§ 38-41-206 — Levy on homestead - excess - costs

(1) Before any creditor of
the owner of the homesteaded property may proceed against said property, such
creditor shall file with the county clerk and recorder of the proper county and the
sheriff or other proper officer authorized to levy on said property:

(a) His affidavit showing:

(I) A description of the homesteaded property and the name of the claimant
of the homestead exemption;

(II) The fair market value of said property;

(III) That the fair market value of said property less any prior liens or
encumbrances thereon exceeds the amount of the homestead exemption fixed in
section 38-41-201 for which the claimant qualifies; and

(IV) That no previous execution arising out of the same judgment has been
levied upon said property;

(b) The affidavit of a professionally qualified independent appraiser showing
the same information required by subparagraphs (I) to (III) of paragraph (a) of this
subsection (1).

(2) If the amount offered at the sale of the homesteaded property does not
exceed seventy percent of the fair market value shown in the affidavit of the
independent appraiser filed pursuant to paragraph (b) of subsection (1) of this
section, all proceedings to sell said property shall terminate. The sheriff or the
proper officer shall then file for record in the office of the county clerk and recorder
of the proper county an instrument releasing all levies on said property in
connection with such sale, and the person instituting the proceedings shall pay the
costs of such proceedings, and the title of the owner to said property shall not be
impaired or affected.

(3) If the successful bidder at such sale is a judgment creditor, he shall be
required to pay in cash to the sheriff or other proper officer making the sale an
amount sufficient to pay the exemption plus the proper costs and expenses and
shall not have the right to have such exempt amount applied toward the
satisfaction of his judgment.

(4) If a sale is made, the proceeds thereof shall be applied in the following
order:

(a) First, to the discharge of all prior liens and encumbrances, if any, on said
property;

(b) Second, to the homestead claimant in the amount of the homestead
exemption for which he qualifies;

(c) Third, to the sheriff or other proper officer making the sale in an amount
sufficient to pay the proper costs and expenses of the sale;

(d) Fourth, to the satisfaction of the judgment; and

(e) Fifth, the balance, if any, to the homestead claimant.

Legislative History

Source: R.S. p. 386, � 63. G.L. � 1349. G.S. � 1637. R.S. 08: � 2956. C.L. � 5930. CSA: C. 93, � 28. L. 53: p. 412, � 4. CRS 53: � 77-3-6. C.R.S. 1963: � 77-3-6. L. 75: Entire section R&RE, p. 1445, � 3, effective July 14. L. 83: (1)(a)(III) amended, p. 1478, � 1, effective July 1.