(1) Continuance. (a) For any reason deemed by the officer to be good cause or
upon written request by the holder of the evidence of debt or by the attorney for
the holder, at any time before commencement of the sale, the officer may continue
the sale to a later date by making, at the time and place designated for the sale, an
oral announcement of the time and place of such continuance, or by posting or
providing a notice of the continuance at the time and place designated for the sale,
which shall include the time and place to which the sale is continued. Except as
provided in subparagraph (I) of paragraph (b) of subsection (2) of this section, a sale
that is not held on the then-scheduled date of sale and is not continued from the
then-scheduled date of sale pursuant to this paragraph (a) shall be deemed to have
been continued for a period of one week, and from week to week thereafter in like
manner, until the sale is held or otherwise continued pursuant to this paragraph (a).
No sale shall be continued to a date later than twelve months from the originally
designated date in the combined notice, except as provided in subsection (2) of this
section.
(b) At the request of the holder of the evidence of debt or the attorney for
the holder or upon the officer's own initiative, the officer shall correct any errors in
a published combined notice and shall continue the then-scheduled date of sale to
a future date within the period of continuance allowed by paragraph (a) of this
subsection (1) to permit a corrected combined notice to be published or the original
combined notice to be republished pursuant to section 38-38-103 (5). If the officer
failed to publish the combined notice as required by section 38-38-103 (5), the
officer shall continue the then-scheduled date of sale to a future date within the
period of continuance allowed by paragraph (a) of this subsection (1). The future
date of sale to which the sale is continued pursuant to this paragraph (b) shall be no
later than thirty calendar days after the fifth publication of the corrected combined
notice or republished combined notice. The officer shall mail a copy of the
combined notice, or corrected combined notice if the original combined notice was
erroneous, to the persons and addresses on the most recent amended mailing list
no later than ten calendar days after the first correct publication or republication
and no less than forty-five calendar days prior to the actual date of sale in the same
manner as set forth in section 38-38-103. If there is no amended mailing list, the
officer shall mail a copy of the combined notice, or corrected combined notice if the
original combined notice was erroneous, to the persons as set forth in the mailing
list.
(c) (I) (A) If a cure statement is not timely filed, the sale will be continued
pursuant to section 38-38-104 (7).
(B) (Deleted by amendment, L. 2009, (HB 09-1207), ch. 164, p. 715, � 11,
effective January 1, 2010.)
(C) Repealed.
(II) (Deleted by amendment, L. 2009, (HB 09-1207), ch. 164, p. 715, � 11,
effective January 1, 2010.)
(III) When the property is to be sold by the sheriff, if the cure statement is
not filed with the sheriff by 12 noon on the seventh calendar day before the last
date of sale permitted under paragraph (a) of this subsection (1), the foreclosure
action shall be deemed dismissed, and the holder of the evidence of debt or the
attorney for the holder shall file a motion to dismiss with the court. Upon good
cause shown, the holder or the attorney for the holder may file a motion with the
court requesting further relief as the court may deem necessary or appropriate in
the circumstances. The sheriff shall record the order of dismissal or other order of
the court and collect all fees and costs actually incurred by the sheriff.
(2) Effect of bankruptcy proceedings. (a) If all publications of the combined
notice prescribed by section 38-38-103 (5) or 13-56-201 (1), C.R.S., have been
completed before a bankruptcy petition has been filed that automatically stays the
officer from conducting the sale, the officer shall announce, post, or provide notice
of that fact on the then-scheduled date of sale, take no action at the then-scheduled sale, and allow the sale to be automatically continued from week to
week in accordance with paragraph (a) of subsection (1) of this section unless
otherwise requested in writing prior to any such date of sale by the holder of the
evidence of debt or the attorney for the holder.
(b) (I) If the publications of the combined notice prescribed by section 38-38-103 (5) or 13-56-201 (1), C.R.S., have not been started or if all the publications have
not been completed before the day a bankruptcy petition has been filed that
automatically stays the officer from conducting the sale, the officer shall
immediately cancel any remaining publications of the combined notice and, on the
date set for the sale, announce, post, or provide a notice that the sale has been
enjoined or has been stayed by the automatic stay provisions of the federal
bankruptcy code of 1978, title 11 of the United States Code, as amended. The sale
shall not be continued under paragraph (a) of subsection (1) of this section.
(II) (A) Upon the termination of any injunction or upon the entry of a
bankruptcy court order dismissing the bankruptcy case, abandoning the property
being foreclosed, closing the bankruptcy case, or granting relief from the
automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the
United States Code, as amended, and upon receipt of a request from the holder of
the evidence of debt or the attorney for the holder to restart the action, the public
trustee shall rerecord the notice of election and demand and proceed with all
additional foreclosure procedures provided by this article 38 as though the
foreclosure had just been commenced.
(B) If the request is not received by the public trustee within one year from
the date of the termination of any injunction or the entry of a bankruptcy court
order dismissing the bankruptcy case, abandoning the property being foreclosed,
closing the bankruptcy case, or granting relief from the automatic stay, the
foreclosure shall be withdrawn according to subsection (3)(b) of this section.
(III) When the property is to be sold by the sheriff under any statutory or
judicial foreclosure or upon execution and levy made pursuant to any court order or
decree, upon the notification of termination of any injunction or upon the entry of a
bankruptcy court order dismissing the bankruptcy case, abandoning the property
being foreclosed, closing the bankruptcy case, or granting relief from the
automatic stay provisions of the federal bankruptcy code of 1978, title 11 of the
United States Code, as amended, the sheriff shall forthwith establish a new date of
sale and republish a new combined notice pursuant to section 13-56-201 (1), C.R.S.
(c) (I) If a sale is held in violation of the automatic stay provisions of the
federal bankruptcy code of 1978, title 11 of the United States Code, as amended,
and an order is subsequently entered by a bankruptcy court of competent
jurisdiction dismissing the bankruptcy, abandoning the property being foreclosed,
or closing the bankruptcy case, or an order is subsequently entered granting relief
from the automatic stay provided by the federal bankruptcy code, then the
evidence of debt, deed of trust, or other lien being foreclosed shall immediately be
deemed reinstated, and the deed of trust or other lien shall have the same priority
as if the sale had not occurred. Immediately upon reinstatement, the power of sale
provided therein, if any, shall be deemed revived.
(II) If the holder of the evidence of debt, deed of trust, or other lien reinstated
pursuant to this subsection (2)(c) or the attorney for the holder notifies the officer in
writing of the entry of an order dismissing the bankruptcy case, abandoning the
property being foreclosed, closing the bankruptcy case, or granting relief from the
automatic stay provided by the federal bankruptcy code of 1978, title 11 of the
United States Code, as amended, no later than fifty calendar days prior to the last
possible sale date pursuant to subsections (1)(a) and (2)(e) of this section, the
officer shall set a new date of sale at least twenty-four calendar days but not more
than forty-nine calendar days after the date on which the official receives such
notice. No later than ten business days after receiving such notice, the officer shall
mail an amended combined notice containing the date of the rescheduled sale to
each person appearing on the most recent mailing list. No later than twenty
calendar days after receiving such notice, but no less than ten calendar days prior
to the new date of sale, the officer shall publish the amended combined notice,
omitting the copies of the statutes, one time only in a newspaper of general
circulation in the county where the property is located.
(III) If the holder of the evidence of debt, deed of trust, or other lien
reinstated pursuant this subsection (2)(c) or the attorney for the holder does not
notify the officer in writing of the entry of an order dismissing the bankruptcy case,
abandoning the property being foreclosed, closing the bankruptcy case, or granting
relief from the automatic stay provided by the federal bankruptcy code of 1978,
title 11 of the United States Code, as amended, within the time allowed under
subsection (2)(c)(II) of this section, the officer shall administratively withdraw the
sale pursuant to subsection (3)(b) of this section upon receipt of the order
dismissing the bankruptcy case, abandoning the property being foreclosed, closing
the bankruptcy case, or granting relief from the automatic stay provided by the
federal bankruptcy code of 1978, title 11 of the United States Code, as amended.
(IV) All fees and costs of providing and publishing the amended combined
notice and publication shall be part of the foreclosure costs.
(d) If a sale is set aside by court order, unless the court order specifies
otherwise, the following procedures apply:
(I) Upon receipt of the court order, the public trustee's fee specified in
section 38-37-104 (1)(b)(XI), and the costs of recording the court order as specified
in this subsection (2)(d), the public trustee shall attach to the order a copy of the
certificate of purchase, any assignments thereof, and, if applicable, the
confirmation deed, each marked null and void, and record the order together with
these documents.
(II) Upon recordation of the court order, the certificate of purchase shall be
deemed canceled as if the sale had not occurred, and the evidence of debt and
deed of trust are deemed fully reinstated with the same lien priority as if the sale
had not occurred.
(III) Within ten calendar days after receipt of all documents, fees, and costs
specified in this subsection (2)(d), the public trustee shall mail a copy of the court
order to each person entitled to receive the combined notice pursuant to section
38-38-103.
(IV) (A) After the recording of the court order, the holder of the evidence of
debt or the holder's assignee or the attorney for the holder or the attorney for the
assignee may notify the public trustee in writing to reschedule the sale within one
year of the issuance of the order. The public trustee shall set a new date of sale at
least thirty calendar days but not more than forty-five calendar days after the date
on which the public trustee receives notice to schedule a new date of sale subject
to the requirements of subsections (1)(a) and (2)(e) of this section, but not earlier
than the scheduled sale date as of the date of the court order.
(B) No later than ten calendar days after receiving notice to schedule a new
date of sale, the public trustee shall mail a combined notice setting forth the
rescheduled date of sale to each person entitled to receive the combined notice
pursuant to section 38-38-103.
(C) No later than twenty calendar days after receiving notice to schedule a
new date of sale, but no less than ten calendar days prior to the new date of sale,
the public trustee shall publish the sale one time only. Such publication must be in
the format specified for publication by section 38-38-103.
(D) All fees and costs of the public trustee for actions performed under this
section and the cost of recording the court order and documents incorporated into
the court order by attachment are part of the foreclosure costs.
(E) After a sale has been set aside and subsequently rescheduled pursuant
to this subsection (2)(d)(IV), the sale may be continued in accordance with
subsections (1)(a) and (2)(e) of this section.
(F) If a written request to reschedule the sale is not received by the public
trustee within one year of the issuance of the order, the foreclosure must be
withdrawn according to subsection (3)(b) of this section.
(V) Nothing in this section prevents the foreclosing lender from seeking a
rescission of sale pursuant to section 38-38-113 if the requirements within section
38-38-113 (1) are met.
(e) The periods for which a sale may be continued under this subsection (2)
shall be in addition to the twelve-month period of continuance provided by
subsection (1) of this section.
(3) Withdrawal. (a) If the holder of the evidence of debt or the attorney for
the holder files with the public trustee, prior to sale, a written withdrawal of the
notice of election and demand, the foreclosure proceedings shall terminate. The
public trustee shall record the withdrawal and collect all fees and costs owed and
incurred, including a withdrawal fee in the amount authorized by section 38-37-104
(1)(b)(V).
(b) If there is no sale and if a withdrawal is not filed within forty-five calendar
days after the last date of sale permitted by law, the public trustee may transmit by
mail or electronic transmission to the attorney for the holder of the evidence of
debt, or if no attorney then to the holder, a notice that a withdrawal of the notice of
election and demand may be recorded by the public trustee unless a response
requesting that such withdrawal be delayed for ninety calendar days is received by
the public trustee within thirty calendar days after the date the public trustee's
notice is transmitted. If such response is received by the public trustee and there is
no sale nor is a withdrawal filed within the ninety-day delay, the public trustee may
record a withdrawal of the notice of election and demand. If no such response is
received by the public trustee within thirty calendar days after the notice is
transmitted, the public trustee may record a withdrawal of the notice of election
and demand at any time after the expiration of such thirty-day notice period. If a
withdrawal is recorded during the pendency of an automatic stay imposed on the
sale based on any proceeding filed under the federal bankruptcy code of 1978, title
11 of the United States Code, as amended, the withdrawal shall be void and of no
force and effect, and the public trustee shall mail to all persons on the mailing list a
notice that the withdrawal of the notice of election and demand occurred during the
pendency of an injunction or bankruptcy stay and is void and of no force and effect.
The public trustee shall cause the notice to be recorded in the office of the county
clerk and recorder of the county where the property described in the notice is
located. All unpaid fees and costs owed and incurred by the public trustee, as well
as a withdrawal fee in the amount authorized by section 38-37-104 (1)(b)(VI), shall
be paid by the holder. The amount due shall accrue interest at the rate provided by
law. Until all amounts due and owing are paid, the public trustee shall be entitled to
hold all documentation in the public trustee's possession and to withhold all other
services requested by the holder or the attorney for the holder with respect to the
deed of trust or other lien being foreclosed.