) The notice to the lessee or lessees who have unrecorded possessory interests in the property being foreclosed as provided for by this article and article 37 of this title by virtue of any foreclosure of a mortgage, trust deed, or other lien or by virtue of an execution and levy shall be mailed to the lessee or lessees of a single-family residence or a multiple-unit residential dwelling. Such notice shall be in writing and shall be sent by regular mail. Notice is complete upon mailing to the lessee at the address of the premises or by addressing such notice to "Occupant" followed by the address. : (b) Nothing in this section shall affect any rights under this article of a lessee whose residential lease is recorded. : (2) For the purposes of this article, an installment land contract vendor of property shall be considered as a lienor for the unpaid portion of the purchase price, interest, and other amounts provided under the installment land contract and shall be subject to all requirements in this article with respect to lienors; but such installment land contract vendor shall not be considered as an owner as to any portion of such property. : (3) For the purposes of this article, an installment land contract vendee of property shall be considered as an owner except as to any portion of such property that such vendee may thereafter have transferred, as evidenced by a recorded instrument, and such vendee shall be subject to all requirements in this article with respect to owners. : (4) The term "lienor", as used in this article, shall include the holder of a certificate of purchase for the property issued upon the foreclosure of a lien thereon, and the priority of the lien represented by such certificate of purchase shall be the same as the priority of the lien foreclosed by such certificate of purchase holder. : Source: L. 90: Entire article R&RE, p. 1667, § 2, effective October 1; (1.5) added, p. 1684, § 4, effective October 1. : Law reviews. For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). For article, "Forms Committee Presents Additional Standard Pleading Samples for Use in Foreclosure Through Public Trustee", see 29 Dicta 1 (1952). : Annotator's note. Since § 38-38-305 is similar to § 38-39-106 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. : An implied lease based on the terms of an earlier pre-foreclosure lease was created since the property owner/landlord accepted monthly payments from the tenant and did not renounce the prior agreement. Tanktech, Inc. v. First Interstate Bank, 851 P.2d 174 (Colo. App. 1992). : Because a property lessee is considered a lienor under this section, upon foreclosure of a senior security interest, any subordinate leases, liens, or encumbrances are extinguished once the applicable redemption period has expired. First Interstate Bank v. Tanktech, Inc., 864 P.2d 116 (Colo. 1993). : A right of redemption may not be severed from the property interest it serves. Backhart v. HTS Properties, LLC, 981 P.2d 208 (Colo. App. 1998). : This section does not require an installment land contract vendor to foreclose upon default as a matter of law. Instead, the section describes when certain redemption rights and rights to cure a default exist. The section simply codifies previously existing equitable rights of redemption that were recognized by courts of equity. Paraguay Place-View Trust v. Gray, 981 P.2d 681 (Colo. App. 1999). : However, this does not mean that the provisions of this section have no application when there is a default in an installment land contract. When a default occurs in such a contract and the vendor seeks to obtain possession, the vendor may initiate a forcible entry and detainer (FED) action. Thereafter, a court may determine whether the vendor can proceed by way of FED action or, instead, must proceed by way of foreclosure. If the court requires foreclosure, the vendor must foreclose under the terms of article 38 and, under this section, the vendee has a right to cure and a right of redemption. Paraguay Place-View Trust v. Gray, 981 P.2d 681 (Colo. App. 1999). : Previous Statute: 38-38-304 Next Statute: 38-38-306 : ===================================================================== : 38-38-306 : : Previous Statute: 38-38-305 Next Statute: 38-38-401 : <http://64.78.178.125/stat00/coloflag.gif> 38-38-306 - Rights of other lienors to redeem. <http://64.78.178.125/stat00/coloflag.gif> : (1) A judgment creditor whose judgment has been made a lien of record and who has complied with the other conditions of a lienor required by this article may redeem as a lienor. : (2) A mechanic's lien claimant or any other person claiming the right to a statutory lien on real property shall have the right to redeem as a lienor despite the fact that such claim has not been reduced to judgment, if such lien or lien claim has been recorded as required or permitted by statute and the holder thereof has complied with the other conditions required of a lienor by this article. If another lienor redeems after such lien claimant, that portion of the redemption amount attributable to the claim of such lien claimant, as evidenced by such claimant's recorded lien, shall be held in escrow by the public trustee or sheriff until a final judgment has been entered in favor of such claimant confirming his right to a lien and all periods for appeal have expired, whereupon there shall be paid to such claimant from the escrow the amount of his lien claim as established by such judgment, with any interest earned thereon, and the balance, if any, shall be refunded to the last redeeming lienor. If such claimant releases his lien or fails to establish his right to such lien, the entire escrow shall be paid to the last redeeming lienor. Lien claimants of equal priority, for the purposes of this subsection (2), may act in concert and be deemed to represent one claim in which they share pro rata. : Source: L. 90: Entire article R&RE, p. 1667, § 2, effective October 1. : Law reviews. For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 14 Dicta 5 (1936). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). : Annotator's note. Since § 38-38-306 is similar to § 38-39-114 as it existed prior to the 1990 repeal and reenactment of this article and article 39, relevant cases construing that provision have been included in the annotations to this section. : Redemption is purely statutory remedy for lienholders, which orders rights separate and apart from those already obtained by judgment creditors. Chatfield Bank v. Energy Fuels Corp., 42 Colo. App. 233, 599 P.2d 923 (1979), rev'd on other grounds, 200 Colo. 540, 618 P.2d 1115 (1980). : The right to redeem from an execution sale is purely statutory and is not to be enlarged by judicial interpretation. Walker v. Wallace, 79 Colo. 380, 246 P. 553 (1926); Marty v. Paul, 75 Colo. 446, 226 P. 150 (1924); Thomas v. Oken, 699 P.2d 7 (Colo. App. 1984). : Right to redeem is liberally construed to the end that all the property of the debtor may pay as many debts as possible. Walker v. Wallace, 79 Colo. 380, 246 P. 553 (1926). : "Judgment creditor" defined. The term "judgment creditor" means the judgment creditor or creditors of the person or persons whose lands shall be sold under execution. Leach v. Torbert, 71 Colo. 85, 204 P. 334 (1922). : Applied in Maloney v. Grimes, 1 Colo. 111 (1868); Paddack v. Staley, 13 Colo. App. 363, 58 P. 363 (1899); Levitt v. Continental Trust Co., 71 Colo. 3, 203 P. 666 (1922). : Previous Statute: 38-38-305 Next Statute: 38-38-401 : : ============ Optional Link URL: Link Title: Optional Image URL: [ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] WWWAdmin 2.0a © 1997 Matt Wright and DBasics Software Company, All Rights Reserved

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