Wyse Financial Services, Inc v. National Real Estate Investment, LLC

92 P.3d 918, 2004 Colo. LEXIS 491, 2004 WL 1375544
CourtSupreme Court of Colorado
DecidedJune 21, 2004
DocketNo. 02SC534
StatusPublished
Cited by3 cases

This text of 92 P.3d 918 (Wyse Financial Services, Inc v. National Real Estate Investment, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wyse Financial Services, Inc v. National Real Estate Investment, LLC, 92 P.3d 918, 2004 Colo. LEXIS 491, 2004 WL 1375544 (Colo. 2004).

Opinion

Justice COATS

delivered the Opinion of the Court.

Realamerica Ventures, and defendants Wyse and Borenstein, sought review of the court of appeals judgment in National Beal Estate Investment, LLC v. Wyse Financial Services, Inc., 66 P.3d 111 (Colo.App.2002), reversing the summary judgment of the district court. The district court quieted title to a residential property in Realamerica, the purchaser at a foreclosure sale, despite the prior recording of a redemption certificate by National Real Estate. The district court held that although National, as the assignee of a judgment creditor, tendered redemption funds to the public trustee and both received and recorded a certificate of redemption, Realamerica, on behalf of the judgment debtor, was entitled to, and did, satisfy the judgment prior to expiration of National’s redemption period, thereby extinguishing National’s right to redeem. The court of appeals reversed, holding it to be within the discretion of the public trustee to issue a certificate of redemption to a lienor immediately upon payment of the redemption amount, and concluding that once the public trustee issued'the certificate to National, its [920]*920right to redeem could no longer be extinguished.

Because the redemption by National actually occurred upon payment of the required redemption amount to the public trustee, and at that point it became statutorily entitled to a certificate of redemption, National's right to redeem could not be extinguished by any subsequent satisfaction of the judgment. The judgment of the court of appeals is therefore affirmed.

L.

The dispute at issue here, over the timing and significance of the issuance of a certificate of redemption, arises from the cireum-stances of a residential foreclosure. Because National Real Estate, LLC, had obtained a certificate of redemption, but Realamerica Ventures, LLC, had obtained both a certificate of purchase and a certificate of satisfaction of the judgment upon which National's status as a lenor was predicated, the public trustee declined to issue a deed to either party. National brought an action to quiet title in itself and for breach of the agreement assigning it the judgment, naming as defendants Realamerica and the public trustee, as well as the judgment creditor, Wyse Financial Services, Inc., and its attorney, Irvin Borenstein.

Treating the motion to dismiss jointly filed by defendants Realamerica, Wyse, and Bor-enstein as a motion for summary judgment, the district court granted the motion; dismissed all of National's claims for relief; and ordered the public trustee to issue a deed to Realamerica and return the redemption funds paid by National. Although the legal significance of various actions taken by the parties was vigorously contested, the facts pertinent to the issues on review, as alleged in the pleadings and exhibits of the parties, were not in dispute.

Title to the house in question was in the name of Colette Marin, who lived there with her husband. Greenpoint Mortgage Company, which held a deed of trust on the house, began foreclosure proceedings. On March 21, 2000, Realamerica bought the house at a foreclosure sale for $394,200, the amount of the mortgage and foreclosure costs, and was issued a certificate of purchase by the public trustee that same day. Colette Marin, the owner, did not redeem within the 75 days permitted by statute.1

On June 5, 2000, the last day of the 75-day redemption period, Wyse assigned its $10,000 judgment against Colette Marin, which had been made a lien of record, to National,2 and National gave notice of its intent to redeem. On June 8, after learning the payoff figures from Realamerica, National tendered payment of the statutory redemption amount to the public.trustee and was delivered a certificate of redemption, which it recorded on June 12.

On June 14, after the redemption amount had already been paid and the certificate of redemption recorded, Realamerica contracted with Colette Marin, the judgment debtor, for the right to act as her agent and satisfy the judgment against her.3 On the same day, Realamerica tendered a cashier's check to the county court in satisfaction of the judgment. The county court declined acceptance of the check, instead directing Realam-erica to pay Borenstein, Wyse's lawyer of [921]*921record. On June 15, the last day of the redemption period for the senior lienor,4 Realamerica tendered the cashier's check to Borenstein, who accepted it and gave Real-america an acknowledgement of satisfaction of judgment, with which Realamerica obtained a certificate of satisfaction from the county court and recorded it with the Douglas County Clerk and Recorder, all on the same day.

The district court found that Realamerica satisfied the judgment by tendering payment to the county court on June 14. Because it also held that a judgment lienor loses its right to redeem if its judgment is satisfied any time prior to the expiration of its redemption period, the district court granted summary judgment in favor of the defendants and ordered that a deed issue to Real-america. On appeal, the court of appeals found it unnecessary to address the question whether Realamerica was a proper party to demand acceptance of payment in satisfaction of the judgment. Instead it reversed on the grounds that nothing prohibited the public trustee from issuing a certificate of redemption immediately upon payment of the redemption funds; and once the public trustee actually issued a certificate of redemption to National, National's right to redeem the property as a lienor could no longer be affected by satisfaction of the judgment.

IL.

The right to redeem from an execution sale is purely a creature of statute and depends entirely upon the provisions of the statute creating it. Johnson v. Smith, 675 P.2d 307, 310 (Colo.1984); Walker v. Wallace, 79 Colo. 380, 246 P. 553 (1926). Although legislation has provided judgment creditors a right of redemption in this jurisdiction, in one form or another, since before statehood, see, e.g., see. 14, 1861 Colo. Sess. Laws 264,

267, redemption following the sale of property by virtue of any foreclosure of a mortgage, deed of trust, or other lien, or by virtue of an execution and levy, at the time of the sale in this particular case, was governed by Parts 3 through 5 of Article 38 of Title 38, 10 C.R.S. (2001).5 The applicable statutory scheme allows the owner, or any other person who would be liable for a deficiency remaining after a foreclosure sale, a period of 75 days within which to redeem the property. See § 38-38-302. In the event that no redemption is made during this period, the scheme then permits lienors to protect their security interests, which would be lost upon transfer of title to the purchaser, see § 88-38-501, by redeeming within successive, shorter periods. See § 88-38-8038.

A lienor therefore has no right to redeem if the owner or deficiency debtor redeems within the 75-day period provided in section 38-38-3802. See $ 38-88-304(1)-(2). If, however, no redemption has been made pursuant to section 302, the lHienor having the senior lien may redeem within the first ten days following expiration of the owner's redemption period. See § 88-88-8083.

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Bluebook (online)
92 P.3d 918, 2004 Colo. LEXIS 491, 2004 WL 1375544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wyse-financial-services-inc-v-national-real-estate-investment-llc-colo-2004.