(1)As used in this section,
omitted party means any person who:
(a)Prior to the recording of the notice of election and demand or lis pendens,
has either acquired a record interest in the property or has obtained a valid
possessory interest and is in actual possession of the property, which interest is
junior to the deed of trust or other lien being foreclosed and would otherwise be
extinguished by the foreclosure; and
(b)Is not included as a party defendant in a judicial foreclosure action or, if
included, is not served with process, or is not served with notice of levy or seizure
pursuant to section 13-55-102, C.R.S., or is not notified pursuant to section 38-38-103 of a sale, or is not notified in connection with the legal proceedings
contemplated by section 38-38-105.
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(1) As used in this section,
omitted party means any person who:
(a) Prior to the recording of the notice of election and demand or lis pendens,
has either acquired a record interest in the property or has obtained a valid
possessory interest and is in actual possession of the property, which interest is
junior to the deed of trust or other lien being foreclosed and would otherwise be
extinguished by the foreclosure; and
(b) Is not included as a party defendant in a judicial foreclosure action or, if
included, is not served with process, or is not served with notice of levy or seizure
pursuant to section 13-55-102, C.R.S., or is not notified pursuant to section 38-38-103 of a sale, or is not notified in connection with the legal proceedings
contemplated by section 38-38-105.
(2) (a) The interest of an omitted party in the property that is the subject of a
sale may be terminated if the omitted party, or anyone claiming by, through, or
under an omitted party, in a civil action commenced at any time by any interested
person as defined in paragraph (c) of this subsection (2), by an omitted party, or by
anyone claiming by, through, or under an omitted party, is afforded rights of cure if
the omitted party would have been entitled to cure pursuant to section 38-38-104,
or is afforded redemption rights if the omitted party would have been entitled to
redeem pursuant to section 38-38-302, upon such terms as the court may deem
equitable under the circumstances, which terms shall not, however, be more
favorable than the person's statutory rights. The court shall give full consideration
to whether the omitted party or anyone claiming by, through, or under an omitted
party was given or had actual notice or knowledge of the foreclosure and was given
an opportunity to exercise statutory rights to cure or redeem.
(b) For purposes of this section, the lien that is the subject of the sale shall
not be extinguished by merger with the title to the property acquired pursuant to
section 38-38-501 until the interest of any omitted party has been affirmed
pursuant to subsection (3) of this section or has been terminated as provided in
paragraph (a) of this subsection (2), or by operation of law. The omitted party, or
anyone claiming by, through, or under an omitted party, cannot extinguish the lien
that is subject to the sale by enforcement of the lien of the omitted party.
(c) As used in this section, interested person means the holder of the
evidence of debt being foreclosed, a holder of a certificate of purchase or
certificate of redemption issued pursuant to section 38-38-401 or 38-38-402, or an
owner of the property pursuant to section 38-38-501 or a person claiming by,
through, or under such holder or owner.
(d) An omitted party, or anyone claiming by, through, or under an omitted
party, shall not have a remedy to cure or redeem, except as set forth in this
subsection (2). An interested party shall not be able to extinguish an omitted party's
interest except as set forth in this subsection (2) or by written waiver or agreement
signed by the omitted party or anyone claiming by, through, or under an omitted
party.
(3) If an interested person files with the officer at any time a document
affirming an omitted party's interest in the property, subject to the terms,
conditions, and provisions of the recorded instrument from which such omitted
party's interest is derived, or in the case of an omitted party that is a lessee, subject
to the terms and conditions of the lease, whether written or oral, the interest of
such omitted party in the property shall not be affected by the foreclosure, and
such omitted party shall have no right to cure or redeem.
(4) (Deleted by amendment, L. 2006, p. 1476, � 31; L. 2007, p. 1849, � 27,
effective January 1, 2008.)