As used in articles 37 to 39 of this title 38, unless
the context otherwise requires:
(1) Agricultural property means property, none of which, on the date of
recording of the deed of trust or other lien or at the time of the recording of the
notice of election and demand or lis pendens, is:
(a) Platted as a subdivision;
(b) Located within an incorporated town, city, or city and county; or
(c) Valued and assessed as other than agricultural property pursuant to
sections 39-1-102 (1.6)(a) and 39-1-103 (5), C.R.S., by the assessor of the county
where the property is located.
(1.3) Alternate lienor means a person deemed a lienor by section 38-38-305.5 (1)(a).
(1.5) Amended mailing list means the amended mailing list in accordance
with section 38-38-103 (2) containing the names and addresses in the mailing list
as defined in subsection (14) of this section and the names and addresses of the
following persons:
(a) The owner of the property, if different than the grantor of the deed of
trust, as of the date and time of the recording of the notice of election and demand
or lis pendens as shown in the records at the address indicated in such recorded
instrument; and
(b) Each person, except the public trustee, who appears to have an interest
in the property described in the combined notice by an instrument recorded prior to
the date and time of the recording of the notice of election and demand or lis
pendens with the clerk and recorder of the county where the property or any
portion thereof is located at the address of the person indicated on the instrument,
if the person's interest in the property may be extinguished by the foreclosure.
(2) Attorney for the holder means an attorney licensed and in good
standing in the state of Colorado to practice law and retained by the holder of an
evidence of debt to process a foreclosure under this article.
(2.5) Borrower means a person liable under an evidence of debt
constituting a residential mortgage loan.
(3) Certified copy means, with respect to a recorded document, a copy of
the document certified by the clerk and recorder of the county where the document
was recorded.
(3.5) CFPB means the federal consumer financial protection bureau.
(4) Combined notice means the combined notice of sale, right to cure, and
right to redeem described in section 38-38-103 (4)(a).
(4.3) Common interest community has the meaning set forth in section 38-33.3-103 (8).
(4.5) Complete loss mitigation application means an application in
connection with which a servicer has received all the information that the servicer
requires from a borrower in evaluating applications for the loss mitigation options
available to the borrower.
(5) Confirmation deed means the deed described in section 38-38-501 in
the form specified in section 38-38-502 or 38-38-503.
(5.3) Consensual lien means a conveyance of an interest in real property,
granted by the owner of the property after the recording of a notice of election and
demand, that is not an absolute conveyance of fee title to the property.
Consensual lien includes but is not limited to a deed of trust, mortgage or other
assignment, encumbrance, option, lease, easement, contract, including an
instrument specified in section 38-38-305, or conveyance as security for the
performance of the grantor. Consensual lien does not include a lien described in
section 38-38-306 or 38-33.3-316.
(5.7) Corporate surety bond means a bond issued by a person authorized to
issue bonds in the state of Colorado with the public trustee as obligee, conditioned
against the delivery of an original evidence of debt to the damage of the public
trustee.
(6) Cure statement means the statement described in section 38-38-104
(2)(a).
(7) Deed of trust means a security instrument containing a grant to a public
trustee together with a power of sale.
(8) 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.
(9) Fees and costs means all fees, charges, expenses, and costs described
in section 38-38-107.
(10) Holder of an evidence of debt or holder means the person in actual
possession of or person entitled to enforce an evidence of debt; except that the
term 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. For the purposes of
articles 37 to 40 of this title, the following persons are presumed to be the holder
of an 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) 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.
(11) Junior lien means a deed of trust or other lien or encumbrance upon the
property for which the amount due and owing thereunder is subordinate to the deed
of trust or other lien being foreclosed.
(12) Junior lienor means a person who is a beneficiary, holder, or grantee of
a junior lien.
(12.5) Lienor includes without limitation the holder of a certificate of
purchase or certificate of redemption for property, issued upon the foreclosure of a
deed of trust or other lien on the property.
(13) Lis pendens means a lis pendens in accordance with section 38-35-110
that is recorded with the clerk and recorder of the county where the property or any
portion thereof is located and that refers to a judicial action in which one of the
claims is for foreclosure and sale of the property by an officer or in which a claim or
interest in the property is asserted.
(13.3) Loss mitigation application means an oral or written request for a
loss mitigation option that is accompanied by any information requested by a
servicer for evaluation for a loss mitigation option.
(13.7) Loss mitigation option means an alternative to foreclosure offered by
the owner, holder, or assignee of a mortgage loan that is made available through
the servicer to the borrower.
(14) Mailing list means the mailing list in accordance with section 38-38-101 (1)(e) provided to the officer by the holder of the evidence of debt or the
attorney for the holder containing the names and addresses of the following
persons:
(a) The original grantor of the deed of trust or obligor under any other lien
being foreclosed at the address shown in the recorded deed of trust or other lien
being foreclosed and, if different, the last address, if any, shown in the records of
the holder of the evidence of debt;
(b) Any person known or believed by the holder of the evidence of debt to be
personally liable under the evidence of debt secured by the deed of trust or other
lien being foreclosed at the last address, if any, shown in the records of the holder;
(c) The occupant of the property, addressed to occupant at the address of
the property; and
(d) With respect to a public trustee sale, a lessee with an unrecorded
possessory interest in the property at the address of the premises of the lessee
and, if different, the address of the property, to the extent that the holder of the
evidence of debt desires to terminate the possessory interest with the foreclosure.
(15) Maintaining and repairing means the act of caring for and preserving a
property in its current condition or restoring a property to a sound or working
condition after damage; except that maintaining and repairing shall not include,
unless done pursuant to an order entered by a court of competent jurisdiction, any
act of advancing a property to a better condition or any act that increases the
quality of or adds to the improvements located on a property.
(16) Notice of election and demand means a notice of election and demand
for sale related to a public trustee foreclosure under this article.
(17) Officer means the public trustee or sheriff conducting a foreclosure
under this article.
(17.3) Overbid means the amount a property is sold for at a foreclosure sale
that is in excess of the written or amended bid amount executed by the holder of
the evidence of debt secured by the deed of trust or other lien being foreclosed.
(17.5) Person means any individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust, limited liability
company, partnership, association, or other legal entity.
(18) Property means the portion of the property encumbered by a deed of
trust or other lien that is being foreclosed under this article or the portion of the
property being released from a deed of trust or other lien under article 39 of this
title.
(19) Publish, publication, republish, or republication means the
placement by an officer of a legal notice that meets the requirements set forth in
section 24-70-103 containing a combined notice that complies with the
requirements of section 24-70-109 in a newspaper in the county or counties where
the property to be sold is located. The officer shall select the newspaper.
(20) Qualified holder means a holder of an evidence of debt, certificate of
purchase, certificate of redemption, or confirmation deed that is also one of the
following:
(a) A bank as defined in section 11-101-401 (5), C.R.S.;
(b) Repealed.
(c) A federally chartered savings and loan association doing business in
Colorado or a savings and loan association chartered under the Savings and Loan
Association Law, articles 40 to 46 of title 11, C.R.S.;
(d) A supervised lender as defined in section 5-1-301 (46), C.R.S., that is
licensed to make supervised loans pursuant to section 5-2-302, C.R.S., and that is
either:
(I) A public entity, which is an entity that has issued voting securities that are
listed on a national security exchange registered under the federal Securities
Exchange Act of 1934, as amended; or
(II) An entity in which all of the outstanding voting securities are held,
directly or indirectly, by a public entity;
(e) An entity in which all of the outstanding voting securities are held,
directly or indirectly, by a public entity that also owns, directly or indirectly, all of
the voting securities of a supervised lender as defined in section 5-1-301 (46),
C.R.S., that is licensed to make supervised loans pursuant to section 5-2-302,
C.R.S.;
(f) A federal housing administration approved mortgagee;
(g) A federally chartered credit union doing business in Colorado or a state-chartered credit union as described in section 11-30-101, C.R.S.;
(h) An agency or department of the federal government;
(i) An entity created or sponsored by the federal or state government that
originates, insures, guarantees, or purchases loans or a person acting on behalf of
such an entity to enforce an evidence of debt or the deed of trust securing an
evidence of debt;
(j) Any community development financial institution that has been certified
and maintains such current status from the community development financial
institutions fund administered by the United States department of the treasury,
referred to in this section as the fund. In order to be a qualified holder under this
article, the community development financial institution must:
(I) Be a legal entity;
(II) Have a primary mission of promoting community development;
(III) Be a financing entity;
(IV) Primarily serve one or more target markets as defined by the fund;
(V) Promote development services in conjunction with its financing activities;
(VI) Maintain accountability to its defined target market; and
(VII) Be a nongovernmental entity and not be under the control of any
governmental entity; except that a tribal government is exempt from the
requirements of this subparagraph (VII).
(k) Any entity with active certification under the fund that originates, insures,
guarantees, or purchases loans or a person acting on behalf of such an entity to
enforce an evidence of debt or the deed of trust securing an evidence of debt;
(k.5) A private company that originates, insures, guaranties, or purchases
loans on behalf of a holder of evidence of debt that is secured by a deed of trust
encumbering a time share estate as defined in section 38-33-110 (5), with a
minimum of five million dollars in assets or not less than one thousand active loans;
or
(l) Any entity listed in paragraphs (a) to (k) of this subsection (20) acting in
the capacity of agent, nominee except as otherwise specified in subsection (10) of
this section, or trustee for another person.
(21) Records means the records of the county clerk and recorder of the
county where the property is located.
(21.3) Residential mortgage loan means a loan that is primarily for
personal, family, or household use and that is secured by a mortgage, deed of trust,
or other equivalent, consensual security interest on a dwelling or residential real
estate upon which is constructed or intended to be constructed a single-family
dwelling or multiple-family dwelling of four or fewer units that is or will be used by
the borrower as the borrower's primary residence.
(21.6) Residential real estate means any real property upon which a
dwelling is or will be constructed.
(22) Sale means a foreclosure sale conducted by an officer under this
article.
(23) Secured indebtedness means the amount owed pursuant to the
evidence of debt without regard to the value of the collateral.
(23.3) (a) Servicer or mortgage servicer means an entity that directly
services a loan or that is responsible for interacting with the borrower; managing
the loan account on a daily basis, including collecting and crediting periodic loan
payments; managing any escrow account; or enforcing the note and security
instrument, either as the current holder of the evidence of debt or as the current
holder's authorized agent.
(b) Servicer includes an entity providing such services pursuant to
designation as a subservicing agent or by contract with a master servicer.
(c) Servicer does not mean a trustee, including the public trustee, or a
trustee's authorized agent acting under a power of sale pursuant to a deed of trust.
(23.6) Single point of contact means an individual or team of personnel,
each of whom has the ability and authority to perform the responsibilities described
in section 38-38-103.1 on behalf of the servicer. The servicer shall ensure that each
member of the team is knowledgeable about the borrower's situation and current
status.
(24) Statement of redemption means the signed and acknowledged
statement of the holder of the evidence of debt or the signed statement of the
attorney for the holder as required by section 38-38-302 (3) or the signed and
acknowledged statement of the lienor or the signed statement of the attorney for
the lienor as required by section 38-38-302 (1)(f).
(25) Unit has the meaning set forth in section 38-33.3-103 (30).
(26) Unit association lien means a lien in a unit in a common interest
community that is held by an association, as defined in section 38-33.3-103 (3).