As used in this part 11, unless the context otherwise
requires:
(1) Associate means a partner, subsidiary, affiliate, agent, or any other
person working in association with a foreclosure consultant or an equity purchaser.
Associate does not include a person who is excluded from the definition of an
equity purchaser or a foreclosure consultant.
(2) Equity purchaser means a person, other than a person who acquires a
property for the purpose of using such property as his or her personal residence,
who acquires title to a residence in foreclosure; except that the term does not
include a person who acquires such title:
(a) (Deleted by amendment, L. 2010, (HB 10-1133), ch. 350, p. 1615, � 1,
effective January 1, 2011.)
(b) By a deed in lieu of foreclosure to the holder of an evidence of debt, or an
associate of the holder of an evidence of debt, of a consensual lien or encumbrance
of record if such consensual lien or encumbrance is recorded in the real property
records of the clerk and recorder of the county where the residence in foreclosure
is located prior to the recording of the notice of election and demand for sale
required under section 38-38-101, C.R.S.;
(c) By a deed from the public trustee or a county sheriff as a result of a
foreclosure sale conducted pursuant to article 38 of title 38, C.R.S.;
(d) At a sale of property authorized by statute;
(e) By order or judgment of any court;
(f) From the person's spouse, relative, or relative of a spouse, by the half or
whole blood or by adoption, or from a guardian, conservator, or personal
representative of a person identified in this paragraph (f);
(g) While performing services as a part of a person's normal business
activities under any law of this state or the United States that regulates banks,
trust companies, savings and loan associations, credit unions, insurance companies,
title insurers, insurance producers, or escrow companies authorized to conduct
business in the state, an affiliate or subsidiary of such person, or an employee or
agent acting on behalf of such person; or
(h) As a result of a short sale transaction in which a short sale addendum
form, as promulgated by the Colorado real estate commission, is part of the
contract used to acquire a residence in foreclosure and such transaction complies
with section 6-1-1121.
(3) Evidence of debt means a writing that evidences a promise to pay or a
right to the payment of a monetary obligation, such as a promissory note, bond,
negotiable instrument, a loan, credit, or similar agreement, or a monetary judgment
entered by a court of competent jurisdiction.
(4) (a) Foreclosure consultant means a person who does not, directly or
through an associate, take or acquire any interest in or title to a homeowner's
property and who, in the course of such person's business, vocation, or occupation,
makes a solicitation, representation, or offer to a home owner to perform, in
exchange for compensation from the home owner or from the proceeds of any loan
or advance of funds, a service that the person represents will do any of the
following:
(I) Stop or postpone a foreclosure sale;
(II) Obtain a forbearance from a beneficiary under a deed of trust, mortgage,
or other lien;
(III) Assist the home owner in exercising a right to cure a default as provided
in article 38 of title 38, C.R.S.;
(IV) Obtain an extension of the period within which the home owner may cure
a default as provided in article 38 of title 38, C.R.S.;
(V) Obtain a waiver of an acceleration clause contained in an evidence of
debt secured by a deed of trust, mortgage, or other lien on a residence in
foreclosure or contained in such deed of trust, mortgage, or other lien;
(VI) Assist the home owner to obtain a loan or advance of funds;
(VII) Avoid or reduce the impairment of the home owner's credit resulting
from the recording of a notice of election and demand for sale, commencement of a
judicial foreclosure action, or due to any foreclosure sale or the granting of a deed
in lieu of foreclosure or resulting from any late payment or other failure to pay or
perform under the evidence of debt, the deed of trust, or other lien securing such
evidence of debt;
(VIII) In any way delay, hinder, or prevent the foreclosure upon the home
owner's residence; or
(IX) Repealed.
(b) The term foreclosure consultant does not include:
(I) A person licensed to practice law in this state, while performing any
activity related to the person's attorney-client relationship with a home owner or
any activity related to the person's attorney-client relationship with the beneficiary,
mortgagee, grantee, or holder of any lien being enforced by way of foreclosure;
(II) A holder or servicer of an evidence of debt or the attorney for the holder
or servicer of an evidence of debt secured by a deed of trust or other lien on any
residence in foreclosure while the person performs services in connection with the
evidence of debt, lien, deed of trust, or other lien securing such debt;
(III) A person doing business under any law of this state or the United States,
which law regulates banks, trust companies, savings and loan associations, credit
unions, insurance companies, title insurers, insurance producers, or escrow
companies authorized to conduct business in the state, while the person performs
services as part of the person's normal business activities, an affiliate or subsidiary
of any of the foregoing, or an employee or agent acting on behalf of any of the
foregoing;
(IV) A person originating or closing a loan in a person's normal course of
business if, as to that loan:
(A) The loan is subject to the requirements of the federal Real Estate
Settlement Procedures Act of 1974, as amended, 12 U.S.C. secs. 2601 to 2617; or
(B) With respect to any second mortgage or home equity line of credit, the
loan is subordinate to and closed simultaneously with a qualified first mortgage
loan under sub-subparagraph (A) of this subparagraph (IV) or is initially payable on
the face of the note or contract to an entity included in subparagraph (III) of this
paragraph (b);
(V) A judgment creditor of the home owner, if the judgment is recorded in the
real property records of the clerk and recorder of the county where the residence in
foreclosure is located and the legal action giving rise to the judgment was
commenced before the notice of election and demand for sale required under
section 38-38-101, C.R.S.;
(VI) A title insurance company or title insurance agent authorized to conduct
business in this state, while performing title insurance and settlement services;
(VII) A person licensed as a real estate broker under article 10 of title 12
while the person engages in any activity for which the person is licensed; or
(VIII) A nonprofit organization that solely offers counseling or advice to home
owners in foreclosure or loan default, unless the organization is an associate of the
foreclosure consultant.
(5) Foreclosure consulting contract means any agreement between a
foreclosure consultant and a home owner.
(6) Holder of evidence of debt means the person in actual possession of or
otherwise entitled to enforce an evidence of debt; except that holder of evidence
of debt does not include a person acting as a nominee solely for the purpose of
holding the evidence of debt or deed of trust as an electronic registry without any
authority to enforce the evidence of debt or deed of trust. The following persons
are presumed to be the holder of evidence of debt:
(a) The person who is the obligee of and who is in possession of an original
evidence of debt;
(b) The person in possession of an original evidence of debt together with the
proper indorsement or assignment thereof to such person in accordance with
section 38-38-101 (6), C.R.S.;
(c) The person in possession of a negotiable instrument evidencing a debt,
which has been duly negotiated to such person or to bearer or indorsed in blank; or
(d) The person in possession of an evidence of debt with authority, which
may be granted by the original evidence of debt or deed of trust, to enforce the
evidence of debt as agent, nominee, or trustee or in a similar capacity for the
obligee of the evidence of debt.
(7) Home owner means the owner of a dwelling who occupies it as his or
her principal place of residence, including a vendee under a contract for deed to
real property, as that term is defined in section 38-35-126 (1)(b), C.R.S.
(8) (a) Except as otherwise provided in paragraph (b) of this subsection (8),
residence in foreclosure means a residence or dwelling, as defined in sections 5-1-201 and 5-1-301, C.R.S., that is occupied as the home owner's principal place of
residence and that is encumbered by a residential mortgage loan that is at least
thirty days delinquent or in default.
(b) With respect to subpart 3 of this part 11, residence in foreclosure means
a residence or dwelling, as defined in sections 5-1-201 and 5-1-301, C.R.S., that is
occupied as the home owner's principal place of residence, is encumbered by a
residential mortgage loan, and against which a foreclosure action has been
commenced or as to which an equity purchaser otherwise has actual or constructive
knowledge that the loan is at least thirty days delinquent or in default.
(9) Short sale or short sale transaction means a transaction in which the
residence in foreclosure is sold when:
(a) A holder of evidence of debt agrees to release its lien for an amount that
is less than the outstanding amount due and owing under such evidence of debt;
and
(b) The lien described in paragraph (a) of this subsection (9) is recorded in
the real property records of the county where the residence in foreclosure is
located.