(1) (a) Except
as otherwise provided in subsection (3)(a) of this section, upon compliance with the
provisions of the deed of trust, a public trustee shall release a deed of trust upon
the:
(I) Receipt of a written request from the holder of the evidence of debt
secured by the deed of trust, the holder's agent or attorney, or a title insurance
company providing an indemnification agreement and affidavit described in
paragraph (c) of subsection (3) of this section, which request shall be duly executed
and acknowledged;
(II) Production of the original canceled evidence of debt such as a note or
bond as evidence that the indebtedness secured by such deed of trust has been
paid; except that such production may be omitted in the circumstances
contemplated in subsection (3) of this section;
(III) Receipt by the public trustee of the fee prescribed by section 38-37-104
(1)(a) and the fee for recording the release;
(IV) Receipt by the public trustee of a current address for the original
grantor, assuming party, or current owner or either a notation on the request for
release of the deed of trust or a written statement from the holder of the evidence
of debt secured by the deed of trust, the title insurance company licensed in
Colorado, or the holder of the original evidence of debt that the holder has no
record of a current address that is different from the address of the property
encumbered by the deed of trust being released; except that the public trustee may
release a deed of trust upon compliance with the provisions of the deed of trust if
the public trustee has not received the information required pursuant to this
subsection (1)(a)(IV); and
(V) Production of a legible copy of the original recorded deed of trust
securing the evidence of debt.
(b) Immediately upon execution of the release of the deed of trust by the
public trustee, the public trustee shall cause the release to be recorded in the
records of the county clerk and recorder.
(2) If the purpose of the deed of trust has been fully or partially satisfied and
the indebtedness secured by the deed of trust has not been paid, the public trustee
shall release the deed of trust as to all or portions of the property encumbered by
the deed of trust pursuant to the provisions of subsection (1) of this section if the
request to release certifies that the purpose of the deed of trust has been fully or
partially satisfied and the evidence of debt is exhibited by the holder of the
evidence of debt.
(3) (a) (I) Subject to the provisions of subparagraph (II) of this paragraph (a),
with respect to either subsection (1) or (2) of this section, a holder of the original
evidence of debt that is a qualified holder, as defined in section 38-38-100.3 (20),
may request the release of a deed of trust without producing or exhibiting the
original evidence of debt. A holder that requests the release of a deed of trust
pursuant to this paragraph (a) shall be deemed to have agreed to indemnify and
defend the public trustee against any claim made within the period described in
subsection (7) of this section for damages resulting from the action of the public
trustee taken in accordance with the request. The indemnity granted by this
paragraph (a) is limited to actual economic loss suffered and any court costs and
reasonable attorney fees and costs incurred in defending a claim brought as a
direct and proximate result of the failure to produce the original evidence of debt,
but the indemnity does not include and no claimant is entitled to any special,
incidental, consequential, reliance, expectation, or punitive damages. No separate
indemnification agreement shall be necessary for the agreement to indemnify to be
effective.
(II) A holder of the original evidence of debt that is a qualified holder, as
defined in section 38-38-100.3 (20), shall provide the public trustee with a current
address for the original grantor, assuming party, or current owner when requesting
a release of a deed of trust pursuant to this paragraph (a).
(b) (I) Subject to the provisions of subparagraph (II) of this paragraph (b), with
respect to either subsection (1) or (2) of this section, the holder of the evidence of
debt may request the release of a deed of trust without producing or exhibiting the
original evidence of debt. A holder that requests the release of a deed of trust
pursuant to this paragraph (b) shall deliver to the public trustee a corporate surety
bond in an amount equal to one and one-half times the original principal amount
recited in the deed of trust, which corporate surety bond shall remain in full force
and effect for the period described in subsection (7) of this section.
(II) A holder of the evidence of debt shall provide the public trustee with a
current address for the original grantor, assuming party, or current owner when
requesting a release of a deed of trust pursuant to this paragraph (b).
(c) (I) Subject to the provisions of subsection (3)(c)(II) of this section, with
respect to either subsection (1) or (2) of this section, a title insurance company
licensed in Colorado may request the release of a deed of trust without producing
or exhibiting the original evidence of debt. A company that requests the release of
a deed of trust pursuant to this subsection (3)(c) is deemed to have agreed to
indemnify and defend the public trustee against any claim made within the period
described in subsection (7) of this section for damages resulting from the action
taken by the public trustee in accordance with the request. The indemnity granted
by this subsection (3)(c) is limited to actual economic loss suffered and any court
costs and reasonable attorney fees and costs incurred in defending a claim brought
as a direct and proximate result of the failure to produce the original evidence of
debt, but the indemnity does not include and no claimant is entitled to any special,
incidental, consequential, reliance, expectation, or punitive damages. No separate
indemnification agreement is necessary for the agreement to indemnify to be
effective; however, the company shall provide to the public trustee an affidavit
executed by an officer of the company stating that the company has caused the
indebtedness secured by the deed of trust to be satisfied in full or, in the case of a
partial release, to the extent required by the holder of the indebtedness.
(II) A title insurance company licensed in Colorado shall provide the public
trustee with a current address for the original grantor, assuming party, or current
owner when requesting a release of a deed of trust pursuant to this subsection
(3)(c).
(d) (I) Subject to the requirement described in subsection (3)(d)(II) of this
section, with respect to subsection (1) or (2) of this section, a holder of the original
evidence of debt may request the release of a deed of trust without producing or
exhibiting the original evidence of debt. A holder that requests the release of a
deed of trust pursuant to this subsection (3)(d) is deemed to have agreed to
indemnify and defend the public trustee against any claim made within the period
described in subsection (7) of this section for damages resulting from the action of
the public trustee taken in accordance with the request. The indemnity granted by
this subsection (3)(d) is limited to actual economic loss suffered and any court
costs and reasonable attorney fees and costs incurred in defending a claim brought
as a direct and proximate result of the failure to produce the original evidence of
debt, but the indemnity does not include, and no claimant is entitled to, any special,
incidental, consequential, reliance, expectation, or punitive damages. No separate
indemnification agreement is necessary for the agreement to indemnify to be
effective.
(II) A holder of the evidence of debt shall provide the public trustee a current
address for the original grantor, assuming party, or current owner when requesting
a release of a deed of trust pursuant to this subsection (3)(d).
(III) A holder of the evidence of debt that elects to request a release of a
deed of trust pursuant to this subsection (3)(d) must electronically file the request
for release of deed of trust via the county's electronic recording system.
(3.5) Venue for any action based upon the indemnification agreement
specified in paragraph (a) of subsection (3) of this section shall be proper only in the
county in which the public trustee receiving the certification is located.
(4) A public trustee shall have no duty to retain the original canceled
evidence of debt or deed of trust upon a release granted pursuant to this section.
(5) The lien represented by a deed of trust to the public trustee that secures
an obligation other than an evidence of debt shall be released by the public trustee
pursuant to the provisions of subsection (1) of this section as to all or portions of the
property encumbered by the deed of trust upon the:
(a) Receipt of a written request of the beneficiary or assignee of such deed
of trust, which request shall be duly executed and acknowledged;
(b) Presentation to the public trustee of an affidavit of such beneficiary or
assignee stating that the purpose of the deed of trust has been fully or partially
satisfied; and
(c) Receipt by the public trustee of the fee prescribed by section 38-37-104
(1)(a) and the fee for recording the release.
(6) The public trustee shall have no liability to any person, and no action may
be commenced against the public trustee, as a result of issuing a release or partial
release of a deed of trust under subsection (3) of this section, unless such action is
commenced within six years from the date of the recording of such release or
partial release or within the period of time prescribed by any statute of limitation of
this state in which a suit to enforce payment of the indebtedness or performance of
the obligation secured by said deed of trust may be commenced, whichever is less.
Nothing in this article shall be construed to waive immunity of a public trustee that
is provided in sections 24-10-101 to 24-10-120, C.R.S.
(7) The indemnification agreements or the corporate surety bond described
in this section shall, in each case, remain effective for the time period described in
subsection (6) of this section or until such time as any claim made against the
public trustee within such time period has been finally resolved, whichever is
longer.
(8) If the written request to release the lien of any deed of trust is a
fraudulent request, the release by the public trustee based upon such request shall
be void.
(8.5) If a deed of trust is improperly recorded in the office of the clerk and
recorder of a county other than the county in which the real property is located, the
deed of trust must be recorded in the correct county before the public trustee may
release the deed of trust. The public trustee of a county other than the county
wherein the real property is located shall not release the deed of trust.
(9) As used in this section, unless the context otherwise requires:
(a) Assuming party means a person other than the original grantor who
paid off the indebtedness on behalf of the original grantor.
(b) Current address means the most recent address reflected in the
records of a holder of the evidence of debt, a title insurance company licensed in
Colorado, or a holder of the original evidence of debt that is a qualified holder, as
defined in section 38-38-100.3 (20). If a holder of the evidence of debt, a title
insurance company licensed in Colorado, or a holder of the original evidence of debt
that is a qualified holder, as defined in section 38-38-100.3 (20), has no record of a
current address, any requirement that a current address be provided shall be
deemed satisfied by indicating that fact.
(c) Current owner means a person other than the original grantor who
currently owns the property and has either paid off or taken over the indebtedness
on behalf of the original grantor.